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Summary of NLRB Decisions for Week of June 5 - 9, 2017

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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

Perkins Management Services Company  (13-CA-173696; 365 NLRB No. 90)  Charlotte, IL, June 5, 2017.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of an informal settlement agreement.  The Board found that the Respondent failed to comply with the terms of the settlement agreement, and thus deemed all of the allegations in the reissued complaint to be true.  The Board ordered the Respondent to furnish the Union with requested information and to provide monthly summaries regarding the progress of bargaining to the Compliance Officer.

Charge filed by Unite Here Local 1.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Jacmar Food Service Distribution  (21-CA-193952; 365 NLRB No. 91)  City of Industry, CA, June 6, 2017.

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.  Although Chairman Miscimarra would have granted review in the representation proceeding, he agreed with his colleagues that the Respondent had not raised any new matters that are properly litigable in this unfair labor practice proceeding.

Charge filed by Food, Industrial & Beverage Warehouse Drivers and Clerical Employees, Teamsters Local 630, International Brotherhood of Teamsters.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Midland Electrical Contracting Corp.  (29-CA-144562 and 29-CA-144584; 365 NLRB No. 87)  Staten Island, NY, June 6, 2017.

The Board  (Members Pearce and McFerran; Chairman Miscimarra, dissenting) adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by refusing to make contractually required fund contributions and by failing to apply the terms of a  collective bargaining agreement between the Union and the multiemployer association (the Association) to unit employees. The majority found that found that the Respondent’s attempted withdrawal from the multiemployer bargaining association did not comply with the deadline established in the Respondent’s application for membership in the Association.  Dissenting, Chairman Miscimarra would have found that the Respondent’s withdrawal was not governed by the terms of its application for membership in the Association, but rather by a subsequent agreement. 

Charges filed by United Electrical Workers Union of America, IUJAT, Local 363.  Administrative Law Judge Mindy E. Landow issued her decision on February 1, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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University of Southern California  (31-CA-178831 and 31-CA-192125; 365 NLRB No. 89)  Los Angeles, CA, June 7, 2017.

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.  Chairman Miscimarra would have granted review in the representation proceeding, but agreed with his colleagues that the Respondent had not raised any new matters that are properly litigable in this unfair labor practice proceeding.

Charges filed by Service Employees International Union (SEIU), Local 721.  Chairman Miscimarra and Members Pearce and McFerran participated.

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RHCG Safety Corp.  (29-CA-161261 and 29-RC-157827; 365 NLRB No. 88)  Brooklyn, NY, June 7, 2017.

In this consolidated unfair labor practice and representation case, the Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by interrogating an employee about his union activity.  The majority (Members Pearce and McFerran) also adopted the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging an employee because it believed he was becoming involved with the Union.  Dissenting in part, Chairman Miscimarra would have found that the employee’s employment with the Respondent ended when he voluntarily took time off which precluded a finding that he was discharged.    

Further, the Board unanimously adopted the judge’s recommendation to set aside the election and direct a new election.  The same majority found three independent bases for setting aside the election: (1) approximately 90% percent of the addresses on the voter list were inaccurate; (2) the list omitted the names of at least 15 eligible voters; and (3) the Respondent did not provide phone numbers for any of its employees on the list.  In joining his colleagues to set aside the election, Chairman Miscimarra relied only on the finding that about 90% of the addresses on the voter list were incorrect.  Contrary to the majority, Chairman Miscimarra would find that the omission of employee phone numbers from the voter list did not independently warrant setting aside the election because, in his view, the phone numbers were not available to the Respondent.  He did not reach the question whether the omission of 15 employees from the list independently would require a new election.

Charge filed by Construction & General Building Laborers, Local 79, LIUNA.  Administrative Law Judge Raymond P. Green issued his decision on May 18, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Cellco Partnership d/b/a Verizon Wireless  (29-CA-158754; 365 NLRB No. 93)  Brooklyn, NY, June 9, 2017.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging an employee because of her protected union and concerted activity, and denied the Respondent’s motion to reseal General Counsel Exhibit 49.  In so doing, the Board agreed with the judge that the employee’s discharge was motivated by antiunion animus and that Respondent’s claim that it fired her because of misrepresentations she made during a company investigation was pretextual.  In finding animus, the Board found it unnecessary to rely on the 8(a)(1) violations found in Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38 (2017); further, because the General Counsel presented sufficient other evidence to sustain his evidentiary burden, the Board found it unnecessary to rely on General Counsel Exhibit 49, which the Respondent argued was protected by attorney client privilege. 

Chairman Miscimarra disagreed with the judge’s statement that the General Counsel does not have to prove a connection between an employer’s antiunion animus and the adverse employment action, but he found the General Counsel made the requisite showing in this case.  Because he found that the discriminatee did not lie, Chairman Miscimarra found it unnecessary to rely on the judge’s alternative rationale that any untrue statements that she made during the investigation of another employees’ alleged misconduct were protected under the rationale of Paragon Systems, Inc., 362 NLRB No. 182 (2015).

Charge filed by Communications Workers of America, AFL-CIO.  Administrative Law Judge John T. Giannopoulos issued his decision on August 1, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Aircraft Service International, Inc.  (12-RC-187676; 365 NLRB No. 94)  Orlando, FL, June 9, 2017.

The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Employer had asserted that the election was untimely due to a contract bar and that the petitioned-for unit of encoder operators at the Orlando International Airport was subject to the Railway Labor Act rather than the National Labor Relations Act.  Dissenting in part, Chairman Miscimarra would have granted review or referred the matter to the National Mediation Board to provide a reasoned explanation of the jurisdictional issue.  Petitioner – Communications Workers of America. Intervenor – Local 74, United Service Workers Union, International Union of Journeymen and Allied Trades. Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

1650 Broadway Associates, Inc.  (02-RM-184263)  New York, NY, June 7, 2017.  The Board denied the Employer’s Motion for Reconsideration of a May 17, 2017 Order denying the Employer’s Request for Review.  Union – Stardust Family United, a/w Industrial Workers of the World.  Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Caribbean Restaurants, LLC d/b/a Burger King)  (12-CA-189669, 12-CA-189670 and 12-CA-189672)  Ciales, PR, June 5, 2017.  The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting in part) denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  The majority, in considering the petition, evaluated the subpoena in light of the Region’s modification of paragraph 4, and found that the Region’s offer to limit the scope of the subpoena did not establish that it was initially overbroad.  Dissenting in part, Chairman Miscimarra would have granted the petition as to paragraph 4.  In his view, it is more appropriate for the Board to grant a petition to revoke as to such requests, rather than to deny the petition based on changes that were communicated only after the petition to revoke is under consideration by the Board.  Charges filed by individuals.  Chairman Miscimarra and Members Pearce and McFerran participated.

HRHH Gaming Senior Mezz, LLC d/b/a Hard Rock Hotel & Casino  (28-CA-183553)  Las Vegas, NV, June 5, 2017.  No exceptions having been filed to the April 21, 2017 decision of Administrative Law Judge Mara-Louise Anzalone’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charge filed by General Teamsters, Airline, Aerospace and Allied Employees, Warehousemen, Drivers, Construction, Rock and Sand, Local 986, affiliated with International Brotherhood of Teamsters.

United States Postal Service  (07-CA-170211)  Grand Rapids, MI, June 5, 2017.  No exceptions having been filed to the April 18, 2017 decision of Administrative Law Judge Christine E. Dibble’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charge filed by an individual.

International Alliance of Theatrical Stage Employees, Local 62 (Shepard Exposition Services, Inc.)  (27-CB-184181 and 27-CB-190753)  Colorado Springs, CO, June 8, 2017.  No exceptions having been filed to the April 27, 2017 decision of Administrative Law Judge Jeffrey D. Wedekind’s findings 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 recommended Order.  Charges filed by an individual.

Rich Products  (10-CA-169627 and 10-CA-178498)  Murfreesboro, TN, June 8, 2017.  No exceptions having been filed to the April 6, 2017 decision of Administrative Law Judge Jeffrey P. Gardner’s findings 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 recommended Order.  Charges filed by an individual.

Harbor Rail Services Company  (25-CA-174952)  Belvidere, IL, June 9, 2017.  No exceptions having been filed to the April 28, 2017 decision of Administrative Law Judge Andrew S. Gollin’s findings that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charge filed by an individual.

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Appellate Court Decisions

Chipotle Services, LLC d/b/a Chipotle Mexican Grill, Board Case No. 04-CA-147314 (reported at 364 NLRB No. 72) (5th Cir. decided June 9, 2017)

In an unpublished per curiam opinion, the Court enforced the Board’s order issued against this operator of a nationwide chain of fast casual restaurants, including one in Havertown, Pennsylvania.  The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that, at the Havertown restaurant, the Employer violated Section 8(a)(1) by ordering an employee to stop circulating an employee petition protesting the Employer’s break practices, and later discharging him for engaging in protected concerted activity and refusing to stop circulating the petition.  The Board further found that the Employer violated Section 8(a)(1) by maintaining five overly broad work rules that employees would reasonably construe as restricting protected activities, including rules on solicitation, confidential information, social media, ethical communications, and political/religious activity and contributions.  All of the rules, except the social media policy, were stated in the Employer’s nationwide employee handbook.

Before the Court, the Employer challenged only the Board’s findings regarding the actions it took against the employee circulating the petition and the two rules pertaining to solicitation and confidential information.  With little comment, the Court held that substantial evidence supported the Board’s findings, and enforced the Board’s order in full.

The Court’s opinion is here.

King Soopers, Inc., Board No. 27-CA-129598 (reported at 364 NLRB No. 93) (D.C. Cir. decided June 9, 2017)

In a published opinion, the Court granted the petition for review with regard to an unlawful interrogation finding, but in all other respects, enforced the Board’s order issued against this operator of several grocery stores in Colorado.  In doing so, the Court approved, as reasonable and justified, the Board’s modification to its make-whole remedial framework to provide that an employee will be reimbursed for her reasonable search-for-work and interim employment expenses, instead of limiting such reimbursement to the amount of the employee’s interim earnings.

United Food and Commercial Workers Union, Local 7, represents two units (meat department and retail) at the Employer’s Store #1 in Denver under separate collective-bargaining agreements.  This case arose after an employee, who was a barista in the coffee department covered by the meat-department contract, raised concerns that she was being asked to work in other departments, invoked her contractual right not to do so, was questioned about what concerns she had raised to the Union, and was later suspended and discharged.  The Board (then-Chairman Pearce and Members Hirozawa and McFerran; then-Member Miscimarra, dissenting in part) found that the Employer violated Section 8(a)(3) and (1) by twice suspending and later discharging the employee for engaging in protected activity, and also found that the Employer interrogated her in violation of Section 8(a)(1).

In deciding the appropriate make-whole remedy, the Board determined that a modification to its remedial framework for the reimbursement of a discriminatee’s reasonable search-for-work and interim employment expenses was needed.  Under the previous, traditional approach, the Board had ordered reimbursement of such expenses only up to the amount of the discriminatee’s interim earnings.  See Crossett Lumber Co., 8 NLRB 440, 497-98, enforced, 102 F.2d 1003 (8th Cir. 1938).  In the instant decision, the Board recognized that the practical result of the traditional approach, which the Board acknowledged it had never explained with a reasoned policy rationale, had been less than make-whole relief for some discriminatees and had the effect, in some circumstances, of discouraging discriminatees from seeking work.

On review, the Court held that substantial evidence supported the suspension and discharge findings and that the Board properly applied the factors of Atlantic Steel Co., 245 NLRB 814 (1979), in finding that the employee did not lose the protection of the Act.  On the other unfair-labor-practice issues, the Court rejected the bulk of the Employer’s various other challenges.  The Court disagreed, for instance, with the Employer’s claim that the Board should have deferred to arbitration, noting that, on this record, the employee was free to seek relief from the Board given the lack of record evidence to explain why the Union had declined to arbitrate her claims.  The Court also rejected the Employer’s attempts to challenge the Administrative Law Judge’s credibility assessments, explaining that she properly relied on “important contextual factors, including demeanor, her knowledge of industrial practices, the record, and the presence of consistencies and inconsistencies in a witness’ story.”  The Court, however, agreed with the Employer that the judge erred in granting the General Counsel’s mid-trial motion to amend the complaint to add the unlawful interrogation allegation.  The Court concluded that the amendment was impermissible given “the confluence of factors in this case – a lack of any notice for the employer; an unexcused delay by the General Counsel despite ample time to investigate the charge; and an amendment postdating the employer’s cross-examination of the General Counsel’s pivotal witness.”

Regarding the Board’s modification of its standard remedy for a discriminatee’s reasonable search-for-work and interim employment expenses, the Court stated that “the Board is entitled to considerable deference in crafting remedies for unfair labor practices, and the reasons given by the Board to justify the new make-whole remedial framework pass muster.”  Quoting large portions of the Board’s analysis in adopting the modified remedy, the Court held that “the Board offered clear, reasonable, and compelling justifications for the new remedial framework,” and thus upheld the standard.

The Court’s opinion is here.

American Baptist Homes of the West, d/b/a Piedmont Gardens, Board No. 32-CA-063475 (reported at 362 NLRB No. 139) (D.C. Cir. decided June 6, 2017)

In a published opinion, the Court, with a clarification, enforced the Board’s order that issued against this continuing care retirement community in Oakland, California, for violating Section 8(a)(5) and (1) by failing to provide information requested by Service Employees International Union, United Healthcare Workers-West, the representative of a unit of employees at the retirement center that includes certified nursing assistants (CNAs).

In June 2011, a newly hired charge nurse reported to the director of assisted living that a CNA had been seen sleeping on the job.  The director asked that charge nurse, and also a CNA who saw the incident, to submit written witness statements and assured them that their statements would be kept confidential.  Meanwhile, an experienced charge nurse who had been training the newly hired charge nurse learned that her trainee had submitted a witness statement.   To avoid being disciplined for failing to report the incident, she submitted an unsolicited written witness statement.  The director then asked her to submit a second statement, because the dates on the first one were incorrect, but did not assure her that the statements would be kept confidential.  Later, the Employer disciplined that charge nurse for failing to report the incident sooner, and fired the CNA who reportedly had been sleeping.  After the Union filed a grievance over the discharge, it requested information to process the grievance, including the names and titles of the three employee-witnesses and their written statements.  The Employer refused to provide that information.

The full Board (then-Chairman Pearce, then-Member Miscimarra, and Members Hirozawa, Johnson, and McFerran) found that the Employer’s refusal to provide the names and titles of the witnesses was unlawful under the balancing test of Detroit Edison v. NLRB, 440 U.S. 301 (1979) (balancing the Union’s need for requested information against any legitimate and substantial confidentiality interests established by the Employer).  In the absence of exceptions, the Board adopted the Administrative Law Judge’s finding that the Employer did not violate the Act by refusing to provide the statements submitted by the two employee-witnesses to whom it had made assurances of confidentiality.  With regard to the charge nurse’s unsolicited first statement, and her second statement submitted at the Employer’s direction but without an assurance of confidentiality, the Board (then-Member Miscimarra, dissenting) found that the Employer’s refusal was unlawful, relying on Anheuser-Busch, Inc., 237 NLRB 982 (1978) (witness statements are exempt from disclosure if provided under an assurance of confidentiality).  However, the Board (then-Member Miscimarra and Member Johnson, dissenting) determined that Anheuser-Busch should be overruled, and detailed a new policy under which the Board would apply the Detroit Edison balancing test to the question whether witness statements are subject to disclosure.  The full Board then concluded that the new rule should be applied prospectively only and thus applied the Anheuser-Busch standard to the Employer’s conduct.

Before the Court, the Employer challenged the Board’s finding that it unlawfully failed to provide the charge nurse’s two witness statements.  The Court rejected the challenge, noting that the charge nurse’s statements were motivated by her job duties and fear of punishment if she failed to report what another nurse had already reported, rather than by any promise of confidentiality.  The Court also held that the Board had properly applied Anheuser-Busch.

The Court further found that the Employer lacked standing to challenge the Board’s decision to overrule Anheuser-Busch and to apply a new test in future cases.  The Court noted that the Employer’s contention that it had standing to challenge the new test rested entirely on its claim that the cease-and-desist provision in the Board’s order might be construed to hold it in contempt if, in the future, it failed to follow the newly announced rule.  The Court saw no basis in the Board’s decision or order to support such a reading, but clarified that would enforce the cited provision “only to the extent that it requires [the Employer] to comply with the witness-statement disclosure requirements that the Board actually applied in this case:  those of Anheuser-Busch.”  The Court concluded that its clarification of the order “eliminates any risk of the only injury that [the Employer] asserts it will suffer due to the Board’s adoption of the new rule,” and that the Employer therefore lacked standing to challenge the merits of the rule.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Allied Crawford Steel  (04-CA-174095; JD-35-17)  Harrisburg, PA.  Administrative Law Judge Robert A. Giannasi issued his decision on June 5, 2017.  Charge filed by Teamsters Local 776.

Oxford Electronics, Inc., d/b/a Oxford Airport Technical Services and Worldwide Flight Services, Inc., joint employers (13-CA-115933 and 13-CB-115935; JD-43-17) Elmont, NY, June 8, 2017.  Errata to Administrative Law Judge Kimberly R. Sorg-Graves’ decision issued on May 31, 2017.  Charges filed by International Union of Operating Engineers Local 399, AFL-CIO.  Errata   Amended Decision.

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