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Summary of NLRB Decisions for Week of February 22 - 26, 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

Alternative Entertainment, Inc.  (07-CA-144404; 363 NLRB No. 131)  Bryon Center, MI, February 22, 2016.

The Board affirmed the judge’s findings that the Respondent violated Section 8(a)(1) by:  (a) maintaining a handbook rule prohibiting the unauthorized disclosure of employee compensation and salary information; (b) prohibiting an employee from discussing changes to compensation with his coworkers; and (c) discharging that employee for engaging in protected concerted activity.  In so doing, the Board clarified that the employee engaged in two types of protected activity:  (1) he repeatedly discussed shared concerns about the change in pay structure with his coworkers, and (2) he voiced those concerns to management on several occasions.  The Board also affirmed the judge’s finding that the General Counsel met his initial burden under Wright Line, and that the Respondent’s explanations for the termination were pretextual.  The Board rejected the Respondent’s exception that the judge improperly found that the employee was discharged for complaining to his coworkers about the change in pay structure because that theory was not pled in the complaint, and observed that the Respondent fully litigated this issue during the hearing.

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 also affirmed the judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an arbitration policy that employees were required to sign as a condition of employment.  The majority noted that, by prohibiting the pursuit of class or collective employment claims in both arbitral and judicial forums, the Respondent’s policy expressly restricts protected Section 7 activity, and its maintenance violates Section 8(a)(1).  The majority further noted that the Act does create a right to pursue joint, class, or collective claims if and as available, without the interference of an employer-imposed restraint, and concluded that the Respondent’s policy is such an unlawful restraint.  Citing Murphy Oil and Bristol Farms, 363 NLRB No. 45 (2015), the majority rejected the dissent’s view that finding the policy unlawful runs afoul of employees’ Section 7 right to “refrain from” engaging in protected concerted activity or that Section 9(a) of the Act requires the Board to permit individual employees to prospectively waive their right to engage in concerted legal activity.

Member Miscimarra dissented from the majority’s finding regarding the arbitration policy for the reasons explained in his partial dissenting opinion in Murphy Oil USA, Inc.  In so doing, he noted that Section 9(a) protects the right of every employee as an “individual” to “present” and “adjust” grievances at any time.

Charge filed by an individual.  Administrative Law Judge Michael A. Rosas issued his decision on July 9, 2015.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Apple American Group LLC Applebees, d/b/a Applebees Neighborhood Grill and Bar  (18-CA-103319; 363 NLRB No. 111)  Saint Paul, MN, February 22, 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 Hirozawa found that the Respondent violated Section 8(a)(1) by maintaining a Dispute Resolution Program that required employees, as a condition of employment, to waive their rights to maintain class and collective actions in all forums, whether arbitral or judicial.

Member Miscimarra, dissenting, would have dismissed the complaint. Consistent with his dissents in Murphy Oil USA, Inc. and Beyoglu, 362 NLRB No. 152 (2015), he concluded that the Program did not violate the Act and that its enforcement was warranted by the Federal Arbitration Act.

Charge filed by an individual.  Administrative Law Judge Joel P. Biblowitz issued his decision on September 30, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Midwestern Video Personnel, Inc.  (07-CA-148107; 363 NLRB No. 120)  Spencer, OH, February 22, 2016.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of an informal settlement agreement.  The Board found that the Respondent failed to comply with the terms of the settlement agreement, and, accordingly, deemed all of the allegations in the reissued complaint to be true.  The Board ordered the Respondent to make the Charging Party whole by payment of the remaining balance of backpay as provided for in the settlement agreement, to file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters, and to reimburse the Charging Party for any additional Federal and State income taxes that the Charging Party may owe as a consequence of receiving a lump-sum backpay award in a calendar year other than the year in which the income would have been earned had the Act not been violated.

Charge filed by an individual.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

United Food and Commercial Workers Union, Local 4, Affiliated with United Food and Commercial Workers Union (Safeway, Inc.)  (19-CB-009660; 363 NLRB No. 127)  Whitefish, MT, February 22, 2016.

Following a Ninth Circuit remand, the Board reversed the Administrative Law Judge and concluded that a Respondent local union violated its duty of fair representation when it failed to provide the Charging Party, a Beck objector, with information sufficient to allow her to determine whether to challenge her dues reduction.  In accordance with well-established law, the Board held that the Respondent’s failure to provide an independent verification of its underlying expenses, and not merely a review based on the Respondent’s own representations, was insufficient to satisfy its duty to the Charging Party.

Charge filed by an individual.  Administrative Law Judge James M. Kennedy issued his decision on May 20, 2008.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Haynes Building Services, LLC  (31-CA-093920; 363 NLRB No. 125)  Monrovia, CA, February 23, 2016.

The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by requiring all job applicants to sign a Notice to Applicants, which stated that all disputes were to be submitted to obligatory arbitration, because employees would reasonably read that provision as prohibiting employees from bringing charges before the Board.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the judge as to the Respondent’s maintenance and enforcement of a similar statement in its Employment Agreement, finding that the Respondent violated Section 8(a)(1) by threatening to file a motion in state court to dismiss the Charging Party’s wage and hour class action lawsuit brought in violation of the Employment Agreement’s mandatory arbitration clause.  In so doing, the majority applied 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).  Contrary to the judge, the majority found that the Respondent required employees to agree to the arbitration provisions in the Employment Agreement, citing the earlier requirement to sign the similar arbitration provision in the Notice to Applicant and the Employment Agreement’s directive that employees address any concerns prior to signing.

Relying on his dissenting opinion in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s holding that the Respondent violated Section 8(a)(1) by applying the Employment Agreement to require individual arbitration.  Member Miscimarra would find that Section 8(a)(1) does not create a substantive right for employees to insist on class-type treatment of non-NLRA claims.  In his view, the arbitration provision in the Employment Agreement does not infringe on NLRA rights; thus, any claim that the Charging Party brought should be subject to arbitration as warranted by the Federal Arbitration Act.

Charge filed by an individual.  Administrative Law Judge Keltner W. Locke issued his decision on February 7, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Great Lakes Restaurant Management, LLC  (03-CA-143685; 363 NLRB No. 130)  Buffalo, NY, February 23, 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 granted the General Counsel’s motion for summary judgment in part and found that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that explicitly requires employees to waive their right to maintain class or collective actions in all forums, whether arbitral or judicial.  The majority also found that the mandatory arbitration agreement separately violates Section 8(a)(1) because employees would reasonably believe that it bars or restricts their right to file and pursue unfair labor charges with the Board.  Member Miscimarra dissented from these two findings.  However, the Board panel unanimously dismissed the allegation that the Respondent unlawfully enforced the mandatory arbitration agreement by requiring applicants to sign the agreement because there was no claim or evidence that the Respondent ever sought to enforce the arbitration agreement in a judicial proceeding. 

Charge filed by the Fast Food Workers Committee.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Ralph’s Grocery Company  (21-CA-073942; 363 NLRB No. 128)  Compton, CA, February 23, 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’s Mandatory and Binding Arbitration Policy (“MBAP”) violated Section 8(a)(1).  First, the majority found that the MBAP unlawfully restricted employees’ Section 7 rights to pursue class or collective employment claims in all forums, whether arbitral or judicial.  The majority observed that the MBAP had previously been found unconscionable by the Ninth Circuit, so there was no risk of conflict with the Federal Arbitration Act. 

Second, citing U-Haul Co. of California, 347 NLRB 375 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007), the majority found that the MBAP interfered with employees’ right to file charges with the Board.  The majority found that the MBAP as a whole was not written in a manner reasonably calculated to assure employees that their right to file charges was unaffected, even though, halfway through six pages of fine print, the MBAP did state that employees retained the right to file charges.  The majority found that the ambiguity surrounding the right to file charges was further demonstrated by an employment application that contained a one-paragraph summary of the MBAP, but no reference to employees’ rights to file Board charges.  Finally, the majority found that the MBAP could be reasonably read to suggest that filing charges with the Board would be futile because the final resolution of the dispute would lie with the arbitrator, not with the Board.  The majority disagreed with Member Miscimarra’s dissenting position that the Act allows an employer to unilaterally restrict employees’ rights to resolve unfair labor practices through the Board’s processes so long as employees retain the right to file charges with the Board.

Third, the majority affirmed the judge’s finding that the MBAP unlawfully required employees to keep information related to an arbitration claim confidential.  Member Miscimarra concurred in this finding, but only because the employer demonstrated no countervailing interest to justify the limitation. 

For the reasons stated in his partial dissent in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s findings that (1) the MBAP 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 policy.  Member Miscimarra also dissented from the majority’s finding that the MBAP unlawfully interfered with employees’ rights to file charges with the Board.  In Member Miscimarra’s view, the Supreme Court and the Board have long held that an agreement may lawfully provide for the arbitration of NLRA claims and such an agreement does not unlawfully interfere with Board charge-filing where, as here, the agreement expressly preserves the right to file Board charges.  Member Miscimarra rejected the majority’s assertion that a labor union may bind employees it represents to an agreement to arbitrate their unfair labor practice claims, but an individual employee may not lawfully enter into such an agreement.

Charge filed by an individual.  Administrative Law Judge Eleanor Laws issued her decision on July 31, 2013.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

RGIS, LLC  (28-CA-136313; 363 NLRB 132)  Mesa, AZ, February 23, 2016.

On a stipulated record, and 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 Hirozawa found that the Respondent violated Section 8(a)(1) by maintaining a dispute resolution program 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.  Dissenting, Member Miscimarra would find that the maintenance of agreements between employers and employees that waive class and collective actions do not violate Section 8(a)(1), especially where, as here, the program contains an opt-out provision.  The Board unanimously found that the General Counsel did not litigate the question of whether the program was independently unlawful because employees would reasonably believe that it bars or restricts their right to file charges with the Board.

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

***

Vista Del Sol Health Services, Inc. d/b/a Vista Del Sol Healthcare  (31-CA-115318, et al.; 363 NLRB No. 135)  Los Angeles, CA, February 24, 2016.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by instructing employees not to talk to the Union and to leave the Respondent’s premises, more strictly enforcing its tardiness policy in response to employees’ union activities, interrogating employees about whether they had engaged in union activities, polling employees about their union sympathies, and threatening to close the facility.  The Board affirmed the judge’s finding that the Respondent also violated Section 8(a)(1) by coercively interrogating an employee about union house visits and employees’ distribution of union authorization cards, but found it unnecessary to pass on the judge’s finding that this conduct also unlawfully created the impression of surveillance.  Further, the Board affirmed the judge’s finding that the Respondent violated Section 8(a)(3) by discharging nine employees for engaging in union activities.   The Board reversed the judge and found that the Respondent violated Section 8(a)(1) by granting a discretionary wage increase to two employees during the Union’s organizing campaign.  Finally, in the absence of exceptions, the Board adopted certain other Section 8(a)(1) and (5) violations found by the judge, along with the judge’s finding that a bargaining order is appropriate pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

Charges filed by SEIU-ULTCW, Service Employees International Union, United Long Term Care Workers.  Administrative Law Judge Eleanor Laws issued her decision on June 5, 2015.  Members Miscimarra, Hirozawa, and McFerran participated.

***

FAA Concord H Inc. d/b/a Concord Honda  (32-CA-066979, 31-CA-070343 and 32-CA-072231; 363 NLRB No. 136)  Concord, CA, February 24, 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), the Board adopted the Administrative Law Judge’s finding 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 rights to pursue class or collective actions in employment-related claims in all forums, whether arbitral or judicial.  The Board reversed the judge’s finding that the Respondent unlawfully enforced the mandatory arbitration agreement, because the employees only pursued their class action through arbitration, and not in court, so the Respondent never sought to enforce the mandatory arbitration agreement as a waiver of employees’ rights to pursue class or collective actions in all forums.  The Board adopted the judge’s findings that the Respondent violated Section 8(a)(5) by unilaterally implementing a bonus plan, by unilaterally changing employees’ work schedules, and by directly dealing with employees in holding an election to establish an alternative work-week. 

Charges filed by Automotive Machinists Lodge No. 1173, International Association of Machinists and Aerospace Workers.  Administrative Law Judge Eleanor Laws issued her decision on October 23, 2013.  Chairman Pearce and Members Hirozawa and McFerran participated.

***

UnitedHealth Group, Inc.  (02-CA-118724; 363 NLRB No. 134)  New York, NY, February 25, 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 Hirozawa affirmed the Administrative Law Judge’s finding that the Respondents violated Section 8(a)(1) by maintaining an arbitration policy 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 Respondents’ argument that their policy was lawful because it permitted employees to file charges with administrative agencies, including with the Board.  The majority modified the judge’s finding that the Respondents had violated Section 8(a)(1) by enforcing the arbitration policy in two federal lawsuits.  The majority agreed with the Respondents that Section 10(b) precluded finding a violation for one of the lawsuits because it had concluded more than 6 months before the charge.  Rejecting the Respondents’ argument that the complaint did not allege unlawful enforcement, the majority found that the Respondents’ enforcement in the second lawsuit did violate Section 8(a)(1) because, under Pergament United Sales, Inc., 296 NLRB 333 (1989), the allegation was closely connected to the subject matter of the complaint and had been fully litigated.

Member Miscimarra concurred in part and dissented in part.  Consistent with his dissent in Murphy Oil USA, Inc., he concluded that the arbitration policy did not violate the Act and that its enforcement was warranted by the Federal Arbitration Act.  Given his views on the merits, he found it unnecessary to pass on the 10(b) and due-process issues addressed by the majority. 

Charge filed by individuals.  Administrative Law Judge Raymond P. Green issued his decision on August 5, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

AWG Ambassador, LLC  (28-CA-118801; 363 NLRB No. 137)  Las Vegas, NV, February 25, 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 rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  The majority rejected the Respondent’s arguments that (1) an exemption in the arbitration agreement allowing employees to file charges with administrative agencies, including the Board, legitimized the agreement; and (2) because multiple employees refused to sign the arbitration agreement and were not disciplined for doing so, the arbitration agreement was voluntary rather than mandatory.  For the reasons stated in his partial dissent in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s holding that the Respondent acted unlawfully in requiring employees to waive their right to pursue employment-related class or collective actions. 

Charge filed by an individual.  Administrative Law Judge Eleanor Laws issued her decision on October 17, 2014.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Labor Ready Southwest, Inc., a subsidiary of TrueBlue, Inc.  (31-CA-072914; 363 NLRB No. 138)  North Hollywood, CA, February 26, 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 maintaining a mandatory arbitration agreement that (1) employees reasonably would believe bars or restricts their access to the Board and its processes, and (2) 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 unanimously rejected the General Counsel’s argument that the judge erred by failing to consider an allegation that the Respondent unlawfully attempted to enforce the arbitration agreement, finding that the issues stipulated for resolution by the parties did not encompass that allegation.

For the reasons explained in his partial dissenting opinion in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s finding that the arbitration agreement violated the Act because it required employees to waive their rights to pursue class or collective actions regarding non-NLRA claims.  Member Miscimarra also dissented from the majority’s finding that the agreement unlawfully interferes with Board charge-filing; in his view, any reasonable interpretation of the agreement reveals that it has no impact on NLRB charge-filing.

Charge filed by an individual.  Administrative Law Judge Gerald A. Wacknov issued his decision on April 29, 2014.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Cowabunga, Inc. (10-CA-151454; 363 NLRB No. 133)  Alpharetta, GA, February 26, 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 Hirozawa granted the General Counsel’s motion for summary judgment, finding 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.  The majority also found that the Respondent unlawfully enforced that provision by filing a motion in federal district court to dismiss, or, in the alternative, to stay and compel the Charging Party to submit his class action wage and hour claim to individual arbitration.  The Board unanimously found that the arbitration agreement was independently unlawful because employees would reasonably believe that it bars or restricts their right to file unfair labor practice charges with the Board.  

For the reasons explained in his partial dissenting opinion in Murphy Oil USA, Inc., Member Miscimarra would find that the agreement’s class-action waiver and the Respondent’s action to enforce the agreement were lawful.  In his view, the NLRA creates no substantive right for employees to engage in class treatment of non-NLRA claims; a waiver of non-NLRA claims does not infringe on any NLRA rights or obligations; and enforcement of non-NLRA class action waivers is warranted by the Federal Arbitration Act. 

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

***

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Samuel Pressure Vessel Group d/b/a Steel Fab, Inc.  (10-RD-162329)  Lebanon, VA, February 22, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s determination to hold the petition in abeyance pending resolution of the outstanding unfair labor practice charge on the ground that it raised no substantial issues warranting review.  Petitioner – an individual.  Union – International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO.  Chairman Pearce and Members Hirozawa and McFerran participated.

Northwestern Corporation d/b/a Northwestern Energy (19-RC-154336) Anaconda, MT, February 23, 2016.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order dismissing the Petitioner’s petition for an Armour-Globe self-determination election on the ground that it raised no substantial issues warranting review.  In denying review, Member Miscimarra noted that he would do so applying traditional community of interest standards, and not Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), for the reasons stated in his dissent in Macy’s, Inc., 361 NLRB No. 4 (2014).  Petitioner – International Brotherhood of Electrical Workers, Local 44.  Members Miscimarra, Hirozawa, and McFerran participated. 

Luckinbill, Inc.  (14-RC-157045)  Edmond, OK, February 25, 2016.  The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s Decision and Certification of Results of Election on the ground that it raised no substantial issues warranting review.  Petitioner – Road Sprinklerfitters Local Union 669, U.A., AFL-CIO.  Members Miscimarra, Hirozawa, and McFerran participated.

C Cases

Relco Locomotives, Inc.  (18-CA-153845 and 18-CA-156999)  Albia, IA, February 22, 2016.  The Board approved the parties’ formal settlement agreement and ordered the Employer to cease threatening employees with discipline for attending Board hearings as subpoenaed witnesses, requiring them to use accrued or unpaid leave to do so, and discharging them for testifying as union witnesses at a Board hearing and in order to discourage union membership.  The Board also required the Employer to pay backpay with interest to one employee and to post notices at its facility.  Charges filed by International Association of Sheet Metal, Air, Rail, and Transportation Workers.  Members Hirozawa, Miscimarra, and McFerran participated.

Riccelli Enterprises, Inc.  (03-CA-130137)  North Syracuse, NY, February 22, 2016.  The Board remanded the case to the Regional Director for appropriate action.

Archer Daniels Midland Company (ADM)  (25-CA-143250, 25-CA-145578 and 25-RC-142796)  Decatur, IL, February 23, 2016.  No exceptions having been filed to the January 12, 2016 decision of Administrative Law Judge Melissa M. Olivero 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.  The Board remanded the case to the Regional Director for further action.  Charges filed by Bakery, Confectionery, Tobacco Workers & Grain Millers International Union, AFL-CIO, CLC Local 103-G.

***

Appellate Court Decisions

NBC Universal, Inc., Board Case No. 02-CA-115732 (reported at 360 NLRB No. 69) (D.C. Cir. decided February 23, 2016)

In a published opinion, the court in this test-of-certification case remanded in full the Board’s order issued against this producer of television programming.  In brief, the court concluded that it was unable to discern the rationale underlying a significant portion of the Board’s decision in the underlying representation case, and thus remanded the case for clarification.

For several decades, the Union—the National Association of Broadcast Employees & Technicians – Communication Workers of America, AFL-CIO, including Local 11 (New York), Local 41 (Chicago) and Local 53 (Los Angeles)—has represented various classifications of electrical and technical employees at NBC’s local stations.  As consumers increasingly turned to other platforms for news—including 24/7 cable channels, the internet, cell phones and other “out of home” sources such as television screens installed in taxi cabs and at gas stations—NBC decided to restructure its model for creating and producing local news.  As a result, NBC created a Content Center and, in doing so, created the job classification of content producer, which has functions that overlap with other job classifications represented by the Union.

The representation case began with a series of unit-clarification petitions filed by the Union’s locals in New York, Chicago, and Los Angeles.  In October 2011, after briefing by the parties, an Acting Regional Director issued a decision on the petitions that found that all employees covered under the Master Agreement executed between NBC and the Union’s New York local constitute a single, nationwide bargaining unit and that, under the standard set forth in Premcor, Inc., 333 NLRB 1365 (2001), the content producers should be included in that covered unit because they perform the same basic functions that were previously performed by other unit employees.  In September 2013, the Board (Chairman Pearce and Members Hirozawa and Schiffer) denied NBC’s request for review.  Subsequently, NBC refused to bargain in order to seek review in the court of appeals.

The court (Circuit Judges Tatel and Millett, and Senior Circuit Judge Edwards), in a decision authored by Judge Edwards, remanded the case for the Board to further clarify the factual and legal bases for its decision.

The court’s decision is here.

Matson Terminals, Inc., Board Case No. 20-CA-132200 (reported at 361 NLRB No. 50) (D.C. Cir. decided February 26, 2016)

In an unpublished judgment in this test-of-certification case, the court enforced the Board’s order issued against this operator of a stevedoring facility in Honolulu, Hawaii, for refusing to bargain after 43 of its container vessel stevedoring superintendents and senior superintendents voted in an election to be represented by the Hawaii Teamsters & Allied Workers Union, Local 996.

Prior to the election, the Employer asserted that the superintendents were supervisors under Section 2(11) because they had authority to assign, responsibly direct, adjust grievances, discipline, and hire.  After holding a hearing, the Acting Regional Director issued a decision and direction of election finding that the Employer had not met its burden of establishing supervisory status.  First, applying the principles of Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006), the Acting Regional Director found that the superintendents do not assign or responsibly direct employees because assignments are prepared by managers and dispatchers, and any changes are strictly controlled by collective-bargaining agreement rules.  Moreover, any direction by superintendents consisted only of ad hoc, discrete instructions, and the superintendents had no authority to take corrective action and were not held responsible for employee performance.  Second, the Acting Regional Director found that the Employer failed to prove that the superintendents adjust grievances, discipline, or hire employees, because they perform only a reportorial role, while their superiors settle grievances, issue discipline, and make hiring decisions.  Third, the Acting Regional Director found that the Employer failed to prove that the superintendents exercise independent judgment within the meaning of the Act in performing any purportedly supervisory task.  As the Board recognized, implementation of new technology transformed the Employer’s operations in recent years, leaving most instructions given by superintendents too routine and too heavily circumscribed by company policies and plans, or the dictates of the collective-bargaining agreement, to require independent judgment.

On review, the court found “no basis in the record to disturb the Regional Director’s well-reasoned determination,” and enforced the Board’s bargaining order.

The court’s unpublished judgment is here.

Dixie Electric Membership Corp., Board Case No. 15-CA-019954 (reported at 361 NLRB No. 107) (5th Cir. decided February 25, 2016)

In a published opinion, the court enforced the Board’s order issued against this operator of an electrical power cooperative in Baton Rouge, Louisiana, to remedy its unilateral removal of two job classifications from the electric operators unit covered by its collective-bargaining agreement with International Brotherhood of Electrical Workers, Local Union 767.

In August 2010, the Employer began making plans to adjust the duties of the two systems operator positions and to reclassify them as supervisors.  In December, it removed both positions from the unit.  After a hearing, the Administrative Law Judge found that the Employer violated Section 8(a)(5) and (1) by unilaterally eliminating the two systems operator positions from the represented unit, thus unlawfully altering the scope of the unit without the Union’s consent.  Alternatively, the judge found that the Employer failed to bargain with the Union over its decision to transfer the operators’ work out of the unit, as well as the effects of the decision.  In doing so, the judge rejected the Employer’s argument that it was privileged to remove the operators from the unit because they were supervisors.  The judge reasoned that whether the operators were supervisors or not is irrelevant because the Employer had voluntarily chosen to include them in the unit.  Lastly, the judge found that a unit clarification petition that the Employer filed more than 4 months into the term of the collective-bargaining agreement was untimely.  The Board adopted those findings.

On review, the court agreed, holding that substantial evidence supported the Board’s unfair-labor-practice finding, as well as its finding that the unit clarification petition was untimely.

The court’s opinion is here.

Contemporary Cars, Inc. d/b/a Mercedes Benz of Orlando and Auto Nation, Inc., Board Case No. 12-CA-026126 (reported at 361 NLRB No. 143) (7th Cir. decided February 26, 2016)

In a published opinion, the court enforced the Board’s order issued against this automotive dealership in Maitland, Florida, for its unfair labor practices that were, as the court put it, “aimed at coercing their employees’ choices in the run-up to a December 2008 union election and frustrating their employees’ protected concerted activities after the election.”  The majority of the Employer’s 37 service technicians who voted in that election chose to be represented by the International Association of Machinists and Aerospace Workers.

The Board (Chairman Pearce and Members Johnson and Schiffer) found that the Employer violated Section 8(a)(1) by maintaining an overly broad work rule in its employee handbook prohibiting all solicitation on company property; creating the impression that its employees’ union activities were under surveillance, and interrogating employees regarding those activities; soliciting employee grievances, implying they would be fixed, and later announcing they had been fixed by the Employer’s demotion of two supervisors; informing employees it would not recognize the Union until there was a contract; and issuing one employee a documented coaching because of his protected concerted activities.  The Board also found that the Employer violated Section 8(a)(3) and (1) by discharging a key organizer because of his protected union activities.  Finally, the Board found that the Employer violated Section 8(a)(5) and (1) by unilaterally laying off four employees, suspending skill-level reviews, reducing the specified hours for performing prepaid-maintenance work, and by refusing to provide the Union with relevant requested information.

The court (Circuit Judges Manion, Rovner, and Hamilton) held that substantial evidence supported the Board’s unfair-labor-practice findings.  Regarding the Board’s ordering of a nationwide posting to remedy the Employer’s overly broad no-solicitation rule contained in the employee handbook distributed nationwide, the court rejected the Employer’s challenge, finding the nationwide posting “well-tailored” to remedy the unfair labor practice.  Concerning the Board’s findings that the Employer violated its duty to bargain by taking a number of unilateral actions—made after the election but before the Board’s eventual resolution of election challenges that resulted in certification of the Union—the court recognized the Board’s doctrine that, under such circumstances, “an employer acts at its peril in making changes in terms and conditions of employment.”  Further, the court “decline[d] the [Employer’s] invitation to depart from this established law and to undermine effective enforcement of the Act while an employer’s challenge to an election is pending.”  In rejecting that challenge, the court also held that no “compelling economic considerations” existed that would excuse the Employer’s duty to bargain.

Judge Manion wrote separately, joining the court’s decision in all aspects except with regard to the backpay ordered to remedy the four layoffs.  Noting the length of time that had passed since the 2008 violations, he wrote “to highlight the need for back-pay mitigation.”

The court’s opinion is here.

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Administrative Law Judge Decisions

Walmart Stores, Inc. (16-CA-096240, et al., 21-CA-105401, 26-CA-093558, and 13-CA-107343; JD-03-16) Lancaster, TX, February 23, 2016.  Errata to January 21, 2016 decision of Administrative Law Judge Geoffrey Carter.  Errata   Amended Decision.

 

Alaris Health at Rochelle Park (22-CA-124968, 22-CA-125889 and 22-CA-140560; JD-17-16) Rochelle Park, NJ.  Administrative Law Judge Michael A. Rosas issued his decision on February 25, 2016.  Charges filed by 1199, SEIU United Healthcare Workers East.

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