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Summary of NLRB Decisions for Week of February 6 - 10, 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

Trans-Ed, Inc.  (22-CA-170891; 365 NLRB No. 25)  Patterson, NJ, February 6, 2017.

The Board affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) when it discharged an employee for engaging in protected activity.

Charge filed by an individual.  Administrative Law Judge Raymond P. Green issued his decision on September 22, 2016.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Supreme Airport Shuttle LLC  (05-RC-187864; 365 NLRB No. 27)  Baltimore, MD, February 7, 2017.

The Board granted in part the Employer’s Appeal from the November 18, 2016 Order of the Regional Director Denying Employer’s Motion to Require Petitioner’s Counsel to Withdraw.  The Regional Director had denied the motion after determining that he lacked the authority to grant the relief sought.  Without reaching the merits of the appeal, the Board determined that the Regional Director, pursuant to the authority delegated by the Board to Regional Directors with respect to representation proceedings and subject to the Board’s review, has the authority to decide whether the relief sought by the Employer is warranted.  Accordingly, the Board ordered the Regional Director to reconsider the Employer’s motion and conduct any investigation necessary to decide the motion.  The Board advised that the Regional Director may examine the relevant rules of the Maryland Attorneys’ Rules of Professional Conduct and the American Bar Association’s Model Rules of Professional Conduct.  The Board also advised that the Regional Director should be “sensitive” to the concern expressed by the Supreme Court and other federal appellate courts about the “tactical use of disqualification motions to harass opposing counsel.”

Petitioner – Shuttle Drivers Association of BWI.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Laborers’ International Union of North America, Local Union No. 91 (Council of Utility Contractors, Inc. and Various Other Employers)  (03-CB-163940; 365 NLRB No. 28)  Niagara Falls, NY, February 7, 2017.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(1)(A) by removing the Charging Party from its out-of-work referral list in response to his Facebook posts criticizing the Respondent and its business manager.  Applying the balancing test set forth in Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417 (2000), the Board found that the Charging Party’s Section 7 right to press the Union to change its policies, especially those policies affecting members’ employment opportunities, outweighed the Respondent’s vague claim that Charging Party’s Facebook posts damaged both its reputation in general as well as the reputation of its business manager.

Charge filed by an individual.  Administrative Law Judge Arthur J. Amchan issued his decision on September 7, 2016.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Georgia Auto Pawn  (10-CA-132943 and 10-CA-142161; 365 NLRB No. 26)  Atlanta, GA, February 8, 2017.

The Board adopted the Administrative Law Judge’s findings that both the disciplinary warning and discharge of the Charging Party were lawful.  Although Members Pearce and McFerran found that one of the two stated reasons for the warning referred to the Charging Party’s protected, concerted activity and that discipline for such conduct demonstrated animus, they nonetheless agreed with the judge that the Charging Party would have been disciplined for the other stated reason, her insubordination.  Acting Chairman Miscimarra, while agreeing with his colleagues that the Respondent lawfully disciplined the Charging Party for insubordination, found it unnecessary to reach or pass on the judge’s finding that the Charging Party’s conversations with coworkers about performance evaluations and pay increases constituted protected, concerted activity.  He noted his disagreement with precedent cited by the judge holding that conversations about wages are inherently concerted.

Charges filed by an individual.  Administrative Law Judge William N. Cates issued his decision on October 21, 2015.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Local 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO (Paramount Industries, Inc.  (07-CB-149555; 365 NLRB No. 30)  Croswell, MI, February 10, 2017.

A Board majority (Acting Chairman Miscimarra and Member McFerran) reversed the Administrative Law Judge and found that the Respondent’s newly-announced resignation and dues checkoff policy violated Section 8(b)(1)(A).  The majority found that the Respondent’s maintenance of this policy, which instructs members who wish to resign from membership and dues deduction to present written resignations with photo identification at the Respondent’s hall or, if they feel that appearing in person presents an undue hardship, to make other arrangements to verify their identities, imposed a restriction on resignation like that found unlawful in Machinists Local Lodge 1414 (Neufeld Porsche-Audi, Inc.), 270 NLRB 1330 (1984), and its progeny.  Similarly, the majority found that the policy impermissibly restrained the revocation of dues checkoff authorizations, which also implicates the Section 7 right to refrain from union activity.  Dissenting, Member Pearce would not find that the policy imposed restrictions on resignations or revocations of dues deductions, but were instead procedural guidelines for members to follow to submit resignations as a safeguard against fraudulently-submitted resignations.  Additionally, Member Pearce would find that the policy’s “other arrangements” provision provided members with alternate means to submit their resignations or dues revocations if in-person submissions were burdensome.

Charge filed by an individual.  Administrative Law Judge David I. Goldman issued his decision on October 26, 2015.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Stein Industries, Inc.  (29-CA-134711; 365 NLRB No. 31)  Amityville, NY, February 10, 2017.

A Board majority (Members Pearce and McFerran) affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by prematurely declaring impasse and unilaterally implementing changes to employees’ terms and conditions of employment.  Applying the multifactor test set forth in Taft Broadcasting Co., 163 NLRB 475 (1967), the majority found that this was the first time that the Respondent had directly participated in bargaining with the Union, the Union never stated that any issue was nonnegotiable and demonstrated its willingness to be flexible in demands while urging the Respondent to do the same, the parties met for only a limited number of sessions prior to the Respondent’s unilateral implementation of new terms and conditions of employment, and the evidence failed to establish that the parties had exhausted the prospects of reaching agreement or shared a contemporaneous understanding of deadlock at the time the Respondent declared impasse.  Dissenting, Acting Chairman Miscimarra would dismiss the complaint and find that the parties had reached impasse in light of his determination that both parties refused to deviate from their initial positions on critically important economic issues.  He noted that a party cannot avoid a lawful impasse merely by making bare promises of flexibility and that parties are not required to engage in “fruitless marathon discussions.”

Charge filed by the New York City and Vicinity District Council of Carpenters.  Administrative Law Judge Steven Davis issued his decision on April 27, 2015.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

UPS Ground Freight, Inc.  (01-RC-190144)  Enfield, CT, February 10, 2017.  The Board denied the Employer’s request for review of the Regional Director’s Decision and Direction of Election ordering a mail ballot election as it raised no substantial issues warranting review. The Board also denied the Employer’s request for expedited review or to impound the ballots.  Acting Chairman Miscimarra restated his disagreement with the Board’s Final Rule but agreed with the decision to deny review.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Sisters’ Camelot  (18-CA-100514)  Minneapolis, MN, February 10, 2017.  The Board denied the Charging Party’s request for review of the General Counsel’s decision affirming the Regional Director’s compliance determination in the underlying proceeding.  Charge filed by an individual.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

Columbia College Chicago, Board Case No. 13-CA-073486 (reported at 363 NLRB No. 154) (7th Cir. decided February 2, 2017)

In a published opinion, the court enforced in part and vacated in part the Board’s order issued against this private, independent college specializing in arts, communication, and media, which employs 1,250 part-time faculty who teach about 75 percent of the courses offered and are represented by the Part-Time Faculty Association at Columbia College Chicago—IEA/NEA.  The court also remanded the case for the Board to reconsider the remedy in light of the court’s rejection of one of the Board’s unfair-labor-practice findings.

The Board (Members Hirozawa and McFerran; Member Miscimarra, dissenting) found that the Employer violated Section 8(a)(5) and (1) by failing to bargain over the effects of its decision to reduce the number of credit hours awarded for certain courses.  In the absence of exceptions, the Board adopted the Administrative Law Judge’s findings that the Employer also violated Section 8(a)(5) by engaging in overall bad-faith bargaining over a successor contract, by setting unlawful preconditions to bargaining, and by refusing to provide information.  Similarly, the Board adopted the judge’s findings that the Employer violated Section 8(a)(3) and (1) by notifying the Union president that she faced discipline for engaging in protected activity and by discriminating against her in teaching assignments, and violated Section 8(a)(1) by maintaining an overbroad work rule.  In considering the remedy, the Board majority disagreed with the judge and determined that the Employer’s bad-faith bargaining and conduct away from the bargaining table warranted ordering it to reimburse the Union’s negotiating expenses.

On review, the court summarily enforced the Board’s order as to the uncontested violations, but reversed and vacated the Board’s effects-bargaining finding and award of negotiating expenses.  First, regarding effects bargaining, the court (Circuit Judges Bauer, Flaum, and Hamilton) explained that the Board had applied the “clear and unmistakable waiver” standard, rather than the “contract coverage” analysis that the Seventh Circuit had applied in Chicago Tribune Co. v. NLRB, 974 F.2d 933 (7th Cir. 1992).  Applying that analysis, the court held that the Employer’s reduction of the number of credit hours for a course was covered by the parties’ contract, which included a management-rights clause that gave the Employer sole discretion to modify “all aspects of educational policies and practices,” including the “modification [or] alteration . . . of any . . . course.”  In light of that finding, and in the absence of evidence that the parties intended to treat effects bargaining separately from that management right, the court rejected the Board’s finding that the change violated Section 8(a)(5).  The court remanded the case for the Board to determine whether the negotiating expenses remedy “is still warranted in this case without considering the effects bargaining behavior.”  On that issue, Judge Hamilton authored a short concurrence to emphasize that remand of the negotiating expenses issue was necessary but that there was “plenty of evidence of other egregious conduct by the employer here” which would provide the Board “ample discretion to impose the remedy again on remand.”

The court’s opinion is here.

Ohio Edison Company, and FirstEnergy Generation Corp., Board Case Nos. 08–CA–099595 and 06-CA-092312 (reported at 362 NLRB No. 88) (6th Cir. decided February 10, 2017)

In a published opinion, the court granted the petition for review filed by these electrical utilities and vacated the Board decision that found that the Employer violated Section 8(a)(5) and (1) by failing to bargain with IBEW, Local Union No. 272, AFL-CIO, CLC, which represents 290 employees at its Shippingport, Pennsylvania plant, before implementing a change to its program for recognizing and rewarding employees for their continued employment.

The Board (Chairman Pearce and Member Hirozawa; Member Miscimarra, dissenting in part) based its unilateral-change finding on a September 2012 phone call in which the Employer’s director of labor relations informed the Union president of various planned changes to employment benefits, including modifications to its educational-reimbursement, death-benefit, and long-term disability policies.  She also informed him that the Employer planned to alter the recognition program’s service-award eligibility dates from every 5 years to every 10 years.  The Union president responded, “oh no you don’t,” and told the director that he would have to “file a Board charge” and have “to come to Akron for this one.”  The next day, the Employer announced the changes to the employees.  On those facts, the Board found that the Union requested bargaining over the proposed changes to the recognition program and that the Employer understood the request and failed to provide an opportunity to bargain.

On review, the court disagreed with the Board’s finding that the Union had made a request to bargain over the proposed changes to the recognition program.  The court stated that, to constitute a request for bargaining, the Union representative “must do more than merely protest the change,” and that, here, the Union president’s comments “expressed disapproval, to be sure; but that establishes only protest.”  The court further held that the Board had not looked to the surrounding circumstances in evaluating the comments, and that the record, as a whole, “instead supports the view of the Board’s dissenting member.”

The court’s opinion is here.

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Administrative Law Judge Decisions

Navopache Electric Cooperative, Inc.  (28-CA-160585; JD(SF)-04-17)  Lakeside, AZ.  Administrative Law Judge Dickie Montemayor issued his decision on February 6, 2017.  Charge filed by International Brotherhood of Electrical Workers, Local Union No. 387, AFL-CIO.

General Drivers, Warehousemen & Helpers Local Union No. 89 (affiliated with the International Brotherhood of Teamsters)  (09-CB-157269; JD-5-17)  Kansas City, MO and Louisville, KY.  Administrative Law Judge Donna N. Dawson issued her decision on February 6, 2017.  Charge filed by Jack Cooper Holdings d/b/a Jack Cooper Transport Co.

Unite Here! Local 5 (20-CB-163657 and 20-CB-166055; JD-(SF)-50-16) Honolulu, HI, February 6, 2017.  Errata to January 18, 2017 decision of Administrative Law Judge Lisa D. Thompson.  Errata   Amended Decision.

American Medical Response of Southern California  (31-CA-169600 and 31-CA-169601; JD(SF)-08-17)  San Bernardino, CA.  Administrative Law Judge Lisa D. Thompson issued her decision on February 6, 2017.  Charges filed by USW Local 12-01853.

Dawn Trucking Inc.  (29-CA-171337 and 29-CA-174915; JD(NY)-03-17)  Rosedale, NY.  Administrative Law Judge Benjamin W. Green issued his decision on February 8, 2017.  Charges filed by an individual.

Greenway Desert Car Wash, LLC  (28-CA-171662; JD(SF)-05-17)  Phoenix, AZ.  Administrative Law Judge Mara-Louise Anzalone issued her decision on February 10, 2017.  Charge filed by an individual.

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