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Summary of NLRB Decisions for Week of January 4 - 8, 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

Colonial Parking  (05-CA-141241; 363 NLRB No. 90)  Washington, DC, January 5, 2016.

The Board affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by coercively interrogating employees and threatening them with both unspecified reprisals as well as discharge. The Board also affirmed the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by warning, placing on probation, suspending, and discharging an employee because she engaged in protected, concerted activity.  Regardless of whether the Respondent’s attendance policy allowed for late arrivals either with or without prior notice, the Board noted that the Respondent failed to meet its burden of demonstrating that the discipline of this employee was similar to the discipline of other employees, who violated the same attendance policy, but did not engage in protected, concerted activity.  The Board also noted that the Wright Line standard does not require a showing of particularized animus.  Additionally, the Board disregarded the Respondent’s unsupported exception to the judge’s finding that the Respondent violated Section 8(a)(1) when its manager created the impression that employees’ protected, concerted activities were under surveillance.  Further, the Board noted that there were no exceptions to the judge’s dismissal of the remaining allegations.  Finally, the Board upheld the judge’s credibility findings.

Charge filed by Unite Here Local 23.  Administrative Law Judge Michael A. Rosas issued his decision on September 30, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Community Support Network  (20-CA-143287; 363 NLRB No. 78)  Santa Rosa, CA, January 5, 2016. 

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that either were not or could not have been litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union. 

Charge filed by Service Employees International Union Local 1021.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Pittsburgh Athletic Association  (06-CA-105460 and 06-CA-105461; 363 NLRB No. 76)  Pittsburgh, PA, January 6, 2016. 

In the absence of an answer to the compliance specification, the Board granted, in part, the General Counsel’s motion for default judgment.  In the underlying unfair labor practice proceeding, the Board ordered the Respondent to remit to the Union all withheld dues and fees inclusive of interest that were deducted from the unit employees’ wages, but not remitted to the Union.  Further, the Board granted the General Counsel’s motion regarding the allegations concerning the amounts contained within the compliance specification. The Board denied the motion, without prejudice to the filing of a renewed motion, concerning additional amounts that the compliance specification alleged were due to the Union.  Charges filed by UNITE HERE Local 57.  Chairman Pearce and Members Hirozawa and McFerran participated.

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McDonald’s USA, LLC, a Joint Employer, et al.  (02-CA-093893, et al.; 363 NLRB No. 92)  New York, NY, January 8, 2016. 

The Board granted the requests filed by Respondents McDonald’s USA, LLC and the New York Franchisees for special permission to appeal  the March 3, 2015 Case Management Order (CMO) issued by the administrative law judge, but a Board panel majority consisting of Chairman Pearce and Member Hirozawa denied their appeals on the merits.  The panel majority found that the Respondents failed to establish that the judge abused her discretion by issuing the CMO instructing the General Counsel and the Charging Parties to present their evidence regarding the Respondents’ joint-employer status prior to presenting evidence regarding the alleged unfair labor practices.  The panel majority found that the judge had carefully evaluated and weighed the arguments and properly exercised her authority to regulate the course of the hearing.  The panel majority further found that the CMO provided for the  orderly presentation of evidence which, in turn, would both control efficiency and costs as well as help to protect the parties’ confidentiality and due process rights.  The Board further stated, contrary to the arguments in the dissent, that it was eminently reasonable, consistent with Board procedures, and not an abuse of discretion for the judge to order the parties to litigate the issue of joint-employer status prior to the alleged unfair labor practices.  Under the CMO, the panel majority also found that the Respondents could choose to present their joint-employer evidence after the General Counsel and the Charging Parties offered their evidence regarding both the joint-employer issue as well as the alleged unfair labor practices.  The panel majority noted that, in his dissent, their colleague reiterated his opposition to the General Counsel’s consolidation of the complaints which was addressed in the Order the Board intended to issue that same day denying the Respondents’ appeals from the judge’s ruling on their motions to sever.

Member Miscimarra, dissenting, found that the CMO improperly required the parties to litigate the issue of liability before the presentation of evidence regarding whether the Respondents committed any of the alleged unfair labor practices.  Thus, in his view, the CMO afforded deference to the General Counsel’s overarching theory, and increased costs while diminishing the role and participation of the franchisee/Respondents.

Charges filed by Fast Food Workers Committee and Service Employees International Union, CTW, CLC, et al.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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McDonald’s USA, LLC, a Joint Employer, et al.  (02-CA-093893, et al.; 363 NLRB No. 91)  New York, NY, January 8, 2016.

The Board granted the requests filed by Respondents McDonald’s USA, LLC and the New York Franchisees for special permission to appeal the administrative law judge’s Order denying their Motions to Sever the consolidated case, but a Board panel majority consisting of Chairman Pearce and Member Hirozawa denied their appeals on the merits.  Noting that the judge had carefully evaluated and weighed the Respondents’ arguments regarding the potential issues that could arise as a result of consolidation, the panel majority found that the Respondents failed to meet the heavy burden of establishing that the judge abused her discretion by denying their motions.  In addition, the panel majority agreed with the judge that the General Counsel had not abused his discretion by consolidating the complaints.  The panel majority found, contrary to their dissenting colleague, that the approach urged by the Respondents would require 22 hearings by administrative law judges involving primarily the same evidence pertaining to the issue of whether McDonald’s and its franchisees are joint employers resulting in an equal number of judges’ decisions and possible determinations by the Board.  Although it found speculative whether the judge’s or the Respondents’ approach would ultimately prove more efficient,  the panel majority concluded that the General Counsel’s consolidation was not arbitrary and did not exceed his authority.  The Board additionally agreed with the judge that many of the concerns expressed by the Respondents can be ameliorated through case management.  To that end, the panel majority noted that it intended to issue that same day an Order ruling on the Respondents’ requests for special permission to appeal the judge’s March 3, 2015 Case Management Order.  In that order and among other things, the panel majority would find that the judge’s Case Management Order provides for an orderly presentation of evidence.

Member Miscimarra, dissenting, found unprecedented the consolidation of 61 unfair labor practice charges, filed in six different Board Regions, regarding that alleged violations involving particular employees at different locations operated by several, distinct Respondents.  Member Miscimarra concluded that the consolidation would increase the costs and delays for all parties, and that it already had caused the judge and the Board to adopt irregular case management procedures that might yield either actual or the appearance of unfairness, and potentially require the cases to be relitigated in the future.

Charges filed by Fast Food Workers Committee and Service Employees International Union, CTW, CLC, et al.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Bolana Enterprises, Inc.  (05-RC-152686)  Annapolis, MD, January 4, 2016.  The Board denied the Petitioner’s Request for Review of the Regional Director’s administrative dismissal of the petition.  The Board found that the Request for Review raised no substantial issues warranting review.  Petitioner—U.S. Naval Academy Cleaning Employees.  Intervenor—International Association of Machinists and Aerospace Workers, District Lodge 4, AFL-CIO.  Chairman Pearce and Members Hirozawa and McFerran participated.

North Shore-Long Island Jewish Health Care, Inc. and its successor Optum360, LLC (29-RC-154232) Westbury, NY, January 6, 2016.  With no exceptions having been filed to the Regional Director’s disposition of the election held July 17, 2015, the Board adopted the Regional Director’s findings and recommendations remanding the case to the Region for further action consistent therewith.

Jose Santiago, Inc.  (12-RC-159900)  Bayamon, PR January 8, 2016 The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objection and Certification of Representative.   The Board found that the Request for Review raised no substantial issues warranting review.  Petitioner – Union de Tronquistas de Puerto Rico, Local 901, IBT.  Incumbent Union – United Auto Workers, Local 3401.  Chairman Pearce and Members Miscimarra and McFerran participated.

C Cases

New Vista Nursing and Rehabilitation, LLC  (22-CA-029988)  Newark, NJ, January 5, 2016.  The Board denied the Respondent’s fifth motion for reconsideration and motion to recuse Member Hirozawa.  In denying the motion for reconsideration, the Board rejected the Respondent’s suggestion that it was not aware that the Board was considering the Respondent’s second, third, and fourth motions for reconsideration. The Board noted that the Respondent knew that the Court of Appeals granted the Board’s motion—in which the Respondent joined—for a limited remand of the administrative record to allow the current Board to consider the motions.  The Board further observed that its request to the Court that the remand be limited to 30 days made clear its intention to act expeditiously.  Moreover, the Board found that there was no suggestion that the Respondent was prejudiced by the Board’s prompt action in this matter.  The Respondent’s motion to recuse Member Hirozawa was also denied, and Member Hirozawa attached a separate statement on this matter.  In his statement, Member Hirozawa set forth the reasons why he did not have a “covered relationship” within the meaning of 5 CFR § 2635.502 with any party or representative in this matter; why his participation under the present circumstances would not “cause a reasonable person with knowledge of the relevant facts to question [his] impartiality” (citing 5 CFR § 2635.502(a)); and why his participation does not raise any issue under Executive Order 13490.  Charge filed by 1199 SEIU United Healthcare Workers East, NJ Region.  Members Miscimarra, Hirozawa, and McFerran participated.

Provision Living at Hermitage  (10-CA-154228)  Hermitage, TN, January 6, 2016.  Order denying the Employer’s petition to revoke a subpoena duces tecum.  The Board found that the subpoena sought information relevant to matters under investigation and described with sufficient particularity the information sought.  Further, the Board held that the Employer failed to establish any other legal basis for revocation.  Charge filed by an individual.  Chairman Pearce and Members Hirozawa and McFerran participated.

United States Postal Service  (01-CA-145800)  Portland, ME, January 6, 2016.  With no exceptions having been filed to the November 18, 2015 decision of Administrative Law Judge Joel P. Biblowitz finding that the Respondent engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions ordering the Respondent to take the action set forth in the recommended Order.  Charge filed by National Association of Letter Carriers, Branch 92, a/w National Association of Letter Carriers.

Midwest Terminals of Toledo International, Inc.  (08-CA-155327)  Toledo, OH, January 8, 2016.  The Board issued an order denying the Employer’s petition to revoke a subpoena duces tecum and a subpoena ad testificandum.  The Board found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the information sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoenas.  In a footnote, Member Miscimarra agreed that the petition to revoke should be denied because the Employer failed to raise any meritorious grounds for revocation.  Further, Member Miscimarra stated that the subpoena ad testificandum, which only identified the case name and number, was deficient because it failed to state with sufficient particularity the information being sought.  However, in the absence of any objection to the subpoena on this basis, Member Miscimarra concurred in the denial of the petition to revoke.  Charge filed by International Longshoremen’s Association, Local 1982.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Midwest Terminals of Toledo International, Inc.  (08-CA-158778)  Toledo, OH, January 8, 2016.  The Board issued an order denying the Employer’s petition to revoke a subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the information 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 Miscimarra and Hirozawa participated.

AdvancePierre Foods, Inc.  (09-CA-157262)  Cincinnati, OH, January 8, 2016. The Board denied the Employer’s petition to partially revoke a subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the information sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by United Food and Commercial Workers Union, Local 75, affiliated with the United Food and Commercial Workers, International Union.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Lakeshore Rickman JV, LLC, The Facilities Group, LLC, The Facility Group, LLC, U.S. Metro Group, Inc. Local 1, Service Employees International Union (SEIU) (The Facilities Group) Local 1123, Carpenters Industrial Council, Automated Systems Workers (Lakeshore Rickman JVB, LLC)  (07-CA-142837, et al. and 07-CA-147215)  Detroit, MI, January 8, 2016.  The Board denied the Employer’s petition to revoke a subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the information sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge 07-CA-142837 et al. filed by Council 25 and its Affiliated Local 345, American Federation of State, County, & Municipal Employees.  Charge 07-CA-147215 filed by Local 324, International Union of Operating Engineers.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Service Employees International Union, Local 87 (Exemplar Enterprises, Inc.)  (20-CB-151336; JD(SF)-01-16)  San Francisco, CA.  Administrative Law Judge Mary Miller Cracraft issued her decision on January 5, 2016.  Charge filed by Exemplar Enterprises, Inc.

California Commerce Club, Inc.  (21-CA-149699; JD(SF)-02-16)  Commerce, CA.  Administrative Law Judge Amita Baman Tracy issued her decision on January 6, 2016.  Charge filed by an individual.

International Harvest, Inc.  (02-CA-138000, et al.; JD(NY)-01-16)  Mt. Vernon, NY.  Administrative Law Judge Steven Davis issued his decision on January 7, 2016.  Charges filed by individuals.

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