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Summary of NLRB Decisions for Week of March 24 - 28, 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

Pacific Coast Supply, LLC d/b/a Anderson Lumber Company  (20-CA-086308; 360 NLRB No. 67) North Highlands, CA, March 24, 2014.

The Board adopted the judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union because the statements submitted by four employees did not show that they did not want the Union to represent them for the purposes of collective bargaining.  Member Johnson relied solely on the statements submitted by two of those four employees.  Further, the Board found that, given the particular facts of this case, an affirmative bargaining order was necessary to remedy the Respondent’s unlawful withdrawal of recognition.  Charge filed by Chauffeurs, Teamsters, and Helpers Local 150, International Brotherhood of Teamsters.  Administrative Law Judge Mary Miller Cracraft issued her decision on June 19, 2013.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Murtis Taylor Human Services Systems  (08-CA-061918, et al.; 360 NLRB No. 66)  Cleveland, OH, March 25, 2014.

The Board adopted the judge’s findings that the Respondent violated Section 8(a)(1) of the Act by investigating an employee for Medicaid fraud, by requiring him to provide documentation confirming his immigration status and to provide the declarations page for his automobile insurance, and by restricting him from entering any of its facilities other than the facility where his workstation was located.  The Board also found that the Respondent violated Section 8(a)(3) and (1) by suspending and warning the employee because of his conduct in representing a fellow employee because that conduct did not fall outside the permissible scope of representative activity under Weingarten. In addition, the Board found that the Respondent violated Section 8(a)(5) and (1) by adopting a requirement that employees sign its notes of investigative interviews in order to attest to the veracity of those notes.  Finally, the Board found that the Respondent violated Sections 8(a)(5), (3), and (1) by discharging another employee for refusing to sign the notes of his investigative interview.  Charges filed by Service Employees International Union District 199, WV/KY/OH, The Healthcare and Social Services Union and individuals.  Administrative Law Judge Paul Bogas issued his decision on May 21, 2013.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Public Service Company of New Mexico  (28-CA-023391, 066164; 360 NLRB No. 45) Albuquerque, NM, March 27, 2014.

A unanimous Board panel, for the most part, adopted (or declined to pass on) the judge’s findings that the Respondent on a number of occasions unlawfully threatened and interrogated employees about their union activities, denied an employee his statutory right to an available union representative of his choice, refused to meet with the Union and that employee regarding a discrimination complaint that he filed, failed to provide the Union with relevant information that it requested, and made changes to the parties’ negotiated grievance procedure.  Further, a panel majority of Chairman Pearce and Member Schiffer adopted the judge’s finding that the Respondent’s requirement that more than one supervisor be present at initial grievance meetings was also an unlawful change, while Member Johnson, dissenting, concluded that this was not a material, substantial and significant change.  Finally, the panel unanimously concluded, contrary to the judge, that the Respondent unlawfully failed to furnish the Union with an email that the Respondent retained “on file,” implicating a Union steward in the misuse of company fuel cards. The Board found that the email was relevant to the Union’s statutory duty to represent the steward as a bargaining unit employee, and, specifically, that the Respondent’s unexplained retention of the email suggested that it might be used in the future for some purpose. The Board also unanimously adopted the judge’s dismissals of several other allegations.  Charges filed by International Brotherhood of Electrical Workers, Local Union No. 611, AFL-CIO. Administrative Law Judge Eleanor Laws issued her decision on June 22, 2012. Chairman Pearce and Members Johnson, and Schiffer participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

San Manuel Indian Bingo & Casino  (31-RC-114638)  Highland, CA, March 26, 2014.  Order denying the Petitioner’s request for review of the Acting Regional Director’s Order Dismissing Petition as not raising any substantial issues regarding whether the Acting Regional Director erred in finding that the Board did not have jurisdiction over the petitioned-for unit.  Petitioner—Law Enforcement Employees Benevolent Association, LEEBA.  Members Miscimarra, Hirozawa, and Johnson participated.

C Cases

Holy Cross Youth and Family Services, Inc. d/b/a Kairos Healthcare  (07-CA-105050)  Saginaw, MI, March 24, 2014.  No exceptions having been filed to the Administrative Law Judge’s findings that 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.  Charges filed by Local 517 M, Service Employees International Union.  Administrative Law Judge Mark Carissimi issued his decision on February 19, 2014.

Eddisons Facility Services LLC  (18-CA-089191, et al.)  Minneapolis, MN, March 25, 2014.  No exceptions having been filed to the Administrative Law Judge’s findings that 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.  Charges filed by Teamsters Local No. 120.  Administrative Law Judge Eric M. Fine issued his decision on September 18, 2013.

International Brotherhood of Electrical Workers, Local 98  (04-CC-090196)  Newtown Square, PA, March 25, 2014.  The Board granted the General Counsel’s Motion for Remand of Charge and remanded the matter to the Regional Director for further appropriate action. 

Alcoa, Inc. and Alcoa Power and Propulsion d/b/a Howmet Castings & Services, Inc.  (05-CA-092579)  Hampton, VA, March 26, 2014.  The Board denied, as untimely, the Employer’s petition to revoke a subpoena duces tecum.  Moreover, the Board found that, even assuming the petition was timely filed, it lacked merit because the subpoena sought relevant information and described the requested evidence with sufficient particularity.  Further, the Board concluded that the Employer had not established any other legal basis for revoking the subpoena.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

Flex Frac Logistics, LLC, Board Case No. 16-CA-027978 (reported at 358 NLRB No. 127) (5th Cir. Decided March 24, 2014)

In a published opinion the Court found that the employer waived an untimely challenge to the Board members’ recess appointments, and it enforced the Board’s finding that the employer’s confidentiality policy stymied employee discussions of wages in violation of Section 8(a)(1) of the National Labor Relations Act.

The employer is a Fort Worth, Texas-based non-unionized trucking company.  It requires employees to sign a confidentiality policy reading:

Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; ... organization management and marketing processes, plans and ideas, processes and plans, our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and art work. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any [employer] records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action.

The Board found that the confidentiality policy violated Section 8(a)(1) of the Act because employees would reasonably interpret the ban on disclosing “personnel information and documents” to prohibit discussing their salaries and wages with coworkers or non-employees.

On appeal to the Fifth Circuit, the Court enforced the Board’s order.  First, however, the Court held that the employer waived its argument that the President unconstitutionally appointed two members of the Board panel that decided the case.  The Court so decided because the employer failed to make that challenge until its reply brief and because the employer had not first raised it to the Board pursuant to 29 U.S.C. § 160(e).  With regard to the company’s claim that the recess appointments implicated the court’s jurisdiction, the Court followed the Fifth Circuit’s prior precedent to the contrary, see D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 351 (5th Cir. 2013).

Turning to the merits, the Court began by quoting its decision in NLRB v. Brookshire Grocery Co., 919 F.3d 359, 363 (1990):  “A ‘workplace rule that forb[ids] the discussion of confidential wage information between employees ... patently violate[s] section 8(a)(1).’”  Agreeing with the Board that employees would reasonably construe the confidentiality policy to prohibit discussion of wages, the Court observed that “[t]he confidentiality clause’s express terms prevent discussion of personnel information outside the company, and [the employer] presents no evidence that” employees ignored the clause’s explicit prohibition and discussed wages with non-employees.  The Court rejected the employer’s claim that employees did not actually interpret the clause to prohibit wage discussions, noting that “the actual practice of employees is not determinative” to determining whether a policy facially violates the Act.  Finally, the Court distinguished several judicial and Board cases as factually inapposite, given that the policies in those cases either did not specifically identify personnel information as prohibited category of discussion or contextually made clear that such information was not under the policy’s umbrella.

The Court’s published decision is available here.

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Administrative Law Judge Decisions

Reinhart Foodservice, L.L.C., d/b/a AGAR  (01-CA-106712; JD(NY)-12-14)  Taunton, MA.  Administrative Law Judge Joel P. Biblowitz issued his decision on March 24, 2014.  Charges filed by General Teamsters, Chauffeurs, Warehousemen & Helpers of Brockton & Vicinity, Local 653.

Corliss Resources, Inc.  (19-CA-093237, et al.; JD(SF)-11-14)  Sumner, WA.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on March 24, 2014.  Charges filed by Teamsters Local 174, affiliated with the International Brotherhood of Teamsters.

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1192, AFL-CIO, CLC (Buckeye Florida Corporation, a subsidiary of Buckeye Technologies, Inc. and Georgia, Pacific, LLC)  (12-CB-109654; JD(Atl)-13-14)  Perry, FL.  Administrative Law Judge William Nelson Cates issued his decision on March 24, 2014.  Charges filed by an individual.

Bentley University  (01-CA-111570; JD(NY-14-14)  Waltham, MA.  Administrative Law Judge Joel P. Biblowitz issued his decision on March 25, 2014.  Charges filed by Bentley University Public Safety Association.

Cooling For Less, Inc.  (28-CA-105006; JD(SF)-09-14)  Phoenix, AX.  Administrative Law Judge John J. McCarrick issued his decision on March 26, 2014.  Charges filed by an individual.

Battle’s Transportation, Inc.  (05-CA-098088; JD-13-14)  Washington, DC, March 26, 2014.  Administrative Law Judge Arthur J. Amchan issued his decision on March 26, 2014.  Charges filed by an individual.

Faro Screen Process, Inc.  (07-CA-102899; JD-14-14)  Canton, MI.  Administrative Law Judge David I. Goldman issued his decision on March 27, 2014.  Charge filed by Local 592, Sign and Display Union, International Union of Painters and Allied Trades of the United States and Canada (IUPAT), AFL-CIO/CLC.

Domino’s Pizza, LLC  (29-CA-103180; JD(NY)-15-14)  Brooklyn, NY.  Administrative Law Judge Mindy E. Landow issued her decision on March 27, 2014.  Charge filed by Fast Food Workers Committee.

Durham School Services, L.P.  (05-CA-088893, et al.; JD-16-14)  Rosedale, MD.  Administrative Law Judge Arthur J. Amchan issued his decision on March 28, 2014.  Charges filed by International Brotherhood of Teamsters, Local 570.

Cobalt Coal, Ltd., Westchester Coal, L.P., and Cobalt Coal Corp. Mining Inc.  (09-CA-112146; JD-15-14)  Hensley, WV.  Administrative Law Judge Paul Bogas issued his decision on March 28, 2014.  Charge filed by United Mine Workers of America, AFL-CIO.

AAA Residential Services of Montana, Inc.  (19-CA-072863, et al.; JD(SF)-12-14)  Missoula, MT and Tacoma, WA.  Administrative Law Judge William L. Schmidt issued his decision on March 28, 2014.  Charges filed by SEIU Healthcare 775NW.

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