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Summary of NLRB Decisions for Week of March 6 - 10, 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

Knollwood Country Club  (02-CA-150410, et al.; 365 NLRB No. 22)  Elmsford, NY, March 08, 2017.

The Board unanimously affirmed the Administrative Law Judge’s conclusions that the Respondent violated: (1) Section 8(a)(5) and (1) by unilaterally changing unit employees’ terms and conditions of employment when it used temporary staffing agency workers to perform unit work; modified the parties’ contract by failing to recall laid-off unit employees by seniority, to deduct and remit union dues, and to contribute to union benefit funds; and by failing to furnish information requested by the Union; and (2) Section 8(a)(1) by threatening to call and calling the police when unit employees came to its facility.  The Board unanimously reversed, on due process grounds, several unalleged violations found by the judge.  As to the unilateral change issue, the Board stated that it would reach the same conclusion even under the “contract coverage” analysis applied by some United States courts of appeals.  A Board majority (Members Pearce and McFerran) rejected the Respondent’s argument that the “contract coverage” standard should govern, while Acting Chairman Miscimarra found it unnecessary to reach his colleagues’ rejection of that standard.  As to the midterm contract modification issue, Members Pearce and McFerran found it unnecessary to address the issue of whether Bath Iron Works Corp., 345 NLRB 499 (2005), was correctly decided in light of their conclusion that the Respondent’s conduct violated the Act.

Charges filed by UNITE HERE Local 100.  Administrative Law Judge Raymond P. Green issued his decision on June 9, 2016.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Publi-Inversiones De Puerto Rico, Inc. d/b/a El Vocero De Puerto Rico  (12-CA-120344; 365 NLRB No. 29)  San Juan, PR, March 10, 2017.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent was a successor employer and that it violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain collectively with the Union and by refusing to provide certain requested information.

Charge filed by Union De Periodistas, Artes Graficas Yramas Anexas, Local 33225. Administrative Law Judge Melissa M. Olivero issued her decision on September 27, 2016. Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Reflections Cleaning Services, LLC  (18-CA-182827; 365 NLRB No. 43)  Minneapolis, MN, March 10, 2017.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain, and by repudiating its contract, with the Union. 

Charge filed by Laborers International Union of North America (LIUNA), Local 563.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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XPO Logistics Freight, Inc.  (13-CA-189647; 365 NLRB No. 42)  Gary, IN, March 10, 2017.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

Charge filed by Local Lodge 701, International Association of Machinists & Aerospace Workers AFL-CIO.  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

Young Brothers, Ltd  (20-RC-176883)  Honolulu, HI, March 8, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election finding that the Employer failed to meet its burden to show that barge terminal superintendents (BTSs) are statutory supervisors under Section 2(11).  The Board majority (Members Pearce and McFerran) concluded that the Employer raised no substantial issues warranting review, rejecting arguments that BTSs are supervisors because of their purported disciplinary authority, their ability to delay lunch breaks, and/or their status as the highest-ranking employees on site when they perform port relief and on Saturdays (citing Buchanan Marine, L.P., 363 NLRB No. 58 (2015) (highest rank is a secondary indicium and does not itself confer 2(11) supervisory status).  Dissenting, Acting Chairman Miscimarra would grant review, finding that the RD’s decision raised substantial issues regarding the BTSs’ authority to discipline, assign, responsibly direct, adjust grievances, promote or effectively recommend such actions, and consistent with his dissenting view in Buchanan Marine.  He also believed substantial questions existed regarding whether evidence of supervisory authority was disregarded simply because it could have been stronger or more detailed.  Petitioner ‒ Working Foremen’s and Working Supervisors’ Union, Local 100, International Longshore and Warehouse Union.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

NBC Universal, Inc.  (02-CA-115732)  New York, NY, Chicago, IL, Los Angeles, CA, March 7, 2017.  Upon remand from the D.C. Circuit Court, the Board remanded this case to the Regional Director for further analysis in light of the Court’s opinion, including reopening the record, if necessary, and for the issuance of a Supplemental Decision.  The Court instructed the Board to clarify its application of its precedents in determining whether the parties’ Master Agreement covered a single nationwide bargaining unit, as found by the Board, or multiple units, as urged by the Employer.  In remanding the case, the Board majority (Members Pearce and McFerran) found that the “wholistic” approach followed in cases involving master agreements such as Columbia Broadcasting Systems, 208 NLRB 825 (1974), National Broadcasting Co., 114 NLRB 1 (1955), and American Broadcasting Co., 114 NLRB 7 (1955), is appropriate to address the single versus multiple unit issue instead of the “two-step bifurcated” approach set forth by the Acting Regional Director.  Acting Chairman Miscimarra concurred in the decision to remand to the Regional Director, but believed the record must be reopened to allow further relevant evidence to be introduced.  Petitioners ‒ Local 11, National Association of Broadcast Employees & Technicians-Communication Workers of America, AFL-CIO; National Association of Broadcast Employees & Technicians-Communication Workers of America, AFL-CIO; Local 31, National Association of Broadcast Employees & Technicians-Communication Workers of America, AFL-CIO; American Federation of Television and Radio Artists; Local 41, National Association of Broadcast Employees & Technicians-Communication Workers of America, AFL-CIO; Local 53, National Association of Broadcast Employees & Technicians-Communication Workers of America, AFL-CIO.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Gargiulo Produce  (22-CA-177315)  Hillside, NJ, March 8, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  The Board majority (Members Pearce and McFerran), in considering the petition to revoke, evaluated the subpoena in light of the Region’s withdrawal of certain paragraphs and limitations on others based on the Employer’s representation  and a stipulation, and the Region’s acknowledgement that the Employer may redact sensitive information, such as Social Security numbers.  Contrary to the dissent, the majority found that the Region’s offer to limit the scope of the subpoena did not establish that it was initially overbroad.  Dissenting in part, Acting Chairman Miscimarra would have granted the petition to revoke as to requests that encompassed personal identification information.  In his view, it is more appropriate for the Board to grant the petition to revoke as to such requests, rather than to deny the petition based on changes that were communicated only after the petition to revoke is under consideration by the Board.  Charge filed by Local 108, Retail, Wholesale, and Department Store Union, United Food and Commercial Workers.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Gargiulo Produce  (22-CA-177431)  Hillside, NJ, March 8, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  The Board majority (Members Pearce and McFerran), in considering the petition to revoke, evaluated the subpoena in light of the Region’s withdrawal of one paragraph and limitations on others based on the Employer’s representation and a stipulation, and the Region’s acknowledgement that the Employer may redact sensitive information, such as Social Security numbers.  Contrary to the dissent, the majority found that the Region’s offer to limit the scope of the subpoena did not establish that it was initially overbroad.  Dissenting in part, Acting Chairman Miscimarra would have granted the petition to revoke as to requests that were broad enough to encompass irrelevant and/or personal identification information.  In his view, it is more appropriate for the Board to grant a petition to revoke as to such requests, rather than to deny the petition based on a change that was communicated only after the petition to revoke is under consideration by the Board.  He noted that such a practice encourages the filing of subpoenas that are not appropriately tailored to the matters under investigation and creates the appearance of unfairness.  He further noted that the Region’s opposition brief statement that the Employer may redact sensitive information “is contradicted by the subpoena’s specific instructions….”   Charge filed by Local 108, Retail, Wholesale, and Department Store Union, United Food and Commercial Workers.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Mulligan Printing Company  (14-CA-184625)  St. Louis, MO, March 8, 2017.  The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, finding that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Accordingly, the Board denied the Employer’s unsupported request for attorney’s fees.  Charge filed by Graphic Communications Conference, International Brotherhood of Teamsters, Local 6-505M.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

Key Food Co-Op  (22-CA-181542)  Fairview, NJ, March 9, 2017.  The Board denied the Employers’ petition to revoke four investigative subpoenas duces tecum, finding that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employers failed to establish any other legal basis for revoking the subpoenas.  The Board majority (Members Pearce and McFerran), in considering the petition to revoke, evaluated the subpoenas in light of the Region’s willingness to narrow its request and found, contrary to the dissent, that the Region’s offer to narrow the subpoenas did not establish that they were initially overbroad.  Dissenting in part, Acting Chairman Miscimarra would have granted the petition to revoke as to requests that encompassed all correspondence between the Employers and Local 1964 pertaining to non-supervisory employees employed at the Employers’ facilities.  In his view, it is more appropriate for the Board to grant a petition to revoke as to such requests, rather than to deny the petition based on a change that was communicated only after the petition to revoke is under consideration by the Board.  In addition, he would have granted the petition to revoke as to the request for employee handbooks, except for those handbook provisions that reasonably relate to certain ULP charge allegations.  Charge filed by United Food and Commercial Workers Local 464A.  Acting Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

Chipotle Services, LLC, a wholly owned subsidiary of Chipotle Mexican Grill, Inc., Board Case No. 14-CA-128253 (reported at 363 NLRB No. 37) (8th Cir. decided March 6, 2017)

In a published opinion, the court enforced the Board’s order issued against this nationwide operator of 1700 quick service restaurants for unfair labor practices committed at its Delmar Loop location in St. Louis, Michigan, during the “Show Me 15” campaign by the Mid-South Organizing Committee.  Specifically, the Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that the Employer violated Section 8(a)(1) by interrogating employees, impliedly promising increased wages, telling employees they could not talk about their wages, threatening employees with discharge and other unspecified reprisals if they did so, telling employees that managers were instructed to report their wage discussions, and instructing employees not to engage in protected concerted activity and not to talk to Union representatives.  The Board found that the Employer also violated Section 8(a)(3) and (1) by discharging an employee who was actively involved in the “Show Me 15” campaign and related protests in the St. Louis area.

Before the court, the Employer did not contest the Section 8(a)(1) violations, which the court summarily enforced.  Regarding the unlawful discharge, the Employer argued, for the first time, only that the Board should have required the General Counsel, in his burden under Wright Line, to demonstrate that the employee’s protected activities were the “cause in fact” for the discharge.  After stating that the Board had “followed the standard approach announced in Wright Line,” the court did not reach the Employer’s argument, finding it jurisdictionally barred from review by Section 10(e) of the Act.  The court rejected the Employer’s attempts to argue that Section 10(e)’s exception for extraordinary circumstances should forgive its failure to present the argument to the Board because, it claimed, raising it to the Board would have been futile.  The court noted that the Eighth Circuit has never recognized futility as excusing a failure to raise an objection to the Board, but stated that, even if it did so here, “a prediction that such an argument was a long shot, even if well-founded, is no excuse for not making it.”

The court’s opinion is here.

Endo Painting Service Inc., Board Case No. 20-CA-080565 (reported at 360 NLRB No. 61) (9th Cir. decided March 9, 2017)

In an unpublished opinion, the court enforced in full the Board’s order issued against this provider of painting services with offices in Wailuku and Waipahu, Hawaii, for information-request violations related to a class-wide grievance filed by International Union of Painters and Allied Trades, Painters Local Union 1791, which represents the Employer’s painters.  Since the 1960s, the Employer has been a signatory party to successive collective-bargaining agreements between the Painting and Decorating Contractors Association of Hawaii and the Union.

In 2012, the Union filed a class-wide grievance alleging that the Employer violated the collective-bargaining agreement by, among other things, refusing to pay overtime, banking hours for employees that worked over 40 hours a week, changing employee timesheets to reflect fewer hours than employees worked, paying employees in cash on weekends without making proper payroll and tax deductions and payments for trust-fund contributions, and requiring some employees to use their personal vehicles for jobs.  Subsequently, the Union submitted a request for information related to the grievance, including an organizational chart, daily timesheets or cards, daily reports, weekly reports, work logs, the names and dates of employees who were paid cash and the amounts they were paid, the names of employees who were requested to bank hours in excess of 40 hours, and the names of employees who were permitted to use a company credit card to purchase gas for their personal vehicles.

The Employer refused to provide the information.  Three months later, the Employer informed the Union that it could not produce the organizational chart because none existed.  On those facts, the Board (Members Miscimarra, Hirozawa, and Schiffer) found that the Employer’s refusal, as well as its unreasonable three-month delay in informing the Union that it did not maintain an organizational chart, violated Section 8(a)(5) and (1).  In doing so, the Board rejected the Employer’s argument that it was not required to provide the information because the grievance was procedurally defective and thus, it claimed, any information related to that grievance was not relevant.  The Board explained that it is well settled that an Employer is obligated to furnish information relevant to a Union’s bargaining duty regardless of the merits of a related grievance.

The court held that substantial evidence supported the Board’s findings.  Regarding the Employer’s contention that it was not obligated to provide the information, the court stated that it was obligated to do so, because the information was relevant to wages, hours, and working conditions, and that it was also relevant and necessary to the Union’s investigation of the allegations in its class-wide grievance.  The court further agreed with the Board that, under the totality of the circumstances, the Employer’s three-month delay was unreasonable and in violation of its duty to bargain.

The court’s unpublished opinion is here.

ABM Onsite Services - West, Inc., Board No. 19-CA-153164 (reported at 362 NLRB No. 179) (D.C. Cir. decided March 7, 2017)

In a published opinion, the court vacated the Board’s order and remanded for further proceedings.  Based on precedent of the National Mediation Board (NMB), the Board had determined that this contractor that provides a baggage-handling system at the Portland International Airport is an employer covered by the National Labor Relations Act (NLRA), rather than by the Railway Labor Act (RLA).

In the underlying representation case, the International Association of Machinists and Aerospace Workers, District Lodge W24 and Local Lodge 1005, petitioned to represent the Employer’s jammer technicians and dispatchers who work at the airport, and the Employer sought dismissal of the petition on its claim that the Board lacked jurisdiction.  After a hearing, the Regional Director found NLRA jurisdiction, and the Board (then-Chairman Pearce and Member McFerran; Member Miscimarra dissenting) upheld that finding on review.  To begin, the Board exercised its statutory authority to decide the question without referring it to the NMB, consistent with its practice of not referring cases that are factually similar to ones over which the NMB has previously declined jurisdiction.  Accordingly, the Board applied the NMB’s current test for determining whether an employer is subject to the RLA and analyzed the factors that the NMB has held relevant to determining whether an employer is controlled by, or under common control with, a carrier or carriers covered by the RLA.  Thereafter, an election was held in April 2015 in which the employees voted in favor of union representation, the Board certified the Union, and the Employer refused to bargain in order to seek court review.

On review, the court noted that, over the years, the NMB has developed a six-factor test for determining whether a company is controlled by an air carrier, citing Air Serv Corp., 33 NMB 272, 285 (2006) (the agency assesses:  (1) the extent of the carrier’s control over the manner in which the company conducts its business; (2) the carrier’s access to the company’s operations and records; (3) the carrier’s role in the company’s personnel decisions; (4) the degree of carrier supervision of the company’s employees; (5) whether company employees are held out to the public as carrier employees; and (6) the extent of the carrier’s control over employee training).  The court further explained that, beginning in 2013, in “a clear departure from precedent” and “without explanation,” a subsequent line of NMB cases “began requiring that air carriers exercise a substantial ‘degree of control over the firing[] and discipline of a company’s employees’ before it would find that company subject to the RLA.”  Yet, that court stated, the NMB never expressly disavowed its precedent that took all six factors into account, nor did it provide a rationale for why it decided to replace that traditional approach with an analysis that emphasized carrier control of discipline and discharge.

Looking to this case, the court stated that, under the prior Air Serv Corp. factors, the company “would plainly fall under the control of carriers” and be governed by the RLA, but that the more recent NMB precedent that contained an unexplained shift in the test, which the Board included in its analysis, would cut the other way.  The court then held that, when the Board first adopted and applied the NMB’s traditional approach in prior Board cases, “it bound itself to continue doing so,” and that “any deviation would require a reasoned explanation.”  Given the Board’s previous endorsement of the prior approach, the court held that “it was not enough for the NLRB simply to follow suit without an explanation for why it, too, was leaving behind settled precedent.”  Accordingly, the court vacated the Board’s order and remanded for further proceedings consistent with its opinion.

The court’s opinion is here.

Scoma’s of Sausalito, LLC, Board Case No. 20-CA-116766 (reported at 362 NLRB No. 174) (D.C. Cir. decided March 7, 2017)

In a published opinion, the court granted the petition for review filed by this operator of a seafood restaurant in Sausalito, California, vacated the Board’s bargaining order, and remanded for determination of a new remedy.  In doing so, the court upheld the Board’s finding that the Employer unlawfully withdrew recognition from UNITE HERE, Local 2850, which represents the Employer’s kitchen and wait staff, but held that an affirmative bargaining order was not supported by the facts of the case.

In 2013, the Employer received a petition signed by 29 of the 54 employees stating that it should withdraw recognition from the Union.  Meanwhile, the Union persuaded six petition signers to revoke their signatures, leaving the petition no longer supported by a majority of employees.  Two days later, unaware of the revocations, the Employer withdrew recognition, and the Union thereafter filed an unfair-labor-practice charge.  The Board (Members Hirozawa, Johnson, and McFerran) found, in agreement with the administrative law judge, that the Employer failed to establish, as required by Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), that the Union lacked majority support at the time of its withdrawal.  The Board also rejected the Employer’s contention that the Board should have imposed on the Union a duty to inform the Employer that it had gathered the revocations.  Accordingly, the Board found that the Employer violated Section 8(a)(5) and (1) by withdrawing recognition and, among other remedies, issued an affirmative bargaining order.

Before the court (Circuit Judge Henderson, and Senior Circuit Judges Edwards and Sentelle), the Employer did not dispute that it failed to meet the requirements of Levitz, but argued that Levitz should be modified in two ways.  First, it contended that an Employer’s “good-faith certainty” in relying on a petition signed by a majority of employees should shield it from liability.  The court rejected that notion, explaining that it was contrary to Levitz, and its own circuit precedent upholding Levitz, under the principle that an Employer “acts at its peril” in unilaterally withdrawing recognition and not seeking a Board election.  Second, the court similarly held that no authority supported the Employer’s contention that a union should have a duty to disclose signature revocations.

The court, however, agreed with the Employer that the Board had not properly justified the need for an affirmative bargaining order, and that the facts of the case did not warrant one.  The court, citing cases, stated that an affirmative bargaining order is warranted where the severity of the employer’s conduct was “deliberate or calculated,” was “the genesis” of the employees’ desire to rid themselves of the union, or was “so flagrant” that an election cannot fairly be held.  The court concluded that, here, the Employer’s conduct “may have been incautious with respect to Levitz,” but that, without more, an affirmative bargaining order was not warranted.  Accordingly, it remanded to the Board for determination of a new remedy.

In a concurring opinion, Judge Henderson wrote separately to express her view “that Levitz should be carefully cabined in cases involving restored majority status so that it does not reward gamesmanship at the expense of transparency.”

The court’s opinion is here.

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Administrative Law Judge Decisions

Hyundai Motor Manufacturing Alabama, LLC  (15-CA-173419; JD-16-17)  Montgomery, AL.  Administrative Law Judge Arthur J. Amchan issued his decision on March 6, 2017.  Charge filed by an individual.  Errata issued March 7, 2017.

Primeflight Aviation Services, Inc.  (29-CA-177992, 29-CA-179767 and 29-CA-184505; JD(NY)-05-17)  Brooklyn, NY.  Administrative Law Judge Mindy E. Landow issued her decision on March 9, 2017.  Charges filed by Service Employees International Union Local 32BJ.

Metalcraft of Mayville, Inc.  (18-CA-178322; JD-17-17)  Mayville, WI.  Administrative Law Judge Charles J. Muhl issued his decision on March 10, 2017.  Charge filed by District Lodge No. 10, International Association of Machinists and Aerospace Workers of America, AFL-CIO.

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