Summary of NLRB Decisions for Week of September 5 - 8, 2017
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
ConAgra Foods, Inc. (09-CA-062889, et al.; 365 NLRB No. 102) Troy, OH, September 7, 2017.
Upon remand from the Eighth Circuit Court, the Board (Members Pearce and McFerran; Chairman Miscimarra concurring), in a Supplemental Decision and Order, denied the General Counsel’s Motion for Default Judgment asserting that the Respondent had defaulted on the terms of a settlement agreement. The Board found that the Respondent committed a postsettlement unfair labor practice by posting and maintaining a letter which employees would reasonably construe as restricting discussions about unions. The Board, however, found that default judgment was not appropriate on procedural due process grounds because the General Counsel did not advise the Respondent, before moving for default judgment, that the letter, if found unlawful as an overbroad rule, would warrant default judgment under the performance clause of the settlement agreement. Concurring, Chairman Miscimarra found that default judgment was also inappropriate based on the General Counsel’s failure to provide the Respondent 14 days’ advance notice and opportunity to remedy the alleged noncompliance as required by the settlement agreement. Accordingly, the Board remanded the case to the Regional Director for further appropriate action.
Charges filed by United Food and Commercial Workers Union, Local 75. Chairman Miscimarra and Members Pearce and McFerran participated.
***
Outokumpu Stainless USA, LLC f/k/a Thyssenkrupp Stainless USA, LLC (15-CA-070319 and 15-CA-073053; 365 NLRB No. 127) Calvert, AL, September 7, 2017.
The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provision of an informal settlement agreement. That settlement agreement resolved unfair labor practice charges filed against the Respondent and obligated it to take certain actions, including posting a notice to employees. While posting that notice, the Respondent also posted a “side letter” that minimized the effects of the Board’s notice by indicating that the Respondent did not believe it had violated any laws and suggesting that the posting of the Board’s notice was a mere formality. The Board found that the Respondent breached the terms of the settlement agreement by posting this side letter, triggering the agreement’s performance provision authorizing the entry of default judgment in case of noncompliance.
Chairman Miscimarra dissented from the entry of default judgment. While he agreed that the side letter improperly minimized the effect of the Board’s notice posted pursuant to the settlement and warranted setting aside the settlement agreement, he found that the agreement only authorized default judgment if the Respondent did not comply with “any of the terms of this Settlement Agreement” and that not posting a side letter was not one of those terms.
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC. Chairman Miscimarra and Members Pearce and McFerran participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Durham School Services, L.P. (19-RC-200871) Spokane, WA, September 5, 2017. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Regional Director had found that the Employer’s operations were seasonal and had scheduled an election for October 3, 2017. Petitioner – Amalgamated Transit Union Local 1015. Chairman Miscimarra and Members Pearce and McFerran participated.
Cranesville Block Co., Inc. (03-RC-190952) Amsterdam, NY, September 6, 2017. The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Order on Challenged Ballot and Objections as it raised no substantial issues warranting review. The Regional Director had found that a mechanic is not a statutory supervisor under the Act and, accordingly, overruled the Employer’s objections based on the mechanic’s alleged pro-union supervisory conduct. Dissenting, Chairman Miscimarra would have granted review because, in his view, the record contained evidence that the mechanic has the authority to assign tasks to other mechanics, to responsibly direct them, and to effectively recommend discipline. Petitioner – International Brotherhood of Teamsters, Local 294. Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
Security Walls, LLC (13-CA-137736 and 13-CA-194819) Batavia, IL, September 6, 2017. 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. Charges filed by an individual. Chairman Miscimarra and Members Pearce and McFerran participated.
Apollo Health, Inc. (13-CA-189486) Chicago, IL, September 7, 2017. No exceptions having been filed to the July 26, 2017 decision of Administrative Law Judge Arthur J. Amchan’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 judge’s recommended Order. Charge filed by an individual.
Marquez Brothers Enterprises, Inc. (21-CA-039581 and 21-CA-039609) City of Industry, CA, September 7, 2017. The Board granted the General Counsel’s Request for Special Permission to Appeal the Administrative Law Judge’s ruling prohibiting the General Counsel from questioning any witnesses other than the compliance officer concerning the discriminatees’ interim earnings. On the merits, the Board granted the appeal, finding that the judge abused her discretion by ordering an unduly harsh evidentiary sanction against the General Counsel based on the two unrepresented discriminatees’ failure to fully comply with a subpoena duces tecum issued to them. The Board noted that the General Counsel represents the public interest, not the private interests of the discriminatees. It urged the judge to consider less severe measures, such as permitting the General Counsel to elicit oral testimony from the discriminatees, in order to ensure a complete record. Chairman Miscimarra, dissenting in part, found that the judge had not abused her discretion, because the discriminatees had failed to comply with valid subpoenas seeking documents related to matters bearing on backpay. He also found that some of the alternative measures offered as substitutes for the preclusion sanction, including relying on oral testimony, constitute a reward rather than a sanction for subpoena non-compliance. Finally, Chairman Miscimarra stated that the General Counsel should not be immune from sanctions based on the discriminatees’ non-compliance, because in matters of backpay, the discriminatees’ interests are advanced by the General Counsel. Charges filed by individuals. Chairman Miscimarra and Members Pearce and McFerran participated.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Solarcity Corp. (32-CA-180523; JD(SF)-39-17) San Mateo, CA. Administrative Law Judge Eleanor Laws issued her decision on September 8, 2017. Charge filed by an individual.
Kalthia Group Hotels, Inc. and Manas Hospitality LLC d/b/a Holiday Inn Express Sacramento a single and/or joint employer (20-CA-176428, et al.; JD(SF)-38-17) Sacramento, CA. Administrative Law Judge John T. Giannopoulos issued his decision on September 8, 2017.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.