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Summary of NLRB Decisions for Week of January 30 - February 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

T-Mobile USA, Inc.  (01-CA-123183, 01-CA-129976, and 01-CA-140752; 365 NLRB No. 23)  Bloomfield, CT, February 2, 2017.

The Board unanimously adopted the Administrative Law Judge’s recommended dismissal of allegations that the Respondent violated Section 8(a)(5) and (1), and, independently, Section 8(a)(1) by, in January 2014, issuing and maintaining its employee handbook, which included “at will” and “attendance” policies that were allegedly inconsistent with the parties’ collective-bargaining agreement.  A Board majority (Members Pearce and McFerran) reversed the judge to find that the Respondent violated the Act by refusing to bargain with the Union over a successor collective-bargaining agreement.  The majority held that, under Levitz Furniture Company of the Pacific, 333 NLRB 717 (2001), an employer with objective evidence that a union has lost majority status must either withdraw recognition from the union completely, or, if the employer chooses to file an RM petition, continue to honor all of its bargaining obligations.  Dissenting, Acting Chairman Miscimarra found that, under Levitz, an employer with objective evidence that a union has lost majority status may take the “lesser path” of suspending negotiations on a successor collective-bargaining agreement, rather than withdrawing recognition completely.

Charges filed by Communications Workers of America, AFL-CIO.  Administrative Law Judge Raymond P. Green issued his decision on August 3, 2015.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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CPL (Linwood) LLC d/b/a Linwood Care Center and its successor, 201 New Road Operations, LLC d/b/a Linwood Care Center  (04-RD-157892; 365 NLRB No. 24)  Linwood, NJ, February 3, 2017.

The Board granted the Employers’ request for review of the Acting Regional Director’s Order denying the Employers’ motion to hold a Saint Gobain hearing on the ground that it raised substantial issues warranting review.  After careful consideration, the Board affirmed the Acting Regional Director and found that it was appropriate to continue holding the decertification petition in abeyance.  The Board explained that the instant petition is being held in abeyance; thus, a Saint Gobain hearing is not required as a matter of law.  See NLRB Casehandling Manual Part Two (CHM) Section 11730.3(c).  Further, on November 30, 2016, the Board issued a decision adopting, in the absence of exceptions, the judge’s findings in the related consolidated unfair labor practice case that the Respondent committed numerous Section 8(a)(1) violations.  CPL (Linwood) LLC d/b/a Linwood Care Center and its successor 201 New Road Operations, LLC d/b/a Linwood Care Center, 364 NLRB No. 154 (2016).  These unfair labor practices were sufficient to warrant holding the petition in abeyance pursuant to the Board’s blocking charge policy.  See CHM Section 11730. 

The Board found it unnecessary to address the Employers’ arguments regarding the Regional Director’s alleged bias in initially determining to hold the petition in abeyance.  Subsequent to the Regional Director’s determination, the Acting Regional Director considered the Employers’ request to hold a Saint Gobain hearing and he determined that a hearing was unnecessary and processing of the petition would continue to be held in abeyance.  Further, for the reasons stated above, the Board found that there was no merit to the Employers’ contentions that a Saint Gobain hearing should be held and the petition processed. 

Union – 1199 SEIU United Healthcare Workers East.  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

Leland Stanford Junior University  (32-RC-184333)  Palo Alto, CA, January 31, 2017.  The Board denied the Petitioner’s request for review of the Acting Regional Director’s Decision and Order as it raised no substantial issues warranting review.  The Acting Regional Director found that the petitioned-for public safety officers are statutory guards and dismissed the petition.  Petitioner – Service Employees International Union Higher Education Workers Local 2007.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Voices for International Business and Education, Inc. d/b/a International High School of New Orleans  (15-RC-175505)  New Orleans, LA, February 1, 2017.  The Board denied the Employer’s request for review of the Regional Director’s Decision and Direction of Election holding that the Employer’s charter school is not exempt as a political subdivision under Section 2(2).  The Board majority (Members Pearce and McFerran) found that the Regional Director correctly applied the test in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971)(“Hawkins County”) and that her reasoning was consistent with the Board’s recent decision in Hyde Leadership Charter School, 364 NLRB No. 88 (2016)(“Hyde Leadership”).  They also found no merit in the Employer’s arguments that the Board should decline to assert jurisdiction over the charter school because of its limited impact on interstate commerce, the legislative intent to treat charter schools as public schools, and the state’s authority to regulate the labor relations of its public employees, noting that the Board rejected similar arguments in Pennsylvania Virtual Charter School, 364 NLRB No. 87 (2016)(“Pennsylvania Virtual”) and Hyde Leadership, supra.  Acting Chairman Miscimarra dissented, stating his belief, as set forth in his dissent in Hyde Leadership, supra, that the Employer is a political subdivision of the State of Louisiana exempt from the Board’s jurisdiction pursuant to Section 2(2) under the standard set forth in Hawkins County.  In his view, the Board should decline to assert jurisdiction over charter schools, as a class, pursuant to Section 14(c)(1), for the reasons explained in his dissenting opinion in Pennsylvania Virtual, supra, especially because more than 90 percent of all Orleans Parish public school students currently attend independent public charter schools.  Petitioner – United Teachers of New Orleans, Local 527, LFT, AFT.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Aerojet Rocketdyne  (20-RD-186986)  Rancho Cordova, CA, February 1, 2017.  The Board denied the Employer’s request for review of the Regional Director’s administrative dismissal of the Petitioner’s decertification petition as it raised no substantial issues warranting review.  The Regional Director dismissed the petition because he found that the petitioned-for unit did not conform to the existing bargaining unit, as required under Board law.  Petitioner – an individual.  Union – International Association of Machinists and Aerospace Workers, Local 946, AFL-CIO.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Advocates for Arts-Based Education Corporation d/b/a Lusher Charter School  (15-RC-174745)  New Orleans, LA, February 1, 2017.  The Board denied the Employer’s request for review of the Regional Director’s Decision and Direction of Election holding that the Employer’s charter school is not exempt as a political subdivision under Section 2(2).  The Board majority (Members Pearce and McFerran) found that the Regional Director correctly applied the test in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971)(“Hawkins County”) and that her reasoning was consistent with the Board’s recent decision in Hyde Leadership Charter School, 364 NLRB No. 88 (2016).  They also found no merit in the Employer’s argument that the Board should find that the Employer is a joint employer with the Orleans Parish School Board, a public agency, and thus should be exempt from the Board’s jurisdiction on that basis.  Acting Chairman Miscimarra dissented, stating that the Board should decline to assert jurisdiction over charter schools generally and especially in this case because more than 90 percent of all Orleans Parish public school students currently attend independent public charter schools like the one operated by the Employer.  Petitioner – United Teachers of New Orleans, Local 527, LFT, AFT.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Art, Inc.  (18-CA-168725, et al.)  Victoria and Minnetonka, MN, January 31, 2017.  The Board denied the Respondent’s motion for summary judgment, without prejudice to the Respondent’s right to renew its arguments to the administrative law judge.  Charges filed by United Food & Commercial Workers, Local 653.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

International Association of Machinists and Aerospace Workers, District 65, Local 330 (Ingersoll-Rand Company)  (03-CB-168560)  Buffalo, NY, January 31, 2017.  No exceptions having been filed to the December 19, 2016 decision of Administrative Law Judge Thomas M. Randazzo’s finding that the Respondent had 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 an individual.

United Road Services, Inc.  (31-CA-180722)  Fontana, CA, February 2, 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.  Charge filed by Teamsters Local Union No. 63.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Arizona Blue Stake d/b/a Arizona 811  (28-CA-182241)  Tempe, AZ, February 2, 2017.  The Board granted in part and denied in part the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board granted the petition to the extent that a particular request sought personal, sensitive, and identifying information maintained in distinct employee files, and as to a separate request seeking work-related emails.  The Board denied the petition in all other respects, finding that it 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, specifically rejecting the Employer’s contention that the subpoena should be revoked because the Region failed to properly serve the subpoena on the Employer’s attorney.  Charge filed by an individual.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

Benjamin H. Realty Corp., Board Case No. 22-CA-110689 (reported at 361 NLRB No. 103) (D.C. Cir. February 3, 2017)

In an unpublished judgment in this test-of-certification case, the D.C. Circuit enforced the Board’s bargaining order issued against this company that manages about 16 residential properties in Orange and East Orange, New Jersey, after its superintendents, painters, maintenance employees, and porters voted in a November 2012 election to determine whether they wished to be represented by Residential Construction and General Service Workers, Laborers Local 55.

The initial tally of ballots showed 6 votes for the Union and 6 votes against, with 1 challenged ballot that the Employer claimed had been cast by an individual ineligible to vote because he had recently been demoted from a supervisory position.  After a hearing was held, the hearing officer issued a report finding that the Employer had failed to meet its burden of showing supervisory status at the time of the election.  On review, the Board adopted the hearing officer’s finding and directed that the ballot be opened and counted.  The Regional Director then issued a revised tally of ballots, showing 7 votes for and 6 votes against representation, and certified the Union.  Subsequently, the Employer moved to have the record reopened for it to submit for the Board’s consideration certain allegations stated in a New Jersey civil complaint filed by the employee that referenced the demotion.  The Board denied the motion, and the Employer then refused to bargain in order to seek court review of the certification.

Before the court, the Employer raised two contentions, both of which the court readily dispensed with.  First, the court held that the Board had properly placed the burden of proving supervisory status on the Employer, consistent with NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001), and that the Employer had failed to show, as it claimed, that the burden should have been modified because of the employee’s prior supervisory status.  Second, the court held that the Board had not abused its discretion in refusing to reopen the record because, the court explained, the “vague and unverified” allegations in the state court complaint would not compel a different outcome “given all of the other evidence of material changes in the [employee]’s previously supervisory job duties,” which supported the Board’s finding of employee status.

The court’s unpublished February 3, 2017 judgment is here.

Tito Contractors, Inc., Board Case No. 05-CA-149046 (reported at 362 NLRB No. 119) (D.C. Cir. decided February 3, 2017)

In a published opinion in this test-of-certification case, the court granted the petition for review filed by this provider of general contracting, construction, painting, and recycling services in the District of Columbia and nearby suburban Maryland, and remanded the case to the Board for further proceedings.  Specifically, the court held that the Board had failed to consider evidence pointing to the absence of a community of interest among the employees in the employer-wide unit that the International Union of Painters and Allied Trades, District Council 51, AFL-CIO, was later certified to represent.

At the pre-election hearing on its challenge to the petitioned-for unit, the Employer made an offer of proof describing the varying aspects of its business, including the different contracting and recycling sides of its business, as well as the different types of work performed by the employees at different locations including a warehouse and a maintenance office, with laborer jobs out in the field ranging from repairs to construction to snow removal, as well as recycling related positions at a number of different Maryland facilities.  After receiving the Employer’s offer of proof, the hearing officer ruled that, given the Union had petitioned for a wall-to-wall unit that is presumed appropriate, the Employer’s offer of proof was insufficient to overcome the presumption.  Thereafter, the Board’s Acting Regional Director issued a decision finding the petitioned-for unit appropriate and directing an election.  The Employer filed a request for review with the Board challenging the appropriateness of the unit, and meanwhile, a mail ballot election was conducted for a two-week period in spring 2014 and the ballots were impounded pending resolution of the request for review.  Subsequently, the Board denied review, noting the presumptive appropriateness of an employer-wide unit and Employer’s failure to overcome it.  The Board also briefly noted some commonalities among members of the unit, the lack of any bargaining history with smaller units, the common geographical region in which the employees worked, and the fact that no party had suggested an alternative unit.

On review, in deciding the first of the Employer’s key contentions, the court (Judges Henderson and Rogers, and Senior Judge Ginsburg) gave controlling weight to the Board’s application of its own rules and rejected the Employer’s procedural contention that the offer-of-proof requirement applied by the hearing officer failed to afford it fair opportunity to present its position.  On the Employer’s second contention, however, the court agreed with the Employer that the Board’s order was not supported by substantial evidence because it “does not discuss the portions of [the Employer]’s offer of proof which plainly showed no community of interest.”  Specifically, the court stated that the offer of proof contained three types of evidence contradicting the Board’s conclusion:  the two halves of the business, the lack of interchange among the different types of employees, and significant differences among the employees’ wages, hours, and other working conditions.

Judge Henderson, in a short concurring opinion, wrote to state her view that the Board would be better served by not, as here, issuing an order that included only two sentences of text and a footnote of analysis, or “continue to run the risk of a court-imposed re-do.”  Judge Rodgers echoed that sentiment in a separate concurring opinion, stating that the brevity of the challenged decision “makes it difficult to discern the Board’s rationale,” but also emphasized that on remand the Board potentially could reach the same conclusion about the appropriateness of an employer-wide unit “upon providing a reasoned explanation that ‘take[s] into account whatever in the record fairly detracts from its weight,’” citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

The court’s opinion is here.

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Administrative Law Judge Decisions

Thesis Painting, Inc.  (05-CA-167137; JD-04-17)  Springfield, VA.  Administrative Law Judge Arthur J. Amchan issued his decision on January 31, 2017.  Charge filed by International Union of Painters and Allied Trades, AFL-CIO, District Council 51.

Buy-Low Market, Inc.  (21-CA-173346; JD(SF)-06-17)  Anaheim, CA.  Administrative Law Judge Amita Baman Tracy issued her decision on February 3, 2017.  Charge filed by an individual.

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