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Summary of NLRB Decisions for Week of July 5 - 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

Bristol Farms  (21-CA-103030; 364 NLRB No. 34)  Carson, CA, July 6, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran found that the Respondent violated Section 8(a)(1) by maintaining and enforcing an arbitration agreement that requires employees to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  Member Miscimarra dissented from these findings for the reasons explained in his partial dissenting opinion in Murphy Oil USA, Inc.  However, the panel unanimously found that maintaining the arbitration agreement violated Section 8(a)(1) because employees reasonably would believe that the agreement bars or restricts their right to file unfair labor practice charges with the Board.

Charge filed by an individual.  Administrative Law Judge Lisa Thompson issued her decision on October 17, 2014.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Sunbelt Rentals, Inc.  (07-RC-163178)  Sterling Heights, MI, July 5, 2016.  The Board denied the Employer’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—Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

New York Methodist Hospital and MSO of Kings County, LLC, a single employer  (29-RC-172410)  Brooklyn, NY, July 7, 2016.  The Board denied the Employer’s request to stay an Armour-Globe self-determination election, or, alternatively, to impound of the ballots, pending the Board’s determination of the Employer’s Request for Review.  The Employer had asserted that a stay was appropriate because the ballot language did not inform the employees that they were voting as to whether join existing bargaining units and that the Regional Director had erred in directing “micro-residual” elections.  Petitioner—1199 SEIU, United Healthcare Workers East.  Chairman Pearce and Members Hirozawa and McFerran participated.

Nuverra Environmental Solutions, Inc.  (08-RC-164447)  Diamond, OH, July 8, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order Overruling Objection and Certification of Representative.  In denying review, the Board stated that it agreed with the Regional Director’s conclusion that, under the test articulated in B & D Plastics, Inc., 302 NLRB 245 (1991), the Employer had not shown that the Petitioner’s holiday ham giveaway tended to unlawfully influence the outcome of the election.  In this regard, the Board emphasized that although a potentially dispositive number of employees received free hams, (1) the hams were of modest value, (2) the giveaway’s stated purpose was to extend holiday greetings to the Petitioner’s members, their families, and friends, (3) the Petitioner informed only one employee (and only after that employee specifically inquired) that unit employees were eligible for the giveaway, (4) attending the giveaway and accepting the hams were entirely voluntarily, (5) at no point did the Petitioner link the giveaway to the pending election, and (6) the Petitioner gave hams only to those employees who attended the giveaway.  The Board therefore found that, under these circumstances, those employees aware of the giveaway could not have reasonably viewed it as intended to influence their votes.  The Board also found that the proximity of the giveaway to the election (5-6 days before) was not dispositive under these circumstances, and noted that the Board has declined to set aside elections where a benefit was granted even closer to the election.  Finally, the Board stated that, even assuming the giveaway warranted an inference that the free hams were coercive, the Petitioner rebutted this inference by providing an explanation for the timing of the giveaway unrelated to the election, given uncontradicted evidence that the giveaway is a yearly event that is open to all current and prospective members of the Petitioner.  Petitioner—Teamsters Local #348.  Members Miscimarra, Hirozawa, and McFerran participated.

C Cases

United States Postal Service  (10-CA-156616)  Raleigh, NC, July 6, 2016.  The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charge filed by National Postal Mail Handlers Union, Local 305.  Members Miscimarra, Hirozawa, and McFerran participated.

Southern Bakeries, LLC  (15-CA-170425)  Foreman, AR, July 6, 2016.  The Board denied the Employer’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, and that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Members Miscimarra, Hirozawa, and McFerran participated.

Alcoa, Inc. – Cleveland Works  (08-CA-164890)  Cleveland, OH, July 6, 2016.  The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charge filed by United Automobile Aerospace and Agricultural Implement Workers of America, UAW, Local 1050.   Members Miscimarra, Hirozawa, and McFerran participated.

Weyerhaeuser NR Company  (19-CA-156421)  Longview, WA, July 7, 2016.  No exceptions having been filed to the May 27, 2016 decision of Administrative Law Judge Gerald M. Etchingham’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 judge’s recommended Order.  Charge filed by Association of Western Pulp and Paper Workers.

Southern California Edison  (21-CA-150088 and 21-CA-160924)  Rosemead, CA, July 7, 2016.  No exceptions having been filed to the May 26, 2016 decision of Administrative Law Judge Mark Carissimi’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 judge’s recommended Order.  Charges filed by International Brotherhood of Electrical Workers, Local 47, AFL-CIO.

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Appellate Court Decisions

RGIS, LLC, Board Case No. 28-CA-136313 (reported at 363 NLRB No. 132) (5th Cir. decided July 7, 2016)

In an unpublished per curiam order, the Fifth Circuit granted the Employer’s motion for summary reversal of the Board’s decision that found that the Employer violated Section 8(a)(1) of the Act by maintaining, as a condition of employment, an arbitration agreement that waived employees’ right to pursue class or collective actions in employment-related claims in all forums, whether arbitral or judicial.  The order issued several weeks 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 2277 (Jan. 3, 2012), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014).

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Administrative Law Judge Decisions

RIM Hospitality  (21-CA-137250; JD(SF)-27-16)  Los Angeles, CA.  Errata to the June 15 Decision of Administrative Law Judge Jeffrey D. Wedekind.  Erratum   Amended Decision.

Briad Wenco, LLC, d/b/a Wendy’s Restaurant  (29-CA-165942; JD(NY)-24-16)  Livingston, NJ.  Administrative Law Judge Joel P. Biblowitz issued his decision on July 6, 2016.  Charge filed by Fast Food Workers Committee.

Airgas USA, LLC  09-CA-158662; JD-61-16)  Cincinnati, OH.  Administrative Law Judge Donna N. Dawson issued her decision on July 7, 2016.  Charge filed by an individual.

Loshaw Thermal Technology, LLC  (05-CA-158650; JD-64-16)  Spring Grove, PA.  Administrative Law Judge Eric M. Fine issued his decision on July 7, 2016.  Charge filed by International Association of Heat and Frost Insulators and Asbestos Workers, Local Union No. 23.

Paragon Systems, Inc.  (09-CA-162681 and 09-CA-162706; JD-65-16)  Louisville, KY.  Administrative Law Judge Ira Sandron issued his decision on July 8, 2016.  Charges filed by The Protection & Response Officers of America, Inc.

Greif Packaging, LLC  (09-CA-060244; JD-63-16)  Florence, KY.  Administrative Law Judge Melissa M. Olivero issued her decision on July 8, 2016.  Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied, Industrial and Service Workers International Union, AFL-CIO-CLC.

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