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Summary of NLRB Decisions for Week of March 20 - 24, 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

In-N-Out Burger, Inc.  (16-CA-156147 and 16-CA-163251; 365 NLRB No. 39)  Austin, TX, March 21, 2017.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent, which operates burger facilities, violated Section 8(a)(1) by unlawfully maintaining a “no buttons” policy and by unlawfully enforcing that policy against one or more employees regarding the wearing of a “Fight for Fifteen” button.  The Board agreed with the judge that the Respondent had not demonstrated that the wearing of such a button would unreasonably interfere with a public image that the Respondent had established sufficient to establish “special circumstances” that would justify an exception to the general rule that employees have a statutory right to wear union buttons or insignia at the workplace.  The Board, however, reversed the judge’s finding that the issue of whether a nationwide remedy should be imposed should be left to the compliance stage of the proceeding, and ordered a nationwide remedy.  In doing so, the Board noted that the parties had stipulated that the Respondent’s “dress and grooming” policy applied to all of the Respondent’s facilities, and that the Respondent’s brief made repeated references to the importance of the “consistency” of the customer experience from store to store.  In a footnote, Acting Chairman Miscimarra added a statement clarifying his interpretation of the case.

Charges filed by Mid-South Organizing Committee.  Administrative Law Judge Keltner W. Locke issued his decision on July 11, 2016.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Sprain Brook Manor Rehab, LLC,  (02-CA-089480, et al.; 365 NLRB No. 45)  Scarsdale, NY, March 21, 2017.

In the absence of exceptions, the Board adopted the Administrative Law Judge’s findings that the Respondent Employers were successors and joint-employers, as well as violations of Sections 8(a)(5) and (1) for unilaterally changing unit employees’ terms and conditions of employment and subcontracting unit work; Section 8(a)(3) and (1) for subcontracting unit work with a retaliatory, anti-union motive and discharging key supporters of the Charging Party Union; and Section 8(a)(2) and (1) for granting assistance to and recognizing the Respondent Union as the unit employees’ exclusive collective-bargaining representative when it did not represent an unassisted and uncoerced majority of unit employees and discharging unit employees who refused to sign the Respondent Union’s union cards.  The Board also adopted the judge’s finding that the Respondent Union violated Section 8(b)(1)(A) by accepting recognition from the Respondent Employers when it did not have majority support and by applying the provisions of their agreement, including the union security clause, to collect dues from nonmember unit employees.  Finally, the Board made certain unopposed corrections to the judge’s decision, and added remedies consistent with the judge’s findings and the Board’s standard remedies.

Charges filed by 1199 SEIU United Healthcare Workers East.  Administrative Law Judge Kenneth W. Chu issued his decision on April 29, 2016.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Teamsters Local 75, affiliated with the International Brotherhood of Teamsters, AFL-CIO (Schreiber Foods)  (30-CB-003077; 365 NLRB No. 48)  Green Bay, WI, March 21, 2017.

Upon remand from the D.C. Circuit Court, the Board, in a Second Supplemental Decision and Order, found that the Respondent violated Section 8(b)(1)(A) by failing to furnish the Charging Parties with sufficient financial information about their own dues expenditures, and those of its affiliated entities that received a share of the dues collected by the Respondent, to enable the Charging Parties to determine whether the Respondent properly reduced their dues to an amount that financed only those activities that were germane to the Respondent’s representational duties.

Charge filed by individuals.  Administrative Law Judge Joel P. Biblowitz issued his decision on September 4, 1992.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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M & M Affordable Plumbing, Inc.  (13-CA-121459; 365 NLRB No. 49)  Rockdale, IL, March 23, 2017.

In this compliance proceeding, the Board granted the General Counsel’s Motion for Partial Summary Judgment on the basis that the Respondent’s answer to the compliance specification attempted to raise matters that had been decided in the underlying unfair labor practice proceeding (362 NLRB No. 159), and was inadequate under the Board’s Rules and Regulations.  Accordingly, the Board granted summary judgment on the issues of the backpay period and gross backpay, but remanded to the Region to schedule a hearing limited to the issues of the discriminatee’s interim earnings and expenses.

Charge filed by an individual.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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United States Postal Service  (07-CA-160663; 365 NLRB No. 51)  Detroit, MI, March 24, 2017.

The Board affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unreasonably delaying and by failing and refusing to furnish information requested by the Union.  In affirming the judge’s decision, the Board found that the judge’s recommended remedial Order, which included district-wide notice posting, was necessary and sufficient to address the unfair labor practices found. 

Charge filed by Branch 434, National Association of Letter Carriers (NALC), AFL-CIO.  Administrative Law Judge Christine E. Dibble issued her decision on September 2, 2016.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Purple Communications, Inc. (Purple II)  (21-CA-095151, et al.; 365 NLRB No. 50)  Corona and Long Beach, CA, March 24, 2017.

The Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting) adopted the Administrative Law Judge’s Supplemental Decision finding, on remand from the Board, that the Respondent violated Section 8(a)(1) by maintaining an electronic communications policy that unlawfully restricts the employees’ use of the Respondent’s email system.  In Purple Communications, Inc., 361 NLRB No. 126 (2014) (Purple I), the Board partially overruled Register Guard, 351 NLRB 1110 (2007), and found that “employee use of email for statutorily protected communication on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”  The Board also stated that an employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.  The Board remanded the proceeding to the judge to allow the parties to introduce evidence relevant to a determination of the lawfulness of the policy under the new standard.  The Respondent chose not to introduce any additional evidence and notified the judge that it would not contend that special circumstances exist justifying its policy.  The Union, nevertheless, sought to introduce evidence and submitted an offer of proof.  The judge declined to take any additional evidence, finding it unnecessary because the Respondent did not seek to satisfy its “special circumstances” burden.  The judge issued a Supplemental Decision finding that the evidence proffered by the Union was “outside the parameters of the remand” and that, in the absence of evidence showing special circumstances, the Respondent did not rebut the presumption that the email restrictions are unlawful.  Accordingly, the judge concluded that the Respondent’s electronic communications policy violated Section 8(a)(1).  Members Pearce and McFerran adopted the judge’s Supplemental Decision and, for the reasons set forth in Purple I, rejected the dissent’s argument that Purple I was wrongly decided and should be reconsidered.  In dissent, Acting Chairman Miscimarra stated that Purple I was wrongly decided, that he would return to the rule of Register Guard (that employers may lawfully control the uses of their email systems, provided they do not discriminate against NLRA protected communications by distinguishing between permitted and prohibited uses along Section 7 lines), and that he would find the Respondent’s policy lawful under Register Guard.  Moreover, he would apply Register Guard’s holding not only to employer-provided email systems, but also to employers’ information technology equipment and resources generally.

Charge filed by Communications Workers of America, AFL-CIO.  Administrative Law Judge Paul Bogas issued his supplemental decision on March 16, 2015.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Fox Rent-A-Car  (12-RC-184186)  Fort Lauderdale, FL, March 22, 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.  Petitioner – International Brotherhood of Teamsters, Local 769.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

CPM Development Corp. d/b/a Central Pre-Mix Concrete Co.  (19-RC-178412)  Yakima, WA, March 23, 2017.  Without passing on the merits, the Board denied the Intervenor’s request for expedited review of the Regional Director’s Supplemental Decision and Direction of Election, and its request to stay the election.  Petitioner – International Union of Operating Engineers, Local 302.  Intervenor – International Brotherhood of Teamsters, Local No. 760.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

American Medical Response of Southern California  (31-CA-169600 and 31-CA-169601)  San Bernardino, CA, March 20, 2017.  No exceptions having been filed to the February 6, 2017 decision of Administrative Law Judge Lisa D. Thompson’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.  Charges filed by USW Local 12-01853.

BGC Partners, Inc. d/b/a Newmark Grubb Knight Frank  (28-CA-178893)  Tucson, AZ, March 21, 2017.  The Board denied the Respondent’s Motion for Summary Judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  In dissent, Acting Chairman Miscimarra would have issued a Notice to Show Cause why the Respondent’s motion should not be granted, based on the Respondent’s assertions that it is not an employer under the Act and does not employ the Charging Party.  Acting Chairman Miscimarra found that the General Counsel had an obligation to respond to the Respondent’s motion and accompanying declaration by identifying what genuine issues of material fact warrant a hearing, rather than by arguing generally that the Respondent’s assertions put the matter of employer status into dispute.  Charge filed by an individual.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Trump Ruffin Commercial, LLC, d/b/a Trump International Hotel Las Vegas  (28-CA-149979, et al.)  Las Vegas, NV, March 21, 2017.  The Board granted the March 8, 2017 joint motion to withdraw exceptions and cross-exceptions to the July 22, 2016 decision of Administrative Law Judge Lisa D. Thompson’s finding that the Respondent had engaged in certain unfair labor practices.  Therefore, 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 Local Joint Executive Board of Las Vegas, affiliated with Unite Here International Union.

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Appellate Court Decisions

Banner Estrella Medical Center, Board No. 28-CA-023438 (reported at 362 NLRB No. 137) (D.C. Cir. decided March 24, 2017)

In a published opinion, the Court enforced in part the Board’s order issued against this Phoenix, Arizona, hospital for unlawfully maintaining two confidentiality policies in violation of Section 8(a)(1).  The Court upheld the Board’s finding that the Employer’s confidentiality agreement was unlawfully restrictive of employees’ Section 7 rights, but denied enforcement with regard to the Board’s finding that the Employer maintained an unlawful investigative nondisclosure policy, remanding the case for further proceedings with respect to the latter issue.

The Employer requires every employee, upon hire, to sign a confidentiality agreement that lists examples of “confidential information,” one of which is:  “Private employee information (such as salaries, disciplinary action, etc.) that is not shared by the employee.”  The agreement instructs employees that they may be “subject to corrective action, including termination and possibly legal action” for disclosing such information.  The Board (Members Hirozawa, Miscimarra, and McFerran) found the confidentiality agreement unlawfully overbroad in that it expressly defines confidential information to include salaries and discipline, and conditions the discussion of such information on employee sharing.  On review, the Court agreed, explaining that the agreement “expressly reached information about salaries and employee discipline,” which “is the sort of overbreadth our precedents squarely forbid.”  Further, the Court stated that the agreement’s permission to discuss information “shared by the employee” is ambiguous in at least two ways.  First, the Court noted, it was not clear with whom the information must be shared in order to allow discussion, and second, it was unclear how the rule would apply to situations where the information was obtained inadvertently.  Given those ambiguities, the Court held that the phrase “shared by the employee” was inadequate to protect the employees’ right to share innocently obtained information and thus could not save the rule.  Relatedly, the Court rejected the Employer’s challenge to the Board order’s requirement that a remedial notice be posted at all of its facilities where the Employer required employees to sign the agreement, finding it supported by evidence and otherwise a matter within the Board’s remedial discretion.

The Board majority (Member Miscimarra dissenting) found that the Employer also violated Section 8(a)(1) by maintaining and applying a human resources department policy set out in an internal memo that instructs officials conducting confidential investigations to read the following script to interviewees:  “I ask you not to discuss this with your coworkers while this investigation is going on.”  The Board majority determined that providing that generic statement categorically to all interviewees did not allow for the requisite individualized determination that confidentiality is necessary in a particular investigation for such statements to be lawful.  On review, the Court held, at the threshold, that “the record lacks substantial evidence that [the Employer] had such a policy.”  Rather, the Court stated, there was no testimony that the script was read categorically to all employee witnesses in all investigations, that testimony of the Employer’s human resources consultant indicated that she selected which interviews in which to use it, and that the record lacked evidence that any employee was aware of the nondisclosure script.  Accordingly, the Court remanded the issue to the Board for further proceedings consistent with its opinion.

The Court’s opinion is here.

Smith's Food & Drug Centers, Inc., Board Case No. 28-CA-022836 (reported at 362 NLRB No. 36) (D.C. Cir. decided March 21, 2017)

In a published opinion, the Court granted the petition filed by the seven charging-party employees for review of the Board’s order dismissing an unfair-labor-practice complaint issued against Smith’s Food & Drug Centers, Inc. d/b/a/ Fry’s Food Stores, and United Food and Commercial Workers Union, Local 99, alleging that they unlawfully continued to collect and remit union dues from employees who had resigned from the Union but had not timely revoked their dues-checkoff authorizations.  Finding that the circumstances of the case differed in significant ways from the precedent on which the Board relied, the Court vacated the Board’s decision and remanded for further proceedings.

Section 302(c)(4) of the Labor Management Relations Act, 29 U.S. C. § 186(c)(4), permits employees to enter into voluntary agreements with their employer to have the employer deduct union dues from their wages and remit them to a union representing the employees.  An employee who signs such a dues-checkoff authorization is bound by its terms, including the window periods specified in the authorization for revoking the arrangement.  In this case, the Board (then-Chairman Pearce and Members Hirozawa and McFerran), adopting the Administrative Law Judge’s (ALJ’s) findings, agreed that none of the employees requested dues revocation during a window period specified by the terms of their signed authorizations.  Among other findings, and citing Atlanta Printing Specialties, 215 NLRB 237 (1974), enfd. 523 F.2d 783 (5th Cir. 1975), and Frito-Lay, Inc., 243 NLRB 137 (1979), the Board rejected the employees’ arguments that they were free to revoke after the parties’ 2003 bargaining agreement had expired but while the contract was in effect on a series of extensions.  In doing so, the Board adopted the judge’s statements indicating that, on this record, only those employees who had signed their authorizations in the contract’s final year had a right of revocation tied to the contract’s expiration, and none had revoked during that revocation period.

On review, the Court (Circuit Judges Srinivasan and Wilkins, Senior Circuit Judge Silberman concurring in the judgment and dissenting) viewed the case differently under the Board’s precedent.  The Court noted that, in Atlanta Printing, the Board read Section 302(c)(4) to guarantee an employee the right to revoke an authorization upon the termination of the collective-bargaining agreement and interpreted Section 302(c)(4) to call for some revocation opportunity tied to the agreement’s expiration.  And in Frito-Lay, the Court noted, the Board found it adequate if the revocation opportunity connected to the agreement’s expiration took the form of a reasonable, pre-expiration escape window, rather than at-will revocation after the agreement expired.  Here, the Court stated, “by contrast, the ALJ found that employees generally lacked any revocation opportunity associated with the contract’s expiration,” but for the few who signed authorizations during the contract’s final year.  Finding that conclusion not supported in the relevant case law, the Court held that the facts as found by the ALJ “take this case outside the sphere of Frito-Lay,” leaving the Board’s rationale without support.

Senior Circuit Judge Silberman, in dissent, stated that, despite the language of the authorizations, the record showed that the parties had agreed that it was their understanding that the authorization afforded a pre-expiration revocation window, and that the ALJ recognized the parties’ agreement.  Thus, in his view, the very premise of the majority opinion is false.  But concurring in the judgment, Judge Silberman stated his view that Section 302’s language—that such authorizations shall not be irrevocable “beyond the termination date of the applicable collective agreement”—cannot be squared with the Board’s interpretation permitting pre-expiration windows to satisfy that provision.

The Court’s opinion is here.

Cargill, Inc., Board Case No. 21-CA-164025 (reported at 363 NLRB No. 110) (8th Cir. decided March 24, 2017)

In a published opinion, the Court enforced the Board’s order issued against this processer of foodgrade oil for refusing to bargain with United Food and Commercial Workers International Union, Local No. 324.  The Board certified the Union as the representative of a unit of packaging, shipping, and receiving employees at the Employer’s Fullerton, California, facility after the employees voted for the Union in a December 2014 election on a tally of 16 to 15.  In doing so, the Court upheld the Board’s application of Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), which the Court had previously approved in FedEx Freight, Inc. v. NLRB, 816 F.3d 515 (8th Cir. 2016).

This case involves the Union’s second petition seeking to represent units of employees at the Fullerton facility.  On its first petition, the Regional Director determined that the Union’s petitioned-for unit inappropriately excluded leads because they are employees covered by the Act, rather than supervisors, and dismissed the petition.  Under the second petition, the Union sought to represent a unit that included the leads.  In response, the Employer moved to dismiss the petition with prejudice, asserting that the unit sought was identical, and arguing that the new petition constituted an improper attempt to litigate issues piecemeal, and constituted an improper request for review or reconsideration.  The Regional Director denied the motion, stating that nothing in the Board’s Rules and Regulations prevents a union from filing a new petition for a unit that is the same as, or similar to, one previously requested in a dismissed petition.  Thereafter, the Employer contended that the petitioned-for unit would nonetheless be rendered inappropriate because it excluded terminal, quality-control, and maintenance department employees.  Having already determined that a unit that included leads was appropriate under the first petition, the Regional Director reviewed the evidence presented by the Employer and determined, under Specialty Healthcare, that the Employer had failed to establish that those additional employees share an overwhelming community of interest with the included employees.

After the election was held, and three determinative ballots were challenged, the Employer filed election objections.  The Regional Director ordered that a hearing on its objections that alleged that some employees engaged in a “loud conversation” while waiting in line to vote, chanting “yes we can” and booing a coworker who had just voted, and that the Board agent should have investigated or ended their conversations.  Thereafter, the Hearing Officer issued a report recommending that the challenged ballots be opened and counted, and that the remaining objections be overruled.  After the Employer filed an exception, the Board issued a decision and direction adopting the recommendation to overrule the ballot challenges and the other objections in the absence of exceptions.

On review, the Court enforced the Board’s order in full.  Regarding the Employer’s motion to dismiss the Union’s second petition, the Court held that the Board’s determination that the units were not identical was supported by substantial evidence, and that the Board’s conclusion that the rules and regulations cited by the Employer were inapposite was reasonable and thus entitled to deference.  Regarding the Board’s finding that the Employer had failed to establish that the excluded employees share an overwhelming community of interest with the petitioned-for unit employees, the Court upheld the Board’s finding under Specialty Healthcare and FedEx Freight.  Specifically, the Court noted that the Board found that the excluded employees have minimal interaction with the petitioned-for employees, particularly given that they work on two separate sides of the plant and rarely cross the divide, and also properly found that the packaging, shipping, and receiving employees share a common function—the packaging and shipping of processed oil—one that is not shared with the terminal, quality-control, and maintenance employees, whose principal responsibilities involve the unloading and testing of incoming oil and the maintenance of machinery.  Regarding the Employer’s election objection, the Court held that the Board did not err in concluding that the Employer “failed to carry its heavy burden of showing that the complained-of conduct created a general atmosphere of fear and reprisal rendering a free election impossible.”

The Court’s opinion is here.

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Administrative Law Judge Decisions

International Brotherhood of Teamsters, Local 385 (Walt Disney Parks and Resorts U.S., Inc. d/b/a Walt Disney World Co.; United Parcel Service, Inc.)  (12-CB-136934, et al.; JD-19-17)  Kissimmee, FL.  Administrative Law Judge Michael A. Rosas issued his decision on March 22, 2017.  Charges filed by individuals.

United States Postal Service  (28-CA-175407 and 28-CA-178951; JD(SF)-11-17)  Albuquerque, NM.  Administrative Law Judge John T. Giannopoulos issued his decision on March 22, 2017.  Charges filed by National Association of Letter Carriers, Sunshine Branch 504, affiliated with National Association of Letter Carriers, AFL-CIO.

International Brotherhood of Teamsters and its affiliated Local Union No. 776 (United Parcel Service, Inc.)  (04-CB-166651 and 04-CB-170828; JD-10-17)  Harrisburg, PA.  Administrative Law Judge Robert A. Giannasi issued his decision on March 23, 2017.  Charges filed by individuals.

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