Summary of NLRB Decisions for Week of June 20 - 24, 2016
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decisions
Gunderson Rail Services, LLC d/b/a Greenbrier Rail Services (28-CA-093183, et al.; 364 NLRB No. 30) Tucson, AZ, June 23, 2016.
The issues involved in this case arise in the context of the decision by the Respondent to close its Tucson, Arizona facility and relocate the work performed there.
The Board adopted the judge's conclusion that the Respondent violated 8(a)(5) and (1) by closing the facility and relocating bargaining unit work without bargaining with the Union. The Board found that, although the Tucson facility's largest customer ultimately decided to shift its work elsewhere, the facility retained sufficient work such that bargaining with the Union was warranted. Furthermore, the Board noted that the closure of the facility was not accompanied by a fundamental change in the nature of the Respondent's business and that the Respondent failed to establish that the continued operation of the Tucson facility was "not amenable to resolution through the collective-bargaining process." To remedy this unfair labor practice, the Board ordered the Respondent to restore the operations of the Tucson facility, noting that the Respondent could "introduce at compliance any evidence not available before the close of the hearing bearing on the appropriateness of the restoration remedy . . . ."
The Board also upheld the judge's finding that the Respondent committed numerous violations of Section 8(a)(1), including threatening employees, coercively interrogating employees, soliciting grievances, laying off or firing employees because of their union activities, and maintaining several unlawful employee handbook provisions. Finally, the Board, reversing the judge, found that the Respondent violated 8(a)(1) by informing employees that engaging in union or protected, concerted activities could result in job loss.
Charges filed by Sheet Metal Workers' International Association, Local 359, AFL-CIO. Administrative Law Judge Eleanor Laws issued her decision on June 30, 2014. Chairman Pearce, Member Hirozawa, and Member McFerran participated.
***
Engineering Contractors, Inc. and ECI of Washington, LLC, alter egos (05-CA-036213, et al.; 364 NLRB No. 32) Upper Marlboro, MD, June 23, 2016.
Based on the Respondent’s failure to file an answer to the General Counsel’s compliance specification, the Board granted the General Counsel’s motion for default judgment concerning backpay owed as a result of the Respondent’s failure to make whole employees and fringe benefit funds as found in the Board’s decision reported at 357 NLRB 1553 (2011). Member Miscimarra concurred with the entry of a default judgment, but noted that because default judgment cases can give rise to questions regarding whether the proper address was used when serving the complaint and when serving a notice to show cause why a default judgment should not be granted, he believes the Board should evaluate the development of standards that would foster greater uniformity and certainty in this area.
Charges filed by Plumbers Local No. 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO; Steamfitters Local 602, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of The United States and Canada, AFL–CIO; Sheet Metal Workers International Association, Local No. 100, AFL–CIO; and Asbestos Workers Local 24 Pension Fund, Asbestos Workers Local 24 Medical Fund, and Asbestos Workers Local 24 Apprenticeship Fund, Affiliated with International Association of Heat and Frost Insulators and Allied Workers Local 24, AFL–CIO.
Chairman Pearce and Members Miscimarra and Hirozawa participated.
***
National Dance Institute – New Mexico, Inc. (28-CA-157050; 364 NLRB No. 35) Santa Fe, NM, June 23, 2016.
The Board affirmed the judge's dismissal of the allegation that the Respondent violated Section 8(a)(1) and Section 8(a)(4) when it failed to assign dance classes to the charging party and subsequently discharged her.
Charges filed by an individual. Administrative Law judge Eleanor Laws issued her decision on February 10, 2016. Chairman Pearce and Members Hirozawa and McFerran participated.
***
EYM King of Missouri, LLC, d/b/a Burger King (14-CA-148915, 14-CA-150321 and 14-CA-150794; 364 NLRB No. 33) Kansas City, MO, June 16, 2016.
The Board found that the Respondent violated Section 8(a)(3) by refusing to hire a key leader in Kansas City of the nationwide campaign to "Fight for $15" (a campaign seeking higher wages and better working conditions for employees), who was also the lead union activist at the Kansas City Burger King location where he worked. When the Respondent assumed ownership of that location and began hiring its employee complement, it refused to hire that lead activist. The Board adopted the judge's finding discrediting the reasons asserted by the Respondent for the refusal to hire, finding instead that those reasons were a pretext for discrimination. The Board omitted the judge's recommended notice-reading remedy, finding that, under the circumstances, the one unfair labor practice found did not reflect widespread misconduct meriting a notice-reading remedy.
Charges filed by Workers Organizing Committee-Kansas City.
Administrative Law Judge Christine E. Dibble issued her decision on February 9, 2016. Chairman Pearce and Members Hirozawa and McFerran participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Rape, Abuse & Incest National Network (RAINN) (05-UC-150222) Washington DC, June 24, 2016. The Board denied the Petitioner's Request for Review of the Regional Director's Decision and Order Dismissing Petition. Petitioner – Washington-Baltimore Newspaper Guild, Local 32035. Members Miscimarra, Hirozawa and McFerran participated.
C Cases
Electronic and Space Technicians Local 1552 (Raytheon Company) (31-CB-152342, 31-CB-158356 and 31-CB-152970) El Segundo, CA, June 21, 2016. No exceptions having been filed to the May 10, 2016 decision of Administrative Law Judge Amita Baman Tracy’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge's findings and conclusions and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by individuals.
McDonald’s Restaurants of Florida, Inc. (12-CA-162976) Miramar, FL, June 22, 2016. The Board denied the Employer's petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. The Board stated that, in considering the petition to revoke, the Board evaluated the subpoena as modified by the Region in its opposition brief. Charge filed Southern Workers Organizing Committee. Members Miscimarra, Hirozawa and McFerran participated.
Local 324, International Union of Operating Engineers (IUOE), AFL-CIO (The Selinsky Force, LLC) (07-CB-105510) Monroe, MI. No exceptions having been filed to the May 10, 2016 decision of Administrative Law Judge Eric M. Fine's finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge's findings and conclusions and ordered the Respondent to take the action set forth in the judge's recommended Order. Charge filed by an individual.
Dyncorp International LLC (15-CA-165803) Columbus, MS, June 23, 2016. The Board denied the Employer's petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to matters under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revocation. The Board indicated that unlike the Employer, it interpreted the subpoena’s request for production of certain personnel files as seeking only the files of those employees investigated by the Employer for time and attendance reporting errors or misconduct, and as such, the request was not overbroad. The Board also indicated that, to the extent that the Employer believed in good faith that some requests were protected from disclosure by the attorney-client privilege or the attorney work product doctrine, the Employer could submit to the Region a privilege log identifying such documents. In a personal footnote, Member Miscimarra stated that he agreed with the Employer that the request for employee personnel files was overly broad and that he would grant the petition to revoke to the extent it required the production of personnel files of employees other than those whose alleged errors or misconduct in reporting time and attendance were the focus of the Employer's investigations for misconduct. He further noted, however, that under the Board majority’s interpretation, regardless of whether the paragraph at issue was objectionable as originally drafted, the Employer need not produce personnel files for the additional employees. Charge filed by International Union of Electrical and Communications Workers of America, Local 83770. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Cianelli Operating, Inc. f/k/a Pre-Cast Specialties, Inc. (12-CA-155900 and 12-CA-167524) Pompano Beach, FL, June 23, 2016. The Board denied Respondent Charter Communications' motion for partial summary judgment. The Board found that the Respondent failed to demonstrate that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. The motion was denied without prejudice to the Respondent's right to renew its arguments to the administrative law judge and before the Board on exceptions to the judge's decision, if appropriate. Member Miscimarra agreed with the denial of the motion, but he found the General Counsel's failure to respond to the Respondent’s argument was deficient and in a different case could be grounds to grant the motion for summary judgment. Member Miscimarra would require the General Counsel to state why a hearing is required by identifying material facts that are genuinely in dispute. However, he found that denial of the motion was appropriate because the pleadings showed that genuine issues of material fact existed regarding whether a Transmarine remedy is appropriate in this case. Charges filed by Construction and Craft Workers Local Union No. 1652, Laborers’ International Union of North America, AFL-CIO. Members Miscimarra, Hirozawa and McFerran participated.
Autozone, Inc. (10-CA-169095) Raleigh, NC, June 24, 2016. The Board denied the Employer's petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any legal basis for revoking the subpoena. The Board declined the Region's request to expand the scope of the subpoena from any handbooks or policies in place within the six months preceding the charge to "any" handbooks or policies. Member Miscimarra concurred, stating that he viewed the subpoena request regarding the employer’s handbook as reasonably encompassing matters "related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board," and there is no requirement that a charging party have personal knowledge of the violations alleged in a charge. He further stated that he considered the denial of the subpoena to be without prejudice to any defense that may be available regarding whether the charge allegations were initiated by representatives of the Board or the General Counsel. Charge filed by an individual. Members Miscimarra, Hirozawa, and McFerran participated.
***
Appellate Court Decisions
Garner/Morrison, LLC and Southwest Regional Council of Carpenters, Board Case Nos. 28-CA-021311 & 28–CB–006585 (reported at 356 NLRB No. 163) (D.C. Cir. decided June 21, 2016)
In a published opinion, the court granted the petitions for review filed by the respondent employer and union, vacated the Board's order, and remanded the case to the Board so that it could provide a reasoned justification for its departure from a prior precedent that the court found contained similarities "significant enough" to warrant explanation.
In 2003, the employer, a small drywall installation and painting company, hired its first employee and later, before hiring additional employees, signed a memorandum agreement with the Carpenters. In 2004, the employer began hiring painters and tapers and signed two pre-hire agreements with International Union of Painters and Allied Trades, District Council #15, Local Union #86, AFL-CIO-CLC. In 2007, the employer decided to allow those agreements to expire and asked the Carpenters to meet with its painters and tapers to discuss representation. The Carpenters booked a large hotel conference room for a meeting where four company officials sat in the front row and said that the employees in attendance should listen to the union. Union representatives spoke and then employees moved to two tables at the back of the room 65 to 70 feet away to talk and sign cards. The company officials stayed put and could not see or hear those activities. The Carpenters then presented the signed cards to the employer, and the employer recognized the union and signed an agreement on the spot.
In 2011, the Board (then-Chairman Liebman and Members Becker and Pearce) found that the employer violated Section 8(a)(1) by engaging in surveillance of its employees' activities at the meeting and violated Section 8(a)(2) by assisting and recognizing the Carpenters. In turn, the Board found that the Carpenters violated Section 8(b)(1)(A) by accepting that assistance and recognition and by signing an agreement. The employer and Carpenters jointly filed a motion for reconsideration, arguing that the Board ignored Coamo Knitting Mills, Inc., 150 NLRB No. 35 (1964), which was on point and controlling. The Board concluded that Coamo was a much different case, and denied the motion.
On review, the court agreed with petitioners' contention that the Board was required to provide a reasoned justification for its departure from Coamo Knitting Mills, a case in which the Board similarly examined whether the presence of management officials at a union meeting where employees signed authorization cards violated Section 8(a)(1) and (a)(2) but reached a different result on relatively similar facts.
The court’s opinion is here.
Verizon, New England, Inc., Board Case No. 01-CA-044539 (reported at 362 NLRB No. 24) (D.C. decided June 21, 2016)
The court issued a published opinion denying enforcement of the Board's order issued against this provider of telecommunications services to customers in Massachusetts and Rhode Island. The Board found that the employer violated Section 8(a)(1) when it directed employees at its facilities in Springfield, Westfield, and Hatfield, Massachusetts, to remove signs stating "Honor Our Existing Contract" from their personal cars parked in the employee parking lots.
The court majority (Judge Kavanaugh; Judge Henderson concurring in part and concurring in the judgment; Judge Srinivasan concurring in part but dissenting from the judgment) disagreed with the Board's determination not to defer to an arbitration award. The arbitrator had found the signs constituted picketing activity that was waived under the no-strike clause of the collective-bargaining agreement between the employer and the International Brotherhood of Electrical Workers, Local 2324, and thus could be prohibited by the employer. The Board held that the arbitrator's finding of waiver was premised on a "palpably wrong" definition of picketing that was overbroad in its definition and included "communicating a message" without the key component of physical confrontation that is generally needed for a finding of picketing. The Board also noted that the arbitration decision cited no evidence of the parties’ bargaining history or other extrinsic evidence showing that the parties either intended or anticipated that the contract’s no-strike clause would apply to the display of pro-union signs in unattended cars. Thus, the Board had concluded that the arbitration award was "repugnant to the Act," and found the Section 8(a)(1) violation.
The court majority (Judge Kavanaugh, joined by Judge Henderson) concluded that the Board misapplied its "highly deferential standard" under which it will uphold an arbitrator's decision unless it is "clearly repugnant" to the Act, and held that the Board should have upheld the arbitrator's award in this case. All three judges, however, agreed that in determining whether to defer to an arbitrator's finding of contract waiver: "The Board must ask only whether the Act permits the Section 7 right at issue to be waived in a collective bargaining agreement. If the answer to that question is yes, then an arbitrator's conclusion that the parties to a contract had, in fact, waived that Section 7 right is necessarily susceptible to an interpretation consistent with the Act," and not repugnant to it. That said, a different majority of the court (Judge Kavanaugh, joined by Judge Srinivasan) held that an arbitrator’s decision could also be repugnant to the Act if it interprets a contract in a "palpably wrong" manner that deprives the losing party of a right otherwise guaranteed by the Act. It then noted that "wrong was not enough," but that the interpretation would need to be “egregiously wrong” to meet the standard. Applying that definition (Judge Kavanaugh, joined by Judge Henderson) concluded that the decision here was “far from egregiously wrong.” Judge Srinivasan, although agreeing with much of Judge Kavanaugh's opinion, would have upheld the Board’s conclusion as reasonable and enforced.
The court’s opinion is here.
Somerset Valley Rehabilitation and Nursing Center, Board Case No. 22-CA-029599 (reported at 362 NLRB No. 113) (3d Cir. decided June 6, 2016)
In a published opinion, the court enforced the Board's order issued against this nursing center in Bound Brook, New Jersey, for unfair labor practices committed before and after a September 2010 election in which its licensed practical nurses and certified nurses' aides voted 38-28 to be represented by 1199 SEIU United Healthcare Workers East, New Jersey Region.
The Board (Chairman Pearce, Members Hirozawa and McFerran) found that, in the weeks leading up to the election, the employer violated Section 8(a)(1) when its managers interrogated employees about their union sympathies and activities and solicited grievances. Further, the Board found that after the election the employer retaliated against employees for their union support in violation of Section 8(a)(3) and (1) by disciplining and discharging four employees, accelerating the resignation of another, and reducing the hours of some employees.
Before the court, the employer argued, for the first time, that the underlying complaint was invalid under SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), because it issued under the tenure of Acting General Counsel Lafe Solomon, and arguing that it could avoid Section 10(e)’s exhaustion requirement and raise the issue at any time for two reasons—because it was jurisdictional in nature, and because the issue implicated the overall authority of the Board to hear the case. The court disagreed. First, the court held that the proposition that the issue was jurisdictional in nature "conflicts with the Supreme Court’s subsequent instruction in City of Arlington [v. FCC, 133 S. Ct. 1863 (2013),] that any distinction between a 'jurisdictional' and 'nonjurisdictional' exercise of agency authority is merely 'illusory,'" quoting id. at 1869. Second, the court stated that it was "in accord with the principal opinion upon which [the employer] relies to support its FVRA defense, in which the D.C. Circuit expressed doubt that the argument then before it, if unpreserved, could be raised in court," citing SW General, 796 F.3d at 83 ("We doubt that an employer that failed to timely raise an FVRA objection . . . will enjoy . . . success."). In doing so, the court distinguished its recent holding in Advanced Disposal Servs. E., Inc. v. NLRB, No. 15-2229, 2016 WL 1598607, at *4 (3d Cir. Apr. 21, 2016), that unexhausted post-Noel Canning challenges to the composition of the NLRB may be heard because they satisfy the "extraordinary circumstances" exception to Section 10(e). The court explained that Advanced Disposal concerned a challenge "to the authority of the Board itself to act based on the constitutional infirmity of its members' appointments," rather than to the authority of the Acting General Counsel, a single agency officer. Accordingly, the court concluded that because the employer "has no way around the [Section] 10(e) exhaustion requirement," the court lacked jurisdiction to consider the FVRA issue.
Turning to the Board' unfair-labor-practice findings, the court held that they were supported by substantial evidence. The court rejected the employer’s challenge to the Board’s reinstatement remedy for the four discharged employees, holding that the employer' claim that those employees would put patients at risk was contrary to the credited evidence. Lastly, the court rejected the employer' claim that Chairman Pearce should have recused himself from the case because his chief counsel had previously represented the union in the case. Given the lack of evidence that the chief counsel played any role in the consideration of the case, the court held that the Board did not abuse its discretion in maintaining the Chairman on the three-member panel.
The court’s decision is here.
***
Administrative Law Judge Decisions
Wells Enterprises, Inc. (18-CA-150544 and 18-CB-153774; JD-54-16) Le Mars, IO. Administrative Law Judge Eric M. Fine issued his decision on June 20, 2016. Charges filed by an individual.
Alstate Maintenance LLC (29-CA-117101; JD(NY)-18-16) Brooklyn, NY. Administrative Law Judge Raymond P. Green issued his decision on June 24, 2016. Charge filed by an individual.
Tschiggfrie Properties, Ltd (25-CA-161304; JD-55-16) Dubuque, IA. Administrative Law Judge Keltner W. Locke issued his decision on June 24, 2016. Charge filed by Teamsters Local 120 a/w International Brotherhood of Teamsters.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.