Skip to content

You are here

Effective October 21, 2019, parties to unfair labor practice or representation cases processed in NLRB Regional Offices must submit all written statements, correspondence, position statements, documentary or any other evidence through the Agency’s electronic filing system (E-Filing). 

Click on the NLRB’s NEW My Account Portal Link to

·        Create an account or access your existing  E-Filing account

·        View your E-Filing History

·        E-File documents in a case or inquiry to which you are a party

·        Manage the contact information associated with your account.

Summary of NLRB Decisions for Week of November 2 - 6, 2015

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

Aria Resort & Casino, LLC d/b/a Aria  (28-RC-154093; 363 NLRB No. 24)  Las Vegas, NV, November 3, 2015.

The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election.  In this case, the Petitioner failed to check a box on the petition for indicating that it had requested recognition from the Employer.  The Employer accordingly argued that the petition should be dismissed.  In denying review, the Board agreed with the Regional Director’s reliance on Advance Pattern Co., 80 NLRB 29 (1948).  The Board explained that under Advance Pattern and its progeny, the Board has consistently held that if a question concerning representation exists, the Board will not dismiss a petition simply because a petitioner fails to indicate on the petition form whether it has requested recognition and the employer has declined to extend recognition.  In this case, the Petitioner requested recognition at the hearing, and the Employer declined to recognize it, and this was sufficient to establish the existence of a question concerning representation.  The Board stated that to dismiss the petition under these circumstances would be an abrogation of the Board’s statutory duty to resolve questions concerning representation.  The Board rejected the Employer’s contention that adhering to this longstanding rule was arbitrary and capricious, stated that a failure to indicate on a petition form that a request for recognition was made does not prejudice employers, and emphasized that nothing in the Board’s recent amendment to its rules and regulations purports to alter its longstanding practice in this area.  Petitioner—International Union of Operating Engineers, Local 501, AFL-CIO.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Rocky Mountain Eye Center, P.C.  (19-CA-134567 and 19-CA-137315; 363 NLRB No. 34)  Missoula, MT, November 3, 2015.

The Board affirmed the Administrative Law Judge’s findings that the Respondent’s maintenance of its confidentiality agreement violated Section 8(a)(1), and that the Respondent violated Section  8(a)(3) and (1) when it discharged an employee for engaging in protected union activity.  Administrative Law Judge Eleanor Laws issued her decision on May 6, 2015.  Charges filed by International Union of Operating Engineers, Local 400.  Chairman Pearce and Members Miscimarra and McFerran participated.

***

Chipotle Services, LLC, a wholly owned subsidiary of Chipotle Mexican Grill, Inc.  (14-CA-128253; 363 NLRB No. 37)  St. Louis, MO, November 4, 2015.

The Board affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by discharging an employee because of his protected concerted and union activity, and Section 8(a)(1) by: threatening employees with discharge and unspecified reprisals for engaging in protected concerted activity; interrogating employees about their protected concerted conduct; telling employees that they cannot talk about their wages; telling an employee to refrain from talking to a union representative and from engaging in protected concerted activities; and impliedly promising an employee a wage increase in order to discourage him from engaging in protected concerted activity.  The Board found that the judge did not abuse her discretion by drawing an inference adverse to the Respondent as a sanction for its failure to comply with subpoenas duces tecum, and that the record evidence fully supports the judge’s conclusions even absent the drawing of any adverse inference.

Charge filed by Mid-South Organizing Committee.  Administrative Law Judge Melissa M. Olivero issued her decision on April 2, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated. 

***

ADT, LLC, a wholly owned subsidiary of ADT Corporation d/b/a ADT Security Services  (05-CA-127502; 363 NLRB No. 36)  Springfield, VA, November 5, 2015.

Reversing the Administrative Law Judge, a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent violated Section 8(a)(5) by refusing to provide the Union with requested information about the Respondent’s “business justification” for transferring union-represented employees from a commission-based pay program to an hourly pay structure.  The Board found that the requested information was relevant and necessary to the Union’s statutory duties to negotiate successor collective-bargaining agreements and to assess whether to bring a grievance for breach of contract, and that the Respondent had actual or constructive notice of those purposes.  The Board ordered the Respondent to provide the Union with the requested information.

Member Miscimarra, dissenting, would have dismissed the allegation on the ground that the Respondent did not have actual or constructive notice of any legitimate purpose for the Union’s information request.  Charge filed by Office and Professional Employees International Union, Local 2, AFL–CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on November 12, 2014.  Chairman Pearce and Members Hirozawa and Miscimarra participated.

***

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Seton Medical Center/Seton Coastside  (20-RC-073334)  Daly City and Moss Beach, CA, November 2, 2015.  The Board adopted the Acting Regional Director’s findings and recommendations to sustain challenges to the ballots of eight employees, to not open and count the remaining nondeterminative ballots, and to overrule the Intervenor’s objections in their entirety.  The Board issued a revised tally of ballots and certified representative the Petitioner, National Union of Healthcare Workers (NUHW) as the exclusive collective-bargaining representative of the employees in the appropriate unit.   Intervenor—SEIU United Healthcare Workers-West (SEIU-UHW).  Chairman Pearce and Members Hirozawa and McFerran participated. 

Target Corporation  (29-RC-157687)  Brooklyn, NY, November 3, 2015. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review. Petitioner – United Food & Commercial Workers Local 342. Chairman Pearce and Members Hirozawa and McFerran participated.

Saint Xavier University  (13-RC-092296)  Chicago, Illinois, November 3, 2015.  The Board granted the Employer’s Request for Review on the ground that it raised substantial issues regarding the Regional Director’s assertion of jurisdiction over secular, non-teaching employees employed by the University.  The Board directed the parties to address on review whether the Board should adhere to its current precedent under which the Board asserts jurisdiction over secular, non-teaching employees of religiously-affiliated organizations, see, e.g. Hanna Boys Center, 284 NLRB 1080 (1987); extend the test articulated in Pacific Lutheran University, 361 NLRB No. 157 (2014) to the non-teaching employees at issue here; or take a different approach.   In addition to asking the parties to address what standard should apply, Member Miscimarra pointed out that he dissented in Pacific Lutheran, and would instead apply the standard set forth by the D.C. Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (2002).  He asked the parties to address the applicability of Great Falls to the secular, non-teaching employees at issue here.  Petitioner—Service Employees International Union, Local 1.  Members Miscimarra, Hirozawa and McFerran participated.

Ohio Wine Imports Company, Inc.  (08-RD-140375)  Youngstown OH, November 3, 2015.  No exceptions having been filed to the hearing officer’s recommendation to overrule the Union’s objection to a decertification election held December 11, 2014, the Board adopted the hearing officer’s findings and recommendations, and certified that a majority of the valid ballots had not been cast for International Brotherhood of Teamsters, Local 377, and that it is not the exclusive collective-bargaining representative of the unit employees.

Durham School Services, L.P.  (32-RC-150090)  Hayward and Livermore, CA, November 4, 2015.  A Board panel majority consisting of Members Hirozawa and McFerran denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative.  The Regional Director overruled the Employer’s objections, which alleged  that (1) the head dispatcher is a statutory supervisor who engaged in coercive pro-union conduct, including soliciting employees to sign union authorization cards;  (2) agents or representatives of the Union led employees to believe that  the Employer’s challenge of certain ballots was racially motivated, thereby interfering with employee free choice; and (3) the Board’s Final Rule on representation case procedures violated its procedural due process rights and otherwise prejudiced the Employer and frustrated employees’ Section 7 rights.  In denying review, the Board panel majority agreed with the Regional Director that the Employer untimely raised its argument challenging the validity of the Board’s revised representation case procedures.  Member Miscimarra, dissenting, pointed out that he expressed his disagreement with the Board’s Final Rule on representation cases procedures in his dissent to the Final Rule.  He stated that, for similar reasons, he would grant the Employer’s Request for Review on the basis that it raises substantial questions regarding the effect and application of the Board’s Final Rule.  See Pulau Corporation, 363 NLRB No. 8 (2015) (Member Miscimarra, dissenting).  In all other respects, he joined his colleagues in denying review.  Petitioner—Teamsters Local 853, International Brotherhood of Teamsters, Change To Win.  Members Miscimarra, Hirozawa, and McFerran participated.

Retro Environmental, Inc./Green Jobworks, LLC  (05-RC-153468)  Washington, DC, November 5, 2015.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa granted the Petitioner’s Request for Review of the Regional Director’s Decision and Order dismissing the representation petition on the ground that it raised substantial issues warranting review.  Member Miscimarra, dissenting, would deny the Request for Review because he found that the record establishes that the alleged joint employer operation employing the petitioned-for unit employees would cease to exist as of mid-July 2015.  Accordingly, he found that the Regional Director properly dismissed the representation petition in reliance on Davey McKee Corp., 308 NLRB 839, 839 (1992).   Petitioner—Construction and Master Laborers’ Local 11, a/w Laborers’ International Union of North America (LIUNA).  Chairman Pearce and Members Miscimarra and Hirozawa participated. 

C Cases

Triple-S Salud, Inc.  (12-CA-143450)  San Juan, PR, November 2, 2015.  No exceptions having been filed to the September 17, 2015 Decision of Administrative Law Judge William Nelson Cates 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.  Charge filed by Union General de Trabajadores, Local 1199, Service Employees International Union.

Guitar Center Stores, Inc.  (13-CA-130446, et al.)  Chicago, IL, Las Vegas, NV; New York, NY, November 3, 2015.  The Board denied the General Counsel’s request for special permission to appeal the Deputy Chief Administrative law judge’s order granting the Respondent’s Motion for a Bill of Particulars.  The Board found that the General Counsel failed to establish that the judge abused his discretion.  Charge filed by Retail, Wholesale and Department Store Union, RWDSU, United Food and Commercial Workers.  Chairman Pearce and Members Miscimarra and McFerran participated.

M&J Bus, Inc.  (01-CA-110383)  Old Saybrook, CT, November 3, 2015.  No exceptions having been filed to the September 19, 2014 Decision of Administrative Law Judge Steven Davis 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.  Charge filed by United Food and Commercial Workers Union, Local 1459.

American Eagle Protective Services Corporation and Paragon Systems, Inc., joint employers  (05-CA-126739)  Washington, DC, November 4, 2015.  No exceptions having been filed to the September 22, 2015 Decision of Administrative Law Judge Eric M. Fine finding that the Respondents had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondents to take the action set forth in the judge’s recommended order.  Charge filed by United Government Security Officers of America, Local 034, affiliated with United Government Security Officers of America International Union.

Machinists District 70 and Local Lodge 839 (Spirit Aerosystems, Inc.)  (14-CB-133028)  Wichita, KS, November 4, 2015.  The Board denied Respondent’s Motion to supplement the record.  In doing so, the Board noted that the evidence the Respondent sought to introduce concerns events occurring nearly 1 month after the judge issued a decision in this case.

United States Postal Service  (05-CA-140963)  various locations, November 4, 2015.  The Board granted the General Counsel’s and the Union’s requests for special permission to appeal the administrative law judge’s order granting Staples, Inc.’s motion to intervene in the proceeding.  The Board found that the complaint did not allege that Staples engaged in any unlawful conduct or that any contract between the Postal Service and Staples was invalid, nor does it seek relief against Staples.  Thus, the Board found that Staples’ interest was limited to the potential effect of the litigation on it, particularly with regard to any remedy if the Postal Service is found to have violated the Act.  Accordingly, the Board vacated the judge’s order granting Staples’ leave to intervene, and directed the judge to consider how to afford Staples an opportunity to address its interests in remedial matters, short of full-party status.  Charge filed by American Postal Workers Union, AFL-CIO.  Members Miscimarra, Hirozawa, and McFerran participated.

GD Copper (USA) Inc.  (15-CA-145811 and 15-CA-151700)  Pine Hill, AL, November 5, 2015.  The Board granted the Employer’s request for special permission to appeal from the Regional Director’s order denying its request to postpone the hearing on the unfair labor practice allegations.  The Board remanded the proceeding to the Regional Director and ordered the hearing to open on January 19, 2016, subject to the availability of the other parties, but that no further requests for postponements would be granted, absent extraordinary circumstances.   Charge filed by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, and Allied Industrial and Service Workers International Union, AFL-CIO, CLC.  Chairman Pearce and Members Hirozawa and McFerran participated.

United States Postal Service  (09-CA-147648, 09-CA-147800 and 09-CA-148220)  Lexington, KY, November 6, 2015.  No exceptions having been filed to the September 23, 2015 Decision of Administrative Law Judge Arthur J. Amchan 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 National Postal Mail Handlers Union, Local 304, a Division of Laborers International Union of North America, AFL-CIO.

Dolchin Pratt, LLC d/b/a Jimmy John’s Gourmet Sandwiches, Dolchin McHenry Row, LLC d/b/a Jimmy John’s Gourmet Sandwiches, and Jimmy John’s Franchise, LLC  (05-CA-135334, et al.)  Baltimore, MD, November 6, 205.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Employers’ petitions to revoke investigative subpoenas duces tecum.  The majority found that the subpoenas were within the Board’s broad investigative authority, as they sought information relevant to matters under investigation.  The majority stated that when a charge is filed, in this instance alleging that the Employers are single or joint employers, the General Counsel has final authority concerning the investigation and the theory of the case.  The majority further found that nothing in the Act, the Board’s Rules, or the Agency’s Casehandling Manual requires that a Region specify an objective factual basis for requesting information or that a subpoena relate only to the substantive allegations of the charge.  In addition, the majority found that the subpoena described with sufficient particularity the evidence sought and that the Employers failed to establish any other legal basis for revoking the subpoena.  Member Miscimarra dissented, finding that the General Counsel failed to articulate an objective factual basis for investigating possible single or joint employer relationships between Jimmy John’s and the franchisees, beyond the mere allegation of such status in the second amended charge, and noting that the Board lacks authority to conduct investigations at its own initiative.  In addition, Member Miscimarra found that the subpoenas did not pertain to the substantive allegations of the charges.  Charges filed by Baltimore GMB of the Industrial Workers of the World.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Appellate Court Decisions

Lucky Cab Company, Board Case No. 28-CA-023508 (reported at 360 NLRB No. 43) (D.C. Circuit decided November 4, 2015)

In an unpublished per curiam judgment, the court enforced the Board’s order in full.  The employer operates a taxicab service in Las Vegas, Nevada, where it employs about 235 drivers.  In November 2010, several drivers became interested in organizing, contacted the Industrial, Technical and Professional Employees, Local 4873, which is affiliated with Office and Professional Employees International Union, AFL-CIO, formed an organizing committee, and began soliciting other drivers to sign authorization cards.  The union filed an election petition in late March 2011.  Thereafter, in the weeks leading up to the election, the employer engaged in an extensive campaign of its own and, among other things, held mandatory employee meetings, circulated anti-union literature, and fired six union organizers.  In May, an election was held, which the union lost by a vote of 105 to 93.  The union filed charges and election objections, which the Regional Director consolidated for hearing before an administrative law judge.  After hearing, the judge issued a decision finding that the employer engaged in several unfair labor practices.

On review, the Board (Chairman Pearce and Members Hirozawa and Johnson) found that the employer violated Section 8(a)(3) and (1) of the Act by discharging the six union organizers for their union activities.  The Board also found that the employer violated Section 8(a)( 1) by threatening employees with the loss of employment benefits and job security if they selected the union, by telling employees that seeking union representation was futile, and by ordering an employee not to talk to other employees about her discharge. 

After briefing and oral argument, the court concluded that substantial evidence supported each of the Board’s unfair-labor-practice findings, and enforced the Board’s order.

The court’s judgment is available here.

Hyundai America Shipping Agency, Inc., Board Case No. 28-CA-022892 (reported at 357 NLRB No. 80) (D.C. Circuit decided November 6, 2015)

In a published opinion, the court enforced in part the Board’s order against this shipping company that imports and exports cargo.  At issue were the Board’s findings that five work rules were unlawful.  The court enforced the Board’s order with respect to three—an investigative confidentiality rule, a working hours rule, and an electronic communications rule.

At its regional customer service center in Scottsdale, Arizona, the company employed 63 employees, all of whom received a handbook containing work rules.  After an unfair-labor-practice charge was filed by a former employee alleging that she had been unlawfully discharged, the complaint issued alleging that the employer violated Section 8(a)(1) of the Act both for discharging the employee for violating work rules restricting employee disclosures of information and other protected employee activity, and also for maintaining unlawful work rules.  Those rules included the following: 

[E]mployees should only disclose information or messages from [company
electronic systems] to authorized persons;
. . . .
[A]ny unauthorized disclosure of information from an employee’s personnel
file is a ground for discipline, including discharge;
. . . .
[Employees should] [v]oice your complaints directly to your immediate
superior or to Human Resources . . . . [and c]omplaining to your fellow
employees will not resolve problems; [and]
. . . .
[Employees should not] perform[ ] activities other than [c]ompany work
during working hours.

In addition to written handbook rules, a human resources manager would routinely instruct employees not to disclose information regarding matters that were under investigation. 

In August 2011, the Board (then-Chairman Liebman and Members Becker and Pearce) adopted the administrative law judge’s dismissal of the unlawful discharge allegation, but found five work rules violated Section 8(a)(1) of the Act.  The Board also adopted the judge’s denial of the employer’s motion to strike the work-rule allegations contained in the complaint because, it had claimed, they were not “closely related” to charge’s discharge allegation.

On review, as a threshold matter, the court concluded that the Board had jurisdiction over four of the work rules.  As to the fifth rule—the rule concerning information in the employer’s personnel files—the court held there was an “absence of any alleged link” to the discharge, which was “fatal to any claim” that the complaint allegation was “closely related” to the charge allegation.  On the merits, the court upheld three of the remaining rules.  Regarding the investigative confidentiality rule, the court stated that “[s]ince this blanket confidentiality rule clearly limited employees’ § 7 rights to discuss their employment, the question is whether Hyundai has presented a legitimate and substantial business justification for the rule, outweighing the adverse effect on the interests of employees.”  Noting that the employer pointed only to federal and state antidiscrimination statutes and guidelines that required confidential investigations, the court held that the employer “has not shown that these concerns offer a legitimate business reason to ban discussions of all investigations, including ones unlikely to present these concerns.” 

Turning to the electronic communication rule, the court held that the Board’s conclusion was a reasonable application of existing law and consistent with Cintas Corp. v. NLRB, 482 F.3d 463, 468-69 (D.C. Cir. 2007), in which court enforced the Board’s order invalidating an overboard policy that protected “the confidentiality of any information concerning the company.”  Similarly resolved on settled law was the court’s holding that the working hours rule was unlawful “because it prohibited employees from engaging in union-related activities even during breaks.”  Finally, the court reversed the Board’s finding that the handbook rule instructing employees to bring their complaints “directly to your immediate superior or to Human Resources” was unlawful.  The court explained that “the language is neither mandatory nor preclusive of alternatives,” nor did the handbook “prescribe penalties for complaints to fellow employees.”  The court therefore concluded that a reasonable employee would not read the provision to prohibit complaints protected by Section 7.

The court’s decision is here

***

Administrative Law Judge Decisions

Con-Way Freight, Inc.  (21-CA-135683, et al. JD(SF)-45-15)  Los Angeles, CA.  Administrative Law Judge Eleanor Laws issued her Decision on November 5, 2015.  Charges filed by individuals.  Petitioner – International Brotherhood of Teamsters, Local 63.

Amcor Rigid Plastics  (13-CA-145992; JD-61-15)  Batavia, IL.  Administrative Law Judge Thomas M. Randazzo issued his Decision on November 6, 2015.  Charge filed by Chicago & Midwest Regional Joint Board, Workers United/SEIU.

***

To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.

 

 

 

Connect with Us