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
Taylor Motors, Inc. (10-CA-141565, et al.; 365 NLRB No. 21) Ft. Campbell, KY, March 13, 2017.
The Board (Members Pearce and McFerran; Acting Chairman Miscimarra dissenting) remanded this case to the Administrative Law Judge, who had found that the Respondent violated Section 8(a)(1) when it suspended and discharged an employee for protected conduct he engaged in on the day of the 2014 election. The majority directed the judge to take into account all of the relevant record evidence and make a clear credibility determination of whether the General Counsel carried his burden under NLRB v. Burnup & Sims, 379 U.S. 21 (1964), to prove that the employee did not make the statement attributed to him. The majority also directed the judge to consider whether the 2015 election should be set aside based on all of the 8(a)(1) complaint allegations, including the Respondent’s maintenance of a mandatory, overbroad confidentiality/nondisclosure agreement. In dissent, Acting Chairman Miscimarra found that a remand was unwarranted, giving the General Counsel an unjustified “second bite at the proverbial apple.” In his view, the General Counsel had not met his burden of proving that the employee did not make the statement attributed to him.
Charges filed by American Federation of Government Employees (AFGE), AFL-CIO, Local 2022. Administrative Law Judge Keltner W. Locke issued his decision on July 14, 2015. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Essendant Co. (05-CA-170845; 365 NLRB No. 46) Hanover, MD, March 16, 2017.
The Board dismissed the complaint, unanimously affirming the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(1) by maintaining a handbook rule stating that “distribution or posting of advertising material, handbills, or printed or written literature of any kind is prohibited at any time in work areas.” The Board rejected the General Counsel’s argument that the rule is ambiguous and that employees would reasonably read it as prohibiting the distribution of electronic communications in work areas, in contravention of Purple Communications, 361 NLRB No. 126 (2014). The Board adopted the judge’s analysis that the rule lawfully prohibits the distribution of “printed or written literature,” not electronic communications, in work areas under Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962), and that the rule’s use of the phrase “of any kind” referred to the subject matter of the posting, not to the method of posting. In a concurring footnote, Acting Chairman Miscimarra added that he disagrees with the “reasonably construe” standard in Lutheran Heritage Village–Livonia, 343 NLRB 646 (2004), and the Board’s decision in Purple Communications, 361 NLRB No. 126 (2014).
Charge filed by Teamsters Local Union No. 570 a/w The International Brotherhood of Teamsters. Administrative Law Judge Arthur J. Amchan issued his decision on October 18, 2016. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Brightside Academy (08-RC-185999) Toledo, OH, March 14, 2017. The Board (Acting Chairman Miscimarra and Member McFerran; Member Pearce dissenting) granted the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative. The majority found that the Employer’s Request raised substantial and material issues regarding the Employer’s objections concerning two incidents in the polling area during the election and that remand to the Regional Director for consideration of the objections was warranted. In dissent, Member Pearce found that the Employer had failed to “present evidence that raises substantial and material factual issues” warranting a hearing. Specifically, he argued that the objections concerning an employee handing an observer a green carnation and money at the election table during polling did not warrant holding a hearing because neither act would, if proven, warrant setting aside the election. Petitioner – Ohio Council 8, American Federation of State, County and Municipal Employees, AFL-CIO. Acting Chairman Miscimarra and Members McFerran and Pearce participated.
Garda CL Atlantic, Inc. (22-RC-170477) Edison, NJ, March 15, 2017. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. The Regional Director had found that the Board agent’s conduct, including statements the agent made to challenged voters, did not warrant setting aside the election. Petitioner – United Federation of Special Police and Security Officers, Inc. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Loyola University Chicago (13-RC-164618) Chicago, IL, March 16, 2017. The Board (Members Pearce and McFerran; Acting Chairman Miscimarra dissenting) granted the Employer’s Request for Review of the Regional Director’s Amended Decision and Direction of Election solely with regard to the Regional Director’s inclusion of the Department of Theology faculty in a unit of all full-time and part-time non-tenure track faculty employed by the University in its College of Arts and Sciences. Applying Seattle University, 364 NLRB No. 84 (2016) and Saint Xavier University, 364 NLRB No. 85 (2016), the majority found that the University holds out the faculty in the Department of Theology as performing a specific role in maintaining the University’s religious educational environment. The majority amended the Certification of Representative to exclude faculty in the Department of Theology, denied the University’s Request for Review in all other respects, and remanded the case to the Regional Director. Acting Chairman Miscimarra, relying on his dissents in Seattle University, Saint Xavier University, and Pacific Lutheran University, 361 NLRB No. 157 (2014), would have granted the Employer’s Request for Review in its entirety because he believes there is a substantial issue regarding whether the Board lacks jurisdiction over the entire petitioned-for unit. Petitioner – Service Employees International Union Local 73, CLC/CTW. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
RPT Communications LLC; SK Cabling Systems, LLC; Teksystems Management, Inc.; and Richardson Telecommunications Service, Inc. as alter egos/single employers and as a joint employer (29-CA-182088) Staten Island, NY, March 15, 2017. The Board (Members Pearce and McFerran; Acting Chairman Miscimarra dissenting) denied the Employers’ petitions to revoke investigative subpoenas duces tecum. The majority found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employers failed to establish any other legal basis for revoking the subpoenas. The majority further found that nothing in the Act, the Board’s Rules, or the Agency’s Casehandling Manual requires that a Region specify an objective factual basis for requesting information or that a subpoena relate only to the substantive allegations of the charge. Further, the majority found that the Region’s offer to limit the scope of three subpoena paragraphs to the New York City area did not establish that the requests initially were overbroad. In dissent, Acting Chairman Miscimarra found that the General Counsel failed to articulate an objective factual basis for investigating possible single or joint employer relationships among the Employers and additional charged parties, beyond the charge’s allegation of such status, and would have granted the petitions with respect to those paragraphs seeking information regarding single/joint employer status. Additionally, he would have granted the petitions to revoke with respect to the requests that encompassed locations other than New York City, noting that the Region should limit the scope of its requests before disputes regarding the scope are presented to the Board in a party’s petition to revoke. Charge filed by Communications Workers of America. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Livermore Auto Group, Inc. (32-CA-163965, et al.) Livermore, CA, March 15, 2017. Over the Charging Party Union’s objections, the Board approved a formal settlement stipulation between the Respondent Employer and the General Counsel, and specified actions the Respondent must take to comply with the Act. In concluding that approval of the stipulation would effectuate the purposes and policies of the Act, the Board considered that the stipulation fully remedies all of the substantive complaint allegations and provides for the entry of Board and court orders. Charges filed by East Bay Automotive Machinists Lodge No. 1546, District Lodge 190, International Association of Machinists and Aerospace Workers, AFL-CIO. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
United Road Services, Inc. (31-CA-180722) Fontana, CA, March 15, 2017. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena, as clarified by the General Counsel to exclude protected health information, sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. The Board further found that the Employer failed to establish any other legal basis for revoking the subpoena. Acting Chairman Miscimarra dissented in part, stating that he would grant the petition with respect to the subpoena request that the Employer argued included protected health information. Charge filed by Teamsters Local Union No. 63. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Kent Security Services, Inc. (12-CA-187057) Miami, FL, March 17, 2017. The Board 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. Charge filed by an individual. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Appellate Court Decisions
Design Technology Group LLC dba Bettie Page Clothing, Case No. 20-CA-035511 (reported at 361 NLRB No. 79) (D.C. Cir. decided March 15, 2017)
In an unpublished judgment, the Court remanded the case to the Board for reconsideration of the remedy in light of changed circumstances. In the unfair-labor-practice proceeding, the Board (then-Chairman Pearce and Members Hirozawa and Schiffer) found that this operator of a number of retail clothing stores violated Section 8(a)(1) by maintaining an unlawful rule prohibiting employees from disclosing wage and salary information, and, at its San Francisco store, by discharging three employees for their protected, concerted activity of presenting to management their concerns about working conditions and continuing those activities on Facebook.
Before the Court, the Employer contested only the unlawful discharges. Briefing was completed and oral argument was held by the Court (Chief Judge Garland, Circuit Judge Henderson, and Senior Circuit Judge Randolph) in January 2016. More than a year later, the case was set for re-argument before a different panel (Circuit Judges Henderson and Tatel, and Senior Circuit Judge Randolph) for early March 2017. Beforehand, the Employer represented to the Court in a motion to cancel oral argument that it is no longer doing business and has no current operations. In response, the Court took the case off calendar and ordered the parties to submit supplemental briefs addressing the question of whether the case “in whole or in part in light of petitioners’ representation” is now moot. After briefing, the Court issued the judgment remanding the case to the Board for reconsideration of the remedy in light of changed circumstances.
The Court’s judgment may be found here.
Administrative Law Judge Decisions
FirstEnergy Generation, LLC a wholly owned subsidiary of FirstEnergy Corp. (06-CA-163303 and 06-CA-170901; JD-18-17) Akron, OH. Administrative Law Judge Andrew S. Gollin issued his decision on March 15, 2017. Charges filed by International Brotherhood of Electrical Workers, Local 272, AFL-CIO.
Pacific Coast Sightseeing Tours & Charters, Inc., a wholly owned subsidiary of Coach USA, Inc., and Megabus West, LLC an indirectly owned subsidiary of Coach USA, Inc. (21-CA-168811 and 21-RC-167379; JD(SF)-10-17) Anaheim, Van Nuys, and Bakersfield, CA. Administrative Law Judge Ariel L. Sotolongo issued his decision on March 17, 2017. Charge filed by International Association of Sheet Metal, Air, Rail and Transportation Workers-Transportation Division (SMART).
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