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Summary of NLRB Decisions for Week of May 23 - 27, 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

Beena Beauty Holding, Inc. d/b/a Planet Beauty  (31-CA-144492; 364 NLRB No. 3)  Studio City, CA, May 23, 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 Hirozawa affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by: (1) maintaining an arbitration agreement 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; (2) maintaining an arbitration agreement that employees reasonably would construe as restricting their access to file unfair labor practice charges with the Board; and (3) enforcing its unlawful arbitration agreement by filing in state court a motion to compel individual arbitration of a wage and hour class action suit filed by the Charging Party.

Although he believed it is a close question, Member Miscimarra concurred in his colleagues’ finding that the Respondent’s arbitration agreement unlawfully interferes with NLRB charge filing in violation of 8(a)(1).  However, consistent with his partial dissenting opinion in Murphy Oil, Member Miscimarra dissented from the majority’s finding that maintenance of the agreement violated the Act because the agreement requires employees to waive their rights to pursue class or collective actions regarding non-NLRA claims.  Because he would find that the arbitration agreement’s class-waiver provision is lawful, Member Miscimarra would also find it lawful for the Respondent to seek enforcement of the agreement in state court.

Charge filed by an individual.  Administrative Law Judge Mary Miller Cracraft issued her decision on March 3, 2016.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Tramont Manufacturing, LLC  (18-CA-155608; 364 NLRB No. 5)  Milwaukee, WI, May 23, 2016.

A unanimous Board panel affirmed the Administrative Law Judge's finding that the Respondent, a successor employer, violated Section 8(a)(5) and (1) by failing to provide timely notice to and bargain with the Union over the effects of the Respondent's decision to lay off 12 unit employees.

Charge filed by the United Electrical, Radio and Machine Workers of America, Local 1103. Administrative Law Judge Sharon Levinson Steckler issued her decision on January 28, 2016. Chairman Pearce and Members Miscimarra and McFerran participated.

***

Bellagio, LLC d/b/a Bellagio Las Vegas  (28-CA-170899; 364 NLRB No. 2)  Las Vegas, NV, May 23, 2016.

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 either were not or could not have been litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

The Board noted that, as an affirmative defense to the complaint, the Respondent raised the assertion that the Board’s Order denying the Respondent’s Request for Review of the Regional Director’s Decision and Direction of Election in the representation case did not rule on the Respondent’s contention that the surveillance technicians were confidential employees.  The Board responded that the Order denied the Respondent’s Request for Review because it raised no substantial issues warranting review, and thereby affirmed the Regional Director’s finding that the Respondent failed to meet its burden of proof to establish that the surveillance technicians were confidential employees.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union.

Charge filed by International Union of Operating Engineers Local 501, AFL-CIO

Chairman Pearce and Members Hirozawa and McFerran participated.

***

The Mirage Casino-Hotel d/b/a The Mirage  (28-CA-170874; 364 NLRB No. 1)  Las Vegas, NV, May 23, 2016.

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 either were not or could not have been litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  The Board noted that it was granting the General Counsel’s unopposed motion to amend the pleadings to reflect the Respondent’s correct name, that it had modified the case caption accordingly and, therefore, the Respondent’s contentions - that the complaint should be dismissed and that the Motion for Summary Judgment should be denied because the entity named in those documents does not employee the unit employees – are moot.

The Board further noted that, as an affirmative defense to the complaint, the Respondent raised the assertion that the Board’s Order denying the Respondent’s Request for Review of the Regional Director’s Decision and Direction of Election in the representation case did not rule on the Respondent’s contention that the surveillance technicians were confidential employees.  The Board responded that the Order denied the Respondent’s Request for Review because it raised no substantial issues warranting review, and thereby affirmed the Regional Director’s finding that the Respondent failed to meet its burden of proof to establish that the surveillance technicians were confidential employees.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union.

Charge filed by International Union of Operating Engineers Local 501, AFL-CIO

Chairman Pearce and Members Hirozawa and McFerran participated.

***

Jack in the Box, Inc.  (32-CA-145068; 364 NLRB No. 12)  San Jose, CA, May 24, 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 Members Hirozawa and McFerran affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an arbitration agreement 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.  In dissent and consistent with his partial dissenting opinion in Murphy Oil, Member Miscimarra would find the class-action waiver lawful because the Act creates no substantive right for employees to insist on class-type treatment of non-NLRA claims, a class-waiver agreement pertaining to non-NLRA claims does not infringe on any NLRA rights or obligations, and enforcement of a class-action waiver as part of an arbitration agreement is warranted by the Federal Arbitration Act.

The majority also affirmed the judge’s finding that the Respondent independently violated Section 8(a)(1) by maintaining the arbitration agreement because employees would reasonably construe it either to prohibit or to restrict their right to file unfair labor practice charges with the Board.  In further dissent, Member Miscimarra found that employees would not reasonably construe the agreement in such a manner.

The Board also unanimously found that the Respondent independently violated Section 8(a)(1) by maintaining a provision of the arbitration agreement that requires employees to maintain the confidentiality of the terms of an arbitrator’s decision unless agreed to in writing, subpoenaed by a court to testify, or required by law.

Charge filed by an individual.  Administrative Law Judge Mary Miller Cracraft issued her decision on December 1, 2015.  Members Miscimarra, Hirozawa, and McFerran participated.

***

Adecco USA, Inc.  (32-CA-142303; 364 NLRB No. 9)  San Bruno, CA, May 24, 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 granted the General Counsel’s Motion for Summary Judgment, finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that required employees, as a condition of employment, to waive their right to maintain class or collective actions 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.  The majority also found that the Respondent unlawfully enforced that provision by filing a motion in Federal court to compel the Charging Party to submit his class action wage and hour claim to individual arbitration.  In dissent, Member Miscimarra would find that the agreement and the Respondent’s enforcement are lawful.  Specifically, Member Miscimarra would find that the NLRA creates no substantive right for employees to engage in class treatment of non-NLRA claims, that a waiver of non-NLRA claims does not infringe on any NLRA rights or obligations, and that enforcement of non-NLRA class action waivers is warranted by the Federal Arbitration Act.  Member Miscimarra also dissented from the majority’s finding that the arbitration policy unlawfully interfered with employees’ rights to file charges with the Board.

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

***

Perry Brothers Trucking, Inc.  (14-CA-141149 and 14-CA-145134; 364 NLRB No. 10)  Oklahoma City, OK, May 25, 2016.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file a timely answer to the consolidated complaint and compliance specification and failure to establish good cause to excuse that failure.  The Board found that the Respondent violated Section 8(a)(1) by instructing employees not to discuss their terms and conditions of employment, informing them that it is futile to engage in protected concerted activity, and discharging an employee for engaging in protected concerted activity.

The Board ordered the Respondent to make the discriminatee whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, but did not order immediate reinstatement because the Respondent had sold substantially all of their assets in bankruptcy proceedings.  Instead, the Board ordered the Respondent, in the event that it resumes the same or similar business operations, to offer full reinstatement to the employee.  In light of the fact that it ceased operations in 2015, the Board also ordered the Respondent to mail a copy of the notice to its former employees.

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

***

UPS Supply Chain Solutions, Inc.  (12-CA-113671; 364 NLRB No. 8)  Miami, FL, May 24, 2016.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) and (1) by announcing and implementing changes to its Flexible Benefits Plan without affording the Union prior notice and an opportunity to bargain.  The majority further found that rescission of the unlawful unilateral changes is a standard affirmative remedy for such a violation, and that the applicability of the Stone Container, 313 NLRB 336 (1993), “discrete recurring event” exception was not properly before the Board because the Respondent did not raise this issue before the judge, the judge did not apply Stone Container, and no party argued on exceptions that the judge erred in failing to do so.  Finally, the majority stated that, at the compliance phase of this proceeding, the Respondent will have the opportunity to present evidence that was not available at the time of the unfair labor practice hearing to demonstrate that rescinding the changes would impose an undue burden.

Member Miscimarra concurred in part and dissented in part.  Member Miscimarra agreed with the majority that the Respondent violated Section 8(a)(5) by implementing changes to its Flexible Benefits Plan without affording the Union prior notice and an opportunity to bargain, but he would not have found that the Respondent independently violated Section 8(a)(5) when it announced those changes.  Further, Member Miscimarra would have found that the Stone Container exception applied in this case.  Thus, because the Respondent would have been permitted to implement the changes even without either an overall impasse or agreement, he would have found that the appropriate remedy was to require the Respondent to engage in bargaining regarding the changes without requiring it to rescind those changes.  Member Miscimarra believed that the rescission remedy impermissibly made the Board’s Order punitive rather than remedial because rescission was more expansive than the Respondent’s violation.  He also believed that requiring the Respondent to rescind the changes for the approximately 40 union employees would be unreasonable because over 75,000 of the Respondent’s employees participated in the Flexible Benefits Plan.

Charge filed by International Brotherhood of Teamsters, Local No. 769.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Lifeway Foods, Inc.  (13-CA-156570; 364 NLRB No. 11)  Skokie, Morton Grove, and Niles, IL, May 24, 2016.

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 either were not or could not have been litigated in the underlying representation proceeding which involved the Respondent’s election objections.  As an affirmative defense to the refusal to bargain complaint, the Respondent argued for the first time that the appointment and service of the Board’s former Acting General Counsel violated the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345 et seq., and that the Regional Director’s appointment and issuance of the complaint were also invalid.   SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015).  As the Respondent failed to raise the argument in the underlying representation proceeding, the Board found the challenge to the Regional Director’s appointment untimely.  In addition, the Board rejected the Respondent’s arguments on the merits finding that the Board, not the General Counsel, appoints Regional Directors and that the complaint was issued under the undisputed authority of the Senate-confirmed General Counsel.

Charge filed by Bakery, Confectionary, Tobacco Workers, and Grain Millers International Union, Local Union No. 1.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Rochester Gas & Electric Corporation  (03-CA-025915; 364 NLRB No. 6)  Rochester, NY, May 24, 2016.

The Board granted the General Counsel’s Motion for Summary Judgment and denied the Respondent’s Cross-Motion for Summary Judgment in this compliance proceeding.  The sole issue before the Board was the starting date of the backpay period.  The Board found that the backpay period begins on August 23, 2010, five business days after the Board issued its Decision and Order in the underlying unfair labor practice proceeding, as stated in that decision.  The Board rejected the Respondent’s argument that the backpay period does not begin until July 1, 2014, the date the Supreme Court denied the Respondent’s petition for certiorari.  The Board explained that the United States Court of Appeals for the Second Circuit enforced the Board’s Order in the underlying unfair labor practice proceeding in full including the requirement that the backpay period commence “five business days after the date of the Board’s decision”, and specifically “affirm[ed] the determination of the Board as to its chosen remedy.”  The Board explained that, under Section 10(e), it has no jurisdiction to modify an Order that has been enforced by a court of appeals.  While explaining that tolling the accumulation of backpay during the pendency of an appeal would unfairly shift the burden for the delay to the wronged employees, the Board also rejected the Respondent’s argument that starting the backpay period five days after the Board issued its decision in the underlying case would impermissibly penalize the Respondent for exercising its right to appeal the decision.  Finally, the Board rejected the Respondent’s alternative argument that the period of time that the Second Circuit stayed its mandate to allow the Respondent to seek certiorari should be excluded from the backpay calculation.  In doing so, the Board explained that, under Section 10(g), commencement of proceedings in a United States court of appeals pursuant to a petition for either enforcement or review does not operate as a stay of the Board's order unless such a stay is specifically ordered by the court.  No stay of the Board’s Order was either sought or granted in this case. 

Charge filed by Local Union 36, International Brotherhood of Electrical Workers, AFL-CIO.  Chairman Pearce and Members Hirozawa and McFerran participated.

***

Local 40, International Brotherhood of Electrical Workers, AFL-CIO (NBCUniversal Media, LLC and Universal City Studios, LLC  (31-CD-149956; 364 NLRB No. 7)  Universal City, CA, May 24, 2016.

In this jurisdictional dispute under Section 10(k), the Board found that Local 40, International Brotherhood of Electrical Workers, AFL-CIO (IBEW) and National Association of Broadcast Employees & Technicians, Local 53 (NABET) both claimed the work of installation, operation, maintenance, and repair of the heating, ventilation, and air conditioning systems, and the electrical and plumbing systems plant maintenance; that there was reasonable cause to believe that Section 8(b)(4)(D) had been violated by IBEW’s threat either to picket or to engage in other economic action; and that there was no voluntary method for adjusting the dispute.  The Board then evaluated the dispute under its established Section 10(k) factors and awarded the disputed work to the employees represented by IBEW.  Charge filed by NBCUniversal Media, LLC.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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McDonald’s USA, LLC, a joint employer, et al.  (02-CA-093893, et al., 04-CA-125567, et al., 13-CA-106490, et al., 20-CA-132103, et al., 25-CA-114819, et al., and 31-CA-127447, et al.; 364 NLRB No. 14)  various locations, May 26, 2016.

The Board issued an Order denying Respondent MaZT’s requests for special permission to appeal the Administrative Law Judge’s denials of its motions for an order addressing the use and administration of the Board’s file-sharing technology, and for modification of the Case Management Order or, in the alternative, for precise standards for the advance notice of witnesses and the presentation of evidence.  The Board found that a stipulation executed by the parties and approved by the judge replaced the previous plan for the remote participation of franchisees’ counsel with the rights to deferred objection and cross-examination.  Thus, the Board found that the stipulation eliminated the asserted need for rigid advance notice requirements and real-time remote access to documents.  In addition, the Board found that the stipulation clarified the Case Management Order’s distinction between joint-employer evidence applicable on a “corporate or nationwide basis” and joint-employer and unfair labor practice evidence applicable to a specific franchisee.  As such, the Board found that the Case Management Order and stipulation ensures that counsel for MaZT will have a full opportunity to examine, object to, and/or rebut evidence concerning MaZT.

Member Miscimarra concurred that franchisee-specific, joint-employer evidence would be applicable only to the franchisee involved in that particular stage of the hearing.  However, in view of the size and complexity of the litigation involved, he would grant MaZT’s request for special permission to appeal only with respect to its motion that the General Counsel be required to provide all parties with one week’s advance notice of the names and appearance dates of witnesses to be called.

Charge filed by Fast Food Workers Committee and Service Employees International Union, CTW, CLC, et al.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Porter Industries Environmental Services Company  (15-CA-160559; 364 NLRB No. 15)  New Orleans, LA, May 27, 2016.

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 bargain collectively and in good faith with the Union as the exclusive collective-bargaining representative of its unit employees.  The Board ordered the Respondent to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement.  The Board noted that both the initial charge filed by the Union as well as the initial complaint named “Porter Industries, Inc.” as the Charged Party and the Respondent, respectively.  Porter Industries, Inc. filed a motion to dismiss the complaint alleging that it was not the correct party to this matter, and an answer denying most of the allegations.  Thereafter, the General Counsel amended the complaint by correctly naming Porter Industries Environmental Services Company as the Respondent.  Subsequently, the Board declared Porter Industries Inc.’s Motion to Dismiss and its answer moot.

The Board further noted that the relevant documents in this matter were served both on the Respondent’s owner and president as well as on the Respondent’s registered agent.  Therefore, the Board found that the error in nomenclature in the original complaint does not provide good cause for the Respondent’s failure to file an answer.

Charge filed by an International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO (UAW), Local 1921.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Metalsa Structural Products, Inc.  (25-RC-164832)  Owensboro, KY, May 23, 2016.  The Board denied the Employer’s Request for Expedited Review of the Acting Regional Director’s determination to continue holding 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 Acting Regional Director did not abuse her discretion in applying the doctrine in this case.  Petitioner – United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Pennsylvania Interscholastic Athletic Association, Inc.  (06-RC-152861)  Pittsburgh, PA, May 23, 2016.  The Board granted the Association of Minor League Umpires leave to participate as Amicus Curiae and will consider their brief.

Olney Charter High School, an Aspira Inc. of PA School  (04-RC-148637)  Philadelphia, PA, May 24, 2016.  The Board granted the Employer’s request to withdraw its exceptions to the hearing officer’s report recommending disposition of the objections to the election held.  Accordingly, the Board certified AFT Pennsylvania as the exclusive collective-bargaining representative of the employees in the two appropriate units.  Petitioner – AFT Pennsylvania.

Ivy Hill SNF, LLC  (04-RC-167699)  Philadelphia, PA, May 25, 2016.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review.  The Acting Regional Director found that the Employer failed to establish that its licensed practical nurses, based on their authority to discipline, were statutory supervisors.  Petitioner  – District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

TCG, LLC d/b/a Golf Channel (10-RD-154113) various locations nationwide and abroad, May 25, 2016.  The Board denied the Union’s Request for Review of the Regional Director’s Decision and Direction of Election.  Petitioner – an individual.  Union – International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada, AFL-CIO, CLC.  Chairman Pearce and Members Miscimarra and Hirozawa participated. 

Carroll College  (19-RC-165133)  St. Helena, MT, May 25, 2016.  The Board denied the Petitioner’s and Employer’s Requests for Review as they raised no substantial issues warranting review.  Members Miscimarra and Hirozawa agreed that the Regional Director properly declined jurisdiction under Pacific Lutheran University, 361 NLRB No. 157 (2014), and, therefore, found it unnecessary to pass on the remaining issues raised.  Member Miscimarra adhered to his dissenting views in Pacific Lutheran University, but agreed that applying the Pacific Lutheran University standard, the Regional Director properly declined jurisdiction.  Chairman Pearce would grant the Requests for Review with respect to the Regional Director’s jurisdictional and managerial findings and deny review in all other respects.   Petitioner -.Associated Faculty of Carroll College, MEA-MFT, NEA, AFT, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Hanson Cold Storage Co. of Indiana  (13-RC-169141)  Hobart, IN, May 26, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative on the ground that it raised no substantial issues warranting review.  Petitioner  – International Brotherhood of Teamsters Union Local 142.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

RJS Dean Enterprise, LLC  (08-CA-139052)  Youngstown, OH, May 23, 2016.  The Board remanded this case to the Regional Director for the processing of an Informal Settlement Agreement.

Squires Lumber Company, Inc.  (20-CA-160279, et al.)  Suisun City, CA, May 24, 2016.  No exceptions having been filed to the April 8, 2016 decision of Administrative Law Judge Mary Miller Cracraft’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 judge’s recommended Order.  Charges filed by Carpenters Local 2236, United Brotherhood of Carpenters and Joiners of America.

DMS Facility Services  (31-CA-151920)  Los Angeles, CA, May, 25, 2016.  The Board granted the Motion to Remand case to Regional Director to approve withdrawal of charge and dismiss complaint.

Charter Communications, LLC  (07-CA-140170, 07-CA-145726 and 07-CA-147521)  Bay City, MI, May 27, 2016.  The Board granted the Respondent’s request for special permission to appeal the Administrative Law Judge’s ruling with respect to his issuance of a protective order, but denied the appeal on the merits.  The Board found that the Respondent failed to demonstrate that the judge abused his discretion in denying the Respondent’s request for a more expansive protective order.  In denying the appeal, the Board noted that subpoena paragraph 12 requests, for specific infractions, all documents showing/containing all warnings, disciplines, notices of suspensions, notations of counseling, and notices of discharge issued to Respondent’s employees in its Michigan field operations since January 1, 2013.  The Board stated that, contrary to the Respondent’s interpretation of this request, the Board does not read paragraph 12 as seeking documents naming other employees who may have participated in the Respondent’s investigations which resulted in such actions.  The Board further noted that the General Counsel’s opposition brief does not indicate otherwise.  The Board stated that it anticipated that the judge will issue the protective order as a separate written document for clarity and ease of reference.  Charges filed by individuals.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

NLRB v. Bluefield Regional Medical Center, and Greenbrier Valley Medical Center, Board Case Nos. 10-CA-093042 and 10-CA-093065 (reported at 361 NLRB No. 154) (4th Cir. decided May 6, 2016)

In a published opinion that issued in these consolidated test-of-certification cases, the court enforced the Board’s bargaining orders against these two West Virginia hospitals after their nurses voted in secret-ballot elections held in August 2012 to be represented by the National Nurses Organizing Committee.  In doing so, the court upheld the Regional Director’s authority to resolve election objections and issue certifications despite the Board’s lack of quorum, and in agreement with 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 cases, the Regional Director conducted elections under consent election agreements executed by the parties, and the hospitals filed objections but failed to produce supporting evidence within the requisite time period.  Under the rules applicable to such agreements giving Regional Directors final authority over representation-case determinations, the Regional Director overruled the objections and certified the union in September 2012.  After the hospitals refused to bargain, and the resulting unfair-labor-practice case was underway, the D.C. Circuit issued NLRB v. Noel Canning, 705 F.3d 490 (D.C. Cir. 2013), aff’d on other grounds, 134 S. Ct. 2550 (2014), holding that the President’s recess appointments of three Board members in January 2012 were unlawful and that the Board, at that time, lacked a quorum.  Thereafter, the hospitals filed an amended answer arguing that the Regional Director invalidly certified the union when the Board lacked a quorum.  While the case was still pending before the Board, the Supreme Court issued its Noel Canning decision in June 2014, and the hospitals further amended their answer to refine that argument.  In addition, the amended answer claimed that the Regional Director’s appointment was invalid because the Board’s Acting General Counsel was not validly holding his position at the time of the appointment and because he was appointed by the Board in January 2012 when it lacked a quorum.

In December 2014, the Board (Chairman Pearce and Members Hirozawa and Schiffer) issued its decision in the unfair-labor-practice proceeding.  Regarding the hospitals’ challenges to the Regional Director’s authority, the Board held that the hospitals, by entering into the consent election agreements, had agreed that the Regional Director would resolve election objections and that his rulings and determinations would be final, and thus they waived Board review.  In any event, the Board explained that, after the Board lost a quorum, the Regional Director validly exercised his authority over the representation cases under the longstanding delegation of such authority by the Board to its Regional Directors in 1961, citing its decision in Durham School Services, 361 NLRB No. 66 (2014), enforced, ___F.3d ___ (D.C. Cir. May 17, 2016).

Before the court, the hospitals reasserted their challenges to the Regional Director’s authority and appointment, each of which the court resolved in favor of the Board.  Initially, the court rejected the Board’s waiver finding, observing that the hospitals promptly raised the issue after the Supreme Court’s Noel Canning decision.  In so holding, the Court applied the reasoning of UC Health that such challenges to the composition of an agency may be raised before the court for the first time.  Turning to the merits of the hospitals’ contention that the Regional Director’s authority lapsed when the Board lost its quorum, the court took note of “the Chevron deference owed to the Board’s interpretation of the Act regarding the authority of Regional Directors during the absence of a Board quorum.”  The court then concluded that the Board’s view that “delegated authority to Regional Directors remains intact during the absence of a Board quorum, is reasonable and entitled to Chevron deference,” citing UC Health, 803 F.3d 669, and SSC Mystic, 801 F.3d 302.

The court rejected the hospitals’ attempt to distinguish those cases on the basis that they involved, not consent election agreements, but, stipulated election agreements, under which the Board retained plenary power to review the outcome of the representation proceedings.  The court held that “[t]his distinction makes no difference, as we simply apply the contract terms of the Agreements,” which “is among the ways to relinquish the right to plenary Board review and confer on the Regional Director final authority over representation proceedings,” citing UC Health, 803 F.3d at 680 (“Only the acquiescence of the parties or the Board’s ratification can give binding force to a Regional Director’s determination.”).

Regarding the challenge to the Regional Director’s appointment, the court stated:  “We do not find this argument persuasive because it is the Board, not the General Counsel, which has final authority to appoint a Regional Director.”  For that reason, the court explained, “even if we assume Solomon’s appointment as Acting General Counsel had lapsed at the time of the Regional Director’s appointment, it makes no difference.  It is the Board -– not the General Counsel -- that retains final authority over the appointment of a Regional Director, and the Board approved the appointment of the Regional Director in this case.”  Regarding the exact time of the appointment, the court held that a valid Board quorum made the appointment.  The court concluded that a Board Minute dated December 22, 2011, stating approval of the appointment, “settles the issue.”

Turning to the hospitals’ claim that the Regional Director wrongly overruled their election objections without a hearing, the court noted that the hospitals admitted that they failed to provide the necessary, supporting evidence.  Under those circumstances, the court concluded that the Regional Director “was well within his authority to overrule the objections and rescind the hearings notices, and indeed the Board’s rules directed him to do so.”  The court also rejected the hospitals’ claim that it was not obligated to submit evidence because the parties had an oral agreement giving exclusive jurisdiction to an arbitrator, noting that the Board has repeatedly explained in other cases that no such oral agreement existed.

The court’s decision is here.

ManorCare of Kingston PA. LLC v. NLRB, Board Case No. 04-CA-129388 (reported at 361 NLRB No. 17) (D.C. Cir. decided May 20, 2016)

In a published opinion in this test-of-certification case, the court disagreed with the Board and held that the pre-election statements made by two employees were threats that warranted setting aside the election.  However, agreeing with the Board, the court rejected, as forfeited, a challenge to the Regional Director’s authority to supervise the election and issue a certification on the basis that the Board lacked a quorum when it appointed him.

In the representation case, the Regional Director conducted the election under the terms of a stipulated election agreement executed by this skilled nursing and rehabilitation facility located in Kingston, Pennsylvania, and Laborers International Union of North America Local 1310, which sought to represent the facility’s certified nurses’ aides.  After the Union prevailed on a vote of 34-32 in the September 2013 election, the Employer filed objections alleging that threatening statements made by two employees in the run up to the election were broadly disseminated and materially affected the results.

The hearing officer found that one employee remarked to another during a cigarette break that she would “start punching people in the face” if they complained about working conditions after voting down the Union.  The second statement was made while four employees were walking to the parking lot and laughing about rumors of threats that had been circulating.  One employee stated that “if the Union didn't get in . . . she was going to start beating people up and destroying their cars.”  Applying the Board’s six-factor test for evaluating third-party statements under Westwood Horizons Hotel, 270 NLRB 802, 803 (1984), the hearing officer concluded that, although the statements “were not intended to induce fear . . . and were made in a casual and even lighthearted fashion,” they were circulated beyond their intended audience to employees who could not judge the speakers' intent or ability to carry out their threats, particularly given one of the speakers had previously been in fights.  On review, the Board (Chairman Pearce and Member Schiffer; Member Johnson, dissenting) found that the statements “did not, through the repetition by others, become transformed into objectionable conduct.”

During the resulting unfair-labor-practice case, the Employer argued, for the first time, that the Board’s appointment of the Regional Director when it lacked a quorum rendered the election results and certification invalid.  The Board (Chairman Pearce and Members Johnson and Schiffer) found the argument waived because the Employer had not raised it in the representation case, and that, having signed an election agreement that agreed to the Regional Director’s supervision, it was estopped from attacking the propriety of an election.

Reviewing the merits, the court concluded: “On the basis of the Board’s own precedent, we determine the third-party conduct here was sufficiently disruptive to undermine the conditions necessary for a free and fair election.”  Under its assessment of the Westwood Hotel factors, the court held that the statements were similar to those found threatening in Westwood Hotel, “encompassed the entire bargaining unit,” and “were disseminated widely enough to have affected the outcome of the election.”  Further, the court noted that the statements were made close to the election, and that it was “widely known” that one speaker had been in fights in the past, giving other employees every reason to assume she could follow through with punching people in the face and damaging their cars.  Accordingly, the court concluded that “the record demonstrates that the Board’s decision was inconsistent with its own precedent.”

Turning to the challenge to the Regional Director’s appointment, first, the court held that the Board acted reasonably in determining that the Employer forfeited its argument.  The court explained that, “[a]lthough challenges to an agency’s action based on the agency’s lack of authority may ordinarily be raised for the first time on appeal, see SSC Mystic Operating Co. v. NLRB, 801 F.3d 302, 308–09 (D.C. Cir. 2015), and UC Health v. NLRB, 803 F.3d 669, 672–73 (D.C. Cir. 2015),” the employer’s argument “is different, depending not on a challenge to institutional legitimacy but on a challenge to a delegated officer’s appointment.”  Also, the court noted that “the Board was properly constituted when the election took place and throughout the relevant review period.”  Thus, the challenge “does not confront [the Board’s] institutional legitimacy,” and the claim “is subject to forfeiture.”  Second, the court agreed with the Board that because the Employer signed the election agreement, it “cannot now complain about the authority of the supervisor it agreed to use,” and noted that because the agreement “starkly limited any discretion the Regional Director may have had in setting the terms of the election, his supervisory role here was de minimis.”  The court rejected the Employer’s claim that raising the issue earlier would have been futile, stating that it “overlooks Board rules which allow the General Counsel to transfer an election petition to a different region where the legitimacy of the Regional Director’s appointment is not in doubt,” and that by the time the Board reviewed the election objections here, “the Board was operating with a fully confirmed quorum.”

The court’s decision is here.

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Administrative Law Judge Decisions

Deep Distributors of Greater NY d/b/a The Imperial Sales, Inc. (29-CA-147909, 29-CA-157108 and 29-RC-146077; JD(NY)-13-16) Brooklyn, NY.  Order modified a previous Order in  a May 6, 2016 Decision of Administrative Law Judge Steven Davis.  Errata   Amended Decision.

McAllister Towing and Transportation Co., Inc. (12-CA-146711; JD(NY)-19-16)  San Juan, PR.  Administrative Law Judge Kenneth W. Chu issued his decision on May 25, 2016.  Charge filed by International Organization of Masters, Mates & Pilots, International Longshoremen’s Association, AFL-CIO.

Southern California Edison,  (21-CA-150088 and 21-CA-160924; JD-44-16)  Rosemead, CA.  Administrative Law Judge Mark Carissimi issued his decision on May 26, 2016.  Charges filed by International Brotherhood of Electrical Workers, Local 47, AFL-CIO.

Mek Arden, LLC d/b/a Arden Post Acute Rehab  (20-CA-156352, et al. and 20-RC-154840; JD(SF)-26-16)  Sacramento CA.  Administrative Law Judge Ariel L. Sotolongo issued his decision on May 27, 2016.  Charges filed by Service Employees International Union, United Long Term Care Workers.

Weyerhaeuser NR Company  (19-CA-156421; JD(SF)-25-16)  Longview, WA.  Administrative Law Judge Gerald M. Etchingham issued his decision on May 27, 2016.  Charge filed by Association of Western Pulp and Paper Workers.

Richfield Hospitality, Inc. as Managing Agent for Kahler Hotels, LLC  (18-CA-151245; JD-45-16)  Rochester, MN.  Administrative Law Judge Sharon Levinson Steckler issued her decision on May 27, 2016.  Charge filed by Unite Here International Union Local 21.

United States Postal Service  (09-CA-161711; JD(NY)-20-16)  Jackson, OH.  Administrative Law Judge Joel P. Biblowitz issued his decision on May 27, 2016.  Charge filed by an individual.

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