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Summary of NLRB Decisions for Week of May 12 - 16, 2014

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

LM Waste Service Corp.  (24-CA-091171, et al.; 360 NLRB No. 105)  San Juan, PR, May 12, 2014.

The Respondent ceased paying its workers in two bargaining units several contractually required bonuses, missed a payroll payment, suspended its health insurance, and failed to provide several other contractually required benefits.  It admitted that it failed to adhere to the CBAs, but contended that the Union waived its right to bargain and agreed to some of the changes.  The Board adopted the administrative law judge’s findings rejecting the Respondent’s defenses, and found that the Respondent violated Section 8(a)(5) by failing to adhere to its CBAs without the Union’s consent.  The Board also adopted several unilateral-change violations that the judge found, but to which the Respondent did not except.  Charges filed by the Union de Tronquistas de Puerto Rico, Local 901, International Brotherhood of Teamsters.  Administrative Law Judge Heather A. Joys issued her decision on January 17, 2014.  Members Hirozawa, Johnson, and Schiffer participated.

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Howard Industries, Inc.  (15-CA-070830, et al.; 360 NLRB No. 111)  Laurel, MS, May 13, 2014.

The Board adopted the judge’s findings that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union with requested information concerning efficiency standards, because the Respondent failed to demonstrate a legitimate and substantial confidentiality interest in the information.  Member Johnson, concurring, found that the employer had shown a legitimate and substantial confidentiality interest, but that it violated Section 8(a)(5) by failing to seek an accommodation through bargaining.  Charges filed by International Brotherhood of Electrical Workers, Local 1317.  Administrative Law Judge Keltner W. Locker issued a bench decision on May 3, 2013 and a decision with additional analysis on June 13, 2013.  Chairman Pearce, and Members Hirozawa and Johnson participated.

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The Fund for The Public Interest  (19-CA-094311; 360 NLRB No. 110)  Portland, OR, May 13, 2014.

The Board adopted the administrative law judge’s finding that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for his activities in support of Communications Workers of America, Local 7901, AFL-CIO.  In affirming the judge’s finding, the Board relied on direct evidence of antiunion animus contained in an email sent by the supervisor who took responsibility for the decision to discharge the employee.  In affirming the judge’s decision to grant backpay and reinstatement, the Board discussed the standard for denying these remedies due to post discharge misconduct.  The Board granted the General Counsel’s request to strike and disregard certain portions of the Respondent’s exceptions brief.  The charge was filed by Communications Workers of America, Local 7901, AFL-CIO.  Administrative Law Judge Margaret G. Brakebusch issued her decision on October 25, 2013.  Members Miscimarra, Johnson, and Schiffer participated.

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International Union of Operating Engineers, Local 18 (Donley’s, Inc.)  (08-CD-091637, et al.; 360 NLRB No. 113)  Cleveland, OH, May 15, 2014. 

This 10(k) case involves a jurisdictional work dispute between Operating Engineers Local 18 and Laborers Local 310.  The disputed work is the operation of forklifts and skid steers on construction projects of five employers in Cleveland, Ohio.  The Board panel, by unanimous agreement, awarded the disputed work to employees represented by the Laborers.  The panel disagreed, however, with respect to the scope of the award.  The Board majority, consisting of Members Miscimarra and Johnson, granted a broad areawide award of the work, coextensive with the Employers’ operations where the two Unions’ jurisdictions overlap.  Chairman Pearce would limit the scope of the award to the particular controversies that gave rise to the dispute.  Charges were filed by the Construction Employers Association and the five Employers - - Donley’s Inc., B&B Wrecking and Excavating, Inc., Cleveland Cement Contractors, Inc., Hunt Construction Group, and Precision Environmental Co.  Chairman Pearce, and Members Miscimarra and Johnson participated

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Heartland Human Services  (14-CA-118716; 360 NLRB No. 101)  Effingham, IL, May 15, 2014. 

The Board granted the General Counsel’s Motion for Summary Judgment on the grounds that there are no genuine issues of material fact as to the allegations of the complaint warranting a hearing, and that there is no merit to the Respondent’s contentions that it is not obligated to bargain with the certified Union because the Union does not enjoy majority support of the unit employees and the Board erred in ordering a rerun election in Case 14-RD-063069. The Board noted that the Respondent’s defense was raised to the Board and found to be without merit in three earlier cases involving the Respondent. The Board also denied the Respondent’s request to stay these proceedings pending a determination by the U.S. Court of Appeals for the Seventh Circuit in the first of those earlier cases. In this regard, the Board noted that the Court enforced the Board’s Order in that proceeding, Heartland Human Services v. NLRB, -- F. 3d – (7th Cir. 2014), 2014 WL 983618 on March 14, 2014. Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by implementing a drug testing policy for employees who sustain a work-related injury that requires medical treatment, without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to this conduct.  Charge filed by American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL-CIO. Chairman Pearce, and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery  (32-RC-109684)  Milpitas, CA, May 12, 2014.  The Board issued a Notice and Invitation to File Briefs, which invited the parties and interested amici to file briefs on the issue of whether, under the Board’s current joint-employer standard, as articulated in TLI, Inc. and Laerco Transportation, Leadpoint Business Services is the sole employer of the petitioned-for employees; the issue of whether the Board should adhere to its existing joint-employer standard or adopt a new standard, and what considerations should influence the Board’s decision in this regard; and finally, if the Board adopts a new standard for determining joint-employer status, what should that standard be, what factors should be examined, and what would be the basis or rationale for such a standard.  Briefs are due to be filed with the Board by June 26, 2014, with the parties permitted to file responsive brief by July 10, 2014.  Petitioner—Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters.

Northwestern University  (13-RC-121359)  Evanston, IL, May 12, 2014.  The Board issued a Notice and Invitation to File Briefs.  Having granted the Employer’s Request for Review on April 24, 2014, the Board specifically invited parties and interested amici to file briefs addressing the following questions, in addition to any other issued raised: (1) what test should the Board apply to determine whether grant-in-aid scholarship football players are “employees” within the meaning of Section 2(3) of the Act, and what is the proper result here, applying the appropriate test? (2) insofar as the Board’s decision in Brown University, 342 NLRB 483 (2004), may be applicable to this case, should the Board adhere to, modify, or overrule the test of employee status applied in that case, and if so, on what basis? (3) what policy considerations are relevant to the Board’s determination of whether grant-in-aid scholarship football players are “employees” within the meaning of Section 2(3) of the Act and what result do they suggest here? (4) to what extent, if any, is the existence or absence of determinations regarding employee status of grant-in-aid scholarship football players under other federal or state statutes or regulations relevant to whether such players are “employees” under the Act? (5) to what extent are the employment discrimination provisions of Title VII, in comparison to the antidiscrimination provisions of Title IX of the Education Amendments Act of 1972, relevant to whether grant-in-aid scholarship football players are “employees” under the Act? (6) if grant-in-aid scholarship football players are “employees” under the Act, to what extent, if any, should the Board consider, in determining the parties’ collective-bargaining obligations, the existence of outside constraints that may alter the ability of the parties to engage in collective bargaining as to certain terms and conditions of employment?  What, if any, should be the impact of such constraints on the parties’ bargaining obligations?  In the alternative, should the Board recognize grant-in-aid scholarship football players as “employees” under the Act, but preclude them from being represented in any bargaining unit or engaging in any collective bargaining, as is the case with confidential employees under Board law?  Petitioner—College Athletes Players Association (CAPA).

King’s Ready Mix Inc.  (29-RC-119421)  Brooklyn, NY, May 14, 2014.  The Board denied the Employer’s request for review of the Regional Director’s overruling of its objection alleging that the Regional Director erred in denying the its request for a postponement of the election because a fire at the Employer’s main office three days before the election, inter alia, affected its ability to campaign effectively.  Chairman Pearce, and Members Johnson and Schiffer participated.

C Cases

Taylor Farms Pacific, Inc./Abel Mendoza, Inc.  (32-CA-116590, et al.)  Tracy, CA, May 14, 2014.  The Board denied the Employer’s petition to partially 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.  Charge filed by Teamsters, Local 601, International Brotherhood of Teamsters.  Chairman Pearce and Members Johnson and Schiffer participated.

Teamsters Local Union No. 769 (T.V.M. Productions)  (12-CB-119074)  Miami, FL, May 14, 2014.  The Board denied the Charged Party Union’s petition to partially 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 Union failed to establish any other legal basis for revoking the subpoena. The Board noted that it had evaluated the subpoena as clarified by the Region in its opposition to the petition to revoke. Charge filed by an individual. Chairman Pearce and Members Johnson and Schiffer participated.

Healthbridge Management, LLC; Care Realty, LLC; Care One, LLC; 107 Osborne Street Operating Company II, LLC d/b/a Danbury HCC; 710 Long Ridge Road Operating Company II, LLC d/b/a Long Ridge of Stamford; 240 Church Street Operating Company II, LLC d/b/a Newington Health Care Center; 1 Burr Road Operating Company II, LLC d/b/a Westport Health Care Center; 245 Orange Avenue Operating Company II, LLC d/b/a West River Health Care Center; 341 Jordan Lane Operating Company II, LLC d/b/a Wethersfield Health Care Center  (34-CA-070823, et al.)  Wethersfield, CT, May 14, 2014.  The Board denied the General Counsel’s request for special permission to appeal from an administrative law judge’s ruling in connection with the General Counsel’s motion for an order for compliance with subpoenas duces tecum.  The General Counsel asserted that the judge abused his discretion in ordering the Respondents to issue a revised privilege log which may, if warranted, include documents alleged to be privileged as relating to the Respondents’ bargaining strategy.  The General Counsel requested that the Board issue a clarifying Order that would eliminate the necessity of litigating at the hearing the applicability of a bargaining strategy privilege to documents sought by the General Counsel.  The Board denied the request as premature, noting that at this point in the proceedings the Respondents have not yet submitted their revised log and the judge has not yet ruled that any of the subpoenaed documents are privileged. The Board stated that if the General Counsel objects to the judge’s ultimate ruling on this matter, he may request special permission to appeal at that time or raise the issue on exceptions to the Board. Charges filed by New England Health Care Employees Union, District 1199, SEIU, AFL-CIO.  Members Hirozawa, Johnson, and Schiffer participated.

General Steel Drum, LLC and Myers Container, LLC, Joint Employers  (10-CA-115129 and 116635)  Charlotte, NC, May 16, 2014.  The Board denied the Employers’ petitions to revoke subpoenas duces tecum.  The Board found that the subpoenas, as modified, sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employers had failed to establish any other legal basis for revoking the subpoenas.  Charges filed by International Brotherhood of Teamsters, Local 71.  Members Hirozawa, Johnson, and Schiffer participated.

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Appellate Court Decisions

No Appeals Court decisions involving Board decisions to report.

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Administrative Law Judge Decisions

A & B Sheet Metal, Inc.  (10-CA-108107 and 108115; JD-29-14)  Forest Park, GA.  Administrative Law Judge Susan A. Flynn issued her decision on May 14, 2014.  Charges filed by Sheet Metal Workers Local Union 85.

Total Security Management Illinois 1, LLC  (13-CA-108215; JD-28-14) O akbrook Terrace, IL.  Errata for Administrative Law Judge Arthur J. Amchan’s decision issued on May 9, 2014. Charges filed by International Union Security Police Fire Professionals of America (SPFPA).

Manhattan Beer Distributors LLC  (29-CA-115694; JD(NY)-22-14)  Wyandanch, NY.  Administrative Law Judge Steven Davis issued his decision on May 15, 2014.  Charge filed by an individual.

The Boeing Company  (19-CA-090932, et al.; JD(SF)-23-14)  Everett, WA.  Administrative Law Judge Gerald M. Etchingham issued his decision on May 15, 2014.  Charges filed by Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001.

Paragon Systems, Inc.  (12-CA-105275 and 105291; JD(NY)-21-14)  Tampa, FL.  Administrative Law Judge Joel P. Biblowitz issued his decision on May 15, 2014.  Charges filed by United Government Security Officers of America, Local 236.

Chapin Hill at Red Bank  (22-CA-067608; JD(NY)-23-14)  Red Bank, NJ.  Administrative Law Judge Mindy E. Landow issued her Supplemental Decision on Remand on May 15, 2014.  Charge filed by Local 707, Health Employees Alliance Rights & Trades (H.E.A.R.T).

Hendrickson Trucking Company  (07-CA-086624 and 095591; JD(ATL)-16-14)  Jackson, MI.  Administrative Law Judge Donna Dawson issued her decision on May 16, 2014.  Charges filed by Local 164, International Brotherhood of Teamsters (IBT).

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