Summary of NLRB Decisions for Week of September 29 - October 3, 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
Sprain Brook Manor Nursing Home, LLC (02-CA-040231, et al.; 361 NLRB No. 54) Scarsdale, NY, September 29, 2014.
In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order. The Board affirmed the judge’s rulings, findings, and conclusions and adopted the judge’s recommended Order to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 359 NLRB No. 105, which was incorporated by reference. In that Decision, the Board found that the employer violated the Act by threatening an employee with unspecified reprisals for seeking assistance from the Union and threatening that if the employee sought Union representation she would not receive payments owed to her in connection with the compliance settlement in Sprain Brook Manor, LLC, 351 NLRB 1190 (2007). The Board also found that the employer violated Section 8(a)(3) and (1) of the Act by discharging that employee, but found it unnecessary to pass on whether the discharge also violated Section 8(a)(4) because finding that additional violation would not materially affect the remedy. In addition, the Board found that the employer violated the Act by suspending and subsequently discharging another employee. The Board further found that the employer violated the Act by changing employees’ terms and conditions of employment without giving the Union notice and an opportunity to bargain about the changes. Specifically, the Board found that the employer violated the Act by discontinuing its practice of providing a free hot lunch to employees; discontinuing its practice of providing on site check-cashing privileges to employees; discontinuing its practice of providing free on-site physicals and PPD (tuberculosis) examinations to employees; and discontinuing “medical expenses” pay outs to employees who were not enrolled in the health plan offered by the employer.
Because of the employer’s demonstrated proclivity to violate the Act, the Board ordered that the remedial notice be read aloud to the employees by a management official or a Board Agent in the presence of a management official. The Board also ordered the employer to cease and desist from “in any other manner” interfering with, restraining, or coercing employees in the exercise of their rights under the Act. In addition, the Board granted tax compensation and Social Security reporting remedies.
The Board’s decision included a new Order that adds standard remedial language requiring the employer to bargain with the Union over the changes that it unlawfully unilaterally implemented. The Board’s decision also included a new notice to employees.
Administrative Law Judge Mindy E. Landow issued her decision on November 8, 2012. The charges were filed by 1199 SEIU United Healthcare Workers East. Chairman Pearce and Members Hirozawa and Schiffer participated.
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Pressroom Cleaners (34-CA-071823; 361 NLRB No. 57) Hartford, CT, September 30, 2014
The Board adopted the Administrative Law Judge’s findings that the Respondent Pressroom Cleaners violated Section 8(a)(1) in making nonunion statements; Section 8(a)(3) and (1) by discriminatorily refusing to hire six employees of Pressroom Cleaners’ predecessor, Capitol Cleaning, because of their union affiliation; and that, as the statutory successor to Capitol Cleaning, Pressroom Cleaners violated Section 8(a)(5) and (1) by unilaterally imposing new terms and conditions of employment on the employees it hired. The employees were represented by a union while working for Capitol Cleaning.
In accordance with Planned Building Services, 347 NLRB 670 (2006), the judge ordered a remedy that included a provision allowing Pressroom Cleaners to have the opportunity in compliance to limit its liability by showing that, even absent its unfair labor practices, it would not have agreed to the monetary provisions of the Union’s contract with Capitol Cleaning. A Board majority consisting of Chairman Pearce and Members Hirozawa and Schiffer overruled this portion of Planned Building Services to the extent that it allows an employer to limit its backpay liability in compliance through an evidentiary showing, returning to the approach set forth in State Distributing, 282 NLRB 1048 (1987), holding that the predecessor’s terms and conditions of employment should continue until the parties bargained to agreement or impasse.
Dissenting Members Miscimarra and Johnson would adhere to the holding and remedial structure set forth in Planned Building Services, and they disagreed with their colleagues’ decision to overrule that case. Members Miscimarra and Johnson, however, concurred in their colleagues’ findings that the Respondent engaged in unlawful discrimination in hiring that violated Section 8(a)(3), and in an unlawful failure to recognize and bargain with the Union that violated Section 8(a)(5).
Administrative Law Judge Steven Fish issued his decision on March 29, 2013. Charge filed by Service Employees International Union, Local 32BJ. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and Schiffer participated.
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Hartman and Tyner, Inc., d/b/a Mardi Gras Casino and Hollywood Concessions, Inc. (12-CA-072234, et al.; 361 NLRB No. 59) Hallandale Beach, FL, September 30, 2014.
In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order. The Board affirmed the judge’s rulings, findings, and conclusions and adopted the judge’s recommended Order to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 359 NLRB No. 100 (2013), which was incorporated by reference. In that Decision, the Board found that the Respondent violated the Act by Section 8(a)(1) of the Act by coercively interrogating employees, threatening them with arrest and other unspecified reprisals, and informing them they were discharged for engaging in protected concerted activities; and Section 8(a)(3) and (1) by discharging eight employees, including five who attempted to meet with the Respondent as part of an employee delegation.
Administrative Law Judge George Carson II issued his decision on September 18, 2012. Charges filed by UNITE HERE! Local 355. Chairman Pearce and Members Hirozawa and Schiffer participated.
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Linda Construction, Inc. (13-CA-125200; 361 NLRB No. 56) County Club Hills, IL, September 30, 2014.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s withdrawal of its answer to the complaint.
The Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally ceasing to make required contributions to the Union’s health and welfare fund and the Union’s pension fund. The Board ordered the Respondent to make all required contributions to the funds that have not been made, including any additional amounts due the funds, and to reimburse unit employees for any expenses ensuing from its failure to make any required contributions.
Charge filed by Excavating, Grading, Asphalt, Private Scavengers, Automobile Salesroom Garage Attendants, and Linen and Laundry Local Union No. 731, affiliated with the International Brotherhood of Teamsters. Members Hirozawa, Johnson, and Schiffer participated.
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FedEx Home Delivery, an Operating Division of FedEx Ground Package Systems, Inc. (34-CA-012735 and 34-RC-002205; 361 NLRB No. 55) Windsor, CT, September 30, 2014.
A Board panel majority consisting of Chairman Pearce and Members Hirozawa and Schiffer found that drivers who operate out of the Respondent’s Hartford, Connecticut terminal are employees under the Act, rather than independent contractors, excluded from coverage. The Board therefore concluded that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union that represents the drivers.
In reaching this decision, the Board restated and refined its approach for assessing independent-contractor issues. First, it reaffirmed that in evaluating independent-contractor status “in light of the pertinent common-law agency principles,” “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Second, the Board more clearly defined the analytical significance of a putative independent contractor’s entrepreneurial opportunity for gain or loss. The Board stated that it will give weight to actual, but not merely theoretical, entrepreneurial opportunity, and it will necessarily evaluate constraints imposed by a company on the individual’s ability to pursue this opportunity. The Board also stated that it will evaluate – in the context of weighing all relevant common-law factors – whether the evidence tends to show that the putative contractor is, in fact, rendering services as part of an independent business.
In dissent, Member Johnson asserted that the majority’s revised approach goes beyond the limits of the Agency’s discretion and fails to give adequate weight to entrepreneurial opportunity as part of the test. Member Johnson also stated that the majority erred by incorrectly measuring and artificially restricting the relevant evidence for assessing what opportunity actually exists for the drivers. He would have remanded the case to the Regional Director to reopen the record and accept relevant systemwide evidence to allow a proper determination of the fair market value of the entrepreneurial opportunities available to drivers.
Member Miscimarra recused himself, and took no part in the consideration of this case.
The charge and petition were filed by International Brotherhood of Teamsters, Local Union No. 671. Chairman Pearce and Members Hirozawa, Johnson, and Schiffer participated.
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Dover Hospitality Services, Inc., a/k/a Dover Caterers, Inc., a/k/a Dover College Services, Inc. (29-CA-030591; 361 NLRB No. 60) Selden and Brentwood, NY, September 30, 2014.
In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order. The Board affirmed the judge’s rulings, findings, and conclusions and adopted the judge’s recommended Order to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 359 NLRB No. 84, which was incorporated by reference. In that Decision, the Board agreed with the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to furnish the Union with requested financial information necessary to substantiate the Respondent’s claim of an inability to pay. The vacated Decision and Order found no merit in the Respondent’s argument that, by waiting 8 months after the Respondent’s claim of inability to pay before making its request, the Union waived its right to the information.
Concurring, Member Miscimarra did not pass on the judge’s statement that the obligation to disclose requested information is unaffected by potential “other uses” or other “pending litigation” involving benefit funds. He further found that the Union’s information request may have been overbroad to the extent the request encompassed financial information concerning locations other than the two facilities at issue in this case. Member Miscimarra added that the Respondent’s failure to respond at all to the information requests means that any defenses related to these points were not timely raised.
Administrative Law Judge Steven Fish issued his decision on September 28, 2011. Charge filed by Local 1102, Retail, Wholesale & Department Store Union, United Food & Commercial Workers Union. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County (04-CA-064458; 361 NLRB No. 61) Salem, NJ, September 30, 2014.
In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order. The Board affirmed the judge’s rulings, findings, and conclusions and adopted the judge’s recommended Order to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 358 NLRB No. 95, which was incorporated by reference. In that Decision, the Board adopted the Administrative Law Judge’s finding that the Respondent failed to provide the Union with requested information. The vacated Decision and Order adopted without comment the judge’s rejection of the Respondent’s defense that the Board’s decision in Specialty Healthcare & Rehabilitation of Mobile, 357 NLRB No. 83 (2011) rendered the underlying certification invalid. Member Johnson stated that he agreed with the judge that the issuance of Specialty Healthcare had no application here, and accordingly he did not reach the merits of that case. Member Johnson further noted that the judge’s finding, that the requested information concerning contract personnel was relevant, was supported by testimony that the Union sought the information in order to formulate bargaining proposals concerning unit employees’ work preferences.
Administrative Law Judge Robert A. Giannasi issued his decision on April 17, 2012. Charge filed by Health Professionals and Allied Employees (HPAE). Chairman Pearce and Members Hirozawa and Johnson participated.
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Enterprise Leasing Company-Southeast, LLC (11-CA-073779; 361 NLRB No. 63) Raleigh, NC, October 2, 2014.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification refusal-to-bargain case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case 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 bargain with the Union since January 23, 2012.
The Board noted that on July 17, 2013, the United States Court of Appeals for the Fourth Circuit denied enforcement of the Board’s original order in this proceeding, which is reported at 358 NLRB No. 35 (2012). NLRB v. Enterprise Leasing Co. Southeast, LLC, 722 F.3d 609, 660 (2013). The court’s denial of enforcement was based on its conclusion that the January 2012 appointments of three of the five members of the Board were invalid, and that the Board therefore lacked a quorum to act at the time that it issued the order. The Board filed a petition for rehearing for the limited purpose of requesting that the court’s order be modified to include language explicitly remanding the case to the Board for further proceedings consistent with the court’s decision, and the petition was summarily denied. The Board subsequently filed a petition for certiorari, which the Supreme Court denied.
The Board then considered the threshold issue of whether, in light of the denial of enforcement, it may consider this case anew. Stating that the court’s denial of enforcement was not based on the merits of the unfair labor practice findings, the Board found that the clear import of the court’s decision denying enforcement, along with the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), is that no validly constituted Board has ruled on the General Counsel’s motion for summary judgment, which the Board is free to address because it is still pending before the Board.
The Board reasoned that its conclusion is consistent with the court’s denial of the Board’s petition for rehearing, stating that because the petition was denied without explanation, no inference can be drawn that the denial was inconsistent with the clear import of the order denying enforcement. Finally, the Board found that consideration of the motion at this time is consistent with the treatment in the courts of appeals of other cases in which enforcement was denied for lack of a Board quorum at the time the original decision was issued, and the Board then considered the case again and issued a new decision. In this regard, the Board cited NLRB v. Whitesell Corp., 638 F.3d 883 (8th Cir. 2011), where the court had denied enforcement of the Board’s original order because the Board had lacked a quorum under New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010), the Board issued a new decision and order, and the court enforced the new order, rejecting the respondent’s argument that the Board lacked jurisdiction to redecide the case. Similarly, the Board cited NLRB v. Domsey Trading Corp., 636 F.3d 33 (2d Cir. 2011), where the court addressed the merits of a Board decision re-addressing a case in which it had denied enforcement of a prior decision based on New Process Steel. The Board distinguished NLRB v. Lundy Packing Co., 81 F.3d 25 (4th Cir. 1996), relied on by the Respondent in opposing consideration of the General Counsel’s motion, on the basis that the court there had denied enforcement of a prior Board order in the case, on the merits, whereas here, the court’s denial of enforcement of the prior order was not a final judgment on the merits of the case.
Member Johnson noted that he did not participate in the prior representation case and concurred with the result in this proceeding, without finding it necessary to rely on the Board’s view stated in its petition, referred to above. He noted that here, the court indicated in its original opinion on review that the sole reason for declining to enforce the Board’s Order was based on the invalid composition of the Board at that time; the court did not give any explanation for its subsequent denial of the petition for rehearing that was filed by a constitutionally valid Board; and the Respondent has admittedly refused to bargain while not raising any representation issues that are properly litigable in an unfair labor practice proceeding.
Charge filed by International Brotherhood of Teamsters, Local 391. Chairman Pearce and Members Hirozawa and Johnson participated.
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Enterprise Leasing Company-Southeast, LLC (11-CA-073779; 361 NLRB No. 63) Raleigh, NC, October 2, 2014. Correction to October 2, 2014 decision. Correction Amended decision.
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Huntington Ingalls Incorporated (05-CA-081306; 361 NLRB 64) Newport News, VA, October 3, 2014.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification refusal-to-bargain case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case 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 bargain with the Union.
The Board noted that on July 17, 2013, the United States Court of Appeals for the Fourth Circuit denied enforcement of the Board’s original order in this proceeding, which is reported at 358 NLRB No. 100 (2012) and was consolidated with NLRB v. Enterprise Leasing Co. Southeast, LLC (4th Cir. No. 12-1514). NLRB v. Enterprise Leasing Co. Southeast, LLC, 722 F.3d 609, 660 (2013). The court’s denial of enforcement was based on its conclusion that the January 2012 appointments of three of the five members of the Board were invalid, and that the Board therefore lacked a quorum to act at the time that it issued the order. The Board filed a petition for rehearing for the limited purpose of requesting that the court’s order be modified to include language explicitly remanding the case to the Board for further proceedings consistent with the court’s decision, and the petition was summarily denied. The Board subsequently filed a petition for certiorari, which the Supreme Court denied.
The Board then considered the threshold issue of whether, in light of the denial of enforcement, it may consider this case anew. Noting that the court’s denial of enforcement was not based on the merits of the unfair labor practice findings, the Board found that the clear import of the court’s decision denying enforcement, along with the Supreme Court’s Noel Canning decision, 134 S.Ct. 2550 (2014), is that no validly constituted Board has ruled on the General Counsel’s motion for summary judgment, which the Board is free to address because it is still pending before the Board.
The Board reasoned that its conclusion is consistent with the court’s denial of the Board’s petition for rehearing, stating that because the petition was denied without explanation, no inference can be drawn that the denial was inconsistent with the clear import of the order denying enforcement. Finally, the Board found that consideration of the motion at this time is consistent with the treatment in the courts of appeals of other cases in which enforcement was denied for lack of a Board quorum at the time the original decision was issued, and the Board then considered the case again and issued a new decision. In this regard, the Board cited NLRB v. Whitesell Corp., 638 F.3d 883 (8th Cir. 2011), where the court had denied enforcement of the Board’s original order because the Board had lacked a quorum under New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010), the Board issued a new decision and order, and the court enforced the new order, rejecting the respondent’s argument that the Board lacked jurisdiction to redecide the case. Similarly, the Board cited NLRB v. Domsey Trading Corp., 636 F.3d 33 (2d Cir. 2011), where the court addressed the merits of a Board decision re-addressing a case in which it had denied enforcement of a prior decision based on New Process Steel. The Board distinguished NLRB v. Lundy Packing Co., 81 F.3d 25 (4th Cir. 1996), relied on by the Respondent in opposing consideration of the General Counsel’s motion, on the basis that the court there had denied enforcement of a prior Board order in the case, on the merits, whereas here, the court’s denial of enforcement of the prior order was not a final judgment on the merits of the case.
In addition, the Board rejected the Respondent’s argument that the then Acting General Counsel could not properly be appointed under the Federal Vacancies Reform Act (“Vacancies Act”) and therefore lacked authority to issue the complaint in this case. The Board found that the Acting General Counsel was properly appointed under the Vacancies Act, and the complaint is not subject to attack based on the circumstances of his appointment, citing Muffley v. Massey Energy Co., 547 F. Supp. 2d 536, 542-43 (S.D.W. Va. 2008), aff’d, 570 F.3d 534 (4th Cir. 2009) (upholding authorization of section 10(j) injunction proceeding by Acting General Counsel designated pursuant to the Vacancies Act).
Moreover, the Board rejected the Respondent’s argument that the Board abused its discretion in the underlying representation proceeding by applying the standard announced in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. 727 F.3d 552 (6th Cir. 2013), on the basis that the Respondent’s contention was untimely raised. In any event, the Board found no merit in this contention, stating that the Board recognizes a presumption in favor of the retroactivity of new rulings in representation cases, as explained in the underlying representation decision, Northrop Grumman Shipbuilding, Inc., 357 NLRB No. 163, slip op. at 3, fn. 8 (2011). The Board found no circumstances in this case that would overcome that presumption and no prejudice to the Respondent, concluding that the Respondent cannot reasonably argue that it was denied due process. Member Johnson noted that he did not participate in Northrop Grumman and, because he agrees that the Respondent has not raised any representation issue that is properly litigable in this proceeding, finds no need here to express his opinion whether that case or Specialty Healthcare were correctly decided.
Member Johnson noted that he did not participate in the underlying representation case, and he concurred in the result in this proceeding, without finding it necessary to rely on the Board’s view stated in the petition, above. Member Johnson stated that here, the court indicated in its original opinion on review that the sole reason for declining to enforce the Board’s Order was based on the invalid composition of the Board at that time; the court did not give any explanation for its subsequent denial of the petition for rehearing that was filed by a constitutionally valid Board; and the Respondent has admittedly refused to bargain while not raising any representation issues that are properly litigable in an unfair labor practice proceeding.
Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman Pearce and Members Hirozawa and Johnson participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Asplundh Tree Expert Co. (07-RC-131249) Buchanan, Michigan, October 2, 2014. A Board panel majority consisting of Chairman Pearce and Member Schiffer 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 crew forepersons, crew members, and planners engaged in power line clearance work. With respect to whether the crew forepersons should have been excluded as supervisors, the panel majority (Chairman Pearce and Member Schiffer) found that the Employer had failed to provide sufficient evidence that the forepersons utilized independent judgment in directing crew members. Therefore, it had not demonstrated that the Regional Director erred in finding that they did not possess the supervisory authority to responsibly direct. Chairman Pearce and Member Schiffer found it unnecessary to address whether the crew forepersons were held accountable for the work of the crew members. Member Johnson dissented, stating that he would grant review on both the independent judgment and accountability issues, finding that the Employer had submitted sufficient evidence on both the issues of the crew foreperson’s independent judgment and accountability to justify granting review. Petitioner— Local No. 876, International Brotherhood of Electrical Workers (IBEW), AFL-CIO. Chairman Pearce and Members Johnson and Schiffer participated.
Revere Industries, LLC (09-RC-126008) Jeffersonville, IN, October 3, 2014. No exceptions having been filed to the Regional Director’s disposition of objections to an election held May 15, 2014, the Board remanded the case to the Regional Director for further appropriate action. Petitioner—IUE-CWA, Local 83761.
NPL Construction Co. (27-RD-129800) Commerce City, Co and Cheyenne, WY, October 3, 2014. No exceptions having been filed to the Hearing Officer’s overruling of the challenges to the ballots of 16 employees in an election held July 9, 2014, the Board directed the Regional Director to open and count the 16 ballots, and prepare and serve a revised tally of ballots on the parties and issue appropriate certification.
C Cases
Aeronautical Industrial District Lodge 776, affiliated with International Association of Machinists and Aerospace Workers, AFL-CIO (Lockheed Martin Aeronautics Co.) (16-CB-120321) Ft. Worth, TX, September 30, 2014. No exceptions having been filed to the Administrative Law Judge’s Decision 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 actions set forth in the judge’s recommended Order to remedy the unfair labor practices. Charge filed by an individual. Administrative Law Judge Joel P. Biblowitz issued his decision on August 18, 2014.
Sun Cab, Inc. d/b/a Nellis Cab Company (28-CA-106245) Las Vegas, NV, September 30, 2014. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the individual Charging Party, and the General Counsel, and specifying the actions the Respondent must take to comply with the National Labor Relations Act. Charge filed by an individual. Chairman Pearce and Members Hirozawa and Johnson participated.
Renaissance Hotel Operating Company (28-CA-113793, et al.) Phoenix, AZ, October 1, 2014. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying the actions the Respondent must take to comply with the National Labor Relations Act. Charges filed by UNITE HERE Local 631, AFL-CIO. Members Hirozawa, Johnson, and Schiffer participated.
Diva Executive Limousine, Inc. and Diva Limousine, Ltd. (22-CA-091561) Elizabeth, NJ, October 1, 2014. A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Respondent’s motion for summary judgment on the grounds that the Respondent has failed to establish that it is entitled to judgment as a matter of law on the legal issue presented and has further failed to establish that there are no genuine issues of material fact warranting a hearing on the complaint allegations. Member Miscimarra dissented, stating that in his view the record suggests that there are no questions of material fact that warrant a hearing. He stated that he did not pass on the merits of the Respondent’s defense that the Respondent’s class waiver agreement is lawful in view of the United States Court of Appeals for the Fifth Circuit’s decision in D. R. Horton, Inc., v. NLRB, 737 F. 3d 344 (5th Cir. 2013), denying enforcement to D. R. Horton, Inc., 357 NLRB No. 184 (2012), and further did not pass on the General Counsel’s position that this case should still be controlled by the Board’s broad invalidation of class waiver agreements in D.R. Horton. Rather, Member Miscimarra viewed the Respondent’s motion as establishing that there are no disputed issues of material fact, and he found that the General Counsel has failed to identify any disputed issues of fact warranting a hearing. Member Miscimarra would have issued an order to show cause why this case should not be resolved by way of summary judgment, an approach he believes is consistent with the Board’s Rules and Regulations, and is preferable where, as here, the parties may agree there are no disputed questions of material fact, notwithstanding their disagreement regarding who should prevail on the merits. Charge filed by an individual. Chairman Pearce, and Members Miscimarra and Hirozawa participated.
Tesoro Refining and Marketing Co. (18-CA-029625 and 019644) Mandan, ND, October 1, 2014. The Board remanded the case to the Regional Director for further appropriate action, in light of the informal settlement agreement reached by the Respondent and the Charging Party.
Regency Heritage Nursing and Rehabilitation Center (22-CA-074343) Somerset, NJ, October 3, 2014. Order denying Respondent’s motion for reconsideration of the Board’s Decision and Order reported at 360 NLRB No. 98 (2014). Charge filed by 1199 SEIU, United Healthcare Workers East, New Jersey Region. Members Miscimarra, Hirozawa, and Schiffer participated.
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Appellate Court Decisions
Taft Coal Sales & Associates, Inc., Board Case No. 10-CA-088599 (reported at 360 NLRB No. 19) (11th Cir. decided October 2, 2014)
In an unpublished per curiam opinion, the Court enforced the Board’s order in this case involving a mass layoff during the United Mine Workers’ organizing drive at Taft Coal’s Choctaw mine.
After a neutral arbitrator designated the Union the exclusive representative of the employees at the mine, the employer decided to lay off 21 of the 90 unit employees after learning that a major customer planned to reduce coal production. The employer notified the Union two days before the layoff. On the day of the layoff, the employer informed the 21 affected employees and only then presented to the Union a layoff list identifying the affected employees. On those facts, the administrative law judge found that Taft Coal had violated Section 8(a)(1) and (5) of the Act by failing to bargain in good faith concerning the layoff because it had presented the Union with a fait accompli. The judge also found that Taft Coal violated Section 8(a)(1) of the Act when a supervisor interrogated an employee about his vote in the election and also threatened another employee with plant closure if the Union were certified.
The administrative law judge determined under the Board’s four-factor test for single-employer status that Walter Energy (a corporation that produces coal), Walter Minerals (a wholly-owned subsidiary of Walter Energy), and Taft Coal were a single employer. Although there was limited evidence of interrelated operations, the judge found that the strong evidence of common control of labor relations, in addition to common ownership and management, weighed in favor of finding single-employer status. The judge’s recommended order included an affirmative bargaining order, backpay, and full reinstatement of the 21 employees.
The Board (Chairman Pearce and Members Johnson and Schiffer) adopted the administrative law judge’s recommended findings. The Board supplemented the judge’s remedial discussion, however, by clarifying that “a full reinstatement and backpay remedy, rather than the limited backpay remedy set forth in Transmarine Navigation Corp., 170 NLRB 389 (1968),” was the “traditional and appropriate Board remedy for an unlawful unilateral layoff based on legitimate economic concerns.” Here, the Board also noted, the employer failed to bargain with the Union “about both the decision to lay off unit employees and its effects.”
On review, the Court held that substantial evidence supported the Board’s unfair-labor-practice findings and its finding of single-employer status. It also agreed with the Board that full reinstatement and backpay was the traditional and common remedy for the unilateral layoffs.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Eym King of Michigan, LLC, d/b/a Burger King (07-CA-118835; JD-58-14) Detroit, MI. Administrative Law Judge Arthur J. Amchan issued his decision on September 29, 2014. Charge filed by Michigan Workers Organizing Committee.
Lenox Hill Hospital (02-CA-103901; JD(NY)-40-14) New York, NY. Administrative Law Judge Mindy E. Landow issued her decision on October 1, 2014. Charge filed by The New York Professional Nurses Union.
International Union of Operating Engineers Local No. 324 and 324-A, AFL-CIO (Michigan Conveyor Manufacturers Association) (07-CB-109303; JD(NY)-41-14) Bingham Farms, MI, October 1, 2014. Erratum to September 23, 2014 Administrative Law Judge Decision. Erratum Amended Decision
United States Postal Service (20-CA-111346; JD(SF)-44-14) San Francisco, CA, October 2, 2014. Errata to August 18, 2014 Administrative Law Judge Decision. Errata Amended Decision
A.J. Myers and Sons, Inc. (06-CA-119505; JD-59-14) Kittanning, PA. Administrative Law Judge David I. Goldman issued his decision on October 3, 2014. Charge filed by Amalgamated Transit Union, Local 1738, AFL-CIO, CLC.
Sun Cab, Inc. d/b/a Nellis Cab Company (28-CA-118942; JD(SF)-48-14) Las Vegas, NV. Administrative Law Judge John J. McCarrick issued his decision on October 3, 2014. Charge filed by an individual.
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