Summary of NLRB Decisions for Week of May 30 - June 2, 2017
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 the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
Teachers College, Columbia University (02-CA-164870; 365 NLRB No. 86) New York, NY, May 31, 2017.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide information requested by the Union.
Charge filed by Local 2110, United Auto Workers. Administrative Law Judge John T. Giannopoulos issued his decision on December 30, 2016. Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
CTS Construction, Inc. (09-RD-187368) Cincinnati, OH, May 31, 2017. The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s Request for Review of the Regional Director’s administrative dismissal of the decertification petition as it raised no substantial issues warranting review. The Regional Director had dismissed the petition on the basis that it had been filed before a reasonable time for bargaining had elapsed under an agreement settling an unfair labor practice charge against the Employer. Relying on the factors set out in Poole Foundry & Machine Co., 95 NLRB 34 (1951), the majority noted that the petition had been filed only 34 days after the parties had entered into the settlement agreement which mandated a 60-day posting period, and the parties had only met once and had reached a tentative agreement; these factors indicated that a reasonable time for bargaining had not elapsed. In addition, Member McFerran noted that, under Hertz Equipment Corp., 328 NLRB 28 (1999), no question concerning representation can be raised during the posting period of a settlement agreement. Dissenting, Chairman Miscimarra would grant review, and find that a reasonable time for bargaining had elapsed under Poole Foundry & Machine Co.. He would rely on the negotiation concerning a successor agreement (rather than an initial contract); the lack of complexity in the issues to be bargained; and the fact that the parties had reached a tentative agreement. Chairman Miscimarra would find that the latter circumstance especially indicates that no further bargaining was necessary and therefore a reasonable time for bargaining had occurred.
Petitioner – an Individual. Union – Communications Workers of America, AFL-CIO, (CWA), Local 4322. Chairman Miscimarra and Members Pearce and McFerran participated.
University of Chicago (13-RC-198365) Chicago, IL, June 1, 2017. The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s Expedited Request for Review on the merits as it raised no substantial issues warranting review. The Employer’s Motion to Stay the Election and/or Impound Ballots, or, in the Alternative, For Remand to the Regional Director was accordingly also denied as moot. The majority agreed with the Regional Director that the Employer’s offer of proof failed to present grounds for concluding that the library clerks are not common-law employees or sufficient facts to conclude that they should be deemed ineligible as temporary or casual employees. Chairman Miscimarra, dissenting, would grant the Employer’s Request for Review because, in his view, substantial issues exist regarding the extent to which the bargaining unit consists of students whose positions are closely related to their education and therefore are similar to the unit members in Columbia University, 364 NLRB No. 90 (2016), and Yale University, 365 NLRB No. 40 (2016). To the extent that they are, Chairman Miscimarra would find that the unit is inappropriate for the reasons expressed in his dissents in those cases. Chairman Miscimarra would also grant review with respect to whether the petitioned-for individuals are temporary employees and the failure to permit the Employer to present evidence pursuant to the provisions in the Board’s Election Rule governing “offers of proof.” See Election Rule, 79 Fed. Reg. 74308, 74446-74448 (2014) (dissenting views of then-Member Miscimarra and former Member Johnson). Chairman Miscimarra also would grant the Employer’s Motion to Stay the Election because all parties (particularly individuals included in the petitioned-for unit) would benefit from the Board’s resolution of election-related issues before voting takes place.
Petitioner – International Brotherhood of Teamsters, Local 743. Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
Wan Hao Eastern Corp. and Shi Lin Xiang Seafood, Inc., alter egos and/or predecessor/successor and/or joint employers (29-CA-179777) Flushing, NY, June 1, 2017. The Board denied the Employer’s petition to revoke the subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation, described with sufficient particularity the evidence sought, and there was no other legal basis for revoking the subpoena. The Board evaluated the subpoena in light of the Region’s agreement to limit the requests to the time period starting from the Employer’s date of incorporation.
Charge filed by Flushing Workers Center. Chairman Miscimarra and Members Pearce and McFerran participated.
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Appellate Court Decisions
Rochester Regional Joint Board, Local 14A, Board Case No. 03-CC-137244 (reported at 363 NLRB No. 179) (2d Cir. decided May 30, 2017)
In an unpublished summary order, the Court enforced the Board’s order issued against Rochester Regional Joint Board Local 14A for violations pertaining to its collective-bargaining agreement with Xerox Corporation, the manufacturer and seller of office equipment, which covered the Employer’s production and maintenance employees at facilities in Monroe County, New York.
The parties’ collective-bargaining agreement included a provision entitled “successorship,” which prohibited the “transfer by sale, lease or otherwise of ownership of or operational control” of the Employer’s business unless the transferee assumed the obligations of the collective-bargaining agreement, and also required notice be given to the Union beforehand. In November 2012, Xerox entered into a leasing contract with Jones Lang LaSalle Americas, Inc. (JLL), a national commercial real estate services provider, to provide services that included HVAC maintenance, cleaning, moving, docks, and ancillary services at the Employer’s facility in Webster, New York. Pursuant to the contract with JLL, the scope of work to be performed would remain under the Employer’s control. Thereafter, the Union filed a grievance alleging that the Employer violated the contract by transferring operational control over the maintenance functions at the facility without providing the requisite notice. The Union also initiated a civil action and filed a petition for a preliminary injunction in the United States District Court for the Western District of New York seeking to enjoin the Employer’s subcontracting to JLL until its grievance had been arbitrated.
The Administrative Law Judge interpreted the provision of the collective-bargaining agreement to mean that any lease was a transfer of business subject to its requirements, including adopting the JLL contact, and therefore found that the Union violated Section 8(e) by entering into the provision that restricted the Employer’s right to enter into any lease with a secondary employer. Further, the judge found that the Union violated Section 8(b)(4)(ii)(A) by filing the grievance to enforce the unlawful contract provision and by filing the civil action. Finally, the judge found that the Union violated Section 8(b)(4)(ii)(B) by filing the grievance and lawsuit to enforce its interpretation of contract, and by taking those actions with the objective of precluding the Employer from doing business with JLL until after arbitration. The Union filed exceptions with the Board disputing the judge’s interpretation of the contract provision and the conclusion that the contract provision violated Section 8(e).
On review, the Board reversed with respect to Section 8(e), finding that the contract provision did not restrict the Employer from entering into any lease with a secondary employer, but instead that by its express terms was limited to “transfers of ownership . . . or operational control.” Therefore, the Board found the provision was not unlawful because “Section 8(e) does not include the sale or transfer of a business.” Further, the Board summarily adopted the judge’s Section 8(b)(4)(ii)(A) and (B) findings, noting that the Union filed no exceptions to them, and rejected the Union’s contention, which was made for the first time in the Union’s reply brief, that it had not waived its right to challenge the Section 8(b)(4)(ii)(A) and (B) findings.
On review, the Court rejected the Union’s argument that its exceptions to the Section 8(e) finding implicitly encompassed challenges to the Section 8(b)(4)(ii)(A) and (B) findings and that therefore its challenges to those violations were not jurisdictionally barred from Court review under Section 10(e). Rather, the Court held, the legality of the contract provision “presents a legal issue distinct from the lawfulness of the Union’s attempts to exact compliance with its interpretation of the contract” through the grievance and civil action, and the Board’s “reversal of one did not implicitly undermine the other.” Accordingly, the Court enforced in full.
The Court’s decision is here.
Whole Foods Market, Inc., Board Case No. 01-CA-096965 (reported at 363 NLRB No. 87) (2d Cir. decided June 1, 2017)
In an unpublished summary order, the Court enforced the Board’s order issued against this retailer and distributor of foods.
The Employer maintains work rules and policies in its general information guide that apply to all employees. Taken together, a number of those rules act to prohibit all recording in the workplace, both audio and video, absent prior approval. The Board (then-Chairman Pearce and Member Hirozawa; then-Member Miscimarra, dissenting) found, under the framework of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), that the Employer violated Section 8(a)(1) by maintaining overly broad, no-recording rules that employees would reasonably read to interfere with their exercise of Section 7 rights.
On review, the Court agreed: “As written, those policies prevent ‘employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent application of employer rules,’” quoting Rio All-Suites Hotel & Casino, 362 NLRB No. 190 (2015) (holding that employee photographing and videotaping is protected “when employees are acting in concert for their mutual aid and protection and no overriding employer interest is present”). Moreover, the Court explained that despite the Employer’s stated purpose of the policies—“to promote employee communication in the workplace—the Board reasonably concluded that the policies’ overbroad language could ‘chill’ an employee’s exercise of her Section 7 rights because the policies as written are not limited to controlling those activities in which employees are not acting in concert.”
The Court’s decision may be found here.
Good Samaritan Medical Center, Case No. 01-CA-082367, and 1199 SEIU United Healthcare Workers East, Case No. 01-CB-082365 (reported at 361 NLRB No. 145) (1st Cir. decided May 31, 2017)
In a published opinion, the Court denied enforcement of the Board’s order issued against this hospital in Brockton, Massachusetts, and the Union representing a unit of its hospital employees. The Board (then-Member Miscimarra and Members Johnson and Schiffer) found that the discharge of a new employee who, at an orientation session, questioned a union representative’s incorrect statement that all new employees needed to become union members, violated Section 8(a)(3) and (1), and Section 8(b)(1)(A) and (2). In doing so, the Board clarified that to determine whether union conduct violates Section 8(b)(2), the Board has applied either a duty-of-fair-representation framework or a Wright Line analysis, and that under either, the Union’s conduct in causing the employee’s discharge was unlawful. Regarding the Employer’s conduct, the Board applied to the facts of the case the principle that an Employer acts unlawfully when it discharges an employee at the request of the Union when it has reasonable grounds to believe that the request was unlawful, citing Palmer House Hilton, 353 NLRB 851, 852 (2009), aff’d, 356 NLRB No. 2 (2010). The Board also found that the Employer’s application of its civility policy to discharge the employee rendered the policy unlawful under Section 8(a)(1), and that the Union violated Section 8(b)(2) when a Union representative later threatened the employee with retaliation. The Employer and Union each filed a petition for review.
On review, the Court (Circuit Judge Torruella and District Judge Lisi; Circuit Judge Barron, concurring in part and dissenting in part) concluded that substantial evidence on the record as a whole did not support the Board’s findings, principally because there was significant contradictory evidence that had gone unaddressed by the Board’s decision and that at times the Board’s analysis was not adequately explained. Circuit Judge Barron joined the Court’s opinion in all aspects except that he would have remanded to the Board for further explanation on the issue of whether the Union met its burden of showing it had not unlawfully caused the Employer to discharge the employee.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Jam Productions, Ltd. and Event Productions, Inc., a single employer (13-CA-177838; JD-42-17) Chicago, IL, May 30, 2017. Errata to May 26, 2017 Administrative Law Judge Michael A. Rosas’ decision. Errata Amended Decision.
Jon P. Westrum d/b/a J. Westrum Electric and JWE LLC (18-CA-182656; JD-44-17) Anoka, MN. Administrative Law Judge Sharon Levinson Steckler issued her decision on May 31, 2017. Charge filed by International Brotherhood of Electrical Workers, Local 292.
Oxford Electronics, Inc., d/b/a Oxford Airport Technical Services and Worldwide Flight Services, Inc., joint employers (13-CA-115933 and 13-CB-115935; JD-43-17) Elmont, NY. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on May 31, 2017. Charges filed by International Union of Operating Engineers Local 399, AFL-CIO.
Glades Electric Cooperative, Inc. (12-CA-168580, et al.; JD-45-17) Lake Placid, Moore Haven and Okeechobee, FL. Administrative Law Judge Charles J. Muhl issued his decision on June 1, 2017. Charges filed by International Brotherhood of Electrical Workers, Local 1933, AFL-CIO.
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