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Summary of NLRB Decisions for Week of December 15 - 19, 2014

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

Pessoa Construction Company  (05-CA-034547, et al.; 361 NLRB No. 138)  Fairmont Heights, MD, December 15, 2014.

The Board issued a Supplemental Decision and Order in this compliance proceeding, affirming the Administrative Law Judge’s supplemental decision and directing the Respondent Employer to make whole a discriminatee by paying him $95,046.07 plus interest, minus tax withholdings required by Federal and State laws.

Administrative Law Judge Geoffrey Carter issued his Supplemental Decision on December 24, 2013.  Charges filed by Laborers’ International Union of North America.  Members Miscimarra, Hirozawa, and Schiffer participated.

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Latino Express, Inc.  (13-CA-046528, et al.; 361 NLRB No. 137)  Chicago, IL, December 15, 2014.

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order. The Board agreed with the rationale previously set forth in the Board’s vacated Decision and Order and Notice and Invitation to File Briefs reported at 358 NLRB No. 94 (2012), and affirmed the judge’s rulings, findings, and conclusions and adopted the judge’s recommended Order to the extent and for the reasons stated.  The Board agreed with the judge that the Respondent violated Section 8(a)(1) and (5) by: discriminating against and discharging employees for engaging in protected union or concerted activities; coercively interrogating employees; prohibiting employees from discussing their terms and conditions of employment; creating the impression of surveillance of employees’ protected concerted activities; soliciting grievances, promising benefits, and granting wage increases to employees to discourage them from selecting union representation; and threatening employees with discharge and closure of the facility if they selected the union as a bargaining representative.  Finding that the Respondent’s violations of the Act were sufficiently serious and widespread, the Board ordered that the Notice to Employees be read aloud in public by the Respondent’s co-owner, who was personally involved in many violations of the Act.  The Board also ordered backpay for two employees who were discriminatorily discharged.

Administrative Law Judge Michael A. Rosas issued his decision on July 11, 2011.  Charges filed by International Brotherhood of Teamsters, Local 777.  Members Hirozawa, Johnson, and Schiffer participated.

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Sequel of New Mexico LLC, d/b/a Bernalillo Academy  (28-RD-093404; 361 NLRB No. 127) Albuquerque, NM, December 15, 2014.

The Board issued a Decision and Certification of Results of Election in this representation proceeding, reversing the hearing officer’s recommendation. The hearing officer recommended sustaining the Union’s objection that the Employer held an improper holiday party for employees on the first day of the election. The Board found that the Union did not show that the holiday party was a “special circumstance” that warranted setting aside the election under the analytical framework set forth in B & D Plastics, 302 NLRB 245, 245 (1991).

Petitioner—an individual.  Union involved—District 1199NM, National Union of Hospital and Healthcare Employees AFSCME, AFL-CIO. Chairman Pearce and Members Miscimarra and Johnson participated.

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JAG Healthcare, Inc. d/b/a Galion Pointe, LLC  (08-CA-039029, et al.; 361 NLRB No. 135) Galion, OH, December 15, 2014.

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order. For the reasons stated in the Board’s vacated Decision and Order reported at 359 NLRB No. 88 (2013), Chairman Pearce and Members Hirozawa and Schiffer affirmed the judge’s findings that the Respondent violated: Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the union and by unilaterally changing bargaining unit employees’ terms and conditions of employment without first giving the Union notice and an opportunity to bargain; Section 8(a)(3) and (1) by refusing to hire 21 of its predecessor’s employees because they were represented by the Union and to avoid an obligation to recognize and bargain with the Union; Section 8(a)(1) by telling employees that there would be no union serving as their collective-bargaining representative once the Respondent took control of operations, by issuing and maintaining an unlawful no-solicitation/no-distribution policy, and by prohibiting employees from discussing unions; and Section 8(a)(3) and (1) by discharging three employees for discriminatory reasons.

Administrative Law Judge Geoffrey Carter issued his decision on July 27, 2012.  Charges filed by Service Employees International Union, District 1199, WV/KY/OH.  Chairman Pearce and Members Hirozawa and Schiffer participated.

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Pressroom Cleaners  (34-CA-071823; 361 NLRB No. 133)  Hartford, CT, December 15, 2014. 

The Board denied the Respondent’s motion for reconsideration of its decision in Pressroom Cleaners, 361 NLRB No. 57 (2014), in which the Board adopted the Administrative Law Judge’s conclusions that Pressroom Cleaners was the statutory successor to Capitol Cleaning, that it violated 8(a)(3) and (1) by discriminatorily refusing to hire six Capitol Cleaning employees because of their union affiliation, and that it violated Section 8(a)(5) and (1) by unilaterally imposing new terms and conditions of employment on the employees it hired.  The Board majority (Chairman Pearce and Members Hirozawa and Schiffer) also overruled Planned Building Services, 347 NLRB 670 (2006), to the extent it permits an employer to show in compliance that, if it had bargained in good faith, it would not have agreed to the monetary provisions of the predecessor’s collective-bargaining agreement. The Board returned to the approach set forth in State Distributing, 282 NLRB 1048 (1987), under which the predecessor’s terms and conditions of employment continue until the parties bargain to agreement or impasse. Members Miscimarra and Johnson, dissenting in part, joined in finding the violations, but would have adhered to Planned Building Services.

The Respondent’s motion for reconsideration challenged only the portion of the Board’s decision overruling Planned Building Services.  Because the arguments set forth in the motion for reconsideration were already considered and rejected by the Board, the Board found no extraordinary circumstances warranting reconsideration, and denied the motion.  Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and Schiffer participated.

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Babcock & Wilcox Construction Co., Inc.  (28-CA-022625; 361 NLRB No. 132)  Joseph City, AZ, December 15, 2014.

In this case, involving the allegedly unlawful discharge of a union steward, the Board adopted a new standard for determining whether to defer to arbitral decisions in cases alleging violations of Section 8(a)(3) and (1) of the Act.

In Spielberg Mfg. Co., 112 NLRB 1080 (1955), the Board held that it would defer to an arbitrator’s decision when the arbitral proceedings appeared to be fair and regular, all parties agreed to be bound, and the arbitrator’s decision was “not clearly repugnant to the purposes and policies of the Act.”  In Olin Corp., 268 NLRB 573 (1984), the Board refined its test, holding that it would find that the arbitrator adequately considered the unfair labor practice issue if the contractual and statutory issues were factually parallel and the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice.  The Board also placed the burden on the party resisting deferral to show that the standards for deferral were not met.

In Babcock & Wilcox, the Board majority (Chairman Pearce and Members Hirozawa and Schiffer) found that the existing standard did not adequately balance the protection of employee rights under the Act and the national policy of encouraging arbitration of disputes over the application or interpretation of collective-bargaining agreements.  The majority reasoned that the existing standard created excessive risk that the Board would defer when the arbitrator had not adequately considered the unfair labor practice issue, or when it was impossible to tell whether he or she had done so.

Based on these concerns, the majority adopted a new post-arbitral deferral standard.  The new standard retains the Spielberg requirements that the arbitral proceedings appear to be fair and regular and that all parties have agreed to be bound.  In addition, the new standard places the burden on the party urging deferral to show that 1) the arbitrator was explicitly authorized to decide the unfair labor practice issue (either by the collective-bargaining agreement or by the parties themselves); 2) the arbitrator was presented with and considered the statutory issue (or was prevented from doing so by the party opposing deferral); and 3) Board law reasonably supports the arbitral award.

In separate dissents, Members Miscimarra and Johnson questioned the need and the legal rationale for changing the Board’s long-standing reliance on the Spielberg/Olin standard.  The dissenters emphasized, among other things, the history of Congressional and legislative support for the private resolution of disputes through arbitration, and the absence of any perceived or manifest shortcomings in the current standard.

Charge filed by an individual.  Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and Schiffer participated.

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Champaign Builders Supply Company  (25-CA-114095; 361 NLRB No. 153)  Champaign, IL, December 16, 2014. 

The Board affirmed the Administrative Law Judge’s rulings, findings, and conclusions. The Board modified the judge’s recommended Order to conform to the Board’s standard remedial language and substituted a new notice to conform to the violations found and to the Order as modified. The Board adopted the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing to afford the Union timely notice and an opportunity to bargain over the effects of the Respondent’s decision to close its business. The Board clarified that while certain language used by the judge could suggest that the Respondent had an obligation to bargain over its decision to close, the judge’s decision, when read in its entirety, is clear that she found that the Respondent had an obligation to bargain over the effects of its decision to close and that the Respondent failed to satisfy this obligation. The Board affirmed the judge’s decision in both respects and agreed that the Respondent’s effects bargaining obligation is to bargain to impasse or agreement. Member Miscimarra concurred in affirming the judge’s decision subject to the qualification described above but wrote separately to correct or clarify the judge’s decision in several additional respects. Administrative Law Judge Melissa M. Olivero issued her decision on August 7, 2014. The charge was filed by Teamsters Local Union No. 26.  Members Miscimarra, Hirozawa, and Schiffer participated.

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Rose Fence, Inc.  (29-CA-030485 and 29-CA-030537; 361 NLRB No. 134)  Baldwin, NY, December 16, 2014.

On October 22, 2012, the Board issued a Decision and Order in this proceeding, which was reported at 359 NLRB No. 6 (2012).  At that time, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  The Decision and Order was subsequently vacated, and in view of the decision of the Supreme Court in NLRB v. Noel Canning, a three-member panel of the Board considered de novo the judge’s decision and the record in light of the exceptions and briefs, along with the now-vacated Decision and Order.  The Board agreed with the rationale previously set forth, and affirmed the Administrative Law Judge’s rulings, findings, and conclusions and adopted the judge’s recommend Order to the extent and for the reasons stated.  It agreed with the judge that the Respondent violated Section 8(a)(5) by unilaterally laying off employees without bargaining with the Union.  Although the general decision to lay off employees may have been made before the employees selected the union as their representative, the Board found that the Respondent was still obligated to bargain over the individual layoff decisions, which were effects of the earlier general decision.  Member Johnson agreed that the evidence did not show that the Respondent had made a hard pre-bargaining obligation decision to lay off some ascertainable number or percentage of employees by some fixed formula every slow season, but he did not preclude the possibility than an employer might prevail on such an argument given the proper evidentiary support.  The Board also found that the Acting General Counsel failed to establish that the Respondent unilaterally subcontracted unit work after its bargaining obligation arose.

Charges filed by Local 533, International Brotherhood of Teamsters.  Administrative Law Judge Mindy E. Landow issued her decision on January 27, 2012.  Members Hirozawa, Johnson, and Schiffer participated.

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Lifesource  (13-CA-091617 and 13-RC-074795; 361 NLRB No. 136)  Rosemont, IL, December 16, 2014. 

The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding.  Previously, on December 21, 2012, the Board issued an Decision and Order granting the General Counsel’s motion for summary judgment in the unfair labor practice matter, on the ground that the Respondent had not raised any issues regarding its refusal to bargain with the Union that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative (Case 13–RC–074795).  At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  The Respondent filed a petition for review in the United States Court of Appeals for the Seventh Circuit and the General Counsel filed a cross-application for enforcement.  On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid.  Thereafter, the court of appeals vacated the Board’s Decision and Order and remanded this case for further proceedings consistent with the Supreme Court’s decision.  

In the instant proceeding, the Board noted that the underlying representation case also occurred at a time when the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  The Board stated that therefore, the representation decision would not be given preclusive effect, and the Board would consider the representation issues that the Respondent raised in this proceeding.  The Board observed that in its response to the Notice to Show Cause, the Respondent reiterated its objections to the election alleging that the Board agent conducting the election “failed to maintain the integrity of the voting area” by permitting the election observers to leave the voting area without securing the ballot box; leaving the voting place without securing the ballots; and permitting voters to view the Excelsior list.  The Board then stated that it had considered de novo the Respondent’s objections to the election held on March 30, 2012, and the Regional Director’s report recommending disposition of them; adopted his conclusions and recommendations; and found that a certification of representative should issue.

Finally, the Board noted that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals.  The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention.  Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.

Charge filed by Local 881, United Food and Commercial Workers.  Chairman Pearce and Members Hirozawa and Schiffer participated.

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Contemporary Cars, Inc. d/b/a Mercedes-Benz of Orlando and Autonation, Inc., single and joint employers  (12-CA-026126, et al.; 361 NLRB No. 143)  Maitland, FL, December 16, 2014.

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge's recommended Decision and Order.  The Board affirmed the judge's rulings, findings, and conclusions and adopted his recommended Order to the extent and for the reasons stated in the Board's vacated Decision and Order reported at 358 NLRB No. 163 (2012), and the unpublished Order Denying Motion for Reconsideration, which were incorporated by reference.  In the vacated decision, the Board adopted the judge’s conclusions that the Respondents violated the Act by: (1) maintaining an unlawfully broad rule prohibiting all solicitation on company property; (2) creating the impression that employees’ union activities were under surveillance; (3) interrogating employees regarding their union activities; (4) soliciting grievances from employees and impliedly promising to remedy them; and (5) informing employees that their grievances with regard to team leaders had been adjusted by the team leaders’ demotions. The Board further adopted the judge’s conclusions that the Respondents violated the Act by discharging an employee because of his union activities; and by: (1) unilaterally selecting four technicians for layoff in April 2009 without bargaining over the decision or the effects; (2) unilaterally suspending skill level reviews, thereby denying promotions to employees who would have been promoted if those reviews had occurred; (3) unilaterally reducing the specified hours for performing prepaid maintenance work; and (4) refusing to provide the Union with requested information regarding unit employees. The Board reversed the judge to find that the Respondents violated the Act by issuing a documented coaching to an employee because of his union and protected concerted activities.  The Respondents filed a motion for reconsideration seeking that the Board address more specifically the unilateral change violations and challenging the recess appointments.  The Board denied the motion for reconsideration in full.  2012 WL 6101986.  The Board granted tax compensation and Social Security reporting remedies and included a new notice to employees.

Member Johnson included a footnote stating that he found it unnecessary to pass on additional allegations that the Respondents unlawfully interrogated employees, and that he would affirm the judge’s dismissal of the allegation that the Respondents violated the Act by laying off four service technicians.

Administrative Law Judge George Carson II issued his decision on March 18, 2011.  The charges were filed by the International Association of Machinists and Aerospace Workers, AFL-CIO.  Chairman Pearce and Members Johnson and Schiffer participated.

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Bread of Life, LLC d/b/a Panera Bread  (07-CA-088519 and 07-RC-072022; 361 NLRB No. 142) Kalamazoo, MI, December 16, 2014.

The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding.  Previously, on November 21, 2012, the Board issued an Decision and Order granting the General Counsel’s motion for summary judgment in the unfair labor practice matter, on the ground that the Respondent had not raised any issues regarding its refusal to bargain with the Union that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative (Case 07–RC–072022).  At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  The Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit.  On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid.  Thereafter, the court of appeals remanded this case for further proceedings consistent with the Supreme Court’s decision.  

In the instant proceeding, the Board noted that the underlying representation case also occurred at a time when the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  The Board stated that therefore, the representation decision would not be given preclusive effect, and the Board would consider the representation issues that the Respondent raised in this proceeding.  The Board observed that in its response to the Notice to Show Cause, the Respondent reiterated its challenge to the composition of the bargaining unit, arguing the certified unit of bakers is not an appropriate unit for bargaining because it includes bakers from only 6 of Respondent’s cafes, instead of all 17 cafes in its West Michigan Market.  The Board then stated that it had considered de novo the Respondent’s arguments in support of its request for review of the Acting Regional Director’s decision and direction of election, and found them without merit.  Accordingly, the Board denied the request for review as it raised no substantial issues warranting review. 

The Board next considered the question whether the it could rely on the results of the election, and found that the election was properly held and the tally of ballots is a reliable expression of the employees’ free choice.  In this regard, it reasoned that had the Board decided not to issue decisions during the time that the appointments to the Board had been challenged, the Regional Director would have conducted the election as scheduled and counted the ballots.  The Board found that accordingly, it was clear that the decision of the Board to continue to issue decisions during this time did not affect the outcome of the election.  The Board then issued a certification of representative, certifying that the Union is the exclusive collective-bargaining representative of the unit employees. 

Finally, the Board noted that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals.  The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention.  Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.

Charge filed by Local 70, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM), AFL–CIO, CLC.  Chairman Pearce and Members Hirozawa and Schiffer participated.

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Good Samaritan Medical Center  (01-CA-082367 and 01-CB-082365; 361 NLRB No. 145) Brockton, MA, December 16, 2014. 

The Board found that, under either the duty-of-fair-representation framework or the Wright Line standard, the Respondent Union, 1199SEIU United Healthcare Workers East, violated Section 8(b)(1)(A) and (2) of the Act by causing an employee’s discharge.  The Board affirmed the administrative law judge’s findings that the Respondent Employer Good Samaritan Medical Center violated Section 8(a)(3) and (1) when it discharged the employee and that the Employer violated Section 8(a)(1) by maintaining its Workplace Civility Policy.  Members Miscimarra and Johnson noted their disagreement with the Board’s precedent holding that the unlawful application of an otherwise lawful rule makes the maintenance of the rule unlawful, but they applied existing precedent for institutional reasons.

Administrative Law Judge Raymond P. Green issued his decision on August 8, 2013.  The charge was filed by an individual.  Members Miscimarra, Johnson, and Schiffer participated.

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Portola Packaging, Inc.  (28-CA-067274, et al.; 361 NLRB No. 147)  Tolleson, AZ, December 16, 2014.

The Board affirmed the judge’s findings that the Respondent violated the Act, prior to a Board election, by (1) prohibiting employees from discussing their wages with each other, (2) prohibiting employees from discussing with each other what occurred in meetings with supervisors, (3) soliciting employee complaints, impliedly promising to remedy them, and promising increased benefits to discourage employees from supporting the Union, (4) threatening to discharge employees and reduce wages and benefits if they selected the Union, (5) threatening employees with unspecified reprisals if they selected the Union and engaged in protected concerted activities, (6) interrogating employees about their union and protected concerted activities, (7) creating the impression that employees’ union and protected concerted activities were under surveillance, (8) threatening to withhold assistance if employees engaged in union and protected concerted activities, and (9) prohibiting employees from providing information about the company to the news media.  Given these unfair labor practices, the Board affirmed the judge’s recommendation to set aside the election and direct a second one. 

The Board, however, reversed two of the judge’s findings.  The Board found that the Respondent did not violate Section 8(a)(1) when it told employee Garcia that with one more warning, he would no longer work for the Respondent.  Although the Respondent had earlier exhibited animus toward Garcia’s protected concerted activity, the Board found that this statement accurately reflected Garcia’s status under the Respondent’s progressive disciplinary system based on Garcia’s repeated failure to follow the Respondent’s policies and procedures.  The Board also found, contrary to the judge, that the Respondent violated Section 8(a)(1) when it prohibited employee Magallon from using Garcia as a translator during meetings with Magallon’s supervisors.  The Board found that the Respondent issued this prohibition because of Garcia’s protected concerted activity during a meeting with one of Magallon’s supervisors.  During that meeting, Garcia did more than merely translate for Magallon; he took up Magallon’s cause and independently complained about the supervisor’s alleged abusive treatment of Magallon. 

Charges filed by individuals and United Food and Commercial Workers Union, Local No. 99.  Petition filed by United Food and Commercial Workers Union, Local No. 99.  Members Miscimarra, Johnson, and Schiffer participated.

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Care One at Madison Avenue, LLC d/b/a Care One at Madison Avenue  (22-CA-085127 and 22-CA-089333; 361 NLRB No. 159)  Morristown, NJ, December 16, 2014.

The Board unanimously found, in agreement with the Administrative Law Judge, that the Respondent violated the Act by:  (1) distributing to its employees a leaflet that threatened them with job loss for engaging in protected concerted activity prior to the union representation election; (2) announcing and implementing a reduction in healthcare premiums and copays for all employees except those who were eligible to vote in the election; and (3) presenting to employees at a mandatory campaign meeting a video displaying photographs of employees, taken for other purposes and used without their consent, and lacking any disclaimer that the video was not intended to reflect their views.  Further, a Board panel majority consisting of Chairman Pearce and Member Schiffer affirmed the judge’s finding that the Respondent violated the Act by posting a postelection memorandum directed at union activity on its employee bulletin board.  Member Johnson dissented in part, finding that the postelection memorandum merely reiterated the Respondent’s lawful, preexisting Workplace Violence Prevention Policy and did not constitute a promulgation of a new, unlawful policy in response to union activity.  Member Johnson further concluded, contrary to the majority, that employees would not reasonably construe the memorandum as restraining their Section 7 rights.

In addition, the Board unanimously rejected the employer’s arguments that the Acting General Counsel lacked authority to prosecute, and the judge lacked authority to decide, this case.

Administrative Law Judge Mindy E. Landow issued her decision July 31, 2013.  Charges filed by 1199 SEIU, United Healthcare Workers East.  Chairman Pearce and Members Johnson and Schiffer participated.

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Lytton Rancheria of California d/b/a Casino San Pablo  (32-CA-025585, et al.; 361 NLRB No. 148)  San Pablo, CA, December 16, 2014. 

In this case, the Administrative Law Judge failed to analyze several complaint allegations, including allegations related to the Respondent’s employee handbook rules, and allegations related to its denial of access to union representatives.  The Board panel unanimously found that the Respondent violated the Act by: (1) maintaining handbook rules prohibiting solicitation and distribution of literature in the workplace, and the making of false, fraudulent, or malicious statements; and (2) by implementing rules barring union representatives from accessing the employee break room and barring a union representative from its property indefinitely.  The Board also unanimously remanded to the judge for further consideration the remaining allegation that the Respondent violated Section 8(a)(5) by unilaterally implementing a rule barring union representatives from accessing areas of the casino where employee schedules are posted.

A Board panel majority consisting of Chairman Pearce and Member Schiffer further found that the Respondent unlawfully maintained handbook rules prohibiting insubordination or other disrespectful conduct and restricting off-duty employee access.  Member Johnson dissented from this finding on the basis that a reasonable employee would not read these rules to prohibit activity protected by the Act.  Member Johnson also made some general observations about Board litigation of work rule issues under the Lutheran Heritage test.  A panel majority consisting of Members Johnson and Schiffer also found that the Respondent lawfully maintained a rule prohibiting gossip.  Dissenting, Chairman Pearce found that this rule unlawfully restricted protected activity.  The Board ordered the reading of the Notice to Employees as a remedy.  Member Johnson dissented from this remedy.

Administrative Law Judge Jay R. Pollack issued his decision on March 5, 2013.  Charge filed by Unite Here Local 2850.  Chairman Pearce and Members Johnson and Schiffer participated.

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Hallmark-Phoenix 3, LLC  (12-CA-090718 and 12-CA-094037; 361 NLRB No. 146)  Cocoa, FL, December 16, 2014.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) and (1) by failing to pay its employees for all of their accrued vacation pay in a timely manner; failing to make severance payments to its employees; failing to include the $1.50 hourly wage differential in the lead employees’ vacation pay and severance; failing to deduct the union dues of its employees represented by International Alliance of Theatrical Stage Employees and Motion Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 780, AFL-CIO, and transmit the dues to that Union; and adding waiver language on the back of each employee’s paycheck, which stated that the employee acknowledges that the check represents the full amount owed to the employee.  The Board found that the Respondent’s failure to make the required vacation and severance payments and to deduct union dues from employees’ paychecks constituted contract modifications within the meaning of 8(d), but found it unnecessary to pass on the General Counsel’s contention that the Respondent’s placement of the waiver language on the paychecks constituted a contract modification.  Further, the Board affirmed the judge’s recommendation that the Notice to Employees be mailed to employees.

Administrative Law Judge Joel P. Biblowitz issued his decision on May 19, 2014.  Charges filed by International Alliance of Theatrical Stage Employees and Motion Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 780, AFL-CIO, and Transport Workers Union of America, Local 525, AFL-CIO.    Chairman Pearce and Members Hirozawa and Johnson participated.

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Print Fulfillment Services LLC  (09-CA-068069, et al.; 361 NLRB No. 144)  Louisville, KY, December 16, 2014.

The Board adopted, by unanimous vote, the judge’s findings that the Respondent committed multiple violations of Sections 8(a)(1), (3), and (5) before and after the election won by the Union.  A Board panel majority consisting of Members Hirozawa and Schiffer, Member Miscimarra dissenting, the Board also adopted the judge’s findings that the Respondent violated Section 8(a)(1), under the circumstances, when a supervisor, before the election, told an employee “I’m disappointed” when he saw the employee’s picture on a pro-Union campaign leaflet; and when a supervisor, after the election, told another employee that he could not be given a raise “because of the union proceedings.”  The same panel majority, Member Miscimarra dissenting, also adopted the judge’s findings that the Respondent violated Section 8(a)(3) when it gave an employee a disciplinary warning for a production error; and that the Respondent violated Sections 8(a)(3) and (5) when it initiated, with the employee’s warning and without bargaining, a practice of stricter enforcement of its disciplinary policy for production errors.  A panel majority consisting of Members Miscimarra and Hirozawa, Member Schiffer dissenting, adopted the judge’s finding that the Respondent did not violate Section 8(a)(3) when it later gave an employee a disciplinary warning for a production error.  With respect to remedy, the Board adopted the broad order recommended by the judge in view of the Respondent’s numerous violations but substituted a limited bargaining order for the judge’s recommended affirmative bargaining order.  Because the Union had essentially waived its right to bargain over the Respondent’s unilateral decision to lay off four employees and attempted to bargain only about the layoff’s effects, the Board also substituted a limited Transmarine remedy for the reinstatement of those employees, instead of the full backpay recommended by the judge.  In addition, contrary to the judge, in view of the Respondent’s numerous violations, the Board included a notice-reading requirement.  Administrative Law Judge Paul Buxbaum issued his decision on June 27, 2012.  Charges were filed by the Graphic Communications Conference of the International Brotherhood of Teamsters, District Council 3, Local 619-M.  Members Miscimarra, Hirozawa, and Schiffer participated.

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Vision of Elk River, Inc.  (18-CA-019200; 361 NLRB No. 155)  Elk River, MN, December 16, 2014.

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s decision and the record, and a panel majority consisting of Chairman Pearce and Member Schiffer reaffirmed the Board’s vacated prior Decision and Order reported at 359 NLRB No. 5 (2012), which was incorporated by reference.  In that decision, the Board found that the Respondent unlawfully laid off five employees because of their union activities and/or their participation in Board proceedings. The Board found that the Respondent knew or suspected that each of the five employees supported the Union. In finding that the layoffs were unlawfully motivated, the Board relied in part on statements by high ranking officials indicating that the Respondent sought to carefully “get rid” of union supporters.  Although those statements were made 2 years before the layoffs, the Board found them to be remarkably revealing declarations of the Respondent’s intent to surreptitiously commit serious unfair labor practices.  Additionally, the Board found that the Respondent’s stated reasons for laying off the five employees were pretextual, further evidencing the Respondent’s unlawful motive.

Dissenting, Member Miscimarra found that the General Counsel failed to prove that the Respondent selected any of the five alleged discriminatees for layoff because of their protected activities.  For the reasons stated in former Member Hayes’s dissenting opinion in 359 NLRB No. 5, Member Miscimarra found that the record failed to show that the Respondent had knowledge of the union activities of three of the alleged discriminatees or that the Respondent harbored animus against protected activities at the time the employees were laid off.   

Charge filed by an individual. Administrative Law Judge Richard A. Scully issued his decision on July 7, 2010.  Chairman Pearce and Members Miscimarra and Schiffer participated.

***

Smith’s Food & Drug Centers, Inc. d/b/a Fry’s Food Stores  (28-CA-109817; 361 NLRB No. 140) Phoenix, AZ, December 16, 2014.

The Board affirmed the Administrative Law Judge’s ruling that the Respondent violated Section 8(a)(1) by denying an employee the union representative of her choice at an investigatory interview, by denying her the right to confer with her representative before the interview, and by implicitly telling the union representative not to speak during the interview.  In partial dissent, Member Miscimarra would have found that the employee was not unlawfully denied a conference because she did not ask for one.  He also found that the Respondent did not explicitly tell the union representative not to speak during the interview, and he disagreed with the majority’s view that the silencing was implicit in the Respondent’s statements. Administrative Law Judge Joel P. Biblowitz issued his decision on April 1, 2014.  Charges filed by an employee.   Members Miscimarra, Hirozawa and Schiffer participated.

***

Noel Canning, a division of the Noel Corporation  (19-CA-032872; 361 NLRB No. 129)  Yakima, MA, December 16, 2014.

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order.  The Board affirmed the judge’s rulings, findings, and conclusions and adopted his recommended Order to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 358 NLRB No. 4 (2012), which was incorporated by reference.  In that decision, the Board adopted the judge’s finding that the Respondent violated Section 8(a)(5) of the Act by refusing to reduce to writing and to execute a collective-bargaining agreement reached with the Union, including payment of a retroactive bonus, and clarified the remedy.  Administrative Law Judge Gerald A. Wacknov issued his decision on September 26, 2011.  Charge filed by Teamsters Local 760.  Chairman Pearce and Members Johnson and Schiffer participated.

***

The International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States, its territories and Canada, AFL-CIO, CLC, Local 142 (IATSE)(Various Employers)  (15-CB-005871, et al.; 361 NLRB No. 156)  Mobile, AL, December 16, 2014.

The Board adopted the decision of the administrative law judge dismissing the complaint.  The Board found that the Respondent’s operation of its nonexclusive hiring hall did not violate Section 8(b)(1)(A) and (2) and that the Respondent did not discriminatorily refuse to refer certain union members because they engaged in protected activity in violation of Section 8(b)(1)(A).  Charges filed by individuals.  Administrative Law Judge Michael A. Marcionese issued his decision on February 26, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

2 Sisters Food Group, Inc. and Fresh & Easy Neighborhood Market, Inc.  (21-CA-038915 and 038932; 361 NLRB No. 152)  Riverside, CA, December 16, 2014.

On July 16, 2013, the Board issued a Decision and Order in this proceeding, which was reported at 359 NLRB No. 158.  At that time, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  The Charging Party moved for reconsideration.  In this compliance case, the Board vacated its previous Order, and unanimously found that Respondent Fresh & Easy was a successor to Respondent 2 Sisters, and, therefore, requiring it to remedy 2 Sisters’ unfair labor practices does not violate its due process rights.  The Board did not rely on the administrative law judge’s discussion of additional remedies requested by the Union, and instead ordered Fresh & Easy to abide by the Board’s order in the underlying unfair labor practice proceeding (357 NLRB No. 168).  The Board further denied the Charging Party’s motion for reconsideration on the grounds that the further remedies sought are not properly raised in a compliance proceeding.

Charges filed by the United Food and Commercial Workers International Union, Local 1167.  Administrative Law Judge Eleanor Laws issued her decision on November 21, 2012.  Chairman Pearce and Members Miscimarra and Schiffer participated.

***

Manor at St. Luke Village Facility Operations, LLC d/b/a The Manor at St. Luke Village and The Pavilion at St. Luke Village Facility Operations, LLC d/b/a The Pavilion at St. Luke Village  (04-CA-14317 and 04-RC-101711; 361 NLRB No. 99)  Hazleton, PA, December 16, 2014.

The Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding.  Previously, on June 13, 2013, the Board issued an Order denying the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election in the underlying representation case in which the Union was subsequently certified as the bargaining representative (Case 04-RC-101711).  At the time of the Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  Thereafter, the Respondent refused to bargain with the Union, and the General Counsel filed a motion for summary judgment. 

In the instant proceeding, the Board noted that the Board’s prior denial of the Respondent’s request for review occurred at a time when the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  The Board stated that therefore, the Board’s prior denial of the Respondent’s request for review would not be given preclusive effect, and the Board would consider the representation issues that the Respondent raised in this proceeding.  The Board indicated that in Case 04-RC-101711, the Respondent argued that the Regional Director erred in finding that its licensed practical nurses are not supervisors, and that the Respondent filed a request for review with the Board.  The Board stated that it had considered the representation issues anew, and found that the request for review should be denied, as it raised no substantial issues warranting review.  The Board then issued a certification of representative, certifying that the Union is the exclusive collective-bargaining representative of the unit employees.  The Board also stated that the Respondent argues that the Regional Director was appointed to his position at a time when the Board lacked a quorum and was acting pursuant to an invalid appointment.  The Board rejected this argument for the reasons stated in Pallet Companies, Inc., 361 NLRB No. 33 (2014).  In addition, the Board noted the Respondent’s further argument that the Board’s general delegation of authority to Regional Directors to process representation cases is not valid at a time when the Board lacks a quorum.  The Board rejected this argument, stating that the Board’s delegation of its decisional authority in representation cases to Regional Directors dates back to 1961 and has never been withdrawn, citing 26 Fed. Reg. 3889 (May 4, 1961).  The Board further stated that, consistent with the 1961 Delegation and the Board’s Rules and Regulations, NLRB Regional Directors remain vested with the authority to conduct elections and certify their results, regardless of the Board’s composition at any given moment. 

Finally, the Board noted that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals.  The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention.  Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.

Charge filed by American Federation of State, County, and Municipal Employees, District Council 87, AFL-CIO.  Chairman Pearce and Members Hirozawa and Schiffer participated.

***

Nelson Tree Service, Inc.  (09-RC-118324; 361 NLRB No. 161)  Louisville, KY, December 16, 2014.

The Board adopted the Regional Director’s recommendation to overrule the Petitioner’s Objections to an election held January 13, 2014.  However, the Board found that the Regional Director erred in failing to consider evidence of possible additional objectionable conduct, unalleged in the Petitioner’s objections but uncovered by the Region during investigation of an unfair labor practice charge as grounds for setting aside the election.  The Board noted that the Regional Director independently discovered evidence sufficient to support issuance of a complaint while the timely election objections were still pending decision.  Accordingly, the Board remanded this case to the Regional Director for further investigation and a hearing, if necessary, and for issuance of a supplemental report.  Petitioner—International Brotherhood of Electrical Workers, Local Union 369, AFL-CIO-CLC.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Marquez Brothers Enterprises, Inc.  (21-CA-039581 and 21-CA-039609; 361 NLRB No. 150)  City of Industry, CA, December 16, 2014.

Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s decision, the record, the exceptions and briefs in this case.  The Board adopted the judge’s rulings, findings, and recommended Order for the reasons stated in its earlier Decision and Order, reported at 358 NLRB No. 61 (2012).  In its earlier decision the Board, by unanimous vote, adopted the judge’s findings that the Respondent violated Section 8(a)(3) by discharging two employees; and violated Section 8(a)(1) by interrogating and threatening one of those employees and by coercing employees to revoke their union authorization cards.

A majority, with then-Member Hayes dissenting, also found the violations sufficiently serious to justify a remedial requirement that the notice be read aloud to employees in English and Spanish.  On reconsideration, a majority, with Member Johnson dissenting, agreed that a notice-reading requirement is justified.  Member Johnson would have found that the Respondent’s violations, though serious, did not rise to what has traditionally been regarded as an egregious level of misconduct justifying notice-reading.  Administrative Law Judge William G. Kocol issued his decision on June 22, 2011.  Charges filed by individuals.  Members Hirozawa, Johnson, and Schiffer participated.

***

Big Ridge, Inc.  (14-CA-030379, et al.; 361 NLRB No. 149)  Equality, IL, December 16, 2014.

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered this case de novo.  Initially, the Board rejected the Respondent’s argument that it lacked jurisdiction to reconsider the case because the United States Court of Appeals for the Seventh Circuit had denied the Board’s motion to remand.  The Board determined that “[t]he clear import of the court’s denial of enforcement, along with the Supreme Court’s Noel Canning decision, is that no validly constituted Board has ruled on the exceptions to the administrative law judge’s decision, recommended order, and certification of representative.”  The Board further determined that “[t]he exceptions therefore are still pending before the Board, and the Board is free to address them.”  Finally, the Board determined that relevant circuit court precedent was no bar to the Board’s reconsideration of the case without a remand order. 

On the merits, the Board adopted the administrative law judge’s recommended Decision and Order as to the discharge of an employee for the reasons stated in the Board’s vacated Decision, Order, and Certification of Representative reported at 358 NLRB No. 114 (2012), which was incorporated by reference.  In that Decision, the Board affirmed the judge’s finding that the Respondent violated the Act by discharging the employee because of his union support and activities.  The Board did not pass on the original Decision’s determination to overrule the Respondent’s election objections and to issue a certification of representative.  The Union had disclaimed interest in representing the unit and the Acting Regional Director had consequently revoked the original Certification of Representative, thereby rendering those issues moot.

Charges filed by the United Mine Workers of America.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on December 1, 2011.  Members Hirozawa, Johnson, and Schiffer participated.

***

A.W. Farrell & Son, Inc.  (28-CA-023502, et al.; 361 NLRB No. 162)  Las Vegas, NV, December 16, 2014.

The Board revisited this Noel Canning case, affirmed the findings of the Board’s vacated prior decision in this case, and found that the Respondent unlawfully refused to execute the 2010-2012 successor collective-bargaining agreement, withdrew recognition from the Union, delayed providing relevant information that the Union requested, and unreasonably restricted the Union’s use of information.  The Board ordered the Respondent to execute and retroactively apply the agreement, recognize the Union, and provide it requested information.  The Board also denied motions for reconsideration of the vacated decision and a motion to recall and consolidate cases, and expanded the remedy and order to require the Respondent to reimburse the Union for dues at no cost to employees and to mail the notice to employees employed since the onset of the Respondent’s unlawful conduct.  

Administrative Law Judge Lana H. Parke issued her decision on December 28, 2011.  Charges filed by United Union of Roofers, Waterproofers, and Allied Workers, Local 162, and Sheet Metal Workers International Association, AFL-CIO, Local No. 88.  Chairman Pearce and Members Hirozawa and Schiffer participated.

***

Pacific Lutheran University  (19-RC-102521, 361 NLRB No. 157)  Tacoma, WA, December16, 2014.

The Board’s Decision on Review and Order, ruling on the grant of Pacific Lutheran University’s (the University) Request for Review of the Regional Director’s Decision and Direction of Election, asserted jurisdiction over the University under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), and found that the University’s full-time contingent faculty are not managerial employees within the meaning of NLRB v. Yeshiva University, 444 U.S. 672 (1980).  The Board acted after issuing a notice and invitation to file briefs on February 10, 2014.  The Board reexamined the standard it will apply for determining, in accordance with Catholic Bishop, when the Board should decline to exercise jurisdiction over faculty members at self-identified religious colleges and universities, and reexamined the standard by which it will determine the managerial status of faculty pursuant to Yeshiva University.

The Board majority consisting of Chairman Pearce and Members Hirozawa and Schiffer adopted a new jurisdictional test under Catholic Bishop.  That test requires that when a college or university argues that the Board cannot exercise jurisdiction over a petitioned-for unit of faculty because the university is a religious university, the university “must first demonstrate, as a threshold requirement, that First Amendment concerns are implicated by showing that it holds itself out as providing a religious educational environment.”  Once that threshold requirement is met, the university “must then show that it holds out the petitioned-for faculty members themselves as a performing a specific role in creating or maintaining the college or university’s religious educational environment, as demonstrated by its representation to current or potential students and faculty members, and the community at large.” 

The Board majority also refined the standards under Yeshiva University to determine whether faculty actually or effectively exercise control over decision-making pertaining to central university policies by examining the faculty’s participation in the following decision-making areas:  academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions, and giving greater weight to the first three areas than the last two. 

Applying the new jurisdiction test, the Board majority found that while the University met the threshold requirement of holding itself out as providing a religious educational environment, the Board may assert jurisdiction because the University failed to establish that it holds out its petitioned-for contingent faculty members as performing any religious function.  Further, applying the refined standards under Yeshiva University, the Board majority concluded that the University failed to demonstrate that full-time contingent faculty members are managerial employees because there was insufficient evidence that the faculty were substantially involved in decision-making affecting the key primary decision-making areas of academic programs, enrollment management policies, and finances.  Even in the secondary areas of academic policies and personnel policies, the Board majority found that the full-time contingent faculty members’ authority was limited to their own classrooms or departments.  The Board majority concluded that their involvement in decision-making areas fell well short of actual control or effective recommendation, given the University’s decision-making structure.

Members Miscimarra and Johnson each dissented on the Board majority’s new jurisdictional standard and the assertion of jurisdiction.  They concluded that the test articulated by the majority suffers from the same infirmities and pitfalls identified and denounced by the Supreme Court in Catholic Bishop and by the D.C. Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002): a risk of conflict with the Religion Clauses of the First Amendment.  Members Miscimarra and Johnson would adopt a test similar to three-part test set forth by the D.C. Circuit in Great Falls, supra.  Applying that test to the circumstances presented here, both Members Miscimarra and Johnson would find that the Board cannot assert jurisdiction over the University’s petitioned-for faculty members.

On the managerial issue, Members Miscimarra and Johnson believed it is unnecessary to reach this issue because jurisdiction should not be asserted over the University, and the petition should be dismissed. Nonetheless, they addressed the managerial issue because the majority created a new standard for faculty managerial issues.  Member Miscimarra agreed with the majority that the record fails to support a finding that the full-time contingent faculty members are exempt managerial employees, and he generally agreed, subject to some qualifications, with the Board majority’s framework for determining faculty managerial questions.  Member Johnson similarly did not disagree with the majority’s conclusion that the full-time contingent faculty members are not managerial employees, and he concluded that, for the most part and with minor concerns, the majority’s primary and secondary areas will provide effective guidance.  Member Johnson’s main objection, shared by Member Miscimarra, was his view that the Board majority was increasing the burden of proof for what it considers to be “effective” recommendation of policies to establish managerial status.

Petitioner—Service Employees International Union, Local 925.  Chairman Pearce, and Members Miscimarra, Hirozawa, Johnson, and Schiffer participated.

***

Bluefield Hospital Company, LLC d/b/a Bluefield Regional Medical Center  (10-CA-093042 and 10-CA-093065; 361 NLRB No. 154)  Bluefield and Ronceverte, WV, December 16, 2014.

The Board granted the General Counsel’s motion and renewed motion for summary judgment in this test-of-certification refusal-to-bargain case on the ground that the Respondents did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the union was certified as the bargaining representative of unit employees of both employers.  Accordingly, the Board found that the Respondents violated Section 8(a)(5) and (1) by refusing to bargain with the Union since October 16, 2012.

At the time that the General Counsel’s original motion for summary judgment was pending before the Board, the Respondents filed an amended answer to the consolidated complaint asserting an additional affirmative defense, alleging that the affiliation of the Union with another labor organization created a lack of continuity of representation.  In response to the Respondents’ assertion, the General Counsel filed a request for partial remand of this proceeding for further investigation of the newly asserted defense.   On June 20, 2012, the Board issued an Order denying the motion for summary judgment and granting the General Counsel’s request for partial remand, which is reported at 359 NLRB No. 137 (2013).  Thereafter, the General Counsel  filed a renewed motion for summary judgment.

In this proceeding,  the Board noted that at the time it issued its original Order, the composition of the Board included persons whose appointment had been challenged as constitutionally infirm. It further noted that on June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid.  In view of the Supreme Court’s decision, the Board set aside its original Order, and considered anew the General Counsel’s motion for summary judgment and request for partial remand. The Board also considered the entire record, including the General Counsel’s renewed motion for summary judgment, the Respondents’ amended answers and affirmative defenses, and the parties’ responses.

The Board first addressed the motion for partial remand for further investigation into the Respondents’ affirmative defense regarding the Union’s affiliation.  The Board noted that the affiliation did not occur until several months after the Respondents’ initial refusal to bargain, and that it is well settled that an employer may not defend an earlier refusal to bargain by relying on subsequent events.  The Board therefore found that,  as the Respondents could not validly raise the Union’s later affiliation with another labor organization as a defense to their prior refusal to bargain, there was no reason to remand this proceeding.

The Board then ruled on the motion and renewed motion for summary judgment.  In granting the motions, the Board rejected the Respondents’ contention that the bargaining units were constituted pursuant to the Board’s Health Care Rule in violation of Section 9(c)(5) of the Act.  The Board also rejected the Respondent’s assertion that the Board should defer to  a private agreement between the Respondents and  the Union, which the Respondents claimed  prevented them from submitting evidence in support of their election objections to the Regional Director.  The Board additionally rejected the Respondents’ defenses raising issues regarding the Board’s lack of a quorum; the appointment of Acting General Counsel Lafe Solomon; and the appointment of Regional Director Claude Harrell.

Finally, the Board stated that issue of the Union’s affiliation could be litigated in a subsequent compliance proceeding, if any.  The Board also noted, however, that the affiliation issue has been considered and rejected by the Board in other cases.

Charge filed by National Nurses Organizing Committee, AFL-CIO.  Chairman Pearce and Members Hirozawa and Schiffer participated.

***

Alternative Energy Applications, Inc.  (12-CA-072037; 361 NLRB No. 139)  Tampa, FL, December 16, 2014.

The Board affirmed the judge's finding that the Respondent unlawfully instructed the Charging Party employee not to discuss the wage increase that he was given.  The Respondent's only argument in its exceptions was that the conduct occurred outside the Act’s 6-month statute of limitations.  The Board unanimously found that the Respondent waived this argument by not raising it until its post-hearing brief.  Members Hirozawa and Schiffer also found that the charge was closely related to the timely filed charge, pursuant to the test articulated in Redd-I, and could be considered on that basis as well.  Member Miscimarra did not reach that issue.

In addition, a Board majority consisting of Members Hirozawa and Schiffer reversed the judge and held that the Respondent unlawfully discharged the Charging Party for discussing wages.  The Board found that the General Counsel satisfied his burden under Wright Line and demonstrated that the discharge was for discussing wages, relying in particular on the Respondent's admission against interest given in response to an OSHA investigation.  Next, the Board found that Respondent failed to demonstrate that it would have discharged the Charging Party absent the protected conduct because the evidence presented was pretextual.

Member Miscimarra dissented because he found that there was no evidence that the Charging Party sought to induce group action when discussing wages and, accordingly, the conduct in question was not concerted.  Member Miscimarra disagreed with the majority's reliance on the doctrine that wage discussions are inherently concerted, arguing that the doctrine has not been accepted by circuit courts and is incompatible with the concerted activity definition as articulated in Meyers Industries and other cases.  In the alternative, the panel majority found that the Respondent discharged the Charging Party to prevent group activity, which is unlawful under Paraxel International.  356 NLRB NO. 82 (2011).  Member Miscimarra would find that the "preemptive strike" theory was not properly before the Board and that Paraxel is distinguishable.  Administrative Law Judge Joel P. Biblowitz issued his decision on May 16, 2013.  Charge filed by an individual.  Members Miscimarra, Hirozawa, and Schiffer participated.

***

Lou’s Transport, Inc., and T.K.M.S., Inc.  (07-CA-102517 and 07-CA-113640; 361 NLRB No. 158)  Pontiac, MI, December 16, 2014. 

The Board affirmed the judge’s finding that the Respondents violated Section 8(a)(1) when they fired an employee who had been overheard making comments critical of the Respondents during a conversation on a company radio with another employee and who also displayed signs critical of the Respondents in his truck. The Board adopted the judge’s findings that the employee was fired both for the radio conversation and for the signs and noted that the Respondents did not except to the judge’s finding that the radio conversation was protected concerted activity. With respect to the Respondents’ argument that the employee was fired solely for displaying the signs, the Board noted that, regardless of whether displaying the signs was itself concerted activity, the evidence demonstrated that the Respondents believed it to be. The Board stated that an employer violates Section 8(a)(1) by discharging an employee because the employer believes he or she engaged in concerted activity for mutual aid or protection, regardless of whether the employee’s activity was in fact concerted.  Charges filed by individuals. Members Miscimarra, Johnson, and Schiffer participated.

***

The Avenue Care and Rehabilitation Center   (08–CA–105234 and 08–RC–088734, 361 NLRB No. 151)  Warrensville Heights, OH, December 16, 2014.

The National Labor Relations Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding in which the Respondent contested the Union’s certification as bargaining representative in the underlying representation proceeding.  The Board noted that in a typical unfair labor practice proceeding, a respondent is precluded from raising representation issues that were or could have been litigated in the prior representation proceeding.  The Board stated, however, that the underlying representation case occurred at a time when the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm, that therefore, the representation decision would not be given preclusive effect, and the Board would consider anew the representation issues that the Respondent raised in this proceeding.

 The Board observed that in its response to the Notice to Show Cause, the Respondent reiterated its objection to conduct that allegedly affected the results of the election, arguing that the Board Agent who presided over the election wore a purple vest on the day of the election, that the color purple is the “official” color of the Union, and that by wearing a purple vest on the day of the election, the Board Agent destroyed the Agency’s appearance of neutrality.  

The Board also noted that in response to the notice to show cause the Respondent argued for the first time that the certification is not valid because at all times during the processing of the representation case the Board lacked a quorum under NLRB v. Noel Canning, 705 F.3d 490 (D.C. Cir. 2013), affirmed in relevant part 134 S. Ct. 2550 (2014) and lacked the statutory authority necessary to inter alia delegate to its Regional Directors, determine appropriate bargaining units, direct and/or conduct an election and certify the result of an election.  The Board noted that the Respondent offered no justification for its failure to make this argument in a timely fashion in the representation proceeding and stated that the Respondent not only failed to raise a timely challenge to the authority of the Regional Director, it entered into a Stipulated Election Agreement in which it waived the right to a hearing and expressly agreed to the conduct of a secret ballot election.  Therefore, the Board rejected the Respondent’s arguments as untimely, finding   that the Respondent is estopped from attacking the propriety of an election to which it expressly agreed.  Moreover, the Board stated that even if the Respondent’s challenge to the Regional Director’s authority were not barred as untimely, the Board would reject it on the merits.  Member Miscimarra stated that he agrees with the Board’s rejection of the Respondent’s Noel Canning arguments on the merits and does not reach or rely on the waiver discussion.

The Board reviewed the record in light of the Respondent’s exceptions and brief and decided to adopt the Regional Director’s findings and recommendations, and to issue a certification of representative. 

Finally, the Board noted that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals.  The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention.  Therefore, the Board granted the General Counsel leave to amend the complaint and issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.

Charge filed by SEIU District 1199 WV/KY/OH, The Health Care and Social Service Union.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Sonoco Protective Solutions  (04-RC-128714)  Montgomeryville, PA, December 15, 2014.  The Board adopted the Regional Director’s recommendations to overrule the Employer’s objections alleging that supporters of the Petitioner threatened coworkers with termination and created an impression of surveillance, and that one supporter engaged in electioneering conduct.  The Regional Director found that the Employer failed to provide the names of witnesses who could provide direct, rather than hearsay, testimony regarding threats and surveillance, and that one isolated gesture by an employee outside the polling area was not so objectionable as to substantially impair the employees’ exercise of free choice.  Accordingly, the Board certified the Petitioner, Laborers, Local 332, as the exclusive collective-bargaining representative of the unit employees.  Chairman Pearce and Member Hirozawa; Member Miscimarra concurring.

Paragon Security Systems  (01-RC-125863 and 01-RC-125865)  Boston, MA.  December 15, 2014.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Petitioner Union’s Request for Review of the Regional Director’s administrative dismissal of the petitions under UGL-UNICCO Service Co., 357 NLRB No. 76 (2011).   Member Miscimarra, dissenting, would grant review and find that the petitions warrant an election.  Member Miscimarra would adhere to the standard established in MV Transportation, 337 NLRB 770, 770 (2002), where the Board held that “an incumbent union in a successorship situation is entitled to—and only to—a rebuttable presumption of continuing majority status, which will not serve as a bar” to an otherwise valid rival union petition.  Petitioner— United Government Security Officers of America, International Union and its Local 353.  Incumbent Union—International Union, Security Police and Fire Professionals of America.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Paragon Systems, Inc.  (31-RC-126224)  Palmdale, CA, December 15, 2014.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Petitioner Union’s Request for Review of the Regional Director’s administrative dismissal of the petition under UGL-UNICCO Service Co., 357 NLRB No. 76 (2011).  Member Miscimarra, dissenting, would grant review and find that the petition warrants an election.  Member Miscimarra would adhere to the standard established in MV Transportation, 337 NLRB 770, 770 (2002), where the Board held that “an incumbent union in a successorship situation is entitled to—and only to—a rebuttable presumption of continuing majority status, which will not serve as a bar” to an otherwise valid rival union petition.  Petitioner— United Government Security Officers of America, International Union and its Local 353.  Incumbent Union—International Union, Security Police and Fire Professionals of America.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

NTN Bower Corporation  (10-RD-105644)  Hamilton, AL, December 15, 2014.  A Board panel majority consisting of Members Hirozawa and Schiffer adopted the Hearing Officer’s recommendations to sustain the Petitioner’s objection to a decertification election and that a new election be held.  The Board majority found that the Employer made an objectionable implied promise that wages would be raised if employees voted the Union out when it told employees (in captive audience meetings held two days before the election) that it was the Employer’s only unionized facility, that employees had not gotten a raise in over a year, and that employees in a different facility made more money than they did.  Member Miscimarra, dissenting, would find the Employer’s statements to be a truthful and unobjectionable comparison of wages provided to existing represented and unrepresented employees.  Petitioner—International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO.  Members Miscimarra, Hirozawa, and Schiffer participated.

M & B Asphalt Co., Inc.  (08-RC-127048)  Tiffin, OH, December 15, 2014.  The Board adopted the hearing officer’s overruling of the Employer’s objections to the election, which alleged that conversations between union organizers and small groups of employees the day before the election violated the Peerless Plywood rule.  The Board agreed with the hearing officer’s findings that these conversations did not violate the Peerless Plywood rule as they were not made to a “massed assembly” of employees, and because the employees were not held captive to the conversations.  Member Johnson agreed with his colleagues’ adoption of the hearing officer’s findings, adding that while meetings with as few as three employees can trigger the Peerless Plywood rule, precedent still requires that these employees be assembled together to invoke a violation of the rule.  Accordingly, the Board certified the Petitioner, International Union of Operating Engineers, Local No. 18, as the exclusive collective-bargaining representative of the unit employees.  Chairman Pearce and Members Hirozawa and Johnson participated.

Orchard Manor Alp, LLC d/b/a Orchard Manor Rehabilitation & Nursing Center  (03-RC-110739)  Buffalo, NY, December 15, 2014.  The Board adopted the hearing officer’s overruling of the Employer’s objections to the election, and certified the Petitioner, CSEA, Local 1000, AFSCME, AFL-CIO, as the exclusive collective-bargaining representative of the unit employees.  The Board rejected the Employer’s contention that the Regional Director did not possess the authority to determine or certify the results of this election because she had been invalidly appointed in 2009 by a two-member Board that lacked a quorum under the United States Supreme Court’s decision in New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010).  The Board stated that a duly constituted Board on July 6, 2010 ratified en masse all appointments made by the two-member Board.  The Board also rejected the Employer’s contention that certain statements made on Facebook by a supporter of the Petitioner, even assuming that they could be attributed to the Petitioner, could be seen as objectionable threats that employees would lose their jobs if the Petitioner was not voted in.  The Board found that neither the Petitioner nor the employee could have caused the job loss at issue and the statements were not objectionable as campaign propaganda under Midland National Life Insurance Co., 263 NLRB 127 (1982).  Chairman Pearce and Members Hirozawa and Miscimarra participated.

Green Mountain Community Network, Inc.  (01-RC-127082)  Bennington, VT, December 16, 2014.  The Board adopted the hearing officer’s recommendation to sustain a challenge to a determinative ballot.  The Board agreed with the hearing officer that the stipulation unambiguously excluded the employee at issue from the unit.  Accordingly, the Board certified the Petitioner, Chauffeurs, Teamsters, Warehousemen and Helpers Union No. 597 a/w International Brotherhood of Teamsters, as the exclusive collective-bargaining representative of the petitioned-for unit employees.  Members Miscimarra, Johnson, and Schiffer participated.

Master Security Company, LLC  (05-RC-129198)  Suitland, MD, December 16, 2014.  The Board adopted the hearing officer’s recommendation to overrule objections to an election, held between July 2 and July 23, 2014, filed by the Intervenor, International Union, Security, Police and Fire Professionals of America (SPFPA) Local No. 131.  The objections alleged that the Employer gave the Petitioner’s representatives access to the work site for the purposes of campaigning, and that the Employer’s representative made pro-Petitioner comments to employees.  Regarding the latter objection, the Board agreed with the hearing officer’s finding that the statements at issue conveyed no coercive messages, threats or promises, but found it unnecessary to pass on the hearing officer’s additional finding that the statements were not heard by a determinative number of employees.  The Board issued a Certification of Representative stating that a majority of the valid ballots have been cast for Petitioner National Association of Special Police and Security Officers, and that it is the exclusive representative of the unit employees. Chairman Pearce and Members Hirozawa and Johnson participated.

Hyde Leadership Charter School – Brooklyn  (29-RM-126444)  Brooklyn, NY, December 17, 2014.  The Board granted the American Federation of Labor and Congress of Industrial Organizations’ Motion to file an Amicus Curiae brief.

C Cases

United States Postal Service  (10-CA-130537, et al.)  Tuscaloosa, Alabama, December 16, 2014.  Board Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying the actions the Respondent must take to comply with the National Labor Relations Act.  Charges filed by National Association of Letter Carriers, Branch 1096.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Coastal Sunbelt Produce, Inc.  (05-CA-036362)  Savage, MD, December 19, 2014.  The Board invited the parties to submit supplemental briefs addressing Gestamp v. NLRB, 769 F.3d 254 (4th Cir. 2014) and its impact on the case.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Professional Security Officers and Investigators of America and Professional Security Officers and Investigators of America, Local 101 (Deco, Inc.)  (14-CB-126322; JD-72-14)  Oklahoma City, OK.  Administrative Law Judge Arthur J. Amchan issued his decision on December 15, 2014.  Charge filed by an individual.

Costco Wholesale Corporation  (05-CA-122612; JD-73-14)  Gaithersburg, MD.  Administrative Law Judge Eric M. Fine issued his decision on December 16, 2014.  Charge filed by Teamsters Local 311, International Brotherhood of Teamsters.

The Hillshire Brands Company  (16-CA-115125, et al.; JD(ATL)-33-14)  Haltom City, TX.  Administrative Law Judge Robert A. Ringler issued his decision on December 17, 2014.  Charges filed by United Food and Commercial Workers, Local 540, affiliated with United Food and Commercial Workers, AFL-CIO.

Harry Asato Painting, Inc.  (20-CA-124382 and 20-CA-125157; JD(SF)-59-14)  Honolulu, HI.  Administrative Law Judge Eleanor Laws issued her decision on December 19, 2014.  Charges filed by International Union of Painters and Allied Trades, Painters Local Union 1791.

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