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Summary of NLRB Decisions for Week of February 1 - 5, 2016

The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB.  Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.

Summarized Board Decisions

Waffle House, Inc.  (10-CA-121178; 363 NLRB No. 104)  Norcross, GA, February 1, 2016.

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 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive their right to maintain class or collective actions in all forums, whether arbitral or judicial.  Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the Board panel 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.  The Board panel majority also rejected the Respondent’s argument that its arbitration agreement was voluntary because employees could decline employment with Waffle House and seek employment with an employer that does not mandate individual arbitration as a condition of employment.  The Board panel majority ordered the Respondent to post remedial notices at all locations where the agreement was in effect.

In dissent, Member Miscimarra would have dismissed the complaint.  Consistent with his dissent in Murphy Oil, Member Miscimarra concluded that the agreement did not violate the Act.  As such, he found it unnecessary to reach whether agreements containing an exemption permitting filings with administrative agencies should independently be deemed lawful to the extent that they “leave[] open a judicial forum for class and collective claims.”  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Missouri Red Quarries, Inc.  (14-CA-165057; 363 NLRB No. 102)  Ironton, MO, February 1, 2016.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union.  Charge filed by Eastern Missouri Laborers’ District Council.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Samsung Electronics America, Inc. f/k/a Samsung Telecommunications America, LLC  (12-CA-145083; 363 NLRB No. 105)  Tampa, FL, February 3, 2016.

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 808 F.3d 1013 (5th Cir. 2015), the Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by maintaining 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.  Finding that the General Counsel did not meet his burden of proving the allegation, the Board reversed the judge’s finding that the Respondent unlawfully instructed one employee not to discuss her lawsuit with other employees.  The Board also reversed the judge to find that, on two occasions, the Respondent unlawfully interrogated an employee about her protected, concerted activity.  Charge filed by an individual.  Administrative Law Judge Joel P. Biblowitz issued his decision on August 18, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Flyte Tyme Worldwide  (04-CA-115437; 363 NLRB No. 107)  Mahwah, NJ, February 4, 2016.

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 808 F.3d 1013 (5th Cir. 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 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 Board panel 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.  Further, citing Beyoglu, 362 NLRB No. 152 (2015), the Board panel majority rejected the Respondent’s argument that an employee was not engaged in concerted activity by filing a Fair Labor Standards Act lawsuit in federal district court.  Consistent with Murphy Oil, the Board panel majority ordered the Respondent to reimburse the employee and any other plaintiffs for all reasonable expenses and legal fees, with interest, that they incurred in opposing the Respondent’s unlawful motion to compel arbitration of their class or collective claims. 

Dissenting in part, Member Miscimarra would have dismissed the complaint.  Consistent with his dissents in Murphy Oil and Pama Management, 363 NLRB No. 38 (2015), Member Miscimarra concluded that the agreement did not violate the Act and that its enforcement was warranted by the Federal Arbitration Act.  Moreover, because he would find that the Respondent’s agreement was lawful under the NLRA, Member Miscimarra would also find it lawful for the Respondent to file a motion in federal court seeking to enforce the agreement.  Finally, under the circumstances presented here, Member Miscimarra would find that the Board cannot properly require the Respondent to reimburse the employee and other plaintiffs for their attorneys’ fees.  Charge filed by an individual.  Administrative Law Judge Robert A. Giannasi issued his decision on June 3, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Veritas Health Services, Inc., d/b/a Chino Valley Medical Center  (31-CA-107321; 363 NLRB No. 108)  Chino, CA, February 4, 2016.

The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by unlawfully withdrawing recognition from the Union because: (1) the Union’s loss of majority support was tainted by the Respondent’s unremedied, unfair labor practices, (2) the withdrawal of recognition occurred during the extended certification year, and (3) the Respondent failed to introduce evidence of a loss of majority support.  The Board noted that any one of these findings alone was sufficient to justify the conclusion that the withdrawal of recognition was unlawful, and adopted the judge’s finding of the violation on all three independent grounds.  The Board also amended the remedy to include a general bargaining order, a broad cease-and-desist order, and a limited notice-mailing remedy.  In adopting the judge’s recommendation that the Respondent be required to reimburse the General Counsel and the Union for their litigation expenses, the Board did not rely solely on the judge’s finding that the Respondent mounted a frivolous defense, but also relied on the Board’s inherent authority to control its own proceedings including the authority to award litigation expenses through the application of the “bad-faith” exception to the American Rule.  Charge filed by United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO. Administrative Law Judge John J. McCarrick issued his decision on March 3, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Cargill, Inc.  (21-CA-164025; 363 NLRB No. 110)  Fullerton, CA, February 4, 2016.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  Member Miscimarra noted that he would have granted review in the underlying representation case to decide whether the petitioned-for bargaining unit is appropriate under traditional community-of-interest standards.  However, Member Miscimarra agreed that the Respondent did not present any new matters that are properly litigable in this unfair labor practice case.  Accordingly, the Board found that the Respondent had violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union.  Charge filed by United Food and Commercial Workers International Union, Local No. 324.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Tyson Fresh Meats, Inc., a Wholly-Owned Subsidiary of Tyson Foods, Inc.  (19-RD-135795)  Wallula, WA, February 2, 2016.  The Board denied the Union’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  Petitioner—an individual.  Union—United Food and Commercial Workers, Local 1439, affiliated with United Food and Commercial Workers International Union.  Chairman Pearce and Members Hirozawa and McFerran participated.

The Cement League  (02-RC-154016)  New York, NY, February 3, 2016.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review.   In dissent, Member Miscimarra would have granted review to consider whether, under these circumstances, the League’s employer-members had the requisite intent to engage in multiemployer bargaining.  Petitioner—New York and Vicinity District Council of Carpenters.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

Elite Ambulance, Inc.  (31-CA-122353, et al.)  Los Angeles, CA, February 4, 2016.  No exceptions having been filed to the December 23, 2015 decision of Administrative Law Judge Dickie Montemayor 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.  Charges filed by International Association of EMTS and Paramedics (IAEP)/NAGE/SEIU Local 5000.

Red Rock Riding Stables, Inc.  (28-CA-149983)  Las Vegas, NV, February 4, 2016.  No exceptions having been filed to the December 23, 2015 decision of Administrative Law Judge Dickie Montemayor finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and dismissed the complaint.  Charge filed by an individual.

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Appellate Court Decisions

Crew One Productions, Inc., Board Case No. 10-CA-138169 (reported at 362 NLRB No. 8)  (11th Cir. decided February 3, 2016)

In a published opinion, the court in this test-of-certification case granted the petition for review and vacated the Board’s Order issued against this employment referral service.  The Board’s Order had required the service to bargain with the International Alliance of Theatrical Stage Employees after stagehands who had referral contracts to work at various concert venues in the Atlanta, Georgia area voted 116 to 60 in August 2014 to be represented by the Union.  In doing so, the court reversed the Board’s finding that the stagehands were employees rather than independent contractors.

After a hearing was held in the underlying representation case, the Regional Director applied the multi-factored, common-law test for independent-contractor status, and concluded, contrary to the service’s contention, that the stagehands were employees covered by the Act’s protections. Specifically, the Regional Director found that the stagehands perform essential work that is at the core of the service’s regular business as a labor provider, that the service unilaterally dictates the stagehands’ pay rates and method of compensation, and that the stagehands have little control over their hours or over the means and manner of their work.  The Regional Director noted that, although some factors weigh in favor of independent-contractor status, such as stagehands’ ability to reject job offers or work for the service’s competitors, those factors were insufficient to outweigh the factors in support of the stagehands’ employee status.  The service requested review, which the Board denied.  After the Union was certified, the service refused to bargain, a complaint was issued, and ultimately the Board issued its decision finding that refusal to bargain unlawful.

On review, the court engaged in a de novo application of the common-law test to the evidence taken at hearing and concluded that the stagehands are independent contractors.  The court noted that, under its circuit precedent, control was the most important factor, and that here “any control of the stagehands’ work is exercised by the clients,” not the service, which “lacks the expertise to direct stagehands in their work for any particular client.”  The court also relied on the fact that the service does not withhold taxes from stagehands’ pay, which the court explained is a factor given more weight under its circuit precedent.  As further evidence of independent-contractor status, the court held that the agreements that the stagehands were required to sign evidenced the parties’ intent to establish independent-contractor relationships, and that the stagehands’ work is not part of the service’s own business.  The court held that the only factor weighing in support of employee status was that stagehands receive hourly payments, but that “this factor is outweighed by the totality of the other factors, especially the lack of control.”

The court’s opinion is here.

Raymond Interior Systems, Inc., Board Case No. 21-CA-037649 (reported at 355 NLRB No. 209) (D.C. Cir. decided February 5, 2016)

In a published opinion, the court granted in part the Board’s cross-application for enforcement, and remanded one issue to the Board for further consideration.  In doing so, the court granted in part the separate petitions for review filed by the Employer, a construction-industry contractor operating in California, and the Southwest Regional Council of Carpenters.  The court found it unnecessary to reach the question raised by the Painters Union in a third petition for review.

For many years, the Employer was a party to collective-bargaining agreements with the Painters Union, the most recent of which was a pre-hire agreement under Section 8(f) of the Act that covered drywall employees.  In September 2006, the Employer lawfully terminated that agreement and instead signed a confidential settlement agreement with the Carpenters Union providing that it would apply the Carpenters’ 2006 master agreement to drywall employees.  That agreement took effect on October 1.  On October 2, the Employer told its drywall employees that they needed to join the Carpenters Union “that day” if they wanted to continue working.  Later that day, after the Carpenters Union secured signed authorization cards from employees, the Employer signed an agreement recognizing the Carpenters Union as the majority representative of the employees under Section 9(a) of the Act.  The Painters Union filed a charge challenging that recognition.

Regarding the October 2 events, the Board found the Employer unlawfully conditioned continued employment on membership in the Carpenters Union, and unlawfully assisted the Union in obtaining signed authorization cards.  The Board also found that the Employer unlawfully recognized the Carpenters Union and applied its 2006 master agreement to the employees, and, in turn, that the Union unlawfully accepted recognition and applied the master agreement, all at a time when the Union did not represent an uncoerced employee majority.  Further, the Board found that the Carpenters Union unlawfully failed to properly inform employees of their Beck rights to decline union membership and pay agency fees.

The Employer filed a motion for reconsideration, which the Carpenters Union joined.  Among other rulings, the Board rejected the contention that it needed to decide whether the confidential settlement agreement the parties reached in September had constituted a valid Section 8(f) agreement that would not have been invalidated by the subsequent unlawful conduct.  The Board explained that such a finding “would not affect our determination that [the Employer], on October 2, 2006, unlawfully recognized the Carpenters as the [Section] 9(a) representative of its drywall finishing employees.”

On review, the court upheld the Board’s findings that, on October 2, the Employer and the Carpenters Union violated the Act, holding that those findings were supported by settled law and the credited evidence.  The court, however, held that the Board’s refusal to address the legality of the September confidential settlement agreement and its potential status as a Section 8(f) agreement was error.  Discussing cases concerning the general principle that “when a collective bargaining agreement is not a byproduct of unfair labor practices and does not otherwise hinder the policies of the Act, the Board [is] without authority to require [the parties] to desist from giving effect to the [agreement],” the court determined the issue should be remanded to the Board for further consideration.  Regarding the Painters Union’s petition for review, the court stated it would not pass on it because its principal claim—that the Board’s remedy should include alternate benefits coverage equivalent to that specified in 2006 master agreement that was incorporated into the September confidential settlement agreement—could be rendered moot on remand.

The court’s decision is here.

Alden Leeds, Inc., Board Case No. 22-CA-029188 (reported at 357 NLRB No. 20) (D.C. Cir. decided February 5, 2016)

In a published opinion, the court enforced the Board’s order against this manufacturer of swimming pool cleaning supplies and chemicals located in South Kearny, New Jersey, for violating Section 8(a)(3) and (1) of the Act by locking out its production and delivery employees who are represented by United Food and Commercial Workers Local 1245.

During three short negotiating sessions for a successor agreement in 2009, the parties spent much of the time discussing whether to extend the expiring agreement.  Regarding the Union’s health care proposal, the Employer stated that the contribution increases would be too high, and provided summaries of a number of plans, but did not propose any specific plan.  In a phone call between lead negotiators, the Employer stated that the Union was supposed to have employees vote on its health care offer or be locked out.  The Union stated that it did not know what the employees were supposed to be voting on.  Then, in an email on Friday, October 30, the Employer stated that it had “tried [its] best to come up with an alternative medical plan that would cost the same or less than the proposed increase for the Union’s existing plan,” and that the best healthcare plan that it could come up with would require employees to submit to a medical interview to obtain coverage; would not include dental or optical coverage; and would still cost more than the existing plan.  But, the Employer explained, if the parties agreed to eliminate family coverage, the plan would cost less than the existing plan and it would agree to pay $400 towards the deductible of each employee.  The Employer concluded the email by stating that if no agreement was in place by Monday, November 2, it would lock out the employees, which it did.

In July 2011, the Board (Members Becker and Pearce; Member Hayes dissenting in part) found that the Employer unlawfully locked out the employees by failing to provide the Union with clear and timely notice of the conditions of its bargaining offer so that the Union and the employees could evaluate whether to accept the offer and avert the lockout.  Specifically, the Board found that the October 30 email purporting to detail the terms of the offer “was confusing, incomplete, and internally inconsistent.”  The Board further noted that the offer was untimely, coming one business day before the threatened lockout.  Finally, the Board stated that further litigation over whether the Employer limited its backpay liability, by providing the Union with a complete contract proposal on November 9, was unwarranted given that the Employer failed to raise the issue with the Board.

On review, the court held that substantial evidence supported the Board’s decision.  The court stated that a reasonable factfinder could conclude that the October 30 email was unclear because it was the final communication sent before the lockout and “fails to illuminate whether the [Employer] was proposing any or all of its various alternative health care plans, which differed from the existing health care plan under the 2005 collective bargaining agreement.”  The court also pointed to the administrative law judge’s crediting of the testimony of two Union negotiators that they were confused about which health care plan, if any, the Employer was proposing in its email.  Assessing the Employer’s argument, the court advised that, “the question before us is not whether substantial evidence supports the [Employer’s] view, but whether it supports the Board’s,” and that the “Board’s judgment in this case easily commands the deference of this court under the controlling standards of review.”

Finally, the court held the Employer’s remaining contention that its backpay should be limited was jurisdictionally barred from review by Section 10(e) of the Act.  In doing so, the court rejected the Employer’s contentions that not raising the issue to the Board could be excused because, among other things, that Board was apprised of the argument and independently discussed it.  Citing cases, the court explained that, “[S]ection 10(e) bars review of any issue not presented to the Board, even where the Board has discussed and decided the issue.”

The court’s decision is here.

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Administrative Law Judge Decisions

Midland Electrical Contracting Corp.  (29-CA-144562 and 29-CA-144584; JD(NY)-4-16)  Brooklyn, NY.  Administrative Law Judge Mindy E. Landow issued her decision on February 1, 2016.  Charges filed by United Electrical Workers of America, IUJAT, Local 363.

WRS Environmental Services, Inc.  (29-CA-144985 and 29-CA-150191; JD(NY)-5-16)  Yaphank, NY.  Administrative Law Judge Raymond P. Green issued his decision on February 1, 2016.  Charges filed by International Brotherhood of Electrical Workers, Local Union 1049.

Alaris Health at Castle Hill  (22-CA-125034, 22-CA-125866 and 22-CA-140619; JD-09-16)  Union City, NJ.  Administrative Law Judge Michael A. Rosas issued his decision on February 3, 2016.  Charges filed by 1199, SEIU United Healthcare Workers East.

Red Devil Auto & Fleet Repair, LLC  (28-CA-146421 and 28-CA-152886; JD(SF)-04-16)  Surprise, AZ.  Administrative Law Judge Gerald M. Etchingham issued his decision on February 3, 2016.  Charged filed by an individual.

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