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Summary of NLRB Decisions fo Week of June 22 - 26, 2015

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

King’s Fire Protection, Inc. and its alter ego Warrior Sprinkler, LLC  (05-CA-036094 and 05-CA-036312; 362 NLRB No. 129)  Mechanicsburg, PA, June 23, 2015.

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 decision and order.  For the reasons stated in its now-vacated Decision and Order reported at 358 NLRB No. 156, a Board panel majority consisting of Members Hirozawa and McFerran adopted the Judge’s conclusion that the Respondents and the Charging Party Union had a bargaining relationship governed by Section 9(a), rather than Section 8(f), of the Act, and that the Respondents unlawfully terminated the bargaining relationship and failed to abide by all of the terms of the bargaining agreement that expired on March 31, 2010.  The Board majority relied solely on the language of the parties' 2005 assent and interim agreement that comported with the requirements of Central Illinois Construction (Staunton Fuel) 335 NLRB 717 (2001), for establishing a bargaining relationship under Section 9(a) in the construction industry. Member Miscimarra, dissenting in part, found that the language in the 2005 assent and interim agreement was insufficient to rebut the presumption that the bargaining relationship was governed by Section 8(f) because he found that record evidence undermined that agreement’s representation that the Union had established majority support.  He concurred in finding that the Respondents violated the Act to the extent that they failed to apply the terms of the parties’ 2007-2010 contract prior to its expiration. Charge filed by Road Sprinklers Fitters, Local Union No. 669, U.A., AFL-CIO.  Administrative Law Judge Bruce D. Rosenstein issued his decision on July 28, 2011.  Members Miscimarra, Hirozawa, and McFerran participated.

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Fresenius USA Manufacturing, Inc.  (02-CA-039518; 362 NLRB No. 130)  Chester, NY, June 24, 2015. 

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 decision, the record in light of the exceptions and briefs, and the Board’s now-vacated Decision and Order, which is reported at 358 NLRB No. 138.  The Board concluded that the Respondent violated Section 8(a)(1) when it discouraged an employee from speaking to other employees about its investigation into the comments he wrote on union newsletters.  The Board additionally concluded that the Respondent lawfully investigated the employee’s handwritten comments and lawfully questioned the employee about his comments.  Finally, the Board concluded that the Respondent lawfully suspended and discharged the employee.  The Respondent disciplined the employee both for his handwritten comments and for his dishonesty during the investigation. The Board found that the employee’s dishonesty was not protected by the Act.  The Board further found that, even assuming the employee’s handwritten comments were protected by the Act, the Respondent established that it would have suspended and discharged the employee for his unprotected dishonesty alone.  Charge filed by the International Brotherhood Teamsters, Local 445.  Administrative Law Judge Margaret G. Brakebusch issued her decision on August 19, 2010.  Chairman Pearce and Members Johnson and McFerran participated.

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The H.O.P.E. Program  (07-CA-144755; 362 NLRB No. 128)  Wyoming, MI, June 24, 2015.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(1) by directing employees to sign a non-disclosure agreement prohibiting them from discussing wages and other terms and conditions of their employment and discharging an employee who refused to sign the agreement.  The Board ordered the Respondent to rescind the non-disclosure agreement, remove from its files and records all references to the non-disclosure agreement, and notify employees in writing that this has been done and that the non-disclosure agreement is no longer in force.  In addition, the Board ordered the Respondent to offer reinstatement to the discharged employee, make her whole for any loss of earnings and other benefits she may have suffered as a result of the Respondent’s unlawful conduct, compensate the employee for any adverse tax consequences of receiving a lump-sum backpay award and file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters, and remove references to the unlawful discharge from the employee’s file.  The Board declined at this time to order the relief the General Counsel requested in the complaint—to reimburse the employee for any out-of-pocket expenses incurred while searching for work as a result of the discrimination against her—noting that the relief sought would involve a change in Board law, that the appropriateness of this proposed remedy should be resolved after a full briefing by the affected parties, and that there has been no such briefing in this case.  Charge filed by an individual.  Members Hirozawa, Johnson, and McFerran participated.

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Casworth Enterprises, Inc.  (04-CA-142471; 362 NLRB No. 131)  Westville, NJ, June 24, 2015.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  Accordingly, the Board found that the Respondent violated Section 8(a)(1) by interrogating employees, and Section 8(a)(3) and (1) by more closely scrutinizing and monitoring the work of an employee, and discharging that employee.  The Board ordered the Respondent to offer the unlawfully discharged employee full reinstatement to his former job, make him whole for any loss of earnings and other benefits he may have suffered as a result of the Respondent’s unlawful conduct, compensate the employee for any adverse tax consequences of receiving a lump-sum backpay award, file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters, and remove references to the unlawful discipline and discharge from the employee’s file.  Charge filed by an individual.  Members Hirozawa, Johnson, and McFerran participated.

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G4S Regulated Security Solutions, a Division of G4S Secure Solutions (USA) Inc. f/k/a The Wackenhut Corporation  (12-CA-026644 and 12-CA-026811; 362 NLRB No. 134)  Miami-Dade County, FL, June 25, 2015.

Following 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 decision and supplemental decision, the record, the exceptions and briefs in this case.  For the reasons stated in its earlier decision, reported at 358 NLRB No. 160, a Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the Judge’s finding that two lieutenants in the security force at the Turkey Point, FL, nuclear power plant were statutory supervisors who were not covered by the Act’s protections.  The Board majority concluded that the guards did not have any of the four indicia of supervisory authority found by the Judge.  For the reasons stated in its earlier supplemental decision reported at 359 NLRB No. 101, the Board majority also adopted the Judge’s supplemental decision finding that the Respondent violated the Act by discharging the two lieutenants because of their concerted protected activity, and violated the Act by suspending each employee before it discharged him.  Member Miscimarra dissented.  He found that the lieutenants were supervisors based on their authority to discipline bargaining unit guards and, accordingly, he would have dismissed the complaint.  Charges filed by two individuals.  Administrative Law Judge William N. Cates issued his decision on June 27, 2011, and his supplemental decision on November 16, 2012.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Lewis Foods of 42nd Street, LLC, a McDonald’s franchisee and McDonald’s USA, LLC, joint employers, et al.  (02-CA-093893, et al.; 362 NLRB No. 132)  New York, NY, June 26, 2015.

A full-Board majority consisting of Chairman Pearce and Members Hirozawa and McFerran denied Respondent McDonald’s USA’s appeal of the Administrative Law Judge’s ruling denying its request for transcription of a conference call concerning scheduling and production of information.  The Board majority found that McDonald’s USA failed to establish that the Judge abused her discretion in denying its request, and that the Judge’s letter scheduling the conference calls could not reasonably be read as contemplating the submission of oral motions during the calls.

Member Miscimarra dissented, stating that in his view the conference obviously involved overlapping substantive and procedural issues.  Further, Member Miscimarra stated that denying the request for a record fosters the appearance of unfairness and, in this complicated case, the Judge is well-advised to have a record made regarding all discussions involving potentially disputed matters and otherwise, at the request of any party.

Member Johnson, concurring in part and dissenting in part, concurred to the extent that the motion should be denied as moot, as the teleconference has already occurred, and stated that the motion, as it relates to requesting an in-person proceeding for future subpoena-related matters, should also be denied in that McDonald’s USA failed to establish that the Judge abused her discretion.  Further, Member Johnson concurred with the ruling insofar as it interprets Section 102.24(a) of the Board’s Rules and Regulations to require written motions or that oral motions be transcribed on a record now that the hearing has opened.  However, he found that the General Counsel did attempt to make a substantive motion that requires a transcribed record, and he dissented from the part of the Board’s Order that does not grant the appeal on the merits for future teleconferences, in certain outlined circumstances.  Specifically, he stated that where any party (i) intends to ask the Judge for any form of relief or order as part of the teleconference proceedings, or actually asks or discusses the same at the teleconference, or (ii) a party or the Judge intends to request or actually requests any form of binding agreement or stipulation from another party during the proceedings, this falls within the ambit of a “motion” that triggers Rule 102.24(a).

In a footnote, Member Johnson noted that McDonald’s USA did not file its lengthy request for special permission to appeal until one day before the pre-hearing teleconference when it was not practicable for the Board to consider the voluminous pleadings and act in a timely manner.  Member Johnson also reminded all parties that in the context of such a massive case, if expedited consideration is required, they should caption their filings accordingly, make the request for expedition clear in a motion, notify the Office of the Executive Secretary of the need, and make any other appropriate efforts to indicate to the Board the sensitive nature of the request.  He also stated his view that blanket requests to consider all special appeals in this case to be emergencies are improper.  Charges filed by Fast Food Workers Committee and Service Employees International Union, CTW, CLC et al.  Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.

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Banner Health System d/b/a Banner Estrella Medical Center  (28-CA-023438; 362 NLRB No. 137)  Phoenix, AZ, June 26, 2015.

Following 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 decision, the record, the exceptions, cross-exceptions and briefs in this case. The Board partially adopted the Judge’s rulings, findings, and recommended Order for the reasons stated in its earlier Decision and Order, reported 358 NLRB No. 93 (2012).  The Board agreed with the Judge’s finding that the Respondent did not violate Section 8(a)(1) by issuing a “coaching” to an employee for failing to follow the directions of a supervisor.  The Board also agreed with the Judge that the Respondent did not violate Section 8(a)(1) by giving the employee an annual performance review containing negative comments because those comments were based on complaints by coworkers prior and unrelated to the insubordination incident.  Contrary to the Judge and their dissenting colleague, a Board panel majority consisting of Members Hirozawa and McFerran found that the Respondent violated Section 8(a)(1) by unlawfully requesting that employees who were involved in a workplace investigation not discuss the matter with their coworkers while the investigation was ongoing.  Dissenting in part, Member Miscimarra agreed with the Judge’s conclusion that a narrowly tailored nondisclosure request like the one at issue here, even if made routinely, is lawful under the Act.  He stated that the majority’s invalidation of the nondisclosure request reflects a failure to properly balance Section 7 rights against the legitimate reasons that exist for such a request.  Administrative Law Judge Jay R. Pollack issued his decision on October 31, 2011.  Charges filed by an individual.  Members Miscimarra, Hirozawa, and McFerran participated. 

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American Baptist Homes of the West d/b/a Piedmont Gardens  (32-CA-063475; 362 NLRB No. 139)  Oakland, CA June 26, 2015.

A full-Board majority consisting of Chairman Pearce and Members Hirozawa and McFerran overruled Anheuser-Busch, Inc., 237 NLRB 982 (1978), a case that created a blanket rule exempting witness statements from the general obligation to honor union requests for information.  In future cases when an employer argues that it has a confidentiality interest in protecting witness statements from disclosure, the Board will apply the balancing test set forth in Detroit Edison v. NLRB, 440 U.S. 301 (1979).  Under Detroit Edison, the Board balances the union’s need for requested information against any legitimate and substantial confidentiality interests established by the employer. The Board applied the new rule prospectively only. 

In dissent, Members Miscimarra and Johnson would have maintained the Board’s blanket exemption for witness statements.  The dissenting members argued that the Board’s new rule will make it harder for employers to conduct internal investigations and runs afoul of other statutory requirements to maintain confidentiality.

The Board previously had issued a decision in this case on December 15, 2012, which is reported at 359 NLRB No. 46.  At the time of this decision, the composition of the Board included two persons whose appointments to the Board were found to be invalid by the U.S. Supreme Court in NLRB v. Noel Canning, 134 S.Ct 2550( 2014).  In view of the Noel Canning decision, the Board considered de novo the Administrative Law Judge’s decision and the record in light of the exceptions and briefs.  The Board also considered the now-vacated decision issued on December 15, 2012.  Administrative Law Judge Gerald M. Etchingham issued his decision on April 16, 2012.  Charges filed by Service Employees International Union, United Healthcare Workers-West.  Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated. 

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Dresser-Rand Company  (03-CA-026543, et al.; 362 NLRB No. 136)  Painted Post, NY, June 26, 2015. 

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 decision and the record in light of the exceptions and briefs.  The Board also considered its now-vacated decision in this case that was issued on August 6, 2012, which is reported at 358 NLRB No. 97.  The Board found that the Respondent violated Section 8(a)(3) by locking out full-term strikers and former strikers who abandoned the strike (“crossovers”), reinstating crossovers ahead of full-term strikers, discharging a striker for purported strike misconduct, suspending a reinstated striker for referring to permanent striker replacements as “scabs” during a floor meeting, and denying accrued vacation leave to certain strikers.  The Board also found that the Respondent violated the Act by failing to bargain over the process of returning strikers to work and the elimination of paid lunch breaks on voluntary weekend overtime shifts.  Member Johnson dissented regarding the illegality of the lockout. He disagreed with the majority over whether the Respondent’s post-lockout conduct proved antiunion animus in its decision to implement the lockout.  Charges filed by IUE-CWA, AFL-CIO, Local 313.  Administrative Law Judge Mark D. Rubin issued his decision January 29, 2010.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Schwarz Partners Packaging, LLC d/b/a MaxPak  (12-CA-109207; 362 NLRB No. 138)  Lakeland, FL, June 26, 2015.

The Board granted the General Counsel’s Motion for Summary Judgment, finding that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union and by withdrawing recognition from the Union. The Board found no merit in the Respondent’s arguments that it has no bargaining obligation because (1) the Board lacked a quorum at the time that the Board considered the parties’ objections to the first election and issued the August 29, 2012 Decision and Direction in the underlying representation case, and (2) due to the lack of a quorum the Union was never lawfully certified following the second election held pursuant to that Decision and Direction.

Thus, the Board found that the Respondent waived its right to challenge the validity of the Union’s certification when it entered into negotiations with the Union following the Union’s certification.  The Board found that that following the Union’s request that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit employees, the Respondent bargained with the Union on three dates in January 2013 and subsequently agreed to schedule new collective-bargaining meetings with the Union to be held on three dates in March 2013, but that the Respondent later cancelled those sessions and has refused to bargain with the Union since that date.

The Board noted that to preserve its right to challenge the Union’s certification, the Respondent was required to avail itself of the well-established test-of-certification procedures, namely, refusing to bargain and later defending against the resulting refusal-to-bargain complaint by asserting an affirmative defense that the certification was improper. Thus, the Board found that the Respondent has waived its right to challenge the validity of the Union’s certification.

The Board found that there are no issues warranting a hearing because the Respondent has admitted the crucial factual allegations of the complaint, and although the Respondent denies that it withdrew recognition from the Union, its denial is not supported by any argument that would establish the existence of a genuine issue of material fact regarding this issue. Rather, its denial of this allegation appears to be premised on an implicit assertion that it never recognized the Union, rather than a claim that it is continuing to recognize Union. Charge filed by United Steelworkers International Union.  Chairman Pearce and Members Hirozawa and McFerran participated.

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American Postal Workers Union, AFL-CIO, Pensacola Area Local (United States Postal Service) (15-CB-133936; 362 NLRB No. 124)  Pensacola, Florida, June 26, 2015.

The Board granted the General Counsel’s Motion for Default Judgment on the ground that the Respondent failed to file an answer to the complaint.  Accordingly, the Board found that the Respondent violated Section 8(b)(1)(A) by arbitrarily refusing to process the Charging Party individual’s FMLA grievance and by failing and refusing to provide the Charging Party with information related to the status of his grievances because he was not a member of the Respondent.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Enterprise Leasing Company of Florida, LLC d/b/a Alamo Rent-A-Car  (12-CA-026588, et al.; 362 NLRB No. 135)  Miami, FL, June 26, 2015.

On de novo review in light of NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board incorporated by reference, with some modifications, its vacated Decision and Order reported at 359 NLRB No. 149 (2013).  In that earlier decision, the Board agreed with the Administrative Law Judge that the Respondent committed several unfair labor practices before it withdrew recognition of the Union that tainted the decertification petition signed by a majority of the bargaining unit on which the Respondent based its withdrawal.  Specifically, the Board found that the Respondent unlawfully eliminated the employees’ short-term disability benefits without notice and an opportunity to bargain, made coercive statements about the elimination, directed an employee to collect more signatures for the decertification petition, and interfered with a union business agent’s access to the facility.  The Board, contrary to the Judge, found that two supervisors did not unlawfully interrogate the leader of the decertification effort.  The Board concluded that the Respondent’s withdrawal of recognition from the Union was unlawful both because its prewithdrawal unlawful conduct was casually connected to the decertification petition and because it promoted the decertification petition by directing the employee to get more signatures.  The Board accordingly found that the Respondent also committed several unfair labor practices after it withdrew recognition because it failed to bargain with the Union.  The Board amended the remedy to provide that the Respondent must make employees whole for any loss caused by the elimination of the short-term disability benefits and to specify that it must pay dues owed the Union from its own funds without recouping the amount from its employees and with interest.

Member McFerran, with Member Miscimarra joining in his separate opinion, added an alternative, independently sufficient basis for finding the unilateral elimination of the short-term disability benefits unlawful.  The incorporated decision relied only on the language in the collective-bargaining agreement being insufficient to amount to waiver of the Union’s right to bargain.  The additional basis recognizes that the benefit plan on which the Respondent based its waiver arguments ceased to exist 5 months before the elimination of the benefits—a fact that defeats its waiver arguments even if they otherwise had merit.

Member Miscimarra wrote separately to concur in part and dissent in part.  He agreed with most of the violations the majority found (only on the alternative basis for the elimination of the short-term disability benefits), but he disagreed that (1) the Respondent’s statements about the elimination of the short-term disability benefits were unlawfully coercive, (2) the Respondent unlawfully directed an employee to collect more signatures, and (3) barring the Respondent from recouping from employees the dues it must reimburse the Union is a proper, non-punitive remedy.

Charges filed by Teamsters Local Union No. 769, affiliated with International Brotherhood of Teamsters.  Administrative Law Judge Michael A. Marcionese issued his decision on April 11, 2012.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Orni 8, LLC, and Orpuna, LLC d/b/a Puna Geothermal Venture  (20-CA-096143; 362 NLRB No. 133)  Pahoa, HI, June 26, 2015

On March 26, 2013, the Board issued a Decision and Order in this test-of-certification case, reported at 359 NLRB No. 87, granting the General Counsel’s motion for summary judgment on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative, and ordering the Respondent to bargain on request with the Union and to provide it with requested information that is relevant and necessary to the Union’s duties as the exclusive collective-bargaining representative of the unit employees.  Thereafter, the General Counsel filed an application for enforcement with the United States Court of Appeals for the Ninth Circuit, and the Respondent filed a cross-petition for review. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the court of appeals remanded this case to the Board for further proceedings consistent with the Supreme Court’s decision.

On November 26, 2014, the Board issued a further Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after November 26, 2014 certification of representative issued. The Respondent filed an answer to the amended complaint and a motion to reopen the record, and a brief in opposition to the General Counsel’s motion.  The General Counsel filed a brief in support of his motion, a brief in opposition to the motion to reopen, and a motion to strike an affidavit attached to the Respondent’s motion.  The Respondent filed a brief in opposition to the motion to strike.

The Board granted the General Counsel’s motion for summary judgment, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.  The Board noted that the Respondent admitted its refusal to bargain and to provide information, but contested the validity of the certification on the basis of the issues raised in the representation proceeding, including its assertion that the proceedings below were not valid because the Board lacked a quorum under NLRB v. Noel Canning, supra.  The Board also found that there were no factual issues warranting a hearing with respect to the Union’s request for information, noting that it is well established that information concerning the terms and conditions of employment of unit employees is presumptively relevant for purposes of collective bargaining and must be furnished on request

Further, the Board rejected the Respondent’s argument that that the stipulated unit was no longer appropriate due to alleged changed circumstances since the conduct of the election.  In so finding, the Board found that new evidence identified by the Respondent pertained to changes in the composition of the certified unit after the representation hearing closed.  The Board stated that, even assuming this information was correct, it was not “newly discovered and previously unavailable” evidence warranting a hearing.  The Board explained that it determines the appropriateness of a bargaining unit based upon the conditions of employment as they exist at the time of the hearing, and that therefore only evidence that existed at the time of the hearing may be offered as newly discovered.  Manhattan Center Studios, Inc., 357 NLRB No. 139, slip op. at 3 (2011); see Telemundo de Puerto Rico, Inc. v. NLRB, 113 F.3d 270, 277-278 (1st Cir. 1997) (“Facts which arise only after the hearing has been concluded and the record closed are irrelevant, whereas facts which are not discovered until then (but which relate to the time frame at issue in the hearing) are potentially relevant and may be considered in the Board’s discretion.” (Emphasis in original)).  Accordingly, the Board denied the Respondent’s motion to reopen the record, and found it unnecessary to pass on the General Counsel’s motion to strike.

Charge filed by International Brotherhood of Electrical Workers, Local 1260.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

STG International, Inc.  (21-RC-097525)  El Centro, CA, June 22, 2015.  The Board adopted the Acting Regional Director’s overruling of the Employer’s objections to a mail ballot election, and certified the Petitioner Union as the exclusive collective-bargaining representative of a unit of professional and nonprofessional employees employed by the Employer and working at the Immigration and Customs Enforcement Agency’s El Centro Services Processing Center.  At the time of the decision and direction of election, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  In view of the decision of the Supreme Court in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Employer's arguments in support of its request for review of the Regional Director's decision and direction of election, and found them to be without merit and denied the request for review in the prior proceeding.  In denying review of the Regional Director’s decision and direction of election, the Board rejected the Employer’s argument that the petition should be dismissed because the Regional Director had no authority to process representation petitions if the Board lacked a quorum.  The Board further found the Employer’s contention that the appointment of Olivia Garcia as Regional Director for Region 21 is invalid because it was made on January 6, 2012, when the Board lacked a quorum, to be without merit, as the Board approved the appointment on December 22, 2011, at which time it had a valid quorum.  The Board next considered the question of whether it could rely on the results of the election, and for the reasons stated in Panera Bread, 361 NLRB No. 142, slip op. at 1-2 (2014), found that the election was properly held and the tally of ballots is a reliable expression of the employees' free choice.  Finally, the Board found that the Acting Regional Director properly dismissed the objections (alleging that the Regional Director abused her discretion by conducting a mail ballot election instead of conducting the election on an on-site or off-site location), including the objections based on a challenge to the Regional Director’s representation that permission was sought but not forthcoming from Immigration and Customs Enforcement to allow the Region to hold the election anywhere on the Immigration and Customs Enforcement Agency’s premises, including the parking lot.  In the circumstances of this case, the Board found no reason to doubt the Regional Director’s representation, and also noted that the Immigration and Customs Enforcement Agency’s position was corroborated by an independent source.  Petitioner—Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 542, International Brotherhood of Teamsters.  Members Hirozawa, Johnson, and McFerran participated.

MCI Communications Services, Inc. d/b/a Verizon Business  (04-RC-123386)  Commonwealth of PA, June 23, 2015.  Decision and Certification of Representative.  The Board adopted the Acting Regional Director’s overruling of the Employer’s objections alleging that (1) the ballot in the Armour-Globe self-determination election was confusing to voters, and (2) the petitioned-for employees work outside of the local union’s geographic boundary and thus the election improperly expanded the scope of the bargaining unit.  The Board certified that the Petitioner Union may bargain for all full-time and regular part-time Senior Technicians - Facilities employed by the Employer at its Pennsylvania facilities as part of the existing collective-bargaining unit of Verizon employees in Pennsylvania, which unit is currently represented by the Petitioner.  The Board noted that the Employer argued for the first time in its exceptions that Regional Director Dennis Walsh was without authority to issue his decision and direction of election because the Board could not appoint him to his position on January 29, 2013 due to the invalidity of the recess appointments of two of the Board’s three members and the consequent absence of a quorum, citing NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).  The Board assumed that this issue was properly before it, and found no merit to the Employer’s contentions for the reasons set forth in Pallet Companies, Inc., 361 NLRB No. 33, slip op. at 1-2 (2014).  Petitioner—Communication Workers of America, District 2-13, AFL-CIO.  Members Hirozawa, Johnson, and McFerran participated.

Cargill, Inc.  (21-RC-136849)  Fullerton, CA, June 24, 2015.  Order denying the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Order Directing Hearing and Notice of Hearing as it raised no substantial issues warranting review.  Petitioner—United Food & Commercial Workers Union Local No. 324.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

Century Management, LLC d/b/a McDonald’s  (15-CA-136065, et al.)  Memphis, TN, June 23, 2015. 

Order denying the Employer’s petition and amended petition to revoke a subpoena duces tecum.  The Board found that the subpoena sought information relevant to matters 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.  To the extent that the Employer believed in good faith that some of the documents requested are subject to the attorney-client privilege or the attorney work product doctrine, the Order allowed the Employer to submit a complete privilege log to the Region identifying and describing each such document in sufficient detail to permit an assessment of the claim.

Charge filed by Memphis Workers Organizing Committee, Project of the Mid-South Organizing Committee.  Chairman Pearce and Members Miscimarra and McFerran participated.

United States Postal Service  (05-CA-122166)  Washington, DC, June 25, 2015.  The Board denied a law firm’s motions to intervene in this case, for reconsideration of the Board’s October 24, 2014 Order adopting an Administrative Law Judge’s decision finding that the Respondent must provide certain information to the Charging Party, and to rehear the case or reopen the record.  The Board found that the motion to intervene was untimely, and that the motions for reconsideration, rehearing, and reopening lacked merit and failed to comply with the Board’s Rules and Regulations.  Charge filed by American Postal Workers Union, AFL-CIO.

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Appellate Court Decisions

Greater Omaha Packing Co., Inc., Board Case No. 17-CA-085735 (reported at 360 NLRB No. 62) (8th Cir. decided June 22, 2015)

In a published opinion, the court enforced the portion of the Board’s order issued against this Omaha, Nebraska, beef-processing plant for unlawfully discharging three employees for participating in a protected work stoppage, and related remedies that included compensation for any adverse tax consequences of receiving lump-sum backpay awards and requiring the employer to file a report allocating the backpay awards to appropriate calendar quarters with the Social Security Administration.  However, the court vacated the Board’s findings of interrogation and creating an impression of surveillance.

In April 2012, a dozen employees at the Omaha plant stopped work on a production line for 20 to 30 minutes to protest their wages and the high speed and low staffing levels on the line.  After their complaints went unaddressed, the employees planned another work stoppage for May.  Half hour before that work stoppage was to begin, the employer pulled three employees from the production floor.  Shortly thereafter, the employer discharged each of the employees.  The first employee was fired the next morning at a meeting in which a manager asked him what he wanted, and after receiving the response, told him he was fired.  Similarly, the second employee was fired in a meeting immediately after the manager stated someone had said he was a leader of the stoppage, and the third employee was fired in a meeting after being told that the employer knew she was one of the organizers of the stoppage.  On those facts, the administrative law judge found the discharges violated Section 8(a)(1) of the Act, but dismissed allegations that comments made in the three meetings constituted interrogation or created an impression of surveillance.  Instead, the judge found that the statements were integral parts of the unlawful discharges and that additional violations would be duplicative.

On review, the Board adopted the unlawful discharge findings, and additionally found that statements made in the three discharge meetings were unlawful.  Regarding the first meeting, the Board found that asking the employee what he wanted, regardless of whether it constituted interrogation, was nonetheless coercive because it conveyed displeasure with the employee’s concerted activities.  Member Johnson concurred to state that employers must have an opportunity to exchange views with employees on terms and conditions of employment.  Finally, the Board majority (Member Johnson dissenting) found that the statements made in the second and third meetings created the impression of surveillance.

The court upheld the three unlawful discharge violations, finding that the Board properly relied on direct and circumstantial evidence to conclude that the employees were fired for participating in the April work stoppage and for their suspected organizing of the May stoppage.  The court, however, vacated the interrogation finding, stating that an employer must be permitted reasonable opportunities to discuss terms and conditions with its employees, and that the question, “What do you want,” is “exactly such an inquiry.”  The court commented that “unless the statement itself coerces an employee not to exercise his rights, it is protected by Section 8(c).”  The court also vacated the impression-of-surveillance findings, stating that “absent a tendency to coerce,” such matters do not constitute Section 8(a)(1) violations.  The court explained that the standard of McClain & Co., Inc., 358 NLRB No. 118, slip op. 5 (2012), which the Board applied here, does not require an explicit finding of coercion, and that because this case was “not a typical case where an employer gathers information about ongoing union activities,” a “more careful analysis of the coercion element is required.”  The court then held there was no evidence of coercion.

Finally, the court rejected the employer’s challenge to the Board’s remedial provisions ordered under Don Chavas, LLC, 361 NLRB No. 10 (2014).  Specifically, the employer argued that the new remedies—compensating employees for any adverse tax consequences of receiving lump-sum backpay awards and requiring the employer to file a report allocating the backpay awards to appropriate calendar quarters with the Social Security Administration—were invalid because they were initially adopted by the Board in an earlier two-member decision.  As the court explained, the Board “regained a full quorum of five Senate-confirmed members in August 2013 and has since reaffirmed and explained its new remedial policy.”

The Court’s opinion is here.

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Administrative Law Judge Decisions

International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States Territories and Canada, Local 720, AFL-CIO, CLC (Tropicana Las Vegas, Inc.)  (28-CB-131044; JD(NY)-28-15)  Las Vegas, NV.  Administrative Law Judge Kenneth W. Chu issued his decision on June 23, 2015.  Charge filed by an individual.

Bozzuto’s, Inc.  (01-CA-115290 and 01-CA-120801; JD(NY)-27-15)  Cheshire, CT.  Administrative Law Judge Raymond P. Green issued his decision on June 25, 2015.  Charges filed by United Food and Commercial Workers Union, Local 919.

AT&T Mobility Services, LLC  (22-CA-127746 and 22-CA-127781; JD(NY)-30-15)  Paramus, NJ.  Administrative Law Judge Mindy E. Landow issued her decision on June 26, 2015.  Charges filed by individuals.

United States Postal Service  (28-CA-125837, et al.; JD-38-15)  Albuquerque, NM.  Administrative Law Judge Charles J. Muhl issued his decision on June 26, 2015.  Charges filed by National Association of Letter Carriers Branch 1069, affiliated with National Association of Letter Carriers, AFL-CIO, National Association of Letter Carriers Sunshine Branch 504, affiliated with National Association of Letter Carriers, AFL-CIO, and National Association of Letter Carriers Branch 2990, affiliated with National Association of Letter Carriers, AFL-CIO.

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