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Summary of NLRB Decisions for Week of April 17 - 21, 2017

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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

W.B. Mason Co., Inc.  (01-CA-180518; 365 NLRB No. 62)  South Boston, MA, April 20, 2017.

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:  (1) Section 8(a)(3) and (1) by failing to implement a promised wage increase to its employee because he and other employees formed, joined, and assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities; and (2) Section 8(a)(4) and (1) by engaging in that same conduct because the employee cooperated in a Board investigation and testified at a Board hearing.

Charge filed by International Brotherhood of Teamsters, Local 25.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Anderson Excavating Company  (14-CA-156092; 356 NLRB No. 63)  Omaha, NE, April 20, 2017.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union and repudiating the terms and conditions of its collective-bargaining agreement with the Union.  The Board majority (Members Pearce and McFerran) rejected the Respondent’s argument that the judge erred by relying on deposition testimony because such reliance violates the “litigation privilege,” and, in the alternative, found that, even without relying on the depositions, the record established the violations.  Acting Chairman Miscimarra did not pass on the applicability of the “litigation privilege,” but simply found that, even without relying on the depositions, the record established the violations.

Charge filed by International Union of Operating Engineers Local 571.  Administrative Law Judge Arthur J. Amchan issued his decision on August 19, 2016.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

CPM Development Corp. d/b/a Central Pre-Mix Concrete Co.  (19-RC-178412)  Yakima, WA, April 17, 2017.  The Board denied the Intervenor’s Request for Review of the Regional Director’s Supplemental Decision and Direction of Election as it raised no substantial issues warranting review.  Petitioner – International Union of Operating Engineers, Local 302.  Intervenor – International Brotherhood of Teamsters, Local No. 760.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Supreme Airport Shuttle, LLC  (05-RC-187864)  Baltimore, MD, April 17, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s Order Denying Employer’s Motion to Require Petitioner’s Counsel to Withdraw as it raised no substantial issues warranting review.  The Board also denied as moot the Employer’s request to stay the representation proceedings pending a determination by the Board on the Employer’s Request for Review.  Petitioner – Shuttle Drivers’ Association of BWI.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

The Permanente Medical Group, Inc.  (32-RC-158884)  Oakland, CA, April 18, 2017.  The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s administrative dismissal of the representation petition, as it raised no substantial issues warranting review.  Petitioner – Service Employees International Union - United Healthcare Workers-West.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Comcast of Florida/Georgia/Illinois/Michigan, LLC  (13-RD-128244)  Chicago, IL, April 19, 2017.  No exceptions having been filed to the Acting Regional Director’s report regarding the objections to the election held September 17, 2015, the Board adopted the Acting Regional Director’s findings and recommendations and issued a Certification of Representative.  Petitioner – an individual.  Union – International Brotherhood of Electrical Workers, Local Union 21, AFL-CIO.

Manhattan College  (02-RC-023543)  New York, NY, April 20, 2017.  The Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting) granted the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Order solely with regard to the Regional Director’s inclusion of the Department of Religious Studies faculty in a unit of adjunct faculty.  Applying  Seattle University, 364 NLRB No. 84 (2016) and Saint Xavier University, 364 NLRB No. 85 (2016), the majority found that the University holds out the faculty in the Department of Religious Studies as performing a specific role in maintaining the University’s religious educational environment.  The majority therefore excluded the Department of Religious Studies adjunct faculty from the unit and denied the Employer’s request for review in all other respects.  Acting Chairman Miscimarra, relying on his dissents in Seattle University, Saint Xavier University, and Pacific Lutheran University, 361 NLRB No. 157 (2014), would have granted the Employer’s Request for Review in its entirety because he believes there is a substantial issue regarding whether the Board lacks jurisdiction over the entire petitioned-for unit.  Even applying Pacific Lutheran, Acting Chairman Miscimarra would grant review because he believes there is a substantial issue regarding whether Manhattan College is an exempt religiously-affiliated educational institution.  Petitioner – Manhattan College Adjunct Faculty Union, New York State United Teachers AFT/NEA/AFL-CIO.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

2850 Grand Island Boulevard Operating Company LLC d/b/a Elderwood at Grand Island  (03-RC-184298)  Grand Island, NY, April 21, 2017.  The Board denied review of the Employer’s Request for Review of the Acting Regional Director’s Supplemental Decision and Order on Challenged Ballots and Objections as it raised no substantial issues warranting review.  The Regional Director had found that the Employer had not carried its burden of demonstrating that Team Leader LPNs are statutory supervisors.  Acting Chairman Miscimarra concurred with the denial of review, but restated his disagreement with the Board’s standard that it should disregard evidence when it is conclusory, unaccompanied by specific examples, provided in response to leading questions, or is a mere paper showing, and reiterated his position, as first discussed in Buchanan Marine, LP, 363 NLRB No. 58 (2015), that the Board cannot disregard or discount relevant evidence merely because it could have been stronger, more detailed, or supported by more specific examples. Petitioner – 1199 SEIU United Healthcare Workers East.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Eastland Food Products, Inc.  (01-CA-182772)  Providence, RI, April 18, 2017.  No exceptions having been filed to the March 1, 2017 decision of Administrative Law Judge Andrew S. Gollin’s finding that the 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 recommended Order.  Charge filed by United Food and Commercial Workers International Union, Local 328.

Florio Food Corp. d/b/a Cannoli Factory  (29-CA-187620)  Wyandanch, NY, April 18, 2017.  The Board granted the General Counsel’s request for special permission to appeal the Administrative Law Judge’s Order Partially Denying the Respondent’s Motion for a Bill of Particulars.  On the merits, the Board reversed the judge’s ruling granting the motion in part, finding that the complaint as written fully satisfied the notice pleading requirements of Section 102.15 (a) and (b) of the Board’s Rules and Regulations.  The Board further found that the complaint met the standard of Artesia Ready Mix Concrete, Inc., 339 NLRB 1224 (2003), as it advised the Respondent, in plain language, of the conduct claimed to constitute the unfair labor practice and the dates on which those actions allegedly occurred.  Charge filed by Local 713 International Brotherhood of Trade Unions, I.L.A., AFL-CIO.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Pavestone Company  (01-CA-184702)  Middleboro, MA, April 19, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  The Board evaluated the subpoena in light of the Region’s conditional acceptance of the Employer’s stipulation concerning commerce and the Board’s jurisdiction.  In addition, the Board stated that the subpoena as written describes with sufficient particularity the employees to whom the requests apply, noting that the Employer did not argue otherwise.  The Board also noted that, to the extent that the Employer has provided some of the requested material, it is not required to produce that information again.  Acting Chairman Miscimarra would grant the petition to revoke to the extent that the requests pertaining to “all employees” encompass non-statutory employees.  Charge filed by International Brotherhood of Teamsters, Local 653.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Menard, Inc.  (18-CA-181821)  Eau Claire, WI, April 19, 2017.  The Board denied the Employer’s motion to dismiss the amended complaint, because the Employer did not demonstrate that the amended complaint failed to state a claim upon which relief can be granted.  In addition, to the extent that the Employer sought summary judgment on the basis that the allegations of the complaint have been previously resolved by the Board or do not constitute unfair labor practices, the Board denied the motion, because the Employer did not establish that there are no genuine issues of fact and that it is entitled to a judgment as a matter of law.  Charge filed by Local 153, Office & Professional Employees International Union, AFL-CIO.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Fox Rent-A-Car  (12-CA-186537)  Fort Lauderdale, FL, April 19, 2017.  The Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting), denied the Employer’s petition to revoke the subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  The Board further found that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by Teamsters Local Union No. 769.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Red Apple 180 Myrtle Avenue Development, LLC  (29-CA-184816, et al.)  Brooklyn, NY, April 20, 2017.  The Board denied the Employer’s petition to revoke investigative subpoenas ad testificandum addressed to the Employer’s employees, based on the Employer’s lack of standing to file a petition to revoke subpoenas addressed to third parties.  In addition, the Board found that, even assuming that the Employer had standing to file the petition, it was lacking in merit, as the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoenas.  Acting Chairman Miscimarra agreed that the General Counsel described with sufficient particularity the evidence sought, but solely because the General Counsel’s opposition to the petition described the nature of the charges and provided general information regarding the subject matter.  In his view, however, the subpoena itself should describe with reasonable particularity the general topics or issues that would be the subject of subpoenaed testimony or other evidence.  Charges filed by Local 32BJ, SEIU.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

GVS Properties, LLC  (29-CA-077359)  Long Island City, NY, April 20, 2017.  The Board vacated as moot its August 27, 2015 Order (362 NLRB No. 194).

Cellco Partnership d/b/a Verizon Wireless  (28-CA-145221)  Nationwide, April 21, 2017.  The Board denied the Charging Party’s motion for reconsideration and her supplemental motion for reconsideration of the Board’s Decision and Order reported at 365 NLRB No. 38 (2017), on the basis that the Charging Party  had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  Acting Chairman Miscimarra noted that, while he adheres to the views he expressed in his separate opinion in the underlying decision, he concurs with his colleagues that the Charging Party had not presented extraordinary circumstances warranting reconsideration.  Charge filed by an individual.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

The Cement League and Northeast Regional Council of Carpenters and New York City and Vicinity District Council of Carpenters, Party in Interest, Board Case No. 03-CA-126938 (reported at 363 NLRB No. 117) (2d Cir. decided April 21, 2017)

In an unpublished summary order, the Court enforced the Board’s order issued against the Cement League, an organization of New York City construction contractors that bargains on behalf of its Employer members with various labor organizations, including the NYC Council, a regional council of the United Brotherhood of Carpenters and Joiners of America.  Prior to this case, the NYC Council was subject to a Department of Justice RICO lawsuit alleging that it had connections to organized crime, entered into unlawful arrangements for non-union individuals to work on projects “off the books” and for below bargained-for wages, and bribed particular Employers and shop stewards or union representatives to condone such activities.  In 1994, the NYC Council entered into a consent decree that established judicial oversight and a court-appointed monitor to oversee certain ongoing anticorruption measures.  As part of that monitoring, the district court judge approved the parties’ collective-bargaining agreement for consistency with the 1994 RICO consent decree.

In the instant case, the Administrative Law Judge found that the Cement League violated Section 8(a)(1) by maintaining or otherwise giving effect to hiring provisions in its collective-bargaining agreement with the NYC Council that gave preference to its member-employees.  In the absence of exceptions, the Board adopted the judge’s recommended finding, and rejected on its merits the only issue presented to it—the parties’ defensive contention that the terms of the Board’s order invalidating the relevant contract provisions would conflict with the district court’s prior approval of the collective-bargaining agreement.  The Board concluded that setting aside the provisions that violate the Act would not conflict with the district court’s important anticorruption objectives, reasoning that the district court did not consider compliance with the Act and did not premise approval upon it, that the challenged provisions did not appear to have been approved on the basis of an anticorruption purpose or effect, and that any such anticorruption goal could be served instead by the Act’s-compliant hiring provisions.

On review, the Court agreed, holding: “To the extent that the NLRB is correct about the district court’s analysis, the NLRB’s order has a reasonable basis in law and is not arbitrary and capricious.”  The Court then denied the petition for review and granted enforcement, but also ordered that issuance of the mandate be held in abeyance for 30 days or until the parties advise the Court of the monitoring-judge’s view concerning whether the enforcement order “bears upon matters that are within the jurisdiction of his supervision of [the] consent order.”

The unpublished Court’s decision is here.

Acuity Specialty Products, Inc., d/b/a Zep Inc., Board Case No. 32-CA-075221 (reported at 363 NLRB No. 192) (5th Cir. decided April 20, 2017)

In an unpublished per curiam opinion, the Court granted the Employer’s petition for review after briefing, but without oral argument.  The Court noted that the Board “admits that its order directly contravenes our decisions” in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), and D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013).  On the basis of that binding precedent, the Court rejected the Board’s finding that the Employer violated Section 8(a)(1) by maintaining an alternative dispute resolution policy that requires employees to waive their rights to pursue class or collective actions involving employment-related claims in all forums.

Agreeing with the Employer, the Court further held that the Board’s finding that the policy violated Section 8(a)(1) because employees reasonably could read it as restricting their right to file unfair-labor-practice charges with the Board was contrary to the terms of the policy.  The Court noted that the policy explicitly excluded “matters within the jurisdiction of the National Labor Relations Board,” and found that the clarity of that exclusion was bolstered by its location below a section heading specifying what claims were not covered by the policy.

The Court’s unpublished opinion is here.

Allied Aviation Services Company of New Jersey, Board Case No. 22-CA-127150 (reported at 362 NLRB No. 173) (D.C. Cir. decided April 18, 2017)

In a published opinion in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this provider of fueling services for commercial aviation at Newark Liberty International Airport after a 44-member unit of its Fueling Supervisors/Dispatchers/Operations Supervisors, Maintenance Supervisors, and Tank Farm Supervisors voted in June 2012 to be represented by Local 553, International Brotherhood of Teamsters.  In doing so, the Court upheld the Board’s determinations that the Employer is covered by the Act, rather than by the Railway Labor Act (RLA), and that the employees in question, despite their job titles and the Employer’s claims, were not supervisors excluded from coverage under Section 2(11).

The Court noted that the status of an employer as a RLA-covered rail carrier, common air carrier, or “company which is directly or indirectly owned or controlled by or under common control of any carrier,” 45 U.S.C. §§ 151 First, 181, is determined under the “function and control” test articulated by the National Mediation Board (NMB), which administers the RLA.  Under that test, the Court held that the Board properly rejected the Employer’s jurisdictional claim of RLA-coverage based on the lack of record evidence of carrier control.  Specifically, the Court upheld the Board’s findings that the Employer failed to present evidence that the carriers at Newark Airport hold out the unit members to the public as their own employees, exercise control over how the employer runs its operations, supervise the unit members to a degree sufficient to establish control, or exert meaningful control over personnel decisions.

Regarding the Employer’s assertion of supervisory status, the Court agreed with the Board that the Employer had failed to present evidence supporting its claims that the employees exercise disciplinary authority or responsibly direct other workers.  On the issue of discipline, the Court stated that the Employer’s evidence “shows only that the unit members file ‘reportorial’ forms recounting employee misconduct, which are then taken into account by higher-ups who make the disciplinary decisions.”  On the issue of responsible direction, the Court concluded that instead of “shouldering its burden” to prove the claim, the Employer “merely point[ed] to the paucity of evidence of nonsupervision.”

The Court’s opinion is here.

Pier Sixty, LLC, Board Case No. 02-CA-068612 (reported at 362 NLRB No. 59) (2d Cir. decided April 21, 2017)

In a published opinion, the Court enforced the Board’s order issued against this catering company in Manhattan for unfair labor practices committed in the weeks before its servers voted in an October 2011 election to be represented by the Evelyn Gonzalez Union.  In doing so, the Court held that the Employer had forfeited its challenge to the designation of Lafe Solomon as Acting General Counsel under the Federal Vacancies Reform Act of 1998, 5 U.S.C. § 3345, et seq., by not raising the issue before the Board.  The Court also upheld the Board’s finding that an employee’s Facebook post was protected activity and that the profanity included in the post did not cause him to lose the Act’s protection.

The Board (then-Chairman Pearce and Members McFerran and Johnson) found, in agreement with the Administrative Law Judge, that the Employer violated Section 8(a)(1) by threatening employees with discharge, job loss, and the loss of benefits, by informing employees that bargaining would start from scratch if the Union were elected, and by disparately applying a “no talk” rule.  Regarding the judge’s finding that the Employer violated Section 8(a)(3) and (1) by discharging an employee because of his protected concerted and union activities, which included a comment in support of the Union made in a Facebook post, the Board agreed that the Facebook post was protected and found (Member Johnson, dissenting) that the post, which included profane language, did not cause the employee to lose the Act’s protection.

Before the Court, the Employer raised, for the first time, a challenge to the designation of Acting General Counsel Solomon.  Citing the jurisdictional bar of Section 10(e), the Court, in an opinion authored by Circuit Judge Cabranes, held the issue was forfeited because the Employer had not raised it before the Board.  The Court also explained:  “Our precedents make clear, moreover, that even an apparently meritorious challenge to the authority of an NLRB agent in itself does not qualify as an ‘exceptional circumstance’ [under Section 10(e)] allowing the party to raise the argument for the first time before our Court,” citing Paulsen v. Remington Lodging & Hosp., LLC, 773 F.3d 462 (2d Cir. 2014) (rejecting as untimely a FVRA challenge to Solomon’s authority to authorize an injunction under Section 10(j)); NLRB v. Newton‐New Haven Co., 506 F.2d 1035 (2d Cir. 1974) (refusing to grant relief on an untimely challenge to a Board decision issued by a panel consisting of one Board member and two staff attorneys, contrary to the NLRA’s quorum requirements).  Further, the Court noted that the D.C. Circuit in SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), “took care to voice its support for our conclusion that petitioners like [the Employer], who fail to raise an FVRA argument before the Board, will not be heard for the first time in the courts,” citing 796 F.3d at 82–83 (“We address the FVRA objection in this case because the petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding.”).

On the merits, the Court upheld the Board’s unlawful discharge finding.  The Court noted that, although it is not the exclusive framework for evaluating whether employee activities are protected, the Board recently has applied a nine-factor, totality-of-the-circumstances test in social media cases, and did so here.  See 362 NLRB No. 59.  However, the Court stated, because the Employer did not object to the judge’s application of that nine-factor test, “we need not, and do not, address the validity of that test in this opinion.”  Regarding the Employer’s defense, the Court held that the Employer had failed to meet its burden of showing that the employee’s behavior was so egregious as to lose the Act’s protection, noting that several factors informed its conclusion.  For instance, the Court explained that, even though the employee’s Facebook post was dominated by vulgar attacks on his supervisor and his supervisor’s family, it included workplace concerns—“management’s allegedly disrespectful treatment of employees, and the upcoming union election.”  Further, the Court noted that the record contains evidence that the Employer “consistently tolerated profanity among its workers,” and that the employee made the comments on Facebook, “an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era.”  Finally, the Court summarily enforced the uncontested Section 8(a)(1) findings.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew (20-CA-167132, et al.; JD(SF)-14-17) Honolulu, HI, April 17, 2017.  Erratum issued to the April 12, 2017 decision of Administrative Law Judge Jeffrey D. Wedekind.  Charges filed by Unite Here! Local 5.  Erratum   Amended Decision.

United States Postal Service  (07-CA-170211; JD-24-17)  Grand Rapids, MI.  Administrative Law Judge Christine E. Dibble issued her decision on April 18, 2017.  Charge filed by an individual.

County Concrete Corporation  (22-CA-171328; JD(NY)-08-17)  Kenvil, NJ.  Administrative Law Judge Mindy E. Landow issued her decision on April 18, 2017.  Charge filed by Local 863, International Brotherhood of Teamsters.

ImageFirst  (22-CA-161563 and 22-CA-181197; JD-25-17)  Clifton, NJ.  Administrative Law Judge Arthur J. Amchan issued his decision on April 18, 2017.  Charges filed by Laundry Distribution and Food Service Joint Board, Workers United, a/w Service Employees International Union.

Novato Healthcare Center  (20-CA-168351; JD(SF)-15-17)  Novato, CA.  Administrative Law Judge Amita Baman Tracy issued her decision on April 20, 2017.  Charge filed by National Union of Healthcare Workers (NUHW-CNA).

HRHH Gaming Senior Mezz, LLC d/b/a Hard Rock Hotel & Casino  (28-CA-183553; JD(SF)-16-17)  Las Vegas, NV.  Administrative Law Judge Mara-Louise Anzalone issued her decision on April 21, 2017.  Charge filed by General Teamsters, Airline, Aerospace and Allied Employees, Warehousemen, Drivers, Construction, Rock and Sand, Local 986, a/w International Brotherhood of Teamsters.

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