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Summary of NLRB Decisions for Week of September 21 - 25, 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

International Longshore and Warehouse Union, AFL-CIO, and International Longshore and Warehouse Union, Local 8, AFL-CIO, and International Longshore and Warehouse Union, Local 40, AFL-CIO (ICTSI, Inc.)  (19-CC-082533, et al.; 363 NLRB No. 12)  Portland, OR, September 24, 2015.

A unanimous panel of the Board affirmed the Administrative Law Judge’s findings that Respondent Unions violated the Act by engaging in a series of job actions against ICTSI Oregon, Inc. (ICTSI), and the steamship carriers that call on Terminal 6 of the Port of Portland (Port), with an unlawful “cease doing business” object, namely seeking the Port’s relinquishment of control over the dockside reefer work at Terminal 6 for the benefit of the workers represented by Respondent ILWU Local 8.

The Board ordered the Respondent Unions to cease and desist from engaging in the following conduct in order to force or require ICTSI or any other person to cease doing business with the Port at Terminal 6:  withholding their services, engaging in slowdowns and work stoppages, or interfering with the lawful and proper work assignments of other employee groups that perform services at Terminal 6; directly or indirectly threatening in any manner to shut down or otherwise disrupt ICTSI’s operations at Terminal 6; failing and/or refusing to fulfill ICTSI’s timely requests for the referral of qualified employees for work at Terminal 6 in accord with the Pacific Coast Longshore and Clerks Agreement; and filing, processing, maintaining, and/or prosecuting grievances or lawsuits, or threatening to engage in such conduct, against ICTSI or any other similarly situated neutral employer at Terminal 6.

Charges filed by ICTSI Oregon, Inc., and the Port of Portland.  Administrative Law Judge William L. Schmidt issued his decision on August 28, 2013.  Chairman Pearce and Members Hirozawa and McFerran participated.

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United States Postal Service  (07-CA-138249 and 07-CA-138262; 363 NLRB No. 11)  New Baltimore, MI, September 25, 2015.

The Board affirmed an Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by unreasonably delaying providing relevant information requested by the Union.  Charges filed by Branch 654, National Association of Letter Carriers (NALC), AFL-CIO.  Administrative Law Judge Christine E. Dibble issued her decision on June 5, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Sisters’ Camelot  (18-CA-100514 and 18-CA-105462; 363 NLRB No. 13)  Minneapolis, MN, September 25, 2015.

The Board reversed the Administrative Law Judge’s finding that the Respondent Employer’s canvassers are independent contractors excluded from the coverage of the Act.  Instead, the Board found that the canvassers are statutory employees covered by the Act.  The Board then found that the Respondent violated Section 8(a)(3) and (1) by discharging an individual because he engaged in union activity.  The Board also adopted the judge’s finding that the Respondent violated Section 8(a)(1) by suggesting to canvassers that union organizing would be futile, and the Board reversed the judge and found that the Respondent also violated Section 8(a)(1) by granting benefits to canvassers during the organizing campaign in order to dissuade them from participating in union or other protected activities.

Charges filed by an individual and by IWW Sisters’ Camelot Canvassers Union.  Administrative Law Judge Arthur J. Amchan issued his decision on August 7, 2013.  Chairman Pearce and Members Hirozawa and McFerran participated.

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The Gulfport Stevedoring Association—International Longshoremen’s Association Container Royalty Plan and International Longshoremen’s Association Local 1303  (15-CA-096939 and 15-CB-096934; 363 NLRB No. 10)  Gulfport, MS, September 25, 2015.

The Board unanimously affirmed the Administrative Law Judge’s finding that the Respondent Employer, The Gulfport Stevedoring Association—International Longshoremen’s Association Container Royalty Plan (the Plan)—is an employer engaged in commerce under Section 2(2), 2(6), and 2(7) of the Act and, accordingly, the Board has jurisdiction over the Plan.  The Administrative Law Judge found, and the Board agreed that, the Plan provides services which satisfy the Board’s interstate commerce requirements, including collecting and distributing money from ship owners to provide supplemental wages to qualifying members of the International Longshoremen’s Association Local 1303 (the Union), operating and maintaining a dispatch system for longshoremen, and providing money to the Union’s welfare, pension, and trust funds.

The Board further affirmed the Administrative Law Judge’s finding that the Union did not cause the Plan to terminate the Charging Party individual for his involvement in his son’s unsuccessful campaign for Union president against the incumbent.  Applying Wright Line, 252 NLRB 1083 (1980) (history omitted), the Administrative Law Judge found that the General Counsel failed to establish a prima facie case, specifically, that the evidence was insufficient to show that the Charging Party campaigned on behalf of his son or that the Respondents had knowledge of such protected activity.  Accordingly, the Board affirmed the Administrative Law Judge’s dismissal of the Section 8(b)(2), and Section 8(a)(1) and (3) allegations.  Concurring, Member Miscimarra agreed with the Administrative Law Judge’s analysis and dismissal of the 8(b)(2) discharge allegation under Wright Line, but added that he would also apply and find that the Union did not violate Section 8(b)(2) under the duty-of-fair-representation standard, because the Charging Party’s discharge was “done in good faith, based on rational considerations”, namely, his poor work performance, citing Operative Plasterers & Cement Masons, Local No. 299 (Wyoming Contractors Assn.), 257 NLRB 1386, 1395 (1981).

Charge filed by an Individual.  Administrative Law Judge Michael A. Marcionese issued his decision on February 27, 2014.   Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Sabreliner Aviation, LLC  (14-RD-135815)  Perryville and St. Genevieve, MO, September 21, 2015.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Employer’s Request for Review as raising no substantial issues regarding the Regional Director’s dismissal of the decertification petition because it was filed prior to the expiration of the minimum 6-month insulation period, measured from the parties’ first bargaining session, as required by the successor bar doctrine set forth in UGL-UNICCO Service Co., 357 NLRB No. 76, slip op. at 9 (2011).   Member Miscimarra dissenting, stated that he would return to the Board’s prior standard set out in MV Transportation, 337 NLRB 770, 770 (2002) and find that: (1) an incumbent union in a successorship situation is entitled to only a rebuttable presumption of continued majority status, which would not serve as a bar to an otherwise valid rival union petition, and (2) alternatively, if a successor bar under UGL-UNICCO Service Co. is applied, the bar should commence running when the successor is first required to recognize and bargain with the union, rather than when the parties have their first bargaining session.  Petitioner—an individual.  Union—International Brotherhood of Teamsters, Local 600.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Brooks Brothers, a Division of Retail Brand Alliance, Inc.  (02-UC-062745)  New York, NY, September 21, 2015.  Order denying the Unions’ Request for Review as raising no substantial issues regarding the Regional Director’s decision to clarify the unit and exclude the employees working at the Employer’s store at 1180 Madison Avenue in New York City.  The Board noted that the bargaining unit employees who worked at that store did so only temporarily and therefore the Unions could not use their employment to establish majority status.  It also stated that the denial of review did not preclude the Unions from later seeking to include these employees into the unit through a showing of majority status through an additional store clause or by filing a representation petition.  Unions—Local 340 and Local 25, New York, New Jersey Regional Joint Board.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

McKesson Corporation  (12-CA-094552, et al.)  Lakeland, FL, September 21, 2015.  The Board granted the Respondent’s, the General Counsel’s, and the Charging Party’s requests to withdraw their respective exceptions, and consequently the Board adopted the November 4, 2014 decision of Administrative Law Judge Keltner W. Locke, and ordered the Respondent to take the action set forth in the judge’s recommended Order.  Charges filed by International Brotherhood of Teamsters, Local 79.

Hospital Episcopal San Lucas Guayama  (12-CA-152114)  Ponce, PR, September 22, 2015.  Order denying the Employer’s petition to revoke an investigative subpoena duces tecum and the Employer's motion to strike the Regional Director's opposition.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  The Board indicated that in considering the petition to revoke, it evaluated the subpoena paragraphs 3, 5, and 8 as modified by the Region in its opposition brief.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Lastly, in denying the Employer’s motion to strike the Regional Director’s opposition, the Board found no merit in the Employer’s reliance on the provisions of the Casehandling Manual because they are non-binding guidelines.  Charge filed by Unidad Laboral De Enfermeras(os) Y Empleados De La Salud.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Bauer’s Intelligent Transportation, Inc.  (20-CA-148119 and 20-CA-151225)  San Francisco, CA, September 24, 2015.  Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, the Union that is Party to the Contract, and the General Counsel, and specifying the actions the Employer must take to comply with the National Labor Relations Act.  Charges filed by Teamsters Local 665, International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and McFerran participated.

International Brotherhood of Teamsters, Local 2785 (United Parcel Service)  (20-CB-151507)  South San Francisco, CA, September 25, 2015.  Order denying the Charged Union’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 Union failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Saint Luke’s Memorial Hospital d/b/a Hospital San Lucas Ponce  (12-CA-142062)  Ponce, PR, September 25, 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 Unidad Laboral de Enfermeras(os) y Empleados de la Salud.  Chairman Pearce and Members Miscimarra and McFerran participated.

HM Carpet, Inc.  (31-CA-146569 and 31-CA-148840)  Los Angeles, CA, September 25, 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 revoking the subpoena.  The Board also denied the Employer’s request for a protective order for lack of a showing of good cause.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Riccelli Enterprises, Inc.  (03-CA-130137; JD(ATL)-18-15)  Syracuse, NY.  Administrative Law Judge Robert A. Ringler issued his decision on September 21, 2015.  Charge filed by International Union of Operating Engineers, Local 158-C.

Taylor Ridge Paving and Construction  (25-CA-135372; JD-53-15)  Taylor Ridge, IL.  Administrative Law Judge Melissa M. Olivero issued her decision on September 21, 2015.  Charge filed by Local Union No. 309, Laborers’ International Union of North America.

American Eagle Protective Services Corporation and Paragon Systems, Inc., Joint Employers  (05-CA-126739; JD-55-15)  Washington, DC.  Administrative Law Judge Eric M. Fine issued his decision on September 22, 2015.  Charge filed by United Government Security Officers of America, Local 034, affiliated with United Government Security Officers of America International Union.

United States Postal Service  (09-CA-147648, et al.; JD-56-15)  Lexington, VA.  Administrative Law Judge Arthur J. Amchan issued his decision on September 23, 2015.  Charges filed by National Postal Mail Handlers Union, Local 304, a Division of Laborers International Union of North America, AFL-CIO.

Howard Industries, Inc.  (15-CA-131447; JD(ATL)-19-15)  Laurel, MI.  Administrative Law Judge Keltner W. Locke issued his decision on September 24, 2015.  Charge filed by International Brotherhood of Electrical Workers, Local Union No. 1317. 

Express Messenger Systems, Inc. d/b/a Ontrac  (21-CA-137530; JD(SF)-40-15)  Commerce, CA.  Administrative Law Judge Ariel L. Sotolongo issued his decision on September 24, 2015.  Charge filed by Teamsters Local Union No. 63, International Brotherhood of Teamsters.

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