Summary of NLRB Decisions for Week of September 12 - 16, 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
Hanson Cold Storage Co. of Indiana d/b/a Hanson Logistics (13-CA-178619; 364 NLRB No. 121) Hobart, IN, September 13, 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 International Brotherhood of Teamsters Local 142. Chairman Pearce and Members Miscimarra and McFerran participated.
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CVS Albany, LLC d/b/a CVS (29-CA-179095; 364 NLRB No. 122) Brooklyn, NY, September 15, 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 338, Retail, Wholesale and Department Store Union (RWDSU), United Food and Commercial Workers International Union (UFCW). Chairman Pearce and Members Miscimarra and McFerran participated.
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Tampa Electric Company, a wholly owned subsidiary of TECO Energy, Inc. d/b/a TECO Peoples Gas (12-CA-144359, 12-CA-152306 and 12-CA-167550; 364 NLRB No. 124) Sarasota, FL, September 16, 2016.
No exceptions were filed to the Administrative Law Judge’s findings on the merits that the Respondent (1) violated Section 8(a)(1) of the Act by interrogating an employee and promising him a wage increase to encourage that he abandon his union support; (2) violated Section 8(a)(5), (3), and (1) by withholding annual merit wage increases without first notifying the Union and giving it an opportunity to bargain and by attributing that unilateral change to Union representation; and (3) violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with wage increase information requested by the Union. Pursuant to the General Counsel’s exceptions, the Board amended the remedy and modified the judge’s recommended Order to provide the standard remedial language for the violations found by the judge.
Charges filed by International Brotherhood of Electrical Workers, Local 108, AFL-CIO. Administrative Law Judge Michael A. Rosas issued his decision on June 28, 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
Guardian Angels Health Services, Inc. d/b/a Guardian Angels Care Center (18-RC-171236) Elk River, MN, September 16, 2016. The Board panel majority 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 charge nurses were not supervisors under the Act. In denying review, Chairman Pearce and Member McFerran stated that in light of their finding that the charge nurses do not responsibly direct nursing assistants, due to their lack of accountability for the assistants’ performance, it is unnecessary to address the issue of whether they exercise independent judgment in directing the assistants. Member Miscimarra would have granted review of the Regional Director’s determination that the Employer’s charge nurses lack authority to direct responsibly exercising independent judgment. Petitioner—Service Employees International Union Healthcare Minnesota. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
BFI Waste Services, LLC d/b/a Allied Waste Services of Memphis (15-CA-174988) Memphis, TN, September 13, 2016. The Board denied the Employer’s petitions to revoke investigative subpoenas ad testificandum as untimely, noting that Section 11(1) of the Act and Sections 102.31(b) and 102.111 of the Board’s Rules and Regulations require that a petition to revoke an investigative subpoena must be filed within 5 days after the date of service of the subpoena. Moreover, the Board majority stated that, even assuming the petitions had been timely filed, they were lacking in merit, as the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Petitioner failed to establish any other legal basis for revoking the subpoena. Member Miscimarra stated that he would deny the petitions to revoke solely on the ground that they were untimely filed. Chairman Pearce and Members Miscimarra and McFerran participated.
Northeast Ohio College Preparatory School and I Can Schools, Joint Employers (08-CA-162121, 08-CA-164606 and 08-CA-168874) Cleveland, OH, September 13, 2016. The Board approved a formal settlement stipulation between the Respondents, the Charging Party, and the General Counsel, and specified actions the Respondents must take to comply with the Act. Charges filed by Cleveland Alliance of Charter Teachers and Staff, a/w Ohio Federation of Teachers, American Federation of Teachers, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Taste of the West, LLC d/b/a DQ Grill & Chill Restaurant (10-CA-173203) Brownsville, KY, September 14, 2016. The Board denied the Respondent’s motion for dismissal of the complaint, 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. Although Member Miscimarra agreed with the denial of the motion, he included a personal footnote referencing his position regarding the substance of the General Counsel’s opposition to such motions, as set forth in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110, slip op. at 3 (2015) (Member Miscimarra, concurring); and Leukemia and Lymphoma Society, 363 NLRB No. 124, slip op. at 2 (2016) (Member Miscimarra, dissenting). Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Hospital of Barstow, Inc. d/b/a Barstow Community Hospital (31-CA-090049 and 31-CA-096140) Barstow, CA, September 14, 2016. The Board denied the Respondent’s motion for reconsideration of the Board’s July 15, 2016 Supplemental Decision and Order, reported at 364 NLRB No. 52 (2016). Charge filed by California Nurses Association/ National Nurses Organizing Committee (CNA/NNOC), AFL-CIO. Chairman Pearce, Members Miscimarra and McFerran participated.
Interstate Distributor Co. (12-CA-172986) Riviera Beach, FL, September 16, 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. Member Miscimarra stated that he would grant the petition to revoke to the extent that the subpoena encompassed non-statutory employees because in his view, this disposition is more appropriate than the Region’s post-subpoena clarification to the employer on this point. In addition, Member Miscimarra would grant the petition to revoke as to those paragraphs seeking documents earlier than August 1, 2015. Finally, Member Miscimarra would grant the petition to revoke as to the request for all employee handbooks, except for those handbook provisions that reasonably relate to the termination at issue in the instant case. Chairman Pearce and Members Miscimarra and McFerran participated.
American Postal Workers Union (United States Postal Service) (05-CB-150339 and 05-CB-150853) various locations nationwide, September 16, 2016. The Board denied the Respondent’s Motion to Dismiss or for Summary Judgment. The Board found that the Respondent failed to establish that the complaint allegations should be deferred to the parties’ grievance and arbitration procedure pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971), and United Technologies Corp., 268 NLRB 557 (1984). In addition, the Board found that the Respondent failed to demonstrate that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charges filed by individuals. Chairman Pearce and Members Miscimarra and McFerran participated.
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Appellate Court Decisions
Consolidated Communications d/b/a Illinois Consolidated Telephone Company, Board Case No. 14-CA-094626 (reported at 360 NLRB No. 140) (D.C. Cir. decided September 13, 2016)
In a published opinion, the court upheld all but one of the Board’s unfair labor practices findings and enforced those portions of the Board’s order issued against this multi-state telecommunications company for actions taken at its facilities in Taylorsville and Mattoon, Illinois, where a unit of its employees are represented by International Brotherhood of Electrical Workers, Local 702. Specifically, the court remanded to the Board the issue of whether one employee was unlawfully discharged for striker misconduct.
In December 2012, while the parties were negotiating for a successor agreement, the Employer demanded concessions on pension issues and the employees went on strike. Management and non-unit employees continued to work and the Employer brought in replacement workers from other locations. After five days, the strike ended and the employees returned to work. During the next week, the Employer suspended one employee and discharged two others purportedly for violating its workplace-violence policy for actions taken during the strike. The Employer suspended a second employee claiming he lost the protection of the Act and could be disciplined for sexually harassing a female employee who crossed the picket line when he grabbed his crotch and made an obscene gesture at her. Applying the principles of Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984), enforced mem., 765 F.2d 148 (9th Cir. 1985), the Board (Chairman Pearce and Members Johnson and Schiffer) found that the suspensions and discharges violated Section 8(a)(3) and (1) of the Act because the employees either did not commit the alleged misconduct or any misconduct they did engage in was insufficiently egregious for them to forfeit the Act’s protections. The Board also found that the Employer’s unilateral elimination of the position of one returning striker, and the reassignment of her job duties, violated Section 8(a)(5) and (1) of the Act.
On review, the court upheld the bulk of Board’s findings as supported by the credited evidence. With regard to one discharge, however, the court held that, although the alleged misconduct occurred during protected strike activity—when the striker was driving on a public highway between picket sites and engaged in potentially reckless driving in relation to cars driven by non-striking employees she met in route—that conduct may reasonably have tended to coerce or intimidate non-striking employees under the standard of Clear Pine Mouldings. The court stated that that Board, by stressing the absence of violence, rather than addressing that question, had misapplied the standard. Accordingly, the court vacated that the Board’s finding of unlawful discharge and remanded for further proceedings.
The court’s opinion is here.
MasTec Advanced Technologies, and DirecTV, Inc., Board Case No. 12-CA-024979 (reported at 367 NLRB No. 17) (D.C. Cir. decided September 16, 2016)
In a published opinion, the court enforced the Board’s order issued against DirecTV, Inc., a nationwide provider of satellite television programming, and MasTec Advanced Technologies, an infrastructure company that installs and maintains satellite-television systems and has a contract relationship with DirecTV under which it dictates certain aspects of the terms and conditions of work for service technicians.
Among other unfair labor practices committed individually by MasTec, the Board (Chairman Liebman and Members Becker and Hayes) concluded that the companies violated Section 8(a)(1) of the Act by discharging, or causing to have discharged, 26 technicians at DirecTV’s Orlando, Florida office in 2006. Specifically, the Board found that the technicians engaged in protected concerted activity, which was directly related to and in furtherance of an ongoing labor dispute, when they appeared on a television news show to air complaints about management practices that they felt pressured them to push certain services on customers. In so finding, the Board concluded that the technicians’ participation in the newscast and their related statements were not so maliciously untrue or disloyal as to warrant removal of the Act’s protection under NLRB v. Local Union No. 1229, Int’l Bhd. of Elec. Workers, 346 U.S. 464, 472 (1953) (Jefferson Standard).
On review, the court (Judges Rogers and Srinivasan; Judge Brown dissenting) held that the Board had properly applied Jefferson Standard. In finding that the communications were not “maliciously untrue,” the court explained that it is not enough for employee statements to be false, inaccurate, or misleading in order to lose the Act’s protection—they must be made with knowledge of their falsity or with reckless disregard for their truth or falsity. Further, the court stated that the absence of a fully elaborated explanation of the policy that the technicians sought to change did not render their statements maliciously untruthful, and that the communications were protected because they fairly reflected the technicians’ personal experiences under that policy. The court also held that the technicians’ communications were not “so disloyal” as to forfeit protection, recognizing that “disloyalty alone is not enough.” Here, the court held that the communications retained protection because they were “primarily aimed to draw the public’s support in the dispute,” rather than “intended to … gratuitously caus[e] harm.” In reaching that conclusion, the court held that the communications were directly related to the technicians’ objections to an employment policy, sought to bring public attention to the nature of their grievances, and were made only after unsuccessfully attempting to resolve their grievance directly with their employer.
Judge Brown authored a dissenting opinion to state her view that the technicians’ communications during a television broadcast crossed the line from labor dispute to public disparagement.
The court’s opinion is here.
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Administrative Law Judge Decisions
SSA Pacific, Inc. (20-CA-151433, et al.; JD(SF)-32-16) Port of West Sacramento, CA. Administrative Law Judge Mara-Louise Anzalone issued her decision on September 13, 2016. Charges filed by individuals.
Select Temporaries, LLC (31-CA-157821; JD(SF)-35-16) Santa Barbara, CA. Administrative Law Judge Dickie Montemayor issued his decision on September 13, 2016. Charge filed by an individual.
Kankakee County Training Center for the Disabled, Inc. (25-CA-166729, et al.; JD(NY)-33-16) Kankakee, IL. Administrative Law Judge Joel P. Biblowitz issued his decision on September 14, 2016. Charges filed by American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL-CIO.
Hamilton Park Health Care Center (22-CA-161287 and 22-CA-161283; JD(NY)-31-16) Newark, NJ. Administrative Law Judge John T. Giannopoulos issued his decision on September 14, 2016. Charges filed by 1199, SEIU United Healthcare Workers East.
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