Summary of NLRB Decisions for Week of October 6 - 10, 2014
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
AT Wall Company (01-UC-081085; 361 NLRB No. 62) Warwick, RI, October 6, 2014.
In a Decision on Review, the Board reversed the Acting Regional Director and dismissed the petition for unit clarification. The Board concluded that the employees in the new classifications established by the Employer after it acquired the operations of another company, did not perform the same basic functions as the employees in the existing bargaining unit, and therefore the unit should not be clarified to include them. The Board also found that, because the employees in the new classifications had retained their separate group identity from the bargaining unit employees and did not share an overwhelming community of interest with them, they should not accreted into the unit. Petitioner— New England Joint Board, UFCW/RWDSU. Members Hirozawa, Johnson, and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
FedEx Freight, Inc. (04-RC-133959) Delanco, NJ, October 8, 2014. The Board denied the Employer’s Request for Review as not raising substantial issues regarding whether the Regional Director erred in directing an election in a unit consisting of the City and Road Drivers employed at the Employer’s Cinnaminson Terminal. Member Johnson agreed that the unit is appropriate, but would rely on the Board’s traditional community of interest analysis and he not express a view on the correctness of Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)(subsequent history omitted). Petitioner— International Brotherhood of Teamsters Local 107. Chairman Pearce and Members Johnson and Schiffer participated.
Paragon Systems, Inc. (05-RC-125014) Washington, DC, October 8, 2014. No exceptions having been filed to the Regional Director’s overruling of objections to a mail-ballot election held between April 30 and May 14, 2014, the Board certified that a majority of the ballots had been cast for Petitioner National Union of Protective Services Associations (NUPSA) and that it is the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit. Other Union involved—International Union, Security, Police and Fire Professionals of America (SPFPA).
Bradken, Inc. (19-RD-112390) Chehalis, WA, October 10, 2014. A Board panel majority consisting of Chairman Pearce and Member Hirozawa granted the Union’s Request for Review of the Regional Director’s Decision and Direction of Election. The majority found that the Request for Review raised substantial issues warranting review. In dissent, Member Miscimarra would have denied review because, in his view, the Regional Director correctly applied precedent to reinstate the decertification petition and direct an election. See TruServ Corp., 349 NLRB 227 (2007). The Board found it unnecessary to rule on the Petitioner’s request for an extension of time, nunc pro tunc, to file an opposition to the Union’s request for review because the Petitioner is entitled under Section 102.67(g) of the Board’s Rules and Regulations to file a brief on review. Petitioner—an individual. Union involved—International Association of Machinists and Aerospace Workers, District W24, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
OSF Healthcare System d/b/a St. Francis Hospital (30-CA-105167) Escanaba, MI, October 6, 2014. The Board remanded the case to the Regional Director for further appropriate action.
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Appellate Court Decisions
Gestamp South Carolina, LLC, Board Case No. 11-CA-022595 (reported at 357 NLRB No. 130) (4th Cir. decided October 8, 2014)
In this case involving a fledging organizing campaign at a BMW auto parts plant in Union, South Carolina, the court upheld the validity of Member Becker’s recess appointment, enforced the Board’s finding of a coercive threat, but held that the findings of two unlawful discharges and a suspension were not supported by substantial evidence.
The administrative law judge applied Wright Line to find that the employer violated Section 8(a)(3) and (1) by suspending and discharging the employee organizer who initially contacted the United Steelworkers, and by discharging a second employee who was a member of the organizing committee. The findings were based on the protected activities, timing, and animus, as well as knowledge imputed to the employer by statements the two employees made to managers. The judge rejected the employer’s argument that knowledge should not be imputed without evidence that the decision-makers themselves knew of the employees’ union activities. The judge stated that, even if that were the case, knowledge could be established by reasonable inference, and here it was reasonable to infer that other employees reported their activities to management based on the highly charged atmosphere and widespread sentiments voiced at the plant. The judge also found that a supervisor had coercively threatened an employee with discharge for his union activities, but dismissed an allegation of unlawful interrogation. On review, the Board (Chairman Pearce and Members Becker and Hayes; Hayes concurring in part) short-form adopted the judge’s recommended decision.
In 2013, the Fourth Circuit granted the employer’s petition for review, but did so solely on its conclusion that Member Becker’s recess appointment was unconstitutional, citing NLRB v. Enterprise Leasing Co. Southeast, 722 F.3d 609 (4th Cir. 2013), and NLRB v. New Vista Nursing and Rehabilitation, 719 F.3d 203 (3d Cir. 2013). The Board filed a petition for rehearing, which was denied. In March 2014, while Noel Canning was pending before the Supreme Court, the Board filed a petition for writ of certiorari. On July 1, the Supreme Court granted the petition, vacated the judgment, and remanded the case to the Fourth Circuit for further consideration in light of NLRB v. Noel Canning, 134 S. Ct. 2550 (June 26, 2014).
On remand, the Fourth Circuit ordered the parties to file supplemental briefs addressing the effect of Noel Canning. In its resulting decision, it concluded that Board Member Becker was validly appointed to the Board when it issued the order in this case. The Fourth Circuit noted that the Supreme Court in Noel Canning recognized that there were “petitions [pending] from decisions in other cases involving challenges to the appointment of Board Member Craig Becker,” as well as “similar challenges . . . pending in the Courts of Appeals.” The Supreme Court, the Fourth Circuit noted, thus “believed it was important to answer all three questions presented in the case,” including the proper “calculation of the length of a ‘recess,’” and concluded that a recess of more than 3 days but less than 10 days would be presumptively too short to fall within the Recess Appointments Clause. On that basis, the Fourth Circuit explained that “[i]n contrast to the recess appointments of the Board members at issue in Noel Canning . . . which took place over a three-day recess in January 2012, the recess appointment of Board Member Becker took place over a two-week recess in March 2010.” As additional support, the Court cited the similar holding of Teamsters Local Union No. 455 v. NLRB, 765 F.3d 1198 (2014) (10th Cir. Aug. 27, 2014) (holding that because Board Member Becker “was appointed during an intra-session recess exceeding two weeks . . . , there seems little reason to [now] doubt the validity of [his] appointment.”).
On the merits, the Fourth Circuit agreed with the employer’s argument that “because the [judge] did not find that the official who made the challenged employment decisions knew of the employees’ union activity, the [Board] erred in concluding that the General Counsel established a prima facie case” under Wright Line. Specifically, the Court stated that the General Counsel was “incorrect to the extent he suggests that supervisors’ knowledge of an employees’ union activity is automatically imputed to the employer,” citing Firestone Tire & Rubber Co. v. NLRB, 539 F.2d 1335, 1339 (4th Cir. 1976) (refusing to impute supervisors’ knowledge of employees’ union activities to decision-maker). Finally, rejecting the employer’s challenges to the judge’s credibility determinations, the Court held that the Board’s finding of a coercive threat was supported by substantial evidence.
The Court’s opinion may be found here.
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Administrative Law Judge Decisions
First Transit, Inc. (28-CA-107463; JD(SF)-50-14) Mesa and Tempe, AZ. Administrative Law Judge Jeffrey D. Wedekind issued his decision on October 9, 2014. Charges filed by Amalgamated Transit Union (ATU) Local No. 1433, AFL-CIO.
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