Summary of NLRB Decisions for Week of October 3 - 7, 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
Teamsters Local Union No. 455 (Cargill Meat Solutions Corporation) (27-CB-168294; 364 NLRB No. 127) Fort Morgan, CO, October 4, 2016.
The Board granted the General Counsel’s Motion for Default Judgment on the ground that the Respondent failed to file a timely answer to the complaint. The Board noted that the Respondent did not file an answer by either of the deadlines the Region provided, nor did it 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 Board found that the unsworn assertions that the Respondent provided in its opposition did not demonstrate good cause for its failure to file a timely answer, rejecting arguments that the date for the filing of an answer was overlooked because of an oversight by legal counsel and the Region’s June 8 warning letter inadvertently bypassed the Respondent’s legal proceedings suspense system. Accordingly, the Board deemed the allegations of the complaint admitted, and found that the Respondent restrained and coerced employees in the exercise of their Section 7 rights in violation of Section 8(b)(1)(A).
Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
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Kelaye Concrete, LLC (19-CA-168201, 19-CA-171176, and 19-CA-171823; 364 NLRB No. 123) Boring, OR, October 5, 2016. Errata to Board’s September 19, 2016 Decision and Order. Errata Amended Decision.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
AAA Transportation/Yellow Cab (28-RC-106979) Tucson, AZ, October 3, 2016. No exceptions having been filed to the hearing officer’s report recommending overruling an objection to an election held on November 17, 2015, the Board adopted the hearing officer’s finding and recommendation and certified the election results (Tucson Hacks Association is not the exclusive collective-bargaining representative of the petitioned-for employees). Petitioner – Tucson Hacks Association.
Transdev Services, Inc. d/b/a Nassau Inter-County Express (29-RC-167445) Garden City, NY, October 3, 2016. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order on the ground that it raised no issues warranting review. The Regional Director had dismissed the petition, finding that the petitioned-for service quality managers (except for the scheduler) and assistant maintenance managers (except for the floor trainer) are statutory supervisors, and that the parts manager is a managerial employee. In denying review, Member Miscimarra additionally noted that finding the Employer’s service quality managers and assistant maintenance managers to be statutory supervisors is consistent with the three “common sense” factors set forth in his dissenting opinion in Buchanan Marine, L.P., 363 NLRB No. 58, slip op. at 10 (2015). Chairman Pearce would grant review to consider whether, consistent with Veolia Transportation Services, Inc., 363 NLRB No. 188 (2016), and Veolia Transportation Services, 363 NLRB No. 98 (2016), service quality managers are statutory supervisors based on their role in discipline, and would deny review in all other respects. Petitioner – Transport Workers Union of Greater New York, Local 100, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Matson Terminals, Inc. (20-RC-173297) Honolulu, HI, October 7, 2016. A Board majority consisting of Chairman Pearce and Member McFerran denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, in which the Regional Director found that the Employer’s supervisors and senior supervisors were not supervisors under the Act. Member Miscimarra would have granted review to apply the three-factor test he set forth in his dissent in Buchanan Marine, 363 NLRB No. 58 (2015), as to whether the petitioned-for supervisors and senior supervisors possess the authority to responsibly direct, reward, discipline, or adjust grievances. Petitioner – Hawaii Teamsters and Allied Workers Local 996. Chairman Pearce and Members Miscimarra and McFerran participated.
Riverhead Charter School (29-RD-132061) Riverhead, NY, October 7, 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 Sec. 2(2) of the Act. A Board majority consisting of 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) (“Hawkins County”) and found his reasoning consistent with the Board’s recent decision in Hyde Leadership Charter School, 364 NLRB No. 88 (2016). The majority also rejected the Union’s and amici’s arguments that the Board should, pursuant to Sec. 14(c)(1), discretionarily decline to assert jurisdiction over the Employer because education is a matter of local and state concern, and the state legislature intended to treat charter schools as public schools and political subdivisions. Member Miscimarra dissented and would grant the Union’s Request for Review and dismiss the petition. Member Miscimarra 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. Petitioners – an individual and Riverhead Charter School Employees’ Association, New York State United Teachers AFT, NEA, AFL-CIO, Local #22170. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
High Flying Foods (21-CA-135596) San Diego, CA, September 30, 2016. No exceptions having been filed to the May 19, 2015 decision of Administrative Law Judge Charles J. Muhl’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order. Charge filed by Unite Here! Local 30.
Sheffield Barbers, LLC (05-CA-162795 and 05-CA-167229) Hampton, VA, October 3, 2016. No exceptions having been filed to the August 9, 2016 decision of Administrative Law Judge Geoffrey Carter’s finding that Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order. Charges filed by an individual and International Brotherhood of Teamsters Local Union No. 822.
Metalsa Structural Products, Inc. (25-CA-165965) Owensboro, KY, October 7, 2016. No exceptions having been filed to the August 26, 2016 decision of Administrative Law Judge Charles J. Muhl’s finding that Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC.
UPS Freight (21-CA-174103) Commerce, CA, October 7, 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 an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
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Appellate Court Decisions
Mercedes-Benz U.S. International, Inc., Board Case No. 10-CA-112406 (reported at 361 NLRB No. 120 (11th Cir. decided October 3, 2016)
In a published opinion, the court enforced in part, and remanded in part, the Board’s order issued against this automobile manufacturer in Vance, Alabama, for unfair labor practice violations committed during an organizing campaign by the International Union, UAW. The Board (Chairman Pearce and Members Hirozawa and Johnson) found that the Employer violated Section 8(a)(1) by prohibiting employees on non-working time from distributing literature in mixed-use areas (a team center and an atrium), and by maintaining an overly broad solicitation and distribution rule.
In its handbook, the Employer’s rule prohibited “solicitation and/or distribution of non-work materials by [employees] during work time or in working areas.” At the plant, there are 19 team centers located near the assembly line that serve as congregation points at the beginning of each shift, break areas for the employees during shifts, and offices for supervisors and other company officials who have business in the vicinity. As the record evidence showed, the team center at issue was equipped with picnic tables, refrigerators, and microwave ovens, as well as desks, printers, filing cabinets, and other office equipment. The atrium is a large area where employees enter and exit the plant which houses a security kiosk, medical and vehicle-leasing offices, and a retail store. In June 2013, an employee organizer went to his team center before his shift and passed out prounion flyers. He was told by a manager that he could not pass out any literature in his team center while the assembly line was moving. In response, he and other off-duty employees later distributed flyers to employees entering the atrium prior to their shift, and were told they were prohibited from doing so there as well.
The Board found that the solicitation and distribution rule was unlawful because employees would reasonably construe it as prohibiting solicitation in work areas even when all involved employees were on non-working time. On the rights of employees to distribute flyers, the Board found that the team center at issue was a mixed-use area because, as the record evidence demonstrated, it was intended for, and regularly accommodated, both non-work and work activities. Regarding the atrium, the Board similarly found it to be a mixed-use area. Thus, the Board concluded that the Employer unlawfully prohibited distribution of union literature in both locations, and in its order, required the Employer to cease and desist from prohibiting distribution in the atrium and the 19 team centers.
The court (Circuit Judges Martin, Anderson, and Black) held that the Board’s unlawful-rule finding was supported by substantial evidence, and that the Employer had waived any defense to the unlawful prohibition on distribution in the atrium. The court enforced those portions of the Board’s order. However, on the issue of the mixed-use status of the team center, the court (Circuit Judge Martin dissenting) reviewed a variety of cases in the area and determined that there was a distinction between “converted” and “permanent” mixed-use areas that the Board had not considered. Regarding the Board’s cease-and-desist order, the panel unanimously held that, given that the record evidence only ran to the single team center at issue, the order was overbroad in covering all 19 team centers. Therefore, the court remanded the issue of the mixed-use status of the team centers with instructions that the Board consider whether they are “converted mixed-use areas during the pre-shift period,” and if so, to issue a cease-and-desist order narrowly tailored to its findings.
On the issue of the mixed-use analysis applied by the majority, Circuit Judge Martin dissented, stating: “The Board does not impose this distinction on its fact finders, and I believe it exceeds our institutional role to create these categories and require the Board to apply them."
The court’s opinion is here.
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Administrative Law Judge Decisions
Alternative Community Living, Inc. d/b/a New Passages Behavioral Health and Rehabilitation Services (07-CA-158059; JD-97-16) Pontiac, MI, October 3, 2016. Errata to September 29, 2016 decision of Administrative Law Judge Christine E. Dibble. Errata Amended Decision.
BHC Northwest Psychiatric Hospital, LLC d/b/a Brooke Glen Behavioral Hospital (04-CA-164465 and 04-CA-174166; JD-98-16) Fort Washington, PA. Administrative Law Judge Robert A. Giannasi issued his decision on October 5, 2016. Charges filed by Brooke Glen Nurses Association, Pennsylvania Association of Staff Nurses and Allied Professionals.
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