Summary of NLRB Decisions for Week of June 29 - July 2, 2015
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
East Market Restaurant, Inc. (02-CA-120982, et al., 362 NLRB No. 143) New York, NY, June 30, 2015.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s withdrawal of its answer to the complaint. Accordingly, the Board found that the Respondent violated Section 8(a)(4), (3), and (1) by discharging two employees because they assisted the Union and engaged in concerted activities and to discourage employees from engaging in these activities, and because one employee cooperated in a Board investigation, and that it violated Section 8(a)(1) by threatening employees with unspecified reprisals, criminal charges, closure of the restaurant, and discharge. In addition, the Board found that the Respondent violated Section 8(a)(5) and (1) by closing its facility and terminating unit employees without affording the Union an opportunity to bargain with the Respondent with respect to the effects of this conduct. The Board ordered the Respondent to offer reinstatement to the two discharged employees in the event that it resumes the same or similar business operations, make them whole for any loss of earnings and other benefits they may have suffered as a result of the Respondent’s unlawful conduct, compensate the employees for any adverse tax consequences of receiving lump-sum backpay awards and file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters, remove references to the unlawful discipline and discharges from the employees’ files, and mail a notice to employees. In addition, the Board ordered the Respondent to bargain, on request, about the effects of the decision to close its facility, and it also ordered a Transmarine remedy for this violation. The Board declined at this time to order the relief the General Counsel requested in the complaint—to reimburse the employees for any out-of-pocket expenses incurred while searching for work as a result of the discrimination against them—stating that the relief sought would involve a change in Board law, that the appropriateness of this proposed remedy should be resolved after a full briefing by the affected parties, and that there has been no such briefing in this case. Charges filed by 318 Restaurant Workers Union. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Chicago Parking Valet LLC (13-CA-140279, 362 NLRB No. 141) Park Ridge, IL, June 30, 2015.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint. Accordingly, the Board found that the Respondent violated Section 8(a)(5) by failing to furnish the Union with relevant requested information. The Board ordered the Respondent to furnish the Union with the requested information. Charge filed by International Brotherhood of Teamsters Local 727. Members Hirozawa, Johnson, and McFerran participated.
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International Brotherhood of Electrical Workers Local Union 71 (Thompson Electric, Inc.) (08-CD-133004; 362 NLRB No. 127) Munroe Falls, OH, June 30 2015.
This case involves a jurisdictional dispute under Section 10(k) of the Act between International Brotherhood of Electrical Workers Local Union 71 (Electrical Workers) and International Union of Operating Engineers, Local 18, AFL-CIO. The disputed work is the operation of heavy highway equipment, including augers affixed to line trucks, mini-excavators, Bobcats, and other machinery, along Interstate 90 in Lake County, Ohio. The Board awarded the work in dispute to employees represented by the Electrical Workers, based on the factors of collective-bargaining agreements, employer preference and past practice, relative skills and training, and economy and efficiency of operations. Charge filed by Thompson Electric, Inc. Members Miscimarra, Hirozawa, and Johnson participated.
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Cook Inlet Tug & Barge, Inc. (19-RC-106498; 362 NLRB No. 111) Anchorage, AK, June 30, 2015.
On a previous grant of review, the Board affirmed the Regional Director’s finding that the Employer’s tugboat captains do not possess the authority to assign or responsibly to direct employees. Regarding assignment, the Board relied mainly on testimony that each of the Employer’s vessels typically has only one deckhand assigned to it, and thus any assignment authority the captains may have does not involve independent judgment because assignments have only one obvious and self-evident choice. The Board also found that (1) the examples of “assignment” the Employer provided did not involve assignment within the statutory sense and the evidence also did not show such assignments involved independent judgment; (2) there was no evidence captains were involved in setting the work schedules of the deckhands, and although captains appeared to determine the specific hours a crew will work during weeks they are assigned to a boat, evidence about this practice was also insufficient to establish that the captains used independent judgment; and (3) the one specific example of a captain choosing which deckhand would work on his vessel did not establish assignment authority in the statutory sense because it was not clear on what criteria captains based these decisions, nor was it clear that such decisions were free from the control of others. Regarding direction, the Board agreed with the Regional Director that the captains are not “accountable” within the meaning of Oakwood Healthcare, 348 NLRB 686 (2006), because (1) there was no specific evidence illustrating captains are actually held accountable for deckhand performance, and (2) although there was testimony that captains are “responsible” under Coast Guard regulations, these regulations were not part of the record, none of the testimony about the regulations indicated how captains are held accountable, and even if the Coast Guard holds captains accountable, it does not follow that the Employer does so. Dissenting, Member Miscimarra would have found that the record supports a finding that the captains possess the authority to assign and to responsibly direct deckhands. Petitioner—Inlandboatmen’s Union of the Pacific. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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FedEx Freight, Inc. (04-CA-150263; 362 NLRB No. 140) Croydon, PA, June 30, 2015. The Board granted the General Counsel’s motion for summary judgment in this test-of-certification refusal-to-bargain case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative. In addition, the Board rejected the Respondent’s request that the Board consider a “clarification of the evidence presented” in the representation proceeding by admitting into evidence a revised report purportedly supporting the Respondent’s position that the appropriate unit must include the Respondent’s dockworkers. The Board found that the proffered evidence is not newly discovered and previously unavailable, nor would such evidence, if adduced, establish special circumstances or require a different result, even assuming that it is newly discovered. Thus, the Board found that the Respondent violated Section 8(a)(5) by refusing to recognize and bargain with the Union. Charge filed by International Brotherhood of Teamsters Local No. 107. Members Hirozawa, Johnson, and McFerran participated.
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A.W. Farrell & Son, Inc. (28-CA-085434, et al.; 362 NLRB No. 142) Las Vegas, NV, July 1, 2015.
The Board adopted the Administrative Law Judge’s dismissal of the complaint allegation that the Respondent Employer, A.W. Farrell & Son, violated Section 8(a)(5) and (1) by repudiating its collective-bargaining relationship with the Respondent Union, Roofers Local 162. The Board found that the substance of this allegation was already litigated and decided by the Board in an earlier case, and that the Board's Order in the earlier case included the same remedies sought by the Union in this case. The Board also adopted the Judge’s dismissal of the
allegation that Roofers Local 162 violated Section 8(b)(3) by failing and refusing to bargain in good faith when, among other things, it allegedly unreasonably delayed or cancelled bargaining sessions. The Board affirmed the judge’s dismissal of this allegation, but for a different
reason. The Board found that the parties had a valid collective-bargaining agreement in place during the entire period that the Employer was seeking to bargain. For that reason, the Board concluded that the Union was not obligated to bargain, and therefore its failure or refusal to do so did not violate Section 8(b)(3). The Board, however, reversed the Judge and found that the Union did not violate Section 8(b)(3) by failing to furnish the Employer with requested information about its various benefit funds and by unreasonably delaying its provision of other related documents. Charge in Case 28-CA-085434 filed by the United Union of Roofers, Waterproofers, and Allied Workers, Local 162. Charges in Cases 28-CB-080494 and 28-CB-085690 filed by A.W. Farrell & Son, Inc. Administrative Law Judge Robert A. Ringler issued his decision on May 13, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Seattle Children’s (19-RC-150590) Seattle, WA, June 29, 2015. Order denying Employer’s Request for Review of the Regional Director’s Decision and Direction of Election. Member Johnson agreed to deny review because the Employer disavowed seeking review of St. Vincent, Charity Medical Center, 357 NLRB No. 79 (2011),which he believes is inconsistent with a key purpose of the Health Care Rule: to streamline the representation process and minimize the disruption that results from questions concerning representation arising at acute health care facilities. Member Johnson stated that he believes that this case—which finds an identifiable and distinct group of only two employees—highlights the disruption that can result from the approach sanctioned by the Board in St. Vincent, which this case shows, he asserted, essentially permits organizing at acute care hospitals two by two. Petitioner—International Union of Operating Engineers, Local 286, AFL-CIO. Members Hirozawa, Johnson, and McFerran participated.
Dignity Health & St. Francis Memorial Hospital; Dignity Health d/b/a Dominican Hospital (20-UC-115160 and 32-UC-115418) San Francisco, CA, June 29, 2015. Order denying the Employer’s Request for Review of the Regional Director’s Decision and Order on the basis that it raised no substantial issues as to whether the Regional Director properly declined to clarify a bargaining unit to exclude the position of chief engineer at St. Mary’s Medical Center of San Francisco. Union—International Union of Operating Engineers, Stationary Engineers Local No. 39. Members Miscimarra, Hirozawa, and Johnson participated.
Live Nation Entertainment, Inc. (04-RC-143064) Philadelphia, PA, June 29, 2015. No exceptions having been filed to the Regional Director’s overruling of the Employer’s objections to a mail-ballot election held between February 23 and March 13, 2015, the Board adopted the Regional Director’s findings and recommendations, and certified the Petitioner, International Alliance of Theatrical Stage Employees, Local 8, as the exclusive collective-bargaining representative of the unit employees.
C Cases
Green Fleet Systems, LLC (21-CA-100003, et al.) Carson, CA, June 29, 2015. No exceptions having been filed to the April 9, 2015 decision of Administrative Law Judge Jeffrey D. Wedekind 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.
Mercy Healthcare Partners, Hackley Campus (07-CA-133887, et al.) Muskegon, MI, June 29, 2015. No exceptions having been filed to the May 8, 2015 decision of Administrative Law Judge Thomas M. Randazzo finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and adopted the judge’s recommended Order and dismissed the complaint.
United States Postal Service (07-CA-135980) Traverse City, MI, July 1, 2015. Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions that the Employer must take to comply with the National Labor Relations Act. Charge filed by Local 531, American Postal Workers Union (APWU), AFL-CIO. Members Hirozawa, Johnson, and McFerran participated.
Synergy One Locating Services, LLC and Safe MarkX, LLC, as Joint Employers (28-CA-137972 et al.) Phoenix, AZ, July 1, 2015. Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions that the Employer must take to comply with the National Labor Relations Act. Charges filed by International Brotherhood of Electrical Workers, Local 387, AFL-CIO. Members Hirozawa, Johnson, and McFerran participated.
2 Sisters Food Group, Inc., and Fresh & Easy Neighborhood Market, Inc. (21-CA-038915) Riverside, CA, July 1, 2015. Order denying the petition filed by a nonparty to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the petitioner failed to establish any other legal basis for revoking the subpoena. Charge filed by United Food and Commercial Workers International Union, Local 1167. Members Hirozawa, Johnson, and McFerran participated.
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Appellate Court Decisions
Le Fort Enterprises, Inc. d/b/a Merry Maids of Boston, Board Case No. 01-CA-123707 (reported at 360 NLRB No. 119) (1st Cir. decided July 1, 2015)
In a published opinion, the Court granted enforcement in this refusal-to-bargain case and rejected the challenge of the cleaning services franchise to the Board's jurisdiction and its objections to the election in which 29 employees who clean residential houses in the Boston area voted to be represented by International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 7, AFL-CIO.
After the union filed a petition for representation, the employer claimed that it should be dismissed for lack of jurisdiction because the employer was a nonretail enterprise that did not meet the requirements of the nonretail standard. After a hearing, the Regional Director issued a decision finding jurisdiction because the undisputed fact that its employees clean residential houses places the employer squarely within the ambit of the Board’s retail standard. In March 2013, an election was held and the union prevailed. The employer filed objections alleging that pro-union employees threatened new and undocumented employees with discharge, engaged in improper electioneering, and insulted company officials and employees who did not support the union. After a hearing, the hearing officer issued a report finding that the employees’ actions did not render free choice in the election impossible, and recommended the objections be overruled. On review, the Board issued a decision adopting the recommendations and certifying the union. Subsequently, the employer refused to bargain to test the certification and the Board granted the General Counsel’s motion for summary judgment.
On review, the court recognized that a challenge to the Board's broad statutory grant of jurisdiction faces a steep uphill climb and upheld the Board’s jurisdictional determination in this case. Agreeing with the Board, the court noted that the employer primarily provides cleaning services to residential customers and thus falls under the Board’s retail standard. In doing so, the court distinguished cases involving cleaning companies that primarily service commercial and institutional clients. Regarding the election objections, the court held that they were “little more than brief, ambiguous, rumored threats to three employees who had not yet voted, made by co-workers without authority to carry out the threats, and in the context of taunting and cajoling during a hotly contested election.” Accordingly, the court concluded that the evidence presented was insufficient to meet the employer’s burden of showing that the Board abused its discretion in overruling the objections.
The Court’s opinion is here.
Soaring Eagle Casino and Resort, an Enterprise of the Saginaw Chippewa Tribe of Michigan, Board Case No. 07-CA-053586 (reported at 361 NLRB No. 73) (6th Cir. decided July 1, 2015)
In a published opinion, the Court enforced the Board’s Order against an Indian tribe operating a casino on tribal land. Acknowledging that it was bound by a prior panel’s recent decision in NLRB v. Little River Band of Ottawa Indians Tribal Government, No. 14-2239, 2015WL 3556005 (6th Cir. June 9, 2015), the panel upheld the Board’s jurisdiction over the Tribe and its findings that the Tribe’s no-solicitation policy and its discharge of an employee for violating that policy, violated Section 8(a)(1) and (3). The panel, however, stated its disagreement with the Little River majority’s adoption of the framework set forth in Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985), and its analysis of Indian inherent sovereignty rights. The panel majority, 2-1, rejected the Tribe’s argument that its general right to exclude, as set forth in an 1864 treaty, was sufficient to prevent application of the NLRA to the Casino.
The Court’s opinion is here.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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