Summary of NLRB Decisions for Week of November 16 - 20, 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
Alcoa, Inc. and Alcoa Commercial Windows, LLC d/b/a TRACO, a single employer (06-CA-065365; 363 NLRB No. 39) Cranberry Township, PA, November 16, 2015.
The Board unanimously adopted the Administrative Law Judge’s finding that Alcoa Inc. and Traco are a single employer and violated 8(a)(1) by denying off-duty and off-site Alcoa Inc. employees access to exterior nonwork areas of Traco, including its parking lots, to engage in organizational handbilling and, by the actions of Traco’s general manager, engaged in surveillance of the handbilling. Footnote 1 of the decision rejects the Respondent’s argument that Acting General Counsel Lafe Solomon was improperly or unlawfully appointed to that position under the Federal Vacancies Reform Act, and finds that the Respondent waived its right to challenge the continued authority of Solomon following his nomination by the President to be General Counsel. Even assuming that Respondent had not waived its right to challenge the continued authority of Acting General Counsel Solomon following his nomination by the President, footnote 1 finds that General Counsel Richard F. Griffin’s October 5, 2015, ratification of the issuance of the complaint and prosecution of the case by Solomon, rendered moot any argument that further litigation of the case was precluded under the decision in S. W. General, Inc. v. NLRB, No. 14-1107, 2015 WL 4666487 (D.C. Cir. Aug. 7, 2015).
Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC. Administrative Law Judge Mark Carissimi issued his decision on September 20, 2013.
Chairman Pearce and Members Hirozawa and McFerran participated.
***
Nijjar Realty, Inc., d/b/a Pama Management (21-CA-092054; 363 NLRB No. 38) El Monte, CA, November 20, 2015.
Citing Murphy Oil, 361 NLRB No. 72 (2014), and D. R. Horton, Inc., 357 NLRB No. 184 (2012), a Board panel majority consisting of Chairman Pearce and Member McFerran adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) both by maintaining a mandatory arbitration agreement which precludes employees from participating in class litigation or arbitration to resolve disputes arising out of employment and by enforcing that agreement by filing a petition in state court to compel the Charging Party to individually arbitrate his claims under a wage and hour class action suit. The Board majority also found that the opt-out provision of the agreement did not make the agreement lawful. Member Miscimarra dissented and would find that the maintenance and enforcement of agreements between employers and employees that waive class and collective actions do not violate Section 8(a)(1), especially when they contain an opt-out provision, as here.
Charge filed by an individual. Administrative Law Judge William Nelson Cates issued his decision on December 4, 2013. Chairman Pearce and Members Miscimarra and McFerran participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Gate Serve, LLC (29-RC-155741) Queens, NY, November 17, 2015. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review. Petitioner – Service Employees International Union, Local 32BJ. Chairman Pearce and Members Hirozawa and McFerran participated.
Missouri Red Quarries, Inc. (14-RC-151115) St. Louis, MO, November 18, 2015. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative on the ground that it raised no substantial issues warranting review. The Regional Director found that a quarry foreman’s ability to effectively recommend hire established that he was a supervisor under the Act and therefore made the foreman ineligible to vote in the representation election. Petitioner – Eastern Missouri Laborers’ District Council. Chairman Pearce and Members Hirozawa and McFerran participated.
The Mirage Casino-Hotel d/b/a The Mirage (28-RC-154083) Las Vegas, NV, November 18, 2015. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review. In denying review, the Board rejected the Employer’s contention that the petition must be dismissed due to the Petitioner’s failure to fill out section 7 of the petition form. The Board also agreed, for the reasons stated by the Regional Director, that the petitioned-for surveillance technicians are not guards within the meaning of Section 9(b)(3) of the Act. The Board further noted that both it and the courts have long rejected the notion that individuals should be deemed guards because their installation or maintenance of equipment is an integral part of a larger security system that other individuals actually operate. The Board also found that the additional strike duties the Employer contemplates for the petitioned-for employees do not render them guards, because these additional duties do not involve guard functions. Petitioner—International Union of Operating Engineers, Local 501, AFL-CIO. Chairman Pearce and Members Hirozawa and McFerran participated.
Bellagio, LLC d/b/a Bellagio Las Vegas (28-RC-154081) Las Vegas, NV, November 18, 2015. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review. In denying review, the Board rejected the Employer’s contention that the petition must be dismissed due to the Petitioner’s failure to fill out section 7 of the petition form. The Board also agreed, for the reasons stated by the Regional Director, that the petitioned-for surveillance technicians are not guards within the meaning of Section 9(b)(3) of the Act. The Board further noted that both it and the courts have long rejected the notion that individuals should be deemed guards because their installation or maintenance of equipment is an integral part of a larger security system that other individuals actually operate. The Board also found that the additional strike duties the Employer contemplates for the petitioned-for employees do not render them guards, because these additional duties do not involve guard functions. Petitioner—International Union of Operating Engineers, Local 501, AFL-CIO. Chairman Pearce and Members Hirozawa and McFerran participated.
Elmwood Adult Day Health Care Center/Elmwood Medical Transportation Services, Inc. (01-RC-153146) Providence, RI, November 19, 2015. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative on the ground that it raised no substantial issues warranting review. Petitioner – Teamsters Local Union 251 a/w International Brotherhood of Teamsters. Chairman Pearce and Members Hirozawa and McFerran participated.
C Cases
No unpublished C case decisions.
***
Appellate Court Decisions
Sprain Brook Manor Nursing Home, Ltd., Board Case No. 02-CA-040231 (reported at 361 NLRB No. 54) (2d Cir. decided, November 18, 2015)
In an unpublished summary order the court, finding that substantial evidence supported the Board’s findings, enforced the Board’s order in full. Specifically, the court upheld the Board’s determinations that the employer unlawfully threatened an employee who sought her union’s assistance; discharged two employees to whom it was still paying backpay from the last time it discriminated against them; and eliminated employee benefits-- free hot lunches, on-site check cashing during work hours, free physical examinations and tuberculosis tests required for continued employment, and a monthly payment to employees who declined health insurance—without bargaining with the Union.
The court’s summary order may be found here.
***
Administrative Law Judge Decisions
Good Samaritan Hospital (31-CA-117462; JD(SF)-46-15) Los Angeles, CA. Administrative Law Judge Mary Miller Cracraft issued her decision on November 16, 2015. Charge filed by California Nurses Association.
Wingate of Dutchess, Inc. (03-CA-140576, 03-CA-145659 and 03-RC-137858; JD-64-15) Fishkill, NY. Administrative Law Judge Mark Carissimi issued his decision on November 16, 2015. Charges filed by 1199 SEIU United Healthcare Workers East.
United States Postal Service (01-CA-145800; JD(NY)-44-15) Portland, ME. Administrative Law Judge Joel P. Biblowitz issued his decision on November 18, 2015. Charge filed by National Association of Letter Carriers, Branch 92, a/w National Association of Letter Carriers.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.