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Summary of NLRB Decisions for Week of July 6 - 10, 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

SBM Management Services  (05-CA-129128 and 05-RC-126500; 362 NLRB No. 144)  Elkton, VA, July 8, 2015.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) and engaged in objectionable conduct by distributing bonuses to 11 employees in a bargaining unit of approximately 35 employees during the critical period.  The Board set aside the election result and directed a second election.  Charge and Petition filed by International Chemical Workers Union Council, UFCW.  Administrative Law Judge Arthur J. Amchan issued his decision on December 8, 2014.  Members Miscimarra, Hirozawa, and Johnson participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Miller & Anderson, Inc.  (05-RC-079249)  Bedford Park, IL, July 6, 2015.  The Board invited the filing of briefs by the parties and interested amici to address specific questions related to the Board’s decisions in Oakwood Care Center, 343 NLRB 659 (2004) and M.B. Sturgis, 331 NLRB 1298 (2000).

Live Nation Entertainment, Inc. (04-RC-143064) Philadelphia, PA, July 6, 2015.  Erratum to the Board’s June 29, 2015 Decision and Certification of Representative.  Erratum   Amended Decision.

Con-Way Freight  (21-RC-136550)  Santa Fe Springs, CA, July 7, 2015.  No exceptions having been filed to the hearing officer’s overruling of the Petitioner Union’s objections to an election held October 23, 2014, the Board adopted the hearing officer’s findings and recommendations, and certified that a majority of the valid ballots had not been cast for the Petitioner, International Brotherhood of Teamsters, Local 63, and therefore it is not the exclusive collective-bargaining representative of the unit employees.

Schuff Steel Company  (32-RC-141750)  Stockton, CA, July 7, 2015.  No exceptions having been filed to the hearing officer’s overruling of the Petitioner Union’s objections to an election held January 7, 2015, the Board adopted the hearing officer’s findings and recommendations, and certified that a majority of the valid ballots had not been cast for the Petitioner, Shopmen’s Iron Workers Local 790, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO, and therefore it is not the exclusive collective-bargaining representative of the unit employees.

Mercy Regional Medical Center  (08-RC-145951)  Lorain, OH, July 7, 2015.  No exceptions having been filed to the hearing officer’s overruling of the Petitioner Union’s objections to an election held March 19, 2015, the Board adopted the hearing officer’s findings and recommendations, and certified that a majority of the valid ballots had not been cast for the Petitioner, SEIU District 1199 WV/KY/OH The Health Care and Social Service Union, CTW, CLC, and therefore it is not the exclusive collective-bargaining representative of the unit employees.

Webster University  (14-RC-149539)  St. Louis, MO, July 7, 2015.  No exceptions having been filed to Regional Director’s sustaining of the challenge to a ballot of a voter in a mail-ballot  election held between April 24 and May 8, 2015, the Board adopted the Regional Director’s findings and recommendations,  and certified that a majority of the valid ballots had not been cast for the Petitioner, Service Employees International Union, Local 1, and therefore it is not the exclusive collective-bargaining representative of the unit employees.

Relco Locomotives, Inc.  (18-RC-147723)  Minneapolis, MN, July 7, 2015.  No exceptions having been filed to the hearing officer’s overruling of the Petitioner Union’s objections to an election held April 16 and 17, 2015, the Board adopted the hearing officer’s findings and recommendations, and certified that a majority of the valid ballots had not been cast for the Petitioner, SMART (Sheet Metal, Air, Rail and Transportation Workers), and therefore it is not the exclusive collective-bargaining representative of the unit employees.

Lakeview Terrace Skilled Nursing Facility, LLC  (31-RD-147734)  Los Angeles, CA, July 8, 2015.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order on the ground that it raised no substantial issues warranting review.  Petitioner—an individual.  Involved Union—Service Employees International Union, United Long Term Care Workers.  Chairman Pearce and Members Hirozawa and McFerran participated.

Con-Way Freight  (16-RC-133896)  Laredo, TX, July 8, 2015.  The Board adopted the hearing officer’s recommendations to overrule the Employer’s objections to an election held on September 12, 2014.  In adopting the hearing officer’s recommendation to overrule the Employer’s Objection 10, which alleged that the Union coerced employees by damaging pro-Employer employees’ vehicles, the Board stated that it did not rely on the hearing officer’s finding that some or all of the vehicle damage may have been tied to the election in some undefined way. The Board found that by merely establishing that the vehicles of four pro-Employer employees sustained damage prior to the election, the Employer failed to show that the vehicle damage was linked to the election campaign, the Union, or even Union supporters. The Board also stated that it did not rely on the employees’ subjective reactions to the vehicle damage.  Member Johnson agreed that the Employer’s Objection 10 should be overruled because the Employer failed to establish that the damage done to specific employees’ vehicles created a general atmosphere of fear and reprisal.  He noted, however, that there may be instances where it would be reasonable to attribute vehicle damage to a certain party to an election, even in the absence of express threats of vehicle damage or specific evidence of responsibility.  Accordingly, the Board certified the Petitioner Union as the exclusive collective-bargaining representative of the unit employees.  Petitioner—International Brotherhood of Teamsters, Local 657.  Chairman Pearce and Members Johnson and McFerran participated.

C Cases

Temp-Air, Inc.  (18-CA-128364)  Burnsville, MN, July 7, 2015.  No exceptions having been filed to Administrative Law Judge Melissa M. Olivero’s May 19, 2015 decision 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 Teamsters Local 970.

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union International, Local 1192, AFL-CIO, CLC (Buckeye Florida Corporation, a Subsidiary of Buckeye Technologies, Inc., and Georgia Pacific, LLC)  (12-CB-109654)  Perryville, FL, July 7, 2015.  The Board suspended the invitation to file briefs issued in this case on April 15, 2015, until it acts on the Respondent’s and the General Counsel’s joint motion to withdraw their respective exceptions and cross exceptions.

Lewis Foods of 42nd Street, LLC, A McDonald’s Franchisee, and McDonald’s USA, LLC, a joint employer  (02-CA-093893, et al.)  New York, NY, July 10, 2015.  The Board denied Respondent McDonald’s USA’s request for special permission to supplement its request for special permission to appeal portions of the March 3, 2015 Case Management Order of Administrative Law Judge Lauren Esposito.  The Board declined to address those issues because a motion raising the same issues is currently pending before the Judge.  Charges filed by Fast Food Workers Committee and Service Employees International Union, CTW, CLC et al.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Anderson Erickson Dairy Co.  (18-CA-144227 and 18-CA-145700)  Des Moines, IA, July 10, 2015.  Order denying the Respondent’s motion for partial summary judgment and to defer certain complaint allegations.  Charges filed by Teamsters Union Local 120 and an individual.  Chairman Pearce and Members Hirozawa and McFerran participated.

WRS Environmental Services, Inc.  (29-CA-144985)  Yaphank, NY, July 10, 2015.  Order denying 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.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  The Board found it unnecessary to pass on the Region’s argument that the petition should be denied on the grounds of timeliness.  Members Hirozawa, Johnson, and McFerran participated.

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Appellate Court Decisions

Atlas Refinery, Inc. Board Case No. 22-CA-028403 (reported at 357 NLRB No.155) (3d Cir. decided July 9, 2015)

In an unpublished opinion, the Court enforced the Board’s order remedying  numerous unfair labor practices that the Board found Atlas committed during negotiations with the Union for a successor collective-bargaining agreement.

In January 2010, the Board’s only two sitting members issued a decision adopting the administrative law judge’s finding that Atlas violated Section 8(a)(3) and (1) by discharging five employees for supporting the Union, and violated Section 8(a)(5) and (1) in numerous respects, including refusing to bargain unless the union removed one individual from its bargaining team, unilaterally implementing new terms and conditions of employment in the absence of a lawful impasse, locking out employees in order to evade its duty to bargain with the Union, and withdrawing recognition from the Union based solely on the resignation letters that Atlas had unlawfully solicited employees to sign.  Following New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), a duly-constituted panel of the Board (Chairman Pearce, Members Becker and Hayes) reviewed the case and, on December 29, 2011, issued a decision and order adopting the judge’s findings for the reasons stated in the 2010 decision.  Thereafter, the Board sought enforcement of its order, but the Court placed the case in abeyance because Member Becker was on the Board panel.  After the issuance of NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), which recognized the validity of his appointment, the Court resumed processing the case.

Before the Court, Atlas did not contest the unfair-labor-practice findings.  Instead, it challenged a footnote in the Board’s decision explaining that, at the compliance stage, it would have the opportunity to show, based on evidence not available at the close of the unfair labor practice hearing, that restoring the status quo would be unduly burdensome.  Atlas contended that at the compliance stage, it should also be permitted to introduce evidence that was available during the hearing.  The Court, however, found that it lacked jurisdiction to consider Atlas’s challenge because it had failed to preserve the issue by filing an exception with the Board or demonstrating extraordinary circumstances to excuse its failure.  Accordingly, the Court granted the Board’s application for enforcement.

The Court’s opinion is here.

 

AT & T East, Board Case No. 34-CA-012451 (reported at 356 NLRB No. 418) (D.C. Circuit decided under the name Southern New England Telephone Co. v. NLRB, July 10, 2015)

In a published opinion that issued today, the Court granted Southern New England Telephone Company’s (“SNET”) petition for review and vacated the Board’s decision and order with respect to the Board’s finding that it was unlawful for SNET to ban employees who interacted with the public from wearing “Inmate/Prisoner” shirts.

As part of a public campaign to put pressure on SNET during contentious contract negotiations, the Communication Workers of America distributed T-shirts to its members, the front of which said “Inmate #” and had a black box beneath the lettering, and the back of which said “Prisoner of AT&T.”  The union had encouraged employees to wear the shirt to work and SNET issued one-day suspensions to 183 publicly visible employees who did not comply with their directive to remove the shirt.

The Board found the suspensions unlawful because SNET had not shown “special circumstances” for banning a shirt with this Section 7-protected message.  Specifically,  given the range of T-shirts with questionable messages that SNET had tolerated, the Board found SNET had not shown that this shirt would reasonably have been mistaken for prisoner garb and that the employee wearing the shirt would be seen as a convict as opposed to an SNET employee.

On review, while the court agreed with the Board that the employer bears the burden of demonstrating “special circumstances” before banning apparel exhibiting a message protected by Section 7, the court concluded the Board had applied the test in an unreasonable way.   The court stated the appropriate test for “special circumstances” is not whether SNET customers would confuse the “Inmate/Prisoner” shirt with actual prison garb, but whether SNET could reasonably believe that the message may harm its relationship with its customers or its public image.  The court also stated that an employer may arrive at this reasonable belief without awaiting evidence of actual harm to its relationship with its customers and that an employer may hold such a reasonable belief even though on other occasions it has allowed unprofessional clothing to be worn by publicly visible employees.

The Court’s opinion is here.

 

Children's Hospital & Research Center at Oakland d/b/a Children's Hospital of Oakland, Board Case No. 32-CA-086106 (reported at 360 NLRB No. 56) (D.C. Circuit decided July 7, 2015)

In a published opinion the Court granted the petition for review of a Board Order against Children’s Hospital of Oakland for refusing to arbitrate three pending grievances with the union that had previously represented its employees, and remanded the case to the Board for further proceedings.

Until May 2012, a unit of employees at Children’s Hospital was represented by SEIU, United Healthcare Workers-West.  The collective-bargaining agreement included a grievance-arbitration provision and, as of May, three grievances that arose under the contract were pending.  On May 16, employees voted to replace SEIU with the National Union of Healthcare Workers, and on May 24, the Board certified NUHW as the bargaining representative of Children’s Hospital employees.   After the election, SEIU sought to arbitrate the three pending grievances.  Children’s Hospital refused.

Adopting the ALJ’s decision, the Board found that the refusal was an 8(a)(5) violation because Children’s Hospital had a duty to arbitrate with SEIU the pending grievances that arose under their contract even though SEIU subsequently had been decertified and replaced with a new union.  The Board relied on previous cases holding that an employer’s duty to arbitrate pending grievances remains extant after the collective-bargaining agreement providing for arbitration expires or the union no longer represents its employees, as well as that an employer has no duty to arbitrate grievances brought by a predecessor union with a newly certified union, as “compelling signals” that Children’s Hospital also had a duty to arbitrate with SEIU under the circumstances of the case.  Characterizing the grievances as “unfinished business” involving only backpay and reinstatement, the Board found that arbitration would not affect terms and conditions of employment going forward or otherwise interfere with Children’s Hospital’s new bargaining relationship with NUHW.

On review, the Court faulted the Board for “not mak[ing] a serious effort to grapple with” the tension between an employer’s duty under Section 8(a)(5) to complete unfinished business with a predecessor union and its obligation under Section 9(a) to deal exclusively with the majority bargaining representative.  The cited cases did not deal with the precise situation of a newly certified union.  Describing the issue as “one that the NLRA does not unambiguously resolve,” the Court posited that the case “presents a classic scenario for which the two-step framework from Chevron USA, Inc. v. NRDC . . . was designed.”  Nonetheless, the Court noted that the Board did not discuss or interpret Section 9(a), and thus left the Court with no analysis to which to defer under Chevron.

The Court’s decision may be found here.

 

Venetian Casino Resort, LLC, Board Case No. 28-CA-016000 (reported at 357 NLRB No. 147) (D.C. Cir. decided July 10, 2015)

In a published opinion, the Court granted the petition for review filed by this Las Vegas, Nevada casino operator and vacated the Board’s decision.  The court held, contrary to the Board’s conclusion, that a request that police cite or expel demonstrators for trespass constitutes a direct petition of government within the meaning of the First Amendment’s Petition Clause.  See U.S. Const. amend. I (protecting “the right of the people . . . to petition the Government for a redress of grievances”).  The court however also acknowledged that only genuine petitions warrant First Amendment protection.  Because the Board had not addressed whether Venetian’s request was a sham petition, the court remanded the case for consideration of that limited issue.

This case has a long history stemming from Venetian’s conduct in 1999 during a demonstration organized by the Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, on a temporary walkway in front of the newly built casino.  Throughout the demonstration, Venetian played a recorded message over loudspeakers stating that the demonstrators were trespassing on private property and subject to arrest under Nevada’s criminal trespass statute.  At one point, Venetian asked the police officers on the scene to issue criminal trespass citations to the demonstrators and to force their removal from the walkway, and a Venetian security guard attempted to stage a citizen’s arrest of a union representative.  Soon thereafter, Venetian filed suit for injunctive and declaratory relief against the unions and various government entities on its trespass theory, but ultimately the Ninth Circuit held that the walkway was a public forum.  See Venetian Casino Resort, LLC v. Local Joint Executive Board of Las Vegas, 257 F.3d 937 (9th Cir. 2001), cert. denied, 535 U.S. 905 (2002).  In turn, the unions filed unfair-labor-practice charges.

The administrative law judge issued a decision finding that the demonstration was protected by Section 7 and that Venetian unlawfully interfered with it by broadcasting the trespass message, by requesting that the police issue trespass citations or force the removal of demonstrators, and by staging the citizen’s arrest.  On review, the Board affirmed the judge’s recommended findings.  See Venetian Casino Resort, LLC, 345 NLRB 1061 (2005).  After Venetian petitioned for review, the D.C. Circuit upheld the Board’s decision on all but one issue.  Specifically, the court rejected Venetian’s theory that its conduct during the demonstration was an exercise of its First Amendment right to petition the government with respect to its broadcast of the trespass message and its attempted citizen’s arrest.  The court therefore enforced those portions of the Board’s order.  See Venetian Casino Resort, LLC v. NLRB, 484 F.3d 601 (D.C. Cir. 2007).

The court, however, remanded to the Board the question whether Venetian’s request that the police cite or expel the demonstrators from the walkway was a petition protected from unfair labor practice liability under the First Amendment’s Noerr-Pennington doctrine.  That doctrine, which was developed by the Supreme Court in a series of antitrust cases, may immunize from liability certain conduct that would otherwise violate a federal statute when necessary to ensure that the statute does not abridge the First Amendment right to petition the government.  See Eastern R.R. Presidents Conference v. Noerr Motor Freight Inc., 365 U.S. 127 (1961); United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965).  It is founded on the general principle that when a person petitions the government in good faith, the First Amendment prohibits any sanction on that action.  However, recognizing that “context matters,” the court cautioned that “expanding First Amendment protection in labor law for an employer’s arguably expressive conduct may result in constricting the scope of employees’ expressive activity protected by Section 7.”  As such, the court found that the Board must decide the issue in the first instance.

On remand, after inviting supplemental briefing, the Board reviewed the pertinent First Amendment cases and determined that generally only “petitions that seek the passage of a law or rule, or a significant policy decision regarding enforcement,” are entitled to protection.  Applying the principles of Section 8(a)(1) and the Noerr-Pennington doctrine to “the factual context presented,” the Board concluded that Venetian did not engage in direct petitioning, but rather that Venetian’s request to the police at the demonstration was simply an attempt to eject the demonstrators and interfere with the lawful union demonstration.  Unlike the defendants’ actions in Noerr, the Board held, Venetian’s summoning of police was not an attempt to influence government policymakers.  The Board therefore found that Venetian’s conduct violated Section 8(a)(1) of the Act.

Back on review before the D.C. Circuit, the court held that “the act of summoning the police to enforce state trespass law is a direct petition to government subject to protection under the Noerr-Pennington doctrine,” because “requesting police enforcement of state trespass law is an attempt to persuade the local government to take particular action with respect to a law.”  Accordingly, the court concluded, that summoning the police “fits squarely within the traditional mold of a petition.”  In particular, the court found persuasive the Ninth Circuit’s explanation that “the interests embodied by the Petition Clause are ‘served by ensuring the free flow of information to the police,” and that it “‘would be difficult indeed for law enforcement authorities to discharge their duties if citizens were in any way discouraged from providing information,’” quoting Forro Precision, Inc. v. International Business Machines Corp., 673 F.2d 1045, 1060 (9th Cir. 1982).  That said, as the court further explained, the Noerr-Pennington doctrine does not cover activity that was not genuinely intended to influence government action, and that while “genuine petitioning is immune from” Section 8(a)(1) liability under the Noerr-Pennington doctrine, “sham petitioning is not,” quoting BE&K Construction Co. v. NLRB, 536 U.S. 516, 526 (2002).  A petition, the court stated, is a sham if it is “objectively baseless” and is “brought with the specific intent to further wrongful conduct through the use of governmental process.”  Given that the Board never addressed whether the Venetian’s attempt to summon the police constituted a sham petition, the court remanded that issue for the Board’s consideration in the first instance.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Alternative Entertainment, Inc.  (07-CA-144404; JD-39-15)  Byron Center, MI.  Administrative Law Judge Michael A. Rosas issued his decision on July 9, 2015.  Charge filed by an individual.

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