Summary of NLRB Decisions for Week of October 19 - 23, 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
Marina Del Rey Hospital (31-CA-029929, et al.; 363 NLRB No. 22) Marina Del Rey, CA, October 22, 2015.
A Board panel unanimously found that the Respondent’s off-duty employee access policy was lawful on its face, but that the Respondent violated the Act by applying the policy in a discriminatory manner against those employees seeking to engage in union activity. In addition, a Board panel majority consisting of Members Hirozawa and McFerran found that the Respondent unlawfully modified its appearance and hygiene policy without giving the union notice and an opportunity to bargain. Member Miscimarra, dissenting, found that the Respondent’s one-sentence addition to its policy did not constitute a change from how the policy had previously been applied, but merely conformed the Respondent’s written policy to its preexisting practice. The same panel majority also found that the Respondent violated the Act by unilaterally discontinuing payments to the Union’s education fund after the parties’ most recent collective-bargaining agreement expired. Member Miscimarra, again dissenting, found that relevant provisions in the expired collective bargaining agreement and the Fund’s “Plan Document” established that the parties intended to limit the Respondent’s payment obligation to the contract’s term.
Charges filed by California Nurses Association and Service Employees International Union, United Healthcare Workers-West. Administrative Law Judge William G. Kocol issued his decision on January 16, 2013. Members Miscimarra, Hirozawa, and McFerran participated.
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Classic Valet Parking, Inc. (29-RC-148399; 363 NLRB No. 23) Stony Brook, NY, October 23, 2015.
A Board panel majority consisting of Chairman Pearce and Member McFerran denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision on Objections, Order Consolidating Cases, and Notice of Hearing on the ground that it raised no substantial issues warranting review. They found that the Regional Director’s decision to exclude from the tally of ballots 10 ballots not received by the Region until after the tally was completed was consistent with established Board precedent and policy. Member Miscimarra joined his colleagues in denying review of the Regional Director’s decision to direct a mail ballot election; however, he would grant review on the basis that the Employer has raised a substantial issue regarding the failure to count the 10 ballots that were mailed by eligible voters prior to the deadline established by the Regional Director but received by the Region after the scheduled count. Petitioner – Local 1102, Retail, Wholesale & Department Store Union, United Food and Commercial Workers. Chairman Pearce and Members Miscimarra and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
The New School (02-RC-143009) New York, NY, October 21, 2015. A Board majority consisting of Chairman Pearce and Members Hirozawa and McFerran granted Petitioner’s request for review of the Regional Director’s Supplemental Decision and Order Dismissing Petition as it raised substantial issues warranting review. Member Miscimarra would deny review because the Regional Director’s supplemental decision, based on the fully developed evidentiary record, did not warrant a grant of review under the Board’s Rules and Regulations. No party argued that the Regional Director’s detailed supplemental decision departed from existing law, that her decision on a substantial factual issue was “clearly erroneous,” or that she committed “prejudicial error” in any of her rulings or in the conduct of the hearing. The sole basis relied upon by the Petitioner was its desire to have the Board overrule Brown University, 342 NLRB 483 (2004). Although Sec. 102.67(c)(4) of the Board’s Rules and Regulations permits review based on “compelling reasons for reconsideration of an important Board rule or policy,” Member Miscimarra did not believe there were compelling reasons here. Petitioner—Student Employees at The New School-SENS/UAW. Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.
MGM Grand Hotel, LLC d/b/a MGM Grand (28-RC-154099) Las Vegas, NV, October 22, 2015. Order denying review of the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election. In denying review, the Board agreed with the Regional Director’s reliance on Advance Pattern Co., 80 NLRB 29 (1948). The Board explained that, under Advance Pattern Co. and its progeny, the Board has consistently held that if a question concerning representation exists, the Board will not dismiss a petition simply because—as was the case here—a petitioner fails to indicate on the petition form whether it has requested recognition and the employer has declined to extend recognition. Here, the Petitioner requested recognition at the hearing and the Employer declined to recognize it; this was sufficient to establish a question concerning representation. The Board stated that if it dismissed the petition under these circumstances, it would be abrogating its statutory duty to resolve questions concerning representation. The Board rejected the Employer’s contentions that adhering to this precedent was arbitrary and capricious and prejudiced employers; it further emphasized that the Board’s recent amendments to its rules and regulations do not purport to alter its longstanding practice in this area. Petitioner—International Union of Operating Engineers, Local 501, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
Mrs. Green’s Natural Market, Inc. (02-CA-138472) Mt. Kisco, NY, October 20, 2015. Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Employer must take to comply with the National Labor Relations Act. Charge filed by United Food and Commercial Workers, Local 1500. Chairman Pearce and Members Miscimarra and McFerran participated.
Michell Enterprises, LLC d/b/a McDonald’s and McDonald’s USA, LLC, as Joint Employer (03-CA-148587) Colonie, NY, October 20, 2015. Order denying Michell Enterprises, LLC’s petition to revoke an investigative subpoena duces tecum and subpoenas ad testificandum. The Board found that the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that Michell Enterprises failed to establish any other legal basis for revocation. Charge filed by Citizen Action of NY. Chairman Pearce and Members Miscimarra and McFerran participated.
Fred Meyer Stores, Inc. (19-CA-032908 and 19-CA-033052) Kirkland, WA, October 20, 2015. The Board denied the joint motion to remand and continues to consider the matter.
Saint Luke Memorial Hospital (12-CA-151844) Ponce, PR, October 20, 2015. Order denying the Employer’s petition to revoke an investigatory subpoena duces tecum. The Board found that the subpoena sought information relevant to the 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 Unidad Laboral de Enfermeras(os) y Empleados de La Salud. Chairman Pearce and Members Miscimarra and McFerran participated.
MHA, LLC d/b/a Meadowlands Hospital Medical Center (22-CA-086823, et al.) Secaucus, NJ, October 20, 2015. The Board granted the Union’s request for special permission to appeal from an administrative law judge’s ruling regarding a petition to revoke an investigative subpoena and denied the appeal on the merits. The Board found that the Union failed to establish that the judge abused his discretion in denying the Union’s petition to revoke paragraph 33 of the Respondent’s subpoena addressed to the Union. The Board noted that, to the extent that subpoena paragraph 33 encompasses some documents that the Union believes in good faith to be protected from disclosure, the Union may submit a privilege log providing sufficient detail to permit an assessment by the judge of the Union’s claims. Charges filed by Health Professionals and Allied Employees, AFT/AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Cooper Tire & Rubber Company (08-CA-087155) Findlay, OH, October 21, 2015. The Board granted the Equal Employment Advisory Council’s motion for leave to file an Amicus Curiae brief, and will consider that brief and any responses to it filed by November 4, 2015.
Palm Beach Metro, LLC and its alter ego Metro Mobility Management Group, LLC (12-CA-025842) Palm Beach, FL, October 21, 2015. The Board denied the Trust’s petition to revoke an investigative subpoena duces tecum issued by the Board’s Contempt, Compliance, and Special Litigation Branch (CCSLB). The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. The Board further found that the Trust failed to establish any other legal basis for revocation. In denying the petition to revoke, the Board rejected the CCSLB’s argument that the petition was untimely filed. Finally, the Board noted that, to the extent that the subpoena encompasses some documents that the Trust believes in good faith to be subject to the attorney-client privilege or the attorney work-product doctrine, the Order is without prejudice to the Trust’s prompt submission of a privilege log to the CCSLB providing sufficient detail to permit an assessment of the Trust’s claims. The Board directed the Trust to produce all responsive documents in its possession not subject to any good-faith claim of privilege or protection. Charge filed by Amalgamated Transit Union, AFL-CIO, Local 1577. Chairman Pearce and Members Miscimarra and McFerran participated.
Ridgewood Health Care Center, Inc. and Ridgewood Health Services, Inc. a Single Employer (10-CA-113669 and 10-CA-136190) Jasper, AL, October 22, 2015. A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Charging Party’s and General Counsel’s motions to accept late-filed answering briefs, finding no excusable neglect. Member Miscimarra, noting that the Board has shown some leniency regarding filing deadlines in other contexts absent a showing of prejudice, would have granted the motions based on excusable neglect. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,
Allied Industrial and Service Workers International Union (USW). Chairman Pearce and Members Miscimarra and Hirozawa participated.
The Cement League (03-CA-126938) New York, NY, October 22, 2015. The Board granted the request for special permission to file an Amicus Curiae brief and will consider the brief filed by the Court-Appointed Office of the Independent Monitor, District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America, and any responses to it filed by November 5, 2015.
USF Holland (15-CA-148513) Olive Branch, MS, October 22, 2015. Order denying the Employer’s petition to revoke an investigative subpoena duces tecum. 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 an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
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Appellate Court Decisions
Triple Play Sports Bar, Board Case No. 34-CA-012915 (reported at 361 NLRB No. 31) (2d Cir. decided October 21, 2015)
In an unpublished summary order, the Court enforced the Board’s order against this Watertown, Connecticut bar and restaurant. The key findings upheld by the court were the Board’s determinations that the employer violated Section 8(a)(1) of the Act by discharging two employees, a bartender and a cook, for their protected, concerted communications on Facebook.
In January 2011, some employees discovered they owed more than expected in state income taxes, discussed it with fellow employees, and after some of them complained, the employer held a staff meeting to answer payroll withholding questions. Later, a former employee learned that she also owed state taxes on her prior wages and posted as a “status update” on her personal Facebook page: “Maybe someone should do the owners . . . a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money. . . Wtf!!!!” In response, a series of comments were posted from current employees who were similarly expressing outrage that they owed money in back taxes, as well as two customers of the restaurant who posted supportive comments. At one point, the former employee added: “It’s all [the owner]’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it b[ecause] he still owes me about 2000 in paychecks.” Next in sequence, one current employee selected the “Like” option under the initial status update, and subsequently another current employee commented: “I owe too,” and went on to refer to the employer’s owner with a derogatory obscenity. Upon their return to work, both employees immediately were discharged for those Facebook communications. Before the Board, the employer did not dispute that the communications were concerted activity, or that the two discharged employees had a protected right to discuss tax withholding calculations. Instead, it argued that the employees lost the Act’s protection because they adopted the comments of the former employee that were made in a public forum accessible to employees and customers alike and thus undermined its authority in the workplace and its public image.
The Board (Members Miscimarra, Hirozawa, and Schiffer; Member Miscimarra dissenting in part) found that the Facebook communications were protected concerted activities and rejected the employer’s contention that they lost the protection of the Act. The Board explained that it applies the standards established in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966), to cases, like this one, involving employee communications among employees and with third parties or the general public. The Board held that the Facebook discussion related to an ongoing labor dispute and was not disloyal or defamatory under Jefferson Standard and Linn. In reaching that conclusion, the Board rejected reliance on Atlantic Steel Co., 245 NLRB 814 (1979), which, the Board explained, typically applies to face-to-face communications between employees and employers at the workplace and is not well suited to address employees’ off-duty, off-site use of social media to communicate with other employees or third parties. The Board then found, under its traditional Wright Line analysis, that the employees were unlawfully fired for their Facebook communications, and that the employer presented no legitimate, non-discriminatory reason for their discharges. Additionally, the Board found that the employer separately violated Section 8(a)(1) by a series of threats and an interrogation, all relating to the use of social media, and that it unlawfully maintained an overly broad internet/blogging policy in its employee handbook that prohibited employees from engaging in “inappropriate discussions” in those forums which employees would reasonably interpret to encompass protected communications.
On review, the court concluded that the Facebook communications were made in an effort to seek and provide mutual support looking toward group action, and were not made to disparage the employer or to undermine its reputation. The court explained that “[t]he Facebook discussion clearly disclosed the ongoing labor dispute over income tax withholdings, and thus anyone who saw [the employee]’s “like” or [the other employee]’s statement could evaluate the message critically in light of that dispute.” Rejecting the employer’s reliance on NLRB v. Starbucks Corp., 679 F.3d 70, 77 (2d Cir. 2012), the court stated that “[t]he Starbucks panel premised its decision on a finding that the Board had ‘disregarded the entirely legitimate concern of an employer not to tolerate employee outbursts containing obscenities in the presence of customers’” (quoting 679 F.3d at 79), and that instead here, “the Board stated unequivocally that its application of Jefferson Standard and Linn was based on its longstanding recognition ‘that an employer has a legitimate interest in preventing the disparagement of its products or services and, relatedly, in protecting its reputation . . . from defamation.’” Moreover, the court stated that accepting the employer’s view “could lead to the undesirable result of chilling virtually all employee speech online,” particularly given that “[a]lmost all Facebook posts by employees have at least some potential to be viewed by customers.” The court also commented that the Board’s conclusion that the Facebook activity at issue here did not lose the protection of the Act simply because it contained obscenities viewed by customers “accords with the reality of modern-day social media use.” Finally, the court upheld the Board’s finding that the employer unlawfully maintained an overly broad internet/blogging policy, and held that the employer’s challenges to the remaining Section 8(a)(1) violations summarily failed.
The court’s decision is here.
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Administrative Law Judge Decisions
A&K Signal and Utility Company, LLC (28-CA-151930; JD(SF)-43-15) Phoenix, AZ. Administrative Law Judge Eleanor Laws issued her decision on October 21, 2015. Charge filed by International Union of Operating Engineers, Local No. 428, AFL-CIO.
Georgia Auto Pawn (10-CA-132943 and 10-CA-142161; JD(ATL)-20-15) Atlanta, GA. Administrative Law Judge William Nelson Cates issued his decision on October 21, 2015. Charges filed by an individual.
Cy-Fair Volunteer Fire Department (16-CA-107721, et al.; JD(NY)-43-15) Houston, TX. Administrative Law Judge Joel P. Biblowitz issued his decision on October 22, 2015. Charges filed by individuals.
King Soopers, Inc. (27-CA-129598; JD(SF)-44-15) Denver, CO. Administrative Law Judge Amita Baman Tracy issued her decision on October 22, 2015. Charge filed by an individual.
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