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Summary of NLRB Decisions for Week of December 21 - 24, 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

SolarCity Corp.  (32-CA-128085; 363 NLRB No. 83)  San Mateo, CA, December 22, 2015.

Affirming the administrative law judge’s application of D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14-60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015), a Board majority consisting of Chairman Pearce and Members Hirozawa and McFerran found that the Respondent violated Section 8(a)(1) by maintaining a mandatory Arbitration Agreement and a Revised Agreement (the Agreements) that require employees, as a condition of employment, to waive their rights to maintain class and collective actions in all forums, arbitral or judicial.  The Board majority further found that the Respondent enforced the Arbitration Agreement in violation of Section 8(a)(1) by filing a motion in a state court in California to compel the Charging Party to submit her class action wage and hour claim to individual arbitration.  Deciding an issue for the first time, the Board majority rejected the Respondent’s argument that the Agreements are lawful because, unlike those in D. R. Horton and Murphy Oil, they contain an exception permitting employees to file employment claims or charges with Federal administrative agencies such as the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor (DOL), and the NLRB, thereby providing employees an adequate forum to pursue class or collective employment claims.  The majority explained that the exception in the Agreements that permits the filing of claims or charges with administrative agencies does not satisfy the requirement of an alternative judicial forum under D. R. Horton and Murphy Oil because: (1) there is a wide range of employment-related claims that are not within the purview of any administrative agency; (2) even if the administrative agency has the authority to pursue employees’ claims, it typically also has the discretion to decline to do so—thus, access to the agency is not access to a forum for adjudication; and (3) unlike a court, administrative agencies like the EEOC and DOL cannot adjudicate employment-related claims.

The Board majority found separately that the Agreements violated Section 8(a)(1) by causing employees to reasonably believe that they were barred or restricted from filing unfair labor practice charges with the Board.  Although the Agreements state that employees are permitted to file charges with the Board, the majority found that other language in the Agreements rendered ambiguous the language permitting the filing of Board charges and would reasonably be construed by employees to prohibit the filing of charges.

Dissenting consistent with his partial dissenting opinion in Murphy Oil, Member Miscimarra would find that maintenance of the Agreements and the Respondent’s enforcement are lawful because, among other reasons: (1) the NLRA creates no substantive right for employees to insist on class-type treatment of non-NLRA claims; (2) a class-waiver agreement pertaining to non-NLRA claims does not infringe on any NLRA rights or obligations, and (3) enforcement of non-NLRA class-action waivers is warranted by the Federal Arbitration Act.  Member Miscimarra would also find that the Agreements do not violate Section 8(a)(1) by interfering with the filing of Board charges or their resolution by the Board.  In his view, employees would not reasonably construe the Agreements to prohibit them from filing charges with the Board because the Agreements clearly and unambiguously state that they do not impose any restriction on the right to file Board charges.  Finally, because he disagrees with the Board’s decisions in D. R. Horton and Murphy Oil, and because he believes that the Act does not render unlawful arbitration agreements that provide for the waiver of class-type litigation of non-NLRA claims, Member Miscimarra would find it unnecessary to reach whether such agreements should independently be deemed lawful to the extent, per D. R. Horton, they “leave[] open a judicial forum for class and collective claims” by permitting the filing of complaints with administrative agencies that, in turn, may file class or collective action lawsuits on employees’ behalf.

Charge and amended charge filed by an individual.  Administrative Law Judge Kenneth W. Chu issued his decision on March 31, 2015.  Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.

***

Domino’s Pizza, LLC  (29-CA-103180; 363 NLRB No. 77)  Brooklyn, NY, December 22, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an arbitration agreement (Agreement) that required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the majority rejected the Respondent’s argument that its Agreement was lawful because it permitted employees to file charges with administrative agencies, including with the Board.  Relying on On Assignment Staffing Services, 362 NLRB No. 189 (2015), the majority also rejected the Respondent’s argument that its Agreement was voluntary and thus lawful because it contained a provision allowing employees to opt out of the arbitration requirement within 30 days after signing the Agreement. 

Member Miscimarra, dissenting in part, would have dismissed the complaint.  Consistent with his dissents in Murphy Oil and Pama Management, 363 NLRB No. 38 (2015), he concluded that the Agreement did not violate the Act and that its enforcement was warranted by the Federal Arbitration Act.  However, he found it unnecessary to reach whether agreements containing an exemption permitting filings with administrative agencies should independently be deemed lawful to the extent, per D. R. Horton, they “leave[] open a judicial forum for class and collective claims.”

Charge filed by Fast Food Workers Committee.  Administrative Law Judge Mindy E. Landow issued her decision on March 27, 2015.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Covenant Care California, LLC  (21-CA-090894; 363 NLRB No. 80)  La Jolla, CA, December 22, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015), the Board affirmed the administrative law judge’s findings that the Respondents violated Section 8(a)(1) by maintaining and enforcing an Arbitration Agreement that required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, and that required employees to keep information about arbitral proceedings confidential.  Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the Board rejected the Respondents’ argument that the Arbitration Agreement was lawful because it included an exemption allowing employees to file charges with administrative agencies, including with the Board. 

Charge filed by an individual.  Administrative Law Judge Gerald A. Wacknov issued his decision on December 20, 2013.  Chairman Pearce and Members Hirozawa and McFerran participated.

***

RPM Pizza, LLC  (15-CA-113753; 363 NLRB No. 82)  Gulfport, MS, December 22, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the administrative law judge’s findings that the Respondent violated Section 8(a)(1) by maintaining, threatening to enforce, and enforcing an Arbitration Agreement that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the majority rejected the Respondent’s argument that its arbitration policy was lawful because it permitted employees to file charges with administrative agencies, including with the Board.  Relying on On Assignment Staffing Services, 362 NLRB No. 189 (2015), the majority also rejected the Respondent’s argument that its arbitration policy was voluntary and thus lawful because it contained an opt-out provision that allowed employees to choose not to be bound by the policy. 

Dissenting consistent with his dissents in Murphy Oil and Pama Management, 363 NLRB No. 39 (2015), Member Miscimarra would find that the Respondent did not violate Section 8(a)(1) by maintaining, threatening to enforce, and enforcing the Arbitration Agreement.  In his view, the Agreement was lawful, especially in light of its opt-out provision.  Because the Agreement was lawful, the Respondent’s actions in sending a letter stating that it would file a motion to dismiss the Charging Party’s FLSA complaint in Federal court unless he voluntarily withdrew it, and, after he did so, filing a motion to dismiss the Charging Party’s class allegations before the arbitrator, were also lawful.

Charge and amended charge filed by an individual.  Administrative Law Judge Donna N. Dawson issued her decision on July 11, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

The Rose Group d/b/a Applebee’s Restaurant  (05-CA-135360; 363 NLRB No. 75)  Newtown, PA, December 22, 2015.

Citing D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a Dispute Resolution Program and Agreement that required employees, as a condition of employment, to waive their rights to pursue collective actions involving employment-related claims in all forums, whether arbitral or judicial.  The majority also found that the Respondent violated Section 8(a)(1) by maintaining the Dispute Resolution Program and Agreement because employees would reasonably construe the arbitration program to bar employees from filing charges with the Board or to restrict employees’ access to the Board and its processes. 

Member Miscimarra concurred in part and dissented in part.  Relying on his partial dissent in Murphy Oil, Member Miscimarra dissented from the majority’s finding that the Respondent’s Dispute Resolution Program and Agreement violate Section 8(a)(1) because they waive the right to participate in class or collective actions regarding non-NLRA employment claims.  Member Miscimarra also dissented from the majority’s finding that the Dispute Resolution Program violates Section 8(a)(1) based on interference with the right of employees to file charges with the Board, noting that the Program document states that “the Program will not prevent you from filing a charge with any state or federal administrative agency.”  However, Member Miscimarra concurred with the majority’s finding that the Agreement unlawfully interferes with the filing of charges with the Board in violation of Section 8(a)(1).

Charge filed by an individual.  Administrative Law Judge Susan A. Flynn issued her decision on April 22, 2015.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Citi Trends, Inc.  (10-CA-133697; 363 NLRB No. 74)  Darlington, SC, December 22, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a Mandatory Arbitration Agreement (MAA) that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  Dissenting in part, and relying on his partial dissenting opinion in Murphy Oil, Member Miscimarra would find that Section 8(a)(1) does not vest authority in the Board to dictate any particular procedures pertaining to the litigation of non-NLRA claims, nor does the Act render unlawful agreements in which employees waive class-type treatment of non-NLRA claims.  However, the panel unanimously reversed the judge’s finding that the MAA was independently unlawful because employees would reasonably believe that it bars or restricts their right to file charges with the Board, stating that the General Counsel did not litigate this theory of a violation.

Charge filed by an individual.  Administrative Law Judge Ira Sandron issued his decision on March 9, 2015.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Advanced Services, Inc.  (26-CA-063184 and 26-CA-071805; 363 NLRB No. 71)  Memphis, TN, December 22, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015), the Board affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory dispute resolution policy that requires employees, as a condition of employment, to waive their rights to maintain class or collective actions in all forums, whether arbitral or judicial.  Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the Board rejected the Respondent’s argument that its policy was lawful because it contained an exemption permitting employees to file charges with administrative agencies, including with the Board.  The Board also adopted the judge’s finding that an overly broad confidentiality provision in the policy’s acknowledgement form independently violated Section 8(a)(1).  Finally, the Board adopted the judge’s finding that the Respondent violated Section 8(a)(1) by instructing employees not to discuss performance improvement plans with other employees and her dismissal of the allegation that the Respondent violated Section 8(a)(1) by terminating one of the charging parties.

Reversing the judge, the Board found that the Respondent violated Section 8(a)(1) by instructing employees to keep any discussion of an investigation into alleged supervisory misconduct confidential.  The Board noted that the Respondent reflexively imposed this confidentiality requirement without demonstrating a legitimate and substantial justification.

Charges filed by two individuals.  Administrative Law Judge Margaret G. Brakebusch issued her decision on July 2, 2012.  Chairman Pearce and Members Hirozawa and McFerran participated.

***

Everglades College, Inc. d/b/a Keiser University and Everglades University  (12-CA-096026; 363 NLRB No. 73)  Fort Lauderdale, FL, December 23, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran found that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement under which employees were compelled, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial.  For the reasons stated in his partial dissent in Murphy Oil, Member Miscimarra dissented from the majority’s finding that the mandatory arbitration agreement was unlawful because it waived the right to participate in class or collective actions regarding non-NLRA employment claims.  However, he concurred with the majority that the mandatory arbitration agreement violated Section 8(a)(1) because employees reasonably would construe it to bar or restrict their right to file unfair labor practice charges with the Board.  Accordingly, the panel unanimously found that the Respondent unlawfully discharged an employee for refusing to sign the agreement.  In agreeing to find the discharge unlawful, Member Miscimarra relied solely on the latter violation.

Charge filed by an individual.  Administrative Law Judge Melissa M. Olivero issued her decision on August 14, 2013.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Ross Stores, Inc.  (31-CA-109296 and 31-CA-114107; 363 NLRB No. 79)  Thousand Oaks, CA, December 23, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an Arbitration Policy (Policy) and Dispute Resolution Agreement (Agreement) that required employees, as a condition of employment, to waive their rights to pursue class or collective employment claims in all forums, whether arbitral or judicial.  Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the majority rejected the Respondent’s argument that its Agreement was lawful because it contained an exemption permitting employees to file charges with administrative agencies, including with the Board.  Relying on Bristol Farms, 363 NLRB No. 45 (2015), the majority also rejected the Respondent’s argument that its Agreement was voluntary and thus lawful because it contained an opt-in provision.  Contrary to the judge, the majority found that the complaint allegation regarding the Respondent’s enforcement of the Policy was timely, and the majority reversed the judge and found that the Respondent violated Section 8(a)(1) by asserting the Policy in litigation.  Finally, the majority disagreed with the dissent’s view that Sections 7 and 9(a) of the Act require the Board to permit individual employees to prospectively waive their rights to engage in concerted legal activity.  The majority also rejected the dissent’s argument that the Respondent’s motion to compel arbitration was protected by the First Amendment’s Petition Clause.

For the reasons explained in his dissenting opinions in Murphy Oil and Bristol Farms, 363 NLRB No. 45 (2015), Member Miscimarra dissented from the majority’s finding that the Policy and the Agreement were unlawful because they required employees to waive their rights to pursue class or collective actions regarding non-NLRA claims.  In his view, the Agreement was lawful, especially in light of its opt-in provision.  Because Member Miscimarra would find the Policy lawful, he also dissented from the majority’s finding that the Respondent’s enforcement of the policy violated Section 8(a)(1).  In so doing, he noted that because there was no illegal objective for the enforcement litigation, the Respondent’s motion to compel arbitration was arguably protected by the First Amendment’s Petition Clause.

Charges filed by an individual.  Administrative Law Judge Jay R. Pollack issued his decision on October 21, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

The Pep Boys Manny Moe & Jack of California  (31-CA-104178; 363 NLRB No. 65)  Inglewood, CA, December 23, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015, a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a Mutual Agreement to Arbitrate Claims (Agreement) that required employees, as a condition of employment, to waive their rights to pursue class or collective employment claims in all forums, whether arbitral or judicial.  Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the majority rejected the Respondent’s argument that its Agreement was lawful because it contained an exemption permitting employees to file charges with administrative agencies, including with the Board.  The majority disagreed with the dissent’s view that Sections 7 and 9(a) of the Act require the Board to permit individual employees to prospectively waive their rights to engage in concerted legal activity.

For the reasons explained in his dissenting opinion in Murphy Oil, Member Miscimarra dissented from the majority’s finding that the Agreement was unlawful because it required employees to waive their rights to pursue class or collective actions regarding non-NLRA claims.  He found it unnecessary to reach whether agreements containing an exemption permitting filings with administrative agencies should independently be deemed lawful to the extent, per D. R. Horton, they “leave[] open a judicial forum for class and collective claims.”

Charge filed by an individual.  Administrative Law Judge Gerald A. Wacknov issued his decision on March 7, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Logisticare Solutions, Inc., a Subsidiary of Providence Service Corporation  (16-CA-134080; 363 NLRB No. 85)  Austin, TX, December 24, 2015.

Citing Convergys Corp., 363 NLRB No. 51 (2015), a Board panel majority consisting of Chairman Pearce and Member McFerran affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a rule that requires employees, as a condition of employment, to waive their rights to pursue class or collective action lawsuits.  The majority also found that the Respondent’s rule was independently unlawful because, given ambiguity in the agreement about whether employees could file charges with or on behalf of other employees, employees would reasonably read the rule as restricting their right to file unfair labor practice charges with the Board.  Member Miscimarra dissented from both findings.  Member Miscimarra would find that the rule was lawful because it did not restrain or coerce employees in the exercise of Section 7 rights; he would further find that employees would not reasonably construe the rule to bar or restrict their right to file charges with the Board where the rule explicitly states that it applies only to class- or collective-action lawsuits. 

Charge filed by an individual.  Administrative Law Judge Joel B. Biblowitz issued his decision on April 15, 2015.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Whole Foods Market, Inc.  (01-CA-096965, 13-CA-103533, and 13-CA-103615; 363 NLRB No. 87)  Cheshire, CT and Chicago, IL, December 24, 2015.

Reversing the administrative law judge, a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent violated Section 8(a)(1) by maintaining two similar rules in its General Information Guide prohibiting employee recording in the workplace without prior approval by management. The majority found that the rules, which unqualifiedly prohibit all workplace recording (including that which is part of the res gestae of protected concerted activity), are overbroad and would reasonably be construed by employees to prohibit activity protected by the Act.  Member Miscimarra, dissenting, would affirm the judge’s decision to dismiss the complaint.  In his view, the rules do not unlawfully interfere with, restrain or coerce employees in the exercise of rights protected under the Act because the rules “obviously are intended to encourage all communications, including communications protected by Section 7.”   He found that employees would reasonably interpret the rules to protect Section 7 activity, not to prohibit it.

Charges filed by United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago.  Administrative Law Judge Steven Davis issued his decision on October 30, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

24 Hour Fitness USA, Inc.  (20-CA-035419; 363 NLRB No. 84)  San Ramon, CA, December 24, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015, a Board panel majority consisting of Chairman Pearce and Member McFerran affirmed the administrative law judge’s findings that the Respondent violated Section 8(a)(1) by maintaining and enforcing a binding arbitration policy that required employees, as a condition of employment, to waive their rights to pursue collective actions involving employment-related claims in all forums, whether arbitral or judicial.  Citing On Assignment Staffing Services, 362 NLRB No. 189 (2015), the majority rejected the Respondent’s argument that the policy’s opt-out provision rendered the policy lawful.  The majority further rejected the Respondent’s argument that the asserted potential for joinder of claims under the policy rendered it lawful. 

Dissenting in part, and relying on his dissents in Murphy Oil and Pama Management, 363 NLRB No. 39 (2015), Member Miscimarra would find that agreements between employers and employees that waive the right to participate in class and collective actions regarding non-NLRA employment claims do not violate Section 8(a)(1), especially when they contain an opt-out provision.  Moreover, in his view, the legality of the policy is further reinforced by the fact that the policy permits joinder of claims before an arbitrator.  Because he would find the policy lawful, he would find it similarly lawful for the Respondent to file motions in Federal and State courts seeking to enforce the policy.

Charge filed by an individual.  Administrative Law Judge William L. Schmidt issued his decision on November 6, 2012.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

MasTec Services Company, Inc.  (16-CA-086102; 363 NLRB No. 81)  Fort Worth, TX, December 24, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015, a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a Dispute Resolution Policy (Policy) that required employees, as a condition of employment, to waive their rights to pursue class or collective employment claims in all forums, whether arbitral or judicial.  The majority rejected the Respondent’s arguments that the Policy was lawful because it contained an opt-out provision and because it included an exemption allowing employees to file charges with administrative agencies.  Although the Respondent argued that the Policy was lawful because it permitted employees to pursue permissive joinder, the majority found that, because the Policy contained a confidentiality provision, the possibility of joinder was illusory.  The majority also rejected the Respondent’s argument that the Board’s decisions in D. R. Horton and Murphy Oil conflict with the Rules Enabling Act.  Finally, the majority disagreed with the dissent’s view that Sections 7 and 9(a) of the Act require the Board to permit individual employees to prospectively waive their rights to engage in concerted legal activity.

Dissenting consistent with his dissents in Murphy Oil and Pama Management, 363 NLRB No. 39 (2015), Member Miscimarra would find that agreements between employers and employees that waive the right to participate in class and collective actions regarding non-NLRA employment claims do not violate Section 8(a)(1), especially when they contain an opt-out provision.  Moreover, in his view, the lawfulness of the Policy is all the more apparent because it incorporates procedural rules that allow for permissive joinder.

Charges filed by an individual.  Administrative Law Judge Joel P. Biblowitz issued his decision on June 3, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

CPS Security (USA), Inc., a wholly owned subsidiary of CPS Security Solutions, Inc.  (28-CA-072150, 28-CA-075432, and 28-CA-075450; 363 NLRB No. 86)  Las Vegas, NV, December 24, 2015.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part No. 14–60800, 2015 WL 6457613, __ F.3d __ (5th Cir. Oct. 26, 2015, a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the judge’s findings that the Respondent violated Section 8(a)(1) by maintaining and enforcing an arbitration policy that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  The Board further adopted the judge’s finding that maintaining the arbitration policy violated Section 8(a)(1) because employees reasonably would believe that it bars or restricts their right to file unfair labor practices with the Board. 

Member Miscimarra concurred in part and dissented in part.  Relying on his dissents in Murphy Oil and Pama Management, 363 NLRB No. 39 (2015), Member Miscimarra would find that agreements between employers and employees that waive the right to participate in class and collective actions regarding non-NLRA employment claims do not violate Section 8(a)(1), especially when they contain an opt-out provision.  Because he would find the policy lawful, he would find it similarly lawful for the Respondent to file motions in State court seeking to enforce the policy.  However, he concurred with the majority’s finding that the arbitration policy violates Section 8(a)(1) because employees would reasonably construe it to restrict their right to file unfair labor practice charges with the Board.

Charges filed by individuals.  Administrative Law Judge Michael A. Marcionese issued his decision on February 11, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

First Transit, Inc.  (21-RC-147424)  Pomona, CA, December 22, 2015.  Order denying the Employer’s Request for Review of the Regional Director’s Supplemental Decision on the basis that it raised no substantial issues warranting review.  Petitioner – Wholesale Delivery Drivers, General Truck Drivers, Chauffeurs, Sales, Industrial and Allied Workers, Teamsters Local 848, International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

The Trustees of Columbia University in the City of New York  (02-RC-143012)  New York, NY, December 23, 2015.  Order granting Petitioner’s Request for Review and the Employer’s Conditional Request for Review of the Regional Director’s Supplemental Decision and Order Dismissing Petition on the basis that they raise substantial issues warranting review.  The Board intends to issue a subsequent notice establishing a schedule for the filing of briefs on review and inviting amicus briefs.  Member Miscimarra, concurring in part and dissenting in part, would deny the Petitioner’s Request for Review but concurs with the majority’s decision to grant the Conditional Request for Review.  Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.

C Cases

Columbia Memorial Hospital  (03-CA-142160 and 03-CA-144364)  Hudson, NY, December 22, 2015.  No exceptions having been filed to the November 10, 2015 decision of Administrative Law Judge Robert A. Ringler 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 an individual and 1199 SEIU United Healthcare Workers East.

Amcor Rigid Plastics  (13-CA-145992)  Batavia, IL, December 23, 2015.  No exceptions having been filed to the November 6, 2015 decision of Administrative Law Judge Thomas M. Randazzo finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and ordered the Respondent to take the action set forth in the judge’s recommended Order.  Charge filed by Chicago & Midwest Regional Joint Board, Workers United/SEIU.

Electrolux Home Products, Inc.  (15-CA-157407)  Memphis, TN, December 24, 2015.  Order denying the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. The Board also stated that, in considering the petition to revoke, it evaluated certain subpoena paragraphs as modified by the Region in its opposition brief.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

Pessoa Construction Company, Board Case No. 05-CA-034547 (reported at 361 NLRB No. 138) (4th Cir. decided December 21, 2015)

In an unpublished opinion, the court enforced the Board’s backpay order that was issued to remedy this construction company’s discharge of one of its drivers for his union activities in violation of Section 8(a)(3) of the Act.  Previously, the same court enforced the Board’s underlying unfair-labor-practice order.

On review, the court rejected the employer’s challenges to the backpay order.  Contrary to those claims, the court held that Department of Transportation (DOT) regulations “did not require [the discriminatee] to voluntarily undergo a DOT physical at his own expense or hold a current DOT card in order to search for suitable interim employment.”  Further, the court held that the Board did not abuse its discretion in finding that the employer failed to establish that the discriminatee suffered from a medical condition that would have disqualified him from obtaining a DOT card and safely operating a commercial vehicle, or in failing to toll the backpay period based upon his misrepresentations on applications to his interim employers.  Finally, the court agreed with the Board that the administrative law judge properly excluded evidence of the discriminatee’s prior convictions that were more than ten years in the past.  Accordingly, the court denied the petition for review and enforced. 

The court’s unpublished opinion is here.

Pac Tell Group, Inc., d/b/a U.S. Fibers, Board Case No. 10-CA-139779 (reported at 362 NLRB No. 4) (4th Cir. decided Dec. 23, 2015)

In an unpublished opinion, the court enforced the Board’s bargaining order against this recycler of polyester fibers after production and maintenance employees at its Trenton, South Carolina plant voted in the May 2013 election to be represented by Local 7898 of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union.  In doing so, the court upheld the Board’s application of the standards of Oakwood Healthcare, Inc., 348 NLRB 686 (2006), and rejected the employer’s contention that four employees were supervisors within the meaning of Section 2(11) of the Act.  The court also agreed with the Board that the employer did not carry its burden of proving its alternate claim that those employees, if not supervisors, nonetheless engaged in objectionable third-party conduct materially affecting the election.

In the underlying representation case, dispensing with the employer’s claim of supervisory status, the Board adopted the Regional Director’s findings that the four employees did not have the authority to assign, responsibly direct, or effectively recommend discipline or reward.  The Board also adopted the Regional Director’s application of the standard governing third-party election misconduct and his recommendation to overrule the employer’s objections that claimed that statements by those employees to coworkers that they might lose their jobs if they did not support the Union had affected the election.  After the Board certified the union and the union requested bargaining, the employer refused to bargain in order to test the certification.

On review, the court held that the Board reasonably found that the employer had not shown that the four employees were statutory supervisors.  The court agreed that the employees did not assign work with independent judgment “because the decisions were made according to parameters set by management or to equalize employee workloads,” and similarly did not responsibly direct other employees because the work was routine and generally established by management’s own work orders.  Regarding effectively recommending discipline, the court rejected the employer’s reliance on evidence that the four employees filled out warning forms issued to workers who disobeyed safety rules, noting that this was done either at the explicit direction of managers or to “simply implement[] in a routine fashion the requirement that they warn employees who did not comply with certain workplace rules.”  Regarding effectively recommending reward, the court upheld the Board’s finding that evidence of the putative supervisors’ involvement in pay raises received by other employees was inconclusive because it did not show what effect, if any, the recommendations had on the employer’s ultimate decisions.  Finally, the court held that the Board did not abuse its discretion in overruling the employer’s election objections on the basis of the challenged statements which did not meet the standard for objectionable third-party conduct.

The court’s unpublished opinion is here.

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Administrative Law Judge Decisions

Lifeway Foods, Inc.  (13-CA-146689, et al.; JD-67-15)  Niles, IL.  Administrative Law Judge Mark Carissimi issued his decision on December 21, 2015.  Charges filed by Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, AFL-CIO-CLC, Local Union No. 1.

Service Employees International Union, Local 87 (Universal Building Maintenance)  (20-CB-153693, et al.; JD(NY)-47-15)  San Francisco, CA.  Administrative Law Judge Joel P. Biblowitz issued his decision on December 22, 2015.  Charges filed by individuals.

Elite Ambulance Inc.  (31-CA-122353, et al.; JD(SF)-53-15)  Los Angeles, CA.  Administrative Law Judge Dickie Montemayor issued his decision on December 23, 2015.  Charges filed by International Association of EMTs and Paramedics (IAEP)/NAGE/SEIU Local 5000.

Red Rock Riding Stables, Inc.  (28-CA-149983; JD(SF)-52-15)  Las Vegas, NV.  Administrative Law Judge Dickie Montemayor issued his decision on December 23, 2015.  Charge filed by an individual.

Minteq International, Inc., and Specialty Minerals, Inc., Wholly Owned Subsidiaries of Mineral Technologies, Inc.  (13-CA-139974; JD-68-15)  Gary, IN.  Administrative Law Judge Arthur J. Amchan issued his decision on December 23, 2015.  Charge filed by International Union of Operating Engineers, Local 150, AFL-CIO.

CVS RX Services, Inc.  (29-CA-141164 and 29-CA-155028; JD(NY)-48-15)  Brooklyn, NY.  Administrative Law Judge Lauren Esposito issued her decision on December 24, 2015.  Charges filed by an individual.

UPS Supply Chain Solutions, Inc.  (12-CA-144578; JD(ATL)-23-15)  Doral, FL.  Administrative Law Judge Donna Dawson issued her decision on December 24, 2015.  Charge filed by International Brotherhood of Teamsters, Local Union No. 769.

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