Summary of NLRB Decisions for Week of October 24 - 28, 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
Trinity Technology Group, Inc. (12-CA-165643; 364 NLRB No. 133) Manassas, VA, October 25, 2016.
The Board denied the Respondent’s motion for summary judgment without prejudice to the Respondent’s right to renew its arguments to the administrative law judge and before the Board on any exceptions that may be filed to the judge’s decision, if appropriate, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.
Concurring, Member Miscimarra agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), the General Counsel described, in reasonably concrete terms, why, based on material facts that are genuinely in dispute, a hearing is required. Nonetheless, he expressed concern that the General Counsel’s opposition inappropriately appears to presume that the Board will deny motions for summary judgment and conclude that a hearing is necessary merely because a respondent has denied liability, or merely because the General Counsel disagrees with the respondent’s version of events. Noting that he does not prejudge whether the employee in this case engaged in protected concerted conduct, he stated that the absence of “evidence” supporting the General Counsel’s legal theory would be a reason that summary judgment should be granted, not denied, and the General Counsel’s disagreement does not, standing alone, mean that summary judgment should be denied.
Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
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DTG Operations, Inc. (31-RC-175375; 364 NLRB No. 136) Inglewood, CA, October 26, 2016.
The Board granted the Petitioner’s request for review as it raised substantial issues with regard to whether the Regional Director correctly found that the Employer’s Exit Gate Agents are statutory guards pursuant to Section 9(b)(3) of the Act. Member Miscimarra, dissenting, would have denied review on the basis that the Exit Gate Agents enforce rules to protect the Employer’s property; specifically, rental cars.
Petitioner – Communications Workers of America, AFL-CIO, CLC, Local 9003. Chairman Pearce and Members Miscimarra and McFerran participated.
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Thermico, Inc. and Associate Resources, Inc., a Single Employer (07-CA-170484; 364 NLRB No. 135) Midland, MI, October 26, 2016.
The Board granted the General Counsel’s motion for default judgment pursuant to the informal settlement agreement’s terms regarding noncompliance. The Board found the violations alleged in the underlying complaint and ordered a full remedy. Based on the Respondent’s breach of the informal settlement and its refusal to commence bargaining during the period of more than a year since the Union’s certification, the Board granted the General Counsel’s request for the imposition of a bargaining schedule. Member Miscimarra dissented regarding the imposition of a bargaining schedule, finding the Respondent’s conduct insufficiently egregious or pervasive to warrant that remedy.
Charge filed by Local 47, International Association of Heat and Frost Insulators and Allied Workers (AWIU), AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
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The Ardit Company (09-CA-089159 and 09-CA-107434; 364 NLRB No. 130) Washington, DC, October 27, 2016.
The Board unanimously found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide requested relevant unit information to the Union. The Board majority (Chairman Pearce and Member McFerran) further found that the Respondent violated Section 8(a)(5) and (1) when it unilaterally implemented changes to unit employees’ terms and conditions of employment. The Respondent had announced that it would implement these changes when its Section 8(f) pre-hire agreement with the Union expired. After the Respondent announced the changes, but before it implemented them, the Union petitioned for a representation election under Section 9(a). The election was held before the Respondent implemented the previously announced changes, but the Union was not yet certified due to pending challenged votes. The Union was eventually certified as exclusive representative of the unit employees. In an issue of first impression, the Board majority found that an employer whose employees are represented by a union under a Section 8(f) pre-hire agreement may not implement previously announced changes in unit employees’ terms and conditions of employment upon that agreement’s expiration if the employees have subsequently selected the Union as their exclusive bargaining representative, even if the Union’s certification was still pending at the time of the implemented changes. The same Board majority also found that the Respondent unlawfully laid-off employees without first notifying or bargaining with the Union.
Dissenting in part, Member Miscimarra found that the Respondent was required by Section 8(a)(5) to implement any previously announced changes after the election. He also found that the layoffs were consistent with the Respondent’s past practice, and therefore were not unilateral changes.
Charges filed by the International Union of Bricklayers and Allied Craftworkers, Ohio-Kentucky Administrative District Council, Local Union No. 18. Chairman Pearce and Members Miscimarra and McFerran participated.
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St. Regis Enterprises, LLC (07-CA-170591; 364 NLRB No. 137) Detroit, MI, October 27, 2016.
The Board majority (Chairman Pearce and Member McFerran) granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file a timely answer to the complaint and failure to establish good cause to excuse that failure. The majority noted that the Respondent did not file an answer by any of the three deadlines the Region provided, nor did it promptly request an extension of time to file an answer. When the Respondent filed an untimely answer, it did not comply with the relevant provisions of the Board’s Rules and Regulations for doing so. Furthermore, the majority found that the assertions that the Respondent provided did not demonstrate good cause for its failure to file a timely answer, rejecting arguments that the Respondent had difficulties in securing experienced counsel, that an additional extension of time was warranted, and that the Federal Rules of Civil Procedure support a resolution of this case based on a determination of the merits. Accordingly, the majority deemed the allegations of the complaint admitted, and found that the Respondent violated Section 8(a)(3) and (1) by discharging an employee, and Section 8(a)(1) by interrogating the same employee and maintaining several unlawfully overbroad employee work rules.
Dissenting, Member Miscimarra would deny the motion for default judgment because the Respondent’s late filing of its answer involved excusable neglect. In addition, he observed that the Board had previously allowed a late filing by the General Counsel in a different case and should endeavor to treat requests for leniency in a consistent manner.
Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Evergreen Charter School (29-RD-175250) Hempstead, New York, October 27, 2016. The Board denied the Union’s request for review of the Regional Director’s direction of election holding that the Employer’s charter school is not exempt as a political subdivision under Section 2(2) of the Act. The Board majority (Chairman Pearce and Member McFerran) found that the Regional Director correctly applied the test in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971) and that his reasoning was consistent with the Board’s recent decision in Hyde Leadership Charter School, 364 NLRB No. 88 (2016). They also found no merit in the Union’s arguments that the Board should, pursuant to Section 14(c)(1) of the Act, discretionarily decline to assert jurisdiction over the Employer.
Dissenting, Member Miscimarra would grant the Union’s Request for Review and dismiss the petition. He would find the Employer to be a political subdivision of the State of New York exempt from the Board’s jurisdiction pursuant to Section 2(2), and would also decline jurisdiction over the Employer, and over charter schools as a class, pursuant to Section 14(c)(1) for the reasons fully explained in his dissenting opinions in The Pennsylvania Virtual Charter School, 364 NLRB No. 87, slip op. at 11-18 (2016), and Hyde Leadership Charter School, supra, slip op. at 9-16. Petitioner – an individual. Union – Evergreen Charter Staff Association, NYSUT, AFT. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
Children’s Law Center of Los Angeles (21-CA-165280) Monterey Park, CA, October 25, 2016. The Board granted the Union’s request for special permission to appeal the Administrative Law Judge’s order approving an informal settlement agreement, but denied the appeal on the merits. The Board found that the Union failed to establish that the judge abused his discretion in approving the settlement. Charge filed by Service Employees International Union, Local 721. Chairman Pearce and Members Miscimarra and McFerran participated.
Chubb Executive Risk, Inc. d/b/a Chubb Specialty Insurance, a subsidiary of Federal Insurance Company and Kelly Services Global, LLC, joint employers (01-CA-173077) Simsbury, CT, October 28, 2016. The Board denied Chubb Executive Risk’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 Petitioner failed to establish any other legal basis for revoking the subpoena. The Board evaluated the subpoena in light of the Region’s clarifications and limitations. Member Miscimarra noted that he would grant the petition to revoke as to requests for employee handbooks or personnel handbooks, except for those handbook provisions that reasonably relate to the charge allegations regarding unlawful discipline and joint employers. Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Chubb Executive Risk, Inc. d/b/a Chubb Specialty Insurance, a subsidiary of Federal Insurance Company and Kelly Services Global, LLC, joint employers (01-CA-173077) Simsbury, CT, October 28, 2016. The Board denied Kelly Services Global, LLC’s petitions to revoke an investigative subpoena duces tecum as untimely and lacking in merit even assuming they were timely filed, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and Kelly failed to establish any other legal basis for revoking the subpoena. The Board evaluated the subpoena in light of the Region’s clarifications and limitations. Member Miscimarra noted that he would deny the petitions to revoke solely on the ground that they were untimely filed. Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Nissan North America, Inc. (15-CA-171184, 15-CA-175295, 15-CA-171197 and 15-CA-175297) Canton, MS, October 28, 2016. The Board denied Kelly Services, Inc.’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 Kelly failed to establish any other legal basis for revoking the subpoena. Member Miscimarra noted that he would grant the petition to revoke as to requests for employee handbooks and guides, except for those handbook provisions that reasonably relate to the charge allegations regarding unlawfully overbroad policies. Charges filed by International Union, Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Nissan North America, Inc. (15-CA-171184, 15-CA-175295, 15-CA-171197 and 15-CA-175297) Canton, MS, October 28, 2016. The Board denied Nissan North America, Inc.’s petition to revoke an investigative subpoena duces tecum (and the Petitioner’s request to strike the Charging Party’s opposition to the petition to revoke), as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and Nissan failed to establish any other legal basis for revoking the subpoena. Member Miscimarra noted that he would grant the petition to revoke as to requests for employee handbooks and guides, except for those handbook provisions that reasonably relate to the charge allegations regarding unlawfully overbroad policies. Charges filed by International Union, Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), AFL-CIO. Chairman Pearce and Members Miscimarra 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
Connecticut Light and Power Company d/b/a Eversource Energy (01-CA-169804; JD(NY)-41-16) Hartford, CT. Administrative Law Judge Raymond P. Green issued his decision on October 25, 2016. Charge filed by International Brotherhood of Electrical Workers, Local 420.
Cayuga Medical Center at Ithaca, Inc. (03-CA-156375; JD-104-16) Ithaca, NY. Administrative Law Judge David I. Goldman issued his decision on October 28, 2016. Charges filed by 1199 SEIU United Healthcare Workers East.
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