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Summary of NLRB Decisions for Week of February 27 - March 3, 2017

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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

No Published Decisions Issued.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Queen of the Valley Medical Center  (20-RC-185503)  Napa, CA, February 28, 2017.  The Board denied the Employer’s Request for Review of the Order by Acting Regional Director under NLRB Rule 102.66(c) Concerning Issues to be Litigated at Hearing, the Acting Regional Director’s Decision and Direction of Election, and the Acting Regional Director’s Report Regarding Objections to Election and Certification of Representative as it raised no substantial issues warranting review.  The Acting Regional Director had found that the unit sought by the Petitioner of all of the Employer’s nonprofessional employees, including technical employees, employed at several facilities at the Employer’s acute care hospital in Napa is an appropriate unit under the Board’s Healthcare Rule (Board Rules and Regulations, Sec. 103.30) and deferred the resolution of the eligibility of 14 disputed classifications to the post-election challenge proceedings.  The Acting Regional Director had also directed a mail ballot election.  The Board majority (Members Pearce and McFerran) found that the Acting Regional Director did not abuse her discretion by directing a mail ballot election, but did not rely on the Acting Regional Director’s finding that the eligible employees are “scattered geographically.”  The majority noted that the Acting Regional Director was apparently referring to the substantial distances that many off-duty employees would have to drive in the event of a manual election, which is a relevant consideration that supports a mail ballot election due to the employees’ “scattered” schedules, along with the other considerations cited by the Acting Regional Director. 

Acting Chairman Miscimarra noted that this case involves the Board’s Final Rule on representation case procedures, with which he disagrees for the reasons expressed in his dissenting views in the Final Rule.  He dissented from the majority’s denial of review on the mail ballot issue because he believed substantial questions were presented regarding the appropriateness of a mail ballot election, since (i) eligible employees were not “scattered geographically”, (ii) the parties mutually favored a manual election, (iii) the Board adheres to a rule that favors manual elections, and (iv) the Employer’s proposed two-day election would reasonably have permitted participation by eligible voters.  Acting Chairman Miscimarra agreed with denying review as to the unit and eligibility issues addressed by the Acting Regional Director.  Petitioner ‒ National Union of Healthcare Workers (NUHW).  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

International Provisions, Inc., d/b/a Howard’s Snacks  (01-CA-178461)  Hamden, CT, February 28, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  With respect to the Employer’s contention that the Regional Director improperly issued the subpoena after he had already authorized issuance of a complaint, the Board noted that the General Counsel is vested under Sec. 3(d) of the Act with exclusive prosecutorial authority and, as such, controls the theory of the case and the scope of the investigation.  In addition, the Board noted that the Employer had not refuted the Regional Director’s assertions that he had reconsidered his preliminary decision after receiving additional evidence and that he was continuing to seek further evidence before determining whether to issue a complaint.  Acting Chairman Miscimarra, based on the facts currently before the Board, joined in the denial of the petition to revoke without passing on the breadth of the General Counsel’s prosecutorial authority.  Charge filed by an individual.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

Ampersand Publishing, LLC, Case No. 31-CA-029253 (reported at 361 NLRB No. 88), and Ampersand Publishing, LLC, Case No. 31-CA-028589 (reported at 362 NLRB No. 26) (D.C. Cir. decided March 9, 2017)

In two cases consolidated for decision, the court issued an unpublished judgment denying petitions for review filed by this publisher of a Santa Barbara, California newspaper, the Santa Barbara News-Press, and enforcing the Board’s orders in full.

In 2006, the Employer’s newsroom employees voted 33 to 6 in a Board-conducted election to be represented by the Graphics Communications Conference of the International Brotherhood of Teamsters.  Thereafter, the Employer engaged in a pattern of conduct giving rise to allegations of multiple violations of Section 8(a)(1), (3), and (5) of the Act.  In preparing for the subsequent hearing in 2009 on those allegations, the Employer served subpoenas on a number of current and past employees, which it completed after obtaining the forms from the regional office.  The subpoenas demanded that the employees produce, among other things, affidavits “provided to and/or received from Region 31 . . . pertaining to [the] NLRB charges” scheduled for hearing.  After separate allegations issued with regard to the subpoenas, and an administrative law judge issued a decision, the Board (then-Chairman Pearce and Members Hirozawa and Schiffer), relying on its longstanding and Supreme-Court-approved policy of protecting Board affidavits from disclosure prior to a hearing, found (361 NLRB No. 88) that the subpoenas violated Section 8(a)(1).

After the unfair-labor-practice hearing on the earlier complaint was completed, and an administrative law judge issued a decision, the Board (then-Chairman Pearce and Members Hirozawa and McFerran) found (362 NLRB No. 26), among other unfair labor practices, that the Employer violated Section 8(a)(5) by committing multiple information-request violations, and unilaterally changing an array of terms and conditions of employment, including transferring unit work, assigning unit work to a freelancer, laying off an employee, and announcing a new requirement that unit employees produce at least one story per day, and by engaging in direct dealing and bargaining in bad faith during negotiations for a first contract.  The Board also found that the Employer violated Section 8(a)(3) and (1) by suspending and later discharging an employee because of his union activities, and by transferring unit work with the purpose of undermining the Union in its representative capacity and to discourage employees’ union activities.  Lastly, the Board found that the Employer violated Section 8(a)(1) by issuing a memorandum stating its attorney could represent employees contacted by Board agents investigating charges, and by instructing employees that anything said at a meeting concerning their terms and conditions of employment was confidential.

On review, the two cases were filed and briefed separately, but consolidated by the court for oral argument and decision.  Before the court, the Employer did not contest the factual underpinning of the unfair labor practices, but instead unsuccessfully challenged both Board orders on First Amendment grounds.  First, the court held that, under the dictates of Section 10(e) of Act, the Employer’s primary contention was barred from review because it was not raised to the Board.  Accordingly, on that basis, the court rejected the Employer’s argument that, because the Union had, in an earlier case based on events in 2006 and 2007, been found to have pursued unprotected aims involving the Employer’s editorial discretion, see Ampersand Publ’g, LLC v. NLRB, 702 F.3d 51 (D.C. Cir. 2012), the First Amendment immunized the Employer from any subsequent unfair-labor-practice liability.  Second, the court rejected the Employer’s contention the First Amendment otherwise immunized it from liability for refusing to bargain over reporter staffing decisions because, it claimed, it had a First Amendment right to choose the individuals who write articles for the paper.  The court held that such staffing decisions, in contrast to editorial content decisions, were not protected.  With regard to the Board’s finding that the subpoenas were unlawfully coercive, the court held that substantial evidence supported the Board’s conclusion, and explained:  “The subpoenas were reasonably likely to undermine employees’ confidence that their statements to Board investigators would be kept secret; lacking such confidence, a reasonable employee likely would be less willing to cooperate with Board investigators in the future.”

The court’s unpublished judgment may be found here.

FedEx Home Delivery, Board Case No. 34-CA-012735 and 34-RC-002205 (reported at 361 NLRB No. 55) (D.C. Cir. decided March 3, 2017)

In a published opinion, the D.C. Circuit granted the petition for review filed by this nationwide residential package delivery service in this test-of-certification case, vacated the Board’s order, and denied enforcement.  In doing so, the court rejected the Board’s determination that the Employer’s single-route drivers in Hartford, Connecticut, were employees covered by the Act, rather than independent contractors excluded from coverage under Section 2(3) of the Act.

In 2010, Local Union No. 671, International Brotherhood of Teamsters, filed a petition to represent the drivers.  After the Employer asserted that they were independent contractors, a hearing was held and the regional director issued a decision finding the drivers were employees.  Thereafter, an election was held in which the Union prevailed, 12 to 9.  The Employer filed two election objections.  The Board overruled those objections and certified the Union.  The Employer filed a motion for reconsideration, which the Board denied.

Thereafter, the Employer refused to bargain with the Union and an unfair-labor-practice proceeding ensued.  After the Board issued a decision finding that the Employer’s refusal to bargain violated Section 8(a)(5) and (1) of the Act, it vacated the decision in order to address the D.C. Circuit’s recent remand in FedEx Home Delivery v. NLRB, 563 F.3d 492 (2009) (“FedEx I”).  In FedEx I, the court reversed the Board’s finding that single-route drivers at the Employer’s Wilmington, Massachusetts terminals were employees, and held that the presence or absence of “significant entrepreneurial opportunity for gain or loss“ is the proxy for distinguishing between employees and independent contractors under the Act.  In 2014, the Board (then-Chairman Pearce and Members Hirozawa and Schiffer; Member Johnson dissenting) issued a decision reexamining the merits of the representation proceeding in light of FedEx I and refining its analysis for determining whether workers are employees or independent contractors.  In brief, the Board reaffirmed its longstanding approach that it would consider the non-exhaustive, common-law agency factors, and then determined that it should also evaluate whether the workers are rendering services as part of an independent business.  Applying that refined analysis, the Board concluded that the drivers were statutory employees and that the Employer violated its duty to bargain.

The court disagreed, finding that the matter was “asked and answered in FedEx I,” because the case involved the same parties, virtually identical facts, and the same legal question.  Invoking its law-of-the-circuit doctrine, the court stated that “the same issue presented in a later case in the same court should lead to the same result.”  The court also stated that the Board, having chosen not to seek Supreme Court review in FedEx I, “cannot effectively nullify this court’s decision in FedEx I by asking a second panel of this court to apply the same law to the same material facts but give a different answer.”  Accordingly, the court found it unnecessary to reach the Board’s overruling of the Employer’s election objections.

The court’s opinion is here.

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Administrative Law Judge Decisions

Image First Uniform Rental Service, Inc.  (04-CA-166319; JD(NY)-07-17)  Philadelphia, PA.  Administrative Law Judge Kenneth W. Chu issued his decision on February 27, 2017.  Charge filed by Philadelphia Joint Board, Workers United, a/w SEIU.

Poudre Valley Rural Electric Association, Inc.  (27-CA-167119; JD(SF)-09-17)  Fort Collins, CO.  Administrative Law Judge Gerald M. Etchingham issued his decision on February 27, 2017.  Charge filed by International Brotherhood of Electrical Workers, Local 111, AFL-CIO.

Eastland Food Products, Inc.  (01-CA-182772; JD-12-17)  Cranston, RI.  Administrative Law Judge Andrew S. Gollin issued his decision on March 1, 2017.  Charge filed by United Food and Commercial Workers International Union, Local 328.

Sysco Grand Rapids, LLC  (07-CA-146820, et al.; JD-15-17)  Grand Rapids, MI.  Administrative Law Judge Michael A. Rosas issued his decision on March 2, 2017.  Charges filed by General Teamsters Union Local No. 646, International Brotherhood of Teamsters.

Pizza the Pie, LLC and BECCA Boo Pies, LLC, a single employer  (10-CA-179060; JD-13-17)  Atlanta, GA.  Administrative Law Judge Elizabeth M. Tafe issued her decision on March 3, 2017.  Charge filed by an individual.

Johnston Fire Services, LLC  (10-CA-175681, 10-CA-177542, and 10-RC-177308; JD-14-17)  Paducah, KY.  Administrative Law Judge Keltner W. Locke issued his decision March 3, 2017.  Charges filed by Road Sprinkler Fitters, Local Union 669.

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