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Summary of NLRB Decisions for Week of December 12 - 16, 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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

Aerotek, Inc.  (17-CA-071193 et al.; 365 NLRB No. 2)  Omaha, NE, December 15, 2016.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) by refusing to hire four applicant electricians who were Union members, and Section 8(a)(1) by prohibiting employees from discussing each other’s wages.  A majority (Chairman Pearce and Member McFerran; Member Miscimarra dissenting) found, contrary to the judge, that one of the discriminatees was not shown to be disqualified from remedial instatement and full backpay by his having solicited a Respondent client to employ electricians referred by the Union.  The majority distinguished this case from others bearing on whether applicants have a duty of loyalty, based on the remedial setting, the fact that the discriminatee was unlawfully denied employment and could infer so before he engaged in his adverse activity, and the absence of evidence that the discriminatee, if instated to employment, would not serve the Respondent as a loyal employee.  The same majority also found that, to ensure that job applicants receive notice of their protection from discrimination, the Respondent should be required: (1) in addition to the standard notice posting, to mail (and email) the notice to all individuals who applied for electricians’ jobs in the Respondent’s locality during the relevant period, to the four discriminatees, and to the Respondent’s current electricians (who did not work at the Respondent’s own facility), and (2) to post a no-discrimination disclaimer on its job applications and at all sites (including electronic) where it advertises and accepts applications for electrician jobs in its locality.  Member Miscimarra would have found that the one discriminatee’s solicitation of a Respondent client disqualified him from remedial instatement, and that the majority’s additional notice requirements were unwarranted.

Charges filed by International Brotherhood of Electrical Workers, Local 22, a/w the International Brotherhood of Electrical Workers, AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on March 11, 2013.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Equinox Holdings, Inc.  (20-CA-167342; 365 NLRB No. 3)  San Francisco, CA, December 16, 2016.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  Member Miscimarra noted that he would have granted review in the underlying representation case as to a portion of the Respondent’s Objection 2.  However, he agreed that the Respondent did not present any new matters that are properly litigable in this unfair labor practice proceeding, and thus that summary judgment was appropriate.

Charge filed by Service Employees International Union, Local 87.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Advantage Veterans Services of Walterboro, LLC  (10-RC-172178)  Walterboro, SC, December 13, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review.  Petitioner – United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7898.  Chairman Pearce and Members Miscimarra and McFerran participated.

C Cases

Connecticut Light and Power Company d/b/a Eversource Energy  (01-CA-169804)  Hartford, CT, December 13, 2016.  No exceptions having been filed to the October 25, 2016 decision of Administrative Law Judge Raymond P. Green’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 Electrical Workers, Local 420.

M.D.V.L., Inc. d/b/a Denny’s Transmission Service  (28-CA-140217 and 28-CA-140237)  Phoenix, AZ, December 15, 2016.  No exceptions having been filed to the October 19, 2016 supplemental decision of Administrative Law Judge Joel P. Biblowitz in which the judge determined the amount of backpay due to the discriminatees, the Board adopted the judge’s findings and ordered the Respondent to pay the amounts set forth in the recommended Order.  Charges filed by individuals.

TPI Iowa, LLC  (18-CA-164749 and 18-CA-168532)  Newton, LA, December 16, 2016.  No exceptions having been filed to the September 22, 2016 decision of Administrative Law Judge Sharon Levinson Steckler’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 as modified pursuant to the parties’ settlement agreement dated December 15, 2016.  Charges filed by an individual.

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Appellate Court Decisions

Jack in the Box, Inc., Board Case No. 32-CA-145068 (reported at 364 NLRB No. 12) (5th Cir. decided December 13, 2016)

The court in an unpublished opinion relying on its decisions in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA v. NLRB, 808 F.3d 1013 (5th Cir. 2015), summarily declined to enforce any portion of the Board’s order.  The Board had found that the Employer had violated Section 8(a)(1) of the Act by maintaining a mandatory arbitration agreement that the Board found:  waived employees’ right to maintain class or collective actions in any forum, arbitral or judicial; would reasonably be understood by employees to restrict their right to file unfair-labor-practice charges; and contained an overly broad confidentiality provision.

The court’s unpublished opinion is here.  The Board’s brief to the court is here.

JAG Healthcare, Inc. d/b/a Galion Pointe, LLC, Board Case No. 08-CA-039029 (reported at 361 NLRB No. 135) (6th Cir. decided December 13, 2016)

In an unpublished opinion, the court enforced the Board’s order issued against this management company that operates skilled nursing homes.  In 2010, the Employer took over management of a facility in Galion, Ohio, where a unit of 37 nurses’ aides, housekeepers, dietary aides and cooks, laundry employees, activity aides, environmental aides, and helpers, was covered by a collective-bargaining agreement and represented by Service Employees International Union, District 1199, WV/KY/OH.  As the court described it on review, the case arose after “what amounted to an overnight coup,” in which the Employer fired all employees, “rehired only some of them, and refused––at least initially––to recognize the existing union.”

The Board (Chairman Pearce and Members Hirozawa and Schiffer) found that the Employer violated Section 8(a)(1) of the Act by telling employees that there would be no union at the facility, by orally issuing and maintaining an unlawful no-solicitation/no-distribution policy, and by disciplining an employee for talking about the Union.  The Board also found violations of Section 8(a)(3) and (1) for refusing to hire 21 former employees, and by discharging three others for their union support, as well as violations of Section 8(a)(5) and (1) for refusing to recognize and bargain with the Union, and by unilaterally changing terms and conditions of employment.  In doing so, the Board determined that the Employer was a Burns successor obligated to recognize and bargain with the Union, but had forfeited its right to set initial terms and conditions by telling employees that there would be no union and by its discriminatory hiring practices.  On review, the court held that substantial evidence supported the Board’s findings, and rejected the Employer’s challenges as based largely on discredited testimony and as not supported by the cases cited in its defense.

The court’s opinion is here.  The Board’s brief to the court is here.

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Administrative Law Judge Decisions

Quality Dining, Inc. and Grayling Corporation (collectively “Quality Dining”)  (04-CA-175450; JD(NY)-49-16)  Philadelphia, PA.  Administrative Law Judge Raymond P. Green issued his decision on December 15, 2016.  Charge filed by an individual.

Rainbow Medical Transportation, LLC  (28-CA-166617; JD(SF)-49-16)  Holbrook, AZ.  Administrative Law Judge Gerald M. Etchingham issued his decision on December 15, 2016.  Charge filed by an individual.

Muy Pizza Southeast, LLC  (15-CA-174267; JD(NY)-50-16)  New Orleans, LA.  Administrative Law Judge Raymond P. Green issued his decision on December 15, 2016.  Charge filed by an individual.

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