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Summary of NLRB Decisions for Week of July 25 - 29, 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

Oberthur Technologies of America Corporation  (04-CA-160992; 364 NLRB No. 59)  Exton, PA, July 27, 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 were not, or could not have been, litigated in the underlying representation proceeding, in which the primary issues were whether the Administrative Law Judge erred by sustaining challenges to votes cast in the election by two individuals he determined to be professional employees, and whether their inclusion in the stipulated unit rendered the unit inappropriate.  The Board also rejected the affirmative defense, raised in the Respondent’s answer to the complaint, that the “initial unfair labor practice complaint” was invalidly issued because Acting General Counsel Lafe Solomon lacked authority to issue complaints under the Federal Vacancies Reform Act (FVRA).  The Board found that the instant complaint was validly issued by General Counsel Richard F. Griffin, Jr.  To the extent that the Respondent referred to an earlier consolidated complaint, the Board found that the Respondent’s argument was an improper collateral attack on the Board’s decision in that case and rejected the argument as untimely raised.  Finally, the Board found that the FVRA had no bearing on the underlying representation proceeding, in which the Regional Director acted pursuant to a delegation of authority from the Board.  Although Member Miscimarra dissented in the representation proceeding, he agreed with his colleagues that granting summary judgment was appropriate, because the Respondent did not present any new matters that were properly litigable in this unfair labor practice proceeding.

Charge filed by Local 14M, District Council 9, Graphic Communications Conference/International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Oncor Electric Delivery Company, LLC  (16-CA-103387 and 16-CA-112404; 364 NLRB No. 58)  Dallas, TX, July 29, 2016.

A Board panel, affirming the Administrative Law Judge, unanimously found that the Employer violated Section 8(a)(3) and (1) by discharging an employee for his protected concerted union activity of testifying on behalf of the Union before a state legislative committee concerning the safety of smart electric meters.  (The Board rejected the Employer’s arguments that the employee’s legislative testimony was not concerted and that it contained malicious falsehoods that forfeited the Act’s protection.)  The panel also unanimously affirmed the judge’s finding that the Employer violated Section 8(a)(5) and (1) by failing and refusing to provide requested information pertaining to that employee’s discharge.

A Board panel majority consisting of Members Hirozawa and McFerran reversed the judge and found that the Respondent also unlawfully failed and refused to provide requested information pertaining to the grievance of another employee’s discharge.  Specifically, the majority found that the Employer should have provided the requested information about a comparator employee after that employee’s promotion out of the bargaining unit.  Chairman Pearce disagreed, finding that because the Union offered no explanation why it was entitled to this non-presumptively relevant information, the General Counsel failed to meet the legal standard for demonstrating relevance.  The Chairman further noted that the discharged employee and comparator employee had been disciplined for different conduct, and that the General Counsel did not except to the judge’s dismissal of this information request allegation.

Charges filed by International Brotherhood of Electrical Workers, Local Union No. 69.  Administrative Law Judge Ira Sandron issued his decision November 4, 2014.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Minteq International, Inc., and Specialty Minerals Inc., Wholly Owned Subsidiaries of Mineral Technologies, Inc.  (13-CA-139974; 364 NLRB No. 63)  Gary, IN, July 29, 2016.

The Board, addressing an allegation left unaddressed by the Administrative Law Judge, found that the Respondent violated Section 8(a)(5) and (1) by requiring new employees to sign a Non-Compete and Confidentiality Agreement (NCCA) as a condition of employment without giving the Union notice and an opportunity to bargain about the NCCA.  Additionally, the Board reversed the judge’s findings and found that the Respondent violated Section 8(a)(1) by maintaining two unlawfully overbroad rules in the NCCA; specifically, an “Interference with Relationships” rule and an “At-Will Employee” rule.  Further reversing the judge, the Board found that the “Confidential Information” rule and the “Remedy” rule in the NCCA were not unlawfully overbroad.

Charge filed by International Union of Operating Engineers, Local 150, AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on December 23, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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United States Postal Service  (19-CA-092096; 364 NLRB No. 62)  Portland, OR, July 29, 2016.

A Board panel unanimously affirmed the Administrative Law Judge’s findings that the Respondent did not violate Sec. 8(a)(3) and (1) by disciplining a union steward for her unprotected visits to the Respondent’s Portland, Oregon Main Office, particularly on September 8 and 11, 2012.  The panel agreed with the judge that those visits were unauthorized by the parties’ collective-bargaining agreement and only tenuously, if at all, related to any bona fide representational purpose.  The panel also unanimously agreed with the judge that the Respondent did not violate Section 8(a)(1) by thereafter initiating and maintaining a lawsuit against the steward.

However, a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent did violate Section 8(a)(3) and (1) to the extent that it disciplined the union steward for earlier conduct, during the course of a protected grievance discussion on August 9, 2012.  In finding this violation, the majority disagreed with the judge’s legal analysis of the August 9 incident, and, in particular, the implication that an employee’s protected conduct at a grievance meeting may lose its protection owing to separate events occurring days or weeks later.  Member Miscimarra, in a partial dissent, explained that he would not have found this violation.

Charge filed by American Postal Workers Union, AFL-CIO, Portland Oregon Area Local 128.  Administrative Law Judge Eleanor Laws issued her decision on December 4, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Ace & Acme, Inc.  (01-RD-162954)  Medfield, MA, July 26, 2016.  The Board denied the Union’s Request for Review of the Acting Regional Director’s Supplemental Decision and Certification of Results of Election in this decertification proceeding.  Petitioner—an individual.  Union—Teamsters Local Union No. 25, a/w International Brotherhood of Teamsters.  Chairman Pearce and Members Hirozawa and McFerran participated.

Logan Bus Co., Inc.  (02-RC-163227)  Bronx, NY, July 27, 2016.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issue warranting review.  In denying review, the Board agreed with the Regional Director’s finding that there are two historical multilocation units, and that the Petitioner did not show compelling circumstances that would warrant disturbing them.  Petitioner—International Brotherhood of Teamsters, Local 553.  Intervenor—United Craft and Industrial Workers Union, Local 91.  Chairman Pearce and Members Hirozawa and McFerran participated.

Trump Ruffin Commercial LLC  (28-RC-153650)  Las Vegas, NV, July 28, 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 issue warranting review.  Petitioner—Local Joint Executive Board of Las Vegas, a/w Unite Here International Union.  Chairman Pearce and Members Hirozawa and McFerran participated.

C Cases

Hacienda Hotel, Inc. Gaming Corp. d/b/a Hacienda Resort Hotel and Casino  (28-CA-013274 and 28-CA-013275)  Las Vegas, NV, July 26, 2016.  The Board denied the Charging Party’s motion for reconsideration of the Board’s Decision and Order reported at 363 NLRB No. 7 (2015).  The Board found that the Charging Party had not identified any material error or demonstrated “extraordinary circumstances” warranting reconsideration.  Although Member Hirozawa disagreed with the majority’s conclusion in the underlying decision regarding the appropriate remedy, he concurred here that the Charging Party had not established “extraordinary circumstances” under the Board’s rules.  Charges filed by Local Joint Executive Board of Las Vegas, Culinary Workers Union Local 226, and Bartenders Union Local 165.  Members Miscimarra, Hirozawa, and McFerran participated.

Brock Services and CB&I, Joint Employers  (15-CA-160564)  Donaldson, LA, July 27, 2016.  The Board denied Employer CB&I’s petition to revoke an investigative subpoena ad testificandum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Petitioner failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman Pearce and Members Hirozawa and McFerran participated.

United States Postal Service  (07-CA-166361)  Saginaw, MI, July 27, 2016.  The Board granted the General Counsel’s request for special permission to appeal from the Administrative Law Judge’s grant of the Charging Party’s request to withdraw its charge and her approval of a non-Board settlement agreement.  On the merits, the Board denied the appeal, finding, in agreement with the judge, that the settlement agreement comports with the standards set forth in Independent Stave Co., 287 NLRB 740, 741 (1987).  Charge filed by Local 486-487 American Postal Workers Union (APWU), AFL-CIO.  Members Miscimarra, Hirozawa, and McFerran participated.

Salem Hospital Corporation, a/k/a The Memorial Hospital of Salem County  (04-CA-130032)  Salem, NJ, July 29, 2016.  The Board denied the Respondent’s motion for reconsideration of the Board’s Decision and Order reported at 363 NLRB No. 56 (2015).  The Board found that the Respondent had not identified any material error or demonstrated “extraordinary circumstances” warranting reconsideration.  Although Member Miscimarra disagreed with his colleagues’ ordering of a notice-reading remedy in the underlying decision, he concurred here that the Respondent had not established “extraordinary circumstances” under the Board’s rules.  Charge filed by Health Professionals and Allied Employees, AFT/AFL-CIO.  Chairman Pearce and Members Miscimarra and McFerran participated.

Adams & Associates, Inc. and McConnell, Jones, Lanier & Murphy, LLP  (20-CA-130613 and 138046)  Sacramento, CA, July 29, 2016.  The Board denied the Respondent’s motion for reconsideration of the Board’s Decision and Order reported at 363 NLRB No. 193 (2016).  The Board found that the Respondent had not identified any material error or demonstrated “extraordinary circumstances” warranting reconsideration under the Board’s rules.  Charge filed by Sacramento Job Corps Federation of Teachers, AFT Local 4986, American Federation of Teachers.  Chairman Pearce and Members Hirozawa and McFerran participated.

SJK, Inc. d/b/a Fremont Ford  (32-CA-151443)  Newark, CA, July 29, 2016.  The Board denied the Charging Party’s motion for reconsideration of the Board’s Decision and Order reported at 364 NLRB No. 29 (2016).  The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  Charge filed by the International Association of Machinists and Aerospace Workers, AFL-CIO, East Bay Automotive Machinists Lodge No. 1546, District Lodge 190.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Appellate Court Decisions

RPM Pizza LLC, Board Case No. 15-CA-113753 (reported at 363 NLRB No. 82) (5th Cir. decided July 29, 2016)

In an unpublished per curiam order, the court granted the Employer’s motion for summary reversal of the Board’s decision that found that the Employer violated Section 8(a)(1) by maintaining an arbitration agreement, as a condition of employment, that waived employees’ right to pursue class or collective actions in employment-related claims in all forums, whether arbitral or judicial.  The order issued about two and a half months after the Fifth Circuit denied the Board’s petition for rehearing en banc in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), in which the court held it was bound by its prior decision in D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), denying enforcement in relevant part 357 NLRB No. 184 (Jan. 3, 2012), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014).

The circuit court’s July 29, 2016 order is here.

SF Markets, LLC, d/b/a Sprouts Farmers Market, Board Case No. 21-CA-099065 (reported at 363 NLRB No. 146) (5th Cir. decided July 26, 2016)

In an unpublished per curiam order, the court granted the Employer’s motion for summary reversal of the Board’s decision that found that the Employer violated Section 8(a)(1) by maintaining an arbitration agreement, as a condition of employment, that waived employees’ right to pursue class or collective actions in employment-related claims in all forums, whether arbitral or judicial.  The order issued about two and a half months after the Fifth Circuit denied the Board’s petition for rehearing en banc in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), in which the court held it was bound by its prior decision in D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), denying enforcement in relevant part 357 NLRB No. 184 (Jan. 3, 2012), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014).

In a concurring opinion, Circuit Judge Dennis wrote separately to urge the court to reconsider the issue en banc in light of the Seventh Circuit’s decision in Lewis v. Epic Systems Corp., ___ F.3d ___ No 15-2997, 2016 WL 3029464 (7th Cir., May 26, 2016), which held to the contrary.

The circuit court’s July 26, 2016 order is here.

Quicken Loans, Inc., Board Case No. 28-CA-075857 (reported at 361 NLRB No. 94) (D.C. Cir. decided July 29, 2016)

In a published opinion, the court enforced the Board’s order issued against this mortgage-loan servicer that employs 1,700 mortgage bankers nationwide.  The court upheld the Board’s findings that the Employer violated Section 8(a)(1) by maintaining two unlawful work rules in the agreement that all mortgage bankers must sign as a condition of employment.  Specifically, the Board found unlawful portions of a confidentiality rule prohibiting employees from disclosing certain personnel information or discussing the terms and conditions of their employment with co-workers, and a non-disparagement rule prohibiting them from publicly criticizing the Employer and its products.

Regarding the unlawful portions of the confidentiality rule, the court held they comprised a blanket prohibition on employees sharing personnel lists, employee rosters, and employee contact information that “has long been recognized as information that employees must be permitted to gather and share among themselves and with union organizers in exercising their Section 7 rights.”  The court rejected the Employer’s claims that the Board should have considered whether employees actually understood the rule to restrict their protected activities and whether the Employer had ever enforced the rule to restrict such activity.  The court explained that those arguments “fail to come to grips with the governing law” that the validity of a workplace rule “turns not on subjective employee understandings or actual enforcement patterns, but on an objective inquiry into how a reasonable employee would understand the rule’s disputed language.”  On that same basis, the court rejected the Employer’s additional claim that the Board abused its discretion in excluding evidence of subjective employee understanding or lack of enforcement at the hearing.

Similarly, the court held that, with regard to the non-disparagement rule, the Board “quite reasonably found that such a sweeping gag order would significantly impede [the employees]’ exercise of their Section 7 rights because it directly forbids them to express negative opinions about the company, its policies, and its leadership in almost any public forum,” activities long recognized as being protected by the Act.

The court’s opinion is here.

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Administrative Law Judge Decisions

Trump Ruffin Commercial, LLC, d/b/a Trump International Hotel Las Vegas (28-CA-149979, et al.; JD(SF)-31-16) Las Vegas, NV, July 28, 2016.  Errata to July 22, 2016 Decision of Administrative Law Judge Lisa D. Thompson.  Errata   Amended Decision.

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