Summary of NLRB Decisions for Week of June 6 - 10, 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
CVS Albany, LLC d/b/a CVS (29-RC-155927; 364 NLRB No. 21) Brooklyn, NY, June 7, 2016.
Decision on Review and Order remanding the proceeding to the Regional Director for further appropriate action. Having carefully considered the record, the Board reversed the Regional Director and found that the challenges to the ballots of three employees at issue should be sustained because these employees were “floaters,” a classification explicitly excluded from the unit in the Stipulated Election Agreement. The Board agreed with the Regional Director that the Board’s Caesar’s Tahoe test is the proper standard for resolving the case, and that the Stipulated Election Agreement was ambiguous with respect to the excluded category of “floaters,” which is not a job classification maintained by the Employer and is not defined in the agreement. The Board further found, however, contrary to the Regional Director, that this ambiguity could be resolved through usual methods of contract interpretation, including the examination of extrinsic evidence.
Applying methods of contract interpretation, the Board found that the Petitioner’s interpretation of the term, covering all employees whose home store was not the Flatbush location but who simply worked there periodically or sporadically, was the more reasonable interpretation, and provided effective meaning to the Stipulated Election Agreement as a whole. The Board also considered the change in language from the initial petition to the Stipulated Election Agreement, as well as testimony concerning instances in which store managers used the term “floater,” finding that these pieces of evidence supported the Petitioner’s interpretation of the term. Members Hirozawa and McFerran would also rely on testimony from employees concerning their understanding of the term “floater,” finding that their testimony generally supported the interpretation proffered by the Petitioner.
Petitioner- Local 338 Retail, Wholesale and Department Store Union (RWDSU), United Food and Commercial Workers International Union (UFCW). Chairman Pearce and Members Hirozawa and McFerran participated.
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Professional Diversity Network, Inc., d/b/a National Association of Professional Women (31-CA-159810 and 31-CA-162904; 364 NLRB No. 19) Chicago, IL and Los Angeles, CA, June 7, 2016.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the consolidated complaint. The Board found that the Respondent violated Section 8(a)(1) by discharging an employee for engaging in protected concerted activity, and by maintaining overbroad provisions in its handbooks and code of conduct.
Charges filed by an individual. Chairman Pearce and Members Hirozawa and McFerran participated.
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The Boeing Company (19-CA-093656; 364 NLRB No. 24) Seattle, WA, June 9, 2016.
The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide relevant requested information to the Union. With respect to the Union’s request for information concerning what the Respondent meant by its references to a “premium” paid to its Puget Sound employees, a Board panel majority consisting of Members Hirozawa and McFerran found that the Respondent did not satisfy this request because the Respondent did not clearly state that any reference to a premium was a reference to the fact that Puget Sound employees receive Tier 1 compensation, explain to the Union how its Tier 1 compensation level is calculated, and provide the data underlying its three-tiered compensation system. Member Miscimarra, dissenting only as to this finding, would have found that the Respondent’s response that “[i]t is a statistical and publicly available fact that the Puget Sound has higher wage rates than other geographic regions” adequately informed the Union what the Respondent meant by “premium.” Additionally, the Board set out the following procedural framework for cases where an employer argues that a union no longer has a need for requested information:
1. If a respondent, based on evidence available before or during the merits hearing before the administrative law judge, wishes to argue that production should not be ordered because the union has no need for the information, the respondent must introduce the relevant evidence during the merits hearing and argue the issue to the judge. The judge should permit the General Counsel and the charging party to contest the respondent’s claim and/or to state an ongoing need for the requested information and to introduce evidence accordingly.
2. If evidence that the union has no need for the information first becomes available after the merits hearing has closed, the respondent may raise the issue in the compliance stage of the case [or may alternatively move to reopen the record pursuant to Section 102.48 of the Board’s Rules and Regulations, if applicable]. If the issue is not resolved informally, the respondent must plead in its answer to the compliance specification the absence of a need for the information as the equivalent of an affirmative defense, and then introduce evidence establishing its contention, which the General Counsel and the charging party should be permitted to contest, as described. As stated above and in prior decisions, the respondent has the burden of establishing that the union has no need for the information.
In the present case, the Board ordered the Respondent to provide the requested information to the Union, unless the Respondent establishes in the compliance proceeding that the Union has no need for that information.
Charges filed by Society of Professional Engineering Employees in Aerospace, affiliated with International Federation of Professional & Technical Engineers, Local 2001. Members Miscimarra, Hirozawa, and McFerran participated.
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Loomis Armored US, Inc. (32-CA-025316, et al.; 364 NLRB No. 23) Stockton, CA, June 9, 2016.
The full Board, with Member Miscimarra dissenting, found that where an employer of a unit of security guards voluntarily recognizes a “mixed-guard” union (a union that has both guard and non-guard members) as the unit’s bargaining representative, the employer may not later, after the parties’ collective-bargaining agreement has expired, withdraw recognition without demonstrating that the union has lost its majority support. In making this finding, the Board overruled Wells Fargo Corp., 270 NLRB 787 (1984), rev. denied sub nom. Truck Drivers Local Union No. 807 v. NLRB, 755 F.2d 5 (2d Cir. 1985), cert denied 474 U.S. 901 (1985). In Wells Fargo, the Board interpreted the Act’s Sec. 9(b)(3), which bars a mixed-guard union from being “certified” by the Board as the representative of a guards unit, to permit an employer to withdraw its voluntary recognition in the absence of a collective-bargaining agreement. The Respondent in this case had withdrawn recognition from the four Charging Parties, each a local union of the Teamsters, solely in reliance on Wells Fargo; and the administrative law judge, applying Wells Fargo as the controlling authority as he was required to follow, dismissed the complaint. On exception, the Charging Parties and the General Counsel pursued their contention that Wells Fargo was wrongly decided. The Board found that requiring an employer of guards (like other employers covered by the Act) to show loss of majority support before withdrawing the recognition it had previously chosen to give to a mixed-guard union is more in keeping with the Act’s goals of promoting stable bargaining relationships and protecting employees’ right to their choice of representation, while still preserving the employer’s right initially to withhold such recognition where the employer perceives a potential conflict of interest between guard and non-guard employees. However, the Board decided not to apply its decision to pending cases and accordingly dismissed the complaint in this case. In dissent, Member Miscimarra defended the holding of Wells Fargo as the better interpretation of Sec. 9(b)(3). The charges were filed by Teamsters Locals 853, 150, 542, and 396. Administrative Law Judge Jay R. Pollack issued his decision on January 11, 2012. Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.
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Shambaugh and Son, L.P. (25-CA-141001 and 25-CA-145447; 364 NLRB No. 26) Fort Wayne, IN, June 10, 2016.
In the absence of exceptions, the Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) of the Act by interrogating a job applicant concerning his union membership and by requiring the applicant to provide written evidence of his withdrawal from the Union to receive consideration for employment. The Board also adopted the judge’s finding that the Respondent violated Section. 8(a)(3) and (1) by refusing to consider for hire and refusing to hire an employee. In so doing, the Board relied on the judge’s finding that the Respondent’s reason for the refusal to hire the employee was pretextual, in addition to the following additional evidence of animus: (1) the Section 8(a)(1) violations, to which there were no exceptions; and (2) the timing of the Respondent’s refusal to hire the employee, within a few months of witnessing him participate in a bannering campaign at the Respondent’s headquarters. Member Miscimarra noted his disagreement with the judge’s reliance on the employer’s pretextual reason for the failure to hire the employee as satisfying the General Counsel’s burden of proving unlawful motivation for the employment action.
Charge filed by the International Association of Heat and Frost Insulators and Allied Workers, Local 41. Administrative Law Judge Charles J. Muhl issued his decision on September 17, 2015. Members Miscimarra, Hirozawa and McFerran participated.
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Schwan’s Home Service, Inc., a wholly owned subsidiary of the Schwan Food Company (27-CA-066674; 364 NLRB No. 20) Loveland, CO, June 10, 2016.
A Board panel unanimously found that Respondent unlawfully maintained work rules that, among other things, prohibited employees from disclosure of information concerning employees, discussion of Respondent’s business with third parties, and using the Respondent’s name in any “publication” without Respondent’s permission. The Board panel also unanimously found that a non-compete and confidentiality agreement which prohibited employees from discussing “wages, commissions, performance, or identity of employees” violated the Act. A panel majority consisting of Chairman Pearce and Member Hirozawa further found that Respondent unlawfully maintained work rules prohibiting the disclosure of customer information and requiring avoidance of “conduct on or off duty which is detrimental to the best interest of the company.” Dissenting in part, Member Miscimarra would have found these prohibitions lawful, under either the new balancing test he proposed in William Beaumont Hospital, 363 NLRB No. 162 (2016) or the Board’s current Lutheran Heritage Village-Livonia’s 343 NLRB 646 (2004) standard for assessing work rules.
Charge filed by an individual. Administrative Law Judge Gerald A. Wacknov issued his decision on June 6, 2012. Chairman Pearce, Member Miscimarra, and Member Hirozawa participated.
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AFSCME Council 5, Local 3558 (St. Luke’s Hospital of Duluth, Inc. d/b/a St. Luke’s Home Care (18-CB-149410; 364 NLRB No. 25) Duluth, MN, June 10, 2016.
The Board found that the Respondent violated Section 8(b)(3) by insisting to impasse over interest arbitration, which is a permissive subject of bargaining.
Charges filed by St. Luke’s Hospital of Duluth, Inc. d/b/a/ St. Luke’s Home Care. Chairman Pearce and Members Hirozawa and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued
C Cases
Bailey Electric Inc., and CB Electric LLC, alter egos (19-CA-146474) Yakima, WA, June 6, 2016. No exceptions having been filed to the April 22, 2016 decision of Administrative Law Judge Christine E. Dibble’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 International Brotherhood of Electrical Workers, Local Union 112, AFL-CIO-CLC.
International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, Communication Workers of America, AFL-CIO, CLC (IUE-CWA, Local 301) (03-CB-146489) Schenectady, NY, June 6, 2016. No exceptions having been filed to the April 22, 2016 decision of Administrative Law Judge Robert A. Ringler finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and order the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by Von Roll, U.S.A., Inc.
Advoserv of New Jersey, Inc. (22-CA-131230) Hewitt, NJ, June 7, 2016. The Board denied the Respondent’s motion to reopen the record and for reconsideration of the Board’s Decision and Order (reported at 363 NLRB No. 143 (2016)), finding that the Respondent violated Section 8(a)(3) and (1) by terminating Todd Kowinsky for his union activities and, independently, violated Section 8(a)(1) by discharging Kowinsky for conduct that occurred during the course of his protected concerted activity. The Board denied the Respondent’s request to admit testimony Kowinsky gave in a deposition in a New Jersey state court proceeding after the close of the Board’s hearing because Kowinsky’s subsequent testimony was not materially inconsistent with his testimony during the Board proceeding. Additionally, the Board found no merit in the Respondent’s contention that the Board committed a material error of law by rejecting its defense, under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), that it would have terminated Kowinsky even absent his union activities. Charges filed by 1199 SEIU, United Healthcare Workers East, New Jersey Region. Administrative Law Judge Steven Fish issued his decision on September 18, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
United Food and Commercial Workers, Local 1000 (Kroger) (16-CB-151391) Cleburne, TX, June 7, 2016. No exceptions having been filed to the April 26, 2016 decision of Administrative Law Judge Joel P. Biblowitz finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and orders the complaint dismissed. Charge filed by an individual.
Ameripride (15-CA-167488) Memphis, TN, June 8, 2016. The Board denied the Employer’s petition to partially 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 indicated that in considering the petition to revoke, it evaluated the subpoena as modified by the Region in its opposition brief, in which the Region indicated that some subpoenaed information had been provided and those subpoena paragraphs were withdrawn. Member Miscimarra indicated that he would limit the documents sought in one subpoena paragraph to accord with the General Counsel’s description in his opposition brief regarding the information sought. Charges filed by Southern Regional Workers United a/w SEIU. Chairman Pearce and Members Miscimarra and Hirozawa participated.
American Sales and Management Organization, LLC d/b/a Eulen America (12-CA-163435) Miami, FL, June 8, 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 indicated that, in considering the petition to revoke, it evaluated the subpoena as modified by the Region in its opposition brief, in which the Region agreed that the Employer may redact any prices contained in the information requested by one subpoena paragraph, and amended another subpoena paragraph to narrow the time frame. Charges filed by Service Employees International Union, Local 32BJ. Chairman Pearce and Members Miscimarra and Hirozawa participated.
International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 720, AFL-CIO, CLC (Tropicana Las Vegas, Inc.) (28-CB-131044) Las Vegas, NV, June 8, 2016. Order denying the Respondent’s motion for reconsideration of the Board’s Decision and Order reported at 363 NLRB No. 148 (2016). The Board found that the Respondent did not identify any material error or demonstrate extraordinary circumstances warranting reconsideration. Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Strategic Staffing Solutions and DirecTV, as a Joint Employer (31-CA-159135) Los Angeles, California; June 8, 2016. The Board denied the Employers’ petitions to revoke the General Counsel’s subpoenas duces tecum. The Board majority found that the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the majority found that the employers had failed to establish any other legal basis for revoking the subpoenas. Member Miscimarra dissented in part, stating that in his view, the General Counsel had not set forth a sufficient basis for requesting documents regarding the two employers’ status as a joint employer. Charges filed by an individual. Chairman Pearce and Members Hirozawa and Miscimarra participated.
East End Bus Lines, Inc. (29-CA-161247, et al.) Medford, NY, June 8, 2016. The Board granted the Union’s request for special permission to appeal from the administrative law judge’s order granting the Respondent’s request to postpone the hearing. On the merits, the Board denied the appeal, finding that the Union failed to demonstrate that the administrative law judge abused his discretion. Charges filed by International Brotherhood of Teamsters, Local 1205 and by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Ready Mix USA, LLC (10-CA-140059, et al.) Huntsville, AL, June 9, 2016. The Board granted the motion to remand case to the Region for further action.
Walmart Stores, Inc. (21-CA-150416) Pico Rivera, CA, June 9, 2016. The Board granted the Regional Director’s motion to clarify the Board’s earlier Order denying a petition to revoke an investigative subpoena. First, the Board found that the Regional Director’s motion was appropriately and timely filed under Section 102.49 of the Board’s Rules and Regulations. Second, the Board clarified that its directive in the earlier order - that the Region enter into a protective order at the request of the Employer - covers only the documents requested in two specific subpoena requests and not all responsive documents, as argued by the Employer. Further, the Board clarified that any portion of the documents requested in those two specific subpoena paragraphs that were subject to a protective order in a different Board proceeding involving the same parties are also subject to a protective order during the investigative stage of this proceeding. Finally, the Board stated that when and if a formal proceeding takes place, such as a hearing before an administrative law judge or a subpoena enforcement proceeding in district court, the General Counsel shall seek a further appropriate protective order for those documents from the judge. Charges filed by Organization United for Respect at Walmart (OUR WALMART). Chairman Pearce and Members Miscimarra and Hirozawa participated.
IXL Learning, Inc. (20-CA-153625) San Mateo, CA, June 10, 2016. No exceptions having been filed to the April 28, 2016 decision of Administrative Law Judge Gerald M. Etchingham finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and ordered the complaint dismissed. Charge filed by an individual.
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Appellate Court Decisions
On Assignment Staffing Services, Inc., Board Case No. 32-CA-095025 (reported at 362 NLRB No. 189) (5th Cir. decided June 6, 2016)
In an unpublished per curiam order, the court granted the employer’s motion for summary reversal of the Board’s decision that found that the employer violated Section 8(a)(1) of the Act by maintaining an arbitration agreement, as a condition of employment, that waived employees’ right to pursue class or collective actions in employment-related claims in all forums, whether arbitral or judicial. The order issued 3 weeks after that same court denied the Board’s petition for rehearing en banc in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), in which the court held it was bound by its prior decision in D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), denying enforcement in relevant part 357 NLRB No. 184 (Jan. 3, 2012), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014).
The court’s order (dated June 6, 2016) may be found here.
Camelot Terrace, Inc. and Galesburg Terrace, Inc., Board Case No. 33-CA-015584 (reported at 357 NLRB No. 161) (D.C. Cir. decided June 10, 2016)
In a published opinion, the court summarily enforced those portions of the Board’s order issued against these two operators of nursing homes in Streator and Galesburg, Illinois, remedying numerous uncontested unfair labor practices. Regarding two contested special remedies, the court rejected the Board’s award of litigation expenses to the General Counsel and the Service Employees International Union Healthcare, Illinois Indiana, but upheld the Board’s award of negotiating expenses to the union.
Before the Board, the employers did not contest that they committed numerous and serious violations of Section 8(a)(5) and (1) of the Act, including the findings by the administrative law judge that their bargaining representatives engaged in bad-faith bargaining by displaying “nothing but contempt” for the bargaining process, demonstrating “a willingness to violate the law in order to frustrate the [u]nion’s efforts to represent employees,” and “manifest[ing] an intent to waste the [u]nion’s time and resources and to avoid reaching an agreement.” Other violations included reneging on settlement agreements, unilaterally changing terms and conditions of employment, refusing the union’s requests for relevant information, and discharging an employee. The Board adopted those findings, and ordered a number of usual and special remedies, including reimbursement of litigation expenses incurred by the General Counsel and the union, and reimbursement of the union’s negotiating expenses.
Before the court the employers contested only the awards of litigation and negotiating expenses. The court rejected the Board’s award of litigation expenses, finding that its resolution of the issue was controlled by its recent decision in HTH Corp. v. NLRB, ___ F.3d ___, 2016 WL 2941936 (D.C. Cir. May 20, 2016). But the court had “little trouble concluding that awarding bargaining costs in the appropriate case is within the Board’s statutory remedial authority under section 10(c) of the Act.” The court explained that an award of bargaining expenses “remedies an unfair labor practice by ensuring that, upon resolution of the unfair labor practice charge, the injured party can return to negotiations on the same footing it occupied before the violation of the Act occurred.” The court stated that a more traditional remedy, such as a bargaining order, “is of little value if one party can drain another of its resources by bargaining in bad faith and then extracting concessions as the money wanes.” Accordingly, the court upheld the order’s requirement that the employers reimburse the union for its bargaining costs.
The court’s decision is here.
Rogan Brothers Sanitation, Inc., and R&S Waste Services, LLC, Board Case No. 02-CA-065928 (reported at 362 NLRB No. 61) (2d Cir. decided June 7, 2016)
In an unpublished summary order, the court enforced the Board’s order issued against these two waste-services companies that the Board found jointly and severally liable under a single-employer theory.
In 2011, Teamsters Local 813 filed charges over the transfer of certain waste operations from Rogan Brothers to R&S, as well as over R&S’s subsequent recognition of, and negotiation of a collective-bargaining agreement with, Journeymen & Allied Trades Local 726. The General Counsel issued a complaint which contained alter-ego and successor liability allegations, and alleged a litany of violations of Section 8(a)(3) and (1) of the Act, including unlawful discharges, refusals to hire, as well as Section 8(a)(2) and (1) for recognizing and entering into a collective-bargaining agreement containing a union-security clause with Local 726. After the hearing opened in August 2012, and only R&S appeared, the hearing was postponed. In November 2012, while still in recess, the General Counsel notified R&S that he intended to submit a motion to amend the complaint to allege single-employer status, and did so a month later. When the hearing resumed in January 2013, the administrative law judge granted the motion to amend. The hearing continued for five days, during which the General Counsel rested his case-in-chief and R&S presented its entire defense. On review, the Board found that the two closely related companies were a single employer and that they had committed the bulk of the violations found by the judge.
Before the court, R&S Waste did not contest the unfair labor practice findings, but instead argued that it had been denied due process by the General Counsel’s amendment of the complaint. The court rejected the contention, finding that the employer had suffered no prejudice: “R&S had ample opportunity to consider and implement any minor adjustments to its strategy that may have been warranted in light of this new theory even before beginning to present its case in chief.” The court summarily rejected its remaining arguments and held Rogan Brothers in default for failing to have counsel appear on its behalf. Accordingly, the court enforced the Board’s order in full.
The court’s summary order may be found here.
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Administrative Law Judge Decisions
Masonic Temple Association of Detroit and 450 Temple, Inc., a single employer (07-CA-144521; JD-46-16) Detroit, MI. Administrative Law Judge Christine E. Dibble issued her decision on June 6, 2016. Charge filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.
Dayton Heidelberg Distributing Co. d/b/a Heidelberg Distributing Co. (09-CA-156105; JD-48-16) Columbus, OH. Administrative Law Judge Thomas M. Randazzo issued his decision on June 8, 2016. Charge filed by International Brotherhood of Teamsters Local Union No. 284.
Rigid Pak Corp. (12-CA-152811; JD-47-16) Juncos, RP. Administrative Law Judge Ira Sandron issued his decision on June 8, 2016. Charge filed by union de Tronquistas de Puerto Rico, Local 901, International Brotherhood of Teamsters.
Communication Workers of America Local 1109, AFL-CIO (29-CB-134066; JD(NY)-22-16) Brooklyn, NY. Administrative Law Judge Mindy E. Landow issued her decision on June 9, 2016. Charge filed by Cablevision Systems New York City Corporation.
Knollwood Country Club (02-CA-150410, et al.; JD(NY)-21-16) New York, NY. Administrative Law Judge Raymond P. Green issued his decision on June 9, 2016. Charges filed by Unite Here Local 100.
Shamrock Foods Company (28-CA-161831, 28-CA-162851 and 28-CA-165951; JD-49-16) Phoenix, AZ. Administrative Law Judge Keltner W. Locke issued his decision on June 10, 2016. Charges filed by an individual and Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC.
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