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Summary of NLRB Decisions for Week of August August 10-14, 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

Countrywide Financial Corporation (31-CA-072916; 362 NLRB No. 165) Calabasas, CA, August 14, 2015.

Applying D.R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 727 F.3d 344 (5th Cir. 2013) and U-Haul Co. of California, 347 NLRB 375 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007), a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondents violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that employees would reasonably construe to prohibit the filing of unfair labor practice charges with the Board.  The panel majority rejected the Respondents’ argument that a savings clause in the agreement stating “nothing in this Agreement shall be construed to require arbitration of any claim if an agreement to arbitrate such a claim is prohibited by law” is a valid defense to the alleged violation.  Member Johnson dissented and would have dismissed the Section 8(a)(1) allegation based on the savings clause.  In his view, employees would not reasonably conclude, after reading the clause, that the arbitration agreement restricted their access to the Board’s processes. 

Applying Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), the panel majority further found that although the agreement is not unlawful on its face by compelling employees to waive their Section 7 right to collectively pursue litigation of employment claims in all forums, the Respondents enforced the agreement in violation of 8(a)(1) by filing a motion in federal district court to compel individual arbitration in response to a collective lawsuit filed by former employees alleging wage and hour violations under the Fair Labor Standards Act and California Labor Code.  The panel majority found that the court motion had an “illegal objective” within the meaning of footnote 5 of the Supreme Court’s decision in Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983), and thus was not protected by the First Amendment.  Member Johnson, in dissent, stated that he would dismiss the 8(a)(1) enforcement violation for the reasons set forth in his dissent in Murphy Oil, and also because the agreement is not, as in Murphy Oil, unlawful on its face with respect to waiver of class or collective litigation of employment claims.  In Member Johnson’s view, because the Board has not previously ruled on whether enforcement of a facially lawful arbitration agreement is unlawful, the illegal objective exception of Bill Johnson’s does not apply and the enforcement violation cannot be found. 

Charges filed by individuals.  Administrative Law Judge William G. Kocol issued his decision on February 13, 2013.  Chairman Pearce and Members Hirozawa and Johnson participated.

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McDonald’s USA, LLC, a joint employer, et al. (02-CA-093893, et al.; 362 NLRB No. 168) New York, NY, August 14, 2015. 

A majority of the full Board, consisting of Chairman Pearce and Members Hirozawa and McFerran, denied Respondent McDonald’s USA’s request and supplemental request for special permission to appeal the January 22, 2015 Order of Administrative Law Judge Lauren Esposito denying its Motion for a Bill of Particulars or, in the Alternative, Motion to Strike Joint Employer Allegations and Dismiss the Complaint.  The Board found that the Respondent has failed to establish that the judge abused her discretion in denying the Respondent’s motion.  Rather, the Board found that the allegations in the complaint are sufficient to put McDonald’s on notice that the General Counsel is alleging joint employer status based on McDonald’s control over the labor relations policies of its franchisees.  Further, in light of its disposition of the issues concerning the Motion for a Bill of Particulars, the Board denied the Respondent’s alternative Motion to Strike Joint Employer Allegations and Dismiss the Complaint. 

Members Miscimarra and Johnson concurred to the extent that the Board denied the motion for a bill of particulars in relation to the current joint employer standard and facts the General Counsel intends to prove to show that McDonald’s is a joint employer under that standard.  Members Miscimarra and Johnson dissented from the remainder of the decision, stating that they would order the General Counsel to provide the Respondent with a bill of particulars setting forth in reasonable detail all elements of the proposed alternative joint employer standard and a general description of the facts that form the basis for the joint employer allegations under that proposed standard.  The dissent found that the complaint language provides no notice regarding the new joint employer standard upon which the General Counsel intends to rely in the alternative, nor what facts the General Counsel believes will prove joint employer status under the alternative standard.

In sum, particularly since the General Counsel’s new standard may be the sole basis upon which the Board finds a violation against McDonald’s, the dissent stated that if the motion is not granted, the Respondent will have a plausible and potentially compelling argument that its due process rights have been violated—and the Board may find that it has expended substantial resources building and litigating a case on an unstable foundation.  Specifically, they stated that, even under a notice pleading standard, due process requires that parties have reasonable notice of the particular grounds upon which an alleged violation may be based.  By failing to identify any of the salient differences between the phrase “joint employer” (as used under current law) and the General Counsel’s revised “joint employer" theory (about which the complaint is silent), the dissent found that the complaint is “so vague that the party charged is unable to meet the General Counsel’s case,” quoting North American Rockwell, 389 F.2d 866, 871 (10th Cir. 1968).  The dissenters stated that, because this due process problem can be easily resolved by granting the Respondent’s motion for a bill of particulars, the General Counsel and the Board should err on the side of providing relevant notice, and this is especially true when the Board may impose liability based on a new legal theory and facts that, absent the changes urged by the General Counsel, might not be the basis for finding a violation.

Charges filed by Fast Food Workers Committee and Service Employees International Union, CTW, CLC, et al.  Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

THC Orange County, Inc. d/b/a Kindred Hospital-Ontario (31-RC-136697 and 31-RC-136701) Ontario, CA, August 10, 2015.  The Board adopted the Hearing Officer’s findings and recommendations overruling the Employer’s objections to the elections in two separate bargaining units of employees.  The Employer withdrew its exceptions to the Hearing Officer’s Report on Objections.  Accordingly, in the absence of exceptions, the Board certified the Petitioner, SEIU Local 121RN as the exclusive collective-bargaining representative of the employees in the appropriate unit in Case 31-RC-136697, and Petitioner, SEIU UHW-W as the exclusive collective-bargaining representative of the employees in the appropriate unit in Case 31-RC-136701.

The Cement League of New York (02-RC-154016) New York, NY, August 11, 2015.  Order denying the Employer’s Request to Impound the Ballots.  Petitioner—New York and Vicinity District Council of Carpenters.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

American Indian Community Housing Organization (18-RD-154756) Duluth, MN, August 11, 2015.  Order denying the Union’s Request to the Stay the Election or Impound the Ballots.  Petitioners—two individuals.  Union involved—American Federation of State, County and Municipal Employees, Local 3558 (a/k/a AFSCME Local 3558). Chairman Pearce and Members Miscimarra and Hirozawa participated.

Allied Barton (04-RC-131132) Philadelphia, PA, August 14, 2015.  Order affirming the Regional Director’s administrative dismissal of the petition.  The Regional Director found that the collective-bargaining agreement between the Employer and the Service Employees International Union (SEIU), Local 32BJ, a mixed guard and non-guard union voluntarily recognized by the Employer, served as a contract bar to the petition, citing Stay Security, 311 NLRB 252 (1993).  Petitioner- National League of Justice and Security Professionals.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Allied Barton (04-RC-137867) Philadelphia, PA, August 14, 2015.  Order affirming the Regional Director’s administrative dismissal of the petition.  The Regional Director found that the collective-bargaining agreement between the Employer and the Service Employees International Union (SEIU), Local 32BJ, a mixed guard and non-guard union voluntarily recognized by the Employer, served as a contract bar to the petition, citing Stay Security, 311 NLRB 252 (1993).  Petitioner- National League of Justice and Security Professionals.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Allied Barton (04-RC-140603) Philadelphia, PA, August 14, 2015.  Order affirming the Regional Director’s administrative dismissal of the petition.  The Regional Director found that the collective-bargaining agreement between the Employer and the Service Employees International Union (SEIU), Local 32BJ, a mixed guard and non-guard union voluntarily recognized by the Employer, served as a contract bar to the petition, citing Stay Security, 311 NLRB 252 (1993).  Petitioner—National League of Justice and Security Professionals.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

Marinette Marine Corp. (18-CA-134306, et al.) Marinette, WI, August 10, 2015.  Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the employer must take to comply with the National Labor Relations Act.  Charges filed by International Brotherhood of Boilermakers, Blacksmiths, Forgers and Helpers, Local Lodge 696.  Chairman Pearce and Members Hirozawa and McFerran participated.

United States Postal Service (28-CA-143749 and 28-CA-147765) Santa Fe, NM, August 11, 2015.  Order denying the Respondent’s motion for summary judgment.  Charges filed by National Association of Letter Carriers, Branch 989, affiliated with National Association of Letter Carriers, AFL-CIO, and National Association of Letter Carriers, Sunshine Branch 504, affiliated with National Association of Letter Carriers, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

United States Postal Service (28-CA-125837, et al.) Albuquerque, NM, August 11, 2015.  No exceptions having been filed to the June 26, 2015 decision of Administrative Law Judge Charles J. Muhl 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 judge’s recommended order.  Charges filed by National Association of Letter Carriers Branch 1069, affiliated with National Association of Letter Carriers, AFL-CIO; National Association of Letter Carriers Sunshine Branch 504, affiliated with National Association of Letter Carriers, AFL-CIO; and National Association of Letter Carriers Branch 2990, affiliated with National Association of Letter Carriers, AFL-CIO.

Century Management, LLC, a McDonald’s Franchisee, and McDonald’s USA, LLC. (15-CA-146662) Memphis, TN, August 13, 2015.  Order denying Century Management, LLC’s (the Employer) petition to revoke a 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.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  The Board specifically rejected the Employer’s contention that information about union activity and newly implemented or differently enforced rules is irrelevant.  The Board noted that the charge alleges that the Employer unlawfully told an employee of possible action against her “due to her participation in union activities.”  Further, the Board observed that changes in rules or their enforcement, if any, may bear on the existence of antiunion animus and the likelihood that a manager told the employee “they’re trying to get rid of you but they can’t find a way,” as alleged.

The Board further stated that to the extent that the Employer provided some of the requested material, it is not required to produce that information again, provided that it accurately describes which documents under subpoena it has already provided, states whether those previously-supplied documents constitute all of the documents, and provides all of the information that was subpoenaed; and that to the extent that the Employer believes in good faith that some subpoenaed documents are subject to the attorney-client privilege or the attorney work product doctrine, the Board’s order is without prejudice to the Employer’s prompt submission of a more complete privilege log to the Region identifying and describing each such document, and providing sufficient detail to permit an assessment of the Employer’s claim of privilege or protection.  Charge filed by Memphis Workers Organizing Committee.  Chairman Pearce and Members Hirozawa and McFerran participated.

Quicken Loans Inc. (28-CA-146517) Scottsdale, AZ, August 14, 2015.  The Board denied the Respondent’s Emergency Request to Appeal the Associate Chief Administrative Law Judge’s order denying the Respondent’s motion to postpone the hearing.  The Board found that the Respondent failed to establish that the judge abused his discretion in denying the Respondent’s motion.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

SW General, Inc., d/b/a Southwest Ambulance, Board Case No. 28-CA-094176 (reported at 360 NLRB No. 109) (D.C. Cir. decided August 7, 2015)

In a published opinion, the court held that at the time the unfair labor-practice-complaint in this case was issued, Acting General Counsel Lafe Solomon was not properly serving in that position.  Accordingly, the court vacated the Board’s decision without reaching the merits of the Board’s finding that the employer violated Section 8(a)(5) and (1) of the NLRA by making unilateral changes after the expiration of its collective-bargaining agreement with the International Association of Firefighters, Local I-60.

On June 18, 2010, the President designated Mr. Solomon as the Acting General Counsel under the Federal Vacancies Reform Act, 5 U.S.C. § § 3345 et seq. (“FVRA”).  On January 5, 2011,  the President nominated him to be the General Counsel.  Mr. Solomon continued serving as Acting General Counsel through November 4, 2013, when the Senate confirmed Richard F. Griffin, Jr. as the General Counsel. 

Before the Board and in its opening brief, the employer argued that the President’s designation of Mr. Solomon as Acting General Counsel was invalid because he did not serve as the “first assistant” to the departing General Counsel, citing Hooks v. Kitsap Tenant Support Services, 2013 WL 4094344 (W.D. Wash. 2013), appeal pending decision, 9th Cir. No. 13-35912.  The Company refined that argument in its reply brief before the court by arguing that Mr. Solomon’s appointment became invalid when the President nominated him.  After full briefing, the court ordered supplemental briefing on whether, "assuming arguendo that Acting General Counsel Lafe Solomon was not appointed in accordance with the Federal Vacancies Reform Act, 5 U.S.C. § § 3345 et seq., the error was nonetheless harmless." 

In its decision, the court held that FVRA did not permit Mr. Solomon—a career NLRB employee serving in an SES position—to continue serving once the President nominated him to be General Counsel.  The court’s decision turned on its construction of two provisions of the FVRA.  First, FVRA Section 3345(a) provides three ways that acting officers may temporarily serve in vacant offices that require Senate confirmation:  subsection (a)(1) provides that a "first assistant" to the office may automatically assume the duties of the office; subsection (a)(2) provides that the President may designate an existing confirmed federal official to serve as the acting officer; or subsection (a)(3) authorizes the President to designate as the acting officer a “senior agency employee” who "served in a position" at the agency for at least 90 days in the prior year. 

Second, FVRA Section 3345 (b)(1) provides: 

Notwithstanding subsection [3345](a)(1) [which authorizes first assistants to fill the vacant office on an acting basis], a person may not serve as an acting officer under this section, if—(A) during the 365-day period preceding [the vacancy] such person—(i) did not serve in the position of first assistant to the office of the officer; or (ii) served in the position of first assistant to the office of the officer for less than 90 days; and (B) the President submits a nomination of such a person to the Senate for appointment to the office.  [5 U.S.C. § 3345(b)(1).] 

Proceeding under de novo review, the court noted that the “pivotal question is whether the prohibition in subsection [3345](b)(1) applies to all acting officers, as Southwest contends, or just first assistants who become acting officers by virtue of subsection (a)(1), as the Board contends.”  In holding the former, the court pointed to portions of subsection (b)(1)’s language that could be read to apply to all three classes of acting officers specified in subsection (a).  The court reasoned that “[i]f the Congress had wanted to enact the Board’s understanding, it would have said ‘first assistant’ and ‘that subsection’ instead of ‘a person’ and ‘this section.’”  Thus, the court concluded that “the plain language of subsection (b)(1) manifests that no person can serve as both the acting officer and the permanent nominee (unless one of the exceptions in subsections (b)(1)(A) or (b)(2) applies).”

The court rejected the Board’s contention that the opening clause of subsection (b)(1), “Notwithstanding subsection (a)(1),” limited application of the forthcoming restriction on nominees to “first assistants.”  The court, citing a dictionary definition of “notwithstanding” as meaning “in spite of,” ruled that the “clause means ‘to the extent that subsection (a)(1) deviates from subsection (b)(1), subsection (b)(1) controls.’”  The court then posited that the “likely” intent of Congress in referencing subsection (a)(1) was to clarify that “its command—that the first assistant ‘shall’ take over as acting officer—does not supersede the prohibition in subsection (b)(1).”  The court also stated that the Board’s reading of the “notwithstanding” clause runs counter to context, because it could not be reconciled with “the breadth of the words ‘a person’ and ‘this section’ in the remainder of the introductory clause.”  Further, the court noted, the phrase “a person” was also used in Section 3345(a)(2) and clearly did not pertain to first assistants.  Finally, in the court’s view, the Board’s reading of subsection (b)(1) to apply only to first assistants would render subsection (b)(1)(A)(i) superfluous.  That provision—that the person “did not serve in the position of first assistant to the office” in the prior 365 days—the court found would be rendered “inoperative because the current first assistant necessarily served as the first assistant in the previous year.”

The court also rejected the Board’s arguments that the legislative history and statutory purpose supported its reading of the language, concluding that neither was strong enough to overcome the plain language of the text.  The court found that the express statement of Senator Thompson, the chief sponsor of FVRA, that subsection (b)(1) was intended to apply only to first assistants, was cancelled out by a subsequent remark by Senator Byrd, which “hewed more closely to the statutory text” and suggested that the subsection applied to all categories of acting officers.  The court also dismissed a committee report relied on by the Board as inapposite because it discussed a different version of the FVRA from the one ultimately enacted.  Regarding a key statutory purpose of Section 3345 cited by the Board—namely, Congress’s intent to expand the pool of potential acting officers whom the President could opt to designate—the court found that purpose unharmed by its interpretation, “which merely decreases the pool of people eligible to be both the acting officer and the permanent nominee.”  (Emphasis in original.) 

Having concluded that the FVRA prohibited Mr. Solomon from serving as Acting General Counsel from the date of his nomination, the court considered the consequences of that violation.  The court rejected the Board’s argument that the employer was not prejudiced because the Board’s final order rendered harmless any defect in the unfair-labor-practice complaint.  In the court’s view there was no certainty that a properly appointed Acting General Counsel would have issued the complaint.

The court further concluded that the de facto officer doctrine “does not bar Southwest from challenging [Mr.] Solomon’s authority,” because Southwest met the two requirements necessary under Andrade v. Lauer, 729 F.2d 1475, 1496 (D.C. Cir. 1984)—(1) it challenged the action “at or around the time” it was taken, and (2) it had shown that the agency involved “had reasonable notice.”  The court held both requirements were met by the employer having raised the challenge to Mr. Solomon’s authority to the Board in exceptions to the administrative law judge’s decision.

Finally, the court emphasized that it “d[id] not expect it[s decision] to retroactively undermine a host of NLRB decisions.”  Rather, the court explained that it “address[ed] the FVRA objection in this case because the petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding.”  Citing the jurisdictional bar of Section 10(e), that court stated it “doubt[ed] that an employer that failed to timely raise an FVRA objection—regardless whether enforcement proceedings are ongoing or concluded—will enjoy the same success.”

The court’s opinion is here.

Nichols Aluminum, Inc., Board Case No. 25-CA-082690 (reported at 361 NLRB No. 22) (8th Cir. decided August 13, 2015)

In a published opinion, the court granted the petition for review and vacated the Board’s decision in which the Board had found that this operator of two aluminum-processing plants in Davenport, Iowa violated Section 8(a)(3) and (1) of the Act by discharging a 34-year veteran employee two weeks after he returned from participating in a strike called by Teamsters Local 371.

In January 2012, two months after the contract covering 235 unit employees expired and no new agreement was reached, the union called a strike.  The employer continued operations with 100 permanent replacement employees and 21 employees who crossed the picket lines.  In early April, the union unconditionally offered to return to work.  For the 120 strikers who returned, the employer conducted orientation sessions in which it required them to take a “no-strike pledge,” and stated that “[h]arassing, disruptive threatening, and/or violent situations or behavior by anyone, regardless of status, will not be tolerated and [will be] subject to discharge for the first offense.”  Two weeks later, an employee who had crossed the picket line loudly blared his forklift horn at one of the former strikers, who responded with what the other employee assertedly construed as a “cut throat” gesture by running his hand across his neck.  After a meeting with managers in which the former striker denied that his gesture was a threat, the employer discharged him.

The administrative law judge found that the employer did not unlawfully discharge the former striker, noting that the employee was one of a hundred or more strike participants and had no unique role in the strike.  Finding an absence of evidence of animus, as well as the “mixed bag” of company responses to other employee-on-employee confrontations that could not establish disparate treatment, the judge dismissed the allegation.

The Board (Chairman Pearce and Member Hirozawa; Member Johnson dissenting) found, contrary to the judge, that the employer had unlawfully discharged the former striker.  The Board found that animus was shown by the timing of the discharge, the employer’s imposition of the no-strike pledge, and its tolerance of more explicit threats by striker replacements.  Thus, the Board concluded that the General Counsel had carried its burden under Wright Line, and that the employer failed to prove that it would have discharged him even absent his union activity.

The court majority, in an opinion authored by Judge Riley, agreed with the employer.  As a starting point, the court noted that it will “examine the Board’s findings more critically when, as here, the Board’s conclusions are contrary to the [judge]’s.”  On the issue of animus, the court explained that under its circuit precedent: “Simple animus toward the union is not enough.  While hostility to [a] union is a proper and highly significant factor for the Board to consider when assessing whether the employer’s motive was discriminatory, . . . general hostility toward the union does not itself supply the element of unlawful motive.”  The court then concluded that, in reversing the judge’s decision and finding that the employer violated the Act, the Board “misapplied the Wright Line standard and failed to analyze causation properly.”  In a concurring opinion, Judge Melloy stated that Eighth Circuit “precedent unequivocally requires more than general hostility toward a union to satisfy the element of unlawful motive,” that a “nexus between the union activity and the discharge” must be shown.  Despite “being on notice” of that circuit law, the concurring judge stated, the Board failed to engage in any meaningful discussion of the requirement.  Although Judge Melloy believed the record indicated that there might have been more than general animus, in his view circuit precedent precluded the court from remanding the case, which he otherwise would have been inclined to do.  That opinion was followed by a dissent by Judge Murphy, which would have found substantial evidence of animus in the record and would have held that the General Counsel met its Wright Line burden.

The court’s opinion is here.

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Administrative Law Judge Decisions

T-Mobile USA, Inc. (01-CA-142030; 10-CA-133833; JD(NY)-34-15) Augusta, ME, August 10, 2015.  Erratum to the August 3, 2015 decision of Administrative Law Judge Joel P. Biblowitz.  Erratum  Amended decision

The Detroit News and Detroit Newspaper Partnership, L.P., Joint Employer (07-CA-132726; JD-44-15) Detroit, MI.  Administrative Law Judge Susan A. Flynn issued her decision on August 12, 2015.  Charges filed by Newspaper Guild of Detroit, Local 34022 of the Newspaper Guild/CWA, AFL-CIO.

Kitsap Tenant Support Services, Inc. (19-CA-108144, et al.; JD(SF)-29-15) Bremerton, WA, August 14, 2015.  Erratum to the July 28, 2015 decision of Administrative Law Judge Ariel L. Sotolongo.  Erratum  Amended decision

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