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Summary of NLRB Decisions for Week of March 23 - 27, 2015

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

Howard Industries, Inc., Transformer Division  (15-CA-018637; 362 NLRB No. 35)  Laurel, MS, March 23, 2015. 

Reversing the Administrative Law Judge, a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent violated Section 8(a)(1) by threatening a union steward with discipline for using notes while representing an employee at an investigatory interview.  Member Miscimarra, dissenting, found that the Respondent lawfully insisted on hearing the employee’s own account of the matter under investigation.  Charge filed by International Brotherhood of Electrical Workers, Local 1317.  Administrative Law Judge George Carson II issued his decision on November 20, 2009.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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International Brotherhood of Teamsters Union, Local No. 407 (Norris Brothers Co., Inc.)  (08-CD-124416; 362 NLRB No. 42)  Cleveland, OH, March 24, 2015.

This case involves a jurisdictional dispute, under Section 10(k) of the Act, between International Brotherhood of Teamsters Union, Local No. 407 (Teamsters) and International Union of Operating Engineers, Local 18.  The disputed work is the operation of forklifts, lift trucks, and/or industrial trucks by Norris Brothers Co., Inc. when performing rigging work at a facility located in Cleveland, Ohio.  The Board awarded the work in dispute to employees represented by the Teamsters, based on the factors of employer preference and past practice, area and industry practice, and economy and efficiency of operations.

Charge filed by Norris Brothers Co., Inc.  Chairman Pearce and Members Johnson and McFerran participated.

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FedEx Freight, Inc.  (04-RC-134614; 362 NLRB No. 43)  Croydon, PA, March 24, 2015.

The Board adopted the hearing officer’s recommendation to overrule the Employer’s objections, which alleged that: (1) the Union’s agents and supporters surrounded the vehicle of a unit employee’s wife at a rally, insisted that she honk her horn in support of the union, and one banged his hand on her vehicle; (2) the Union circulated a flyer inviting the Employer to sign a document during the critical period promising improved employment terms; and (3) the Union circulated a campaign flyer advising employees that they have “zero job security,” that the Employer will terminate employees “FOR JUST ABOUT ANYTHING,” and that the Union contract will provide that employees can only be fired or disciplined for “just cause” and establish a grievance procedure. In a personal footnote, Member Johnson noted that had the events occurred as the employee’s wife testified, he would find the conduct objectionable, but the preponderance of the evidence did not show that the hearing officer’s credibility findings were incorrect.  Accordingly, the Board certified Petitioner International Brotherhood of Teamsters, Local 107 as the exclusive collective-bargaining representative of the unit employees.  Members Hirozawa, Johnson, and McFerran participated.

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HealthBridge Management, LLC; 710 Long Ridge Road Operating Company II, LLC d/b/a Long Ridge of Stamford  (34-CA-073303 and 34-CA-080215; 362 NLRB No. 33)  Wethersfield, CT, March 24, 2015.

The Board adopted the Administrative Law Judge’s finding that the Respondent violated the Act by discharging an employee because of his protected concerted activity in leading a union protest concerning conditions of employment.  The Board agreed with the judge that Atlantic Steel Co., 245 NLRB 814 (1979), provided the proper framework for analyzing the conduct for which the employee was discharged: leading a group of employees into the office of the Respondent’s Center Administrator to present complaints about working conditions.  The Board emphasized that there was no credited evidence that the employee engaged in any menacing or abusive behavior of the kind that would lose the protection of the Act.

The Board also adopted the judge’s dismissal of the allegation that the Respondent violated the Act by discharging a different employee because of his union and other concerted activities.  The Board found it unnecessary to pass on whether the employee engaged in protected conduct because, even assuming that he had, the General Counsel failed to meet his initial Wright Line burden.

Charges filed by New England Health Care Employees Union, District 1199, SEIU, AFL-CIO.  Administrative Law Judge Raymond P. Green issued his decision on November 1, 2013.  Chairman Pearce and Members Johnson and McFerran participated.

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IronTiger Logistics, Inc.  (16-CA-027543; 362 NLRB No. 45)  Kansas City, MO, March 25, 2015. 

The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) by failing to respond in a timely manner to the Union’s request for presumptively relevant information that was ultimately determined to be irrelevant, and that the Union’s information request was made in good faith and did not constitute harassment.  The Board incorporated the now-vacated decision reported at 359 NLRB No. 13 (2012). Administrative Law Judge George Carson II issued his decision on May 6, 2011.  Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO.  Chairman Pearce and Members Johnson and McFerran participated.

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National Union United Security & Police Officers of America (USPOA)(MVM, Inc.)  (05-CB-112215 and 05-CB-114849; 362 NLRB No. 37)  Washington, DC, March 26, 2015. 

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provision of an informal settlement agreement.  The Board found that the Respondent failed to comply with the terms of the settlement agreement by failing to:  (1) distribute the Notice to Employees and Members by email to all employees in the bargaining unit and to forward a copy of that email and a list of all recipients’ email addresses to the Region’s compliance officer; (2) notify all bargaining unit employees in writing of their rights under Communications Workers v. Beck, 487 U.S. 735 (1988); (3) provide the Regional Director with copies of all correspondence the Respondent received from employees in response to its Beck notice; (4) provide the Regional Director with all records showing dues payments to the Respondent from bargaining unit employees from February 2014 to the present; (5) refund with interest those portions of dues and fees collected or charged at the full member rate rather than the objecting nonmember rate from employees who filed Beck objections, and provide copies of these refund checks to the Regional Director; (6) reimburse employees for retroactive dues paid after February 28, 2013, for the period covering April 1, 2012, to September 7, 2012; and (7) recognize specific objecting nonmembers; retroactively reduce the amount of dues and fees they were charged; provide them with information setting forth the percentage of the reduction in dues and fees charged to Beck objectors, the basis for that calculation, notice of an opportunity to challenge that calculation, and the procedure for challenging the Respondent’s calculation; and provide them with copies of the Respondent’s 2013 statements of expenses for representational and nonrepresentational activities.  The Board rejected the Respondent’s argument that its ability to comply was affected by its lack of staff and the Region’s correspondence with the Respondent’s counsel rather than its staff.  Accordingly, the Board deemed all of the allegations in the reissued complaint to be true and ordered appropriate remedies.

Member Johnson questioned whether the General Counsel clearly showed that the Respondent defaulted on the settlement agreement by failing to notify employees of their General Motors/Beck rights and by failing to provide the Regional Director with records showing dues payments by employees, but he agreed that the Respondent defaulted on other obligations imposed by the settlement agreement.  Inasmuch as the default provision could be invoked for noncompliance with any of the terms of the settlement agreement, he concurred in granting the General Counsel’s motion.

The Board ordered the Respondent to cease and desist from:  (1) failing to inform employees of their right under NLRB v. General Motors Corp., 373 U.S. 734 (1963), to be and remain nonmembers, and of the right of nonmembers under Beck to object to paying for union activities not germane to the Respondent's duties as bargaining agent and to obtain a reduction in dues and fees for such activities; (2) obligating bargaining unit employees to pay full dues for months when they were not provided notice of their General Motors and Beck rights; (3) failing to make available to nonmember employees a procedure for filing Beck objections; (4) requiring bargaining unit employees to agree to payroll deductions as the sole means of satisfying their financial obligations to the Respondent; (5) seeking retroactive dues and core fees from bargaining unit employees for a period prior to the execution of the collective-bargaining agreement; (6) failing to recognize and give effect to employees’ requests to be objecting nonmembers in a timely fashion; (7) demanding that employees pay full union dues, as a condition of employment, after they requested to be objecting nonmembers; (8) failing to inform objecting nonmembers of the basis for its calculation of the percentage reduction in dues and fees for objectors for union activities not germane to the Respondent’s duties as bargaining agent, and their right to challenge the figures; (9) requiring bargaining unit employees to complete dual-purpose membership/authorization cards as a condition of the Respondent’s not seeking to have the employer discharge them under the union-security provision of the collective-bargaining agreement; and (10) attempting to cause the employer to discharge employees pursuant to a union-security clause without first providing employees notice of their rights under General Motors and Beck.  The Board further ordered the Respondent to:  (1) notify in writing all bargaining unit employees of their right to be and remain nonmembers, and of the rights of nonmembers to object to paying for union activities not germane to the Respondent's duties as bargaining agent, and to obtain a reduction in dues and fees for such activities; (2) recognize employees’ requests to become objecting nonmembers; (3) provide objecting nonmembers with verified information setting forth the Respondent’s major categories of expenditures, distinguishing between representational and nonrepresentational functions, and the percentages of each category and of its total expenditures that it considers chargeable and nonchargeable, and informing objecting nonmembers of their right to challenge the Respondent’s figures; (4) notify in writing those employees whom the Respondent initially sought to obligate to pay dues or fees on or after the dates when they sought to become objecting nonmembers, of their right to elect nonmember status and to file Beck objections; (5) process objections; (6) reimburse with interest any nonmember unit employees who file Beck objections with the Respondent for any dues and fees exacted from them for nonrepresentational activities; (7) notify employees that the Respondent will not cause or attempt to cause the employer to discharge employees pursuant to a union-security clause without first providing employees notice of their rights under General Motors and Beck; (8) and compensate objecting employees for the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards.

Charges filed by individuals.  Chairman Pearce and Members Johnson and McFerran participated.

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Newark Electric Corp., Newark Electric 2.0, Inc. and Colacino Industries, Inc.  (03-CA-088127; 362 NLRB No. 44)  Newark, NY, March 26, 2015. 

The Board found that the Respondent, a family business of three companies providing electrical contracting services, violated the Act by failing to recognize the Union and honor their collective-bargaining agreement, and by unlawfully discharging an employee after repudiating the Union. The Board found that the three companies constituted a single employer and alter egos, and that all were bound by the collective-bargaining agreement through a Letter of Assent signed on behalf of one of the companies and still in effect because it was not timely terminated. The Board ordered the Respondent to restore the terms and conditions of employment as set forth in the agreement for all of its employees, to reimburse their lost earnings and benefits, to bargain with the Union upon request, and to reinstate and make whole the discharged employee. The Board rejected the Respondent’s argument that the Acting General Counsel had no authority to investigate and prosecute these unfair labor practice charges because the Board that appointed him lacked a quorum and did not follow procedures under the relevant statutes.  Charge filed by IBEW Local 840, International Brotherhood of Electrical Workers, AFL-CIO.  Administrative Law Judge Kenneth W. Chu issued his decision on January 6, 2014.  Members Miscimarra, Hirozawa, and McFerran participated.

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International Longshore and Warehouse Union, International Longshore and Warehouse Union, Local 4, and International Longshore and Warehouse Union, Local 8 (Tidewater Barge Lines, Inc.)  (19-CC-111986; 362 NLRB No. 40)  Wilma and Central Ferry, WA and Hayden Island, OR, March 26, 2015. 

The Board adopted the Administrative Law Judge’s finding that the Respondent Unions engaged in unlawful water-borne secondary picketing in violation of Section 8(b)(4)(i) and (ii)(B).  The Respondents were engaged in a primary labor dispute with two grain companies, who contracted with Tidewater Barge Lines for river transportation of their grain to their export facilities.  Although Tidewater was an undisputed neutral employer with respect to the primary labor dispute, the Respondents’ picketing specifically targeted Tidewater and was aimed at coercing Tidewater to cease doing business with the grain companies.  For example, the Respondents moved their picket boats into place when Tidewater tugboats transporting grain for the primary employers approached water-based spud barges; they specifically blocked Tidewater’s tugboats from approaching the spud barges; and the picketers yelled at Tidewater’s tugboat employees to turn their tugboats around and go back to the dock. The Board thus found that the Respondents’ conduct evinced an unlawful secondary object to enmesh neutral Tidewater in the Respondents’ primary labor dispute with the grain companies.  Charge filed by Tidewater Barge Lines, Inc.  Administrative Law Judge Eleanor Laws issued her decision on April 25, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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A.J. Myers and Sons, Inc.  (06-CA-119505; 362 NLRB No. 51)  Latrobe, PA, March 27, 2015. 

The Board found A.J. Myers, a bus company which took over the Latrobe School District busing contract, to be a Burns successor because a majority of its employees servicing the Latrobe contract had been employed by the predecessor employer and there was substantial continuity in operations between employers.  The Board further found that A.J. Myers violated Sections 8(a)(1) and 8(a)(5) by failing and refusing to bargaining with the Union and ordered A.J. Myers to recognize and bargain with the Union as the exclusive representative of the designated unit of employees.  Charge filed by Amalgamated Transit Union, Local 1738, AFL-CIO, CLC.  Administrative Law Judge David I. Goldman issued his decision on October 3, 2014.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Mezonos Maven Bakery, Inc.  (29-CA-025476; 362 NLRB No. 41)  Brooklyn, NY, March 27, 2015. 

On remand from the United States Court of Appeals for the Second Circuit, the Board found that it was not precluded by Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), from ordering the conditional reinstatement of employees who, at the time they were unlawfully discharged by the Respondent, lacked proper documentation to work in the United States.  The Board found that conditional reinstatement is an appropriate remedy where an employer knowingly employs individuals who lack authorization to work in the United States and then discharges them in violation of the NLRA.  The Board ordered reinstatement subject to the employees presenting to the Respondent, within a reasonable time, documentation that they are now authorized to work in the United States.  Member Miscimarra did not “reach or pass on questions regarding conditional reinstatement where discriminatees presented fraudulent documents in violation of IRCA.”

Charge filed by Puerto Rican Legal Defense and Education Fund, which later changed its name to LatinoJustice PRLDEF.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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CNN America, Inc. (05-CA-031828 and 05-CA-033125; 362 NLRB No. 38) Washington, DC, March 27, 2015.  Correction   Amended Order.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Future Environmental Incorporated  (13-RC-124781)  Frankfort, IL, March 23, 2015.  Order denying both the Employer’s and the Petitioner’s respective requests for review.  The Board found there to be no substantial issues regarding the Regional Director’s conclusion that the petitioned-for unit is fractured because it excluded 26 laborers/hazard technicians who share an overwhelming community of interest with the included 4 drivers/operators and 3 laborers/hazard technicians.  The Board found all issues concerning the Project Supervisor’s eligibility to vote would be best be resolved through use of the Board’s challenge procedure.  Member Johnson found it unnecessary to consider as to whether the Board’s decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)(subsequent history omitted) was correctly decided.   Petitioner— International Union of Operating Engineers, AFL-CIO.  Chairman Pearce and Members Johnson and McFerran participated.

Warning Charter Service, Inc., d/b/a Warning Paige Charter Services  (13-RC-138148)  Riverdale, IL, March 23, 2015.  The Board adopted the Regional Director’s findings and recommendations overruling the Employer’s objections to the election.  The Employer alleged that the Union engaged in impermissible electioneering and campaigning, and that it engaged in improper surveillance of the voting process.  The Regional Director found no objectionable conduct.  Accordingly, the Board certified the Petitioner, International Brotherhood of Teamsters Local Union No. 777, as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Chairman Pearce and Members Johnson and McFerran participated.

Nestle Purina Petcare Company  (14-RC-145222)  St. Louis, MO, March 24, 2015.  Order denying the Employer’s request for review as not raising substantial issues regarding whether the Regional Director erred in directing an election in a unit consisting of the maintenance employees and leadman employed at the Employer’s Support Center.  Member Johnson agreed that the unit is appropriate, but would rely on the Board’s traditional community of interest analysis and not express a view on the correctness of Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)(subsequent history omitted).

Petitioner— Local Union No. 1 of the International Brotherhood of Electrical Workers, St. Louis, Missouri.   Chairman Pearce and Members Johnson and McFerran participated.

Rush University Medical Center  (13-RC-143495)  Chicago, IL, March 24, 2015.  Order denying the Employer’s request for review of the Regional Director’s Consolidated Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  Member Johnson would grant review for the sole purpose of permitting Board review of St. Vincent Charity Medical Center, 357 NLRB No. 79 (2011), and to address the issue of whether the piecemeal organizing and the conducting of many elections to add employees to a non-conforming unit at acute care hospitals is consistent with the intention behind the Health Care Rule.  Petitioner—Healthcare, Professional, Technical, Office, Warehouse and Mail Order Employees Union, Local 743, International Brotherhood of Teamsters.  Chairman Pearce and Members Johnson and McFerran participated.

The Pennsylvania Virtual Charter School  (04-RC-143831)  King of Prussia, PA, March 25, 2015.  Order granting the Employer’s request for review as raising substantial issues regarding whether the Regional Director erred in asserting jurisdiction over the employees of a charter school and in directing an election pursuant to the Union’s representation petition.  Petitioner—PA Virtual Charter Education Association, PSEA/NEA.  Chairman Pearce and Members Johnson and McFerran participated.

Central Hudson Gas & Electric Corporation  (03-RC-144384)  Poughkeepsie, NY, March 25, 2015.  Order denying Employer’s request for review of the Acting Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  Member Johnson would grant review on whether the Acting Regional Director erred in finding that the Employer failed to establish that its Shift Supervisors were statutory supervisors insofar as they responsibly directed other employees. Petitioner—International Brotherhood of Electrical Workers, Local 320, AFL-CIO.  Chairman Pearce, and Members Johnson and McFerran participated.

Capstone Logistics, LLC  (22-RC-137642)  Newark, New Jersey, March 26, 2015.  The Board adopted the Regional Director’s recommendation to overrule the Petitioner Union’s objection to an election held on November 7, 2014, which alleged that the Board agent interfered with employees’ free and unfettered choice in selecting a collective-bargaining representative and materially affected the outcome of the election by failing to challenge an employee’s vote.  Accordingly, the Board issued a Certification of Results stating that a majority of the valid ballots had not been cast for the Petitioner, International Local Brotherhood of Teamsters, Local Union No. 863, and that it is not the exclusive bargaining representative of the unit employees.  Chairman Pearce and Members Johnson and McFerran participated.

Swissport USA, Inc.  (29-RC-144512)  Newark, NJ, March 26, 2015.  Order denying the Employer’s Request for Review as not raising substantial issues regarding whether the Regional Director erred by finding that the petitioned-for unit, comprised of cleaners but excluding ramp agents, was an appropriate unit and directing an election in the petitioned-for unit.  Member Johnson found that the petitioned-for unit was appropriate under the Board’s traditional community-of-interest analysis.  Petitioner—International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 15, Local Lodge 447.  Chairman Pearce and Members Johnson and McFerran participated.

Faurecia Emissions Control Technologies USA, LLC  (09-RC-139624)  Louisville, KY, March 27, 2015.  No exceptions having been filed to the hearing officer’s recommendations to sustain some of the Petitioner Union’s objections to an election held December 19, 2014, the Board set aside the election and ordered that a new election be conduted.  Petitioner – International Union, United Automobile Aerospace and Agricultural Implement Workers of America (UAW).

C Cases

Avis Budget Group  (07-CA-133881)  Parsippany, NJ, March 23, 2015. 

The Board denied the Employer’s petition to revoke a subpoena duces tecum.  The Board found that the subpoena seeks information relevant to the matters under investigation and describes with sufficient particularity the evidence sought.  The Board further found that the Employer failed to establish any other legal basis for revoking the subpoena.  

With respect to the Employer’s contention that the issue of single employer status is not relevant in this proceeding, the Board noted that the General Counsel is vested under Sec. 3(d) of the Act with exclusive prosecutorial authority and, as such, controls the theory of the case and the scope of the investigation.  See NLRB v. Fant Milling Co., 360 U.S. 301, 308 (1959) (“Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power in order properly to discharge the duty of protecting public rights which Congress has imposed upon it.”) (Internal citation omitted); BCI Coca-Cola Bottling Company of Los Angeles, 361 NLRB No. 75, slip op. at 5 n.11 (2014) (MHS) (“Deciding what steps to take before issuing complaint, including how to investigate the charge . . .” is within the General Counsel’s unreviewable prosecutorial discretion).

In addition, the Board noted that in considering the petition to revoke, the Board evaluated the subpoena as modified by the Region in its opposition brief.  The Board also specifically directed the Employer to provide the Region with the business addresses of the named regional managers, pursuant to subpoena paragraph 18.  Finally, the Board stated that to the extent that the Employer had already provided the Region with documents encompassed by this subpoena, it was not again required to provide them, provided that the Employer accurately described which documents it had already provided, stated whether those previously-supplied documents constitute all of the requested documents, and provided all of the information that was subpoenaed.

Charge filed by International Brotherhood of Teamsters, Local 283.  Members Hirozawa, Johnson, and McFerran participated. 

Cablevision Systems Corporation  (02-CA-138301, et al.)  Bethpage, NY, March 23, 2015. 

The Board denied the Employer’s petition to revoke a subpoena duces tecum.  The Board found that the subpoena sought information relevant to matters under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.

The Board relied in part on the Region’s representations in its opposition to the petition that it was voluntarily reducing the scope of two paragraphs of the subpoena.  With respect to one paragraph, the Region indicated that the provision of the Employer’s April 2014 Employee Handbook would constitute sufficient compliance.  With respect to the second paragraph, the Region indicated that the provision of contact information for all non-supervisory and non-managerial employees working at a particular location during the relevant time period would constitute sufficient compliance. 

In addition, the Board stated that to the extent the subpoenas encompassed some documents that the Employer believes in good faith to be protected from disclosure, the Employer may submit a privilege log providing sufficient detail to permit an assessment by the Region of the Employer’s claim. 

The Charge filed by five individuals.  Members Hirozawa, Johnson, and McFerran participated.

International Longshore and Warehouse Union, Locals 8 and 40 AFL-CIO (ICTSI Oregon, Inc.) (19-CC-100903)  Portland, OR, March 23, 2015.  The Board denied the Charging Party’s motion to strike portions of the Respondents’ reply brief.

MHA, LLC d/b/a Meadowlands Hospital Medical Center  (22-CA-086823, et al.)  Secaucus, NJ, March 24, 2015. 

The Board denied the Union’s request for special permission to appeal the Administrative Law Judge’s denial of its motion to strike the Respondent’s affirmative defense 111, finding that the Union failed to establish that the judge abused his discretion in denying the motion. 

The Board also denied the Union’s request for special permission to appeal the judge’s denial of its petition to revoke paragraph 33 of the Respondent’s subpoena duces tecum addressed to the Union.  The Board first stated that it was undisputed that on the record at the hearing the judge denied the Union’s petition to revoke only in part, characterized the subpoena as overly broad, and instructed the parties to address the breadth of the subpoena.  The Board found that with respect to the Union’s argument that the judge erred in not granting its petition to revoke paragraph 33 in its entirety, the Union has failed to establish that the judge abused his discretion by instead directing the parties to narrow the scope of the subpoena request.  The Board then noted that there is no evidence in the record that the judge had ruled on the modifications to the subpoena made by the Respondent by letters dated March 18 and March 19, 2014.  The Board thus concluded that at this juncture, the propriety of subpoena paragraph 33, as modified by the Respondent, is not properly before the Board.

The Board also denied the request by New Jersey Citizen Action to file an amicus brief with respect to paragraph 33, without prejudice to renewing that request before the judge.  Charge filed by Health Professionals and Allied Employees AFT/ AFL-CIO.  Chairman Pearce and Members Miscimarra and McFerran participated.

LM Wind Power  (15-CA-136570)  Little Rock, AR, March 25, 2015.  Order denying in part and granting in part the petition filed by the Employer 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.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  A Board panel majority consisting of Members Miscimarra and Johnson, however, granted the petition as to documents pertaining to discipline and terminations for reasons unrelated to those articulated by the Employer for its adverse employment actions against the Charging Party, without prejudice to any new subpoena seeking relevant documents regarding discipline or terminations for other, dissimilar reasons.  Member Hirozawa would deny the petition in its entirety, stating that allowing the Employer to determine unilaterally what is similar would inappropriately hinder the Region’s investigation.  Members Miscimarra, Hirozawa, and Johnson participated.

G2 Secure Staff, LLC  (12-CA-111844)  Fort Lauderdale, FL, March 25, 2015. 

Order denying the petition filed by the Employer 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.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. 

In joining Chairman Pearce in denying the petition, Member Johnson stated that he agreed, for institutional purposes and recognizing the lack of three votes for a change in the law, that the petition to revoke should be denied.  He recognized that the Board has previously held that the possibility that the Board lacks jurisdiction over a party does not warrant revocation of an otherwise valid subpoena.  He further stated that he understood that the matter in this case was earlier referred to the National Mediation Board to decide on Railway Labor Act jurisdiction, and the NMB had not acted.  In those circumstances, it is his view that Section 3(d) of the National Labor Relations Act vests the General Counsel with sufficient independent discretionary authority to make an initial determination whether there is jurisdiction under the Act, as opposed to RLA jurisdiction, in order to pursue the investigation and processing of an unfair labor practice charge.  However, Member Johnson noted that Section 3(d) does not diminish the Board's statutory authority in determining whether or not a petition to revoke an investigatory subpoena should be granted on the ground of burdensomeness or any other relevant ground.  In harmonizing those two statutory authorities, Member Johnson would require the General Counsel to avoid burdening a party with responding to document requests that reasonably appear on their face to relate to solely the merits of an unfair labor practice allegation, where no such jurisdictional determination has yet been made.  Accordingly, if his view were to apply to the instant case instead of the current institutional view under extant law, he would have granted the petition to revoke as to specific subpoena paragraphs on the grounds of burdensomeness and deny it in all other respects.

Member Miscimarra dissented, stating that he would grant the petition to revoke in the circumstances presented here, where (i) the Employer has raised a substantial question regarding the absence of Board jurisdiction in view of the Employer’s position that it is subject to the RLA and, thus, is not an “employer” as defined in Sec. 2(2) of the National Labor Relations Act (NLRA); and (ii) where the subpoenaed information is unrelated to the question of jurisdiction.  Cf. EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071, 1076-77 (9th Cir. 2001); Reich v. Great Lakes Indian Fish & Wildlife Comm., 4 F.3d 490, 491 (7th Cir. 1993).  He noted that NLRB Region 20 in 2013 – based on a determination that the Employer was an RLA employer – dismissed an unfair labor practice charge “because of the Board’s lack of jurisdiction.”  Therefore, he would have granted the petition to revoke in its entirety, but without prejudice to the issuance of a subpoena limited to the question of Board jurisdiction or a subpoena issued after a determination by the Regional Director, in the first instance, that the Employer is an “employer” subject to the Act.  Charge filed by Local 32BJ Service Employees International Union, CTW, CLC.  Chairman Pearce and Members Miscimarra and Johnson participated.

G2 Secure Staff, LLC  (29-CA-137347)  Jamaica, NY, March 25, 2015. 

Order denying the petition filed by the Employer 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.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. 

In joining Chairman Pearce in denying the petition, Member Johnson stated that he agreed, for institutional purposes and recognizing the lack of three votes for a change in the law, that the petition to revoke should be denied.  He recognized that the Board has previously held that the possibility that the Board lacks jurisdiction over a party does not warrant revocation of an otherwise valid subpoena.  He further stated that he understood that the matter in this case was earlier referred to the National Mediation Board to decide on Railway Labor Act jurisdiction, and the NMB had not acted.  In those circumstances, it is his view that Section 3(d) of the National Labor Relations Act vests the General Counsel with sufficient independent discretionary authority to make an initial determination whether there is jurisdiction under the Act, as opposed to RLA jurisdiction, in order to pursue the investigation and processing of an unfair labor practice charge.  However, Member Johnson noted that Section 3(d) does not diminish the Board's statutory authority in determining whether or not a petition to revoke an investigatory subpoena should be granted on the ground of burdensomeness or any other relevant ground.  In harmonizing those two statutory authorities, Member Johnson would require the General Counsel to avoid burdening a party with responding to document requests that reasonably appear on their face to relate to solely the merits of an unfair labor practice allegation, where no such jurisdictional determination has yet been made.  Accordingly, if his view were to apply to the instant case instead of the current institutional view under extant law, he would have granted the petition to revoke as to specific subpoena paragraphs on the grounds of burdensomeness and deny it in all other respects.

Member Miscimarra dissented, stating that he would grant the petition to revoke in the circumstances presented here, where (i) the Employer has raised a substantial question regarding the absence of Board jurisdiction in view of the Employer’s position that it is subject to the RLA and, thus, is not an “employer” as defined in Sec. 2(2) of the National Labor Relations Act (NLRA); and (ii) where the subpoenaed information is unrelated to the question of jurisdiction.  Cf. EEOC v. Karuk Tribe Housing Auth., 260 F.3d 1071, 1076-77 (9th Cir. 2001); Reich v. Great Lakes Indian Fish & Wildlife Comm., 4 F.3d 490, 491 (7th Cir. 1993).  He noted that NLRB Region 20 in 2013 – based on a determination that the Employer was an RLA employer – dismissed an unfair labor practice charge “because of the Board’s lack of jurisdiction.”  Therefore, he would have granted the petition to revoke in its entirety, but without prejudice to the issuance of a subpoena limited to the question of Board jurisdiction or a subpoena issued after a determination by the Regional Director, in the first instance, that the Employer is an “employer” subject to the Act.  Charge filed by two individuals.  Members Miscimarra, Hirozawa, and Johnson participated.

Norquay Construction, Inc.  (28-CA-023412)  Tempe, AZ, March 26, 2015.  The Board granted the General Counsel’s motion to remand case to the Regional Director.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

ISS Facility Services, Inc.  (29-CA-133335 and 29-CB-134137; JD(ATL)-05-15)  Jamaica, NY.  Administrative Law Judge William Nelson Cates issued his decision on March 23, 2015.  Charges filed by an individual.

Colorado Fire Sprinkler Inc.  (27-CA-115977 and 27-CA-120823; JD-17-15)  Pueblo, CO.  Administrative Law Judge Charles J. Muhl issued his decision on March 23, 2015.  Charges filed by Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO.

Weyerhaeuser Company  (19-CA-122853, et al.; JD(SF)-12-15)  Longview, WA.  Administrative Law Judge John J. McCarrick issued his decision on March 25, 2015.  Charge filed by Association of Western Pulp and Paper Workers, affiliated with the United Brotherhood of Carpenters and Joiners of America.

Dish Network, LLC  (27-CA-131084; JD(ATL)-06-15)  Englewood, CO.  Administrative Law Judge Robert A. Ringler issued his decision on March 25, 2015.  Charge filed by an individual.

Ridgewood Health Care Center, Inc. and Ridgewood Health Services, Inc. a Single Employer  (10-CA-113669; JD-20-15)  Jasper, AL.  Administrative Law Judge Michael A. Rosas issued his decision on March 27, 2015.  Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW).

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