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Summary of NLRB Decisions for Week of March 21 - 25, 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

D2 Abatement, Inc. and Premier Environmental Solutions LLC, Alter Egos  (07-CA-133250; 363 NLRB No. 153)  Dearborn, MI, March 22, 2016.

The Board denied the General Counsel’s motion for partial default judgment and remanded the proceeding to the Regional Director for further appropriate action.  The complaint alleges that Respondents D2 Abatement, Inc. (Respondent D2) and Premier Environmental Solutions LLC (Respondent Premier) violated Section 8(a)(1), (3), and (5).  Respondent Premier filed a timely answer to the complaint, but Respondent D2 did not.  The General Counsel sought default judgment against Respondent D2 for its failure to file a timely answer.  The Board denied the General Counsel’s motion on the basis that Respondent Premier’s timely filed answer suffices to preclude the entry of a default judgment against Respondent D2. 

Charge filed by District Council 1M, International Union of Painters and Allied Trades (IUPAT), AFL-CIO.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Jeff MacTaggert Masonry, LLC d/b/a JM2  (14-CA-138748, 14-CA-143817 and 18-CA-135993; 363 NLRB No. 149)  Omaha, NE and Ankeny, IA, March 22, 2016.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) and (1) by refusing to hire three union representatives.  The Board found that the Respondent did not meet its burden of showing that the employees lacked the necessary job qualifications and also failed to put at issue the genuineness of the employees’ interest in employment.  In addition, the Board found that the Respondent violated Section 8(a)(3) and (1) by twice discharging a union supporter from two different job sites.  In finding that the second discharge violated the Act, a Board panel majority consisting of Members Hirozawa and McFerran applied Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and imputed knowledge of the employee’s union activity to the Respondent’s supervisor who discharged him.  Member Miscimarra, concurring in the result,  would find that the second discharge violated the Act under the “cat’s paw” theory of liability described in Staub v. Proctor, 562 U.S. 411 (2011), because the discriminatory animus of the supervisor who influenced, but did not make, the ultimate employment decision would still be deemed a motivating factor for the employee’s discharge.

Charges filed by International Union of Bricklayers and Allied Craftworkers Local 15 Mo-Ks-Ne and International Union of Bricklayers and Allied Craftworkers Local 3 Iowa.  Administrative Law Judge Arthur J. Amchan issued his decision on May 6, 2015.  Members Miscimarra, Hirozawa, and McFerran participated.

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Morris Glass & Construction, Inc.  (36-CA-010804; 363 NLRB No. 150)  Astoria, OR, March 22, 2016. 

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, accordingly, deemed all of the allegations in the complaint to be true.  The Board ordered the Respondent to comply both with the unmet terms of the settlement agreement approved by the Regional Director and with the payment agreement subsequently also approved by the Regional Director.  The Board, though mindful that the General Counsel is empowered under the default provision of the settlement agreement to seek “a full remedy for the violations found and as is appropriate to remedy such violations,” limited the affirmative remedies to those that the General Counsel specifically requested in his Motion for Default Judgment.

Charge filed by International Union of Painters & Allied Trades, District Council 5.  Chairman Pearce and Members Hirozawa and McFerran participated.

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New Jersey State Opera  (22-CA-029526; 363 NLRB No. 152)  Newark, NJ, March 23, 2016.

Based on the Respondent’s failure to file an answer to the General Counsel’s compliance specification, the Board granted the General Counsel’s motion for default judgment concerning backpay owed as a result of the Respondent’s failure to pay full contractual wages to its musicians for certain performances (see 360 NLRB No. 5 (2013)).  Although the compliance specification, the amended compliance specification, and the motion for default judgment, served on the Respondent at its last known address, were returned as undeliverable, the Board found that the Respondent’s failure to provide an address for service of documents cannot serve to defeat the purposes of the Act.

Charge filed by American Federation of Musicians, Local 16.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Local Union 550 of the International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers (R.G. Smith Company, Inc.)  (08-CD-159904 and 08-CD-160179; 363 NLRB No. 151)  Canton, OH, March 23, 2016.

In this jurisdictional dispute under Section 10(k), the Board found that Ironworkers Local Union No. 550, Sheet Metal Workers Local 33, and the Indiana/Kentucky/Ohio Regional Council of Carpenters claimed certain water cooled elbow and pump replacement work at one of the Employer’s job sites; that there was reasonable cause to believe that Section 8(b)(4)(D) had been violated by Ironworkers’ threat to picket; and that there was no voluntary method for adjusting the dispute.  The Board then evaluated the dispute under its established 10(k) factors and awarded the disputed work to a composite unit of employees represented by Ironworkers and Sheet Metal Workers, based on the factors of employer preference and past practice, relative skills and training, and economy and efficiency of operations.  

Charges filed by R.G. Smith Company, Inc.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Columbia College Chicago  (13-CA-073486 et al.; 363 NLRB No. 154)  Chicago, IL, March 24, 2016.

A Board panel majority consisting of Members Hirozawa and McFerran affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) and (1) by failing to bargain with the Union about the effects of its decision to reduce the number of credit hours awarded for certain courses and by setting unlawful preconditions to bargaining.  The majority also found that an award of negotiation expenses to the Union is an appropriate remedy for the Respondent’s bargaining-related misconduct.  Member Miscimarra dissented, finding that the Respondent had no duty to bargain over the effects of its decision to reduce course credit hours.  Having so found, Member Miscimarra also dissented from the majority’s finding that the Respondent set an unlawful precondition to effects bargaining.  Lastly, finding that the Respondent’s conduct did not infect the core of the bargaining process, Member Miscimarra dissented from the majority’s award of bargaining expenses.

Charge filed by Part-Time Faculty Association at Columbia College Chicago – IEA/NEA.  Members Miscimarra, Hirozawa, and McFerran participated.

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SF Markets, LLC d/b/a Sprouts Farmers Market  (21-CA-099065 and Case 21-CA-104677; 363 NLRB No. 146)  Phoenix, AZ, March 24, 2016.

Applying its decisions in 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 in relevant part 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an original and revised arbitration agreement that required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. The majority also found that the Respondent violated Section 8(a)(1) by unlawfully seeking enforcement of the original agreement by moving to compel individual arbitration of the employment-related claims after an employee filed a class action wage-and-hour lawsuit in state superior court.  The majority also found that the Respondent violated Section 8(a)(1) by threatening to terminate, and by subsequently terminating, an employee for refusing to sign the revised agreement.  Consistent with Murphy Oil, the majority ordered the Respondent to reimburse the employee and any other plaintiffs for all reasonable expenses and legal fees, with interest, that they incurred in opposing the Respondent’s unlawful motion to compel arbitration of their class or collective claims.

Dissenting in part consistent with his dissent in Murphy Oil, Member Miscimarra concluded that the agreement does not violate the Act and that its enforcement was warranted by the Federal Arbitration Act.  Moreover, because he would find the agreement lawful under the NLRA, Member Miscimarra would also find it lawful for the Respondent to file a motion in state superior court seeking to enforce the agreement.  Further, under the circumstances presented here, Member Miscimarra would find that the Board cannot properly require the Respondent to reimburse the employee and other plaintiffs for their attorneys’ fees.  Finally, because he would find the agreement lawful, Member Miscimarra would also find that the Respondent did not violate the Act by threatening to terminate and subsequently terminating an employee based on the employee’s refusal to sign the revised agreement.  

Charges filed by individuals.  Administrative Law Judge Ira Sandron issued his decision on February 18, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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New Jersey State Opera (22-CA-029526; 363 NLRB No. 152), Newark, NJ, March 24, 2016.  Errata to decision issued March 23, 2016.  Errata   Amended Decision.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Strathmore Hall Foundation, Inc.  (05-UC-162051)  North Bethesda, MD, March 21, 2016.  The Board denied the Union’s Partial Request for Review of the Regional Director’s Decision and Order clarifying the bargaining unit to exclude the classification of Ticket Office Manager on the ground that it raised no substantial issues warranting review.  Petitioner – Strathmore Hall Foundation, Inc.  Chairman Pearce and Members Hirozawa and McFerran participated.

Crozer Chester Medical Center  (04-RC-164030)  Upland, PA, March 22, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election granting the Petitioner’s petition for an Armour-Globe self-determination election on the ground that it raised no substantial issues warranting review.  Petitioner – Pennsylvania Association of Staff Nurses & Allied Professionals.  Chairman Pierce and Members Hirozawa and McFerran participated.

Air General, Inc.  (07-RC-162297)  Detroit, MI, March 22, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  Petitioner – International Brotherhood of Teamsters, Local 283.  Chairman Pearce and Members Hirozawa and McFerran participated.

Thesis Painting, Inc.  (05-RC-155713)  Springfield, VA, March 24, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative on the ground that it raised no substantial issues warranting review.  Petitioner – International Union of Painters and Allied Trades, AFL-CIO, District Council 51.  Chairman Pearce and Members Hirozawa and McFerran participated.

Alstate Maintenance, LLC  (29-RC-159794)  Queens, NY, March 24, 2016.  A Board panel majority consisting of Members Hirozawa and McFerran denied the Intervenor’s Request for Review of the Regional Director’s Decision and Certification of Representative on the ground that it raised no substantial issues warranting review.  Member Miscimarra, dissenting, would grant the Intervenor’s Request for Review of the Regional Director’s resolution of the Intervenor’s Objection 2, which argues that the Board lacks jurisdiction over the Employer.  The majority and dissent acknowledged that the jurisdiction issue is currently being litigated in a separate, consolidated unfair labor practice case involving the same parties.  Contrary to the dissent, the majority stated that there is no risk of inconsistent decisions inasmuch as the Board did not decide the statutory issue in the instant matter.  Petitioner – Service Employees International Union, Local 32BJ.  Intervenor – Local 660, United Workers of America.  Members Miscimarra, Hirozawa, and McFerran participated.

C Cases

Pennsylvania Interscholastic Athletic Association, Inc.  (06-RC-152861)  Mechanicsburg, PA, March 21, 2016.  The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election solely with respect to whether the petitioned-for lacrosse officials are employees or independent contractors.  In all other respects, the Board denied the request for review.  Petitioner – Office and Professional Employees International Union.  Members Miscimarra, Hirozawa, and McFerran participated.

Breads of the World, LLC d/b/a Panera Bread  (09-CA-162369)  Cincinnati, OH, March 21, 2016.  The Board denied the Employer’s petition to revoke a 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, and that the Employer failed to establish any other legal basis for revoking the subpoena.  In considering the petition to revoke, the Board evaluated the subpoena as modified by the Region in its opposition brief.  Charge filed by Bakery, Confectionary, Tobacco Workers and Grain Millers, Local 253.  Chairman Pearce and Members Hirozawa and McFerran participated.

DHSC, LLC d/b/a Affinity Medical Center, Community Health Systems, Inc., and/or Community Health Systems Professional Services Corporation, LLC, a single employer and/or joint employers  (08-CA-117890, et al.)  Massillon, OH, March 21, 2016.  The Board denied the Respondents’ motion for summary judgment and, alternatively, motion to dismiss, finding that Respondents failed to establish that there were no genuine issues of material fact warranting a hearing and that they were entitled to judgment as a matter of law.  Further, the Board found that the Respondents failed to articulate any other basis for granting summary judgment in their favor.  Charges filed by National Nurses Organizing Committee (NNOC); California Nurses Association/National Nurses Organizing Committee (CNA/NNOC); United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union, AFL-CIO-CLC, and California Nurses Association (CNA).  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Pods Enterprises, LLC  (01-CA-159835, et al.)  Wilmington, MA, March 21, 2016.  The Board denied 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, and that the Employer failed to establish any other legal basis for revoking the subpoena.  In considering the petition to revoke, the Board evaluated the subpoena as clarified by the Region in its opposition brief.  Charges filed by International Brotherhood of Teamsters, Local Union No. 25.  Members Miscimarra, Hirozawa, and McFerran participated.

Armor Construction, LLC  (03-CA-148130)  Falconer, NY, March 21, 2016.  No exceptions having been filed to the February 12, 2016 decision of Administrative Law Judge Thomas M. Randazzo 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 Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO.

Tube City IMS, LLC  (07-CA-154813)  Monroe, MI, March 21, 2016.  No exceptions having been filed to the February 12, 2016 decision of Administrative Law Judge Melissa M. Olivero 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.  Charges filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.

UPS Supply Chain Solutions, Inc.  (12-CA-144578)  Doral, FL, March 22, 2016.  The Board denied Respondent’s Motion to Strike the General Counsel’s Exceptions to Administrative Law Judge Donna N. Dawson’s Decision.

Schuff Steel Company  (21-CA-150033)  Torrance, CA, March 24, 2016.  The Board denied the Respondent’s motion for summary judgment, finding that the Respondent failed to establish that there were no genuine issues of material fact warranting a hearing and that it was entitled to judgment as a matter of law.  Charge filed by an individual.  Chairman Pearce and Members Hirozawa and McFerran participated.

Long Beach Memorial Medical Center, Inc. d/b/a Long Beach Memorial Medical Center & Miller Children’s and Women’s Hospital Long Beach  (21-CA-157007)  Long Beach, CA, March 24, 2016.  The Board denied the Respondent’s motion for summary judgment, which sought dismissal of the complaint on the basis that the original and amended charges incorrectly named the Respondent.  In denying the motion, the Board found that the Respondent was served with the documents, fully participated in the pre-complaint proceedings, and failed to demonstrate that it suffered any prejudice.  Charge filed by California Nurses Association/National Nurses United (CNA/NNU).  Members Miscimarra, Hirozawa, and McFerran participated.

United States Postal Service  (31-CA-161200)  Van Nuys, CA, March 24, 2016.  The Board denied the Charging Party’s motion for summary judgment, finding that the Charging Party failed to establish that there were no genuine issues of material fact warranting a hearing and that the General Counsel was entitled to judgment as a matter of law.  Charge filed by an individual.  Chairman Pearce and Members Hirozawa and McFerran participated.

Latino Express, Inc.  (13-CA-122006)  Chicago, IL, March 25, 2016.  The Board issued an Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying the actions the Respondent Employer must take to comply with the Act.  Charge filed by Teamsters Local 777.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Appellate Court Decisions

Newspaper and Mail Deliverers' Union, Board Case No. 02-CB-021740 (reported at 361 NLRB No. 26) (2d Cir. decided March 22, 2016)

In an unpublished summary order, the court enforced the Board’s order issued against the Union for various violations of Section 8(b)(1)(A) and (2).  Those violations included the maintenance and enforcement of agreements that conferred priority preferences for the assignment of delivery work based on union membership or employment with a union-signatory employer across three separate units, and for causing and attempting to cause The New York Post, The New York Times, and City and Suburban Delivery Systems, Inc. (C&S) to discriminate against delivery drivers based on that preferential system.  Also, the Board found that the Union failed to provide Post and C&S employees notice of their right, under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be and remain nonmembers, and of the rights of such nonmembers, under Communications Workers v. Beck, 487 U.S. 735 (1988), to object to paying for union activities not germane to the union’s bargaining duties.

On review, the court held that substantial evidence supported the Board’s findings of discriminatory conduct, explaining that “the contractual provisions at issue in this case are discriminatory on their face, unlawfully favoring individuals who were union members or who had worked for union-signatory employers for a longer period of time over non-union members or individuals who had not worked for a union-signatory employer.”  The court rejected the Union’s contention that the charge was barred by Section 10(b)’s six-month limitation because, it argued, the system had been established long ago.  The court stated that “the statute of limitations does not run from the date the seniority system was established; instead, it runs from the date that the charging employees were adversely affected by that system.”  Regarding the General Motors and Beck notices, and based on the sparse evidence of any notice provision since 2003, the court held that “the Board was entitled to draw an adverse inference that [the Union] failed to properly inform Post and C&S employees of their rights.”

The court’s summary order is here.

Dover Energy, Inc., Blackmer Division, Board Case No. 07-CA-094695 (reported at 361 NLRB No. 48) (D.C. Cir. decided March 22, 2016)

In a published opinion, the court denied enforcement of the Board’s order issued against this manufacturer of liquid-transfer pumps located in Grand Rapids, Michigan, holding that the Board’s finding of an unlawful warning was not supported by substantial evidence.

The charging party was a union steward who was apparently suspicious of potential conflicts of interest between the Employer and certain members of the Union’s committee who were bargaining for a new contract.  After he submitted a first information request asking for details of any financial relationship between the Employer and Union, the Union stated that the request was unauthorized and the Employer refused it.  After the steward submitted a second request—this time asking for payroll information on certain employees—the Employer issued a verbal warning about “frivolous requests” which was written up in a document that included the statement: “Similar requests such as this will result in further discipline up to and including discharge.”  After a complaint issued, and a hearing was held, an administrative law judge issued a bench decision recommending that the Board dismiss the complaint.

The Board (Chairman Pearce and Member Hirozawa; Member Miscimarra, dissenting) found that the Employer violated Section 8(a)(1) by issuing a warning that would reasonably be understood as threatening the steward with discipline if he engaged in future union and protected activities.  Specifically, the Board majority found that the steward would reasonably fear that any future request for employee wage or hour information, such as was asked for in the second request, would be considered “similar” enough to the one described in the warning to place him at risk of discipline or discharge.  The Board also noted that his responsibility as a steward to investigate contractual grievances could entail statutorily protected requests for the very types of information asked for in his second request.  Dissenting, Member Miscimarra disagreed that the warning would reasonably be understood to threaten discipline for future protected activity.

On review, the court (Circuit Judges Henderson, Pillard, and Wilkins) held that, “[w]hen viewed in its entirety, as we must view it, the record supports only one reasonable interpretation of the verbal warning:  [the steward] would be disciplined if in the future he continued to do what he had done twice before—namely, make an unauthorized information request unrelated to his duties as [u]nion steward.”  In other words, the court stated, “the warning does not address requests for a particular type of information; it addresses a particular type of request—namely, continued requests outside the scope of [his] role as [u]nion steward.”

The court’s opinion is here.

Hallmark-Phoenix 3, LLC, Board Case No. 12-CA-090718 (reported at 361 NLRB No. 146) (5th Cir. decided March 24, 2016)

In a published opinion, the court enforced in part the Board’s order issued against this contractor that provides vehicle operations maintenance services for the United States Air Force at Patrick Air Force Base and Cape Canaveral Air Force Station, and remanded for the limited purpose of recalculating two aspects of employee pay.

The Board found, among other things, that the Employer violated Section 8(a)(5) and (1) when it made unlawful unilateral midterm contract modifications within the meaning of Section 8(d) to certain pay provisions in its collective-bargaining agreements with International Alliance of Theatrical Stage Employees and Motion Picture Technicians, Artists and Allied Crafts, Local 780 (IATSE), and Transport Workers Union of America, Local 525 (TWU).  In particular, the Board found that the Employer’s refusal to timely pay TWU unit employees all accrued vacation pay with lead pay differential for lead employees, to deduct and transmit union dues to IATSE, and to pay its employees severance pay, constituted unlawful midterm contract modifications.  The Board also found that the Employer violated Section 8(a)(5) and (1) by inserting waiver language on the back of employees’ vacation paychecks.  In turn, the Board rejected the Employer’s contentions that the case should be deferred to arbitration, that the Board lacked jurisdiction to decide contract-modification cases, and that a portion of the Board’s order was moot because one employee was later employed by the Air Force.

On review, the court upheld the bulk of the Board’s findings.  The court, however, held that the Board erred in finding that the Employer lacked a sound arguable basis under the collective-bargaining agreements for not including the lead-pay premium in TWU employees’ severance pay, or for withholding carry-over vacation pay for TWU employees.  Accordingly, the court remanded the case to the Board for “the limited purpose of calculating TWU-represented members’ severance pay minus the lead-pay differential, and adjusting TWU-represented employees’ carry-over vacation pay in [a] manner consistent with this opinion.”  The court enforced all other aspects of the Board’s order.

The court’s decision is here.

Securitas Critical Infrastructure Services, Inc., Board Case No. 18-CA-130606 (reported at 361 NLRB No. 38) (8th Cir. decided March 24, 2016)

In a published opinion, the court enforced the Board’s bargaining order against this provider of security services for nuclear power plants after a unit of lieutenants employed at the Monticello Nuclear Generating Plant in Minnesota voted in 2014 to be represented by United Security Professionals Local 2.  The court upheld the Board’s finding that the Employer had not carried its burden of proving its claim that the employees were supervisors within the meaning of Section 2(11).

After a hearing was held in the underlying representation case, the Regional Director issued a decision rejecting the Employer’s claim of supervisory status.  On review, the Board (Members Hirozawa and Johnson, Member Miscimarra dissenting) affirmed the specific finding that the lieutenants do not exercise responsible direction.  In doing so, the Board rejected the Employer’s claim that, because the lieutenants can become response team leaders if a contingency event compromises plant security—and that was when they responsibly directed security officers—the Employer could not present specific examples of their exercise of responsible direction because they would be subject to NRC non-disclosure regulations.  The Board, however, noted that the Employer did not avail itself of its opportunity to provide even “general examples of [independent judgment] that would not have revealed the details of [the Employer]’s contingency planning.”  The Board commented that parties who feel constrained from entering particular evidence into the record in Board proceedings can request a protective order.  In dissent, Member Miscimarra would have granted the request for review based on the lieutenants’ role as response team leaders, and the Employer’s claim that the lieutenants are held accountable if they fail to properly direct security officers.

The court held that substantial evidence supported the Board’s determination that the Employer failed to show that its lieutenants exercised independent judgment in their role as response team leaders.  The court explained that record evidence established that “a lieutenant must follow applicable procedures – some dictated by the physical security plan approved by the NRC – when acting as a response team leader in the event of a hostile attack at the plant.”  That, the court stated, “is enough evidence to satisfy the substantial evidence standard, and to support the NLRB’s determination that Securitas failed to carry its burden of proving the lieutenants were supervisors under 29 U.S.C. § 152(11).”  Further, the court rejected the Employer’s contention that it could not provide specific examples without violating NRC regulations that safeguard nuclear power plant security.  The court explained that disclosure of such information “was not the exclusive means by which [the Employer] could have satisfied its burden of proof.”  Finally, the court rejected the notion that the Board erred by imposing a requirement that specific examples must be provided.  Rather, the court stated, it read the Board’s statement as “a general comment on the overall quality of [the Employer]’s evidence, and merely one factor it considered when determining [the Employer] failed to carry its burden.”

The court’s opinion is here.

MikLin Enterprises Inc. d/b/a Jimmy John's, Board Case No. 18-CA-019707 (reported at 361 NLRB No. 27) (8th Cir. decided March 25, 2016)

In a published decision enforcing the Board’s order in full, the court upheld by a 2-1 vote the Board’s findings that the Employer, which operates 10 Jimmy John’s sandwich franchises, unlawfully disciplined and discharged employees in violation of Section 8(a)(3) because of their involvement in a protected publicity campaign, which sought support for employees’ desire for sick leave benefits, and that the Employer also violated Section 8(a)(1) by urging employees to take down posters the employees had put up in the community as part of that campaign.  At issue was whether the employees’ posters and press release were protected by Section 7, as the Board (Chairman Pearce and Member Schiffer, Member Johnson dissenting) had found.  The court upheld the Board’s finding that nothing in the posters or press release, which tied the effort to obtain paid sick leave with the effect that the Employer’s current leave policy could have on the Employer’s  product, was so disloyal, reckless, or maliciously untrue to cause employees to lose the Act’s protection.   The court added that, even assuming the proper test for truthfulness under circuit law was whether the statements were “materially false and misleading” and that standard is less protective than the Board’s of employee speech, as the Employer contended, the communications here were nonetheless protected because they could reasonably be interpreted in a way that was not materially false.

The court, without dissent, additionally upheld the Board panel’s unanimous findings that the Employer violated Section 8(a)(1) by removing other union literature from otherwise unrestricted employee bulletin boards and by soliciting and encouraging employees on an anti-unionization Facebook page to harass a union supporter on his personal cell phone, and by profanely disparaging that employee on social media and encouraging employees to repost a derogatory, altered picture of the employee.  The court found that other employees who witnessed that reaction would fear similar treatment for engaging in protected activity, and rejected the Employer’s contention that the posts reflected supervisors’ personal dislike for the employee unrelated to his protected activity.

The court panel deciding the case consisted of Judge Kelly, who wrote the decision, Judge Bye, and Judge Loken, who dissented as to the violations turning on the protected nature of the employees’ posters and press release on the sick leave policy.  The majority and dissenting opinions may be found here.

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Administrative Law Judge Decisions

United States Postal Service  (18-CA-160232; JD-23-16)  St. Paul, MN.  Administrative Law Judge Geoffrey Carter issued his decision on March 22, 2016.  Charge filed by St. Paul Area Local 65, of the American Postal Workers Union.

Interactive Communications International, Inc. d/b/a INCOMM  (12-CA-155362; JD-22-16)  Jacksonville, FL.  Administrative Law Judge Keltner W. Locke issued his decision on March 22, 2016.  Charge filed by an individual.

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