Summary of NLRB Decisions for Week of May 8 - 12, 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
Cristal USA, Inc. (08-RC-188482; 365 NLRB No. 74) Ashtabula, OH, May 10, 2017.
The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Chairman Miscimarra, relying on his dissent in Macy’s, Inc., 361 NLRB No. 4 (2014), would grant the Employer’s Request for Review because there is a substantial question about whether the unit consisting exclusively of Plant 2 warehouse employees erroneously disregards the community of interests these employees share with production employees and promotes instability by creating a fractured or fragmented bargaining unit.
Petitioner – International Chemical Workers Union Council of the United Food & Commercial Workers International Union. Chairman Miscimarra and Members Pearce and McFerran participated.
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Allways East Transportation, Inc. (03-CA-128669 and 03-CA-133846; 365 NLRB No. 71) Yonkers, NY, May 11, 2017.
The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) reversed the Administrative Law Judge and found that the Respondent, a bus company that took over a contract to transport special education students for a school district, was a successor employer. The Board majority further found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union and by failing to provide requested relevant information. Chairman Miscimarra dissented and agreed with the judge that the Respondent was not a successor employer because, from the perspective of the employees, there was no substantial continuity of operations and the facility was not an appropriate bargaining unit.
Charges filed by International Brotherhood of Teamsters, Local 445. Administrative Law Judge Susan A. Flynn issued her decision on November 12, 2015. Chairman Miscimarra and Members Pearce and McFerran participated.
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CSC Holdings, LLC (02-CA-138301, 02-CA-138302 and 02-CA-138303; 365 NLRB No. 68) Bronx, NY, May 11, 2017.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by involuntarily transferring six employees because of their union or suspected union activity and/or other protected concerted activity. The Board agreed with the judge that the Respondent knew or believed that the discriminatees engaged in union and/or protected concerted activity. The Board also agreed with the judge that the General Counsel demonstrated Respondent’s animus and that Respondent’s proffered reasons for selecting the discriminatees for transfer were pretextual. Chairman Miscimarra would require the General Counsel to also establish a link or nexus between the employee’s protected activity and the employment action alleged to be unlawful, but he found the General Counsel made the requisite prima facie showing in this case.
Charges filed by individuals. Administrative Law Judge Mindy E. Landow issued her decision on September 23, 2016. Chairman Miscimarra and Members Pearce and McFerran participated.
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Hobson Bearing International, Inc. (14-CA-156114; 365 NLRB No. 73) Diamond, MO, May 11, 2017.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by unlawfully interrogating a non-supervisory employee and Section 8(a)(4) and (1) by unlawfully discharging that non-supervisory employee, where the termination was motivated by the employee’s contacts with the Board.
Charge filed by an individual. Administrative Law Judge Christine E. Dibble issued her decision on August 19, 2016, and an Errata on August 24, 2016. Chairman Miscimarra and Members Pearce and McFerran participated.
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Anheuser-Busch, LLC (03-RC-185455; 365 NLRB No. 70) Baldwinsville, NY, May 11, 2017.
The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and Report on Objection and Certification of Representative, in which the Regional Director found that the administrative office employee in the proposed unit was not a confidential employee and that the Employer could not challenge that employee’s ballot at the election because the position had been explicitly included in the unit at a pre-election hearing. In denying review of the Employer’s objection that it was prevented from challenging the employee’s ballot at the election, the Board notes that the Employer would have had to have demonstrated changed circumstances in order to do so, because issue had been fully litigated at a pre-election hearing.
Petitioner – Teamsters Local 1149. Chairman Miscimarra and Members Pearce and McFerran participated.
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Omega Construction Services, LLC (28-CA-188536; 365 NLRB No. 72) Tucson, AZ, May 12, 2017.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(1) by interrogating employees about their concerted activities; creating the impression that employees’ concerted activities are under surveillance; promulgating overly-broad and discriminatory rules or directives prohibiting employees from “running their mouths” or communicating with third parties about their terms and conditions of employment; threatening employees with discharge, suspension, cessation of work assignments, and other unspecified reprisals if they engage in protected concerted activities or refuse to disclose, in response to unlawful interrogation, that they engaged in concerted activities; ceasing assigning work to an employee, and suspending and discharging him because he engaged in protected concerted activities, and to discourage employees from engaging in these activities; conditioning the assignment of future work to an employee on his cessation of concerted activities; and reneging on a purchase agreement with an employee, failing to reimburse him for money already paid pursuant to such agreement, and failing to return an employee’s personal property because he engaged in concerted activities and to discourage employees from engaging in concerted activities.
Charge filed by an individual employee. Chairman Miscimarra and Members Pearce 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
Coca Cola Refreshments, Inc. (09-CA-186932) Cincinnati, OH, May 8, 2017. The Board denied the Employer’s petition to partially revoke an investigative subpoena duces tecum, as 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 other legal basis for revoking the subpoena. The Board majority (Members Pearce and McFerran), in considering the petition to revoke, evaluated the subpoena in light of the Region’s clarification that for subpoena paragraph 2, it was seeking only documents reflective of the Employer’s analysis and planning regarding overtime hours, and documents reflecting overtime hours in the sanitation department as well as across the production department, for the time period of January 1, 2016, through December 31, 2016. Contrary to the dissent, the majority found that the Region's offer to limit the scope of the subpoena did not establish that it was initially overbroad. The Board also stated that it evaluated the subpoena in light of the Region’s clarification that for subpoena paragraph 3, it was limiting its request to the time period of January 1, 2016, through December 31, 2016. Dissenting in part, Chairman Miscimarra would have granted the petition to revoke as to the request in subpoena paragraph 2 for any documents regarding overtime hours prepared in advance of the Employer’s decision to reduce overtime costs in the production department in 2016. In his view, it is more appropriate for the Board to grant the petition to revoke as to such requests, rather than to deny the petition based on changes that were communicated only after the petition to revoke is under consideration by the Board. As to subpoena paragraph 3, however, Chairman Miscimarra stated that without consideration of the Region’s post-petition clarification, he would find that paragraph not overbroad in temporal scope because it seeks documents related to a specific decision, and thus it is inherently limited in temporal scope. Charge filed by International Brotherhood of Teamsters (IBT), Local 1199. Chairman Miscimarra and Members Pearce and McFerran participated.
Fresno Beverage Company, Inc. d/b/a Valley Wide Beverage Company (32-CA-185753 and 32-CA-185758) Fresno, CA, May 12, 2017. The Board denied the General Counsel’s motion for summary judgment, finding that the General Counsel failed to establish that there were no genuine issues of material fact warranting a hearing and that it was entitled to judgment as a matter of law. Charges filed by individuals. Chairman Miscimarra and Members Pearce and McFerran participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Murray American Energy, Inc. and the Harrison County Coal Company, a single employer (06-CA-169736, et al.; JD-30-17) St. Clairsville, OH. Administrative Law Judge David I. Goldman issued his decision on May 8, 2017. Charges filed by United Mine Workers of America, District 31, Local 1501, AFL-CIO, CLC.
BCG Partners, Inc. d/b/a Newmark Grubb Knight Frank (28-CA-178893; JD-31-17) Tucson, AZ. Administrative Law Judge Robert A. Ringler issued his decision on May 10, 2017. Charge filed by an individual.
Advanced Masonry Associates, LLC d/b/a Advanced Masonry Systems (12-CA-176715 and 12-RC-175179; JD-32-17) Sarasota, FL. Administrative Law Judge Michael A. Rosas issued his decision on May 10, 2017. Charge filed by Bricklayers and Allied Craftworkers, Local 8 Southeast.
Southern Bakeries, LLC (15-CA-169007, et al.; JD-33-17) Hope. AR. Administrative Law Judge Arthur J. Amchan issued his decision on May 11, 2017. Charges filed by individuals and Bakery, Confectionary, Tobacco Workers, and Grain Millers Union.
Entergy Nuclear Operations, Inc. (01-CA-153956, et al.; JD-34-17) Plymouth, MA. Administrative Law Judge Paul Bogas issued his decision on May 12, 2017. Charges filed by United Government Security Officers of America, Local 25.
L.I.F. Industries a/k/a Long Island Fire Proof Door (29-CA-181174; JD(NY)-11-17) Brooklyn, NY. Administrative Law Judge Jeffrey P. Gardner issued his decision on May 12, 2017. Charge filed by New York City and Vicinity District Council of Carpenters.
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