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Summary of NLRB Decisions of Week of October 26 - 30, 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

Marina Del Rey Hospital  (31-CA-029929, et al.; 363 NLRB No. 22)  Marina Del Rey, CA, October 27, 2015.  Correction to Decision and Order issued October 22, 2015.  Correction substituting Amended Decision.

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Linda Construction, Inc.  (13-CA-125200; 363 NLRB No. 28)  Country Club Hills, IL, October 28, 2015.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the compliance specification.  Accordingly, the Board ordered the Respondent to pay the amounts stated in the compliance specification, plus interest accrued to the date of payment, to the Union health-and-welfare and pension funds.  Charge filed by the Excavating, Grading, Asphalt, Private Scavengers, Automobile Salesroom Garage Attendants, and Linen and Laundry Union No. 731, affiliated with the International Brotherhood of Teamsters. Members Miscimarra, Hirozawa, and McFerran participated.

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County Agency, Inc.  (29-CA-142690; 363 NLRB No. 26)  Maspeth, NY, October 28, 2015.

The Board granted the General Counsel’s motion for default judgment pursuant to the noncompliance provisions of an informal settlement agreement.  In granting default judgment, the Board stated that the Respondent admitted in its response to the Notice to Show Cause that it failed to provide the Union with the requested information and failed to post the Notice to Employees.  The Board further stated that the Respondent provided no support for its general denial of the allegation that it failed to bargain with the Union.  Accordingly, the Board found that the Respondent’s admissions established that it did not comply with its obligations under the settlement agreement.  Applying the noncompliance provisions of that agreement, the Board deemed all of the allegations in the complaint to be true and found that the Respondent violated Section 8(a)(5) by refusing to bargain with the Union.  Chairman Pearce and Member Hirozawa also struck the Respondent’s answer to the complaint, reasoning that the Respondent waived its right to file an answer by agreeing to the noncompliance provisions of the informal settlement agreement.  The Board ordered the Respondent to furnish the Union with the requested, relevant information, and to bargain with the Union, on request, as the exclusive collective-bargaining representative of the unit employees concerning terms and conditions of employment, and, if an understanding is reached, to embody the understanding in a signed agreement. 

In a footnote, Member Miscimarra joined in the entry of a default judgment, but explained his view regarding two aspects of the Board’s Order.  First, he noted that default judgment was warranted because the Respondent’s response to the Notice to Show Cause confirmed that the Respondent had failed to comply with the settlement agreement, and the settlement agreement clearly detailed the consequences of noncompliance.  Second, he noted that, although the settlement agreement provided that the Respondent waived any “right to file an Answer to [the] Complaint,” the Regional Director’s Complaint stated that the Respondent “must file an answer to the complaint,” and the Respondent filed an answer.  Member Miscimarra found it unnecessary to decide whether the Respondent’s answer must be stricken because the settlement agreement stated that all complaint allegations “will be deemed admitted” in the event of noncompliance, and the Respondent admitted its noncompliance with the settlement agreement.

Charge filed by United Food and Commercial Workers, Local 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Building Laborers’ Union, Local 310 (Safway Services, LLC)  (08-CD-153099; 363 NLRB No. 25)  Cleveland, OH, October 29, 2015.

In this jurisdictional dispute under Section 10(k) of the Act, the Board found that Building Laborers’ Union, Local 310 (Laborers) and Indiana, Kentucky, Ohio Regional Council of Carpenters (Carpenters) both claimed “certain scaffold erection/dismantling work performed by  [Employer] Safway Services, LLC at Cleveland State University’s CIHP in Cleveland, OH”; that there was reasonable cause to believe that Laborers violated Section 8(b)(4)(D) by threatening to picket the Employer if it reassigned the disputed work to employees represented by Carpenters; and that there was no voluntary method for adjusting the dispute.  The Board then evaluated the dispute under its established 10(k) factors and awarded the disputed work to employees represented by Laborers, based on the factors of collective-bargaining agreements, employer preference and past practice, area and industry practice, relative skills and training, and economy and efficiency of operations.  Charge filed by Safway Services, LLC.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (Time Warner Cable New York City, LLC)  (29-CB-125701; 363 NLRB No. 30)  New York, NY, October 29, 2015.

The Board dismissed a complaint alleging that the Respondent violated Section 8(b)(3) of the Act by refusing to execute an agreed-upon collective bargaining agreement.  In so doing, the Board unanimously affirmed the Administrative Law Judge’s finding that the General Counsel failed to prove that the parties had reached “a meeting of the minds” on all material terms of their agreement.  The Board also denied the Charging Party’s motion to reopen the record to receive evidence of the Respondent’s post-hearing conduct which allegedly demonstrated the Respondent’s belief that a collective-bargaining agreement existed between the parties.  In so ruling, the Board reasoned that the additional evidence, if adduced and credited, would not require a different result because it would not bear on the relevant question of whether the parties reached a meeting of the minds regarding the terms of their collective-bargaining agreement.  Charge filed by Time Warner Cable New York City, LLC.  Administrative Law Judge Steven Fish issued his decision on April 28, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Polycon Industries, Inc.  (13-CA-104249; 363 NLRB No. 31)  Merrillville, IN, October 29, 2015.

A panel majority consisting of Members Miscimarra and Hirozawa adopted the judge’s finding that the Respondent unlawfully refused, in May 2013, to execute a written contract reflecting the agreement that the parties had reached.  Chairman Pearce would have found, instead, a refusal-to-execute violation in March 2013.  Member Miscimarra disagreed with finding an earlier violation, and Member Hirozawa found it unnecessary to pass on an earlier violation because, in his view, the remedy would not be materially affected.  Charge filed by Teamsters Local Union No. 142, affiliated with the International Brotherhood of Teamsters.  Administrative Law Judge Geoffrey Carter issued his decision on November 12, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated. 

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ISS Facility Services, Inc. and Local 210, International Brotherhood of Teamsters  (29-CA-133335 and 29-CB-134137; 363 NLRB No. 27)  Jamaica, NY, October 29, 2015.

No exceptions having been filed to the Administrative Law Judge’s merits findings, the Board adopted the judge’s findings that the Employer and the Union violated the Act by, respectively, extending recognition, and accepting recognition, at a time when the Union did not enjoy the support of a majority of employees.  The Respondent Union contended, however, that the charge against it was untimely because the Charging Party had actual or constructive notice of the unlawful recognition more than 6 months before filing her charge.  The Board agreed with the judge that the charge was timely, but limited its agreement as to the lack of constructive notice to the judge’s reasoning that a Notice of Election involving that unit erased any possibility that the Charging Party had clear and unequivocal notice of the recognition outside the 10(b) period.  Charges filed by an individual.  Administrative Law Judge William N. Cates issued his decision on March 23, 2015.  Chairman Pearce and Members Miscimarra and Hirozawa participated. 

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Nexstar Broadcasting Group, Inc., d/b/a WETM-TV  (03-CA-125618; 363 NLRB No. 32)  Elmira, NY, October 30, 2015.

The Board found that the Respondent unlawfully removed the positions of assignment editor and chief videographer from the bargaining unit and unlawfully transferred the unit work of those positions from the unit without giving the Union prior notice and an opportunity to bargain over these actions.  The Respondent had argued that the parties agreed, while bargaining for a new collective-bargaining agreement, to remove these two positions from the unit as supervisory.  However, the Board adopted the judge’s findings that the parties did not discuss the removal of these positions from the unit during bargaining and that the Respondent failed to secure the Union’s consent, or provide it with an opportunity to bargain, prior to the removal of the work.  In addition, the Board agreed with the judge that the two employees at issue were not supervisors under the Act.  Charge filed by International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC.  Administrative Law Judge Steven Davis issued his decision on January 15, 2015.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, affiliated with Unite Here (Host International, Inc.)  (28-CB-128997 and 28-CB-129003; 363 NLRB No. 33)  Las Vegas, NV, October 30, 2015.

The Board found that the Respondent did not violate Section 8(b)(1)(A) of the Act by refusing to provide members with the dates they executed their dues-checkoff authorizations in response to a telephonic request and instead requiring members to request the dates in writing, consistent with the Respondent’s standard procedures.  In the absence of exceptions, the Board adopted the Administrative Law Judge’s finding that the Respondent violated 8(b)(1)(A) by failing to honor the Charging Party’s resignation from union membership and timely revocation of his dues-checkoff authorization, as well as the judge’s dismissal of the allegation that the Respondent violated 8(b)(1)(A) by delegating to the Employer the task of providing members with information.  Charges filed by individuals.  Administrative Law Judge Joel P. Biblowitz issued his decision on March 17, 2015.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

CPI Industries, Inc.  (29-RC-138950)  Middle Village, NY, October 27, 2015.  The Board adopted the Regional Director’s recommendation to sustain the challenge to the ballot of one employee.  Member Miscimarra noted that he agreed with the Regional Director’s statement that front pay is not a remedy the Board includes in its remedial orders under existing law, and “the approval of a settlement agreement . . . does not constitute a Board finding regarding the appropriateness of an award of front pay in lieu of reinstatement.”  For the reasons expressed in his partial dissent in Pacific Beach Hotel, 361 NLRB No. 65 (2014), Member Miscimarra believes that a Board award of front pay in lieu of reinstatement would exceed the Board’s remedial authority under the Act.   In the absence of exceptions, the Board adopted pro forma the Regional Director’s recommendation to sustain the challenge to the ballot of another employee, as well as the Regional Director’s recommendation to overrule the Petitioner’s Objections 1, 2, 3, and 5.  Additionally, in the absence of exceptions, the Board adopted pro forma the hearing officer’s recommendation to overrule the Petitioner’s Objection 4.  Accordingly, the Board certified that a majority of the valid ballots had not been cast for the Petitioner.  Petitioner—International Association of Sheet Metal Air Rail & Transportation Workers, Local No. 28, AFL-CIO.  Members Miscimarra, Hirozawa, and McFerran participated.

FedEx Freight, Inc.  (32-RC-144041)  Stockton, CA, October 28, 2015.  No exceptions having been filed to the hearing officer’s overruling of the Employer’s objections to an election, the Board adopted the hearing officer’s findings and recommendations, and certified the Petitioner as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Petitioner—International Brotherhood of Teamsters, Local 439.

Capay, Incorporated, d/b/a Farm Fresh to You  (20-RC-153475)  West Sacramento, CA, October 28, 2015.  Order denying the Employer’s request for review as raising no substantial issues regarding the Regional Director’s Decision Regarding Objections to Election and Certification of Representative.  A Board panel majority consisting of Members Hirozawa and McFerran found that the Employer did not timely raise its electioneering and surveillance allegations regarding the election, but that, in any case, its arguments were without merit.  Member Miscimarra would find that the Employer had sufficiently and timely raised its electioneering and surveillance arguments in its objections, but agreed with his colleagues that the Employer failed to raise substantial and material issues regarding either argument.  Petitioner—Bakery, Confectionery, Tobacco Workers & Grain Millers Union, Local 85.  Members Miscimarra, Hirozawa, and McFerran participated.

Paramedics Plus, LLC  (32-RC-132094)  San Leandro, CA, October 28, 2015.  The Board adopted the hearing officer’s findings and recommendations to overrule Intervenor’s election objections, which alleged that Petitioner made improper promises of gifts of tangible economic value during the critical period between the filing of an election petition and the election.  In so doing, the Board noted that the Intervenor had filed an unbriefed exception merely arguing that the hearing officer’s findings were incorrect.  Accordingly, the Board certified the Petitioner as the exclusive collective-bargaining representative of the employees in the appropriate unit.   Petitioner—National Association of Government Employees, affiliated with Service Employees International Union.   Intervenor—National Emergency Medical Services Association.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Four Seasons Environmental, Inc.  (10-RC-144025)  Atlanta, GA, October 29, 2015.  The Board adopted the hearing officer’s findings and recommendation to overrule the Employer’s election objections, which alleged that four prounion employees were agents of the Union and engaged in objectionable conduct prior to the election by making threats, conducting a coercive poll, making campaign misrepresentations, causing property damage, inserting racial issues into the campaign, and other objectionable election day misconduct.  Accordingly, the Board certified the Petitioner as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Petitioner—International Union of Operating Engineers, Local 926.  Chairman Pearce and Members Hirozawa and McFerran participated.

Danafilms Corp.  (01-RC-147458)  Westborough, MA, October 30, 2015.  No exceptions having been filed to the hearing officer’s overruling of the Employer’s objections to an election, the Board adopted the hearing officer’s findings and recommendations and certified the Petitioner as the exclusive collective-bargaining representative of the employees in an appropriate unit.  Petitioner—International Brotherhood of Teamsters Local 170.

C Cases

Star West Satellite, Inc.  (19-CA-133107, et al.)  Washington, ID and MT, October 26, 2015.  No exceptions having been filed to Administrative Law Judge Arthur J. Amchan’s September 11, 2015 decision 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 International Brotherhood of Electrical Workers, Local 206, affiliated with International Brotherhood of Electrical Workers, AFL-CIO.

International Longshoremen’s Association Local 1242, AFL-CIO (Philadelphia Marine Trade Association)  (04-CB-065887)  Philadelphia, PA, October 27, 2015.  No exceptions having been filed to Administrative Law Judge Robert A. Giannasi’s May 23, 2012 decision 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 an individual.

Midwest Terminals of Toledo International, Inc.  (08-CA-152052)  Toledo, OH, October 28, 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 matter 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 revocation.  Charge filed by Local 1982, International Longshoremen’s Association, AFL-CIO.   Members Miscimarra, Hirozawa, and McFerran participated.

Canon Solutions America, Inc.  (09-CA-154644)  Centerville, OH, October 28, 2015.  Order denying the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to 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 revocation.  Charge filed by an individual.  Members Miscimarra, Hirozawa, and McFerran participated.

Arise Virtual Solutions, Inc.  (12-CA-144223)  Miramar, FL, October 29, 2015.  Order denying the Respondent’s motions to dismiss the complaint for failure to join another party as an employer and for failure to state a claim.  Member Miscimarra, dissenting, would have granted the motion to dismiss for failure to state a claim; he found it unnecessary to pass on the motion to dismiss for failure to join a required party.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and McFerran participated.

Scoma’s of Sausalito, LLC  (20-CA-116766)  Sausalito, CA, October 29, 2015.  Order denying the Respondent's motion for reconsideration of the Board's Decision and Order reported at 362 NLRB No. 174 (2015).  The Board found that the Charging Party did not identify any material error or demonstrate extraordinary circumstances warranting reconsideration.  Charge filed by Unite Here, Local 2850.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Appellate Court Decisions

Murphy Oil USA, Inc., Board Case No. 10-CA-038804 (reported at 361 NLRB No. 72) (5th Cir. decided October 26, 2015)

In a published opinion, the court granted the petition for review in part, and enforced in part the order issued against this operator of fueling stations in 21 states.  In doing so, the court rejected the Board’s finding that the employer violated Section 8(a)(1) of the Act by imposing, as a condition of employment, arbitration agreements barring its employees working at its Alabama facility from concertedly pursuing work-related claims in any forum.

Previously, in D.R. Horton, 357 NLRB No. 184 (2012), the Board (Chairman Pearce and Member Becker; Member Hayes recused) held that an employer violates Section 8(a)(1) of the Act “when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours, or other working conditions against the employer in any forum, arbitral or judicial.”  In so ruling, the Board considered whether the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (FAA), which contains a federal policy favoring arbitration, permits employers to condition employment on individual arbitration agreements prospectively waiving a core substantive NLRA right—the right of employees to band together to collectively seek to enforce their work-related statutory claims.  The Board held that it did not.  In a separate ruling, the Board also found that D.R Horton unlawfully maintained an arbitration agreement that employees would reasonably understand as barring them from filing unfair-labor-practice charges. 

On review, the Fifth Circuit held that the Board failed to give proper weight to the FAA in finding that the arbitration agreement was unlawful in barring employees from pursuing workplace claims on a collective basis in any forum.  The court, however, upheld the Board’s finding that the agreement unlawfully restricted the employees’ right to file unfair labor practice charges with the Board.  D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013).  Subsequently, the Board filed a petition for rehearing en banc, arguing that the adverse portion of the court’s decision was based on a misapprehension of Supreme Court FAA jurisprudence and failed to give proper deference to the Board’s authoritative interpretation of its governing statute.  The petition was denied. 

In the present case, the employer required employees to sign arbitration agreements with the same relevant restrictions and four employees who signed agreements later filed a collective action against the employer in an Alabama district court alleging violations of the Fair Labor Standards Act.  In response, the employer moved to dismiss and to compel individual arbitration of each claim, and an employee filed a charge with the Board.  A hearing was held before an administrative law judge who recommended finding the violation based on the Board’s D.R. Horton decision.  On review, the Board (Chairman Pearce and Members Hirozawa and Schiffer; Members Miscimarra and Johnson, dissenting in part) reexamined and reaffirmed the reasoning and conclusions of the 2012 decision in D.R. Horton, Inc., and explained the Board’s disagreement with the Fifth Circuit’s decision.  In so doing, the Board acted under the principle of non-acquiescence, which permits it in subsequent cases involving different parties, to continue holding a position rejected by a circuit court as it seeks to persuade other circuits, and eventually the Supreme Court, to endorse its interpretation.  On other issues, the Board found that the employer violated Section 8(a)(1) by maintaining an arbitration agreement that employees would reasonably construe as restricting their right to file charges with the Board.  In addition, the Board found that the employer’s lawsuits had an unlawful objective under the principles of Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), and found that the employer violated Section 8(a)(1) by filing its motion to dismiss and to compel arbitration in the Alabama district court litigation.  

The employer filed for review in the Fifth Circuit.  In response, the Board filed both a responsive brief and a concurrent petition for an initial hearing en banc because of the adverse, in-circuit precedent of D.R. Horton.  The court denied the petition for en banc hearing and the case was heard by a three-judge panel.  In the resulting decision, the court stated that “the Board will not be surprised that we adhere, as we must, to our prior ruling,” and it set aside the Board’s finding that the employer violated the NLRA by conditioning employment on signing the individual arbitration agreements.  However, consistent with its earlier decision in D.R. Horton, the court upheld the Board’s finding that the employer unlawfully maintained an agreement that employees would reasonably construe as restricting their right to file charges with the Board.  Finally, the court held that, when the employer filed its motion in the Alabama district court, it had “at least a colorable argument” that the arbitration agreement was valid, and thus “its response to the lawsuit was not ‘lack[ing] a reasonable basis in fact or law,’ and was not filed with an illegal objective under federal law,” quoting Bill Johnson’s, 461 U.S. at 737 n.5, 744, 748.

The court’s opinion is here

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Administrative Law Judge Decisions

Local 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO (Paramount Industries, Inc.)  (07-CB-149555; JD-60-15)  Croswell, MI.  Administrative Law Judge David I. Goldman issued his decision on October 26, 2015.  Charge filed by an individual.

King Soopers, Inc.  (27-CA-129598; JD(SF)-44-15)  Denver, CO, October 27, 2015.  Errata to the October 22, 2015 decision of Administrative Law Judge Amita Baman Tracy.  Errata   Amended Decision.

Aliante Gaming, LLC d/b/a Aliante Casino and Hotel  (28-CA-145644; JD(SF)-42-15)  Las Vegas, NV.  Administrative Law Judge Gerald Michael Etchingham issued his decision on October 30, 2015.  Charge filed by Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226 and Bartenders Union Local 165, affiliated with Unite Here.

Durham School Services, L.P.  (15-CA-106217, et al.; JD-62-15)  Fort Walton Beach, FL.  Administrative Law Judge Michael A. Rosas issued his decision on October 30, 2015.  Charges filed by Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 991.

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