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Summary of NLRB Decisions for Week of May 27 - 30, 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

Mi Pueblo Foods  (32-CA-064836; 360 NLRB No. 121)  Northern California, May 28, 2014.

In the absence of exceptions, a unanimous Board panel adopted the Administrative Law Judge’s finding that the Respondent unlawfully threatened an employee that he would likely not be promoted if the Union came in and interrogated two employees on separate occasions about their union sympathies.  The Board also adopted the judge’s recommended cease and desist order and order requiring that the Respondent post the Board’s notice at the Respondent’s California retail stores.  Charge filed by United Food and Commercial Workers Union, Local 5.  Administrative Law Judge Mary Miller Cracraft issued her decision on June 21, 2012.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Plaza Auto Center, Inc.  (28-CA-022256; 360 NLRB No. 117)  Yuma, AZ, May 28, 2014.

Following a remand from the United States Court of Appeals for the Ninth Circuit that instructed the Board to reapply the four-factor Atlantic Steel, 245 NLRB 814 (1979), test for determining when an employee’s outburst during protected activity costs the employee the protection of the Act, a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that an employee did not lose the protection of the Act by his outburst and, accordingly, that the Respondent unlawfully discharged him for engaging in protected concerted activity.  Member Johnson, dissenting, would have found that the employee’s outburst caused him to lose the Act’s protection, and that the Respondent therefore did not violate the Act by discharging him.  Charge filed by an individual.  Administrative Law Judge Lana H. Parke issued her decision on July 21, 2009.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Greenbrier VMC, LLC, d/b/a Greenbrier Valley Medical Center  (10-CA-094646; 360 NLRB No. 127)  Ronceverte, WV, May 29, 2014.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) and (1) by issuing a written warning and performance improvement plan to an employee, and by changing his work schedule because of his activities in support of National Nurses Organizing Committee, AFL-CIO.  Member Johnson joined his colleagues in finding the issuance of the performance improvement plan and schedule change unlawful, but disagreed that the written warning, not specifically alleged in the complaint, was properly before the Board for consideration.  Charge filed by National Nurses Organizing Committee, AFL-CIO (NNOC).  Administrative Law Judge Robert A. Ringler issued his decision on January 23, 2014.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Flex Frac Logistics, LLC and Silver Eagle Logistics, LLC, Joint Employers  (16-CA-027978; 360 NLRB No. 120)  Fort Worth, TX, May 30, 2014.

The Board affirmed the judge’s finding on remand from the Board that the Respondent lawfully discharged an employee even though it was pursuant to an overbroad work rule.  Applying Continental Group, 358 NLRB No. 39 (2011), the Board reasoned that although the employee’s conduct arguably implicated the concerns underlying Section 7 of the Act, any chilling effect on employees would be minimal because the Respondent plainly discharged her for her gross misconduct of deliberately betraying the Respondent’s clear confidentiality interests and harming the company.  Member Miscimarra, agreeing with the outcome, would not have applied Continental Group because, in his view, the unprotected nature of the employee’s conduct meant her discharge was lawful whether or not the Respondent applied an overbroad rule.  Charge filed by an individual.  Administrative Law Judge Margaret G. Brakebusch issued her supplemental decision on January 28, 2013.  Members Miscimarra, Hirozawa, and Schiffer participated. 

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Local 560, International Brotherhood of Teamsters (County Concrete Corporation)  (22-CC-068160, et al.; 360 NLRB No. 125)  Jersey City and Hanover, NJ, May 30, 2014.

A Board panel majority consisting of Chairman Pearce and Member Johnson adopted the Administrative Law Judge’s conclusion that the Respondent Union violated Section 8(b)(4)(ii)(B) by unlawfully enmeshing neutral employer Sharp Concrete Corporation in the Union’s area standards dispute with County Concrete Corporation.  Although the Union notified Sharp by letter that it would comply with the relevant law governing picketing and target only County Concrete, the Board agreed with the judge that, in a telephone conversation to Sharp, the Union made inconsistent and unlawful threats that it would picket Sharp in furtherance of its dispute with County.  Member Hirozawa dissented. In his view, the Union’s telephone statements neither modified nor negated the lawful assurances in its letter that it sought only to apply pressure against primary employer Country Concrete.  A different panel majority consisting of Chairman Pearce and Member Hirozawa reversed the judge and found that the Union did not violate Section 8(b)(4)(ii)(B) by unlawfully enmeshing neutral employer Macedos Construction LLC in its dispute with Country Concrete.  Unlike with Sharp, the Board panel majority found that nothing in the Union’s conversations with Macedos conflicted with or negated the lawful message in the Union’s letter to Macedos that the sole purpose of any picketing would be primary.  Member Johnson dissented.  In his view, the Union’s various statements to Macedos demonstrated an unlawful secondary objective of enmeshing Macedos in the Union’s dispute with County Concrete.  Charge file by County Concrete Corporation.  Administrative Law Judge Lauren Esposito issued her decision on February 15, 2013.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Magnum Transportation, Inc.  (13-RC-113924; 360 NLRB No. 129)  Chicago, IL, May 30, 2014.

The Board adopted the hearing officer’s recommendations to sustain a challenge to a determinative ballot and overrule objections to an election held on November 8, 2013.  The Board found no evidence that the Board agent engaged in misconduct.  Accordingly, the Board certified the Petitioner—Excavating, Grading, Asphalt, Private Scavengers and Recyclers, Automobile Salesroom Garage Attendants, Linen and Laundry and Machinery, Scrap Iron, Steel and Metal Trade Chauffeurs, Handlers, Helpers and Allot Fabricators, Teamsters Local Union No. 731—as the exclusive collective-bargaining representative of the petitioned-for unit employees.  Members Miscimarra, Hirozawa, and Schiffer participated, with Member Miscimarra concurring.

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Metro-West Ambulance Service, Inc.  (36-CA-010801, et al.; 360 NLRB No. 124)  Hillsboro, OR, May 30, 2014. 

The Board adopted the judge’s findings that the Respondent unlawfully took several adverse actions up to and including the discharge of the lead union adherent among its employees.  Specifically, in October 2010, the Respondent violated Sec. 8(a)(3) and (1) of the Act by suspending, demoting, and issuing a corrective action plan to the discriminatee based on perceived, sarcastic comments he made about the need for a union to a supervisor and in the presence of a trainee. It violated Sections 8(a)(3), (4), and (1) of the Act by extending the dischargee’s corrective action plan in March 2011 because he engaged in union activities and filed Board charges; putting him on a performance improvement plan in July 2011; issuing to him and a coworker corrective action memoranda in August 2011; and discharging him  in October 2011. In the absence of exceptions, the Board adopted the judge’s findings that the Respondent violated Sec. 8(a)(1) of the Act by engaging in surveillance of employees’ union activities or to determine their union activities; enforcing rules prohibiting employees from wearing union pins and remaining on the property after shift; interrogating employees about union activities; and threatening an employee about his future prospects with the company because of his union support.  The Board also adopted the judge’s dismissal of allegations that the Respondent unlawfully suspended the discharged discriminatee and issued discipline to another for a delay in picking up a nonemergency patient from the hospital in October 2011. Member Johnson did not join his colleagues in finding that the Respondent unlawfully put the discriminatee on a performance improvement plan in July 2011.  As for the October 2010 adverse actions, Member Schiffer found that the discriminatee was engaged in protected and union activities when he made his comments about a union. Members Miscimarra and Johnson noted that some of the discriminatee’s past performance deficiencies could reasonably have warranted his discharge, but that the Respondent failed to carry its burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) to show that it would have discharged him were it not for his protected and union activities.  Charges filed by Teamsters Joint Council #37, International Brotherhood of Teamsters, and Teamsters Local #223, International Brotherhood of Teamsters. Administrative Law Judge Eleanor Laws issued her decision on November 9, 2012.  Members Miscimarra, Johnson, and Schiffer participated.

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Food Services of America, Inc., a subsidiary of Service Group of America, Inc.  (28-CA-063052; 360 NLRB No. 123)  Scottsdale, AZ, May 30, 2014. 

A Board panel majority, consisting of Members Hirozawa and Schiffer, reversed the Administrative Law Judge and found that the Respondent unlawfully discharged an employee for engaging in the protected concerted activity of warning a coworker that she was in danger of being discharged for poor work performance.  Dissenting in relevant part, Member Miscimarra would have found that the employee’s conduct was unprotected because she simultaneously made statements to the coworker that Member Miscimarra found subverted their supervisor’s authority.  In addition, the Board panel unanimously adopted the judge’s recommendation to dismiss a complaint allegation that the Respondent unlawfully discharged another employee for forwarding hundreds of business emails to the first discharged employee.  The Board found that the mass email transfer was unprotected by the Act because many of the messages contained confidential business information.  The Board separately found that the Respondent violated Section 8(a)(1) of the Act by maintaining an overly restrictive no-solicitation policy and by threatening employees with unspecified reprisals were they to engage in protected concerted activities.  The charge was filed by an individual. Administrative Law Judge Joel P. Biblowitz issued his decision on March 27, 2012.  Members Miscimarra, Hirozawa, and Schiffer participated.

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LAX Hilton Hotel (Fortuna Enterpreises, L.P. a Delaware Partnership d/b/a The Los Angeles Airport Hilton Hotel and Towers)  (31-CA-027837; 360 NLRB No. 128)  Los Angeles, CA, May 30, 2014.

On remand from the D.C. Circuit Court of Appeals, the Board reaffirmed an earlier Board’s finding that the Respondent violated Section 8(a)(1) of the Act by suspending and threatening to suspend employees for engaging in a protected on-site work stoppage.  Member Johnson concurred in the result, but wrote separately to express his view that the majority failed to give adequate weight to the availability of the employer's "Open Door" policy as an alternative means for employees to present their grievance.  Charges filed by UNITE HERE, Local 11.  Chairman Pearce and Members Johnson and Schiffer participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Go New York Tours, Inc.  (02-RC-116354)  New York, NY, May 28, 2014.  The Board adopted the Regional Director’s recommendation to sustain objections to an election, which alleged that the Employer submitted an incomplete list of eligible voters names and addresses, omitting approximately 10 percent of employee names and 70 percent of employee addresses, one day after the due date; and the Employer submitted an untimely revised eligibility list, no earlier than 8 days prior to the election.  Accordingly, the Board adopted the Regional Director’s recommendation to set aside the election and direct a second election.  Petitioner—United Construction Trades and Industrial Employees Union, Local 621.  Chairman Pearce and Members Johnson and Schiffer participated.

Exposition Storage Services, LLC  (28-RC-109730)  Las Vegas, NV, May 28, 2014.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the hearing officer’s findings and recommendations to sustain the challenges to four ballots cast in a representation election.  The Board adopted the hearing officer’s findings that the individuals who cast the challenged ballots were not seasonal employees.  The panel majority stated that, absent special circumstances, it evaluated the question of whether those individuals were eligible as casual employees under the standard formula set out in Davison-Paxon Co., 185 NLRB 21 (1970).  The panel majority found that none of the voters in question were eligible under that formula, and that the Employer had shown no special circumstance that would warrant deviating from the formula.  Accordingly, the panel majority certified the Petitioner Union as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Member Miscimarra stated that he would apply a modified version of the Davison-Paxon test, and would remand to the Region for a determination of whether two of the individuals who cast challenged ballots were eligible under that modified test.  Petitioner—Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 631 affiliated with International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

United Rentals North America  (14-RC-126113)  Cape Girardeau, MO, May 28, 2014.  The Board found that the Employer’s request for review of the Regional Director’s Decision and Direction of Election raised a substantial issue solely with respect to the inclusion of the outside sales representative in the unit found appropriate.  Consequently, the Board amended the Decision and Direction to exclude the outside sales representative employed at the Employer’s Cape Girardeau facility from the unit.  The Board found that the reluctance to exclude a single employee from an otherwise appropriate unit expressed in United Rentals, 342 NLRB 540, 542 fn. 11 (2004), was not a sufficient basis for disregarding the parties’ stipulation to exclude the outside sales representative from the Cape Girardeau unit, citing Carl’s Jr., 285 NLRB 975, 975 fn. 1 (1987).  The Board denied review in all other respects.  In doing so, the Board agreed with the Regional Director that the Employer has failed to rebut the presumption that the single-facility unit of drivers, service technicians, and inside sales representatives employed at the Cape Girardeau facility is appropriate.  The Board did not reach the question of whether the Board’s test in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), applied under the circumstances of this case.  Petitioner—International Union of Operating Engineers, Local 513.  Chairman Pearce and Members Hirozawa and Johnson participated.

American Medical Response of Southern California  (21-RC-106534)  Los Angeles, CA, May 29, 2014.  No exceptions having been filed to the Acting Regional Director’s Second Supplemental Decision overruling objections to a second election conducted by mail ballot between February 10 and February 28, 2014, the Board remanded the proceeding to the Regional Director to conduct a runoff election between the two Unions that received the highest and second-highest number of votes cast in the second election among the three Unions on the ballot.  The runoff election will be between Petitioner National Association of Government Employees Affiliated with Service Employees International Union (SEIU/NAGE Local 5000) and Intervenor United Emergency Medical Services Workers, AFSCME Local 4911, AFL-CIO.

FJC Security Services  (22-RC-115634)  Floral Park, NY, May 30, 2014.  A Board panel majority consisting of Members Miscimarra and Johnson denied Intervenor Service Employees International Union, Local 32BJ’s Request for Review of the Regional Director’s Decision and Direction of Election.  The Board panel majority decided that although the Request for Review raised a significant question of statutory interpretation concerning Sec. 9(b)(3) of the Act, it would decline to address the question at this time.  Member Hirozawa, dissenting, would have granted the Request for Review.  Petitioner—Protective Security Officers Association.  Members Miscimarra, Hirozawa, and Johnson participated. 

Freudenberg-Nok, General Partnership  (08-RC-107929)  Milan, OH, May 30, 2014.  The Board adopted the hearing officer’s recommendations to sustain the challenges to the ballots of the Employer’s summer associates, finding that they did not share a community of interest with the Employer’s regular full and part-time employees.  Accordingly, the Board found that a majority of the valid ballots have been cast for Petitioner International Union, United Automobile Aerospace and Agricultural Implement Workers of America, and certified it as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Chairman Pearce and Members Hirozawa and Johnson participated.

Great Lakes Elevator  (07-RC-115360)  Williamston, MI, May 30, 2014.  A Board panel adopted the hearing officer’s recommendation to overrule the challenge to the ballot of an employee because he was not shown to be either a supervisor or a manager. Further, in the absence of exceptions, the panel adopted pro forma the hearing officer’s recommendation to overrule the challenge to another ballot.  Accordingly, the Board directed the Regional Director to open and count the two ballots, serve on the parties a revised tally, and issue the appropriate certification.  Petitioner—International Union of Elevator Constructors, AFL-CIO.  Chairman Pearce and Members Johnson and Schiffer participated.

Altech Services, Inc.  (22-RC-114472)  Jersey City, NJ, May 30, 2014.  No exceptions having been filed to the hearing officer’s recommendations that the Employer’s Objection No. 1 be sustained and that the election held on November 12, 2014 be set aside, the Board remanded this proceeding to the Regional Director for further appropriate action, including the conducting of a rerun election.  Petitioner—Transport Workers Union Local 229. 

Lake County Farm Bureau Co-Op  (13-RC-124207)  Crown Point, IN, May 30, 2014.  No exceptions having been filed to the Regional Director’s overruling of the challenge to a ballot cast in an election held April 21, 2014, the Board ordered the Regional Director to open and count the challenged ballot, prepare a revised tally of ballots, and issue the appropriate certification.

C Cases

Latrobe Healthcare LLC d/b/a Latrobe Health and Rehabilitation Center  (06-CA-125238) Lancaster, OH, May 27, 2014.  The Board denied the Employer’s petition to revoke a subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by Teamsters Local Union 30 a/w International Brotherhood of Teamsters.  Chairman Pearce and Members Johnson and Schiffer participated.

Vendrite Vending Corp.  (29-CA-122982)  Flushing, NY, May 27, 2014.  The Board denied the Employer’s petition to revoke a subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman Pearce and Members Johnson and Schiffer participated.

Amphenol Griffith Enterprises, LLC  (28-CA-112759)  Cottonwood, AZ, May 27, 2014.  Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Respondent must take to comply with the National Labor Relations Act.  Charge filed by International Brotherhood of Electrical Workers, AFL-CIO.  Chairman Pearce and Members Johnson and Schiffer participated.

Apple American Group LLC Applebees, d/b/a Applebees Neighborhood Grill and Bar  (18-CA-103319)  South Saint Paul, MN, May 29, 2014.  The Board granted the Respondent’s motion for reconsideration, and rescinded the Board’s April 22, 2014 Board Order that rejected the Respondent’s exceptions and supporting brief as untimely filed.

International Longshore and Warehouse Union, Local 200, Unit 16  (19-CC-109002)  Ketchikan, AR, May 29, 2014.  Decision and Order approving a formal settlement stipulation between the Respondent Union and the General Counsel, and specifying the actions the Union must take to comply with the National Labor Relations Act.  Charge filed by Southeast Stevedoring Corporation, which did not execute the settlement stipulation and objected to the settlement.  Chairman Pearce and Members Johnson and Schiffer participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board decisions to report.

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Administrative Law Judge Decisions

International Longshore and Warehouse Union, AFL-CIO  (19-CC-100903; JD(SF)-24-14) Portland, OR.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on May 30, 2014.  Charges filed by ICTSI Oregon, Inc.

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