Summary of NLRB Decisions for Week of November 23-27, 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
Professional Janitorial Service of Houston, Inc. (16-CA-112850; 363 NLRB No. 35) Houston, TX, November 24, 2015.
Applying Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in part, Murphy Oil USA, Inc., v. NLRB, No. 14-60800 (5th Cir. Oct. 26, 2015), the Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) of the Act by maintaining a Dispute Resolution and Arbitration Policy (Arbitration Policy) that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. The Board also affirmed the judge’s finding that a confidentiality provision in the Arbitration Policy independently violated Section 8(a)(1) by prohibiting employees from discussing terms and conditions of employment. Finally, the Board found that employees would reasonably construe the Arbitration Policy to limit or restrict their access to the Board and its processes and that the Respondent’s maintenance of the policy violated Section 8(a)(1) for this reason as well, reversing the judge’s dismissal of that allegation.
Member Miscimarra dissented from the finding that the Arbitration Policy violated the Act because it required employees to waive their rights to pursue class or collective actions regarding non-NLRA claims, for the reasons explained in his dissenting opinion in Murphy Oil USA, Inc.
Charge filed by Service Employees International Union. Administrative Law Judge Joel P. Biblowitz issued his decision on June 16, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.
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Laborers’ International Union of North America Local 110 (U.S. Silica Company) (14-CD-153807; 363 NLRB No. 42) Pacific, MO, November 24, 2015.
In this jurisdictional dispute arising under Section 10(k) of the Act, the Board found that unions Laborers Local 110 and Operating Engineers Local 513 both claimed the work of Track Mobile operator. Specifically, the Board rejected the Operating Engineers’ argument that it disclaimed the work at issue, finding that the Operating Engineers specifically sought reassignment of the work by filing a grievance, sought to apply its collective-bargaining agreement to employees performing the Track Mobile work, which contained a union security clause requiring membership in Operating Engineers, and only expressly disclaimed the work after the hearing closed in the instant case. The Board further found reasonable cause to believe that Section 8(b)(4)(D) had been violated by Laborers’ threat to picket if the work was reassigned and that there is no voluntary method for adjusting the dispute. The Board then evaluated the dispute under its established 10(k) factors and awarded the disputed work to employees represented by the Laborers based on the factors of employer preference and practice, relative skills and training, and economy and efficiency of operations.
Charges filed by U.S. Silica Company. Chairman Pearce and Members Hirozawa and McFerran participated.
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Prime Healthcare Centinela, LLC d/b/a Centinela Hospital Medical Center (31-CA-030055, et al.; 363 NLRB No. 44) Inglewood, CA, November 24, 2015.
The Board affirmed the administrative law judge’s findings that the Respondent unlawfully failed to provide information requested by the Union. A Board panel majority consisting of Chairman Pearce and Member Hirozawa found that much of the information was presumptively relevant, and even assuming it was not, the Union established the relevance. Member Miscimarra found that the information was not presumptively relevant, but he agreed that the Union established the relevance.
The Board also affirmed the judge’s finding that the Respondent unlawfully implemented changes to its healthcare plan in the absence of a valid impasse. In finding no valid impasse, the panel members expressed differing rationales. Chairman Pearce and Member Hirozawa relied on the totality of the circumstances and the failure to provide information. Member Miscimarra relied only on the former. All three Members found it unnecessary to decide whether the Respondent engaged in overall bad-faith bargaining.
A panel majority consisting of Chairman Pearce and Member Hirozawa also found that the Respondent unlawfully announced the implementation of its new healthcare plan and unlawfully conditioned bargaining on the acceptance of its last, best, and final offer. Member Miscimarra, dissenting, would not find those additional violations.
Charge filed by SEIU—United Healthcare Workers-West. Administrative Law Judge Gerald M. Etchingham issued his decision on April 12, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Bristol Farms (21-CA-103030; 363 NLRB No. 45) Los Angeles, CA, November 25, 2015.
In this Murphy Oil/D. R. Horton case, a Board panel majority consisting of Chairman Pearce and Member McFerran denied the Respondent’s motion seeking a Board Order approving its proposed unilateral Settlement Agreement, Notice, and revised Arbitration Agreement because approval would not effectuate the purposes of the Act. The majority rejected the Respondent’s argument that its revised Arbitration Agreement did not fall within the proscriptions of Murphy Oil and D.R. Horton because it was truly “optional.” In so doing, the majority cited On Assignment Staffing Services, 62 NLRB No. 189 (2015), where, deciding an issue left open by D. R. Horton, the Board held that an arbitration agreement that precludes collective action in all forums is unlawful even if entered into voluntarily, because it requires employees to prospectively waive their Section 7 right to engage in concerted activity. The majority disagreed with the dissent’s view that Section 9(a) of the Act requires the Board to permit individual employees to prospectively waive their Section 7 right to engage in concerted legal activity. Accordingly, the majority set a due date for the filing of exceptions to the Administrative Law Judge’s decision issued in this case, which found that the Respondent’s maintenance and enforcement of the Arbitration Agreement violated Section 8(a)(1).
Member Miscimarra, dissenting, would have granted the Respondent’s motion. Adhering to his partial dissent in Murphy Oil, Member Miscimarra reiterated his view that Section 8(a)(1) does not vest the Board with authority to dictate any particular procedures pertaining to the litigation of non-NLRA claims, nor does the Act entitle employees to class-type treatment of such claims. Moreover, in his view, not only does the Board lack jurisdiction over procedural issues pertaining to non-NLRA claims, but several other considerations made it particularly inappropriate for the Board to declare unlawful the Respondent’s revised Arbitration Agreement in this case. He stated that, even if employees were deemed to have an NLRA-protected right to insist on the class-type treatment of non-NLRA claims, the Respondent’s revised Agreement is lawful because (1) Section 7 gives every employee the right “to refrain” from NLRA-protected activity; (2) Section 9(a) gives every employee the right “at any time” to adjust his or her non-NLRA disputes on an individual basis and thus the right to agree to waive class-type dispute-adjustment procedures; and (3) the Respondent’s revised Agreement has no effect unless an employee voluntarily chooses to sign it.
Charge filed by an individual. Administrative Law Judge Lisa Thompson issued her decision on October 17, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.
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M.D. Miller Trucking & Topsoil, Inc. (13-CA-104166; 363 NLRB No. 49) Rockdale, IL, November 25, 2015
The Board granted in part and denied in part the General Counsel’s motion for summary judgment on a compliance specification issued by the Regional Director. The Board granted summary judgment with respect to the backpay period, gross backpay calculations, pension fund contributions, and excess tax because it found that the Respondent’s answer to these allegations did not meet the specificity requirements of the Board’s Rules and Regulations, and did not adequately explain its failure to do so. The Board denied summary judgment with respect to interim earnings and expenses because it found that the Respondent’s general denial was sufficient to warrant a hearing. The Board remanded the case to the Regional Director for the purpose of arranging a hearing limited to the issues of interim earnings and expenses.
Charge filed by General Teamsters Local Union No. 179, affiliated with International Brotherhood of Teamsters. Chairman Pearce and Members Miscimarra and McFerran participated.
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Con-way Freight Inc. (16-CA-159605; 363 NLR No. 53) Laredo, TX, November 27, 2015.
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. In its answer to the complaint, the Respondent admitted the filing of the charge, but denied service of the charge. The Board noted that the complaint was timely served and that the Respondent filed a timely answer to the complaint. Thus, the Board found that even assuming the Respondent was not properly served with a copy of the charge, the Respondent’s denial of service did not create a genuine issue of material fact warranting a hearing or constitute grounds for dismissal of the complaint. Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union.
Charge filed by Teamsters Local 657, affiliated with International Brotherhood of Teamsters. Chairman Pearce and Members Hirozawa and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Lift Truck Sales and Services, Inc. (14-RD-137434) Kansas City, MO, November 23, 2015. Order denying the Petitioner’s Request for Review as not raising substantial issues regarding whether the Regional Director erred by dismissing the decertification petition on the basis that there were pending Section 8(a)(5) charges alleging bad faith bargaining and unilateral changes in wages. Petitioner—an individual. Union involved—Building Materials, Excavating, Heavy Haulers, Drivers, Warehousemen and Helpers, Local Union No. 541, affiliated with the International Brotherhood of Teamsters. Chairman Pearce and Members Miscimarra and McFerran participated.
Quality Investigation, Inc. d/b/a QI Security (05-RC-144753) Washington, DC, November 26, 2015. A unanimous Board panel consisting of Chairman Pearce and Members Hirozawa and McFerran adopted the Regional Director’s findings and recommendations to overrule Intervenor United Security and Police Officers of America (USPOA)’s objections to an election, and certified the Petitioner, National Alliance of Law Enforcement Officers (NALEO), as the exclusive collective-bargaining representative of the employees in the appropriate unit. The Board found that consideration of USPOA’s purported new evidence in support of one of its objections was not warranted, as USPOA did not dispute the Regional Director’s finding that it previously failed to submit any evidence in support of this objection, and it did not provide any explanation for the untimely submission of this evidence. In the absence of exceptions, the Board adopted pro forma the Regional Director’s decision to overrule USPOA’s remaining two objections. Petitioner—National Alliance of Law Enforcement Officers (NALEO). Intervenor—International Union, Security, Police and Fire Professionals of America (SPFPA). Intervenor—United Security and Police Officers of America (USPOA).
C Cases
La Jomac Group, Inc., Jag Premier, Inc., Data Processing Specialists, Inc., Pangea Industries, LLC, Barrio Street Realty, LLC, and Pangea Enterprises, Inc. (15-CA-137333 and 15-CA-137337) Huoma, Morgan City, New Orleans, and Lockport, LA; and Brownsville, TX, November 23, 2015. The Board an individual’s petition to revoke an investigative subpoena ad testificandum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the subpoenaed individual failed to establish any other legal basis for revoking the subpoena. The Board also rejected the individual’s argument that the subpoena should be revoked because the unfair labor practice charge is barred by Section 10(b) of the Act, on the basis that issues regarding Section 10(b) are generally not considered in an investigative subpoena context. Member Miscimarra agreed that the petition to revoke should be denied because the subpoenaed individual had failed to raise any meritorious grounds for revocation. He further stated that, in his view, the instant subpoena ad testificandum, which only identifies the case name and number, is deficient because it fails to state with sufficient particularity the evidence being sought. He concurred, however, in the denial of the petition to revoke in the absence of any objection to the subpoena on this basis. Charge filed by an individual. Members Miscimarra, Hirozawa, and McFerran participated.
International Alliance of Theatrical Stage Employees Local Union No. 363 (Total Crew Services, Inc.) (32-CB-154562 and 32-CB-155304) Reno, NV, November 23, 2015. Order denying the Union’s petitions to revoke an investigative subpoena duces tecum and two investigative subpoenas ad testificandum. The Board found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Union failed to establish any other legal basis for revoking the subpoena. Charges filed by two individuals. Members Miscimarra, Hirozawa, and McFerran participated.
United States Postal Service (28-CA-143749 and 28-CA-147765) Albuquerque and Santa Fe, NM, November 24, 2015. No exceptions having been filed to the October 9, 2015 decision of Administrative Law Judge Mary Miller Cracraft finding that Respondent had engaged in certain unfair labor practices, the Board adopted her findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order.
Preyde One, LLC (07-CA-154061) Lansing, MI, November 24, 2015. Order denying the Employer’s petition to revoke subpoenas duces tecum and ad testificandum. The Board found that the subpoena sought information relevant to matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revocation. Charge filed by Michigan Regional Council of Carpenters. Members Miscimarra, Hirozawa and McFerran participated.
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Appellate Court Decisions
Mike-Sell's Potato Chip Co., Board Case No. 09-CA-072637 (reported at 361 NLRB No. 23) (D.C. Cir. decided November 24, 2015)
In an unpublished per curiam judgment, the court enforced the Board’s order in full.
This snack food manufacturer and distributor employs a unit of maintenance and production employees at its Dayton, Ohio facility who have been represented by the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 57, AFL-CIO-CLC, for five decades under a series of collective-bargaining agreements. In late 2011, the employer decided that increases in health insurance deductibles and decreases in reimbursement rates and health savings account contributions were needed to help save costs. It sent the union a reopener letter before the time period specified for such reopeners under the current contract, and met with the union over the proposed changes but implemented them without the union’s consent. On those facts, the Board found, in agreement with the administrative law judge, that the employer violated Section 8(a)(5) and (1) of the Act by implementing changes to the health care benefits during the term of the contract without obtaining the union's consent and without following the procedures set forth in the contractual reopening clause.
The employer petitioned for review in the D.C. Circuit and the Board cross-applied for enforcement. After briefing, but without holding oral argument, the court issued its opinion summarily dispensing with the employer’s factual assertion that the union had agreed to the changes, as well as its various challenges to the judge’s credibility determinations.
The court’s per curiam opinion is here
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Administrative Law Judge Decisions
Diamond Trucking, Inc. (25-CA-144424; JD-65-15) Peru, IN. Administrative Law Judge Susan A. Flynn issued her decision on November 24, 2015. Charge filed by Teamsters Joint Council No. 69, a/w International Brotherhood of Teamsters.
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