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Summary of NLRB Decisions for Week of June 27 - July 1, 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

Graymont PA, Inc.  (06-CA-126251; 364 NLRB No. 37)  Pleasant Gap, PA, June 29, 2016.

A Board majority consisting of Chairman Pearce and Members Hirozawa and McFerran affirmed the Administrative Law Judge’s finding that the Union did not clearly and unmistakably waive its right to bargain over changes to the Respondent’s work rules, absenteeism policy, and progressive discipline schedule, and that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing such changes.

Chairman Pearce and Members Hirozawa and McFerran also found, contrary to the judge, that the Respondent violated Section 8(a)(5) and (1) by failing to timely inform the Union that the Respondent did not possess information the Union requested about the rule and policy changes.  In doing so, they overruled Raley’s Supermarkets & Drug Centers, 349 NLRB 26 (2007), to the extent it held that for issues involving a failure to timely disclose that requested information does not exist, a finding of a violation is necessarily precluded by the absence of a specific complaint allegation.  The Board held instead that the test in Pergament United Sales, Inc., 296 NLRB 333 (1989), enfd. 920 F.2d 130 (2d Cir. 1990), is applicable in determining whether the unalleged information-request violation may be considered, and that it would not cause manifest injustice to apply the standard retroactively in this case.  Applying Pergament, the majority found that the issue concerning the Respondent’s 6-month delay in disclosing that it had no information responsive to the Union’s request was closely connected to the subject matter of the complaint and was fully litigated.  The majority therefore found that the Respondent was afforded due process, that it was not prejudiced by the absence of a complaint allegation pertaining to the “nonexistence of information,” and that it was appropriate for the Board to reach the merits of the issue.  Turning to the merits, the majority found that the record evidence established the 8(a)(5) violation.

Member Miscimarra, dissenting, would have dismissed the complaint in its entirety.  He would find that the Union clearly and unambiguously granted the Respondent the right to make the changes at issue.  Alternatively, he would find, under the “contract coverage” standard, that the parties had already bargained and had agreed that the Respondent had the right to make the changes at issue unilaterally.  Having found that the Respondent had the right to make the changes at issue without bargaining over them, Member Miscimarra would find that the Respondent had no obligation to provide the Union with requested information relating to the Respondent’s decision to implement the changes.

Charge filed by Local Lodge D92, United Cement, Lime, Gypsum and Allied Workers, a Division of International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO.  Administrative Law Judge David I. Goldman issued his decision on December 30, 2014.  Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.

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Engineering Contractors, Inc. and ECI of Washington, LLC, Alter Egos (05-CA-036213, et al.; 364 NLRB No. 32) Upper Marlboro, MD, June 29, 2016.  Errata to June 23, 2016 Supplemental Decision and Order.  Errata   Amended Decision

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Grill Concepts Services, Inc. d/b/a The Daily Grill  (31-CA-126475, 31-CA-132845, and 31-CA-135061; 364 NLRB No. 36)  Los Angeles, CA, June 30, 2016.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by making implied threats of job loss, soliciting employee complaints and grievances, interrogating employees about their union activities and the union activities of other employees, creating the impression that employees’ union activity was under surveillance, promising employees several benefits in order to discourage union support, and promulgating and maintaining overly broad employee work rules.  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 808 F.3d 1013 (5th Cir. 2015), the Board affirmed the judge’s finding that the Respondent violated Section 8(a)(1) by promulgating and maintaining 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, and that employees would reasonably believe either bars or restricts their right to file charges with the Board.  The Board reversed the judge’s dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) by promulgating and maintaining a rule prohibiting employees from wearing union pins on their uniforms.  Contrary to the judge, the Board found that the Respondent failed to demonstrate special circumstances, i.e., an unreasonable interference with its public image, justifying its prohibition on union pins.  The Board further found that the Respondent violated Section 8(a)(3) and (1) by disciplining employees for violating the unlawful rule and Section 8(a)(1) by threatening to discipline an employee if she wore a union pin on her uniform again.

Charges filed by Unite Here, Local 11.  Administrative Law Judge Eleanor Laws issued her decision on August 6, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Falck Northeast Corp.  (04-RC-169974)  Philadelphia, PA, June 27, 2016.  The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s Decision and Order (determining that the Employer established that cessation of its Pennsylvania operations was imminent and certain) on the ground that the Petitioner raised no substantial issues warranting review.  The Board noted, however, that if the Petitioner has new evidence indicating the Employer is not proceeding to cease operations by June 30, 2016, the Acting Regional Director has stated that he will entertain a motion by the Petitioner to reinstate the petition.  Petitioner – American Federation of State, County and Municipal Employees District Council 88.  Members Miscimarra, Hirozawa, and McFerran participated.

Saint Martin’s University  (19-RC-173933)  Lacey, WA, June 27, 2016.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Employer’s request to stay the Certification of Representative.  Member Miscimarra, dissenting, would have stayed the Certification until the earlier of (i) the Board’s disposition of the Employer’s forthcoming request for review, or (ii) the expiration of the time for filing a request for review if no such request is timely filed.  Petitioner – Service Employees International Union, Local 925.   Chairman Pearce and Members Miscimarra and Hirozawa participated.

Prime Healthcare Services d/b/a Saint Mary’s Regional Medical Center, Reno  (32-RC-156669)  Reno, NV, June 28, 2016.  The Board granted the Petitioner’s Request for Review of the Regional Director’s Decision and Order solely with respect to whether the Employer’s approximately 24 hospice nurses working out of its satellite facility constitute an appropriate voting group for an Armour-Globe self-determination election.  The Board remanded the case to the Regional Director to determine whether the Board’s Health Care Rule applies to the satellite facility, including whether it is, or is part of, an acute care facility as defined in the Rule; whether the existing unit of registered nurses is an appropriate, conforming unit as defined by the Rule; whether, if the existing unit is nonconforming, holding a self-determination election among the hospice nurses would be appropriate under the principles stated in St. Vincent Charity Medical Center, 357 NLRB 854 (2011); and whether, if conforming, the inclusion of the petitioned-for hospice nurses would render it nonconforming.  In granting review, Member Miscimarra noted his reservation with the holding of St. Vincent Charity Medical Center, but he agreed that a remand to determine the applicability of the Rule is appropriate.  Petitioner – California Nurses Association/National Nurses Organizing Committee/National Nurses United.  Chairman Pearce and Members Miscimarra and Hirozawa participated. 

AAA Transportation/Yellow Cab  (28-RC-106979)  Tucson, AZ, June 29, 2016.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied review of the Regional Director’s Supplemental Decision and Direction of Election (finding the petitioned-for taxicab drivers to be statutory employees and not independent contractors).  Member Miscimarra, dissenting, would have granted the Employer’s Request for Review because he believed that the Employer’s request and the Regional Director’s analysis raised substantial issues warranting review.  Member Miscimarra cited two reasons for granting review.  First, he reasoned that the Regional Director found, contrary to Board precedent, that “the inference of independent contractor status for drivers who pay a fixed lease rate regardless of earnings does not squarely apply here.”  Second, he reasoned that the Regional Director, at several points in his decision, referred to the “economic realities” of the drivers’ relationship with the Employer and the “economic dependency” that drivers have on the Employer.  Member Miscimarra noted that in FedEx Home Delivery, 361 NLRB No. 55, slip op. at 16 (2014), the majority flatly rejected the “economic realities” test endorsed by the Supreme Court in NLRB v. Hearst Publications, 322 U.S. 111 (1944), and subsequently rejected by Congress in the Taft-Hartley Act of 1947, and that the Regional Director appears to have relied, at least in part, on this long-abandoned standard for determining independent contractor status.  The majority rejected Member Miscimarra’s suggestion that the Board must grant review in order to further explicate the Regional Director’s treatment of the inference, discussed in Metro Cab Co., 341 NLRB 722, 724 (2004), that when a driver pays an employer a fixed rental fee and retains all fares that she collects without accounting for those fares, the employer control element of the common law agency test weighs in favor of independent contractor status.  The majority noted that, as illustrated by Metro Cab itself, this inference is not conclusive; there, the Board concluded that the inference was overcome by the strength of other evidence.  The majority found that, in the present case, although the Regional Director may have inartfully chosen his words in stating that this inference “does not squarely apply,” it is clear that he was simply finding that contrary evidence overcame the inference.  The majority also disavowed reliance on the Regional Director’s references to “economic realities” and “economic dependence,” finding that these scattered references did not negate the ample evidence, cited in the Regional Director’s decision, establishing that the drivers were statutory employees.  Petitioner – Tucson Hacks Association.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Cablevision Systems Corp.  (29-RD-138839)  Brooklyn, NY, June 30, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s dismissal of a petition based on pending Section 8(a)(5) surface bargaining charges, applying the Board’s longstanding blocking charge doctrine.  Member Miscimarra noted that he favors a reconsideration of the doctrine for the reasons he expressed in connection with the Board’s representation election rule, but he acknowledged that the Board has declined to materially change its blocking charge doctrine, and he agreed that the Regional Director did not abuse his discretion in applying the doctrine here.  Petitioner – an Individual.  Union – Communications Workers of America, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participating.

C Cases

Greater Lynn Senior Services, Inc.  (01-CA-154720)  Lynn, MA, June 27, 2016.  The Board denied the Respondent’s Motion for Summary Judgment and the General Counsel’s Cross-Motion for Summary Judgment.  The Board found that the Respondent and the General Counsel failed to establish that there are no genuine issues of material fact warranting a hearing and that either party is entitled to judgment as a matter of law.  Chairman Pearce and Members Hirozawa and McFerran participated. 

United States Postal Service  (01-CA-146305, et al.)  Providence, RI, June 29, 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 American Postal Workers Union, AFL-CIO, Local 387.  Members Miscimarra, Hirozawa, and McFerran participated.

United States Postal Service  (10-CA-165443, et al.)  Acworth, Atlanta, Cumming, Ellenwood, Fayetteville, Forest Park, Greenville, Jasper, Lithonia, Newnan, Riverdale, Rome, Sargent, and Union City, Georgia, June 30, 2016.  The Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charges filed by American Postal Workers Union, Atlanta Metro Area Local 32, and National Association of Letter Carriers, Branch 73.  Members Miscimarra, Hirozawa, and McFerran participated.

98 Crystal Palace Restaurant Inc., d/b/a Grand Harmony Restaurant  (02-CA-160359)  New York, NY, June 30, 2016.  No exceptions having been filed to the May 13, 2016 decision of Administrative Law Judge Raymond P. Green’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 318 Restaurant Workers Union.

Anthony & Associates, Inc.  (05-CA-153220)  Bethesda, MD, June 30, 2016.  No exceptions having been filed to the April 13, 2016 decision of Administrative Law Judge Arthur J. Amchan’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 an individual.

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Appellate Court Decisions

The Atelier Condominium and Cooper Square Realty, Inc., as Joint Employers, Board Case No. 02-CA-039459 (reported at 361 NLRB No. 111) (2d Cir. decided June 28, 2016)

In an unpublished summary order, the court enforced the Board’s order issued against this operator of a high-rise luxury condominium building in midtown Manhattan for unfair labor practices committed in response to an organizing campaign by its building-service employees who sought to be represented by Service Employees International Union Local 32BJ.

During the organizing campaign, two employees played key roles in supporting the Union and gathering signatures on authorization cards.  The Board concluded that the Employer violated Section 8(a)(1) by coercively interrogating the two employees, as well as a third employee, and by threatening one of the organizers with unspecified reprisals for supporting the Union; violated Section 8(a)(3) by discharging them both in retaliation for their union activities; and later violated Section 8(a)(1) by filing and maintaining a baseless and retaliatory lawsuit for libel against the other organizer.

On review, the court granted enforcement “substantially for the reasons stated in the Board’s thorough and well-reasoned November 26, 2014 decision, and the decision of the administrative law judge.”  The court wrote only to address the Employer’s contention that the Board erred in failing to recognize that the Employer had lawful reasons for the discharges.  The Employer, for instance, claimed that it discharged both employees for misconduct when they refused to participate in a real-estate scheme run by two managers to manipulate sales in the building—a scheme that the Employer otherwise denied existed.  The court held that while the Employer “technically may not be estopped from maintaining these inconsistent positions,” the Board was correct in finding that, because the Employer bears the burden of proving “a motivation for [its] actions other than retaliation for protected activity,” the Employer’s denial of the scheme’s existence was “critical.”  The court held that the Employer’s remaining purported reasons for the discharges were not supported by record evidence.

The court’s summary order is here.

The Finley Hospital/VNA, Board Case No. 33-CA-014942 (reported at 362 NLRB No. 102) (8th Cir. decided June 27, 2016)

The court, in a published decision, denied enforcement of the Board’s order issued against this operator of medical facilities in Dubuque, Cascade, and Elklander, Iowa, for failing to give its nurses annual raises after its one-year contract with Service Employees International Union, Local 199, expired.

The Board certified the Union in 2003.  After lengthy negotiations, the parties executed a one-year contract in June 2005 that provided for base rate increases for the nurses on their anniversary date during the term of the contract.  In June 2006, while negotiations for a successor agreement were underway, the contract expired and the Employer announced that it would discontinue pay raises because, as it stated in a letter to the nurses, wage increases must be agreed to by the parties in contract negotiations.

The Board (Chairman Pearce and Member McFerran; Member Johnson dissenting) found, in agreement with the Administrative Law Judge, that the Employer violated Section 8(a)(5) and (1) by unilaterally discontinuing the annual raises.  The Board reasoned that the Employer’s “duty to continue to pay such increases pending negotiation of an agreement, was established by the parties’ collective-bargaining agreement.”  The Board distinguished, however, “between the employer’s contractual obligation (if any) to maintain a particular term and condition post-expiration and the employer’s statutory obligation to do so.”  The Board acknowledged that the contract expressly limited the Employer’s contractual obligation to provide annual raises to the one-year term of the contract, but the Board saw nothing in the contract that clearly and unmistakably waived the Employer’s statutory duty to continue paying the annual raises after the agreement’s expiration, and thus found the violation.

On review, the court majority (Circuit Judges Beam and Gruender) disagreed, stating that the contract “sets forth a straight forward, singular pay increase on a particular day during the one-year contract.”  Although the court recognized that an employer with a past history of a merit increase program may not unilaterally discontinue the program, the court majority viewed this case differently.  Acknowledging also that “courts have struggled with deciding exactly how long is long enough” to establish a statutory obligation to continue a merit increase program, here the court held that “a one-time pay increase is clearly insufficient.”  The court found it unnecessary to address whether the Union waived a right to post-expiration raises.  Dissenting, Circuit Judge Murphy criticized the majority’s analysis and explained that she would have enforced the Board’s order.

The court’s opinion is here.

24 Hour Fitness USA, Inc., Board Case No. 20-CA-035419 (reported at 363 NLRB No. 84) (5th Cir. decided June 27, 2016)

In an unpublished one-line per curiam order, the court granted the Employer’s motion for summary reversal of the Board’s decision.  The Board had 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 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 No. 184 (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

MGM Grand Hotel, LLC d/b/a MGM Grand  (28-CA-158941; JD(SF)-29-16)  Las Vegas, NV.  Administrative Law Judge Mara-Louise Anzalone issued her decision on June 27, 2016.  Charge filed by International Union of Operating Engineers Local 501, AFL-CIO.

AdvancePierre Foods, Inc.  (09-CA-153966, et al.; JD-58-16)  Cincinnati, OH.  Administrative Law Judge David I. Goldman issued his decision on June 27, 2016.  Charges filed by United Food and Commercial Workers Union, Local 75 a/w United Food and Commercial Workers International Union.

Denton County Electric Cooperative, Inc. d/b/a Coserv Electric  (16-CA-149330; JD-59-16)  Corinth, TX.  Administrative Law Judge Robert A. Ringler issued his decision on June 28, 2016.  Charge filed by International Brotherhood of Electrical Workers Local 220, affiliated with International Brotherhood of Electrical Workers.

Tampa Electric Company, a wholly owned subsidiary of Teco Energy, Inc. d/b/a Teco Peoples Gas  (12-CA-144359 and 12-CA-152306; JD-60-16)  Sarasota, FL.  Administrative Law Judge Michael A. Rosas issued his decision on June 28, 2016.  Charges filed by International Brotherhood of Electrical Workers, AFL-CIO, Local Union 108.

T-Mobile USA, Inc.  (14-CA-155249, 14-CA-158446, 14-CA-162644, and 14-CA-166164; JD-57-16)  Wichita, KS.  Administrative Law Judge Sharon Levinson Steckler issued her decision on June 28, 2016.  Charges filed by Communications Workers of America, AFL-CIO.

Communications Workers of America, AFL-CIO (Sisters of Charity Hospital of Buffalo, New York)  (03-CB-154807 and 03-CB-162455; JD-56-16)  Cheektowaga, NY.  Administrative Law Judge Donna Dawson issued her decision on June 30, 2016.  Charges filed by Sisters of Charity Hospital of Buffalo, New York.

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