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Summary of NLRB Decisions for Week of August 31 - September 4, 2015

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

Eschelon Financial Services, LLC d/b/a EMV Payment Systems, LLC  (28-CA-146504; 363 NLRB No. 3)  Phoenix, AZ, August 31, 2015.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(1) by maintaining overly broad and discriminatory rules in its employee handbook, and further found that the Respondent violated Section 8(a)(1) by threatening its employees with discharge if they engaged in protected concerted activities; issuing an unlawful directive to its employees prohibiting them from engaging in protected concerted activities; and enforcing an unlawful directive to its employees which prohibited them from engaging in protected concerted activities.  The Board found that the Respondent additionally violated Section 8(a)(1) by discharging an employee because the employee raised with the Respondent and discussed with other employees the Respondent’s employee break policies and practices, and to discourage employees from engaging in these or other concerted activities.  The Board ordered the Respondent to offer the unlawfully discharged employee full reinstatement to her former job, to make her whole for any loss of earnings and other benefits suffered as a result of its discrimination against her by paying her the amount set forth in the compliance specification, to compensate the employee for any adverse tax consequences of receiving a lump-sum backpay award, file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters, and remove references to the unlawful discipline and discharge from the employee’s file.  In addition, the Respondent was ordered to rescind the unlawful rules and to advise its employees in writing of such rescission.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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MSR Industrial Services, LLC  (07-CA-106032 and 07-CA-106627; 363 NLRB No. 1)  Burton, MI, August 31, 2015. 

The Board reversed the Administrative Law Judge and found that that the Respondent’s unilateral changes to terms and conditions of employment, made after the expiration of the Respondent’s collective-bargaining agreement with the Union, were not unlawful based on the Respondent’s failure to notify the Federal Mediation and Conciliation Service in advance of contract expiration.   The Respondent is a construction industry employer.  The judge found that the Respondent’s changes were unlawful, not because the Respondent was bound to the successor agreement or because the Respondent made the changes without bargaining with the Union, but only because the Respondent failed to fully comply with the notice requirements of Section 8(d) of the Act.   The Board found that the parties’ relationship was governed by Section 8(f) of the Act, and concluded that the notice requirements of Section 8(d) do not apply to 8(f) relationships.   Accordingly, the Board found that the Respondent did not violate Section 8(a)(5) and (1) by making its changes.  Charges filed by Local 25, International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on April 9, 2014.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Columbia Memorial Hospital  (03-CA-132367; 363 NLRB No. 4)  Hudson, NY, September 1, 2015.

The Board adopted the Administrative Law Judge’s decision finding that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with information it requested concerning the Respondent’s mandatory overtime procedures for registered nurses, which was relevant to a pending grievance and to the Union’s duty to monitor the Respondent’s compliance with the collective-bargaining agreement.  Member Miscimarra would have applied Hertz Corp. v. NLRB, 105 F.3d 868 (3d Cir. 1997) and found that the Respondent had an obligation to respond to the request because the Union’s entitlement to the information would have been readily apparent from applicable state law and the collective-bargaining agreement.  Charge filed by 1199 SEIU United Healthcare Workers East.  Administrative Law Judge Steven Davis issued his decision on February 20, 2015.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Hoot Winc, LLC and Ontario Wings, LLC d/b/a Hooters of Ontario Mills  (31-CA-104872, et al.; 363 NLRB No. 2)  Ontario, CA, September 1, 2015.

Citing Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), D. R. Horton, Inc., 357 NLRB No. 184 (2012), and U-Haul Co. of California, 347 NLRB 375 (2006), a unanimous Board panel adopted the Administrative Law Judge’s finding that the Respondents violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that would reasonably be read by employees to prohibit the filing of unfair labor practice charges with the Board.  In finding the violation, the Board rejected the Respondents’ argument that an exemption in the agreement for “any dispute that cannot be arbitrated as a matter of law” saved the agreement from being unlawful.  In addition, a panel majority consisting of Chairman Pearce and Member Hirozawa adopted the judge’s finding that the agreement violated Section 8(a)(1) because it required employees to waive their right to engage in class or collective action in all forums, whether arbitral or judicial.  Member Miscimarra dissented from this finding, citing his partial dissent in Murphy Oil.  Charges filed by individuals.  Administrative Law Judge William Nelson Cates issued his decision on May 19, 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

Renzenberger, Incorporated  (13-RC-145377)  Chicago, IL, September 1, 2015.  The Board adopted the hearing officer’s recommendation to overrule the Petitioner’s challenge to one employee’s ballot and sustain its challenge to another employee’s ballot based on the hearing officer’s respective findings concerning whether each employee had a substantial interest in the wages, hours, and working conditions of unit employees.  The Board pro forma adopted the hearing officer’s other recommendations regarding challenged ballots, and directed the Regional Director to open the challenged ballots, serve a revised tally of ballots on the parties, and issue the appropriate certification.  Petitioner—United Electrical, Radio and Machine Workers of America (UE) Local 1177.  Intervenor—Truck Drivers, Chauffeurs, Warehousemen & Helpers Union, Local 707.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

City View Villa  (31-CA-141116)  Los Angeles, CA, August 31, 2015.  Order denying the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Chairman Pearce and Members Miscimarra and Hirozawa participated. 

Rochester Gas & Electric Corporation  (03-CA-025915)  Rochester, NY, September 2, 2015.  The Board denied the Charging Party Union’s request for review of the General Counsel’s decision affirming the Regional Director’s compliance determination in the underlying unfair labor practice proceeding.  Charge filed by Local Union 36, International Brotherhood of Electrical Workers, AFL-CIO. Chairman Pearce, Members Hirozawa and McFerran participated.

Emlo Corporation  (29-CA-135944)  Paterson, NJ, September 3, 2015.  The Board having previously rejected the Respondent’s exceptions filed to the May 26, 2015 decision of Administrative Law Judge Steven Davis as procedurally deficient under the Board’s Rules and Regulations, the Board adopted the judge’s findings and conclusions and ordered the Respondent to take the action set forth in the judge’s recommended Order.  Charge filed by Asbestos, Lead & Hazardous Waste Laborers, Local 78, Laborers’ International Union of North America.

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Appellate Court Decisions

Auto Nation, Inc. and Village Motors, LLC d/b/a Libertyville Toyota, Board Case No. 13-CA-063676 (reported at 360 NLRB No. 141) (7th Cir. decided September 4, 2015)

In a published opinion, the court enforced the Board’s order remedying a number of unfair labor practices committed by this Libertyville, Illinois car dealership during an organizing drive by Automobile Mechanics Local No. 701, International Association of Machinists, among the dealership’s 80 service technicians. 

The Board (Members Miscimarra, Hirozawa, and Schiffer), agreeing with the administrative law judge, found that the employer violated Section 8(a)(1) of the Act at a captive-audience meeting by threatening employees with statements that it would be futile to select the union, that some employees would be demoted if the union were selected, and that they would be blacklisted for their union support.  Further, the Board majority (Member Miscimarra dissenting) adopted the judge’s finding that the employer unlawfully made implied promises of wage increases at the captive-audience meeting to deter employees from union support.  That Board majority also found, in disagreement with the judge, that the employer violated Section 8(a)(3) of the Act by discharging a lead union organizer, finding that union animus was a motivating factor in his discharge and the reason the employer provided was pretextual.

On review, the court found that substantial evidence supported the Board’s findings that the employer made the unlawful threats of futility, demotion, and blacklisting if the union were selected, and impliedly promised wage increases if they did not select the union.  The court also upheld the Board’s unlawful discharge finding.  In doing so, the court rejected the employer’s contention that the Board had insufficiently shown a nexus between union animus and the discharge.  Although the court stated that “language in the Board’s opinion . . . could be clearer, we conclude that taken as a whole the Board applied the correct legal standard and that substantial evidence supported its conclusion.”  The court explained that, in its view, the language of the Board’s decision on which the employer relied meant only that “there was no need to prove additional animus beyond whatever animus lay behind the contested action” (original emphasis), but that it was a settled principle that “an abstract dislike of unions is insufficient.”  For illustration, the court provided this hypothetical:  “[I]f the company took the position that it would fire all union organizers, and then it fired Union Organizer A, there would be no need to show that it had an extra grudge against A related to union activity.”  In any event, here, the court concluded, “there is a clear nexus between the employer’s anti-union animus and the particular action it took,” given that circumstantial evidence demonstrated that the employer’s anti-union views played “a central role” in its discharge decision.

The court’s opinion is here

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Administrative Law Judge Decisions

Vigor Industrial, LLC  (19-CA-135538; JD(SF)-35-15)  States of Oregon and Washington.  Administrative Law Judge Mary Miller Cracraft issued her decision on September 2, 2015.  Charge filed by International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers Local Union 104, AFL-CIO.

Western Cab Company  (28-CA-131426, et al.; JD(SF)-33-15)  Las Vegas. NV.  Administrative Law Judge Ariel L. Sotolongo issued his decision on September 2, 2015.  Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO/CLC.

North Central Blood Services, American Red Cross  (18-CA-134834; JD-50-15)  St. Paul, MN.  Administrative Law Judge Christine E. Dibble issued her decision on September 3, 2015.  Charge filed by American Federation of State, County and Municipal Employees (AFSCME) Council 5.

North Memorial Health Care  (18-CA-132107, et al.; JD-49-15)  Robbinsdale, MN.  Administrative Law Judge Paul Bogas issued his decision on September 3, 2015.  Charges filed by SEIU Healthcare Minnesota and Minnesota Nurses Association.

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