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Summary of NLRB Decisions for Week of August 1 - 5, 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

North Memorial Health Care  (18-CA-132107, 18-CA-133944, 18-CA-135228 and 18-CA-132818; 364 NLRB No. 61)  Robbinsdale, MN, August 2, 2016.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) when it:  (1) prohibited nonemployee union representatives from having, and interfered with their ability to have, non-disruptive union-related conversations in areas of the facility that are open to the general public; (2) surveilled union activities; (3) prohibited the posting of a union flyer; (4) coercively interrogated an employee and threatened that his union activities were under surveillance; and (5) prohibited the wearing of shirts with union insignias.  In addition, the Board affirmed the judge’s findings that the Respondent violated: (1) Section 8(a)(5) and (1) when it unilaterally imposed restrictions on the activities of nonemployee union representatives in areas of the facility that are open to the general public, and when, pursuant to those unlawfully imposed restrictions, it ejected nonemployee union representatives from the facility and banned them from returning for one year; and (2) Section 8(a)(3) and (1) when it discharged an employee based on his union activities.

Charges filed by SEIU Healthcare Minnesota and Minnesota Nurses Association.  Administrative Law Judge Paul Bogas issued his decision on September 3, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Wayron, LLC  (19-CA-032983; 364 NLRB No. 60)  Longview, WA, August 2, 2016.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the Administrative Law Judge’s dismissal of the allegation that the Respondent violated Sec. 8(a)(5) and (1) by refusing to permit a financial audit by the unions representing its employees, and, as a result of that violation, by unilaterally changing employees’ wages and benefits in the absence of a valid impasse in collective-bargaining negotiations.  The majority found that the Respondent’s communications in bargaining about its need for drastic concessions in labor costs, considered in context and in their entirety, conveyed inability to pay and therefore supported the Unions’ right to the requested financial audit under Nielsen Lithographing Co., 305 NLRB 697 (1991), affd. sub nom. GCIU Local 508 v. NLRB, 977 F.2d 1168 (7th Cir. 1992).  The Respondent attempted to characterize its bargaining position as based on a need to be competitive, which, under Nielsen, would not have required it to provide the requested financial information; however, the majority rejected the Respondent’s argument, finding that the Respondent relied on “magic words” and misstated both the facts and the law.  The majority further found that the Respondent’s unilateral implementation of wages and benefits would have violated Sec. 8(a)(5) and (1) even if the parties had reached a valid impasse in bargaining, because the implemented wages and benefits were never presented to the Unions in bargaining.  The parties had bargained over only the average hourly compensation that the Respondent could pay, and the Respondent formulated the specific wages and benefits that it would implement only after negotiations had ceased.  Among other remedies, the majority ordered rescission of the unilaterally implemented terms and backpay for employees.  The majority found it unnecessary to reach the allegation that the Respondent had engaged in overall bad-faith bargaining.

Member Miscimarra dissented from the majority’s finding that the Respondent acted unlawfully by refusing to permit the requested financial audit; he agreed with the judge that the Respondent claimed only competitive disadvantage, not inability to pay.  Thus, he would have found that a valid impasse existed, allowing the Respondent to implement its final bargaining proposal of a particular average hourly compensation (representing an overall reduction in labor costs).  But he concurred with the majority that the Respondent was required to provide the Unions notice and an opportunity to bargain over the specific wage and benefit changes the Respondent formulated to effectuate the overall reduction, and he would have ordered the Respondent to engage in such bargaining.  He would not, however, have ordered rescission of the implemented changes or payment of backpay.

Charge filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers of America, Local 104 on behalf of itself and the International Association of Machinists and Aerospace Workers, AFL‑CIO, District Lodge 160, Local Lodge 1350, and the International Union of Painters and Allied Trades, District Council 5.  Administrative Law Judge Gerald A. Wacknov issued his decision on March 29, 2012.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Michigan State Employees Association d/b/a American Federation of State County 5 MI Loc Michigan State Employees Association, AFL-CIO  (07-CA-053541, et al.; 364 NLRB No. 65)  Lansing, MI, August 4, 2016.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Respondent’s motion to reopen the record to receive ostensible evidence of perjury on the basis that the motion was untimely; further, the new evidence did not refute a material fact but went to possible bias, and thus to the judge’s credibility resolutions, and would not compel a different result.  The majority affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) by suspending and discharging two employees, terminating the recall rights of another, and delaying an employee’s return to work because of their union activity.  The majority also reversed the judge and found that the Respondent unlawfully disciplined an employee because of her union activity.  The Board unanimously found that the Respondent violated Section 8(a)(5) by inadequately responding, failing to respond, and delaying responses to information requests and by unilaterally eliminating benefits, removing bargaining unit work, implementing work rules, and engaging in bad-faith bargaining for a successor contract.  Finally, the Board unanimously affirmed the judge’s findings that the Respondent violated Section 8(a)(1) by prohibiting employees from disclosing the contents of investigatory questionnaires, but reversed the judge and found that it issued an unlawful directive.

Dissenting in part, Member Miscimarra would have granted the motion to reopen and remanded the case to the judge to reassess his credibility resolutions and findings regarding certain of the Section 8(a)(3) violations.  Member Miscimarra found it unnecessary to pass on the unlawful discipline finding because the rescission and expungement remedy for the unilateral implementation of work rules would remedy the 8(a)(3) violation.  He concurred with respect to the unlawfulness of the investigatory questionnaires and the directive, as well as the removal of bargaining unit work.

Charges filed by the Central Office Staff Association.  Administrative Law Judge Keltner W. Locke issued his decision on March 27, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Southern Bakeries, LLC  (15-CA-101311, et al.; 364 NLRB No. 64)  Hope, AR, August 4, 2016.

The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) by unlawfully withdrawing recognition from the Union, and committed numerous other violations of Section 8(a)(1), (3), and (5) before and after the withdrawal of recognition.  Specifically, the Board affirmed the judge’s findings that the Respondent violated:  Section 8(a)(1) by creating an impression of surveillance and promising to reward employees with higher wages and other unspecified benefits if they rejected the Union (Member Miscimarra found it unnecessary to pass on all but one of the allegations of unlawful promises of benefits); Section 8(a)(3) and (1) by disciplining two employees; and Section 8(a)(5) and (1) by changing plant access rights and procedures and space for employee union meetings, withdrawing recognition from the Union, and unilaterally granting unit employees a wage increase after withdrawing recognition.  The Board also adopted the judge’s dismissal of allegations that the Respondent violated Section 8(a)(1) by engaging in surveillance, and Section 8(a)(5) and (1) by cancelling dues checkoff after the parties’ collective-bargaining agreement expired.

The Board disregarded the Respondent’s bare exceptions asserting that the judge erred in finding that it unlawfully threatened discharge, job loss, and unspecified reprisals.  Additionally, in the absence of exceptions, the Board adopted certain other Section 8(a)(5), (3), and (1) violations found by the judge, along with the judge’s dismissal of an unlawful discharge allegation.  The Board found it unnecessary to pass on the judge’s finding that the Respondent violated Section 8(a)(1) by coercively interrogating employees on January 23, 2013, as that would be cumulative of other violations found. 

A Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the judge’s findings that the Respondent violated Section 8(a)(1) by disparaging the Union, threatening plant closure, and stating that bargaining would be futile.  The same majority also found merit to the General Counsel’s exception regarding the judge’s failure to rule on additional allegations that the Respondent unlawfully interrogated three employees.  Member Miscimarra found it unnecessary to pass on this.  Finally, the same majority found merit to the General Counsel’s exception to the judge’s failure to find that the Respondent promulgated an unlawful rule.  Member Miscimarra dissented from the majority’s findings that the Respondent unlawfully disparaged the Union, threatened plant closure, made statements of futility, and promulgated an unlawful rule.

A different panel majority consisting of Chairman Pearce and Member Miscimarra found it unnecessary to pass on the allegation that the Respondent’s grant of the wage increase to unit employees after it withdrew recognition from the Union violated Section 8(a)(3).  Having found that the wage increase violated Section 8(a)(5), the majority concluded that finding an additional 8(a)(3) violation would not materially affect the remedy.  Member Hirozawa would find merit in the General Counsel’s argument that that the wage increase violated Section 8(a)(3) as well as Section 8(a)(5).

Charges filed by Bakery, Confectionery, Tobacco Workers and Grain Millers Union, Local 111. Administrative Law Judge Robert A. Ringler issued his decision on July 17, 2014. Chairman Pearce and Members Hirozawa and Miscimarra participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No R Cases Issued

C Cases

U.S. Foods, Inc.  (27-CA-158614)  Boise, ID, August 1, 2016.  No exceptions having been filed to the June 17, 2016 decision of Administrative Law Judge Amita Baman Tracy’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 International Brotherhood of Teamsters, Local 483.

Bakery, Confectionery, Tobacco Workers & Grain Millers Union  (21-CA-171340)  Los Angeles, CA, August 3, 2016.  The Board denied the Employer’s motion to quash 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.  Charge filed by an individual.  Chairman Pearce and Members Hirozawa and McFerran participated.

United States Postal Service  (12-CA-158352, et al.)  Ponce, PR, August 3, 2016.  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.  Charges filed by National Association of Letter Carriers, Branch 826, AFL-CIO. Chairman Pearce and Members Hirozawa and McFerran participated.

Home Health Care Services of New York Inc.  (29-CA-149313, et al.)  Brooklyn and Bronx, NY, August 3, 2016.  The Board approved a formal settlement stipulation between the Respondents (Home Health Care Services of New York, Inc. and Local 713 International Brotherhood of Trade Unions), the Charging Party, and the General Counsel, and specified actions the Respondents must take to comply with the Act.  Charges filed by 1199 SEIU United Healthcare Workers East.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Appellate Court Decisions

Enterprise Leasing Company of Florida d/b/a Alamo Rent-A-Car, Board Case No. 12-CA-026588 (reported at 362 NLRB No. 135) (D.C. Cir. decided August 5, 2016)

In a published opinion, the court enforced the Board’s order issued against this national car-rental business operating a facility at the Miami International Airport for committing a variety of unfair labor practices, including unlawfully withdrawing recognition from Teamsters Local Union No. 769.

The Board (Chairman Pearce and Member McFerran; Member Miscimarra, dissenting in part and concurring in part) found that the Employer violated Section 8(a)(1) by telling employees that it was eliminating their short-term disability benefits because of their union representation, and by encouraging them to circulate a petition to decertify the Union as their bargaining representative.  The Board found the Employer violated Section 8(a)(5) and (1) by unilaterally eliminating employees’ short-term disability benefits, interfering with the Union’s contractual right of access to employees at the Miami facility, and later withdrawing recognition from the Union based solely on a tainted decertification petition.  Further, the Board found that, after withdrawing recognition, the Employer unlawfully interrogated employees, committed a number of unlawful unilateral changes to the employees’ terms and conditions of employment, stopped deducting and remitting dues to the Union as required under the contractual dues-checkoff provision, and refused to process an employee grievance.

On review, the court summarily upheld a number of uncontested violations and held that the remaining Board findings were supported by the credited record evidence.  Regarding the withdrawal of recognition, the court agreed with the Board that the Employer could not rely on the decertification petition that, among other unlawful conduct, had been tainted per se by the Employer’s active encouragement and promotion of the decertification petition under the principles of SFO Good-Nite Inn, LLC v. NLRB, 700 F.3d 1 (D.C. Cir. 2012).  Regarding the denial of access to Union representatives, the court rejected the Employer’s contention that advance notice was required because no such requirement was specified in the contract.  Regarding the unilateral withdrawal of short-term disability benefits, the court rejected the Employer’s contention that the Union waived its right to bargain under the contract, instead agreeing with the Board that, at the time the benefits were terminated, the Employer was providing them pursuant to a plan not referenced in the contract.  Finding no merit to the Employer’s remaining contentions, the court enforced the Board’s order in full.

The court’s opinion is here.

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Administrative Law Judge Decisions

International Union of Operating Engineers Local 18  (08-CD-135243, 08-CD-143412, and 08-CD-147696; JD-71-16)  Avon, OH.  Administrative Law Judge David I. Goldman issued his decision on August 1, 2016.  Charges filed by Nerone & Sons, Inc., R.G. Smith Company, Inc., and KMU Trucking & Excavating, Inc., Schirmer Construction Co., Platform Cement, Inc., 21st Century Concrete Construction, Inc., Independence Excavating, Inc.

Cellco Partnership d/b/a Verizon Wireless  (29-CA-158754; JD(NY)-27-16)  Brooklyn, NY.  Administrative Law Judge John T. Giannopoulos issued his decision on August 1, 2016.  Charge filed by Communication Workers of America, AFL-CIO.

Cleary School for the Deaf  (29-CA-163066; JD(NY)-28-16)  Brooklyn, NY.  Administrative Law Judge Raymond P. Green issued his decision on August 3, 2016.  Charge filed by New York State United Teachers American Federation of Teachers, NEA, AFL-CIO.

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