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Summary of NLRB Decisions for Week of November 28 - December 2, 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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

Masonic Temple Association of Detroit and 450 Temple, Inc.  (07-CA-144521; 364 NLRB No. 150)  Detroit, MI, November 29, 2016.

The Board affirmed the Administrative Law Judge’s conclusion that Respondents Masonic Temple Association of Detroit and 450 Temple, Inc., a single employer, violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with Local 324, International Union of Operating Engineers.

Charge filed by Local 324, International Union of Operating Engineers (IUOE).  Administrative Law Judge Christine E. Dibble issued her decision on June 6, 2016.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Atlantic Northeast Transport, Inc.  (22-CA-175081; 364 NLRB No. 155)  Kearny, NJ, November 30, 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)(1) by threatening employees by telling them that their continued employment is conditioned on their ceasing to engage in protected concerted activities, and by discharging an employee for engaging in protected concerted activities, including filing a lawsuit for the purposes of employees’ mutual aid and protection. 

Member Miscimarra concurred in the entry of default judgment, but noted that there were potential service issues.  He suggested that the Board should evaluate the development of standards that would foster greater uniformity and certainty regarding the address that will be used for purposes of service. 

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

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Edwards Painting, Inc.  (19-CA-116399 and 19-CA-122730; 364 NLRB No. 152)  Oregon City, Oregon, November 30, 2016.

The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) and 8(a)(3) during the course of the Union’s organizing campaign, including by interrogating employees about their union activity, threatening layoffs if employees supported the Union, making promises of wage increases, refusing to hire applicants because of their Union affiliation, and firing pro-union employees. 

In affirming the refusal-to-hire violations, the Board found that the General Counsel met his initial burden under FES, 331 NLRB 9 (2000), by demonstrating that the three applicants had relevant experience for the positions for hire, the Respondent hired seven employees shortly after the unlawful conduct, and antiunion animus contributed to the Respondent’s decision not to hire them.  Further, the Board found that the Respondent failed to meet its rebuttal burden under FES, because it did not provide evidence to demonstrate that four of the employees it subsequently hired possessed qualifications superior to the three applicants.  The Board modified the remedy for the Section 8(a)(3) refusal-to-hire and discharge violations to include the tax compensation and Social Security reporting remedy in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).  A majority (Chairman Pearce and Member McFerran) modified the remedy to also require the Respondent to compensate affected employees for their search-for-work and interim employment expenses regardless of whether those expenses exceed interim earnings consistent with King Soopers, Inc., 364 NLRB No. 93 (2016).  As stated in his separate opinion in King Soopers, Member Miscimarra would treat search-for-work and interim employment expenses as an offset against interim earnings. 

Charges filed by International Union of Painters and Allied Trades, District Council 5, affiliated with International Union of Painters and Allied Trades.  Administrative Law Judge John J. McCarrick issued his decision on September 26, 2014.  Chairman Pearce and Members Miscimarra and McFerran participated.

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CPL (Linwood) LLC d/b/a Linwood Care Center and its successor 201 New Road Operations, LLC d/b/a Linwood Care Center  (04-CA-146362, 04-CA-146670, 04-CA-148705, and 04-CA-165109; 364 NLRB No. 154)  Linwood, NJ, November 30, 2016.

In the absence of exceptions, the Board affirmed the Administrative Law Judge’s conclusions that two individuals were Respondent’s agents, and that Respondent, through those agents,  violated Section 8(a)(1) by soliciting employees to sign a decertification petition, soliciting employee grievances and explicitly promising to remedy them if employees decertified the Union, telling employees that no changes to working conditions would be made unless they got rid of the Union or a collective-bargaining agreement was signed, interrogating employees about their support for the Union, and threatening employees by suggesting that it was futile to continue supporting the Union because contract negotiations could go on for a very long time. 

The Board severed the remaining excepted-to allegations and retained them for further consideration.

Charges filed by 1199 SEIU United Healthcare Workers East.  Administrative Law Judge Arthur J. Amchan issued his decision on April 5, 2015.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Mid-Atlantic Restaurant Group LLC d/b/a Kelly’s Taproom  (04-CA-162385; 364 NLRB No. 153)  Bryn Mawr, PA, November 30, 2016.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee for engaging in protected concerted activity.

Charge filed by an individual.  Administrative Law Judge Mark Carissimi issued his decision on June 13, 2016.  Chairman Pearce and Members Miscimarra and McFerran participated.

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East Village Grand Sichuan Inc. d/b/a Grand Sichuan Restaurant  (02-CA-143468; 364 NLRB No. 151)  New York, NY, November 30, 2016.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee for engaging in protected concerted activity.  The Board unanimously found that the employee engaged in concerted activity on the basis that she long engaged in discussions with her coworkers concerning the Respondent’s terms and conditions of employment, and her Federal lawsuit alleging violations of Federal and State labor laws logically grew out of those discussions.  Member Miscimarra noted that he did not reach or pass on the finding that the lawsuit itself constituted concerted activity.  In finding that the Respondent exhibited animus, a majority (Members Miscimarra and McFerran) did not rely on a supervisor’s statement that she would “fight to the end,” which the judge acknowledged falls within Section 8(c) of the Act, given the other strong evidence of animus in the case.  Chairman Pearce would, like the judge, rely on the supervisor’s statement that the Fuzhounese employees are united, want to sue the restaurant, and the supervisor would “fight to the end” as evidence of animus.

Charge filed by Chinese Staff & Workers Association.  Administrative Law Judge Steven Davis issued his decision on January 14, 2016.  Chairman Pearce and Members Miscimarra and McFerran participated.

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US Foods, Inc.  (28-CA-156203 and 28-CA-160985; 364 NLRB No. 156)  Phoenix, AZ, December 1, 2016.

The Board affirmed the Administrative Law Judge’s dismissal of the allegation that the Respondent violated Section 8(a)(3) by refusing to hire a former employee, but noted that it applied FES, 331 NLRB 9 (2000), in doing so.  The Board dismissed a related refusal-to-consider allegation for the same reasons that the judge dismissed the refusal-to-hire allegation.  A majority (Chairman Pearce and Member McFerran) reversed the judge and found that the Respondent violated Section 8(a)(1) by making a statement that conveyed to employees that losing their jobs was a consequence of striking.  Dissenting, Member Miscimarra agreed with the judge that the testimony was too confused to establish that the Respondent’s statement violated Section 8(a)(1).

Charges filed by General Teamsters (Excluding Mailers), State of Arizona, Local Union No. 104, an affiliate of the International Brotherhood of Teamsters.  Administrative Law Judge Joel P. Biblowitz issued his decision on March 10, 2016.  Chairman Pearce and Members Miscimarra and McFerran participated. 

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Walrath Heating & Air Conditioning Co., Inc.  (27-RC-182749)  Lakewood, CO., November 30, 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.  Petitioner—International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART), Local 9, AFL-CIO.  Chairman Pearce and Members Miscimarra and McFerran participated.

C Cases

Sysco Detroit LLC  (07-CA-163131, 07-CA-163930 and 07-CA-172824)  Canton, MI, November 29, 2016.  The Board denied the Respondent’s Motion to Dismiss without prejudice.  The Board found that the Respondent failed to establish that the complaint allegations should be deferred to the parties’ grievance and arbitration procedure pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971).  Charges filed by Local 337, International Brotherhood of Teamsters (IBT).  Chairman Pearce and Members Miscimarra and McFerran participated.

Western States Envelope Company  (30-CA-018296)  Butler, WI, December 1, 2016.  The Board granted the parties’ joint motion requesting that the Board issue an Order adopting the Administrative Law Judge’s decision with minor modifications to the judge’s proposed Notice to Employees.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Private National Mortgage Acceptance Company LLC, “Pennymac”  (20-CA-170020; JD(NY)-45-16)  San Francisco, CA.  Administrative Law Judge Raymond P. Green issued his decision on November 29, 2016.  Charge filed by an individual.

Rose Fence, Inc.  (29-CA-030485 and 29-CA-030537; JD(NY)-44-16)  Baldwin, NY.  Administrative Law Judge Mindy E. Landow issued her decision on November 29, 2016.  Charges filed by International Brotherhood of Teamsters.

Brooks Brothers  (02-CA-063650 and 02-CA-156504; JD(NY)-46-16)  New York, NY.  Administrative Law Judge Raymond P. Green issued his decision on November 30, 2016.  Charges filed by New York New Jersey Regional Board and its Local affiliate Local 340 and Local 25.

Rite Aid of New York, Inc. and Rite Aid of New Jersey, Inc., a Single Employer  (02-CA-160384; JD(NY)-48-16)  New York, NY.  Administrative Law Judge Steven Davis issued his decision on November 30, 2016.  Charge filed by 1199 SEIU United Healthcare Workers East.

Montecito Heights Healthcare & Wellness Centre, LP  (31-CA-129747; JD(NY)-47-16)  Los Angeles, CA.  Administrative Law Judge Raymond P. Green issued his decision on November 30, 2016.  Charge filed by Service Employees International Union, United Long Term Care Workers.

Ports America Outer Harbor, LLC, currently known as Outer Harbor Terminal, LLC  (32-CA-110280 and 32-CA-118735; JD(SF)-47-16)  Oakland, CA.  Administrative Law Judge Mary Miller Cracraft issued her decision on December 1, 2016.  Charges filed by International Association of Machinists and Aerospace Workers, District Lodge 190, East Bay Automotive Machinists Lodge No. 1546, International Association of Machinists and Aerospace Workers, AFL-CIO/CLC.

United States Postal Service  (07-CA-145159 and 07-CA-159684; JD-114-16)  Detroit, MI.  Administrative Law Judge Christine E. Dibble issued her decision on December 2, 2016.  Charges filed by Branch 256, National Association of Letter Carriers (NALC), AFL-CIO.

Bristol Industrial Corporation and C.O. Sabino Corporation (Single and Joint Employers)  (04-CA-148573 and 04-CA-153165; JD-100-16)  New Castle, DE.  Administrative Law Judge Susan A. Flynn issued her decision on December 2, 2016.  Charges filed by Metropolitan Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, Southeastern Pennsylvania, State of Delaware and Eastern Shore of Maryland.

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