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Summary of NLRB Decisions for Week of November 9 - 13, 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

Amex Card Services Company, a subsidiary of American Express Travel Related Services Company, Inc., a subsidiary of American Express Company  (28-CA-123865; 363 NLRB No. 40)  Phoenix, AZ, November 10, 2015.

Applying Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied ___ F.3d ___ (5th Cir. Oct. 26, 2015), D.R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and U-Haul Co. of California, 347 NLRB 375 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007), a unanimous Board panel found that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that employees reasonably would believe bars or restricts them from filing charges with the Board or to access the Board’s processes, and by maintaining and enforcing a mandatory arbitration agreement under which employees are compelled, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial.  The Board rejected the Respondent’s arguments that the maintenance allegation is barred by Section 10(b) and that the Respondent’s arbitration policy is distinguishable from the policies in D.R. Horton and Murphy Oil.  Charges filed by individuals.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Delek Refining, Ltd.  (16-CA-158842; 363 NLRB No. 41)  Tyler, TX, November 13, 2015.

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 were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  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 United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Labor Plus, LLC  (28-RC-150168)  Las Vegas, NV, November 9, 2015.  Order denying the Employer’s Request for Review of the Regional Director’s Decision and Order Overruling Objections and Directing Opening and Counting of Ballots on the ground that it raised no substantial issues warranting review.  Petitioner – International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, Local 720.  Chairman Pearce and Members Hirozawa and McFerran participated.

Labor Plus, LLC  (28-RC-150168)  Las Vegas, NV, November 9, 2015.  Order denying the Employer’s Request for Review of the Regional Director’s September 22, 2015 letter denying the Employer’s Motion to Dismiss Petition on the ground that it raised no substantial issues warranting review.  Petitioner – International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, Local 720.  Chairman Pearce and Members Hirozawa and McFerran participated.

C Cases

Cooper Tire & Rubber Company  (08-CA-087155)  Findlay, OH, November 10, 2015.  The Board granted the motion to file an amicus brief filed by the National Association of Manufacturers.

Hotel Management Advisors Troy, LLC d/b/a Metropolitan Hotel Detroit-Troy  (07-CA-076369)  Troy, MI, November 10, 2015.  The parties having waived appeal, the Board adopted the April 3, 2013 recommended order of Administrative Law Judge Ira Sandron, and ordered the Respondent to take the Judge’s recommended action to remedy the unfair labor practices.  Charge filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.

Wal-Mart Stores, Inc. and Organization United for Respect at Walmart (OUR Walmart)  (32-CA-090116, et al. and 13-CA-114222)  Richmond, CA, November 12, 2015.  The Board granted the Respondent’s motion to sever Case 32-CA-111715 from 32-CA-090116 and to consolidate it with Case 13-CA-114222.  Charge filed by the Organization United for Respect at Walmart (OUR Walmart).  Members Miscimarra, Hirozawa and McFerran participated.

Northeastern Land Services, Ltd. d/b/a The NLS Group  (01-CA-039447)  East Providence, RI, November 12, 2015.  The Board granted the All-Party motion to approve a settlement agreement and remanded the case to the Regional Director for further proceedings.

Express Messenger Systems, Inc. d/b/ Ontrac  (21-CA-137530)  Commerce, CA, November 12, 2015.  No exceptions having been filed to the September 24, 2015 decision of Administrative Law Judge Ariel L. Sotolongo 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 Teamsters Local Union No. 63, International Brotherhood of Teamsters.

Americraft Carton, Inc.  (10-CA-130244 and 10-CA-130257)  Marietta, GA, November 12, 2015.  The Board denied the joint motion of the Respondent Employer, the Charging Party Union, and the General Counsel to waive a hearing and decision by an administrative law judge and transfer the case to the Board for a decision based on the stipulated record.  In denying the joint motion, the Board noted that the parties’ position statements show that the General Counsel intended to ask the Board to revisit the long-established “perfectly clear” successorship doctrine, to overrule the Board’s decision in Spruce Up Corp., 209 NLRB 194 (1974), and to apply a new standard retroactively in this case.  The Board stated, however, that the General Counsel’s position statement does not articulate the new standard that he would have the Board adopt, nor does it explain how the stipulated facts would establish a violation of Section 8(a)(5) under a new standard.  The Board added that the Respondent’s position statement simply asserts that no violation has been established under current law—a proposition that the General Counsel does not address.  In the Board’s view, additional facts might be required to determine whether there was a violation here under the General Counsel’s to-be-articulated new standard.  In these circumstances, the Board concluded that it is not clear that the stipulation of facts actually “provides for a decision by the Board” within the meaning of Section 102.35(a)(9) of the Board’s Rules and Regulations.  Charges filed by Graphic Communications Conference of the International Brotherhood of Teamsters Union, Local 527-S.

Bruner Corporation  (09-CA-148668)  Hillard, OH, November 12, 2015.  Order denying the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by International Association of Sheet Metal, Air, Rail and Transportation Workers, Local 24, AFL-CIO.  Members Miscimarra, Hirozawa, and McFerran participated.

United States Postal Service  (10-CA-143087 and 10-CA-147238)  Athens, GA, November 12, 2015.  Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying the actions the Respondent must take to comply with the National Labor Relations Act.  Charge filed by National Association of Letter Carriers Branch 588.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Appellate Court Decisions

Ambassador Services, Inc., Board Case No. 12-CA-026758 (reported at 361 NLRB No. 106) (11th Cir. decided November 12, 2015, corrected decision issued November 17, 2015)

In an unpublished per curiam decision, the court denied the employer’s petition for review and enforced the Board’s order in full.  The Court upheld the Board’s contested findings that the employer violated Section 8(a)(1) of the Act by maintaining an overbroad rule against walking off the job, and committed several additional violations through the actions of one of its supervisors, who solicited signatures for a decertification petition, told an employee that he had assisted in preparing the petition for two weeks before it began to circulate, and interrogated a leadperson (who, the court and the Board agreed, was a statutory employee and not a supervisor*).  The Court also upheld the Board’s contested finding that the employer violated Section 8(a)(5) of the Act by withdrawing recognition from the union and refusing to bargain; the court agreed with the Board that the employer had failed to establish that a majority of employees had signed a decertification petition.  The employer did not contest the Board’s remaining findings, i.e., that it maintained an overly broad no-solicitation rule and informed an employee that solicitation and distribution were prohibited on company property.

The court’s decision is here.

Spurlino Materials, LLC,  Board Case No. 25-CA-031656  (reported at 357 NLRB No. 126) (D.C. Circuit decided November 13, 2015)

In a published decision, the court denied the employer’s petition for review and enforced the Board’s order in full.  The case arose from a 2010 strike which, the Board found, was motivated at least in part by the employer’s discharge of and refusal to reinstate a union supporter (whose discharge was found to be unlawful by the Board and the Seventh Circuit in a separate proceeding.)  The Court upheld the Board’s determination that the strike was an unfair labor practice strike, and that the employer therefore acted unlawfully when it refused to reinstate the strikers upon their unconditional offer to return to work.  In so ruling, the Court upheld the Board’s rejection of the employer’s claim that the employees had engaged in an unprotected partial strike because the employees had not struck on one project, as to which they were subject to a no-strike clause.  The Court found that the partial-strike cases on which the employer relied were a “poor fit” and that the Board’s finding the strike here to be protected was consistent with the policies underlying those cases.  Finally, the Court found no basis for disturbing the Board’s “well-supported determination” that the two named respondents were a single employer.

The Court’s decision may be found here.

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Administrative Law Judge Decisions

Durham School Services, L.P.  (15-CA-106217, et al.; JD-62-15)  Fort Walton Beach, FL.  Erratum to the decision of Administrative Law Judge Michael A. Rosas issued October 30, 2015.  Erratum   Amended Decision.

Columbia Memorial Hospital  (03-CA-142160 and 03-CA-144364; JD(ATL)-21-15)  Hudson, NY.  Administrative Law Judge Robert A. Ringler issued his decision on November 10, 2015.  Charges filed by an individual and 1199 SEIU United Healthcare Workers East.

Allways East Transportation, Inc.  (03-CA-128669 and 03-CA-133846; JD-63-15)  Yonkers, NY.  Administrative Law Judge Susan A. Flynn issued her decision on November 12, 2015.  Charges filed by International Brotherhood of Teamsters, Local 445.

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