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Summary of NLRB Decisions for Week of February 16 - 19, 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

Vince & Sons Co. and Jo Mo Enterprises, Inc. d/b/a Vince & Sons Pasta, alter-ego and/or Golden State Successor  (13-CA-123828; 363 NLRB No. 121)  Bridgeview, IL, February 17, 2016.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the compliance specification.  Accordingly, the Board ordered the Respondent to pay the three discriminatees backpay accrued to the date the Respondent makes them valid offers of reinstatement, plus interest accrued to the date of payment.  Charge filed by United Food and Commercial Workers Local 1546.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Apogee Retail, NY, LLC d/b/a Unique Thrift Store  (02-CA-133989, 02-CA-134059, and 02-CA-137166; 363 NLRB No. 122)  Bronx, NY, February 17, 2016.

The Board dismissed the complaint, affirming the Administrative Law Judge’s dismissal of allegations that the Respondent violated:  (1) Section 8(a)(1) by telling employees that wages were frozen pending the outcome of contract negotiations; and (2) Section 8(a)(5) by bargaining in bad faith by refusing to agree to the Union’s proposed union-security and dues check-off provisions.  Charges filed by Local 338, RWDSU/UFCW.  Administrative Law Judge Raymond P. Green issued his decision on July 30, 2015.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Voith Industrial Services, Inc.  (09-CA-075496, et al.; 363 NLRB No. 116)  Louisville, KY, February 17, 2016.

In this successorship case, the Board found that the Respondent Employer violated:  (1) Section 8(a)(3) by implementing a plan to avoid hiring former employees of the predecessor, and discriminating against or refusing to hire those former employees to avoid a successorship obligation to recognize and bargain with the Teamsters; (2) Section 8(a)(5) by refusing, as a successor, to recognize and bargain with the Teamsters as the representative of its vehicle processing employees; (3) Section 8(a)(2) by rendering assistance and support to the Respondent Union (UAW), and recognizing and bargaining with the UAW as the collective-bargaining representative of the vehicle processing employees when the UAW did not represent an uncoerced majority of the unit employees, and at a time before the commencement of normal vehicle processing operations when the Employer did not employ a representative segment of its ultimate vehicle processing employee complement; and (4) Section 8(a)(1) by telling an applicant that, if he were hired, he would have to become a member of the UAW; informing an applicant that, to be hired, he would have to refrain from engaging in Section 7 activity such as striking; threatening to discharge employees if they did not wear a safety vest bearing the UAW logo; and denying the Teamsters access to employees while granting the UAW access to them.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa also found that the Respondent Employer violated Section 8(a)(5) by unilaterally setting initial terms and conditions of employment for unit employees without first giving notice to and bargaining with the Teamsters about those changes, and by unilaterally subcontracting some of the unit work.  The majority also found that the Respondent Employer violated Section 8(a)(3) by engaging in hiring discrimination against Teamsters-affiliated applicants who were not previously employed by the predecessor, in addition to those previously employed by the predecessor, and found that reinstatement and backpay remedies should be awarded to any Teamsters Local 89-affiliated individuals who did not previously work for the predecessor but who filed individual applications with the Respondent Employer.  In addition, the majority found that the remedies should also extend to all of the employees on the predecessor’s seniority list, not just those who filed applications with the Respondent Employer.

Member Miscimarra concurred in part and dissented in part.  He agreed that the Respondent Employer should be considered a legal successor whose refusal to recognize and bargain with the Teamsters violated Section 8(a)(5).  He also agreed that the Respondent Employer violated Section 8(a)(3) by its discriminatory refusal to hire 85 applicants who had previously been employed by the predecessor.  He found, however, that the remedies should be limited to those 85 applicants and should not be extended to those applicants who had not worked for the predecessor or to employees of the predecessor who had not filed applications with the Respondent Employer.  He also found, contrary to the majority, that the Respondent Employer did not violate Section 8(a)(5) by setting initial terms and conditions of employment for the vehicle processing employees or by unilaterally subcontracting out some of the unit work.  Finally, he agreed that the Respondent Employer violated Section 8(a)(1) by threatening to send employees home if they refused to wear a safety vest bearing the UAW logo, but he added a personal footnote concerning his rationale for so finding.

The Board granted the General Counsel’s request that the Respondent Employer be ordered to make whole any employees whose hiring was delayed by its discriminatory hiring scheme for any losses resulting from the delay in hiring them.  The Board denied the General Counsel’s and Charging Party’s request that the Respondent Employer be ordered to remit to the Teamsters dues that would have been deducted and remitted to it had the Respondent Employer recognized the Teamsters as the employees’ bargaining representative.  The Board also made additional modifications to the judge’s remedy.  A Board panel majority (Chairman Pearce and Member Hirozawa, Member Miscimarra dissenting) included a provision requiring the Respondent Employer to post the Respondent Union’s remedial notice, along with its own. 

Charges filed by General Drivers, Warehousemen & Helpers, Local Union 89, affiliated with the International Brotherhood of Teamsters.  Administrative Law Judge Bruce D. Rosenstein issued his decision on December 21, 2012.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Voith Industrial Services, Inc.  (09-CA-097589; 363 NLRB No. 109)  Louisville, KY, February 17, 2016.

Relying on its decision in Voith Industrial Services (Voith I), 363 NLRB No. 116 (2015), the Board affirmed the Administrative Law Judge’s finding that the Respondent is a legal successor to Cooper Auto Handling.  The Board therefore concluded that the Respondent was not permitted to relitigate that issue in this case, and, as the legal successor, the Respondent was obligated to recognize and bargain with Teamsters Local 89.  The Board also concluded that the record in this case and in Voith I contained abundant evidence of the Respondent’s animus toward the Teamsters.  For the reasons stated by the judge, the Board agreed that the Respondent violated Section 8(a)(3) when it disciplined and discharged two, Teamsters-affiliated employees, and that their discipline and discharge also violated Section 8(a)(4).  Regarding the Section 8(a)(4) violations, the Board noted that the discharged employees served as witnesses for the General Counsel at the hearing in Voith I, which occurred during the same time period as the events at issue in this case. The Board also modified two of the judge’s conclusions of law in accordance with its finding that the Respondent violated Section 8(a)(5) by unilaterally implementing changes to its attendance policy and by unilaterally adopting a new requirement that employees load rail cars during non-daylight hours.  The Board clarified that these are Katz-type violations, not general refusals to recognize and bargain on request with the Union.  In so doing, however, the Board also noted that, in Voith I, the Respondent was found to have refused to recognize and bargain with the Union generally, and reminded the Respondent that it is subject to the affirmative bargaining order issued in that decision.

In addition to providing the relief ordered for the discharged employees, the Board amended the remedy to provide make-whole relief for all unit employees who may have suffered losses as a result of the Respondent’s unlawful changes to the attendance and rail car loading policies, to be determined in compliance. To the extent that the Respondent maintains that adversely affected unit employees would have been disciplined or discharged even in the absence of its unlawful unilateral changes, the Board found that the Respondent is entitled to litigate that issue in the compliance proceeding.  The Board also ordered a notice-reading remedy.

Charge filed by General Drivers, Warehouseman & Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters.  Administrative Law Judge Paul Bogas issued his decision on January 23, 2014.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Leukemia and Lymphoma Society  (16-CA-152958; 363 NLRB No. 124)  Fort Worth, TX, February 17, 2016.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Respondent’s motion for summary judgment on the ground that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  The majority found that the pleadings and the Respondent’s motion demonstrate that a genuine issue exists concerning the alleged discriminatee’s supervisory status, and that Section 102.24(b) of the Board’s Rules does not require the General Counsel to support his opposition to the motion with affidavits or other documentary evidence contrary to the evidence submitted by the Respondent with its motion.

Member Miscimarra, dissenting, would have issued a Notice to Show Cause why the Respondent’s motion should not be granted.  In his view, the Respondent produced sworn declarations and other evidence supporting its position that the alleged discriminatee was a supervisor; the General Counsel’s conclusory statements in opposition failed to identify material facts genuinely in dispute, and thus failed to show why a hearing was necessary.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Leukemia and Lymphoma Society  (16-CA-152958; 363 NLRB No. 123)  Fort Worth, TX, February 17, 2016.

The Board denied the Respondent’s motion to dismiss the complaint allegations that the Respondent’s handbook rules are unlawful.  The Board found no merit in the Respondent’s contention that the allegations are barred by Section 10(b).  Contrary to the Respondent’s argument that the General Counsel improperly initiated the amended charge that included these allegations, the Board found that the Region acted in compliance with the Board’s Rules and precedent by identifying the handbook rules that potentially violated Section 8(a)(1) and by providing the Charging Party with an opportunity to amend the charge to include those allegations.

Member Miscimarra concurred in the denial of the Respondent’s motion to dismiss.  However, he noted that his colleagues appeared not only to deny the motion to dismiss, but also to reject the Respondent’s arguments on the merits.  In his view, what occurred during the Region’s investigation was a matter that should be addressed by an administrative law judge based on an evidentiary record developed at a hearing.  In the absence of a factual record, Member Miscimarra would not reach the issue of whether the Board lacks jurisdiction over the handbook allegations.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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FedEx Freight, Inc.  (32-CA-164936; 363 NLRB No. 126)  Stockton, CA, February 18, 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) by refusing to recognize and bargain with the Union.  Charge filed by International Brotherhood of Teamsters, Local 439.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Network Capital Funding Corporation  (21-CA-107219; 363 NLRB No. 106)  Irvine, CA, February 18, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 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 and enforcing an arbitration agreement that required employees, as a condition of employment, to waive their right to pursue class or collective actions in all forums, whether arbitral or judicial.  Although the agreement was silent on whether employees could arbitrate claims on a class or collective basis, the majority found that the Respondent interpreted and applied the agreement to restrict all employment disputes to individual arbitration, and that employees would reasonably read the agreement to that effect.  The majority further found that signing the Respondent’s agreement was a mandatory condition of employment.  The majority rejected the Respondent’s arguments that:  (1) the complaint was time-barred under Section 10(b); and (2) an exemption in the agreement allowing employees to file charges with administrative agencies, including the Board, legitimized the agreement. 

For the reasons stated in his partial dissent in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s findings that:  (1) the agreement violates Section 8(a)(1) because it waives the right to participate in class or collective actions regarding non-NLRB employment claims; and (2) by filing a motion to compel arbitration, the Respondent unlawfully enforced its agreement.  Member Miscimarra did not reach the issues of whether the agreement was a condition of employment, or whether the inclusion of an administrative agency exemption legitimized the agreement. 

Charge filed by an individual.  Administrative Law Judge William Nelson Cates issued his decision on March 5, 2014.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Battelle Memorial Institute  (19-RC-135888; 363 NLRB No. 119)  Richland, WA, February 18, 2016.

A Board panel majority consisting of Chairman Pearce and Member McFerran denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order dismissing its petition on the ground that it raised no substantial issues warranting review.

The Petitioner sought to represent a unit of carpenter and millwright employees who had historically been represented by the Intervenor in a multi-craft unit consisting of 13 local trade unions.  The Petitioner had been affiliated with the Intervenor since its inception, and had functioned as the local union representing the carpenters and millwrights.  However, after a 15-year dispute between the Petitioner’s and the Intervenor's respective parent organizations, the Intervenor expelled the Petitioner from the Council.  Following this disaffiliation, the Intervenor directed that the approximately 21 carpenters and millwrights in the Employer’s maintenance department be represented by two other of its local unions.  The Petitioner sought to sever the carpenters and millwrights from the existing maintenance unit and to represent them in a separate unit.  The Regional Director evaluated the petition under the Board’s craft severance standard as articulated in Mallinckrodt Chemical Works, 162 NLRB 387, 393 (1966), and dismissed the petition. 

The Board panel majority found no compelling reason to reconsider well-established standards created under Mallinckrodt.  The majority further found that the Petitioner had not established that the Regional Director’s decision raised a substantial question of law or policy by departing from reported Board precedent, or that it contained clear, substantial factual errors prejudicial to the Petitioner. 

Member Miscimarra, dissenting, would have granted review.   He found that:  (1) the Regional Director’s dismissal is contrary to Electric Boat Corporation, 1-RC-124746 (2015) (unpublished decision) where the Board, under similar circumstances, affirmed a regional director’s decision directing an election in a separate unit of carpenters and joiners; (2) the Request for Review raises substantial questions as to whether the Regional Director’s complex factual findings are clearly erroneous; and (3) this case presents a substantial public policy question.  

Petitioner – Pacific Northwest Regional Council of Carpenters Local 2403.  Intervenor – Hanford Atomic Metal Trades Council.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Fuji Food Products, Inc.  (21-CA-095997; 363 NLRB No. 118)  Santa Fe Springs, CA, February 19, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 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:  (1) maintaining a mandatory Confidential Information and Inventions Agreement (Agreement) that requires employees, as a condition of employment, to waive their rights to maintain class and collective actions in all forums, whether arbitral or judicial; and (2) enforcing the Agreement by filing a motion in state court to compel the Charging Party to submit her class action claims to individual arbitration.  The majority found separately that the Agreement also violated Section 8(a)(1) by causing employees reasonably to believe that they were barred or restricted from filing unfair labor practice charges with the Board.

Member Miscimarra concurred in his colleagues’ finding that the Agreement violated Section 8(a)(1) because employees would reasonably read it to restrict or preclude filing charges with the Board.  However, dissenting consistent with his partial dissenting opinion in Murphy Oil USA, Inc., Member Miscimarra would find that the Respondent’s maintenance and enforcement of the Agreement 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.

Charge filed by an individual.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on July 15, 2014.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Durham School Services, L.P.  (32-CA-165556; 363 NLRB No. 129)  Hayward and Livermore, CA, February 19, 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.  The Board noted that, in denying the Employer’s Request for Review in the underlying representation proceeding, a majority of the Board had agreed with the Regional Director that the Employer had untimely raised its argument challenging the validity of the Board’s revised representation case procedures.  In a personal footnote, Member Miscimarra noted that he had expressed his disagreement with these procedures in his dissent to the Final Rule, and that he would have granted review in the underlying representation proceeding on the basis that it raised substantial questions regarding the effect and application of the Final Rule.  While he remains of that view, Member Miscimarra stated that he agreed that the Respondent did not present any new matters that are properly litigable in this unfair labor practice case, and, therefore, he agreed with the decision to grant the motion for summary judgment.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) by refusing to recognize and bargain with the Union.  Charge filed by Teamsters Local 853.  Members Miscimarra, Hirozawa and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Blommer Chocolate Company of California, LLC  (32-RC-131048)  Union City, CA, February 17, 2016.  A Board panel majority consisting of Chairman Pearce and Member McFerran directed a second election in the petitioned-for unit.  The majority adopted the hearing officer’s finding that the Employer engaged in objectionable conduct that could reasonably have affected the results of the election by maintaining three overbroad work rules:  (1) a confidentiality rule that prohibits employees from disclosing employee lists; (2) a computer use rule that allows employees to use their work computers for personal uses, but prohibits them from expressing personal opinions; and (3) a prohibition on employee use of the company name and logo.  Dissenting in part, Member Miscimarra agreed with the majority that the confidentiality rule related to employee lists was overbroad, but he would not find that the work rules are otherwise objectionable.  Moreover, even assuming that the rules are objectionable, he would not find that the work rules could reasonably have affected the election results because: (1) the mere maintenance of overbroad work rules does not necessarily require that an election be set aside; and (2) the election margin was substantial and it is improbable that the lopsided election results were attributable to the work rules.  Petitioner – Bakers Union Local 125, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union.  Chairman Pearce and Members Miscimarra and McFerran participated.

Linwood Care Center  (04-RM-145463)  Linwood, NJ, February 17, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s dismissal of its petition on the ground that it raised no substantial issues warranting review.  In dismissing the petition, the Regional Director found that the Employer failed to establish objective considerations in support of its petition based on his administrative investigation and parallel unfair labor practice charges filed by the Union.  Thereafter, the Regional Director issued a consolidated complaint on those charges.  Because the Regional Director found merit to the charges and because the alleged conduct, if proven, directly affects the petition, the Board found that the Regional Director properly dismissed the petition.  Member Miscimarra agreed that the Regional Director did not abuse his discretion by dismissing the petition, and noted that the petition is subject to reinstatement, if appropriate, after final disposition of the unfair labor practice charges.  Member Miscimarra also noted that he favors a reconsideration of the Board’s blocking charge doctrine for the reasons expressed in the dissenting views that were contained in the Board’s representation election rule, but he acknowledged that the Board has declined to change materially its blocking charge doctrine.  Petitioner – Linwood Care Center.  Union – 1199 SEIU United Healthcare Workers East.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

JAM Productions, LTD, Event Productions, Inc., Standing Room Only, Inc., and Victoria Operating Co.  (13-RC-160240)  Chicago, IL, February 19, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Order denying the Employer’s motion to dismiss the petition on the ground that it raised no substantial issues warranting review.  The Board noted that the Employer’s allegation that a supervisor’s prounion conduct tainted the Petitioner’s showing of interest has been raised in a related unfair labor practice case, in which a hearing will soon commence.  Petitioner – Theatrical Stage Employees Union, Local No. 2, IATSE.  Members Miscimarra, Hirozawa, and McFerran participated.

C Cases

Service Employees International Union, Local 87 (Exemplar Enterprises, Inc.)  (20-CB-151336)  San Francisco, CA, February 16, 2016.  No exceptions having been filed to the January 5, 2016 decision of Administrative Law Judge Mary Miller Cracraft finding that the Respondent engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and ordered the Respondent to take the action set forth in the recommended Order.  Charge filed by Exemplar Enterprises, Inc.

Allways East Transportation, Inc.  (03-CA-128669 and 03-CA-133846)  Wappingers Falls, NY, February 17, 2016.  The Board denied Respondent’s motion to strike General Counsel’s exceptions and brief and motion for tolling of time to file an answering brief to exceptions and brief supporting exceptions.

Pharmedium Services, LLC  (15-CA-143030)  Memphis, TN, February 18, 2016.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena.  The Board indicated that:  (1) to the extent that the Employer has provided some of the requested material, it is not required to produce that information again; (2) to the extent that the subpoena encompasses some documents that the Employer believes in good faith are subject either to the attorney-client privilege or to the attorney work product doctrine, the Board’s Order is without prejudice to the Employer’s prompt submission of a privilege log; (3) the Board’s Order is also without prejudice to the Employer’s ability to seek a confidentiality agreement regarding documents that involve privacy concerns recognized under Board law; and (4) in considering the petition to revoke, the Board evaluated the subpoena as clarified by the Region in its opposition brief.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Pharmedium Services, LLC  (15-CA-144181)  Memphis, TN, February 18, 2016.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena.  The Board indicated that:  (1) to the extent that the Employer has provided some of the requested material, it is not required to produce that information again; (2) to the extent that the subpoena encompasses some documents that the Employer believes in good faith are subject either to the attorney-client privilege or to the attorney work product doctrine, the Board’s Order is without prejudice to the Employer’s prompt submission of a privilege log; (3) the Board’s Order is also without prejudice to the Employer’s ability to seek a confidentiality agreement regarding documents that involve privacy concerns recognized under Board law; and (4) in considering the petition to revoke, the Board evaluated the subpoena as clarified by the Region in its opposition brief.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Pharmedium Services, LLC  (15-CA-144416)  Memphis, TN, February 18, 2016.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena.  The Board indicated that:  (1) to the extent that the Employer has provided some of the requested material, it is not required to produce that information again; (2) to the extent that the subpoena encompasses some documents that the Employer believes in good faith are subject either to the attorney-client privilege or to the attorney work product doctrine, the Board’s Order is without prejudice to the Employer’s prompt submission of a privilege log; (3) the Board’s Order is also without prejudice to the Employer’s ability to seek a confidentiality agreement regarding documents that involve privacy concerns recognized under Board law; and (4) in considering the petition to revoke, the Board evaluated the subpoena as clarified by the Region in its opposition brief.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

King Soopers, Inc.  (27-CA-129598)  Denver, CO, February 19, 2016.  The Board issued a Notice and Invitation to File Briefs regarding whether the Board should continue to treat a discriminatee’s reasonable search-for-work and interim employment expenses as an offset that reduces the amount of interim earnings subtracted from gross backpay.  Parties and interested amici may file briefs by March 18, 2016, and parties may file responsive briefs by April 1, 2016.

United States Postal Service  (07-CA-142926)  Swartz Creek, MI, February 19, 2016.  The Board granted the General Counsel’s request for special permission to appeal the Administrative Law Judge’s order adopting the Respondent’s settlement offer to which all other parties objected.  In addition, the Board invited the parties and interested amici to address the following questions:

  1. May the Board, consistent with Section 3(d) of the National Labor Relations Act, continue to permit administrative law judges to issue a “consent order,” subject to review by the Board, incorporating the terms proposed by a respondent to settle an unfair labor practice case, to which no other party has agreed, over the objection of the General Counsel? 
  2. If Section 3(d) does allow the Board’s current practice, should the Board alter or discontinue the practice as a matter of policy?

Charge filed by Branch 256, National Association of Letter Carriers (NALC), AFL-CIO.  Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.

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Appellate Court Decisions

ConAgra Foods, Inc., Board Case No. 09-CA-089532 (reported at 361 NLRB No. 113) (8th Cir. decided February 19, 2016)

In a published opinion, the court set aside in part and enforced in part the Board’s order issued against this Troy, Ohio food-processing facility, and remanded for further proceedings.  In doing so, the court rejected the proposition that, for an employee statement to constitute solicitation of union support, there must be a request to sign an authorization card accompanied by the presentation of a card.

In 2011, the United Food and Commercial Workers International Union, Local 75, began a campaign to organize employees at the Troy facility.  In September 2012, a union supporter met with two fellow employees in the restroom and asked whether they would sign union authorization cards.  Both readily agreed to sign cards.  In a follow-up conversation, also in the restroom, one of employees provided the number of the locker that they shared so that the union supporter could leave authorization cards there for them to sign.  After the union supporter placed cards in the locker, she walked to the production floor where the two employees were working together and said as she passed by, “I put those cards in your locker.”  On that credited evidence, the Board (Chairman Pearce and Member Schiffer, Member Miscimarra dissenting) found that the union supporter had not engaged in solicitation, and therefore the Employer’s subsequent verbal warning issued to her for violating its lawful no-solicitation policy violated Section 8(a)(3) and (1).  The Board concluded that, during “this brief interaction,” there was no request to sign cards “and there were no cards presented for signature.”  The Board explained that it had consistently held that “drawing the ‘solicitation’ line at the presentation of a card for signature makes sense because it is that act which ‘prompts an immediate response from the individual or individuals being solicited and therefore presents a greater potential for interference with employer productivity if the employees are supposed to be working,’” quoting Wal-Mart Stores, 340 NLRB 637, 639 (2003), enf. denied in relevant part, 400 F.3d 1093 (8th Cir. 2005).

The Board also found that the Employer violated Section 8(a)(1) by stating an overly broad rule in a letter posted to employees that they would reasonably construe as prohibiting all discussion about unions during working time.  Lastly, the Board granted the General Counsel’s motion for default judgment of allegations contained in an earlier 2011 complaint that were the subject of a settlement agreement, finding that the unlawful warning issued to the union supporter for solicitation constituted a breach of that agreement’s noncompliance provisions.

On review, the court (Chief Judge Riley, Circuit Judges Beam and Kelly) disagreed with the Board’s reasoning.  First, citing cases, the court held that the Board “has not ‘consistently held’ that a presentation of an authorization card for signature at the time of solicitation is required.”  Second, the court held that “a categorical rule such as this would be contrary to the Act’s policy of balancing the rights of employers and employees,” by “tilt[ing] that balance toward employees by providing a road map to organizers on how to garner support for union membership on working time and in work areas,” and by increasing the likelihood of work disruption.  Third, the court held that the requirement that an authorization card be presented for signature at the time of the solicitation is “patently unreasonable,” because an Employer would be unable to apply a valid no-solicitation rule to stop an employee, for example, “from requesting support for union organization from another employee in the most explicit terms, putting a pen in his fellow employee's hand, so long as he directs the solicited party to sign a card only at the end of the shift.”  The court also rejected the Board’s reliance on the brevity of the remark, stating its view that the “right to organization would wax to include de facto solicitation that the employer could not show to be sufficiently disruptive[.]”

The court (with Judge Kelly dissenting on this single issue) then held that substantial evidence did not support the Board’s finding.  Rather, it stated that “all indications in the record point to [employee]’s statement as part of a prolonged effort of soliciting union support,” which it held would constitute solicitation.  As the court majority put it, “where an employee makes a statement that is intended and understood as an effort to obtain a signed card, and that effort is part of a concerted series of interactions calculated to acquire support for union organization, that employee has engaged in solicitation subject to censure under an employer’s validly enacted and applied no-solicitation policy.”  Judge Kelly would have concluded to the contrary because, by the time the remark was made on the production floor, the employees had already agreed to sign cards.

Based on its reversal of that solicitation finding, which was the basis of the default judgment, the court vacated the default judgment.  However, it affirmed the Board’s finding that the Employer violated the Act by maintaining an overly broad rule in the posted letter to employees, and enforced that portion of the Board’s order.  Accordingly, the court remanded the case to the Board to determine whether that unlawful rule finding could serve as a basis for granting the motion for default judgment.

The court’s decision is here.

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Administrative Law Judge Decisions

Johnson Controls, Inc.  (10-CA-151843; JD-14-16)  Florence, SC.  Administrative Law Judge Keltner W. Locke issued his decision on February 16, 2016.  Charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, and its affiliated Local Union No. 3066.

EYM King of Missouri, LLC, d/b/a Burger King (14-CA-148915, 14-CA-150321, and 14-CA-150794; JD-10-16) Kansas City, MO, February 17, 2016.  Errata to February 9, 2016 decision of Administrative Law Judge Christine E. Dibble.  Errata   Amended Decision.

Alaris Health at Boulevard East  (22-CA-125076, et al.; JD-15-16)  Guttenberg, NJ.  Administrative Law Judge Michael A. Rosas issued his decision on February 18, 2016.  Charges filed by 1199, SEIU United Healthcare Workers East.

Prime Healthcare Services-Encino Hospital, LLC d/b/a Encino Hospital Medical Center31-CA-140827, 31-CA-140844, and 31-CA-141016; JD(SF)-07-16)  Los Angeles, CA.  Administrative Law Judge Lisa D. Thompson issued her decision on February 18, 2016.  Charges filed by SEIU United Healthcare Workers – West.

Alaris Health at Castle Hill (22-CA-125034; JD-09-16) Union City, NJ, February 19, 2016.  Errata to February 3, 2016 decision of Administrative Law Judge Michael A. Rosas.  Errata   Amended Decision.

Alaris Health at Harborview (22-CA-125023, 22-CA-125882, and 22-CA-140591; JD-12-16) Jersey City, NJ, February 19, 2016.  Errata to the February 11, 2016 decision of Administrative Law Judge Michael A. Rosas.  Errata   Amended Decision.

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