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Summary of NLRB Decisions for Week of May 16 - 20, 2016

The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB.  Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.

Summarized Board Decisions

Boothwyn Fire Company No. 1  (04-CA-133498 and 04-CA-140365; 363 NLRB No. 191)  Boothwyn, PA, May 16, 2016.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by threatening, preparing written documentation against, and eventually discharging an employee because he engaged in protected concerted activity when he joined other employees in raising the issue of a wage increase.  The Board rejected the Respondent’s exceptions which challenged the judge’s conclusions that the threat, written documentation, and discharge were unlawful.  The Board found that, shortly after the employee spoke about a wage increase, the Respondent threatened him when a supervisor stated that the employee’s hours could be reduced and the supervisor could have him replaced.  The Board also found that the Respondent provided pretextual reasons for the written documentation and the discharge, and that it was not able to show that it would have taken the same action absent the employee’s protected concerted activity.  Charges filed by an individual.  Administrative Law Judge Robert A. Giannasi issued his decision on April 15, 2015.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Acuity Specialty Products, Inc. d/b/a ZEP, Inc.  (32-CA-075221 and 32-CA-102838; 363 NLRB No. 192)  Los Gatos, CA, May 16, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), the Board found that the Respondent violated Section 8(a)(1) by promulgating, maintaining, and enforcing an arbitration policy that requires employees to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  Explaining that an employer may not lawfully condition the receipt of benefits upon employees’ waiver of their Section 7 rights to act collectively, the Board further found that the Respondent violated Section 8(a)(1) by conditioning employees’ eligibility to participate in a sales bonus program upon signing the arbitration policy.   The Board additionally found that maintaining the arbitration policy violated Section 8(a)(1) because employees reasonably would believe that it either bars or restricts their right to file unfair labor practice charges with the Board.    Member Miscimarra concurred with the finding that the arbitration policy violated Section 8(a)(1) because employees reasonably would believe that it either bars or restricts their right to file unfair labor practice charges with the Board.  Member Miscimarra dissented from the remainder of the majority opinion based on his dissenting opinions in D. R. Horton and Murphy Oil USA.

Administrative Law Judge Mindy E. Landow issued a decision in this proceeding on July 21, 2014.   Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Cooper Tire & Rubber Company  (08-CA-087155; 363 NLRB No. 194)  Findlay, OH, May 17, 2016.

The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(3) and (1) by discharging a picketing employee.  The Board also adopted the judge’s finding that deferral was inappropriate in this case.  Administrative Law Judge Thomas M. Randazzo issued his decision on June 5, 2015. The charge was filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC.  Chairman Pearce and Members Hirozawa and McFerran participated.

***

Adams & Associates, Inc. and McConnell, Jones, Lanier & Murphy, LLP  (20-CA-130613 and 20-CA-138046; 363 NLRB No. 193)  Sacramento, CA, May 17, 2016.

The Board adopted the Administrative Law Judge’s findings that Adams & Associates, Inc. and McConnell, Jones, Lanier & Murphy, LLP (Respondent) are a single employer within the meaning of the Act; that the Respondent is a legal successor to Horizons Youth Services, LLC; that the Respondent violated Section 8(a)(3) and (1) by discriminatorily refusing to hire five Horizons employees in an attempt to avoid a bargaining obligation; and that it violated Section 8(a)(5) and (1) by unilaterally imposing initial terms and conditions of employment on unit employees, discharging four unit employees pursuant to unilaterally imposed disciplinary policies, removing bargaining unit work, and banning the Union president from the facility.  Reversing the judge, the Board further found that the Respondent is a “perfectly clear” successor within the meaning of Spruce Up Corp., 209 NLRB 194 (1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975), and that this independently made unlawful its unilateral setting of initial terms.  Finally, the Board additionally found that the Respondent violated Section 8(a)(3) and (1) by refusing to hire the Union president because of her union activities as well as to avoid a bargaining obligation.

Charge filed by Sacramento Job Corps Federation of Teachers, AFT Local 4986, American Federation of Teachers.  Administrative Law Judge Mary Miller Cracraft issued her decision on June 16, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

***

Hobby Lobby Stores, Inc.  (20-CA-139745; 363 NLRB No. 195)  Sacramento, CA, May 18, 2016

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran found that the Respondent violated Section 8(a)(1) by maintaining an arbitration policy that required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, and that employees would reasonably believe either bars or restricts their right to file charges with the Board.  In addition, the majority found that the Respondent also violated Section 8(a)(1) by enforcing its unlawful arbitration policy by filing a motion in federal court to compel arbitration and to dismiss the collective and representative wage and hour lawsuits filed by the plaintiffs.  The majority did not rely on the judge’s findings that the Federal Arbitration Act (FAA) did not apply to the Respondent’s arbitration policy because, consistent with the Board’s rationale in D. R. Horton and Murphy Oil, the Board’s holding does not create a conflict between the NLRA and the FAA.

Consistent with his partial dissent in Murphy Oil, Member Miscimarra dissented from the majority’s finding that the arbitration policy violated Section 8(a)(1).  Member Miscimarra would find that agreements between employers and employees that waive class and collective actions regarding non-NLRA employment claims are lawful, and that enforcement of class-action waivers as part of arbitration agreements is warranted by the FAA.  Member Miscimarra also dissented from the majority’s finding that the arbitration policy unlawfully interfered with the employees’ rights to file charges with the Board.

Charge filed by The Committee to Preserve the Religious Right to Organize.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Hogan Transports, Inc.  (03-CA-107189, 03-CA-108968 and 03-CA-111193; 363 NLRB No. 196)  West Coxsackie, NY, May 19, 2016.

A unanimous Board panel affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by interrogating employees about their support for the Union.  The unanimous panel also affirmed the judge’s dismissal of the allegations that the Respondent violated Section 8(a)(1) by moving the employees’ work location and by assisting employees in revoking their union authorization cards.

A panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the judge’s findings that the Respondent violated Section 8(a)(1) by threatening employees with job loss if they either joined or assisted the Union, and by promising and granting employees a wage increase in order to dissuade them from supporting the Union.  The majority also adopted the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by effectively discharging an employee when it refused to allow him to rescind his resignation.  Reversing the judge’s dismissal, the majority found that the Respondent violated Section 8(a)(1) by blaming the Union for attempting to take away the announced, unlawful wage increases.  Dissenting in part, although he agreed with the employee interrogation violation, Member Miscimarra would find that these additional actions by the Respondent did not violate the Act.

Charges filed by Teamsters Local 294, International Brotherhood of Teamsters and an individual.  Administrative Law Judge Raymond P. Green issued his decision on February 26, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

SRM Alliance Hospital Services d/b/a Petaluma Valley Hospital  (20-RC-170260)  Petaluma, CA, May 19, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s determination to hold the petition in abeyance as it raised no substantial issues warranting review.  Member Miscimarra noted that he favors a reconsideration of the Board’s blocking charge doctrine for the reasons expressed in his dissenting views on the Board’s representation election rule, but agreed that the Regional Director did not abuse his discretion in applying the doctrine in this case.  Petitioner – Petaluma Staff Nurse Partnership.  Intervenor – California Nurses Association, National Nurses United (CNA/NNU).  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Meadowbrook Meat Company, Inc. d/b/a MBM  (31-RC-174374)  Ontario, CA, May 19, 2016.  The Board denied the Employer’s Request for Expedited Review of the Regional Director’s Decision and Direction of Election, and denied its request either to stay the election or, alternatively, to impound the ballots.  Petitioner – International Brotherhood of Teamsters, Local 63.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Audio Visual Services Group, Inc., d/b/a PSAV Presentation Services  (19-RC-161471)  Seattle, Bellevue, Tukwila & Tacoma, WA, May 19, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and the Decision on Challenges and Objection and Certification of Representative as it raised no substantial issues warranting review.  Petitioner – International Alliance of Theatrical Stage Employees, Local 15.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

FAA Concord H, Inc. d/b/a Concord Honda  (32-CA-066979, 32-CA-070343 and 32-CA-072231)  Concord, CA, May 16, 2016.  The Board denied the Charging Party’s Motion for Reconsideration of its Decision and Order that adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions in employment-related claims in all forums, whether arbitral or judicial, but reversed the judge’s finding that the Respondent unlawfully enforced the mandatory arbitration agreement.  In its previous decision, the Board also adopted the judge’s findings that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing a bonus plan, by unilaterally changing employees’ work schedules, and by dealing directly with employees in holding an election to establish an alternative work week.  Motion filed by Automotive Machinists Lodge No. 1173, International Association of Machinists and Aerospace Workers.  Chairman Pearce and Members Hirozawa and McFerran participated.

Murray American Energy, Inc., and The Marion County Coal Company, a Single Employer  (06-CA-148388 and 06-CA-149117)  Metz, WV, May 17, 2016.  No exceptions having been filed to the April 5, 2016 decision of Administrative Law Judge Thomas M. Randazzo’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and order the Respondent to take the action set forth in the judge’s recommended Order.  Charges filed by United Mine Workers of America, District 31, Local 9909, AFL-CIO,CLC and individuals.

Ascenda USA Inc. d/b/a 24-7 InTouch  (12-CA-164968)  Clearwater, FL, May 19, 2016.  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. The Board also found that the Employer failed to establish any other legal basis for revocation.  The Board stated that, in considering the petition to revoke, it evaluated the subpoena as modified by the Region in its opposition brief.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Sutter East Bay Hospitals d/b/a Alta Bates Summit Medical Center  (32-CA-024459, 32-CA-024469 and 32-CA-024470)  Berkeley, CA, May 19, 2016.  The Board ordered that the case be remanded to the Chief Administrative Law Judge to appoint a new administrative law judge for the limited purpose of rehearing the evidence and correctly applying the appropriate standard on the issue of the Respondent’s unlawful surveillance of union activities and redefinition of its solicitation and distribution policies. 

***

Appellate Court Decisions

The Modern Honolulu, Board Case No. 20-CA-072776 (reported at 361 NLRB No. 24) (D.C. Cir. decided May 18, 2016, under the name Modern Management Services, LLC v. NLRB)

In an unpublished judgment, the court enforced the Board’s order issued against this operator of a hotel in Honolulu, Hawaii for unfair labor practices committed after the Employer purchased the hotel in August 2011 from Marriott International and recognized UNITE HERE! Local 5 as the representative of a wall-to-wall, hotel-industry unit of its employees.

The Board (Chairman Pearce and Member Hirozawa; Member Johnson dissenting in part), agreeing with the Administrative Law Judge, found that the Employer violated Section 8(a)(1) by interrogating employees about their union activities, surveilling those activities, and denying an employee’s request for union representation during an investigatory interview.  The Board also found that the Employer violated Section 8(a)(1) by discharging an employee for raising concerns with a manager about a term of employment during a question-and-answer session at a housekeeping department meeting, and rejected the Employer’s defense that her comment was so egregious as to have lost the protection of the Act under Atlantic Steel.  Further, the Board found that the Employer later violated Section 8(a)(5) and (1) by denying that discharged employee access to the premises in her capacity as a designated union agent.  Dissenting in part, Member Johnson would not have found the surveillance or impression of surveillance violations.

Before the court, the Employer challenged only the discharge and property access violations.  Regarding both violations, the court dismissed the majority of the Employer’s contentions by explaining that they involved “run-of-the-mill substantial-evidence and credibility challenge[s],” which “largely depend[] on its alternative version of events” which was based on discredited testimony.  Accordingly, after upholding the Board’s Atlantic Steel analysis, the court enforced the Board’s order in full.

The court’s unpublished judgment may be found here (it is the Circuit Court Order dated March 18, 2016).

Durham School Services, L.P., Board Case Nos. 15-CA-129463 (reported at 361 NLRB No. 121) (D.C. Cir. decided May 17, 2016)

In a published opinion in this test-of-certification case, the court enforced the Board’s bargaining order issued against this school services provider after its school bus drivers and monitors at facilities in Milton, Pace, and Navarre, Florida voted 112 to 74 in a February 2013 election to be represented by International Brotherhood of Teamsters, Chauffeurs, Allied-Industrial and Service Warehousemen and Helpers Local Union No. 991.  The court upheld the Board’s overruling of the Employer’s three election objections, one of which had challenged the Regional Director’s authority to conduct the election at a time when the Board lacked a quorum, which concededly was no longer viable under UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 2015), and SSC Mystic Operating Co. v. NLRB, 801 F.3d 302 (D.C. Cir. 2015), petition for cert. filed (May 12, 2016).

In the representation case, the Regional Director conducted the election under a stipulated election agreement, and overruled the Employer’s objections without holding a hearing after concluding that the Employer had failed to proffer evidence raising any substantial and material factual issues.  First, the Regional Director found that the Employer’s challenge to a Union flyer that was alleged to have misrepresented how certain pictured employees intended to vote, was plainly recognizable as campaign propaganda and thus, as a matter of law, provided no basis for setting aside the election under the rule of Midland National Life Insurance Co., 263 NLRB 127 (1982).  Second, the Regional Director found that the Employer’s claim that a Board agent’s carrying the election booth and the ballot box outside to the parking lot to permit a disabled employee to cast a ballot failed to raise a reasonable doubt as to the fairness and validity of the election.  Subsequently, the Board certified the Union, the Employer refused to bargain in order to test the certification, and the case arrived to the court on review.

Before the court, the Employer complained that it had not received a hearing on its objections.  The court, however, held that the Board’s view in this case “is quite straightforward and compelling,” noting that the Board acted within its discretion in declining to conduct a hearing after assuming the truth of the relevant proffered evidence but finding that it fell short of establishing a prima facie case of conduct that would warrant setting aside the election.  Regarding the flyer, the court agreed with the Board that under the Midland rule “there was nothing to indicate that the [U]nion had used forged documents that rendered the voters unable to recognize propaganda for what it is,” and thus there was no factual question warranting a hearing.  Regarding the Employer’s claim that the Board agent compromised the election’s integrity by carrying the election materials out to the parking lot to accommodate a disabled voter, the court found the objection “borders on the frivolous,” because there was no evidence that the agent’s conduct in any way affected the election’s outcome.  In concluding, the court emphasized that “[a]n objecting party is not entitled to a hearing merely by imagining fanciful acts of misconduct that find no support in the evidence.”  Rather, “an objecting party must offer concrete evidence that is sufficient to give reasonable cause for concern and thus justify a hearing.”

The court’s decision is here.

Noel Canning, a Division of the Noel Corp., Board Case No. 19-CA-032872 (reported at 361 NLRB No. 129) (D.C. Cir. decided May 17, 2016)

In a published opinion, the court granted enforcement of the Board’s order against this bottler and distributor of Pepsi-Cola products for violating Section 8(a)(5) and (1) by refusing to execute a collective-bargaining agreement reached with International Brotherhood of Teamsters, Local 270.  In doing so, the court rejected the Employer’s contention that the Board lacked jurisdiction to issue its order because the court had previously denied enforcement on the basis of the Board’s earlier lack of quorum without explicitly remanding the case to the Board.

In February 2012, in the prior stage of this case, the Board (Members Hayes, Flynn, and Block) issued its decision (358 NLRB No. 4) finding the unfair labor practice, and the Employer filed a petition for review.  Members Flynn and Block were serving under recess appointments.  The court, finding those recess appointments to be invalid, granted the Employer’s petition for review, denied the Board’s cross-application for enforcement, and vacated the Board’s decision and order.  Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013).  The Supreme Court affirmed.   NLRB v. Noel Canning, 134 S.Ct. 2550 (2014).

Subsequently, in December 2014, the Board (Chairman Pearce and Members Johnson and Schiffer), after considering the case anew, issued its decision affirming the findings and adopting the order of the Administrative Law Judge, for the reasons stated in the February 2012 decision which it incorporated by reference.  The Board also explained why it properly found that the court’s prior denial of enforcement did not prevent it from resolving the case.

Back on review before the D.C. Circuit, the Employer did not challenge the merits of the unfair-labor-practice finding, arguing only that the Board lacked jurisdiction to decide the case because the court’s 2013 decision denied enforcement without explicitly ordering remand.  Rejecting that argument, the court, in an opinion authored by Judge Sentelle, joined three sister circuits in rejecting substantially identical challenges to other Board orders.  See Big Ridge, Inc. v. NLRB, 808 F.3d 705 (7th Cir. 2015); Huntington Ingalls Inc. v. NLRB, 631 F. App’x 127 (4th Cir. 2015); NLRB v. Whitesell Corp., 638 F.3d 883 (8th Cir. 2011).  The court stated its agreement with the explanation provided by the Eighth Circuit: “Because the denial of enforcement had been based on the lack of quorum, not the merits, the Eighth Circuit held that its prior decision . . . did ‘not preclude the Board, now properly constituted, from considering [the merits] anew and issuing its first valid decision,’” quoting Whitesell Corp., 638 F.3d at 889.  Accordingly, the court rejected the Employer’s reliance on cases involving denials of enforcement based on the merits.  Further, the court held that “the Board’s decision to reconsider the merits of the case and issue a new decision and order was not only consistent with this Court’s Noel Canning I mandate, but also reasonable and in furtherance of justice.”

The court’s opinion is here.

Marquez Brothers Enterprises, Inc. v. NLRB, Board Case No. 21-CA-039581 (reported at 361 NLRB No. 150) (D.C. Cir. decided May 19, 2016)

In an unpublished judgment, the court enforced the Board’s order issued against this wholesale distributor of Mexican foods located in the City of Industry, California for unfair labor practices committed during the 2010 campaign by Teamsters Local 63 to organize the Employer’s 37 drivers.  In doing so, the court rejected the Employer’s challenge to the validity of the underlying complaint issued by former Acting General Counsel Lafe Solomon because the argument had not been presented to the Board.

The Board (Members Hirozawa, Johnson, and Schiffer) found, in agreement with the Administrative Law Judge, that the Employer violated Section 8(a)(1) by unlawfully threatening and interrogating an employee regarding his union support, and coercively encouraging him and other employees to revoke union-authorization cards.  The Board also found that the Employer violated Section 8(a)(3) and (1) by subsequently discharging that employee, and one other, for their union support.  The Board adopted the judge’s recommended order but added a notice-reading remedy that had been requested by counsel for the Acting General Counsel.

On review, the court rejected the bulk of the Employer’s contentions, noting that it will reverse the Board’s findings “only when the record is so compelling that no reasonable factfinder could fail to find to the contrary,” and held that the Employer “points to nothing in the Board’s decision that meets this standard.”  Further, the court held that the Employer’s challenges to the Board’s remedial order—that the notice-reading remedy was inappropriate and that backpay should be tolled—were jurisdictionally barred from review under Section 10(e) because they were not first presented to the Board.

The Employer also argued before the court that the Regional Director lacked authority to issue the underlying complaint because, it contended, the President invalidly designated Lafe Solomon as the Acting General Counsel.  The Employer further asserted that even though it had not so argued before the Board, it could raise that challenge to the court because it was jurisdictional in nature.  Disagreeing, the court noted that, in SW General, Inc. v. NLRB, 796 F.3d 67, 82-83 (D.C. Cir. 2015) (concluding that Mr. Solomon could not continue to serve as Acting General Counsel once he was nominated), “we strongly suggested that a challenge to the Acting General Counsel’s authority was not jurisdictional when we ‘emphasize[d] the narrowness of our decision’ that Solomon’s service violated the FVRA [the Federal Vacancies Reform Act of 1998].”  In that passage of SW General, the court had stated:

[T]his case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions.  We address the FVRA objection in this case because the petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding.  We doubt that an employer that failed to timely raise an FVRA objection—regardless whether enforcement proceedings are ongoing or concluded—will enjoy the same success.

The court then distinguished its decision in SSC Mystic Operating Co. v. NLRB, 301 F.3d 302 (2015), which held that failure to timely challenge a regional director’s authority to conduct representation proceedings in the absence of a Board quorum did not preclude assertion of that argument to the court.  The court concluded that because the Employer’s “challenge of Solomon is not ‘based on the agency’s lack of authority to take any action at all,’ as was the case in SSC Mystic, but instead attacks the service of a single officer, our typical NLRA exhaustion doctrine applies, as we recognized in SW General.”  Accordingly, the court held that the challenge was forfeited.

The court’s unpublished judgment may be found here.

IronTiger Logistics, Inc. v. NLRB, Board Case No. 16-CA-027543 (reported at 362 NLRB No. 45) (D.C. Cir. decided May 20, 2016)

In a published opinion, the court remanded the case to the Board for further proceedings.  In doing so, the court accepted the Board’s newly articulated rule that an employer must timely respond to a union’s request for presumptively relevant information, just as it must for a request for relevant information.  The court, however, remanded for an explanation of three matters that the Board had not explicitly addressed.

In April 2010, the International Association of Machinists and Aerospace Workers, AFL-CIO, the bargaining representative of the drivers of this Employer that delivers trucks from Volvo/Mack and Navistar production facilities to dealerships across the country, requested information about delivery loads handled by a different delivery company that it suspected was unit work.  The Employer responded fully to that request providing data on 10,000 loads.  The Union then made a second request for more specific information for those loads, and more, described in ten itemized subsections.  Over four and a half months passed before the Employer responded.  When it did respond, it stated its position that most items involved non-unit work and were thus irrelevant; asked the Union to explain the relevance of information it sought about loads its drivers had already delivered; and generally claimed the request was burdensome and amounted to harassment.  By the time of the hearing, the parties agreed that the response was sufficient, and the case proceeded on the theory that the Employer’s four-and-a half-month delay in responding was a violation of its duty to bargain in good faith.

In March 2015, the Board (Chairman Pearce and Members Johnson and McFerran), in agreement with the Administrative Law Judge, found that the Employer violated Section 8(a)(5) and (1) by failing to timely respond to three requested items that the Board found were presumptively relevant because they related to unit employees: (1) the name of each unit driver dispatched for each load; (2) the destination and mileage for each load; and (3) all e-mails, faxes, “and other documentation from your customers to support the loads dispatched to [unit] drivers.”  The Board also explained its rationale for extending the existing requirement that an employer timely respond to a request for relevant information to encompass also requests for presumptively relevant information.

On review, the court stated that “although we have previously held only that an employer must timely respond to a union’s request for relevant information, see N.Y. & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 730 (D.C. Cir. 2011), we have no basis to quarrel with . . . the Board’s extension in this case, to the proposition that an employer must timely respond to a request for presumptively relevant information.”  The court noted that this is “the sort of legal and policy determination to which we are obliged to defer.”  That said, the court found an “obvious defect” in the Board’s reasoning, stating that the Board provided no explanation for why it had held presumptively relevant the third item requesting all e-mails, faxes, “and other documentation from your customers to support the loads dispatched to [unit] drivers.”  Also, the court stated that “the Board must consider both the [Employer]’s defense” of harassment, “and the implication of a rule that would permit a union to harass an employer by repeated and burdensome requests for irrelevant information only because it can be said it somehow relates to bargaining unit employees – without even a union’s statement of its need.”  Accordingly, the court remanded the case to the Board.

The court’s opinion is here.

HTH Corporation, Pacific Beach Corporation, and Koa Management, LLC dba Pacific Beach Hotel, Board Case No. 37-CA-007965 (reported at 361 NLRB No. 65) (D.C. Cir. decided May 20, 2016)

In a published opinion, the court enforced those portions of the order issued by the Board (Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and Schiffer) against this operator of a large hotel in Waikiki, Hawaii to remedy, as the court put it, “a host of severe and pervasive unfair labor practices” committed after the Board certified the International Longshore and Warehouse Union, Local 142, as the employees’ representative in August 2005.  The court also enforced four of the special remedies imposed by the Board (Members Miscimarra and Johnson, dissenting in part), but rejected, without remand, the award of litigation expenses to the General Counsel and Union.

Before the court (Judges Henderson and Rogers, and Senior Judge Williams), the Employer contested only the Board’s imposition of special remedies, and none of the Board’s unfair-labor-practice findings, which the court summarily enforced.  Of the five special remedies, two were recommended by the Administrative Law Judge and later modified by the Board, and three were imposed by the Board on its own.  Because the Employer failed to file a motion for reconsideration challenging the remedies added by the Board, the court held that it lacked jurisdiction under Section 10(e) to review them, leaving for decision only two special remedies:  The notice reading and litigation expenses.

For the notice reading, the Administrative Law Judge had recommended that the notice be read by the Employer’s CEO and president, or its regional vice president, who was directly involved in the unfair labor practices.  On review, the Board modified the remedy by adding the option of reading by a Board agent, but required that if a manager were to read, it must be the regional vice president.  After reviewing the history of the court’s prior treatment of notice-reading remedies, the court concluded: “Given the company’s long history of unlawful practices and the severe violations the Board found in this case, we uphold the Board’s exercise of discretion in ordering notice-reading in the modified form, i.e., with the company having the option of punting the task to a Board employee.”  It did not pass on the modified requirements, however, because the Employer forfeited any challenge to them by not filing a motion for reconsideration.

Regarding litigation expenses, although they too had been imposed by the Board on its own initiative, the court held that the Employer’s challenge had not been forfeited.  Rather, under an exception to the exhaustion doctrine, the court held that it would have been “patently futile” to file such a motion because 3 years earlier the Board had rejected a motion tendered under similar circumstances in Camelot Terrace, 357 NLRB 1934 (2011), review pending (D.C. Cir. No. 12-1071).  In finding the remedy inappropriate, the court stated that, “[a]s a creature of statute the Board has only those powers conferred upon it by Congress,” and that therefore, unlike a federal court, the Board lacks “inherent authority to control and maintain the integrity of its own proceedings through an application of the bad-faith exception to the American Rule,” which provides the basis for courts to order litigation expenses.

The court’s decision is here.

***

Administrative Law Judge Decisions

Empire Janitorial Sales & Service, LLC  (15-CA-146938; JD-43-16)  Metairie, LA.  Administrative Law Judge Geoffrey Carter issued his decision on May 16, 2016.  Charge filed by United Labor Unions, Local 100.

U.S. Cosmetics Corporation  (01-CA-135282 and 01-CA-139115; JD-41-16)  Dayville, CT.  Administrative Law Judge Ira Sandron issued his decision on May 17, 2016.  Charges filed by individuals.

RHCG Safety Corp.  (29-CA-161261 and 29-RC-157827; JD(NY)-17-16)  Brooklyn, NY.  Administrative Law Judge Raymond P. Green issued his decision on May 18, 2016.  Charges filed by Construction & General Building Laborers, Local 79, LIUNA.

CSC Holdings, LLC, and Cablevision Systems Corporation  (29-CA-154544; JD(NY)-15-16)  Brooklyn, NY.  Administrative Law Judge Mindy E. Landow issued her decision on May 20, 2016.  Charge filed by Communication Workers of America, AFL-CIO.

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