Summary of NLRB Decisions for Week of November 21-25, 2016
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
Spectrum Juvenile Justice Services (07-CA-180451; 364 NLRB No. 149) Highland Park, MI, November 22, 2016.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.
Charge filed by International Union, Security, Police and Fire Professionals of America (SPFPA). Chairman Pearce and Members Miscimarra and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Draper Trucking, LLC (03-RD-177325) Buffalo, NY, November 21, 2016. The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s Decision and Order dismissing the petition on the ground that it raised no substantial issues warranting review. Petitioner ‒ an individual. Intervenor/Union ‒ International Brotherhood of Teamsters, Local 449. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
Charter Communications, LCC (31-CA-150248, et al.) San Luis Obispo, CA, November 21, 2016. The Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charges filed by International Brotherhood of Electrical Workers Local 639 and International Brotherhood of Electrical Workers Local 1245. Chairman Pearce and Members Miscimarra and McFerran participated.
Metal Container Corporation (12-CA-174724) Jacksonville, FL, November 22, 2016. The Board denied the Employer’s petition to 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 the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service International Union, AFL-CIO-CLC, Local 8461. Chairman Pearce and Members Miscimarra and McFerran participated.
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Appellate Court Decisions
Constellation Brands, U.S. Operations, Inc. d/b/a Woodbridge Winery, Board Case No. 32-CA-148431 (reported at 363 NLRB No. 126) (2d Cir. decided November 21, 2016)
In a published opinion in this test-of-certification case, the court upheld the Board’s two-step standard for determining whether a proposed bargaining unit is an appropriate unit as clarified in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). In doing so, the Second Circuit joined the Third, Fourth, Fifth, Sixth, Seventh, and Eighth Circuits in rejecting challenges to the standard. See FedEx Freight, Inc. v. NLRB, 839 F.3d 636 (7th Cir. 2016); NLRB v. FedEx Freight, Inc., 832 F.3d 432 (3d Cir. 2016); Macy’s Inc. v. NLRB, 824 F.3d 557 (5th Cir.), reh’g en banc denied (Nov. 18, 2016); FedEx Freight, Inc. v. NLRB, 816 F.3d 515 (8th Cir.), reh’g & reh’g en banc denied (May 26, 2016); Nestle Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016); Kindred Nursing Ctrs. East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).
However, in reviewing the Board’s application of the standard, which resulted in certification of a unit of 46 employees in the outside cellar department at the Employer’s winery in Acampo, California, and rejected the Employer’s claim that the unit must also include 23 barrel department employees, the court found the Board’s analysis insufficient. Specifically, the court held that the Board did not adequately “analyze at step one of the Specialty Healthcare framework whether the excluded employees had meaningfully distinct interests from members of the petitioned‐for unit in the context of collective bargaining that outweigh similarities with unit members.” Accordingly, the court remanded the case to the Board for further proceedings consistent with its opinion.
The court’s decision is here.
Wackenhut Corporation d/b/a G4S, Board Case No. 12-CA-026644 (reported at 362 NLRB No. 134) (11th Cir. decided November 21, 2016)
In an unpublished per curiam opinion, the court enforced the Board’s order issued against this provider of security services at the Turkey Point Nuclear Power Plant in Miami/Dade County, Florida. The Board (Chairman Pearce and Member Hirozawa; Member Miscimarra, dissenting) found that the Employer failed to carry its burden of proving that two security guards whom it suspended and discharged were supervisors under Section 2(11) of the Act. Rather, the Board found that the security guards were employees covered by the Act, and that the Employer took those adverse actions against them in violation of Section 8(a)(1) for having raised myriad concerns, on multiple occasions, about the security officers’ conditions of employment. Those conditions included inadequate bathroom facilities, lack of water, bulky vests, time spent standing in the sun, uncomfortable desk furniture, favoritism, and unfair treatment. On review, the court held that substantial evidence supported the Board’s findings, and without further comment, enforced the Board’s order.
The court’s opinion is here.
McKenzie-Willamette Regional Medical Center Associates, LLC, Board Case No. 19-CA-119098 (reported at 362 NLRB No. 20) (D.C. Cir. decided November 22, 2016)
In an unpublished judgment, the court enforced the Board’s order issued against this medical facility in Springfield, Oregon, for violating Section 8(a)(5) and (1) of the Act by unreasonably delaying or failing to provide information requested by Service Employees International Union Local 49, CTW-CLC, during negotiations for a successor agreement covering various service, technical, and skilled-maintenance employees at the facility. Before the court, the Employer did not challenge the Board’s findings on the merits. Instead it contended, as it did before the Board, that the underlying complaint was void because it had been issued by a regional director appointed by the Board in January 2012 when it lacked a quorum. Rejecting that argument, the court held that the Board properly relied on the Board Minute that demonstrated that the regional director’s appointment was made on December 22, 2011, when the Board had a quorum. The court held that the Board Minute was a self-authenticating document under the Federal Rules of Evidence, and found unpersuasive the Employer’s remaining contentions.
The court’s judgment is here.
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Administrative Law Judge Decisions
East End Bus Lines, Inc. (29-CA-161247, et al.; JD-111-16) Medford, NY. Administrative Law Judge Ira Sandron issued his decision on November 21, 2016. Charges filed by International Brotherhood of Teamsters Local 1205 and an individual.
Insight Global, LLC (15-CA-161491; JD-113-16) Atlanta, GA. Administrative Law Judge Thomas M. Randazzo issued his decision on November 23, 2016. Charge filed by an individual.
United Parcel Service, Inc. (06-CA-143062; JD-112-16) North Apollo, PA. Administrative Law Judge Geoffrey Carter issued his decision on November 25, 2016. Charge filed by an individual.
Bauer’s Intelligent Transportation, Inc. (20-CA-160321, 20-CA-161534, and 20-CA-167627; JD(SF)-45-16) San Francisco, CA. Administrative Law Judge Ariel L. Sotolongo issued his decision on November 25, 2016. Charges filed by an individual and Teamsters Local 665, International Brotherhood of Teamsters.
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