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Summary of NLRB Decisions for Week of August 7 - 11, 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

Mek Arden, LLC d/b/a Arden Post Acute Rehab (20-CA-156352, et al.; 365 NLRB No. 109) Sacramento, CA, August 8, 2017.  Errata issued to July 25, 2017 Decision and Order.   Errata

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

New Foundations Charter School, Inc.  (04-RC-199928)  Philadelphia, PA, August 9, 2017.  The Board denied the Employer’s request to stay the election, or, alternatively, to impound the ballots, pending the Board’s determination of the Employer’s Request for Review.  The Employer argued that the Regional Director erred in asserting jurisdiction over the charter school and in finding a unit limited to employees in its high school building to be appropriate.  While expressing his disagreement with the Board’s new representation rules, Chairman Miscimarra agreed with the denial of the Employer’s request, without prejudice to the Board’s consideration of the Employer’s pending Request for Review.  Petitioner – Philadelphia Alliance of Charter School Employees, Local 6506, AFT-PA, AFT, AFL-CIO.  Chairman Miscimarra and Members Pearce and McFerran participated.

Bilfinger Industrial Services, Inc.  (14-UD-194983)  Cape Girardeau County, MO, August 10, 2017.  The Board denied the Union’s Request for Review of the Regional Director’s Decision on Objections and Order Directing Rerun Election as it raised no substantial issues warranting review.  The Regional Director sustained the Employer’s Objection alleging that the Petitioner was precluded from receiving the voter list due to the Region’s inadvertent clerical error in directing the Employer to serve the voter list to the wrong email address, and the Petitioner’s Objection alleging that it never received a copy of the list.  Petitioner – an individual.  Union – Craftsman Independent Union.  Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Fareri Associates, LP  (01-CA-188158 and 01-CA-190046)  Greenwich, CT, August 9, 2017.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  The Board majority (Members Pearce and McFerran) evaluated the subpoena in light of the Region’s withdrawal of one paragraph and its modification of several other paragraphs to limit the scope of the subpoena regarding the definition of the phrase “employee activity,” the time period sought, and the location of documents sought.  Contrary to the dissent, the majority found that the Region’s offer to limit the scope of the subpoena does not establish that the subpoena initially was overbroad.  Chairman Miscimarra dissented from the majority’s denial of the petition as to the withdrawn or modified paragraphs, stating that he believes it is more appropriate for the Board to grant a petition to revoke as to such requests than to deny the petition to revoke based on a change that was communicated only after the petition to revoke is under consideration by the Board.  Charges filed by Service Employees International Union, Local 32BJ.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

CNN America, Inc. and Team Video Services, LLC, Joint Employers, Board No. 05-CA-031828 (reported at 361 NLRB No. 47) (D.C. Cir. decided Aug. 4, 2017)

In a published opinion, the Court granted the petition for review in part, enforced in part, and remanded portions of the case for the Board’s reconsideration.  Specifically, the Court vacated the Board’s findings that CNN and its contractor Team Video Services, LLC (TVS) were joint employers of the technicians working at CNN’s Washington, DC, and New York City news bureaus, as well as two findings dependent on joint-employer status, and remanded those issues.  The Court, however, upheld the Board’s finding that CNN, after it cancelled the contract under which TVS had provided technicians for those bureaus, became a successor employer and violated Section 8(a)(5) and (1) by refusing to bargain with National Association of Broadcast Employees and Technicians, Communications Workers of America, Local Union Nos. 11 and 31.  The Court further upheld the Board’s findings that CNN violated Section 8(a)(3) and (1) by engaging in discriminatory hiring when it refused to hire prior-TVS technicians on the basis of union animus, and violated Section 8(a)(1) when four CNN supervisors made coercive statements to technicians about the Union.  The Court, though, remanded two portions of the remedial order related to those violations, the backpay remedy and the affirmative bargaining order.

The Court’s opinion is here.

Rhino Northwest, LLC, Board Case No. 19-CA-160205 (reported at 363 NLRB No. 72) (D.C. Cir. decided Aug. 11, 2017)

In a published opinion that issued in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this operator of an event-staffing business for venues throughout the State of Washington and occasionally in Oregon and Montana.  In doing so, the Court rejected the Employer’s challenges to the Board’s standard clarified in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, 943-47 (2011), enforced sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), and upheld the Board’s application of the standard in this case to find the unit of riggers that International Alliance of Theatrical Stage Employees, Local 15, petitioned to represent constituted an appropriate collective-bargaining unit.

In the underlying representation case, the Employer argued that a unit of riggers was not an appropriate unit because it did not include all event employees.  After a hearing, the Regional Director applied the two-step standard of Specialty Healthcare.  Under step one, the Regional Director concluded that the riggers are a readily identifiable group, share a community of interest, and constitute an appropriate unit.  Under step two, the Regional Director concluded that the Employer failed to carry its burden of showing, as it had contended, that the excluded event employees share an “overwhelming community of interest” with the riggers, such that there was no legitimate basis upon which to exclude them.  After the Board (then-Chairman Pearce and Members Hirozawa and McFerran) denied the Employer’s Request for Review, the Regional Director conducted a mail-ballot election among the riggers.  The tally of ballots showed that a majority voted for representation, and the Regional Director certified the Union.

On review, the Court rejected the Employer’s argument that the Specialty Healthcare standard was contrary to the NLRA and Board precedent.  The Court confirmed that the overwhelming-community-of-interest test, which the Board adopted from the Court’s decision in Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008), was simply a clarification of existing Board law, and not a departure from it.  With that holding, the Court joined the seven other circuits that have reviewed and upheld the standard.  See Constellation Brands, Inc. v. NLRB, 842 F.3d 784 (2d Cir. 2016); FedEx Freight, Inc. v. NLRB, 839 F.3d 636 (7th Cir. 2016); NLRB v. FedEx Freight, Inc., 832 F.3d 432 (3d Cir. 2016); Macy’s Inc. v. NLRB, 824 F.3d 557 (5th Cir.), reh’g en banc denied (2016), cert denied, 137 S. Ct. 2265 (2017); FedEx Freight, Inc. v. NLRB, 816 F.3d 515 (8th Cir.), reh’g & reh’g en banc denied (2016); Nestle Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016); Kindred Nursing Ctrs. East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).

The Court then rejected a series of other challenges to the standard.  For instance, contrary to the Employer’s assertion that the overwhelming-community-of-interest test could never be met, the Court discussed prior Board cases that found, both before and after Specialty Healthcare, that employers had met the standard.  Further, the Court explained that the standard does not give controlling weight to the extent of organization in conflict with Section 9(c)(5) of the Act, and that, even if the Board had announced a new standard in Specialty Healthcare, the Board would not have violated the Administrative Procedure Act by doing so in an adjudicatory proceeding, rather than by notice-and-comment rulemaking.

Reviewing the Board’s application of the standard, the Court held that substantial evidence supported the Board’s finding that the Employer had not met its burden under Specialty Healthcare’s step two.  Rather, the Court noted that the record evidence supported the Board’s finding given the significant distinctions between riggers and other event employees concerning wages, hours, training, supervision, equipment, and physical working conditions.  Therefore, the Court held that the Board reasonably concluded that those distinctions “sufficiently ‘differentiate the employment interests’ of [the] riggers and non-riggers such that riggers may form their own bargaining unit,” quoting Blue Man Vegas, 529 F.3d at 424.

The Court’s opinion is here.

Cooper Tire & Rubber Company, Board Case No. 08-CA-087155 (reported at 363 NLRB No. 194) (8th Cir. decided Aug. 8, 2017)

In a published opinion, the Court enforced the Board’s order that issued against this operator of a tire manufacturing plant in Findley, Ohio, where its production and maintenance employees are represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.  In doing so, the Court upheld the Board’s finding that the Employer violated Section 8(a)(3) and (1) by discharging an employee for making racially charged statements on a picket line.

In late 2011, the parties negotiated for a successor collective-bargaining agreement.  After its last, best, and final contract offer was rejected, the Employer initiated a lockout and the employees began picketing near the front entrance of the plant.  During the lockout, the Employer used replacement workers, many of whom were African-American, to keep the plant operating.  In early 2012, a van carrying replacement workers drove past the picketers with its windows closed.  After the van passed, one picketer yelled, “Hey, did you bring enough KFC for everybody?” and “I smell fried chicken and watermelon.”  After the lockout ended, the Employer discharged the employee for those statements.  The Board (then-Chairman Pearce and Members Hirozawa and McFerran), applied the Board’s picket-line misconduct test articulated in Clear Pine Mouldings, Inc., 268 NLRB 1044 (1984), enforced mem., 765 F.2d 148 (9th Cir. 1985), to find that the statements would not reasonably tend to coerce employees in the exercise of their rights under the Act, nor were they so egregious as to cause the employee to lose the Act’s protections.  The Board declined to defer to an arbitrator’s award, which had concluded that the discharge was for “just cause” under a standard inconsistent with Clear Pine Mouldings.

On review, the Court (Circuit Judges Benton and Murphy; Circuit Judge Beam, dissenting) upheld the Board’s unfair-labor-practice finding as supported by substantial evidence and consistent with law.  Rejecting the Employer’s contentions, the Court held that Clear Pine Mouldings was the appropriate test, and that the cases the Employer cited did not support its position.  Read in the context of precedent, the Court explained that the statements, although repugnant, were brief, not violent in character, and did not contain any overt or implied threats.  The Court also rejected the Employer’s claim that reinstating the employee would conflict with Title VII.  The Court explained that the statements—even if they had been made in the workplace instead of on the picket line—would be insufficient to create a hostile work environment and, even so, that the Employer would not have been under a duty to fire the employee.  Finally, the Court concluded that the Board did not abuse its discretion by not deferring to the arbitrator.  Judge Bean authored a dissenting opinion to state his view that the Act should not be read to permit such outright racial insult or bigotry.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Horizon Scripted Television, Inc.  (28-CA-184635; JD(SF)-36-17)  Santa Fe, NM.  Administrative Law Judge Gerald M. Etchingham issued his decision on August 7, 2017.  Charge filed by an individual.

Erickson Trucking Service, Inc. d/b/a Erickson’s Inc.  (07-CA-178824; JD-64-17)  Grand Rapids, MI.  Administrative Law Judge Ira Sandron issued his decision on August 11, 2017.  Charge filed by Local 324, International Union of Operating Engineers (OPEIU), AFL-CIO.

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