Summary of NLRB Decisions for Week of March 9 - 13, 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
Verizon New England, Inc. (01-CA-044539, et al.; 362 NLRB No. 24) Springfield, MA, March 9, 2015.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the Administrative Law Judge’s deferral to an arbitration award under Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984), and his dismissal of the allegation that the Respondent violated Section 8(a)(1) by telling employees to remove informational picket signs displayed in the windows of their personal vehicles parked on its property.
The majority found that the arbitration award’s conclusions that the display of signs in employees’ parked vehicles constituted picketing and that the contract’s no-picketing provision was intended to cover such conduct are not susceptible of an interpretation consistent with the Act and, therefore, “clearly repugnant” under Olin. Dissenting, Member Johnson found that the display of signs is susceptible to being interpreted as picketing and that the contract’s no-picketing provision waived the right to picket. In Member Johnson’s view, as deferral under Olin requires only that an arbitral award be “consistent with the Act,” the award is not repugnant to the Act. Accordingly, in agreement with the judge, Member Johnson would find deferral appropriate and dismiss the complaint.
Administrative Law Judge Joel P. Biblowitz issued his decision on November 15, 2011. Charge filed by the International Brotherhood of Electrical Workers, Local 2324, AFL-CIO. Chairman Pearce and Members Hirozawa and Johnson participated.
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Bottling Group LLC, d/b/a Pepsi Beverage Company, Employer-Petitioner (07-UC-000638 and 07-UC-000639; 362 NLRB No. 25) Grand Rapids, MI, March 12, 2015.
Decision on Review and Order reversing the Regional Director’s grant of the Union’s (Local 406, International Brotherhood of Teamsters) request to clarify the contractual bargaining unit at the Employer’s Grand Rapids facility to include four Marketing Equipment Management (MEM) delivery and install employees after these employees were assigned, for reasons of convenience, to pick up their loads at the Grand Rapids parking lot instead of the Employer’s Flint, Michigan facility.
Prior to 1997, there were MEM employees performing delivery and install functions and service and repair functions at the Grand Rapids facility (all classified as field service technicians). These employees were represented by the Union and covered by a collective-bargaining agreement. In 1997, the Employer centralized its delivery and install functions and relocated all employees performing that work at its 17 Michigan locations to a newly formed Market Equipment Operating Center (MEOC) in Lansing, Michigan. The delivery and install employees centralized in the MEOC operation were not represented by a union. When the Employer opened its new MEOC facility, all MEM delivery, install, and shop operations in Grand Rapids and other Employer locations in the lower Peninsula of Michigan were eliminated (the Detroit operations were eliminated in 2001). The only MEM function that remained at Grand Rapids and the other affected locations was field repair service at customer sites. The delivery and install employees remained in the Employer’s MEM department (along with other delivery and install employees at the MEOC), as did the field service technicians who repaired equipment and stayed in Grand Rapids. At this time, four Grand Rapids delivery and install employees were transferred to Lansing MEOC (two later moved back to the Grand Rapids facility to fill vacancies as field service technicians), leaving six field service technicians at Grand Rapids (now five) who were covered by the collective-bargaining agreement (the contract also covered fleet mechanics, customer representatives, and warehouse employees).
In November 2009, the Employer closed the Lansing facility and moved the MEOC to Flint, which is 113 miles from the Grand Rapids facility. In order to reduce driving time for the Flint-based delivery and install employees who serviced areas near the Employer’s facilities in western Michigan, including Grand Rapids, the Employer decided to establish a “drop & hook” location in Grand Rapids. When the Flint MEOC opened, the four successful bidders became home-based employees who began their work days at the parking lot of the Grand Rapids facility, where they picked up their vehicles and equipment. The four disputed Grand Rapids drop & hook delivery and install employees continued to be part of the Employer’s delivery and install operation centered in Flint, continued to be directed and supervised by the Flint personnel, and performed work that had been centralized on a statewide basis for 12 years.
The Board found that the Grand Rapids drop & hook delivery and install employees do not belong in the contractual unit, as they did not become part of the Grand Rapids operation when they were assigned in November 2009 to pick up their loads at the Grand Rapids parking lot. The Board noted that for 12 years these employees have been part of the MEOC operation, the Grand Rapids field service technicians have not performed delivery and install functions since 1997, and the disputed employees were assigned to operate out of the Grand Rapids parking lots purely for convenience and efficiency purposes. The Board found that the disputed employees remained part of the MEOC operations; kept the same supervisor, seniority opportunities, and wages and benefits; continued to receive their assignments through the MEOC; performed their functions in a larger geographical area; and attended meetings as needed in the Flint location. Further, the Board found that because the delivery and install employees have been historically excluded from the Grand Rapids collectively-bargaining agreement for this 12-year period, accretion is not appropriate. Finally, the Board found that the evidence failed to establish that the Grand Rapids delivery and install employees have little or no separate identity from, or that they share an overwhelming community of interest with, the Grand Rapids field service technicians.
Union-Petitioner—Local 406, International Brotherhood of Teamsters. Chairman Pearce and Members Hirozawa and Johnson participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
FedEx Freight, Inc. (32-RC-144041) Stockton, California, March 11, 2015. Order denying the Employer’s Request for Review as not raising substantial issues regarding whether the Regional Director erred in directing an election in a unit consisting of City and Road Drivers employed at the Employer’s Stockton Terminal. Member Johnson agrees that the unit is appropriate, but would rely on the Board’s traditional community of interest analysis and not express a view on the correctness of Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)(subsequent history omitted). Petitioner - International Brotherhood of Teamsters Local 439. Chairman Pearce and Members Hirozawa and Johnson participated.
Con-Way Freight, Inc. (31-RC-136543) Pacoima, CA, March 13, 2015. The Board denied the Employer’s motion to strike the Union’s exceptions to the hearing officer’s report and recommendations on objections.
The New School (02-RC-143009) New York, NY, March 13, 2015. Full Board Order granting the Petitioner’s Request for Review of the Regional Director’s Order Dismissing Petition without a hearing, and reversing the dismissal, reinstating the petition, and remanding the case to the Regional Director for a hearing and issuance of a decision. Members Miscimarra and Johnson noted that the Regional Director properly dismissed the petition based on existing law, Brown University, 342 NLRB 483 (2004), and that the Board does not here decide whether or not existing law should be overruled. Petitioner—Student Employees at The New School-SENS/UAW. Chairman Pearce, and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.
Columbia University (02-RC-143012) New York, NY, March 13, 2015. Full Board Order granting the Petitioner’s request for review of the Regional Director’s Order Dismissing Petition without a hearing, and reversing the dismissal, reinstating the petition, and remanding the case to the Regional Director for a hearing and issuance of a decision. Members Miscimarra and Johnson noted that the Regional Director properly dismissed the petition based on existing law, Brown University, 342 NLRB 483 (2004), and that the Board does not here decide whether or not existing law should be overruled. Petitioner—Graduate Workers of Columbia-GWC, UAW. Chairman Pearce, and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.
C Cases
TLC Health Network d/b/a Lake Shore Health Center, debtor-in-possession (03-CA-113937) Irving, NY, March 11, 2015. With no exceptions pending before the Board after the Respondent withdrew the exceptions it had previously filed to the October 23, 2014 decision of Administrative Law Judge Steven Davis 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 1199 SEIU United Healthcare Workers East.
Rochester Gas & Electric Corporation (03-CA-075635 and 03-CA-081230) Rochester, NY, March 11, 2015. The Board granted the General Counsel’s motion to remand these cases to the Regional Director for approval of a non-Board settlement agreement. Charges filed by Local Union 32, International Brotherhood of Electrical Workers, AFL-CIO.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Citi Trends, Inc. (10-CA-133697; JD(ATL)-03-15) Darlington, SC. Administrative Law Judge Ira Sandron issued his decision on March 9, 2015. Charge filed by an individual.
Cumberland Manor Nursing & Rehabilitation Center (04-CA-133709; JD-13-15) Bridgeton, NJ. Administrative Law Judge Arthur J. Amchan issued his decision on March 13, 2015. Charge filed by United Auto Workers Local 2327.
J&J Snack Foods Handhelds Corp. (19-CA-126632, et al.; JD(SF)-07-15) Weston, OR. Administrative Law Judge Eleanor Laws issued her decision on March 13, 2015.
NC-DSH, LLP d/b/a Desert Springs Hospital Medical Center (28-CA-127971; JD(ATL)-04-15) Las Vegas, NV. Administrative Law Judge Ira Sandron issued his decision on March 13, 2015. Charge filed by an individual.
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