Summary of NLRB Decisions for Week of October 31 - November 4, 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
PAS LLC (13-CA-143764 and 13-CA-144968; 364 NLRB No. 139) Chicago, IL, October 31, 2016.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the consolidated complaint and compliance specification. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing to remit dues to the Union for the bargaining unit employees who specifically authorized such deductions as provided for in the parties’ collective-bargaining agreements and by unreasonably delaying in providing and failing to provide certain requested information. The Board ordered the Respondent to remit the dues with interest and to provide the information.
Charges filed by International Brotherhood of Teamsters Local Union No. 727. Chairman Pearce and Members Miscimarra and McFerran participated.
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Paragon Systems, Inc. (12-CA-105275 and 12-CA-105291; 364 NLRB No. 134) Tampa, FL, October 31, 2016.
The Board granted the General Counsel’s unopposed Motion to Withdraw Exceptions and Modify the Administrative Law Judge’s Findings and Conclusions of Law. The judge found several violations of Section 8(a)(5) and (1) under Alan Ritchey, Inc., 359 NLRB 396 (2012), a decision that was later retroactively nullified by the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). In Total Security Management, Inc., 364 NLRB No. 106 (2016), the Board reaffirmed the rule first announced in Alan Ritchey, but held that the rule would only be applied prospectively. Consistent with that holding, the Board dismissed the complaint allegation here that the Respondent violated Section 8(a)(5) and (1) by disciplining employees without first giving the Union an opportunity to bargain. In the absence of exceptions, the Board adopted the judge’s findings that the Respondent violated Section 8(a)(5) and (1) by: (1) requesting that unit employees sign Dispute Resolution Agreements, thereby bypassing the Union; (2) refusing to accept and discuss grievances filed by the Union; and (3) responding to the Union’s information requests in an untimely manner.
Charges filed by United Government Security Officers of America, Local 236. Chairman Pearce and Members Miscimarra and McFerran participated.
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Weavexx, LLC (15-CA-119783; 364 NLRB No. 141) Starkville, MS, November 2, 2016.
A Board majority (Members Miscimarra and McFerran) reversed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by making unilateral changes to the employees’ pay cycle and payday without offering the Union notice and an opportunity to bargain. The majority found that under Spielberg Mfg. Co., 112 NLRB 1080 (1955) and Olin Corp., 268 NLRB 573, (1984), the judge was required to defer the charge to an arbitrator’s prior decision because the arbitrator found that the management-rights clause in the parties’ collective-bargaining agreement privileged the Respondent to make the unilateral changes.
Chairman Pearce dissented, finding that deferral was unwarranted and agreeing with the judge’s finding that the Respondent violated Section 8(a)(5) and (1). The Chairman found that the arbitrator failed to consider the unfair labor practice issue because the arbitrator focused exclusively on the Union’s past practice argument and did not analyze whether or not the collective-bargaining agreement privileged the Respondent’s actions.
Charge filed by Teamsters Local Union 984. Administrative Law Judge William Nelson Cates issued his decision on August 6, 2015. Chairman Pearce and Members Miscimarra and McFerran participated.
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Empire Janitorial Sales & Service, LLC (15-CA-146938; 364 NLRB No. 138) Metairie, LA, November 3, 2016.
The Board affirmed the Administrative Law Judge’s conclusion that, as a legal successor, the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.
Charge filed by United Labor Unions, Local 100. Administrative Law Judge Geoffrey Carter issued his decision on May 16, 2016. Chairman Pearce and Members Miscimarra and McFerran participated.
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Trump Ruffin Commercial, LLC d/b/a Trump International Hotel Las Vegas (28-CA-181475; 364 NLRB No. 143) Las Vegas, NV, November 3, 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 Local Joint Executive Board of Las Vegas, affiliated with UNITE HERE International Union. Chairman Pearce and Members Miscimarra and McFerran participated.
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Andronaco, Inc. d/b/a Andronaco Industries (07-CA-160286; 364 NLRB No. 142) Kentwood, MI, November 4, 2016.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by unlawfully terminating the Charging Party. The majority (Members Miscimarra and McFerran), in adopting the violation, relied only on the judge’s findings that the Respondent terminated the Charging Party because it believed she engaged in protected concerted activity by assisting a former coworker in his defense of an employment-related lawsuit; the majority thus found it unnecessary to pass on whether the Charging Party actually engaged in protected concerted activity. Chairman Pearce would adopt the judge’s additional finding that the Charging Party actually engaged in protected concerted activity. Member Miscimarra noted that, unlike his colleagues, he would not adopt the judge’s finding that the Respondent engaged in an additional 8(a)(1) violation by telling the Charging Party that it was terminating her for disloyalty because she engaged in protected concerted activity, as he would find that conduct constituted part of the “res gestae” of the unlawful termination.
Charge filed by an individual. Administrative Law Judge Sharon Levinson Steckler issued her decision on April 20, 2016. Chairman Pearce and Members Miscimarra and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Transdev Services, Inc. (05-RC-137335) Baltimore, MD, October 31, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Certification of Representative in which the Regional Director found that the Petitioner’s showing of interest at the time of the election was not stale and that the Petitioner’s misconduct did not interfere with employees’ free and uncoerced choice of representative. Member Miscimarra, while adhering to the views expressed in his dissent in Veolia Transportation Services, 363 NLRB No. 188 (2016), and while maintaining his position that the lead road supervisors and road supervisors are statutory supervisors, agreed with his colleagues that the Employer’s Request for Review did not raise substantial issues warranting review. Petitioner – Amalgamated Transit Union Local 689, associated with Amalgamated Transit Union, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
E.W. Howell Co. LLC (29-RC-177927) Plainview, NY, November 3, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s Report on Objections and Certification of Representative, in which the Regional Director found that where only one member of a two-member unit voted, this single vote was sufficient to certify the election results. The Board treated the Report on Objections as a Decision on Objections pursuant to 79 Fed. Reg. 74412 fn. 464 (Dec. 15, 2014). Petitioner – Northeast Regional Council of Carpenters. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
United States Postal Service (07-CA-146385) Detroit, MI, October 31, 2016. No exceptions having been filed to the September 19, 2016 decision of Administrative Law Judge Christine E. Dibble’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 Branch 232, National Association of Letter Carriers, AFL-CIO.
Nissan North America, Inc. (15-CA-171184, 15-CA-175295, 15-CA-171197, and 15-CA-175297) Canton, MS, November 2, 2016. The Board granted Holmes Community College’s petition to revoke an investigative subpoena duces tecum, without prejudice to the Regional Director’s issuance of another subpoena to Holmes seeking the same information in the event that the Regional Director determines that the information is not available from the parties to this proceeding. The Board noted the unique circumstances of this case and considered the subpoena in this context, observing that the same information at issue here has been requested from the Charged Parties, who do not face the potential burden described by Holmes of complying with the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232(g). Charges filed by International Union, Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Pharmedium Services, LLC (15-CA-143030, 15-CA-144416, and 15-CA-144181) Memphis, TN, November 2, 2016. The Board denied the Employer’s petition to revoke or revoke in part and/or modify 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, and that the Employer failed to establish any other legal basis for revoking the subpoena. The Board found that the disposition of the petition is consistent with existing Board law, which finds subpoenas ad testificandum identifying the case name and number to be sufficiently particular. Member Miscimarra agreed that the Region described with sufficient particularity the evidence sought, based on record evidence demonstrating that the Region attached to the subpoena a copy of the charges, and that the Region indicated in a cover letter to the Employer’s attorney the general subject areas that would be inquired about. However, in his view, the subpoena itself should describe with reasonable particularity the general topics that would be explored. Charges filed by individuals. Chairman Pearce and Members Miscimarra and McFerran participated.
American Postal Workers Union, Dallas Area Local (United States Postal Service) (16-CB-153326) Dallas, TX, November 2, 2016. No exceptions having been filed to the September 21, 2016 decision of Administrative Law Judge Joel P. Biblowitz’ finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint. Charge filed by an individual.
Brookhaven Medical, Inc. and Future Matrix, Inc., as Joint and/or Single Employers (15-CA-170531 and 15-CA-178256) Atlanta, GA, November 3, 2016. The Board denied the Employer’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, and that the Employer failed to establish any other legal basis for revoking the subpoena. Member Miscimarra agreed that the petition to revoke should be denied because the Employers failed to raise any meritorious grounds for revocation. In his view, however, the subpoena, which only identified the case name and number, was deficient because it failed to state with sufficient particularity the evidence being sought. Nevertheless, he concurred in the denial in the absence of any objection to the subpoena on this basis. Charges filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
United Site Services of California, Inc. (20-CA-139280 and 20-CA-149509) Benicia, CA, November 3, 2016. The Board remanded this case to the judge who had found that the Respondent violated Section 8(a)(3) when it refused to reinstate 21 striking employees, under the theory that the Respondent had an “independent unlawful purpose,” within the meaning of Hot Shoppes, Inc., 146 NLRB 802 (1964), in permanently replacing the economic strikers. The Board directed the judge to: further consider the refusal to reinstate allegation under the recent decision in American Baptist Homes of the West d/b/a Piedmont Gardens, 364 NLRB No. 13 (2016); make findings of fact and conclusions of law on four additional 8(a)(3) complaint allegations on which the judge had not passed; and, based on his findings on all of the allegations, evaluate whether the Respondent violated Section 8(a)(5) by withdrawing recognition from the Union. Charges filed by Teamsters Local 135, IBT. Administrative Law Judge Dickie Montemayor issued his decision on March 17, 2016. Chairman Pearce and Members Miscimarra and McFerran participated.
FDR Services Corp. (22-CA-177311) Paterson, NJ, November 3, 2016. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by Laundry, Distribution and Food Service Joint Board, Workers United, SEIU. Chairman Pearce and Members Miscimarra and McFerran participated.
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Appellate Court Decisions
NCR Corporation, Board Case No. 01-CA-150154 (reported at 362 NLRB No. 146) (D.C. Cir. decided November 1, 2016)
In a published opinion, the court enforced the Board’s bargaining order issued in this test-of-certification case against this nationwide provider of technological services for refusing to bargain after its customer engineers employed in Massachusetts and Rhode Island voted in a mail-ballot election in August 2014 to be represented by International Brotherhood of Electrical Workers Local 2222.
In the underlying representation case, the parties’ stipulated election agreement provided for a mail-ballot election among the 41 employees, and that “voters must return their mail ballots so that they will be received . . . by close of business on August 4, 2014,” for counting the next morning. Those specifics were repeated in a notice to employees. On August 5, the Board agent opened and counted the 31 ballots received, which showed that the Union won the election, 17 to 14. Two days later, 7 more ballots arrived. The Regional Director denied the Employer’s request that the late ballots be opened and counted, which would have required a deviation from the Board’s established procedures. The Board later denied the Employer’s Request for Review of that decision and certified the Union.
On review, the court held that the Board did not abuse its discretion in overruling the Employer’s election objections, and rejected the Employer’s contentions, noting that they stemmed from misreadings of the parties’ stipulated election agreement, the notice to employees, and Board precedent. The court explained that “Board precedent shows that while it has sometimes counted ballots that arrive after a due date, it has consistently refused to count ballots that arrived after the count.” To the extent that the Employer’s contentions reflected a disagreement with that Board policy, the court found the policy to be consistent with precedent and reasonably “based on the balancing of conflicting interests in affording employees the broadest participation in election proceedings while still protecting against delay and uncertainty.” Absent an election irregularity, or some evidence of misconduct, the court held that the Employer had not met its heavy burden of showing a basis to overturn the election.
The court’s opinion is here.
Employers Resource, Board Case No. 31-CA-097189 (reported at 363 NLRB No. 59) (5th Cir. decided November 1, 2016)
In an unpublished per curiam opinion, the court granted the Employer’s petition for review after briefing, but without oral argument. The court held that it was bound by its prior decisions in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), petition for reh’g en banc denied (May 13, 2014), and D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), petition for reh’g en banc denied (April 16, 2014). Therefore, the court denied enforcement of the Board’s order that found the Employer had violated Section 8(a)(1) of the Act by maintaining a mandatory arbitration agreement requiring employees to submit any claim against the Employer for adjudication exclusively by binding arbitration, and by filing a motion to compel arbitration in a wage and hour suit filed by employees.
The court’s opinion is here.
Palmetto Prince George Operating, LLC d/b/a Prince George Healthcare Center, Board Case No. 10-CA-154373 (reported at 363 NLRB No. 5) (4th Cir. decided November 1, 2016)
In a published opinion that issued in this test-of-certification case, the court enforced the Board’s bargaining order against this operator of a 148-bed nursing home in Georgetown, South Carolina, after its nurses voted in a March 2015 election to be represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union. In the underlying representation case, the Board adopted the Regional Director’s finding that the Employer had not shown, as it claimed, that the nurses were supervisors within the meaning of Section 2(11) of the Act because they had been given the authority to discipline or responsibly direct the work of certified nursing assistants (CNAs) using independent judgment. After the Board certified the Union, the Employer refused to bargain to seek review of the certification.
On review, the court upheld the Board’s application of the statutory term “independent judgment” articulated in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), following the Supreme Court’s decision in NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). Regarding the Employer’s contention that Fourth Circuit cases issued prior to Kentucky River and Oakwood should govern, the court explained that it is settled that “an agency construction entitled to deference supersedes a prior judicial construction of an ambiguous statute,” and the Board was owed such deference on the term “independent judgment,” which Kentucky River had held was ambiguous. Thus, the court concluded: “To the extent our pre-Oakwood cases accord with those standards, they remain instructive,” but “the Board’s current standards supersede our prior cases to the extent the two conflict.”
Regarding the authority to discipline, the court held that the record indicated that the Employer had given its nurses only the authority provided every other employee—including the CNAs—to report rule violations to managers. The court therefore concluded that the Employer had not offered evidence sufficient to establish that the nurses used independent judgment when disciplining CNAs. Regarding responsible direction, the court held that the Employer’s extensive policies on all matters covering “virtually all CNA duties,” left any direction by the nurses as little more than making sure CNAs follow written instructions. That suggested, the court stated, that the nurses served “merely as conduits for these instructions,” and did not exercise independent judgment in directing the work of CNAs. Accordingly, the court concluded that “abundant evidence” supported the Board’s finding that the Employer failed to carry its burden of proving supervisory status, and enforced the Board’s order.
The court’s opinion is here.
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Administrative Law Judge Decisions
Village Red Restaurant Corp. d/b/a Waverly Restaurant (02-CA-162509 and 02-CA-166015; JD(NY)-42-16) New York, NY. Administrative Law Judge Steven Davis issued his decision on October 31, 2016. Charges filed by individuals.
Hendrickson USA, LLC (09-CA-159641; JD-103-16) Lebanon, KY. Administrative Law Judge Donna N. Dawson issued her decision on October 31, 2016. Charge filed by an individual.
A.S.V., Inc. a/k/a Terex (18-CA-131987, 18-CA-140338, and 18-RC-128308; JD-35-15) Grand Rapids, MN, November 1, 2016. Errata to Administrative Law Judge David I. Goldman’s June 9, 2015 decision. Errata Amended Decision.
Northrop Grumman Systems Corporation (31-CA-167294; JD(SF)-41-16) Redondo Beach, CA. Administrative Law Judge Eleanor Laws issued her decision on November 2, 2016. Charge filed by an individual.
Village Red Restaurant Corp. d/b/a Waverly Restaurant (02-CA-162509 and 02-CA-166015; JD(NY)-42-16) New York, NY. Erratum to Administrative Law Judge Steven Davis’s October 31, 2016 decision. Erratum Amended Decision.
M.D. Miller Trucking & Topsoil, Inc. (13-CA-104166; JD(SF)-42-16) Chicago, IL. Administrative Law Judge John T. Giannopoulos issued his supplemental decision on November 4, 2016. Charge filed by General Teamsters Local Union No. 179, affiliated with the International Brotherhood of Teamsters.
W.B. Mason Co., Inc. (01-CA-161120, et al.; JD-105-16) Boston, MA. Administrative Law Judge Mark Carissimi issued his decision on November 4, 2016. Charges filed by International Brotherhood of Teamsters, Local 25.
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