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Summary of NLRB Decisions for Week of December 2-6 2013

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

St. Bernard Hospital and Health Care Center  (13-CA-074311; 360 NLRB No. 12) Chicago, IL, December 2, 2013.

The Board adopted the administrative law judge’s finding that the Respondent violated Section 8(a)(1) by terminating an employee because he engaged in protected concerted activity.  In agreeing with this finding, Member Johnson noted that he did not dispute that the precedent cited in footnote 18 of the judge’s decision establishes the three specific elements of the initial burden of proof under the test set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and would not include a fourth separate and distinct element that the General Counsel establish a link or nexus between the employee’s protected activity and the adverse employment action.  However, he emphasized that Wright Line is inherently a causation test, and therefore, not just any evidence of animus borne against protected activity generally, even if involving the same employees subject to the disputed employer action, will necessarily satisfy the initial Wright Line burden of proving unlawful motivation for that particular action.  Administrative Law Judge Melissa M. Olivero issued her decision on April 30, 2013.

Charge filed by an individual.  Chairman Pearce and Members Johnson and Schiffer participated.

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Teamsters, Local 727 (GES)  (13-CB-073396; 360 NLRB No. 13)  Hodgkins, IL, December 5, 2013.

The Board adopted the administrative law judge’s findings that the Respondent Union violated Section 8(b)(1)(A) and 8(b)(2) by requesting and agreeing to a seniority system based solely on the date that employees became members of the Union.  Administrative Law Judge Margaret G. Brakebusch issued her decision on December 18, 2012.

Charge filed by an individual.  Chairman Pearce and Members Johnson and Schiffer participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Coastal International Security, Inc.  (05-UD-110649)  Washington, DC, December 2, 3013.  No exceptions having been filed to the Acting Regional Director’s Report overruling objections to a mail ballot election held between September 17 and October 10, 2013, the Board certified that a majority of the employees eligible to vote had voted to withdraw the authority of Union Rights for Security Officers, to require, under its agreement with the Employer that employees make certain payments to the Union in order to retain their jobs, in conformity with Section 8(a)(3) of the Act.  Petitioner – An individual.

Kellogg Company  (07-UC-105604),  Battle Creek, MI, December 3, 2013.  The Board denied the Petitioner’s request for review of the Regional Director’s administrative dismissal of the petition and, therefore, affirmed the dismissal.  The Regional Director found that the case presented a work assignment dispute and that such disputes are not appropriate for unit clarification proceedings.  Petitioner— Local 3-G, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM), AFL-CIO.  Members Hirozawa, Johnson, and Schiffer participated.

Garda CL Southeast, Inc.  (12-RC-100410)  Orlando, Florida, December 3, 2013.  The Board adopted the Hearing Officer’s findings and recommendations that Petitioner’s objections to an election be overruled, and certified that Petitioner International Union, Security, Police and Fire Professionals of America (SPFPA) had not received a majority of the valid ballots cast and therefore it is not the exclusive representative of the unit employees.  Members Miscimarra, Hirozawa, and Johnson participated.

Allied Aviation Service Company of New Jersey  (Case 22-RC-077044),  Elizabeth, NJ, December 3, 2013.  The Board adopted the administrative law judge’s findings that the training supervisors are statutory supervisors, based on their authority to effectively recommend that probationary employees be retained for employment.  Accordingly, the Board sustained the challenges to their ballots and issued a certification of representative. Petitioner— Local 553, International Brotherhood of Teamsters. Members Miscimarra, Hirozawa, and Johnson participated.

Le Fort Enterprises, Inc. d/b/a Merry Maids of Boston  (01-RC-097257)  South Boston, MA, December 3, 2013. The Board adopted the hearing officer’s recommendation to overrule the employer’s objection to an election held March 28, 2013, and certified International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 7, AFL-CIO, as the exclusive collective-bargaining representative of the unit employees. The Board agreed with the hearing officer that none of the conduct at issue rises to the level of objectionable third-party conduct. The Board further found no merit to the employer’s contention on exception that the cumulative impact of the conduct warrants setting aside the election.  Petitioner—International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 7, AFL-CIO. Chairman Pearce and Members Hirozawa and Johnson participated.

SSC Mystic Operating Company, LLC, d/b/a Pendleton Health & Rehabilitation Center  (01-RC-098982)  Mystic, CT, December 3, 2013.  The Board adopted the hearing officer’s findings and recommendations to overrule the Employer’s objections to an election held April 4, 2013, and certified Petitioner New England Health Care Employees Union, District 1199, SEIU, as the exclusive collective-bargaining representative of the unit employees.  In so doing, the Board adopted the hearing officer’s finding that a supervisor’s prounion conduct was effectively mitigated by the Employer.  Petitioner—New England Health Care Employees Union, District 1199, SEIU. Chairman Pearce and Members Hirozawa and Johnson participated.

GEO Corrections Holdings, Inc.  (12-RC-97792)  Folkston, GA, December 3, 2013.  The Board adopted the hearing officer’s report recommending overruling the Employer’s objections to an election, and certified Petitioner International Union, Security, Police and Fire Professionals of America as the exclusive collective-bargaining representative of the unit employees. The objections alleged that conduct by pro-union employees, including the Petitioner’s election observer, was objectionable.  In affirming the hearing officer’s finding that the conduct of the election observer was not objectionable, the Board clarified that it applied the “party” standard, rather than the “third-party” standard incorrectly applied by the hearing officer.  Petitioner—International Union, Security, Police and Fire Professionals of America.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

New York University  (02-RC-023481)  New York, NY, December 5, 2013.  The Board approved the Petitioner’s request to withdraw the petition, which covered a unit that included graduate student adjunct faculty members and student research assistants.  Accordingly, the Petitioner’s Request for Review and the Employer’s Conditional Request for Review, which were pending before the Board on grants of review, are moot and will not be ruled on by the Board.  Petitioner—Graduate Student Organizing Committee/UAW.  Chairman Pearce, and Members Miscimarra and Hirozawa participated.

 Polytechnic Institute of New York University  (29-RC-012054)  Brooklyn, NY, December 5, 2013.  The Board approved the Petitioner’s request to withdraw the petition, which covered graduate student assistants.  Accordingly, the Petitioner’s Request for Review and the Employer’s Conditional Request for Review, which were pending before the Board on grants of review, are moot and will not be ruled on by the Board.  Petitioner—International Union, UAW.  Chairman Pearce, and Members Miscimarra and Hirozawa participated.

Connecticut Light & Power Co.  (01-RC-112451)  Hartford, CT, December 5, 2013.  Order denying the Employer’s request for review of the Regional Director’s Decision and Direction of Election as not raising any substantial issues regarding whether the Regional Director erred in finding that the Senior Circuit Owners and Circuit Owners were not excluded from the election unit as either supervisory or managerial employees.  In agreeing with the Regional Director that the Circuit Owners were not managerial employees, the Board found that the employees’ authority to spend up to $10,000 without prior approval from higher-ups did not constitute sufficient discretionary authority to qualify them as managerial.  The Board also found that the Circuit Owners substitution for zone managers on a project approval committee was too sporadic to constitute managerial authority.   Petitioner—International Brotherhood of Electrical Workers, Local 420 and 457. Members Hirozawa, Johnson, and Schiffer participated.

Advanced Student Transportation, Inc.  (04-RD-107689)  Wilmington, DE, December 6, 2013.  No exceptions having been filed to the Hearing Officer’s Report overruling objections to an election held August 9, 2013, the Board certified that a majority of the valid ballots had not been cast for the International Brotherhood of Teamsters, Local 326 and that it is not the exclusive collective-bargaining representative of the bargaining unit employees.  Petitioner—An individual.

C Cases

Star West Satelite, Inc.  (19-CA-075668)  Bozeman, MT, December 2, 2013.  No exceptions having been filed, the Board adopted the Administrative Law Judge’s findings that the Respondent had engaged in certain unfair labor practices, and ordered the Respondent to take the action set forth in the Judge’s recommended Order to remedy the unfair labor practices.  In doing so, the Board granted the parties’ joint motion to adopt the Administrative Law Judge’s decision.  Charges filed by International Brotherhood of Electrical Workers Local 206 affiliated with International Brotherhood of Electrical Workers, AFL-CIO.

Prudential Security, Inc.  (07-CA-095000)  Taylor, MI, December 2, 2013.  No exceptions having been filed,  the Board adopted the findings and conclusions of the Administrative Law Judge that the Respondent had engaged in certain unfair labor practices, and ordered the Respondent to take the action set forth in the Judge’s recommended Order to remedy the unfair labor practices.  Charge filed by Service Employees International Union (SEIU), Local 1.

Sutter East Bay Hospitals d/b/a Sutter Delta Medical Center  (20-CA-093609) Various Sites, including Sacramento, CA, December 2, 2013.  The Board granted the parties’ joint motion to remand the case to the Regional Director for further appropriate action.  Charge filed by California Nurses Association/National Nurses United.

Northeastern Land Services, Ltd. d/b/a The NLS Group  (01-CA-039447)  Boston, MA, December 2, 2013.  Order denying the individual Charging Party’s motion for reconsideration of the Board’s September 4, 2013 Order denying the Charging Party’s appeal of the Acting General Counsel’s decision affirming the Regional Director’s compliance determination.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Diva Executive Limousine, Inc. and Diva Limousine Ltd.  (22-CA-091561) Elizabeth, NJ, December 3, 2013.  The Board denied a motion to revoke an investigative subpoena duces tecum on the grounds that the subpoena seeks information relevant to the matter under investigation and describes with sufficient particularity the evidence sought, as required by Section 11(1) of the Act and Section 102.31(b) of the Board’s Rules and Regulations, and that there was no other legal basis for revoking the subpoena.  The Board further noted that objections made solely on the basis of a state code of civil procedure (here, California) are not cognizable in a Board proceeding.  Charging Party—an individual.  Members Miscimarra,  Hirozawa and Johnson participated.

Teamsters Local Union No. 523 (Interstate  Bakeries Corp.)  (17-CB-006146)  Tulsa, OK, December 4, 2013.  Order denying the petition filed by Teamsters Local Union No. 523 to revoke a subpoena duces tecum and subpoenas ad testificandum.  The Board found that the petition to revoke was untimely.  In addition, even assuming the petition was timely filed, the Board found that it was lacking in merit, as the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Union failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Members Hirozawa, Johnson and Schiffer participated.

SEIU, UHW (Dignity Health Care, St. John’s Pleasant Valley)  (31-CB-107829) Camarillo, CA, December 5, 2013.  Order denying the petition filed by SEIU, UHW, to revoke a subpoena duces tecum. The Board found that the petition was lacking in merit, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the union failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Members Hirozawa, Johnson and Schiffer participated.

Marquez Brothers Enterprises, Inc.  (21-CA-078519)  Industry, CA, December 6, 2013.  No exceptions having been filed,  the Board adopted the findings and conclusions of the Administrative Law Judge that the Respondent had engaged in certain unfair labor practices, and ordered the Respondent to take the action set for the in the Judge’s recommended Order to remedy the unfair labor practices.  Charge filed by Teamsters Local 630, International Brotherhood of Teamsters.

MHA, LLC d/b/a Meadowlands Hospital Medical Center (22-CA-086823) Secaucus, NJ, December 6, 2013.  The Board denied the Respondent Employer’s Motion to Dismiss the Complaint, on the ground that the Respondent had failed to establish that there are no material issues of fact and that it is entitled to judgment as a matter of law.  Members Hirozawa, Johnson, and Schiffer participated.

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Appellate Court Decisions

D.R. Horton, Inc., Board Case No. 12-CA-25764 (reported at 357 NLRB No. 184) (5th Cir. decided December 3, 2013)

In a published opinion that issued December 3, the Court rejected several quorum-related challenges to the Board’s order in the above-captioned case and upheld the Board’s finding that employees reasonably would read the employer’s mandatory arbitration agreement to prohibit the filing of unfair-labor-practice charges.  The Court split 2-1, however, in refusing to uphold the Board’s determination that arbitration agreements waiving joint, class, or collective actions, which necessarily precluded concerted pursuit of work-related claims in any forum, unlawfully restricted employees’ Section 7 right to engage in concerted activity for mutual aid or protection.  Judge Graves would have enforced the Board’s order in full.

Horton is a home builder with operations in over 20 states.  In 2006, it implemented a mandatory arbitration agreement as a condition of employment.  The agreement provided that Horton and its employees “voluntarily waive[d] all rights to trial in Court before a judge or jury on all claims between them,” and would instead bring those disputes—including claims for “wages, benefits, or other compensation”—to arbitration.  The agreement stipulated that the arbitrator would “not have the authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding.” 

On January 3, 2012, at a time when the Board had only three sitting members, Chairman Pearce and Member Becker (Member Hayes was recused) concluded that Horton’s policy violated the Act in two ways.  First, the Board adopted the administrative law judge’s finding that the policy’s language would cause reasonable employees to believe that they could not file unfair-labor-practice charges with the Board, contrary to Section 8(a)(1) of the Act.  Second, the Board held the agreement’s waiver of any collective or class action inconsistent with Section 7’s guarantee to employees of the right to invoke legal action in concerted fashion for mutual aid or protection. 

On review before the Fifth Circuit, the Court initially faced—and rebuffed—several challenges to the Board’s composition.  First, it decided that Horton had waived a challenge to the constitutionality of Member Becker’s recess appointment by failing to bring it to the Court’s attention in opening briefs.  In holding that Horton could waive that argument, the Court relied on language in the Act conferring jurisdiction on the Court, Supreme Court precedent holding that appointments clause challenges are waivable, and the D.C. Circuit’s decision suggesting that recess appointment challenges do not go to subject matter jurisdiction.  Next, the Court held that Member Becker’s recess appointment had not expired before the Board issued the decision on January 3, 2012, concluding that the Senate’s failure to adjourn sine die meant that his term continued until noon on January 3 via the Constitution’s provision that a new session of Congress begins at that time.  Finally, the Court considered Horton’s assertion that the Board’s failure to explicitly delegate authority to act as a three-member panel to the three sitting Board members deprived the panel of the power to issue its order.  Rejecting that claim, the Court explained that, while the Board should “not treat delegation as an inconsequential technical matter and [should] establish some practice for delegation,” it was willing to “infer that when the entire three-member Board decided to act, it gave itself authority to act as three members” and “an express delegation would have been a semantical tying up of loose ends, without significance.”

Turning to the merits, the Court first addressed—and agreed with—Horton’s argument that the Federal Arbitration Act’s presumption in favor of private arbitration agreements trumped any policy to the contrary embodied in the Act.  The Board had held that an “individual who files a class or collective action regarding wages, hours or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in conduct protected by Section 7 . . . central to the [NLRA’s] purposes.”  And, as the Court conceded, some “cases under the NLRA give some support to the Board’s analysis.”  But, the Court continued, “[t]he Federal Arbitration Act (“FAA”) has equal importance in our review,” and “[c]aselaw under the FAA points us in a different direction than the course taken by the Board.”  Decisions under the FAA considering class action waivers under other statutes recognized that arbitration in itself does not waive any statutory right and that there is no right to utilize the procedural tool of class action litigation. 

Thus, the Court recognized that, for the Board to prevail, it must satisfy one of two exceptions to the FAA’s presumption that arbitration agreements should be enforced as written.  The Court looked first to the FAA’s savings clause, which requires enforcement of arbitration agreements unless there exist “such grounds . . . at law or in equity for the revocation of the contract.”  Rejecting the Board’s argument that violation of the NLRA constituted a “ground at law” for revocation of the contract, the Court relied on the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1746 (2011).   Concepcion invalidated a state law prohibiting class action waivers in arbitration agreements, in part because the procedural difficulties inherent in class action litigation, if required in arbitration, would “give companies less incentive to resolve claims on an individual basis,” contrary to the purpose of the FAA.  Finding that the Board’s interpretation of the NLRA to prohibit class waivers in arbitration agreements would have the same effect, the Court extended the reasoning of Concepcion to reject the Board’s savings-clause rationale.

Next, the Court evaluated whether the NLRA “contains a congressional command to override the FAA.”  Looking at the text of the NLRA, its history of reenactment, policies favoring arbitration in the labor-management context, Supreme Court cases holding that even statutes with specific provisions for class actions do not trump arbitration, and giving respect to the congressional policy favoring arbitration, the Court found no such override.  In sum, the Court did “not deny the force of the Board’s efforts to distinguish the NLRA from all other statutes that have been found to give way to requirements of arbitration,” but decided instead that “the rights of collective action embodied in this labor statute [do not] make it distinguishable from cases which hold that arbitration must be individual arbitration.” 

Finally, the Court turned to the Board’s finding that Horton’s mandatory arbitration policy would lead a reasonable employee to conclude that he or she was prohibited from filing unfair-labor-practice charges.  Citing the Board’s decisions in Bill’s Electric, 350 NLRB 292 (2007), and U-Haul Co. of California, 347 NLRB 375 (2006), enforced, 255 F. App’x 527 (D.C. Cir. 2007), the Court agreed with the Board that the agreement’s language waiving “the right to file a lawsuit or any other civil proceeding” could create a “reasonable impression . . . that an employee is waiving not just his trial rights, but his administrative rights as well.” 

Judge Graves would have enforced the Board’s order in full for the reasons the Board offered in its decision.  “The Board made it clear that it was not mandating class arbitration in order to protect employees’ rights under the NLRA, but rather was holding that employers may not compel employees to waive their NLRA right to collectively pursue litigation of employment claims in all forums, judicial and arbitral.” 

The Fifth Circuit’s decision is available here

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Administrative Law Judge Decisions

United States Postal Service  (19-CA-092096; JD(SF)-57-13)  Portland, OR.  Administrative Law Judge Eleanor Laws issue her decision on December 4, 2013.  Charges filed by American Postal Workers Union, AFL-CIO, Portland Oregon Area Local 128.

Nijjar Realty, Inc., d/b/a Pama Management  (21-CA-092054; JD(ATL)-31-13)  El Monte, CA.  Administrative Law Judge William Nelson Cates issued his decision on December 4, 2013.  Charge filed by an individual.

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