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

Diamond Trucking, Inc.  (25-CA-144424; 365 NLRB No. 64)  Peru, IN, April 25, 2017.

The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) granted the General Counsel’s exceptions to the Administrative Law Judge’s conclusion that the Union did not have an objective, factual basis for believing that an alter-ego relationship existed to establish the relevance of an information request.  Because the Union had an objective, factual basis for such a belief, the information was relevant, and the Respondent’s refusal to provide the requested information violated Section 8(a)(5) and (1).  Chairman Miscimarra dissented and agreed with the judge that there was no objective, factual basis for believing that an alter-ego relationship existed and that the requested information was therefore not relevant.

Charge filed by Teamsters Joint Council No. 69.  Administrative Law Judge Susan A. Flynn issued her decision on November 24, 2015.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Publi-Inversiones de Puerto Rico, Inc. d/b/a el Vocero de Puerto Rico  (12-CA-20344; 365 NLRB No. 65)  San Juan, PR, April 25, 2017.

The Board granted the General Counsel’s Motion to Correct the Board’s Decision and Order issued on March 10, 2017 (365 NLRB No. 29) to state in the bargaining unit description that a group of employees referred to as inserters are excluded from the bargaining unit.

Charge filed by Union De Periodistas, Artes Graficas Yramas Anexas, Local 33225.  Administrative Law Judge Melissa M. Olivero issued her decision on September 27, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued

C Cases

Midwest Terminals of Toledo International, Inc.  (08-CA-178669)  Toledo, OH, April 25, 2017.  The Board denied the Employer’s petition to revoke investigative subpoenas duces tecum and ad testificandum, finding that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoenas.  Charge filed by International Longshoremen’s Association, Local 1982.  Chairman Miscimarra and Members Pearce and McFerran participated.

Simplex Grinnell, District 129  (01-CA-169310)  Windsor, CT, April 26, 2017.  No exceptions having been filed to the February 14, 2017 decision of Administrative Law Judge David I. Goldman’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 Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO.

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Appellate Court Decisions

Bellagio, LLC, Board Case No. 28-CA-106634 (reported at 362 NLRB No. 175) (D.C. Cir. decided April 25, 2017)

In a published opinion, the Court granted the petition for review and denied enforcement of the Board’s order issued against this operator of a casino and hotel in Las Vegas, Nevada, where a unit of its employees are represented by the Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 156, affiliated with UNITE HERE.  The case centers on events that occurred in relation to an investigatory meeting called after a guest complained to management that a unit employee working as a bellman had inappropriately attempted to solicit a tip and, when the customer did not oblige, allegedly responded with a sarcastic comment.

The Board (then-Chairman Pearce and Member McFerran; Member Johnson, dissenting) found that the Employer violated Section 8(a)(1) by denying the employee’s request for union representation during the resulting investigatory interview and by placing him on suspension pending investigation in retaliation for refusing to participate in the interview without union representation.  The Board unanimously found that the Employer also violated Section 8(a)(1) by engaging in surveillance of the employee, and by instructing the employee not to talk about his suspension with other employees.

On review, the Court (Circuit Judge Brown, and Senior Circuit Judges Edwards and Sentelle) stated that, under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)—which held that an employee has a Section 7 right to request union representation as a condition of participation in an investigatory interview if the employee reasonably believes the investigation will result in disciplinary action—an Employer has three paths open to it when an employee requests representation:  “it may grant the request, end the interview, or offer the employee the choice between having an interview without a representative or having no interview at all.”  Here, the Court held, there was no violation of the employee’s Weingarten right.  Rather, the Court stated that the Employer “worked diligently to comply” with the employee’s request.  In support of that view, the Court noted that the Employer invited the employee to contact a union agent himself, but the employee declined to do so, and that two supervisors then left the room and attempted, to no avail, to locate a union representative and sought help from the Employee Relations department.  Moreover, the Court noted, before ending the interview, the employee was given the option to fill out a written statement, which he refused to do, and only then was placed on suspension pending investigation.  On those facts, the Court found that the Employer acted consistently with Weingarten.

The Court disagreed with the Board’s determination that the Employer unlawfully retaliated against the employee when it placed him on suspension.  The Court held that the predicate “adverse action” for such a finding of retaliation was lacking, given that the suspension notice stated that it was not a disciplinary action, the employee was paid for the hours not worked, and there was no evidence that the suspension had a negative impact on his employment situation or job prospects.  The Court also reversed the Board’s two remaining findings of coercion, which pertained to events immediately after the investigative meeting when the employee was exiting the building, spoke with coworkers about this suspension in a heavily trafficked dispatch room, and a supervisor present at that location told him to stop talking about his suspension, and continued to watch him to make sure he exited the building.  First, the Court held that substantial evidence did not support the Board’s finding of surveillance, given that the supervisor’s observation of the employee in the dispatch room was brief and routine, and it was not unusual for the supervisor to be present there.  Second, the Court held that the Board’s finding that the Employer acted unlawfully when it instructed the employee not to talk about his suspension with other employees in the dispatch room could not be supported because it was not closely connected to the complaint allegation that the Employer had promulgated an unlawful rule against employees discussing discipline, and was not fully litigated.  Nonetheless, the Court held that even if the allegation had been properly included in the complaint, it would still reverse because, in the Court’s view, “it was perfectly reasonable for the [employer] to instruct [the employee] to leave the workplace pending investigation of his alleged wrongdoing.”

The Court’s opinion is here.

Minteq International, Inc., and Specialty Minerals, Inc., wholly owned subsidiaries of Mineral Technologies, Inc., Board Case No. 13-CA-139974 (reported at 364 NLRB No. 63) (D.C. Cir. decided April 28, 2017)

In a published opinion, the Court enforced the Board’s order issued against this provider of products and services to the steel industry.  The Board found that the Employer violated Section 8(a)(5) and (1) by requiring employees to sign a non-compete and confidentiality agreement without first notifying or bargaining with the International Union of Operating Engineers, Local 150, AFL-CIO, and violated Section 8(a)(1) by maintaining two overbroad provisions in that agreement that employees would reasonably construe as restricting activities protected by Section 7.

The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that requiring employees to sign the agreement was a mandatory subject of bargaining that the Employer could not unilaterally impose without providing the union with notice and an opportunity to bargain.  Specifically, the Board found that the agreement directly and primarily impacted terms and conditions of employment by subjecting current employees to rules governing their conduct that could lead to discipline, by indefinitely binding employees in a manner that lasts beyond their current employment, and by imposing significant economic costs on employees outside the workplace by restricting their ability to benefit from knowledge acquired from their work experience and going so far as to bind the employees’ heirs.  In doing so, the Board rejected the Employer’s contention that the Union waived its right to bargain over imposition of the agreement because, the Employer claimed, it ran to the core of its entrepreneurial control and was thus “covered by” the management-rights clause of the collective-bargaining agreement.  The Board determined that under either the “covered by” standard applied by the D.C. Circuit, or the Board’s “clear and unmistakable waiver” standard, the collective-bargaining agreement could not fairly be read as privileging the Employer’s unilateral action.

Additionally, the Board found two of the agreement’s provisions to be unlawfully overbroad and restrictive of employee rights.  First, the Board concluded that the provision that employees could not “intentionally solicit or encourage any present or future customer or supplier of the [employer] to terminate or otherwise alter his, her or its relationship with the [employer] in an adverse manner” could reasonably be read by employees as restricting product boycotts in support of a labor dispute and other forms of lawful appeals to customers.  Second, the Board concluded that the provision requiring acknowledgement that the agreement “does not affect [the e]mployee’s status as an employee-at-will,” could reasonably be read by employees as affecting the collective-bargaining agreement’s provision that employees who complete a six-month probationary period may only be disciplined or discharged for just cause.

On review, the Court upheld the Board’s finding that the Employer’s imposition of the agreement containing the non-competition and non-disclosure requirements was a mandatory subject of bargaining “consistent with longstanding, uniform Board precedent,” and agreed with the Board that the management-rights clause did not privilege the Employer’s unilateral action.  The Court noted that, “at a minimum, nothing in the management-rights clause . . . permits [the employer] to impose obligations on employees after they leave employment,” or “to bind the employees’ ‘heirs, successors, and assignees.’”  Regarding the two provisions that the Board found unlawfully overbroad, the Court agreed that employees could reasonably read them, in turn, to restrict “the right of employees to support a consumer boycott of their employer’s products in connection with a labor dispute,” citing DIRECTV, Inc. v. NLRB, 837 F.3d 25 (D.C. Cir. 2016), and “to make employees removable at will for the entire time they are employed, rather than only during the initial six-month probationary period.”

The Court’s opinion is here.

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Administrative Law Judge Decisions

Shamrock Foods Company  (28-CA-177035, et al.; JD-(SF)-18-17)  Phoenix, AZ.  Administrative Law Judge Eleanor Laws issued her decision on April 25, 2017.  Charges filed by Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC.

AT&T Mobility, LLC  (05-CA-178637; JD-27-17)  Washington, DC.  Administrative Law Judge Arthur J. Amchan issued his decision on April 25, 2017.  Charge filed by an individual.

Mexican Radio Corp.  (02-CA-168989; JD(NY)-09-17)  New York, NY.  Administrative Law Judge Kenneth W. Chu issued his decision on April 26, 2017.  Charge filed by an individual.

International Alliance of Theatrical Stage Employees, Local 62 (Shepard Exposition Services, Inc.)  (27-CB-184181 and 27-CB-190753; JD(SF)-17-17)  Colorado Springs, CO.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on April 27, 2017.  Charges filed by an individual.

Harbor Rail Services Company  (25-CA-174952; JD-26-17)  Belvidere, IL.  Administrative Law Judge Andrew S. Gollin issued his decision on April 28, 2017.  Charge filed by an individual.

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