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Summary of NLRB Decisions for Week of July 27 - 31, 2015

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

Constellation Brands, U.S. Operations, Inc. d/b/a Woodbridge Winery  (32-CA-148431; 362 NLRB No. 151)  Acampo, CA, July 29, 2015. 

The Board granted the General Counsel’s motion for summary judgment in this refusal-to-bargain test-of-certification case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the Charging Party Union was certified as the exclusive collective-bargaining representative of the unit employees.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union since March 25, 2015.  Charge filed by Cannery, Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 601, International Brotherhood of Teamsters.  Chairman Pearce and Members Hirozawa and McFerran participated.

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200 East 81st Restaurant Corp. d/b/a Beyoglu  (02-CA-115871; 362 NLRB No. 152)  New York, NY, July 29, 2015.

A Board Panel majority consisting of Chairman Pearce and Member McFerran affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) of the Act by discharging an employee because the employee filed a class action lawsuit in federal district court alleging certain violations of the Fair Labor Standards Act.  The majority, based on the views expressed in D. R. Horton, 357 NLRB No. 184 (2012), enf. denied in part 737 F.3d 344 (5th Cir. 2013), and in the majority opinion in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), found that an individual employee filing an employment-related class or collective action is seeking to initiate or induce group action and therefore is engaged in concerted activity protected by Section 7 of the Act.  Member Miscimarra, dissenting, would find that the employee’s individual act of filing a FLSA lawsuit was not concerted activity.  Because of his view that filing the lawsuit was not concerted activity and there is no evidence that the Respondent believed the employee engaged in any other concerted activity, Member Miscimarra would find that the employee’s discharge was not unlawful.

Administrative Law Judge Raymond P. Green issued his decision on April 29, 2014.  Charges filed by an individual.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Leon James, DDS d/b/a Serenity Dental Spa, P.A.  (16-CA-123727 and 16-CA-127480; 362 NLRB No. 116)  Arlington and Duncanville, TX, July 29, 2015.

The Board issued a correction to the June 12, 2015 Decision and Order.  Errata   Amended Decision.

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Keller Construction, Inc.  (14-CA-122352 and 14-CB-116188; 362 NLRB No. 153)  Glen Carbon, IL, July 30, 2015.

The Board adopted the Administrative Law Judge’s finding that Respondent Laborers International Union of North America, Local 397 violated Section 8(b)(1)(A) and (2) of the Act by requesting that Respondent Keller Construction, Inc. lay off the charging party, and that Keller Construction violated Section 8(a)(3) and (1) by acquiescing in Local 397’s request.  In adopting the judge’s dismissal of an allegation that Local 397 violated Section 8(b)(2) by failing to assist GRP Mechanical in hiring the charging party for work located outside of Local 397’s jurisdiction, the Board relied on the absence of evidence that Local 397 directly prevented GRP Mechanical from hiring him, prevented the Company from following proper procedure by contacting the local with jurisdiction over the work, or said anything that could reasonably be understood by the Company as a request to refrain from hiring the charging party through proper channels.  Contrary to the judge, the Board further found that Local 397’s failure to assist GRP Mechanical did not violate Section 8(b)(1)(A).  In reversing the judge, the Board found insufficient evidence to support the inference on which the judge relied in finding the violation.

Charges filed by an individual.  Administrative Law Judge Arthur J. Amchan issued his decision on June 10, 2014.  Chairman Pearce and Member Johnson and McFerran participated.

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Columbia Memorial Hospital  (03-CA-120636, et al.; 362 NLRB No. 154)  Hudson, NY, July 30, 2015.

The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(3) and (1) by disciplining an employee with a verbal warning and a five-day suspension for allowing a Union representative access to the facility and alleged dishonesty during the subsequent investigation.  The Board found that the General Counsel met his initial Wright Line burden, relying on evidence, in addition to timing, to find animus, and that the Respondent failed to demonstrate that it would have taken the same actions regardless of the employee’s union activity.  Charge filed by 1199 SEIU United Healthcare Workers East.  Administrative Law Judge Kenneth W. Chu issued his decision on January 12, 2015.  Members Hirozawa, Johnson, and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Pro Labor II, Inc./ACECO, LLC  (05-RC-149858)  Alexandria, VA, July 27, 2015.  Order denying the Petitioner’s and ACECO’s requests for review of the Regional Director’s Decision and Direction of Election.  Petitioner—Construction and Master Laborers’ Local Union No. 11, affiliated with Laborers’ International Union of North America.  Chairman Pearce and Members Hirozawa and McFerran participated.

Sabreliner Aviation, LLC  (14-RD-135815)  St. Genevieve, MO, July 27, 2015.   Board Order granting the Union’s amended request to file an opposition statement out of time.

Pacific Gas & Electric Co.  (20-RC-140248)  San Ramon, CA, July 29, 2015.  The Board adopted the Regional Director’s findings and recommendations that Petitioner’s Objections 2, 3, 12, and 13 be overruled in their entirety. The Board remanded the case to the Regional Director for further appropriate action, as the Regional Director had set other Petitioner Objections for a hearing.  Petitioner—Engineers and Scientists of California, Local 20, IFPTE, AFL-CIO & CLC.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Oceanic Time Warner Cable, LLC  (20-RC-145340)  Kailua-Kona, HI, July 31, 2015.  The Board adopted the hearing officer’s recommendation to sustain the challenge to the ballot of the Employer’s dispatcher.  Applying the standard set forth in Caesar’s Tahoe, 337 NLRB 1096 (2002), the Board found that the extrinsic evidence revealed the parties intended to not include the dispatcher in the stipulated unit. There were no exceptions to the hearing officer’s recommendation to sustain the challenge to the Employer’s OSP Engineer II. Accordingly, the Board certified the Petitioner, International Brotherhood of Electrical Workers, Local 1186, as the exclusive collective-bargaining representative of the employees in the appropriate unit. Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

New York Party Shuttle, LLC  (02-CA-073340)  New York, NY, July 28, 2015.  Order denying the Employer’s petition to revoke an investigative subpoena, based on the Employer’s lack of standing concerning a petition addressed to a third party, as well as on the merits.  Member Miscimarra, agreeing that the Employer had not established a sufficient basis for revoking the subpoena, did not reach the issue of standing.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and McFerran participated.

The Imperial Sales, Inc.  (29-CA-147909)  Syosset, NY, July 28, 2015.  Order denying a third party’s petition to revoke an investigative subpoena duces tecum.  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 third party failed to establish any other legal basis for revoking the subpoena.  Chairman Pearce and Members Hirozawa and McFerran 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

Kitsap Tenant Support Services, Inc.  (19-CA-108144, et al.; JD(SF)-29-15)  Bremerton, WA.  Administrative Law Judge Ariel L. Sotolongo issued her decision on July 28, 2015.  Charges filed by Washington Federation of State Employees, American Federation of State, County and Municipal Employees, Council 28, AFL-CIO.

New York City District Council of Carpenters Apprenticeship, Journeyman Retraining, Educational, and Industry Fund  (02-CA-121358 and 02-CA-121477; JD(NY)-36-15)  New York, NY.  Administrative Law Judge Lauren Esposito issued her decision on July 30, 2015.  Charges filed by individuals.

United States Postal Service  (28-CA-128635; JD(SF)-27-15)  Tucson, AZ.  Administrative Law Judge John J. McCarrick issued his decision on July 30, 2015.  Charge filed by National Association of Letter Carriers, Carl J. Kennedy, Branch 704, affiliated with National Association of Letter Carriers, AFL-CIO.

Apogee Retail, NY, LLC d/b/a Unique Thrift Store  (02-CA-133989, et al.; JD(NY)-31-15)  Bronx, NY.  Administrative Law Judge Raymond P. Green issued his decision on July 30, 2015.  Charges filed by Local 338, RWDSU/UFCW.

UPMC and its subsidiary, UPMC Presbyterian Shadyside, single employer, d/b/a UPMC Presbyterian Hospital and d/b/a UPMC Shadyside Hospital  (06-CA-102465, et al.; JD-43-15)  Pittsburgh, PA.  Administrative Law Judge Mark Carissimi issued his supplemental decision on July 31, 2015.  Charges filed by SEIU Healthcare Pennsylvania CTW, CLC.

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