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Summary of NLRB Decisions for Week of May 1 - 5, 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

Voices for International Business and Education, Inc., d/b/a International High School of New Orleans  (15-CA-182627; 365 NLRB No. 66)  New Orleans, LA, May 5, 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.  Chairman Miscimarra would have granted review in the underlying representation proceeding but agrees that the Respondent has not raised any new matters that are properly litigable in this unfair labor practice proceeding.

Charge filed by United Teachers of New Orleans, Local 527, LFT, AFT.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Mercedes-Benz U.S. International, Inc. (MBUSI)  (10-CA-169466; 365 NLRB No. 67)  Vance, AL, May 5, 2017.

The Board (Chairman Miscimarra and Member McFerran; Member Pearce, dissenting) denied the General Counsel’s motion for summary judgment, finding that  the General Counsel failed to establish that there are no genuine issues of material fact warranting a hearing and that the General Counsel was entitled to judgment as a matter of law.  The Board majority concluded that Respondent could present evidence at a hearing to defend its rule prohibiting the use of cameras and video recording devices in its auto plant.  In dissent, Member Pearce would find that the General Counsel is entitled to summary judgment because there are no genuine issues of material fact warranting a hearing and it was “clearly established” that the recording rule was unlawful.

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

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

North Shore Ambulance and Oxygen Service, Inc.  (29-RC-185400)  College Point, NY, May 3, 2017.  The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting)  denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review.  Union - Local 726, International Union of Journeymen and Allied Trades.  Chairman Miscimarra and Members Pearce and McFerran participated.

Unifirst Corporation  (06-RD-172983)  New Kensington, PA, May 4, 2017.  The Board denied  the Union’s Request for Review of the Regional Director’s Supplemental Decision and Certification of Results of Election as it raised no substantial issues warranting review. Petitioner - an individual. Union - United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1324-15.  Chairman Miscimarra and Members Pearce and McFerran participated.

Marywood University  (04-RC-173160)  Scranton, PA, May 5, 2017.  The Board denied the Employer’s and Petitioner’s Requests for Review of the Acting Regional Director’s Decision and Order finding that the Board could assert jurisdiction over the Employer despite its status as a self-identified religious university, but dismissing the petition on the basis that the petitioned-for faculty employees are managerial employees and are therefore excluded from employee status under the Act.  The Board majority found it unnecessary to pass on whether the Acting Regional Director properly asserted jurisdiction over the Employer under Pacific Lutheran University, 361 NLRB No. 157 (2014).   Chairman Miscimarra concurred with the majority regarding the dismissal based on the employees’ managerial status.  Relying on his dissent in Pacific Lutheran University, Chairman Miscimarra would also decline to assert jurisdiction over the petitioned-for faculty members because the University is exempt from the Board’s jurisdiction as a religiously-affiliated institution.  Petitioner - Marywood University Faculty Association, affiliated with Pennsylvania State Education Association.  Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

In Re: Request for Rulemaking Regarding Reconsideration of IBM Corp., 341 NLRB 1288 (2004)(11-CA-019324, 11-CA-019329 and 11-CA-019334)  (SP-455)  Bryn Mawr, PA, May 3, 2017.  The Board denied a request that the Board use its rulemaking power to reverse the Board’s decision in IBM Corp., 341 NLRB 1288 (2004), and extend Weingarten rights to nonunion employees.  The Board stated that it has decided not to exercise its discretionary authority to engage in rulemaking at this time with respect to this issue.  Request for rulemaking filed by an individual.  Chairman Miscimarra and Members Pearce and McFerran participated.

United States Postal Service  (28-CA-175407 and 28-CA-178951)  Albuquerque, NM, May 3, 2017.  No exceptions having been filed to the March 22, 2017 decision of Administrative Law Judge John T. Giannopoulos’ finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charges filed by National Association of Letter Carriers, Sunshine Branch 504, affiliated with National Association of Letter Carriers, AFL-CIO.

International Brotherhood of Teamsters and its affiliated Local Union No. 776 (United Parcel Service, Inc.)  (04-CB-166651 and 04-CB-170828)  Harrisburg, PA, May 5, 2017.  No exceptions having been filed to the March 23, 2017 decision of Administrative Law Judge Robert A. Giannasi’s 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 recommended Order.  Charges filed by individuals.

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Appellate Court Decisions

Roemer Industries, Inc., Board Case No. 08-CA-124110 (reported at 362 NLRB No. 96) (6th Cir. decided May 4, 2017)

In an unpublished opinion, the Court enforced the Board’s order issued against this manufacturer of graphic industrial identification products operating a facility in Masury, Ohio, where its employees are represented by the United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union.  The Board (Members Hirozawa, Johnson, and McFerran) found that the Employer violated Section 8(a)(3) and (1) by suspending two employees who were acting in their union roles as “unit chair” and “unit griever,” for circumstances that arose while they were investigating a grievance.  The Board found that their conversation with another employee and other comments, which the Employer claimed involved bullying, was protected activity that did not cause either employee to lose the Act’s protection.

On review, the Court summarized the Employer’s defense as “lay[ing] out facts that support its bullying theory and otherwise ask[ing] the court to re-characterize and re-weigh evidence.”  The Court explained that, “when reviewing Board decisions, it is not our job to interpret which version of the facts is correct.”  Rather, the Court stated, “we serve to determine whether there is substantial evidence in the record to support the Board’s findings.”  Finding that support, the Court enforced.

The court’s unpublished opinion is here.

Oak Harbor Freight Lines, Inc., Board No. 19-CA-031797 (reported at 361 NLRB No. 82) (D.C. Cir. decided May 2, 2017)

In a published opinion, the Court enforced the Board’s order issued against this business that transports freight by truck throughout the Northwest for violating Section 8(a)(5) and (1) by unilaterally ceasing contributions to an employee benefit trust, implementing a health care plan without reaching impasse, and refusing to bargain regarding health care benefits with the Unions, Teamsters Union Local Numbers 81, 174, 231, 252, 324, 483, 589, 690, 760, 763, 839, and 962, which represent various units of employees in California, Idaho, Oregon, and Washington.  The Court also denied a petition for review in which the Unions challenged the Board’s dismissal of additional unilateral-change allegations involving contributions to three other benefit trusts.

The parties have a longstanding collective-bargaining relationship, in which the Unions bargain with the Employer for a single agreement which, among other terms, requires the Employer to make contributions to four employee benefit trusts.  To implement that requirement, in 2005, the parties executed side agreements for three of the trusts (but apparently not for the fourth), which permitted the Employer to cease contributions upon five days’ notice, provided the underlying collective-bargaining agreement had expired.  In August 2007, the parties began negotiations for a successor agreement.  In September, the employees went on strike, after which some “crossover employees” returned to work.  By October, the collective-bargaining agreement expired and the Employer gave notice that it planned to exercise its right to cease contributions and did so with regard to all four trusts.  After the strike ended and the striking employees returned to work, the Employer unilaterally implemented its health care plan for all unit employees, which it had applied only to crossover employees during the strike.

The Board (then-Chairman Pearce, and Members Hirozawa and Johnson) found, under the language of the three executed side agreements, that the Unions waived their right to bargain over the Employer’s decision to cease contributions and dismissed the corresponding allegations.  The Board found, however, that no similar waiver had been executed for the Oregon Welfare trust, and therefore that the Employer’s cessation of contributions to that trust was unlawful.  Additionally, the Board found that the Employer violated Section 8(a)(5) and (1) by unilaterally implementing the new health care plan for unit employees without reaching impasse, and by refusing to bargain in good faith regarding health care benefits.

Addressing the  Unions’ petition, the Court held that the Board properly concluded that the Unions waived their rights to bargain.  Rejecting their contentions concerning the Board’s failure to consider certain extrinsic evidence, the Court stated that “the Board has explained that it will find a clear and unmistakable waiver of the right to bargain over the cancellation of trust payments only where there is explicit contract language authorizing an employer to cancel its obligations.”  The Court noted that, although the Board applies its “clear and unmistakable waiver” standard, rather than the court’s “contract coverage” test, here no party raised a contract coverage issue.  Regarding the Employer’s petition challenging the unfair labor practices, the Court held that the Board’s findings were supported by substantial evidence and the Employer’s contentions provided no basis to disturb them.

The court’s opinion is here.

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Administrative Law Judge Decisions

Richfield Hospitality, Inc. as managing agent for Kahler Hotels, LLC  (18-CA-176369; JD-28-17)  Rochester, MN.  Administrative Law Judge Keltner W. Locke issued his decision on May 4, 2017.  Charge filed by Unite Here International Union Local 21.

New Vista Nursing and Rehabilitation Center  (22-CA-179497; JD(NY)-10-17)  Newark, NJ.  Administrative Law Judge Kenneth W. Chu issued his decision on May 4, 2017.  Charge filed by 1199 SEIU United Healthcare Workers East.

Burgerville, LLC  (19-CA-182182 and 19-CA-182184; JD(SF)-19-17)  Vancouver, WA.  Administrative Law Judge Amita Baman Tracy issued her decision on May 4, 2017.  Charges filed by Industrial Workers of the World.

International Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, Local 229, AFL-CIO  (21-CC-183510; JD(SF)-20-17)  San Diego, CA.  Administrative Law Judge Mary Miller Cracraft issued her decision on May 4, 2017.  Charge filed by Commercial Metals Company dba CMC Rebar.

Burgerville, LLC (19-CA-182182 and 19-CA-182184; JD(SF)-19-17) Vancouver, WA, May 5, 2017.  An Errata to Administrative Law Judge Amita Baman Tracy’s May 4, 2017 decision.  Errata   Amended Decision.

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