Summary of NLRB Decisions for Week of June 8 - 12, 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
1621 Route 22 West Operating Company, LLC d/b/a Somerset Valley Rehabilitation and Nursing Center (22-CA-029599, et al.; 362 NLRB No. 113) West Boundbrook, NY, June 11, 2015.
Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s decision, the record, the exceptions and briefs in this case. The Board adopted the judge’s rulings, findings, and recommended Order for the reasons stated in its earlier Decision and Order, reported at 358 NLRB No. 146 (2012). In its earlier decision the Board, by unanimous vote, adopted the judge’s findings that the Respondent violated Section 8(a)(3) by discharging and issuing disciplinary warnings to four employees, by accelerating the resignation of another employee, and by eliminating the work hours of five other named per diem employees. The Board also found that the Respondent violated Sec. 8(a)(1) by interrogating employees and soliciting and remedying grievances. With respect to remedy, on reconsideration, in view of the possibility that the Respondent would rely on facts cited by the U.S. District Court for the District of New Jersey in an earlier Section 10(j) proceeding in which the court declined to order the reinstatement of two of the discharged employees, the Board addressed those facts in further detail in light of the Board’s established remedial standard. Administrative Law Judge Steven Davis issued his decision on November 21, 2011. Charges filed by 1199 SEIU United Healthcare Workers East, New Jersey Region. Chairman Pearce and Members Hirozawa and McFerran participated.
***
Leon James, DDS d/b/a Serenity Dental Spa, P.A. (16-CA-123727 and 16-CA-127480; 362 NLRB No. 116) Arlington and Duncanville, TX, June 12, 2015.
The Board granted the General Counsel’s motion for default judgment, in view of the Respondent’s failure to comply with an informal settlement agreement. Accordingly, the Board found that the Respondent’s discharge of an employee violated Sec. 8(a)(1), and it ordered the Respondent pay the employee $19,000 in backpay, plus interest. The Board also ordered the Respondent to rescind its rule that prohibits employees from discussing salaries and wages and its rule that prohibits employees from discussing controversial subjects such as working conditions, performance evaluations, unions, discipline, and management. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Exemplar, Inc. (20-RC-149999) San Francisco, CA, June 8, 2015. Order granting Petitioner’s Request for Review of the Acting Regional Director’s Decision and Direction of Election. The Petitioner seeks review of the Acting Regional Director’s finding that the petitioned-for multi-facility unit is not appropriate. Member Johnson would deny review based on the Acting Regional Director’s identification of a lack of exchange of supplies or equipment between the two locations, and her further finding of no employee exchange between the locations. Petitioner—Service Employees International Union, Local 87. Members Hirozawa, Johnson, and McFerran participated.
Johnson Crushing, Inc. (18-RM-001382) Clearwater, Minnesota, June 8, 2015. Order denying the Employer-Petitioner’s Request for Review to the Acting Regional Director’s administrative dismissal of its petition on the basis that it raised no substantial issues warranting review. Member Miscimarra dissents and would grant review as to whether the Union actually possessed majority support at the time the Employer allegedly granted it majority recognition. Union—International Union of Operating Engineers, Local 139. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Pre-Cast Specialties, Inc. (12-RC-139665) Pompano Beach, FL, June 8, 2015.The Board adopted the hearing officer’s recommendation to overrule the Employer’s objections to an election. The Board agreed that in the circumstances of this case the Region’s failure to provide a Haitian Creole interpreter at the polls in spite of its agreement to provide one, in an election involving a predominantly Haitian Creole-speaking electorate, was insufficient to cast doubt on the fairness or validity of the election. The Board noted that even if, as the Employer alleged, some employees were unable to read the ballots, which had been translated into Haitian Creole, the record was still insufficient to set aside the election. In this connection, the Board pointed to the substantial margin by which Petitioner prevailed, the absence of evidence from the polls that voters were confused about their ballot selection, and the ballot’s straightforward yes-or-no choice, which had been explained to employees at pre-election meetings. In a personal footnote, Member Miscimarra disagreed with the hearing officer’s shifting the burden of proof to the Employer simply because both parties to the election had not agreed that an interpreter was to be provided, but instead the interpreter was agreed to by the Region at the Employer’s unilateral request. However, Member Miscimarra agreed with the conclusion that this case did not raise a reasonable doubt as to the fairness or validity of the election. Accordingly, the Board certified the Petitioner, Construction and Craft Workers Local Union No. 1652, as the exclusive collective-bargaining representative of the employees in the appropriate unit. Chairman Pearce and Members Miscimarra and McFerran participated.
Ampersand Publishing, LLC d/b/a Santa Barbara News-Press (31-RD-001622) Santa Barbara, CA, June 9, 2015. Order denying the Employer’s Request for Review of the Regional Director’s Order Dismissing Petition. The Regional Director dismissed the decertification petition as untimely due to an extended certification bar. In denying review, the Board noted that the Board recently reaffirmed the unfair labor practice findings relied on by the Regional Director. See Ampersand Publishing, LLC d/b/a Santa Barbara News-Press, 362 NLRB No. 26 (2015). The Board also rejected the Employer’s arguments regarding NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), citing Durham School Services, LP, 361 NLRB No. 66 (2014). Petitioner—an individual. Union involved—Graphic Communications Conference/International Brotherhood of Teamsters. Chairman Pearce and Members Hirozawa and McFerran participated.
Elite Protective Services (05-RC-106707) Washington, DC, June 9, 2015. Order denying the Employer’s Request for Review of the Regional Director’s administrative dismissal of the petition. In denying review, the Board agreed with the Regional Director’s finding that there was no evidence of a schism within the National Association of Special Police & Security Officers. Petitioner—National League of Justice and Security Professionals (NLJSP). Intervenor-Union—National Association of Special Police & Security Officers (NASPSO). Chairman Pearce and Members Miscimarra and Hirozawa participated.
Lifeway Foods, Inc. (13-RC-113248) Niles, IL, June 10, 2015. A unanimous panel of the Board adopted the hearing officer’s recommendations to overrule the Employer’s objections to an election, and certified the Petitioner, Bakery, Confectionary, Tobacco Workers, and Grain Millers International Union, Local Union No. 1, as the exclusive collective-bargaining representative of the employees in the appropriate unit. The Board rejected the Employer’s argument that it was deprived of due process. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Lakepointe Senior Care and Rehab Center, LLC (07-RC-143710) Clinton Township, MI, June 11, 2015. Order denying the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election. The Regional Director found the petitioned-for charge nurses were not supervisors under Section 2(11) of the Act, and rejected the Employer’s procedural argument that the Regional Director should have not permitted the re-litigation of the supervisory issue after the charge nurses had been found to be statutory supervisors pursuant to a 2005 Regional Director’s decision and order involving the same parties. Member Miscimarra adhered to the view of “accountability” stated in his partial dissent in Community Education Centers, Inc., 360 NLRB No. 17, slip op. at 2-3 (2014), but agreed that the record in this case did not warrant granting review of the Regional Director’s finding that the charge nurses did not have authority to responsibly direct certified nursing assistants. Petitioner—SEIU Healthcare Michigan. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Seattle University (19-RC-122863) Seattle, WA, June 12, 2015. Order granting the Employer’s Request for Review of the Regional Director’s Supplemental Decision and remanding case to the Regional Director to reopen the record to permit the parties to adduce additional evidence in light of the Board’s decision in Pacific Lutheran University, 361 NLRB No. 157 (2014). Member Miscimarra would grant review on an additional basis consistent with the views he expressed in his partial dissent in Pacific Lutheran University, 361 NLRB No. 157, slip op. at 26-27 (2014), because he believes that the instant case raises substantial issues about whether the Board should assert jurisdiction over the Employer. Petitioner— Service Employees International Union, Local 925. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Delek Refining, Ltd. (16-RC-149865) Tyler, TX, June 12, 2015. Order denying Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Employer’s request to stay the election also was denied. Petitioner— United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO (USW), on behalf of its LOCAL 202. Members Hirozawa, Johnson, and McFerran participated.
C Cases
Convergys Corporation (14-CA-075249 and 14-CA-083936) Hazelwood, MO, June 8, 2015. The Board denied the Charging Party’s request to withdraw its unfair labor practice charges. The Board found that the non-Board settlement reached by the parties does not effectuate the purposes of the Act as it provides no remedy for the unfair labor violations found by the Administrative Law Judge, which involve the Respondent’s mandatory arbitration provision.
Accordingly, the case remains pending before the Board on exceptions.
The Neiman Marcus Group, Inc. (31-CA-074295) Beverly Hills, CA, June 8, 2015.
The Board denied the Charging Party’s request to withdraw its unfair labor practice charges. The Board found that the non-Board settlement reached by the parties does not effectuate the purposes of the Act as it provides no remedy for the unfair labor violations found by the Administrative Law Judge, which involve the Respondent’s mandatory arbitration provision. Accordingly, the case remains pending before the Board on exceptions.
Century Management, LLC d/b/a McDonald’s (15-CA-136065, et al.) New Orleans, LA, June 10, 2015. The Board denied the Employer’s petition to revoke the Region’s 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 Employer failed to establish any other legal basis for revoking the subpoena. In addition, the Board stated that to the extent the subpoena encompassed some documents that the Employer believed in good faith to be protected from disclosure, the Employer may submit a privilege log providing sufficient detail to permit an assessment by the Region of the Employer’s claims. Charge filed by the Memphis Workers Organizing Committee, Project of the Mid-South Organizing Committee. Chairman Pearce and Members Miscimarra and McFerran participated.
Pacific 9 Transportation, Inc. (21-CA-116403) Carson, CA, June 11, 2015. The Board granted the General Counsel’s appeal from the Administrative Law Judge’s ruling requiring the General Counsel to disclose to the Respondent the identity of the Respondent’s drivers who will be testifying at the hearing with respect to alleged Section 8(a)(1) violations. The Board stated that Board law does not require the General Counsel to disclose to a respondent prior to a hearing the names of employees to whom alleged Section 8(a)(1) statements are directed.
Accordingly, the Board reversed that aspect of the judge’s Order requiring the General Counsel to disclose the identities of its witnesses prior to the hearing. Chairman Pearce and Members Miscimarra and McFerran participated.
New York Party Shuttle, LLC (02-CA-073340) New York, NY, June 12, 2015. Order denying, based on untimeliness and the merits, the Employer’s petition to revoke investigative subpoenas duces tecum issued by the Region. Member Miscimarra, concurring, would deny the petition to revoke solely on the ground that it was untimely filed. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Community Mercy Health Partners d/b/a Mercy McAuley Center (09-CA-141604) Urbana, OH, June 12, 2015. Order denying the Respondent’s motion for summary judgment on the grounds that the Respondent failed to establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Charge filed by SEIU District 1099 WV/KY/OH, The Health Care and Social Service Union. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Community Mercy Health Partners d/b/a Springfield Regional Medical Center (09-CA-141568) Springfield, OH, June 12, 2015. Order denying the Respondent’s motion for summary judgment because the Respondent failed to establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Charge filed by SEIU District 1099 WV/KY/OH, The Health Care and Social Service Union. Chairman Pearce and Members Miscimarra and Hirozawa participated.
United Parcel Service, Inc. (26-CA-072915, et al.) Nashville, TN, June 12, 2015. The Board granted the General Counsel’s Motion to Remand the cases to the Regional Director for Region 10 for the purpose of effectuating an informal settlement agreement.
***
Appellate Court Decisions
Fortuna Enterprises, L.P., Board Case No. 31-CA-027837 (reported at 360 NLRB No. 128) (D.C. Cir. decided June 12, 2015)
In a published opinion, the court granted enforcement and upheld the Board’s determination that this operator of Los Angeles Airport Hilton Hotel and Towers violated Section 8(a)(1) of the Act by suspending 77 employees who engaged in a two-hour work stoppage in response to a co-worker’s suspension that they suspected was related to his union activities during an organizing campaign by Unite Here, Local 11, in 2006.
In its second supplemental decision under review, the Board accepted the court’s remand in Fortuna Enterprises, L.P. v. NLRB, 665 F.3d 1295 (D.C. Cir. 2011) (reviewing 355 NLRB No. 122). In that prior decision, the court upheld the bulk of the Board's findings that the employer committed a number of unfair labor practices, including Section 8(a)(3) violations for warning five employees and several uncontested Section 8(a)(1) violations. Reviewing the Board's balancing of the ten factors identified in Quieflex Manufacturing Co., 344 NLRB 1055 (2005), which the Board applied in determining that the work stoppage was protected activity, the court questioned the Board’s analysis regarding three factors and noted that the Board had not explained the weight it attributed to any factor. Regarding Quieflex factor 3 (whether the work stoppage interfered with production), the court took issue with the Board's statement that "[i]t is not considered an interference with production where the employees do no more than withhold their own services." The court was “not quite sure what to make” of that statement because some protected activities like strikes, it stated, “exert economic pressure on the employer by interfering with production.” (Emphasis by court.) Regarding factors 4 and 7 (whether employees had adequate opportunity to present grievances or had an established grievance procedure), the court held that the Board’s finding that no procedure was available was not supported by substantial evidence, because, as the employer pointed out, it had an open-door policy in place under which employees could bring group complaints to management. Accordingly, the court remanded the work stoppage issue for reconsideration.
On remand, the Board (Chairman Pearce and Members Johnson and Schiffer; Member Johnson concurring) addressed the court’s concerns regarding the weight attributed to each factor, the meaning of its statement regarding interference with production, and accepted as law of the case the court’s holding that the open door policy was an available grievance procedure for purposes of factors 4 and 7. Regarding its prior finding that the work stoppage did not interfere with production, the Board explained that the “focus of the Board and the courts when applying this factor is on whether striking employees interfere with production or the provision of services by preventing other employees who are working from performing their duties.” (Board emphasis.) Regarding factors 4 and 7, the Board reassessed them in light of the court’s opinion and concluded that factor 7 weighed against protection and that factor 4 only slightly favored protection. On balance, the Board concluded that the work stoppage was protected.
On review, the court held that the Board adequately explained the weight attributed to the Quieflex factors. It also concluded that “the Board’s clarification of the third factor is reasonable,” and that its application of the clarified principle was supported by substantial evidence. In so holding, the court rejected the employer’s contention that special rules for interference should apply to the service industry because, the employer claimed, the withdrawal of services by striking employees necessarily impacts the work performance of non-striking employees who must cover their work. As the court stated, “the Board was not required to create different rules for the service industry.” Lastly, the court held that the Board “complied with our remand, and came to a reasoned conclusion supported by substantial evidence, in its analysis of factors four and seven,” and rejected the employer’s contention that the Board had failed to give proper weight to its open door policy. Accordingly, the court enforced the Board’s order.
The Court’s opinion is here.
Little River Band of Ottawa Indians Tribal Government, Board Case No. 07-CA-051156 (reported at 361 NLRB No. 45) (6th Cir. decided June 9, 2015)
In a published opinion, the court enforced the Board’s order and upheld its Section 8(a)(1) finding that Little River Band of Ottawa Indians, which operates a casino resort on tribal lands in Michigan, unlawfully enforced provisions of an ordinance enacted by the Band’s Tribal Council that regulates labor-organizing activities of employees, including casino employees, most of whom are not members of the Band. In doing so, the court agreed that the Board had jurisdiction over the Band.
The Board issued a decision concluding that it had jurisdiction over the casino resort and finding the enforcement of the labor ordinance unlawful. In finding jurisdiction, the Board applied the test announced in San Manuel Indian Bingo & Casino, 341 NLRB No. 138 (2004), enforced, 475 F.3d 1306 (D.C. Cir. 2007). In San Manuel, the Board had determined that the plain language of Section 2(2)’s definition of “employer” encompasses Indian tribes and tribal enterprises which fit no statutory exemption, and set forth the appropriate inquiries for determining whether federal Indian policy requires, or prudential considerations indicate, that it should nonetheless decline jurisdiction in a particular case. In doing so, the Board in San Manuel adopted a presumption of applicability derived from FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960), modified by the three exemptions the Ninth Circuit developed in Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985) (a generally applicable federal statute will not apply to Indian tribes if (1) it interferes with exclusive rights of self-governance in purely intramural matters, (2) its application to a tribe would abrogate rights guaranteed by Indian treaties, or (3) either the statute’s legislative history, or something else, proves a congressional intent not to apply the law to Indians on their reservations). Here, the Board reaffirmed and applied San Manuel, finding that analysis dispositive and holding that no Coeur d’Alene exception governed.
On review, the court noted that its standard of review was de novo, rather than deferential, because “the Board’s arguments for the reasonableness of its construction of its jurisdictional terms are predicated on its analysis of federal Indian law and policy,” and thus Chevron is not implicated. After an examination of that body of federal cases, and in rejection of a number of the Band’s contentions, the court recognized the principle of Tuscarora Indian Nation, that “a federal statute creating a comprehensive regulatory scheme presumptively applies to Indian tribes,” and that the framework of Coeur d’Alene “accommodates principles of federal and tribal sovereignty.” Applying those principles, the court noted that the NLRA is “a generally applicable, comprehensive federal statute,” and that “[u]nder the Coeur d’Alene framework, since there is no treaty right at issue in this case, the NLRA applies to the Band’s operation of the casino unless the Band can show either that the Board’s exercise of jurisdiction “touches exclusive rights of self-governance in purely intramural matters,” or that “there is proof by legislative history or some other means that Congress intended [the NLRA] not to apply to Indians on their reservations.”
Regarding the first of those two Coeur d’Alene exceptions, the Band argued that the Board’s order touches on tribal self-governance and purely intramural matters because it would invalidate a regulation enacted by its Tribal Council, and because the net revenues of the casino resort, under the authorization of the Indian Gaming Regulatory Act (IGRA), fund its tribal government. In response, the court noted that the provisions of the labor ordinance at issue regulate more than “purely intramural matters,” by “principally regulat[ing] the labor-organizing activities of Band employees, and specifically of casino employees, most of whom are not Band members.” On the Band’s funding contention, the court held that although IGRA provides that the net revenue of the gaming operation is to be used for tribal government funding, “[i]t does not, however, immunize the operation of Indian commercial gaming enterprises from the application of other generally applicable congressional statutes.”
The court also rejected the Band’s contention that the case falls within the Coeur d’Alene exception that would apply if Congress intended the NLRA not to apply to Indians on their reservations. As support, the Band cited Congress’s intent not to include Indian nations within Section 301 of the NLRA, arguing that because Congress did not waive tribal sovereign immunity when it created a private right of action to enforce collective-bargaining agreements, it must be that no provision in the NLRA applies to Indian tribes. The court disagreed, stating that “[t]he fact that Congress did not waive tribal sovereign immunity from private suits to enforce collective-bargaining agreements under Section 301 in no way suggests that the Band is immune from suits by the Board to enforce other requirements imposed by NLRA.” Accordingly, the court granted enforcement. The court’s opinion was written by Judge Gibbons, who was joined by Judge Merritt; Judge McKeague dissented.
The Court’s opinion is here.
***
Administrative Law Judge Decisions
FieldWorks, LLC (19-CA-135042; JD(NY)-26-15) Portland, OR. Administrative Law Judge Joel P. Biblowitz issued his decision on June 9, 2015. Charge filed by an individual.
A.S.V., Inc. a/k/a Terex (18-CA-131987, et al.; JD-35-15) Grand Rapids, MI. Administrative Law Judge David I. Goldman issued his decision on June 9, 2015. Charges and Petition filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO.
Torque-It-Up, LLC and North American Tubular, LLC, Joint Employers and/or Single Employer (16-CA-140455; JD(ATL)-11-15) Midland, TX. Administrative Law Judge Keltner W. Locke issued his decision on June 10, 2015. Charge filed by an individual.
H&M International Transportation, Inc. (22-CA-089596, et al.; JD(NY)-25-15) Jersey City, NJ. Administrative Law Judge Mindy E. Landow issued her decision on June 10, 2015. Charges filed by an individual.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.