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Summary of NLRB Decisions for Week of April 11 - 15, 2016

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

William Beaumont Hospital  (07-CA-093885; 363 NLRB No. 162)  Royal Oak, MI, April 13, 2016.

A Board panel unanimously found that the Respondent lawfully maintained work rules that, among other things, prohibited employees from:  making willful and intentional threats and engaging in intimidation, harassment, humiliation, or coercion of employees, physicians, patients, or visitors; using profane and abusive language directed at employees, physicians, patients or visitors; engaging in behavior that is rude, condescending or otherwise socially unacceptable; and engaging in behavior that is disruptive to maintaining a safe and healing environment.  A panel majority, consisting of Members Hirozawa and McFerran, further found that the Respondent unlawfully maintained rules that prohibited employees from engaging in conduct that “impedes harmonious interactions and relationships” and from making “negative or disparaging comments about the . . .  professional capabilities of an employee or physician to employees, physicians, patients, or visitors.”  Dissenting in part, Member Miscimarra would have found those prohibitions lawful.  In addition, Member Miscimarra advocated that the Board abandon Lutheran Heritage Village-Livonia’s (343 NLRB 646-647 (2004)) analysis of work rules that are challenged on the basis that employees would reasonably construe them to restrict Section 7 activity.  Specifically, he proposed a balancing approach that would weigh the potential adverse impact of a rule on protected activity against the legitimate justifications an employer may have for maintaining the rule.  The majority declined to revisit established precedent.

Charge filed by an individual.  Administrative Law Judge Susan A. Flynn issued her decision on January 30, 2014.  Members Miscimarra, Hirozawa, and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Volkswagen Group of America, Inc.  (10-RC-162530)  Chattanooga, TN, April 13, 2016. 

A Board panel majority consisting of Members Hirozawa and McFerran denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  The majority agreed with the Regional Director that the petitioned-for unit of all the maintenance employees at the Chattanooga facility satisfied the standard set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), and that the Employer failed to meet its burden of demonstrating that the additional production employees it sought to include shared an “overwhelming community of interest” with the maintenance employees.  The majority noted that traditional community-of-interest factors shared by the maintenance employees, including shared skills, qualifications, job functions, training, higher wages, different hours, and separate supervision, made them sufficiently distinct from the production employees, and that these shared factors “substantially outweigh the fact that the Employer assigns the maintenance employees to three separate departments.”  Member Miscimarra, dissenting, would grant review of the Regional Director’s Decision.  While noting that he disagreed with the Board’s standard in Specialty Healthcare, he would find that, even applying Specialty Healthcare, substantial questions exist regarding whether a maintenance-only bargaining unit would constitute an impermissible fractured unit that departs from the Employer’s organizational structure, and whether an overwhelming community of interest would warrant the inclusion of production and/or other employees in any bargaining unit.  Petitioner – United Auto Workers, Local 42.   Members Miscimarra, Hirozawa, and McFerran participated.

C Cases

Ralphs Grocery Company  (21-CA-147393)  Paramount, CA, April 12, 2016.  No exceptions having been filed to the March 1, 2016 decision of Administrative Law Judge Lisa D. Thompson’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint.  Charge filed by an individual.

Stahl Specialty Company  (17-CA-088639)  Warrensburg, MO, April 15, 2016.  The Board remanded the case to the Administrative Law Judge to consider anew the issues presented now that the judge’s appointment has been ratified by a fully confirmed five-member Board.  Charge filed by International Brotherhood of Electrical Workers Local #1464, affiliated with the International Brotherhood of Electrical Workers, AFL-CIO.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Appellate Court Decisions

Fort Dearborn Company, Board Case No. 13-CA-046331 (reported at 361 NLRB No. 109) (D.C. Cir. decided April 12, 2016)

In a published opinion, the court enforced the Board’s order issued against this printer of labels for food and other product containers located in Niles, Illinois, for violating Section 8(a)(3) and (1) when it threatened to discharge a union steward, and later suspended and discharged him for his union activities.

In 2010, the Employer and District Council 4, Graphic Communications Conference of the International Brotherhood of Teamsters, began negotiations for a successor contract and the union steward participated as a member of the Union’s bargaining committee.  Months later, the employees voted to reject the Employer’s contract proposal on the recommendation of the Union’s committee.  The next day, at a contentious negotiating session, the senior vice-president of operations turned to the steward and said, “we’re watching you, we are going to catch you, and we are going to fire you.”  Two months later, the Employer discovered a videotape showing the steward escorting a visitor from the plant, and subsequently suspended and discharged him after conducting an investigation.  The stated reasons for his discharge were for bringing an unauthorized person into the plant and for not being truthful during the investigation.  Until then, it was routine for unescorted visitors to enter and walk through the plant during shifts when the front desk was unattended, and no one had ever been disciplined for having a visitor.  On those facts, the Board (Chairman Pearce and Members Miscimarra and Schiffer) concluded that the Employer violated Section 8(a)(1) by threatening the steward with the statement “we’re watching you, we are going to catch you, and we are going to fire you,” and that it violated Section 8(a)(3) and (1) for suspending and discharging him.

On review, the court upheld the Board’s findings.  In agreeing with the Board that the threat was unlawfully coercive, the court rejected the Employer’s contention that the Board improperly considered facts not relied on by the administrative law judge.  The court explained that “the Board is the agency entrusted by Congress with the responsibility for making findings,” and “it is not restricted to the evidence cited by the [judge].”  The court also rejected the Employer’s defense to the suspension and discharge in which it claimed the Board’s application of Wright Line was flawed because the Board ignored evidence supporting management’s good-faith belief in facts justifying the discipline, citing Sutter East Bay Hospitals v. NLRB, 687 F.3d 424 (D.C. Cir. 2012) (when assessing an employer’s disciplinary action, the Wright Line inquiry asks not what an employee actually did but what the employer in good faith believed the employee did).  The court explained that Sutter East Bay was no help to the Employer because “evidence of an employer’s good-faith belief suffices to meet the employer’s burden under Wright Line only if the employer acts on that belief as it normally would.”  Here, the court explained, substantial evidence supports the Board’s finding that the employer’s “reasons given for suspending and firing the employee were pretextual because [its] conduct was not consistent with its policy and past practice.”  Finding the Employer’s remaining arguments unpersuasive, the court enforced.

The court’s opinion is here.

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Administrative Law Judge Decisions

Quicken Loans, Inc., In-House Realty, LLC, One Reverse Mortgage, LLC, Fathead, LLC, Rock Connections, LLC, Title Source, Inc. (07-CA-145794; JD-28-16ER) Detroit, MI, April 12, 2016.  Errata to April 7, 2016 decision of Administrative Law Judge David I. Goldman.  Charge filed by an individual.  Errata   Amended Decision

Hendrickson Trucking Company  (07-CA-086624 and 07-CA-095591; JD-30-16)  Jackson, MI.  Administrative Law Judge Donna N. Dawson issued an Order Ratifying and Adopting Decision of May 16, 2014.  Charges filed by Local 164, International Brotherhood of Teamsters (IBT).

Trustone Financial Federal Credit Union  (18-CA-158210, 18-CA-163034 and 18-CA-165634; JD-29-16)  Plymouth, MN.  Administrative Law Judge Christine E. Dibble issued her decision on April 13, 2016.  Charges filed by Office and Professional Employees International Union, Local 12.

Anthony & Associates, Inc.  (05-CA-153220; JD-31-16)  Bethesda, MD.  Administrative Law Judge Arthur J. Amchan issued his decision on April 13, 2016.  Charge filed by an individual.

UPS Supply Chain Solutions, Inc.  (12-CA-159257 and 12-CA-168819; JD-32-16)  Caguas, PR.  Administrative Law Judge Michael A. Rosas issued his decision on April 13, 2016.  Charges filed by Union de Tronquistas de PR, Local 901, International Brotherhood of Teamsters.

IIG Wireless, Inc. f/k/a Unlimited PCS, Inc.; and UPCS CA Resources, Inc.  (21-CA-152170; JD(SF)-19-16)  Garden Grove and Irvine, CA.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on April 14, 2016.  Charge filed by an individual.

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