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Summary of NLRB Decisions for Week of April 3 - 7, 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

Saint Xavier University  (13-RC-092296; 365 NLRB No. 54)  Chicago, IL, April 6, 2017.

The Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting) found that the Board has jurisdiction over housekeepers employed by the Employer, a self-identified religious educational institution.  Applying Hanna Boys Center, 284 NLRB 1080 (1987), the Board found that it will assert jurisdiction over the non-teaching employees of religious institutions or nonprofit religious organizations unless their actual duties and responsibilities require them to perform a specific role in fulfilling the religious mission of the institution.  Regarding the petitioned-for housekeepers, the Board found that they do not have any teaching role or perform any specific religious duties or functions and are confined to the secular role of providing cleaning services to the Employer.  Under these circumstances, the Board found that the exercise of jurisdiction would not create “serious constitutional questions” of the type the Supreme Court sought to avoid in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).  Acting Chairman Miscimarra, dissenting, would decline jurisdiction over the Employer, a religiously affiliated institution, to avoid potentially interfering with rights protected by the Religion Clauses of the First Amendment.  He would apply the standard announced by the D.C. Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) to all cases involving religiously affiliated institutions, whether or not the petitioned-for employees have faculty or non-faculty status, and would find that the Board is precluded from asserting jurisdiction here.

Petitioner – Service Employees International Union, Local 1.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Security Walls, LLC  (13-CA-114946; 365 NLRB No. 52)  Lemont, IL, April 6, 2017.

The Board, acting on the parties’ joint stipulation of facts, dismissed the complaint, which was pending at the time the Board issued its decision in Total Security Management, Inc., 364 NLRB No. 106 (2016).  Total Security established that an employer violates Section 8(a)(5) if, prior to reaching a first collective-bargaining agreement with a newly recognized union, it issues a disciplinary termination without bargaining, but applied this new requirement prospectively only.  Given Total Security’s prospective-only application, the Board found that the Respondent here did not violate Section 8(a)(5) and (1) as alleged by disciplining an employee without first giving the Union, which had been recognized by the Respondent but had not yet finished negotiating a collective-bargaining agreement, notice and an opportunity to bargain over the discipline.  Acting Chairman Miscimarra indicated his disagreement with Total Security for the reasons explained in his dissent in that case. 

Charge filed by International Union, Security, Police, and Fire Professionals of America (SPFPA) and its Local No. 554.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Wolf Creek Nuclear Operating Corporation  (14-RC-168543; 365 NLRB No. 55)  Burlington, KS, April 7, 2017.

The Board (Acting Chairman Miscimarra and Member McFerran; Member Pearce, dissenting) granted in part and denied in part, without prejudice, the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, and remanded the case to the Regional Director for further appropriate action.

In granting the Employer’s request for review of the Regional Director’s application of the res judicata doctrine, Acting Chairman Miscimarra and Member McFerran found that (i) the Regional Director misstated the procedural history of an earlier unit-clarification proceeding (Case 17-UC-210) that addressed the employee status of the petitioned-for buyers in the instant case; (ii) the Board has explicitly held that previous decisions and rulings in representation cases have preclusive effect in subsequent representation cases involving the same parties; and (iii) the prior Acting Regional Director’s decision in Case 17-UC-210 is a final decision that may have preclusive effect in this representation proceeding, unless the Petitioner satisfies its burden of presenting new factual circumstances that would vitiate the preclusive effect of the earlier ruling. The majority held that there must be an affirmative finding of material changed circumstances when an identical issue was decided in an earlier proceeding involving the same parties, and remanded the case to the Regional Director to make and support such a finding.  Acting Chairman Miscimarra and Member McFerran denied without prejudice that portion of the Employer’s Request for Review challenging the Regional Director’s finding, on the current record, that the petitioned-for buyers are employees, and not managerial employees.

In dissent, Member Pearce rejected the Employer’s argument that the doctrine of res judicata and Section 102.67(g) of the Board’s Rules and Regulations apply to this proceeding, and found that the Regional Director did not err in permitting litigation of the employee-status issue.  He noted that the party raising res judicata as an affirmative defense to litigation—here, the Employer—bears the burden of proving that its defense is justified.  Noting further that the procurement process described by the Acting Regional Director in Case 17-UC-210 stands in stark contrast to the Regional Director’s description of the current process, and that the Employer concedes changes, Member Pearce found that the Employer failed to establish its affirmative defense.  In rejecting the Employer’s contention that Section 102.67(g) of the Board’s Rules and Regulations applies to this proceeding, Member Pearce noted that the rule only precludes parties from relitigating representation issues “in any related subsequent unfair labor practice proceeding.”  In his view, the Employer provided no basis for granting review of the Regional Director’s finding that the Employer’s buyers are employees; therefore, he would deny the Employer’s Request for Review.

Petitioner – International Brotherhood of Electrical Workers, Local 225.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Matson Terminals, Inc.  (20-CA-187970; 365 NLRB No. 56)  Hilo, HI, April 7, 2017.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case 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.  Acting Chairman Miscimarra noted that he would have granted review in the underlying representation case as to whether the petitioned-for supervisors and senior supervisors possess supervisory authority under Section 2(11).  However, he agreed that the Respondent did not present any new matters that were properly litigable in this unfair labor practice proceeding, and that summary judgment was thus appropriate.

Charge filed by Hawaii Teamsters & Allied Workers Union, Local 996.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Tramont Manufacturing, LLC  (18-CA-155608; 365 NLRB No. 59)  Milwaukee, WI, April 7, 2017. 

Upon remand from the D.C. Circuit, the Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain over the effects of its decision to lay off 12 unit employees.  The Board reaffirmed that it adheres to the “clear and unmistakable” waiver standard and that the Respondent had not demonstrated clear and unmistakable waiver because its employee handbook was not sufficiently specific about the effects of any layoffs.  The Board also noted that, even under the contract coverage analysis, which the Respondent urged the Board to apply and which the D.C. Circuit applies, there could not be waiver because the parties did not bargain over the handbook, which the Respondent unilaterally implemented as a successor employer.

Charge filed by United Electrical, Radio, and Machine Workers of America, Local 1103. Administrative Law Judge Sharon Levinson Steckler issued her decision on January 28, 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

McCabe, Hamilton & Renny Co., Ltd.  (20-RC-175876)  Honolulu, HI, April 3, 2017.  The Board denied the Employer’s Motion for Reconsideration of the Board’s December 21, 2016 Order denying the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election.  The Board found that the motion was untimely under Section 102.65(e)(2) of the Board’s Rules and Regulations, and that, even were it timely filed, the Employer did not demonstrate extraordinary circumstances warranting reconsideration under Section 102.65(e)(1).  Acting Chairman Miscimarra noted that he partially dissented from the denial of the Employer’s Request for Review, as he would have granted review with regards to whether the operations supervisors possessed the authority to assign, responsibly direct, adjust grievances, and reward employees, but he agreed with his colleagues that the Employer’s motion was neither timely nor presented extraordinary circumstances warranting reconsideration.  Petitioner – Working Foremen’s and Working Supervisors’ Union, Local 100, International Longshore & Warehouse Union.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Cytec Process Materials (CA), Inc./Source One Staffing, LLC  (21-RC-185937)  Santa Fe Springs, CA, April 4, 2017.  The Board granted the Employer’s Request for Review of the Regional Director’s Corrected Certification of Representative, vacated the election results, and directed a second election with appropriate Armour-Globe self-determination language to be included in the Notice of Election.  Petitioner – International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 725.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

XPO Logistics Freight, Inc.  (13-RC-184190)  Aurora, IL, April 6, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review.  Acting Chairman Miscimarra dissented, as he concluded the Employer’s objections raised factual issues warranting review. Acting Chairman Miscimarra also restated his disagreement with the Board’s standard for determining whether third-party threats warrant setting aside an election and his disagreement with the Board’s Final Rule.  Petitioner – Teamsters Local Union No. 179.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

 

C Cases

Bridgestone Americas Tire Operations, LLC  (10-CA-181740)  La Vergne, TN, April 3, 2017.  The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International, AFL-CIO, CLC and its Local 1055L.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

International Longshoremen’s Association, Local 28 (Ceres Gulf, Inc.)  (16-CB-181716 and 16-CB-194603)  Seabrook, TX, April 3, 2017.  The Board denied the Respondent’s request, made pursuant to Section 102.31(c) of the Board’s Rules and Regulations, that the Board issue an order compelling a witness to testify or provide other information in this proceeding.  Based on the information submitted, the Board found that it does not appear that the testimony or other information sought is “necessary to the public interest” within the meaning of Section 102.31(c) of the Rules.  The Board stated that, at the hearing, all parties may present whatever admissible evidence is available to them and make any appropriate legal arguments, including arguments concerning what, if any, inferences should be drawn based on any assertion of the privilege against self-incrimination.  Charges filed by an individual.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Universal Security, Inc.  (13-CA-178494 and 13-CA-182708)  Chicago, IL, April 3, 2017.  The Board denied the Respondent’s Motion for Partial Summary Judgment with respect to the complaint allegations relating to the Respondent’s revised uniform and lanyard policy, without prejudice to the Respondent’s right to renew its arguments to the Administrative Law Judge and before the Board on any exceptions that may be filed to the judge’s decision, if appropriate, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  Acting Chairman Miscimarra noted that he agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), the General Counsel explained in extensive detail why, based on material facts that are genuinely in dispute, a hearing is required.  Charges filed by Service Employees International Union Local 1.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Universal Security, Inc.  (13-CA-178494 and 13-CA-182708)  Chicago, IL, April 4, 2017.  The Board denied the Respondent’s Motion for Partial Summary Judgment without prejudice to the Respondent’s right to renew its arguments to the Administrative Law Judge and before the Board on any exceptions that may be filed to the judge’s decision, if appropriate, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  Acting Chairman Miscimarra noted that he agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), the General Counsel explained in extensive detail why, based on material facts that are genuinely in dispute, a hearing is required.  Charges filed by Service Employees International Union Local 1.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Hollingsworth Logistics Group, LLC  (07-CA-183283)  Temperance, MI, April 6, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena 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 subpoena.  In considering the petition to revoke, the Board majority (Members Pearce and McFerran) evaluated the subpoena as clarified by the Region, which stated that it did not seek personal or private information, such as social security numbers or dates of birth, that may be included on job applications and that it informed the Employer that it was willing to reach an accommodation to redact that information.  Acting Chairman Miscimarra, dissenting in part, would have granted the petition to revoke with respect to the subpoena requests that encompassed personal identification information.  He also would have granted the petition with regard to the requests for information concerning “all personnel” or “all employees,” to the extent that they encompass non-statutory employees.  In his view, when subpoena requests are overly broad or otherwise seek information that does not reasonably relate to matters under investigation, and when a subpoenaed party’s petition to revoke raises appropriate objections to the requests on that basis, it is more appropriate for the Board to grant the petition to revoke as to such requests, rather than to deny the petition to revoke based on changes that are communicated only in briefs submitted after the petition to revoke is under consideration by the Board.  Charge filed by American Postal Workers Union, AFL-CIO.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Fairview Health of Greenwich  (01-CA-182111)  Greenwich, CT, April 6, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena 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 subpoena.  In considering the petition to revoke, the Board majority (Members Pearce and McFerran) noted the Region’s statement that it would work with the Employer to limit the disclosure of any information protected by the Health Insurance Portability and Accountability Act (HIPAA).  The majority further disagreed with their dissenting colleague regarding the subpoena request for rules, regulations, and policies in effect at Fairview Health of Greenwich, finding that the request is relevant to the specific alleged violations articulated in the unfair labor practice charge in light of the Employer’s refusal to voluntarily provide evidence as to why the Charging Party was removed from her job or disciplined.  Acting Chairman Miscimarra, dissenting in part, would have granted the petition to revoke as to those subpoena paragraphs that the Employer notes were broad enough to encompass medical information of residents, which may be protected by HIPAA, stating that he disagrees with the Board’s practice that often permits an overly broad subpoena request to be “clarified” by the Region after a party has filed a meritorious petition to revoke.  He would also grant the petition to revoke as to the subpoena paragraph requesting rules, regulations, and policies, except for those that reasonably relate to the charge allegations.  Charge filed by an individual.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

United States Roofing Corporation/American Metal Contractors, Inc.  (04-CA-187024)  Norristown, PA, April 6, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, finding that the subpoena 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 subpoena.  Charge filed by International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART), Sheet Metal Workers Local 19.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Stratosphere Gaming LLC d/b/a Stratosphere Casino, Hotel & Tower  (28-CA-140123)  Las Vegas, NV, April 7, 2017.  No exceptions having been filed to the February 23, 2017 decision of Administrative Law Judge Kimberly R. Sorg-Graves’ 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.

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Appellate Court Decisions

Thesis Painting, Inc., Board Case No. 05-CA-172905 (reported at 364 NLRB No. 53) (4th Cir. decided April 7, 2017)

In an unpublished per curiam opinion, the Court enforced the Board’s bargaining order issued against this commercial painter in the Washington, D.C. metropolitan area for refusing to bargain with the International Union of Painters and Allied Trades, District Council 5, after its painters voted 21 to 11 in favor of union representation in a July 2015 election.  After the election, the Employer filed objections alleging that two former employees were union agents who engaged in improper electioneering or surveillance and that their actions warranted overturning the election.  The Hearing Officer issued a report concluding that the two former employees were not union agents, and, applying the standard for third-party misconduct, found that the Employer failed to establish that their conduct tended to interfere with employee free choice.  The Regional Director affirmed, and issued a decision and certification of representative.  The Employer requested review, which the Board denied.  Subsequently, the Employer refused to bargain in order to seek review of the certification.  On review, the Court held that substantial evidence supported the Board’s factual findings and that the Board’s legal conclusions were rational and consistent with the Act.

The Court’s unpublished decision is here.

Missouri Red Quarries, Inc., Board Case No. 14-CA-165057 (reported at 363 NLRB No. 102) (8th Cir. decided April 6, 2017)

In a published opinion, the Eighth Circuit enforced the Board’s technical 8(a)(5) bargaining order against this operator of a granite quarry in Ironton, Missouri.  In doing so, the Court upheld the Board’s finding that the voter who cast a challenged ballot in the election was a supervisor under Section 2(11) and thus ineligible to vote.

In the underlying representation case, the Eastern Missouri Laborers’ District Council petitioned to represent the production and maintenance employees at the Ironton facility.  In May 2015, an election was held that resulted in a 5 to 4 vote in favor of representation, with one ballot challenged by the Union on the ground that it was cast by a statutory supervisor.  The challenged ballot was sufficient to affect the election outcome because, if it were opened and found to be cast against the Union, the final tally would be a 5 to 5 tie.  After a hearing was held to adduce evidence on the challenged ballot, the Hearing Officer issued a report finding that the voter was not a statutory supervisor.  On exceptions filed by the Union, the Regional Director reversed, sustained the challenge to the ballot, and certified the Union.  Thereafter, the Employer filed a request for review of the Regional Director’s decision, which the Board denied.  The Employer refused to bargain to seek court review of the certification.

In agreement with the Board, the Court (Circuit Judges Riley and Murphy; Circuit Judge Smith dissenting) concluded that the individual in question was a statutory supervisor because he exercised independent judgment in effectively recommending employees for hire.  Specifically, the Court noted that the individual had initiated the hiring of two employees whom he knew personally, spoke to both before they were hired, made sure they completed their paperwork and drug tests—all while the off-site owner made no independent investigation or assessment of their qualifications.  In addition, the Court held that the record contained secondary indicia in support of a finding of supervisory status, noting that if the individual were not a supervisor, the quarry would be left without on-site supervision for many weeks at a time, and that employees perceived him to be a supervisor.

In a dissenting opinion, Judge Smith wrote to express his view that the individual did not possess the necessary delegated authority to be a supervisor, and that the record evidence did not support that he exercised independent judgment in effectively recommending hire.  In particular, Judge Smith criticized the majority for its classification of the individual’s personal familiarity with the two persons hired as an independent basis for assessing their qualifications.

The Court’s opinion is here.

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Administrative Law Judge Decisions

United Site Services of California, Inc.  (20-CA-139280 and 20-CA-149509; JD(SF)-13-17)  Benicia, CA.  Administrative Law Judge Dickie Montemayor issued his decision on April 3, 2017.  Charges filed by Teamsters Local 315, IBT.

T-Mobile USA, Inc.  (14-CA-170229; JD-23-17)  Wichita, KS.  Administrative Law Judge Sharon Levinson Steckler issued her decision on April 3, 2017.  Charge filed by Communication Workers of America, AFL-CIO.

Natural Life, Inc. d/b/a Heart and Weight Institute  (28-CA-181573; JD-22-17)  Las Vegas, NV.  Administrative Law Judge Ira Sandron issued his decision on April 5, 2017.  Charge filed by an individual.

Watco Transloading, LLC  (04-CA-136562, et al.; JD-20-17)  Philadelphia, PA.  Administrative Law Judge Susan A. Flynn issued her decision on April 5, 2017.  Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, USW Local 10-1 and an individual.

Ashford Presbyterian Community Hospital  (12-CA-165682; JD-21-17)  San Juan, PR.  Administrative Law Judge Geoffrey Carter issued his decision on April 6, 2017.  Charge filed by Federacion Puertorriquena de Trabajadores (FPT).

Rich Products  (10-CA-169627 and 10-CA-178498; JD(NY)-06-17)  Murfreesboro, TN.  Administrative Law Judge Jeffrey P. Gardner issued his decision on April 6, 2017.  Charges filed by an individual.

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