Summary of NLRB Decisions for Week of September 19 - 23, 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
Kelaye Concrete LLCV (19-CA-168201, 19-CA-171176 and 19-CA-171823; 364 NLRB No. 123) Boring, OR, September 19, 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. The Board found that the Respondent violated Section 8(a)(1) by: (1) threatening employees that they would not be rehired if they were Union supporters, and that the Respondent was seeking to go nonunion; (2) coercively interrogating employees about their union activities, status, and/or support; and (3) prohibiting employees from talking about the Union or benefits during work. The Board also found that the Respondent violated Section 8(a)(3) and/or (5) by discharging and/or constructively discharging seven employees. Finally, the Board found that the Respondent violated Section 8(a)(5) by failing to continue in effect all the terms and conditions of employment provided for in the collective-bargaining agreement between the Union and individual members of the Associated General Contractors of Washington.
Charges filed by Cement Masons Local 528 and Operative Plasterers' and Cement Masons' Union, Local 528, affiliated with Operative Plasterers' and Cement Masons' International Association, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
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Pruitthealth-Virginia Park, LLC (10-CA-173537; 364 NLRB No. 125) Atlanta, GA, September 22, 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 either were not or could not have been litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union.
Charge filed by Retail, Wholesale and Department Store Union/UFCW Southeast Council. Chairman Pearce and Members Miscimarra and McFerran participated.
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International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its territories and Canada Local No. 151 (SMG and The Freeman Companies d/b/a Freeman Decorating Services) (14-CB-101524; 364 NLRB No. 89) Lincoln, NE, September 22, 2016. Correction to the August 26, 2016 Board Decision and Order. Errata. Amended Decision.
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Laborers’ International Union of North America, Local 860 (Ballast Construction, Inc.) (08-CD-10313, 08-CD-103657 and 08-CD-103660; 364 NLRB No. 126) Euclid, OH, September 23, 2016.
In this jurisdictional dispute between Operating Engineers Local 18 and Laborers’ Locals 860 and 310 (Laborers), the Board, under Section 10(k) of the Act, awarded the work in dispute to employees represented by Laborers based on the factors of employer preference and past practice, area and industry practice, and economy and efficiency of operations. In its order, as it had in previous cases involving Operating Engineers, the Board ordered an area-wide award of the work of the type in dispute to the Laborers, extending to the area in which the jurisdictions of the Laborers Locals 310 and 860 and the Operating Engineers' jurisdictions overlap. Chairman Pearce dissented from the area-wide award.
Charges filed by Ballast Construction, Inc. and Mr. Excavator. Hearing Officer Gregory M. Gleine issued the report on September 10, 2013. Chairman Pearce and Members Miscimarra and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Freshbev Craft Juicery, LLC (01-RC-179057) New Haven, CT, September 19, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s determination to hold the representation petition in abeyance, finding that the Employer had raised no substantial issue warranting review. The Regional Director blocked the election based on the Petitioner’s filing of unfair labor practice charges which the Regional Director determined, if proven, would interfere with the free choice of the employees in the election. While expressing his disagreement with the Board’s blocking charge doctrine, Member Miscimarra agreed that the Regional Director did not abuse his discretion in applying the doctrine in the instant case. Petitioner - United Food and Commercial Workers International Union, Local 371, AFL-CIO, CLC Chairman Pearce and Members Miscimarra and McFerran participated.
Omniplex World Services Corporation (05-RC-179184) Washington D.C. and Arlington, VA, September 21, 2016. The Board granted Service Employees International Union, Local 32BJ’s (Party In Interest) Request for Review of the Regional Director’s Order Denying Motion to Intervene. The Party In Interest, a labor organization that represents guards and non-guards, seeks to intervene in this proceeding based on its status as the recognized collective-bargaining representative of the petitioned-for employees and appear on the ballot only to have the Board certify the arithmetic results should it receive the majority of the ballots. The Regional Director denied the Party In Interest’s request to intervene and the Party In Interest, conceding that it admits non-guards into membership, sought review, urging the Board to overrule University of Chicago, 272 NLRB 873 (1984). Member Miscimarra joins in the decision to grant review on the basis that the Proposed Intervenor raises a significant question of statutory interpretation that the Board has previously declined to address, citing FJC Security Services, Case 22-RC-115634 (2014) (not reported in Board Volumes). He noted that the Board does not here reach or resolve the Proposed Intervenor’s position on the merits. Petitioner - Law Enforcement Officers Security Union LEOSU-DC a/w Law Enforcement Officers Security and Police Benevolent Association (LEOS-PBA). Chairman Pearce and Members Miscimarra and McFerran participated.
Twin America, LLC and JAD Transportation, Inc. (02-RC-159028) New York, NY, September 22, 2016. The Board denied the Intervenor’s Request for Review of the Regional Director’s Supplemental Decision on Objections and Challenges and Directing the Counting of Ballots. The Board found that the Regional Director properly affirmed the Hearing Officer who overruled the Intervenor’s objections to the election. Intervenor – United Service Workers Union, Local 1212. Chairman Pearce and Members Miscimarra and McFerran participated.
Matson Terminals, Inc. (20-RC-173060) Honolulu, HI, September 22, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review. Chairman Pearce, and Members Miscimarra and McFerran, agree that the Regional Director properly found that the petitioned-for employees share a community of interest and the F&M supervisors need not be excluded. Member Miscimarra disagrees with the standard in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), which the Regional Director applied. Nevertheless, he joins in the denial of review because he finds that the petitioned-for employees constitute an appropriate unit under traditional community-of-interest principles. Petitioner - Working Foremen’s and Working Supervisors Union, Local 100, International Longshore & Warehouse Union. Chairman Pearce, and Members Miscimarra and McFerran, participated.
C Cases
Cleary School for the Deaf (29-CA-163066) Brooklyn, NY, September 19, 2016. No exceptions having been filed to the August 3, 2016 decision of Administrative Law Judge Raymond P. Green’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 New York State United Teachers American Federation of Teachers, NEA, AFL-CIO.
McGrath Downtown Auto Inc. d/b/a McGrath Acura of Downtown Chicago (13-CA-156172 and 13-CA-160860) Chicago, IL, September 19, 2016. No exceptions having been filed to the August 9, 2016 decision of Administrative Law Judge Robert A. Ringler’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. Charges filed by Automobile Mechanics Local Lodge 701, International Association of Machinists and Aerospace Workers, AFL-CIO.
United States Postal Service (28-CA-169508) Albuquerque, NM, September 21, 2016. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charge filed by National Association of Letter Carriers, Sunshine Branch 504, affiliated with National Association of Letter Carriers, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
United States Postal Service (13-CA-160069) Palatine, IL, September 22, 2016. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charge filed by American Postal Workers Union, AFL-CIO, Northwest Area Local 7140. Chairman Pearce and Members Miscimarra and McFerran participated.
Local 7, Bricklayers and Allied Craft Workers (29-CB-158878) Brooklyn, NY, September 23, 2016. No exceptions having been filed to the August 11, 2016 decision of Administrative Law Judge Mindy E. Landow 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.
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Appellate Court Decisions
Dresser-Rand Company, Board Case No. 03-CA-026543 (reported at 362 NLRB No. 136) (5th Cir. decided September 23, 2016)
In a published decision, the court granted the petition for review in all respects but one, enforcing only an uncontested unlawful suspension of one employee.
After unsuccessful negotiations for a successor contract, the Industrial Division of the Communications Workers of America, Local 313, commenced an economic strike in which all 417 bargaining unit employees initially participated. The employer hired some temporary replacements and, about a month later, 13 strikers made unconditional offers to return to work and crossed the picket line. The employer thereafter began hiring permanent replacements. At the four-month mark, the union made an unconditional offer to return, which the employer rejected. Instead, the employer instituted a partial lockout by locking out striking employees, and also locking out the 13 crossover employees who had been hired as permanent replacements. Later, the employer declared impasse, called the lockout over, and stated that striking employees could return under the terms of its implemented final offer over the coming months. The employer unilaterally invited back all 13 crossover employees, and informed the union that it would create a “preferential hiring list,” ranking the full-term strikers based on a mixture of seniority and performance. The employer then began contacting those employees directly, and continued to do so over the coming months. After the strike and lockout had ended, the employer also suspended one former striker, discharged another, and unilaterally eliminated accrued vacation benefits and certain paid lunch breaks.
On those facts, the Board (Chairman Pearce and Member Hirozawa; Member Johnson dissenting in part) found, in agreement with the administrative law judge, that Dresser-Rand violated Section 8(a)(3) and (1) of the Act by, among other actions, giving preferential treatment to employees who crossed the picket line during the strike. The Board further found that the employer, upon ending the lockout, violated Section 8(a)(3), (5), and (1) by giving preferential recall treatment to crossover employees, and then unilaterally implementing a procedure for recalling the full-term strikers to work. The Board also found that the employer violated Section 8(a)(3) and (1) by the suspension and discharge of strikers, and violated Section 8(a)(5) and (1) by its unilateral changes.
On review, the court held that the finding that the employer gave preferential treatment to the crossover employees turned on “whether locking-out crossovers created a job vacancy (which then must be filled by returning strikers) or whether it constituted a temporary layoff from the job (in which case the crossovers would have priority over the returning strikers).” On the record, the court found that the crossovers were more akin to temporarily laid-off replacement workers, and thus held that the Board’s finding was not supported by substantial evidence. Regarding the Board’s finding that the employer unilaterally implemented a preferential hiring list, the court disagreed, and held that “the evidence does not reasonably suggest that [the employer] failed to bargain or that it stated its terms as a fait accompli.” The court also rejected the discharge finding, holding instead that the employee engaged in strike misconduct serious enough to disqualify him from employment, and also found the unilateral changes lawful.
The court’s opinion is here.
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Administrative Law Judge Decisions
Midwest Terminals of Toledo International, Inc. (08-CA-152192; JD-89-16) Toledo, OH. Administrative Law Judge Eric M. Fine issued his decision on September 19, 2016. Charge filed by Local 1982, International Longshoremen’s Association, AFL-CIO.
United States Postal Service (07-CA-146385; JD-90-16) Great Lakes and Detroit, MI. Administrative Law Judge Christine E. Dibble issued her decision on September 19, 2016. Charge filed by Branch 232, National Association of Letter Carriers, AFL-CIO.
MHA, LLC d/b/a Meadowlands Hospital Medical Center (22-CA-086823, et al.; JD(NY)-35-16) Secaucus, NJ. Administrative Law Judge Steven Davis issued his decision on September 20, 2016. Charges filed by Health Professional and Allied Employees, AFT/AFL-CIO.
American Postal Workers Union, Dallas Area Local (United States Postal Service) (16-CB-153326; JD(NY)-34-16) Dallas, TX. Administrative Law Judge Joel P. Biblowitz issued his decision on September 21, 2016. Charge filed by an individual.
Ozburn-Hessey Logistics, LLC (15-CA-165554; JD-91-16) Memphis, TN. Administrative Law Judge Ira Sandron issued his decision on September 22, 2016. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers a/k/a United Steel Workers Union.
Trans-Ed, Inc. (22-CA-170891; JD(NY)-36-16) Newark, NJ. Administrative Law Judge Raymond P. Green issued his decision on September 22, 2016. Charge filed by an individual.
TPI Iowa, LLC (18-CA-164749 and 18-CA-168532; JD-93-16) Newton, IA. Administrative Law Judge Sharon Levinson Steckler issued her decision on September 22, 2016. Charges filed by an individual.
CSC Holdings, LLC and Cablevision Systems New York City Corporation (02-CA-138301, 02-CA-138302 and 02-CA-138303; JD(NY)-37-16) Bronx, NY. Administrative Law Judge Mindy E. Landow issued her decision on September 23, 2016. Charges filed by individuals.
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