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Summary of NLRB Decisions for Week of April 25 - 29, 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

International Association of Machinists and Aerospace Workers, AFL-CIO, District 70 and Local Lodge 839 (Spirit Aerosystems)  (14-CB-133028; 363 NLRB No. 165)  Wichita, KS, April 25, 2016.

The Board affirmed the Administrative Law Judge’s findings that the Respondent Union violated:  Sections 8(b)(1)(A) and (2) by attempting to cause and causing the Employer to discharge two employees; Section 8(b)(1)(A) by threatening to cause bodily harm to an employee and to impede his efforts to obtain reinstatement because of his union activity; and Section 8(b)(1)(A) by processing an employee’s grievance in an arbitrary or discriminatory manner.

Charge filed by an individual.  Administrative Law Judge Michael A. Rosas issued his decision on April 29, 2015.  Chairman Pearce and Members Miscimarra and McFerran participated. 

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Oliva Supermarkets LLC and RL Markets I LLC, alter egos  (22-CA-130315; 363 NLRB No. 170)  Cedar Knolls and Whippany, NJ, April 28, 2016.

In the absence of exceptions, the Board affirmed the Administrative Law Judge’s conclusions that Respondent RL Markets is the alter ego of Respondent Oliva Supermarkets; that they are a single employer within the meaning of the Act; and that they violated Section 8(a)(5) and (1) by failing and refusing to recognize the Union as the collective-bargaining representative of unit employees at the Whippany, New Jersey location, and by failing to apply to unit employees the collective bargaining agreement between Respondent Oliva and the Union.  The Board further found that the Respondents also violated Section 8(a)(5) and (1) by repudiating the collective-bargaining agreement.  The Board noted that the complaint alleged an unlawful repudiation and that the Respondents had not excepted to the judge’s finding that they had not applied the terms of the collective-bargaining agreement, including wage rates and benefit contributions, to the unit employees.

Charge filed by United Food and Commercial Workers, Local 464A.  Administrative Law Judge Steven Fish issued his decision on December 18, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Guy Brewer 43 Inc. d/b/a Checkers  (29-CA-161438; 363 NLRB No. 173)  Brooklyn, NY, April 28, 2016.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the consolidated complaint.  The Board found that the Respondent violated Section 8(a)(1) by threatening employees with unspecified reprisals, reducing the hours of an employee, subsequently discharging that employee in retaliation for her protected concerted activities, and failing to reinstate her.  The Board further found that this reduction in hours, discharge, and failure to reinstate violated Section 8(a)(3) and (1), along with the discharges of two other employees and the failure to reinstate one of them.  

Charges filed by Fast Food Workers Committee.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Quality Health Services of Puerto Rico, Inc. d/b/a Hospital San Cristobal  (24-CA-011782 and 24-CA-011884; 363 NLRB No. 164)  Ponce, PR, April 28, 2016.

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered this case de novo.  The Board affirmed the Administrative Law Judge’s rulings, findings, and conclusions and adopted the judge’s recommended Order to the extent and for the reasons stated in the Board’s now vacated Decision and Order reported at 358 NLRB 769 (2012), further modifying the judge’s recommended Order to require the Respondent to compensate employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards.  In its prior Decision, incorporated by reference into this Decision and Order, the Board affirmed the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally subcontracting unit work and by unilaterally laying off the entire department of respiratory therapy technicians, rejecting the Respondent’s past practice defense.  Further, the Board affirmed the judge’s finding that the Respondent violated Section 8(a)(1) by circulating a memorandum that effectively prohibited employees from discussing its subcontracting of the respiratory therapy technicians’ work.  Finally, contrary to the judge’s recommendation, the Board issued a narrow, rather than a broad, order because the Respondent’s violations of the Act consisted primarily of unilateral changes. 

Charges and amended charges filed by Unidad Laboral De Enfermeras(OS) Y Empleados De La Salud.  Administrative Law Judge Geoffrey Carter issued his decision on February 2, 2012.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Laborers’ International Union of North America, Local 872 (NAV-LVH, LLC d/b/a Westgate Las Vegas Resort & Casino)  (28-CC-148007; 363 NLRB No. 168)  Las Vegas, NV, April 29, 2016.

Applying Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB 797 (2010), and Sheet Metal Workers Local 15 (Brandon Medical Center), 356 NLRB 1290 (2011), the Board affirmed the Administrative Law Judge’s dismissal of the complaint, concluding that the Respondent Union did not engage in disruptive or otherwise coercive nonpicketing conduct in violation of Section 8(b)(4)(ii)(B) by setting up and displaying inflatables on utility cutouts on the Charging Party’s property.  Specifically, the Board observed that placing those inflatables did not constitute per se coercive conduct, particularly given that the Respondent stopped placing the inflatables on the utility cutouts immediately after the Charging Party marked the cutouts as private property.  The Board did not reach the issue of whether the Respondent’s conduct had an unlawful secondary object, nor the Respondent’s alternate defenses predicated on the First Amendment and the Religious Freedom Restoration Act. 

Charge filed by NAV-LVH, LLC d/b/a Westgate Las Vegas Resort & Casino.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on August 21, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Goodman Logistics, LLC; Goodman Tank Lines, Inc.; Goodman Holding Company, Ltd.; and Stowe Leasing, Inc., a single employer  (08-CA-159343; 363 NLRB No. 177)  Brooklyn, OH, April 29, 2016.

The Board granted the General Counsel’s motion for default judgment based on the Respondents’ failure to file an answer to the consolidated complaint and compliance specification.  The Board found that the Respondents violated Section 8(a)(1) by maintaining an overbroad work rule prohibiting their employees from sharing any negative or derogatory comments with each other or customers.  The Board further found that the Respondents violated Section 8(a)(1) by discharging an employee for engaging in concerted activities with other employees for the purposes of mutual aid and protection and for violating the unlawful work rule.  The Board ordered the Respondents to make the discriminatee whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, but did not order immediate reinstatement because the Respondents had sold substantially all of their assets in bankruptcy proceedings.  Instead, the Board ordered the Respondents, in the event that they resume the same or similar business operations, to offer full reinstatement to the employee.  The Board also ordered the Respondents to rescind the unlawful work rule.

Charge filed by an individual.  Chairman Pearce and Members Hirozawa and McFerran participated.

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T-Mobile USA, Inc.  (02-CA-115949, 10-CA-128492, 14-CA-106906, 28-CA-106758, 28-CA-117479, 28-CA-128653, and 28-CA-129125; 363 NLRB No. 171)  Bellevue, WA, April 29, 2016.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by maintaining work rules that, among other things, prohibited employees from (a) permitting “non-approved individuals access to information or information resources, or any information transmitted by, received from, printed from, or stored in these resources” without prior written approval, and (b) “arguing . . . with co-workers, subordinates or supervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork.”   Reversing the judge, the Board found that the Respondent also violated Section 8(a)(1) by promulgating and maintaining work rules that (a) required employees “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships,” and (b) prohibited employees from making recordings in the workplace.

Charges filed by Communications Workers of America and Communications Workers of America Local 7011, AFL-CIO.  Administrative Law Judge Christine E. Dibble issued her decision on March 18, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Tarlton and Son, Inc.  (32-CA-119054 and 32-CA-126896; 363 NLRB No. 175)  Fresno, CA, April 29, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an arbitration policy that required employees, as a condition of employment, to waive their rights to maintain class and collective actions in all forums, whether arbitral or judicial.  In addition, the majority found that the arbitration policy independently violated Section 8(a)(1) because it was promulgated in response to employees’ protected concerted activity, namely, the filing of a class-action complaint in state court by the Charging Party and two other employees against the Respondent, alleging, among other things, violations of state wage and hour laws.

Member Miscimarra dissented from the majority’s findings that the arbitration policy violated Section 8(a)(1).  Consistent with his partial dissenting opinion in Murphy Oil, Member Miscimarra would find that agreements between employers and employees that waive class and collective actions regarding non-NLRA employment claims are lawful.  Further, Member Miscimarra would find that the arbitration policy was promulgated in response to the class-action nature of the employees’ lawsuit, which, in his view, is not protected under the NLRA.  Moreover, even assuming that the Respondent adopted the policy in response to employee protected concerted activity associated with the lawsuit, Member Miscimarra would find that the Respondent’s justifications for adopting the policy outweigh any potential impact on employees’ Section 7 rights.

Charges filed by an individual.  Administrative Law Judge Amita Baman Tracy issued her decision on January 27, 2015.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Rochester Regional Joint Board Local 14A (Xerox Corporation)  (03-CC-137244 and 03-CE-137252; 363 NLRB No. 179)  Rochester, NY, April 29, 2016.

The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(e) by entering into a collective-bargaining agreement (Agreement) containing a “successorship” provision prohibiting the “transfer by sale, lease or otherwise of ownership of or operational control” of the Charging Party’s business unless the transferee assumes the obligations of the Agreement.  Instead, the Board found that the provision does not restrict the Charging Party’s right to enter into any lease with a secondary employer, but is a lawful successorship provision that, by its express terms, is limited to “transfers of ownership … or operational control,” and is therefore not prohibited by Section 8(e).  In the absence of exceptions, the Board also adopted the judge’s conclusion that the Respondent violated Section 8(b)(4)(ii)(A) and (B) by attempting to restrict and enjoin the Charging Party’s subcontracting by seeking to enforce the successorship provision through the grievance procedure and through Federal litigation.

Charges filed by Xerox Corporation.  Administrative Law Judge Lauren Esposito issued her decision on April 28, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Bloomingdale’s Inc.  (31-CA-071281; 363 NLRB No. 172)  Sherman Oaks, CA, April 29, 2016.

First, a Board panel unanimously rejected arguments that the complaint was not properly before the Board because (1) the Board lacked a valid quorum while Acting General Counsel Lafe Solomon prosecuted the case and when it appointed Regional Director Mori Rubin, who issued the complaint, and (2) the complaint could not be ratified by succeeding General Counsel Richard F. Griffin, Jr. because former Acting General Counsel Solomon’s actions were void under SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), rehearing en banc denied, Nos. 14-1107 & 14-1121, 2016 U.S.App.LEXIS 981 (D.C. Cir. Jan. 20, 2016), and General Counsel Griffin was prohibited from taking prosecutorial actions in this matter by the “separation of functions” provisions of the Administrative Procedure Act.

Second, applying its decisions in D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the Administrative Law Judge to find that the Respondent violated Section 8(a)(1) by maintaining an arbitration policy that required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  Relying on On Assignment Staffing Services, 362 NLRB No. 189 (2015), the majority rejected the Respondent’s argument that its policy was voluntary and thus lawful because it contained a provision allowing employees to opt out of the arbitration requirement within 30 days.  The majority also found that the Respondent violated Section 8(a)(1) by unlawfully seeking enforcement of the arbitration policy by moving in federal court to compel individual arbitration of an employee’s wage-and-hour claims.

Third, the same panel majority found that, even though the arbitration policy’s plan document contained an unexplained statement that “[c]laims . . . under the National Labor Relations Act . . . are not subject to Arbitration at Step 4,” employees would reasonably be confused about whether they could file charges with the Board.  The majority reasoned that there was inconsistency between the plan document and a summary brochure and acknowledgment form, and that, even considering the plan document alone, the statement on NLRA claims was insufficiently clear in the context of multiple broad pronouncements that would seem to include NLRA claims in the arbitration requirement.

Member Miscimarra concurred in part and dissented in part.  Consistent with his dissent in Murphy Oil, he concluded that the arbitration policy did not violate the Act and that its enforcement was warranted by the Federal Arbitration Act.  Because of the express exclusion for NLRA claims, he also disagreed that the arbitration policy’s plan document or summary brochure interfered with the right to file Board charges.  However, because the document made employees affirm that all employment disputes were subject to the arbitration requirement, he concurred with the majority that the acknowledgment form did interfere with Board charge filing.

Charge filed by an individual.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on June 25, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Amerisave Mortgage Corporation  (10-CA-082519; 363 NLRB No. 174)  Atlanta, GA, April 29, 2016.

Applying its decisions in D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent violated Section 8(a)(1) by maintaining an arbitration policy that required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  In addition, the majority found that the Respondent also violated Section 8(a)(1) by enforcing its unlawful arbitration policy by filing in federal court a motion to compel arbitration and to dismiss the FLSA collective action as to the plaintiffs who had signed the policy.

Member Miscimarra dissented from the majority’s findings that the arbitration policy violated Section 8(a)(1).  Consistent with his partial dissenting opinion in Murphy Oil, Member Miscimarra would find that agreements between employers and employees that waive class and collective actions regarding non-NLRA employment claims are lawful.  Member Miscimarra would also find that enforcement of a class-action waiver as part of an arbitration agreement is warranted by the Federal Arbitration Act.  Further, Member Miscimarra would find that the arbitration policy was adopted in response to the collective action nature of the employees’ FLSA lawsuit which, in his view, is not protected under the NLRA.  Moreover, even assuming that the Respondent adopted the policy in response to employee protected concerted activity associated with the FLSA lawsuit, Member Miscimarra would find that the Respondent’s justifications for adopting the policy outweigh any potential impact on employees’ Section 7 rights.

Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued

C Cases

Charter Communications, LLC  (07-CA-140170, 07-CA-145726, and 07-CA-147521)  Bay City, MI, April 26, 2016.  The Board denied the Respondent’s motion for partial summary judgment.  The Board found that the Respondent failed to demonstrate that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  The Board denied the motion without prejudice to the Respondent’s right to renew its arguments to the administrative law judge, and, if appropriate, before the Board on exceptions to the judge’s decision.  Member Miscimarra agreed with the denial of the motion, but he found the General Counsel’s response to the Respondent’s argument that certain allegations were time-barred deficient because, apart from arguing the merits, the General Counsel made a conclusory argument that summary judgment was inappropriate because the parties’ positions would be more fairly decided at a hearing.  Member Miscimarra would require the General Counsel to state why a hearing is required by identifying material facts that are genuinely in dispute.  However, because the pleadings show that genuine issues of material fact exist regarding whether the otherwise untimely allegations are closely related to the timely allegations, he found that denial of the motion was appropriate.  Charges filed by individuals.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Building Trades Council, Kern, Inyo, and Mono Counties  (31-CE-129697)  Bakersfield, CA, April 27, 2016.  The Board granted the Motion for Leave to File an Amicus Curiae Brief.  Any party desiring to respond may do so by May 4, 2016.

Bodega Latina Corp. d/b/a El Super  (21-CA-160858)  Paramount, CA, April 28, 2016.  The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Employer must take to comply with the Act.  Charge filed by United Food and Commercial Workers Union, Locals 324, 770, 1167, and 1428.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

Nestle-Dreyer's Grand Ice Cream, Inc., Board Case No. 31-CA-074297 (reported at 361 NLRB No. 95) (4th Cir. decided April 26, 2016)

In this test-of-certification case, the court issued a published opinion upholding, as the Sixth and Eighth Circuits had previously done, the Board’s standard for determining whether a proposed bargaining unit is an appropriate unit as clarified in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enforced sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).  See also FedEx Freight, Inc. v. NLRB, __ F.3d __, 2016 WL 859971 (8th Cir. Mar. 7, 2016).

In 2011, the International Union of Operating Engineers Local 501, AFL–CIO, filed a petition seeking to represent the Employer’s 113 maintenance employees at its operations center in Bakersfield, California.  The Employer objected to the proposed unit, arguing that it should also include production employees.  As required under Specialty Healthcare, the Regional Director first applied the traditional community-of-interest test to assess whether the petitioned-for unit was appropriate and concluded that the maintenance workers are readily identifiable as a group, share a community of interest, and therefore constitute an appropriate unit.  The Regional Director then determined that the Employer failed to meet its burden of showing that the production workers share an overwhelming community of interest with the maintenance workers such that they must be included for the unit to be appropriate.  Subsequently, the Board denied the Employer’s request for review and directed an election.  After the employees voted 56–53 in favor of the Union in the January 2012 election, the Employer refused to bargain, and in the ensuing unfair-labor-practice proceeding, that refusal was found unlawful.

On review, the court rejected the Employer’s three challenges to the Board’s Specialty Healthcare standard, and held that the Board acted within its broad discretion in certifying the unit.  First, the court rejected the Employer’s argument that Specialty Healthcare’s overwhelming-community-of-interest test violates the NLRA by giving controlling weight to the extent of union organization, as was foreclosed, it claimed, by NLRB v. Lundy Packing Co., 68 F.3d 1577 (4th Cir. 1995).  The court explained that “[i]n Lundy, the Board effectively assumed the proposed-unit employees shared a community of interest; here, in contrast, the Board rigorously weighed the traditional community-of-interest factors to ensure that the proposed unit was proper under the NLRA.”  Accordingly, the court held that the Employer “reads Lundy too broadly,” and stated that Lundy only prohibits the test “where the Board first conducts a deficient community-of-interest analysis.”

Second, contrary to the Employer’s claim that Specialty Healthcare was a “repudiation of more than forty years of precedent,” the court “agree[d] with [its] sister circuits that the Board clarified—rather than overhauled—its unit-determination analysis,” citing FedEx Freight and Kindred.  Further, the court noted that “to the extent the Board in Specialty Healthcare departed from its prior precedent, it provided enough explanation so that a reviewing court could understand what changes the Board intended to make and why.”  Third, the court rejected the notion that the Board had violated the Administrative Procedure Act, as the Employer argued, by clarifying the test in adjudication rather than through rulemaking, citing the well-settled principle that the Board is not precluded from announcing new principles in adjudication.

The court’s opinion is here.

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Administrative Law Judge Decisions

United Food and Commercial Workers, Local 1000 (Kroger)  (16-CB-151391; JD(NY)-10-16)  Cleburne, TX.  Administrative Law Judge Joel P. Biblowitz issued his decision on April 26, 2016.  Charge filed by an individual.

IXL Learning, Inc.  (20-CA-153625; JD(SF)-21-16)  San Mateo, CA.  Administrative Law Judge Gerald M. Etchingham issued his decision on April 28, 2016.  Charge filed by an individual.

Sprain Brook Manor Rehab, LLC, Pinnacle Dietary Inc., Budget Services, Inc., and Commercial Building Maintenance Corp.  (02-CA-089480, 02-CA-142506, 02-CB-095670, and 02-CB-146895; JD(NY)-11-16)  New York, NY.  Administrative Law Judge Kenneth W. Chu issued his decision on April 29, 2016.  Charges filed by 1199 SEIU United Healthcare Workers East and Local 713, International Brotherhood of Trade Unions.

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