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Summary of NLRB Decisions for Week of August 19-23, 2013

 

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

No Published Board Decisions Issued

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued

C Cases

International Brotherhood of Teamsters, Local 727 (CCS Trucking Company)  (13-CB-060708)  Chicago, IL, August 19, 2013.  No exceptions having been filed to the Administrative Law Judge’s Supplemental Decision regarding the amounts of backpay due the discriminatee, the Board ordered Respondent International Brotherhood of Teamsters, Local 727 to pay the amounts set forth in the Administrative Law Judge’s recommended Order. Charge filed by an individual.

Aggregate Industries Northeast Region, Inc.  (01-CA-071831)  Saugus, MA, August 19, 2013.  No exceptions having been filed to the Administrative Law Judge’s dismissal of the Complaint, the Board adopted the findings and conclusions of the Administrative Law Judge regarding the alleged unfair labor practices and dismissed the Complaint.  Charge filed by International Brotherhood of Teamsters, Local 42.

Yonkers Raceway d/b/a Empire City Casino at Yonkers Raceway  (02-CA-083907; 02-RC-082872)  Yonkers, NY, August 20, 2013.  No exceptions having been filed to the Administrative Law Judge’s Decision in this combined C and R case, the Board adopted the findings and conclusions of the Administrative Law Judge, and ordered the Respondent Employer to take the action set forth in the Judge’s recommended Order to remedy the unfair labor practices found, adopted the Judge’s findings that no objectionable conduct had occurred in the representation election,  and certified Yonkers Raceway Police Benevolent Association as the exclusive collective-bargaining representative of the unit employees.  Charge filed by an individual.  Petition filed by Law Enforcement Employees Benevolent Association.

Schwarz Partners Packaging, LLC d/b/a Maxpax  (12-CA-109207)  Lakeland, FL, August 23, 2013.  Order transferring proceeding to the Board and Notice to Show Cause why the Acting General Counsel’s Motion for Summary Judgment should not be granted in this technical 8(a)(5) refusal-to-bargain case in which the Respondent Employer is challenging the Union’s certification in Case 12-RC-073852.

Ozburn-Hessey Logistics, LLC  (15-CA-109236)  Memphis, TN, August 23, 2013.  Order transferring proceeding to the Board and Notice to Show Cause why the Acting General Counsel’s Motion for Summary Judgment should not be granted in this technical 8(a)(5) refusal-to-bargain case in which the Respondent Employer is challenging the Union’s certification in  Case 26-RC-008635.

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Appellate Court Decisions

Relco Locomotives, Inc., Board Case Nos. 18-CA-19175 & 18-CA-19720 (reported at 358 NLRB Nos. 132 & 37, respectively) (8th Cir. decided August 20, 2013)

In a published opinion, the Court agreed that, among other things, RELCO unlawfully discharged eight employees in retaliation for their protected activity and held that RELCO waived its post-briefing challenge to the Board’s recess appointments.  It therefore denied RELCO’s petitions for review and granted the Board’s applications for enforcement.

This case involves two consolidated Board proceedings, RELCO I and RELCO II.  RELCO, an Iowa locomotive maintenance and repair company, committed numerous unfair labor practices during a 2009-10 organizing campaign.  In its first decision, the Board concluded that RELCO unlawfully discharged three union supporters, including the two chief proponents.  RELCO’s president had demonstrated his antiunion motive shortly after he discovered the unionization effort when he gave a prolonged antiunion speech and told one of the organizers to “shut up and sit down” after he asked the president to discuss the union.  The Board credited evidence demonstrating that RELCO’s reasons for discharging each of the three prounion workers were pretextual.  A fourth employee’s discharge for calling RELCO’s laundry service to determine whether RELCO was overcharging employees for mandatory uniform cleaning also violated the Act because it interfered with protected concerted activity.  Then, in response to the employee’s call, RELCO attempted to have its workforce to sign a nondisclosure agreement prohibiting any contact with RELCO’s vendors.  The Board found that the nondisclosure agreement interfered with employees’ Section 7 rights and rejected RELCO’s mootness argument in light of the aborted agreement’s continued chilling effect.

Several witnesses testified on the union's behalf during the hearing in RELCO I, two of whom RELCO subsequently fired.  In RELCO II, the Board found that the reasons for the two employees’ discharge--failure to improve work performance and purported low productivity--were not true and that RELCO actually fired them for their activity supporting the union.  The Board also determined that RELCO unlawfully terminated two others for discussing a rumor that RELCO fired a coworker for taking time off to play Santa Claus at his child's school, which the Board found constituted protected activity as "conversations which are precursors to or preparation for group action on behalf of employees."  Slip op. at 38. 

 The Court enforced the Board's orders in full.  Notably, in its opinion, the Court recognized that:

  •  Section 8(c) of the Act’s free speech provisions did not prevent the Board from relying on RELCO’s president’s antiunion harangue to prove animus and that it was reasonable to impute his statements to lower-lever decision-makers;
  • The Board’s Wright Line analysis “is only necessary if the employer’s stated rationale for termination is not activity protected by the NLRA,” slip op. at 21; and  
  •  In analyzing whether an employer has subjected a worker to disparate treatment, “the ‘similarly situated co-worker inquiry is a search for a substantially-similar employee, not for a clone,’” slip op. at 35 (quoting Ridout v. JBS USA, LLC, __ F.3d __, 2013 WL 266171, at *5 (8th Cir. Jun. 14, 2013)).

In sum, the Court found that "the NLRB's decisions were supported by substantial evidence in all respects."  Slip op. at 40.

After briefing was complete, RELCO asked the Court to deny enforcement based on the D.C. Circuit’s decision striking down the President’s January 2012 recess appointments to the Board, see Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert. granted, 81 U.S.L.W. 3695 (U.S. June 24, 2013) (No. 12-1281).  Although RELCO had never contested the appointments at any prior stage of the proceedings, it claimed that the challenge went to the Court’s subject matter jurisdiction.  After supplemental briefing, the Court “decline[d] to attach the ‘drastic consequences’ of terming a recess appointments clause challenge to be ‘jurisdictional’ when it appears loosely analogous to claims which the Supreme Court has already decisively declared to be nonjurisdictional.”  Slip op. at 45 (citing Gonzales v. Thaler, 132 S. Ct. 641 (2012); Freytag v. Commissioner, 501 U.S. 868 (1990)).  Then, the Court declined to exercise its discretion to hear RELCO’s appointments complaint, explaining that “[a]ll of the facts and legal arguments necessary to make an appointments clause challenge were available to RELCO when its case was heard by the Board.”  Slip op. at 48.  And, finally, the Court concluded that RELCO failed to demonstrate extraordinary circumstances, as defined in Section 10(e) of the Act, that would excuse the initial failure to raise the issue with the Board.  There was neither a new fact or development justifying RELCO’s decision against making the challenge earlier, nor did the Board travel outside its orbit of authority given settled law from three circuits upholding the president’s power to make intrasession recess appointments.  As the Court held, “[t]he fact that RELCO initially decided not to pursue this argument . . . is a strategic decision whose consequences it must accept.”  Slip op. at 48.

Judge Smith dissented.  Although he agreed that RELCO’s recess appointment challenge was non-jurisdictional, he would have reached it anyway and joined the D.C. Circuit in finding the January 2012 recess appointments unconstitutional.

The Court’s opinion is available here.

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Administrative Law Judge Decisions

Cellular Sales of Missouri, LLC (14-CA-094714; JD-57-13) Pittsburg, MI.  Administrative Law Judge Christine E. Dibble issued her decision on August 19, 2013.  Charge filed by an individual.

JP Morgan Chase & Co. and Chase Investment Services Corp., now doing business as JP Morgan Securities, LLC, Joint Employers, and JP Morgan Chase & Co., and JP Morgan Chase Bank, N.A., Joint Employers (02-CA-088471, 098118; JD(NY)-40-13) New York, NY.  Administrative Law Judge Steven Fish issued his decision on August 21, 2013.  Charges filed by individuals.

Road Sprinkler Fitters Local Union No. 669 (Firetrol Protection Systems, Inc.) (27-CC-091349; JD(SF)-39-13) Denver, CO.  Administrative Law Judge Mary Miller Cracraft issued her decision on August 22, 2013.  Charge filed by Firetrol Protection Systems, Inc.

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