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Summary of NLRB Decisions for Week of January 11 - 15, 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

Micropower USA Corp. (02-CA-130858, et al.; 363 NLRB No. 93)  New York, NY, January 11, 2016.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the amended compliance specification.  Accordingly, the Board ordered the Respondent to pay the 10 discriminatees the amounts stated in the amended compliance specification, plus interest accrued to the date of payment.  Charges filed by Professionals at Micropower New York State United Teachers and individuals.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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S.E. Clemons Inc.  (31-CA-127976 and 31-CA-130804; 363 NLRB No. 94)  Adelanto, CA, January 12, 2016.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the consolidated complaint.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union following the Union’s certification as the exclusive collective-bargaining representative of unit employees, and by failing and refusing to furnish relevant and necessary information requested by the Union.  The Board ordered the Respondent to bargain with the Union upon request and to furnish the requested information.  The Board stated that it would construe the certification year as commencing on the date that the Respondent begins bargaining in good faith with the Union.  Charge filed by Sheet Metal, Air, Rail, Transportation Workers Local Union 105, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery and FPR-II, LLC d/b/a Leadpoint Business Services  (32-CA-160759; 363 NLRB No. 95)  Milpitas, CA, January 12, 2016.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent, a joint employer, 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 found that the Respondent failed and refused to bargain in violation of Section 8(a)(5) and (1) and ordered the appropriate remedies, including an extension of the certification year.  Member Miscimarra, who dissented in the underlying representation case with regard to the joint employer standard as restated and applied there, agreed with his colleagues that the Respondent failed to present any new matters properly litigable in this unfair labor practice proceeding.  Charge filed by Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Avis Budget Group, Inc.  (12-RC-153554)  Orlando, FL, January 11, 2016.  The Board denied the Intervenor’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  The Board stated that, to the extent that the Intervenor’s Request for Review also addresses the Regional Director’s implicit denial of the Intervenor’s motion to dismiss the petition, the request did not raise any substantial issues warranting review.  In so finding, the Board noted that the Petitioner’s negligent failure to effectuate service of the petition as required by Section 102.60(a) of the Board’s Rules and Regulations did not require dismissal of the petition.  Petitioner—Teamsters Local Union No. 385, International Brotherhood of Teamsters.  Intervenor—United Service Workers Union, Local 74, International Union of Journeymen and Allied Trades.  Chairman Pearce and Members Hirozawa and McFerran participated.

Threshold Enterprises, Limited (32-RD-155852) Scotts Valley, CA, January 12, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order Directing Hearing and Notice of Hearing on Objections on the ground that it raised no substantial issues warranting review.  The Board also denied the Employer’s requests for a stay of the hearing and for a bill of particulars regarding the objection to be heard.  Petitioner—an individual.  Union—General Teamsters Local 912, International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and McFerran participated.

The Trustees of Columbia University in the City of New York  (02-RC-143012)  New York, NY, January 13, 2016.  The Board issued a Notice and Invitation to File Briefs regarding its December 23, 2015 grant of the Petitioner’s Request for Review and the Employer’s Conditional Request for Review.  The Board invited parties and amici to address questions concerning: whether to modify or overrule Brown University, 342 NLRB 483 (2004); if so, the appropriate standard for determining whether graduate student assistants engaged in research are statutory employees, including graduate student assistants engaged in research funded by external grants; assuming they are statutory employees, whether a unit composed of graduate student assistants, terminal masters degree students, and undergraduate students would be an appropriate unit; and assuming they are statutory employees, what standard the Board should apply to determine whether they constitute temporary employees.  Briefs by the parties not exceeding 50 pages in length and briefs by amici not exceeding 25 pages in length may be filed by February 29, 2016.  Parties only may file responsive briefs not exceeding 25 pages in length by March 14, 2016.  

Jack Cooper Transport Company, Inc.  (07-RC-142973)  Dimondale, MI, January 13, 2016.  By Erratum issued January 14, 2016, the Board revoked the Certification of Results inadvertently issued on January 13 (see case number link) and remanded the matter to the Regional Director for further processing.  Noting that no exceptions have been filed to the hearing officer’s report overruling a determinative challenged ballot in a rerun election held September 25, 2015, the Board adopted the hearing officer’s recommendation that the ballot be opened and counted, and that a Revised Tally of Ballots be issued.

First Student, Inc.  (06-UC-154144 and 06-RM-154166)  Pittsburgh, PA, January 14, 2016.  The Board denied Amalgamated Transit Union Local 1729’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  Petitioner—First Student, Inc.  Chairman Pearce and Members Miscimarra and McFerran participated.

Krystal Car Wash, Inc. and Master Car Wash, Inc.  (05-RC-152880)  Towson, MD and Baltimore, MD, January 15, 2016.  The Board denied the Petitioner’s request to stay the re-run election, or, alternatively, to impound the ballots.  While noting his disagreement with the Board’s Final Rule on representation case procedures, Member Miscimarra agreed with the denial of the Union’s request to stay the election or to impound the ballots, without prejudice to the Board’s consideration of the Union’s pending Request for Review.  Petitioner—United Food and Commercial Workers Union, Local 27.  Chairman Pearce and Members Miscimarra and McFerran participated.

Pruitt Healthcare–Virginia Park, LLC  (10-RC-156997)  Atlanta, GA, January 15, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative on the ground that it raised no substantial issues warranting review.  Petitioner—Retail, Wholesale Department Store Union / UFCW Southeast Council.  Chairman Pearce and Members Hirozawa and McFerran participated.

C Cases

DHSC, LLC d/b/a Affinity Medical Center, Community Health Systems, Inc., and/or Community Health Systems Professional Services Corporation, LLC, a single employer and/or joint employers  (08-CA-117890, et al.)  Massillon, OH, January 11, 2016.  The Board denied the motion for summary judgment filed by DHSC, LLC; Hospital of Barstow, Inc.;  Bluefield Hospital Company, LLC;  Fallbrook Hospital Corporation; Greenbrier VMC, LLC; and Watsonville Hospital Corporation.  The Board also denied the motion for summary judgment filed by Jackson Hospital Corporation.  In denying both motions, the Board found that the Respondents had failed to establish that there were no genuine issues of material fact warranting a hearing or that they were entitled to judgment as a matter of law.  Further, the Board found that the Respondents had failed to articulate any other basis for granting summary judgment in their favor.  Charges filed by National Nurses Organizing Committee (NNOC), AFL-CIO; California Nurses Association/National Nurses Organizing Committee (CNA/NNOC), AFL-CIO; United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union, AFL-CIO-CLC; California Nurses Association (CNA), National Nurses United, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Lear Renosol Selma Manufacturing Facility  (15-CA-146313)  Selma, AL, January 14, 2016.  A Board panel majority consisting of Members Hirozawa and McFerran denied the Employer’s petition to revoke an investigative subpoena duces tecum.  The majority found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the majority held that the Employer failed to establish any other legal basis for revoking the subpoena.  The majority rejected the Employer’s argument that the Region’s investigation violated the 1975 Memorandum of Understanding between the Board and the Occupational Safety and Health Administration in which it was agreed that the General Counsel would defer or dismiss any charges covered by Section 11(c) of the Occupational Safety and Health Act.  The majority found that the Memorandum of Understanding did not require the General Counsel to defer or dismiss a charge prior to investigating the facts and circumstances surrounding the allegations.  Member Miscimarra, dissenting in part, found that the Memorandum of Understanding requires the General Counsel and the Office of the Solicitor of Labor to consult on the appropriate handling of the matter at issue.  Absent evidence that such a consultation occurred, Member Miscimarra would grant the petition in part without prejudice to the reissuance of the subpoena after the consultation took place.  Member Miscimarra would deny the petition as to those paragraphs of the subpoena to which the Employer did not object.  Charge filed by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America.  Members Miscimarra, Hirozawa, and McFerran participated.

Lear Renosol Selma Manufacturing Facility  (15-CA-148040)  Selma, AL, January 14, 2016.  A Board panel majority consisting of Members Hirozawa and McFerran denied the Employer’s petition to revoke an investigative subpoena duces tecum.  The majority found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the majority held that the Employer failed to establish any other legal basis for revoking the subpoena.  The majority rejected the Employer’s argument that the Region’s investigation violated the 1975 Memorandum of Understanding between the Board and the Occupational Safety and Health Administration in which it was agreed that the General Counsel would defer or dismiss any charges covered by Section 11(c) of the Occupational Safety and Health Act.  The majority found that the Memorandum of Understanding did not require the General Counsel to defer or dismiss a charge prior to investigating the facts and circumstances surrounding the allegations.  Member Miscimarra, dissenting in part, found that the Memorandum of Understanding requires the General Counsel and the Office of the Solicitor of Labor to consult on the appropriate handling of the matter at issue.  Absent evidence that such a consultation occurred, Member Miscimarra would grant the petition in part without prejudice to the reissuance of the subpoena after the consultation took place.  Member Miscimarra would deny the petition as to those paragraphs of the subpoena to which the Employer did not object.  Charge filed by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America.  Members Miscimarra, Hirozawa, and McFerran participated.

Meritage Hospitality Group, Inc., and OCM Development, LLC d/b/a Freighters Eatery and Tap Room, Twisted Rooster, and Crooked Goose, a single employer  (07-CA-155067)  Chesterfield, Grand Rapids, and Port Huron, MI, January 14, 2016.  The Board denied the Employer’s petitions to revoke an investigative subpoena.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman Pearce and Members Hirozawa and McFerran participated.

Grand Medical Transportation, LLC  (22-CA-140495)  Irvington, NJ, January 15, 2016.  No exceptions having been filed to the December 2, 2015 decision of Administrative Law Judge Ira Sandron 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.  Charge filed by Med-Life M&M.

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Appellate Court Decisions

American Medical Response of Connecticut, Board Case No. 34-CA-013051 (reported at 361 NLRB No. 53) (2d Cir. decided January 14, 2016)

In an unpublished summary order, the court enforced the Board’s order issued against this provider of ambulance and medical transportation services in West Hartford, Connecticut, whose 195 paramedics and emergency medical technicians are represented by the National Emergency Medical Services Association.

The Board (Chairman Pearce and Members Hirozawa and Schiffer) found that the employer violated Section 8(a)(5) and (1) of the Act by unilaterally changing its procedures to require that employees check their vehicles’ fluids and complete a checklist certifying that they had inspected the vehicle, and that the employer violated Section 8(a)(1) by disciplining 116 employees as a result of that new checklist procedure.  Further, the Board found that the employer violated Section 8(a)(3) and (1) by discharging a union steward who had expressed concerns to management over implementation of the new checklist procedure and the warnings issued to employees.  The employer filed a motion to defer the discharge to arbitration, which the Board denied.

Before the court, the employer did not contest the unilateral change or warning violations, which the court summarily enforced.  Regarding the unlawful discharge of the union steward, the court held that the Board’s determination was supported by substantial evidence and gave no credence to the employer’s complaint that the steward had intentionally attempted to incite a work stoppage.  Finally, the court held that the Board acted within its discretion not to defer the discharge allegation to arbitration, and enforced in full.

The court’s summary order is here.

United Natural Foods, Inc., Board Case No. 21-CA-079406 (reported at 361 NLRB No. 42) (D.C. Cir. decided January 15, 2016)

In an unpublished judgment, the court enforced the Board’s order issued against this distributor of natural, organic, and specialty foods that operates a warehouse in Moreno Valley, California. The Board’s order remedies unlawful threats and an interrogation committed during an early 2012 campaign by the Teamsters, Chauffeurs, Warehousemen, Industrial and Allied Workers of America, Local 166, International Brotherhood of Teamsters to organize the 250 employees at that facility.

The Board (Chairman Pearce and Members Hirozawa and Johnson) found that the employer violated Section 8(a)(1) of the Act by coercively interrogating an employee regarding union organizing at the facility, and by warning the lead employee organizer—on four separate occasions—that it would refuse to negotiate or sign any contract with the union, that all workers could lose benefits if they selected the union, that management was looking for a way to fire him, and that his working conditions would not improve unless he stopped complaining to the union and NLRB.  The Board rejected the employer’s contentions, which centered on claims that the administrative law judge did not properly weigh the evidence, made improper credibility resolutions, and demonstrated bias and prejudice toward the employer.

In its brief to the court, the employer repeatedly requested that the court refer to the arguments, authorities, and record citations contained in its briefs to the Board.  The court rejected the employer’s attempt to incorporate its prior briefs by reference, explaining that any other approach “would allow litigants to circumvent the page limits for appellate briefs.”  Concerning the employer’s challenges to the administrative law judge’s credibility determinations, the court noted that the judge “extensively explained his decision to credit the employees’ testimony,” and held that there was no basis to disturb those assessments.  The court also rejected the employer’s contention that the judge applied a “double standard” by drawing an adverse inference against the employer for not presenting a key witness, while there were potential witnesses the General Counsel could have had testify.  The court explained that it was reasonable for the judge to treat the two situations differently because the witness the employer failed to present was the person who “made the illegal statements at issue,” while the others “were not even witnesses to a charged violation.”

The court’s unpublished judgment is here.

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Administrative Law Judge Decisions

Archer Daniels Midland Company (ADM)  (25-CA-143250, 25-CA-145578 and 25-RC-142796; JD-1-16)  Decatur, IL.  Administrative Law Judge Melissa M. Olivero issued her decision on January 12, 2016.  Charges filed by Bakery, Confectionery, Tobacco Workers & Grain Millers International Union, AFL-CIO, CLC Local 103-G.

RJS Dean Enterprise, LLC  (08-CA-139052; JD-02-16)  Youngstown, OH.  Administrative Law Judge Arthur J. Amchan issued his decision on January 12, 2016.  Charge filed by Laborers International Union of North America, Local Union No. 125.

East Village Grand Sichuan Inc. d/b/a Grand Sichuan Restaurant  (02-CA-143468; JD(NY)-02-16)  New York, NY.  Administrative Law Judge Steven Davis issued his decision on January 14, 2016.  Charge filed by Chinese Staff & Workers Association.

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