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Summary of NLRB Decisions for Week of September 28 - October 2, 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

United States Postal Service  (18-CA-142795; 363 NLRB No. 16)  Minneapolis, MN, September 29, 2015.

The Board denied the General Counsel’s motion for summary judgment.  In a footnote, Member Miscimarra observed that the General Counsel alleges that Respondent’s rule regarding the “Interception of Oral or Wire Communications by Postal Employees” violates Section 8(a)(1).  Member Miscimarra noted that, as the Respondent contends in opposition to the General Counsel’s Motion for Summary Judgment, certain precedents relied upon by the General Counsel suggest that the Respondent’s rationales for adopting such a rule may be material to the disposition of the allegations in this case, and neither the record nor the rule itself provide evidence regarding any such rationales.  On this basis, Member Miscimarra denied the motion. Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Micropower USA Corp.  (02-CA-144773; 363 NLRB No. 14)  New York, NY, September 30, 2015.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) by failing and refusing to bargain collectively and in good faith with the Union over the effects of its decision to lay off the unit employees that worked on its Manhattan campus.  The Board ordered the Respondent to bargain with the Union, on request, about the effects of its decision.  The Board noted, however, that as a result of the Respondent's unlawful conduct, the unit employees were denied an opportunity to bargain through their collective-bargaining representative at a time when the Respondent might still have been in need of their services and a measure of balanced bargaining power existed, and found that a bargaining order alone could not serve as an adequate remedy for the unfair labor practices committed.  Accordingly, the Board accompanied its bargaining order with a limited backpay requirement designed both to make whole the employees for losses suffered as a result of the violation and to recreate in some practicable manner a situation in which the parties' bargaining position is not entirely devoid of economic consequences for the Respondent, and ordered the Respondent to pay backpay to the unit employees in a manner similar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968), as clarified by Melody Toyota, 325 NLRB 846 (1998).  Charge filed by Professionals at Micropower New York State United Teachers, AFT, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Lily Transportation Corp.  (01-CA-118372; 363 NLRB No. 15)  Needham, MA, September 30, 2015.

The Board affirmed the Administrative Law Judge’s finding that the Respondent, a successor employer, violated Section 8(a)(5) and (1) when it refused to recognize and bargain with the Union that had represented a unit of drivers employed by the predecessor employer. Administrative Law Judge Raymond P. Green issued his decision on December 29, 2014.  Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 15, Local 447.  Chairman Pearce and Members Miscimarra and McFerran participated.

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International Union of Operating Engineers, Local 4 (JDC Demolition Company)  (01-CD-137069 and 01-CD-138333; 363 NLRB No. 17)  Salem, MA, September 30, 2015.

The Board granted Operating Engineers Local 4’s motion to quash the Section 10(k) notice of hearing in this jurisdictional dispute in which Local 4 and Laborers’ Local 1421 both claimed work operating bobcats and lulls at a demolition project in Massachusetts.  The Board found that this jurisdictional dispute was not properly before it because the parties had agreed to utilize the Building and Construction Trades Department, AFL-CIO’s Plan for the Settlement of Jurisdictional Disputes in the Construction Industry.  The Board found that the relevant parties to the dispute were the Charging Party Employer JDC and both local unions, and that all parties had agreed to submit jurisdictional disputes to the Plan.  Charges filed by the Massachusetts Building-Wreckers and Environmental Remediation Specialists Association, Inc. and JDC Demolition Company, Inc.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Distler Corp., Sierra Masonry Corporation, Distler Construction Co., Inc. and Gulf State Construction Co. d/b/a Distler Construction Co., single employer)  (12-CA-135706; 363 NLRB No. 18)  Sanford and Lake Mary, FL, September 30, 2015. 

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint. Accordingly, the Board found that the Respondent violated Section 8(a)(1) by threatening employees with discharge because of their union membership and activities, and violated Section 8(a)(3) by discharging two employees because they joined the Union and engaged in concerted activities.  The Board further found that the Respondent violated Section 8(a)(5) by failing to continue in effect all of the terms and conditions of the collective-bargaining agreement related to wages, benefit fund contributions, dues deduction and remittance to the Union, and other benefits.  The Board ordered the Respondent to make the affected employees and the Union whole for its unlawful conduct and to rescind the unilateral changes in contractual terms and conditions of employment.  Charge filed by Bricklayers and Allied Craftworkers Local 8 – Southeast, International Union of Bricklayers and Allied Craftworkers, AFL-CIO.  Chairman Pearce and Members Miscimarra and McFerran participated.

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International Union of Operating Engineers, Local 18 (Nerone & Sons, Inc. and R.G. Smith Company, Inc.)  (08-CD-135243, et al.; 363 NLRB No. 19)  Warrensville Heights, OH, October 1, 2015.

In this jurisdictional dispute under Section 10(k) of the Act, the Board found that Laborers Local 310 and Operating Engineers Local 18 both claimed the work of forklift and skid steer at two of the Employer’s jobsites, that there is reasonable cause to believe that Section 8(b)(4)(D) had been violated by Laborers’ threat to picket and strike, and that there is 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 the Laborers based on the factors of employer preference and past practice, area and industry practice, and economy and efficiency of operations.  In its order, as it had in previous cases involving these parties, the Board ordered an area-wide award of the work of the type in dispute to the Laborers, extending to the area in which the jurisdictions of the Laborers and the Operating Engineers’ jurisdictions overlap. Charges filed by Nerone and Sons and R.G. Smith Company.  Chairman Pearce and Members Hirozawa and McFerran participated.

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J&J Snack Foods Handhelds Corp.  (19-CA-126632, et al.; 363 NLRB No. 21) Weston, OR, October 1, 2015.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by: (1) telling employees that the Union’s representative was no longer permitted on the Respondent’s premises; (2) denigrating and disparaging the Union; and (3) encouraging employees to abandon support for the Union and its representative.  The Board also affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) and (1) by: (1) ceasing its practice of providing employees with cooked food products in the cafeteria; (2) making a number of unilateral changes to the union representatives’ access to the facility; (3) failing and refusing to recognize the Union’s representative; and (4) banning the Union’s representative from the facility.

In the absence of exceptions, the Board affirmed the Administrative Law Judge’s findings that the Respondent violated: (1) Section 8(a)(1) by soliciting employee complaints and grievances, thereby promising increased benefits and improved terms and conditions of employment if they abandoned their support for the Union; and (2) Section 8(a)(5) by soliciting employees to indicate whether their contact information could be shared with the Union and to communicate shift preferences directly to the Respondent in a manner that implied that granting the shift preference depended on whether they indicated their contact information could be shared with the Union.  The Board ordered the reading of the Notice to Employees as a remedy.  Charges filed by Teamsters, Warehousemen, Garage Employees and Helpers, Local Union No. 839, affiliated with International Brotherhood of Teamsters.  Administrative Law Judge Eleanor Laws issued her decision on March 13, 2015.  Chairman Pearce and Members Hirozawa and McFerran participated.

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EF International Language Schools, Inc.  (20-CA-120999; 362 NLRB No. 20)  San Francisco, CA, October 1, 2015.

The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by threatening and discharging an employee because she engaged in protected concerted activities.  The Board also affirmed the judge’s finding that the use of videoconference technology for taking the testimony of a witness did not deny the Respondent due process.  Charge filed by an individual.  Administrative Law Judge Mary Miller Cracraft issued her decision on September 15, 2014.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Comprehensive Care of Oakland LP d/b/a Bay Area Healthcare Center  (32-RD-134177)  Oakland, CA, September 29, 2015.  The Board adopted the hearing officer’s finding that the Employer did not engage in objectionable conduct affecting the results of the decertification election held on February 18, 2015.   Union, SEIU, United Healthcare Workers-West,. The Board found that there was insufficient evidence to support the Union’s contention that the Employer promised unit employees a raise, or solicited employee grievances, as an inducement to vote against the Union.  The Board accordingly certified that a majority of the valid ballots had not been cast for the incumbent Union, Service Employees International Union-United Healthcare Workers-West (SEIU-UHW), and therefore that it is not the exclusive representative of the bargaining unit employees.  Petitioner—an individual.  Members Miscimarra, Hirozawa, and McFerran participated. 

Cargill, Inc.  (21-RC-136849)  Fullerton, CA, September 30, 2015.  The Board adopted the hearing officer’s recommendation to overrule the Employer’s objection alleging that certain loud conduct by prounion employees waiting in line to vote warrants a new election.  The Board found that the conduct of these voters has not “‘so substantially impaired the employees’ exercise of free choice as to require that the election be set aside.’”  Rheem Mfg. Co., 309 NLRB 459, 463 (1992) (quoting Southeastern Mills, 227 NLRB 57, 58 (1976)).  In the absence of exceptions, the Board adopted, pro-forma, the hearing officer’s recommendation to overrule the challenges to three ballots and the other Employer objections to the election.  Accordingly, the Board ordered the Regional Director to open and count the challenged ballots, and to issue a revised tally of ballots and the appropriate certification.  Petitioner—United Food & Commercial Workers Union, Local No. 324.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

Defender Industries, Inc.  (01-CA-149429)  Waterford, CT, September 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 revoking the subpoena.  Charge filed by International Brotherhood of Teamsters, Local 493.  Chairman Pearce and Members Miscimarra and McFerran participated.

International Union of Operating Engineers, Local 18, and its agent, PCS Builders, LLC  (08-CB-147620)  Cleveland, OH, September 28, 2015.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied 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 Charged Union failed to establish any other legal basis for revoking the subpoena. 

Member Miscimarra concurred in the result, stating that this matter presented a close question because the underlying dispute involves alleged discrimination on the basis of union membership by Charged Union Operating Engineers Local 18—against members of various Laborers’ locals—which allegedly occurred during the construction of Local 18’s new headquarters building.  Member Miscimarra stated that Local 18 asserted in its petition to revoke that in its capacity as a “private actor” or “market participant” (rather than as a labor organization), it was permitted to insist on a prohibition against having work performed on its headquarters building by members of certain non-IUOE Laborers’ locals, and as a private actor may conduct business in the free market without running afoul of the National Labor Relations Act.  Member Miscimarra stated that at this point, neither he nor the Board panel majority has passed on Local 18’s “private actor” argument,  but observed that Local 18’s argument was an attempt to raise a question about the potential lack of Board jurisdiction.  Member Miscimarra stated that he believes that enforcement of a Board subpoena may be inappropriate if the documents sought pertain to the merits of a dispute and not to the jurisdictional issue raised by the Charged Union, and pointed out that he dissented on this ground from the denial of a petition to revoke in G2 Secure Staff, LLC, Case 12-CA-111844 (March 25, 2015), where the respondent maintained it was covered by the Railway Labor Act, not the NLRA, and where a Regional Office of the Board had previously dismissed a charge against the respondent on this basis.  In that case, he would have granted the petition to revoke the subpoena, which clearly went to the merits of the underlying charge, but without prejudice to a subpoena limited to the question of Board jurisdiction.  Member Miscimarra agreed with the denial of the petition to revoke in the instant case because first, Local 18 is unquestionably a labor organization over which the Board generally has jurisdiction; and second, it is not clear whether the “private actor” argument raised by Local 18 really involves a question of Board jurisdiction or is a defense to the alleged violation; and third, regardless of the characterization of the “private actor” argument, resolution of this argument will require examination of the subpoenaed collective-bargaining agreements and project agreements.  Charge filed by Laborers Local Union No. 894.  Chairman Pearce and Members Miscimarra and Hirozawa participated. 

National Association of Special Police and Security Officers of America (NASPO)(Securiguard, Inc.)  (05-CB-138335)  Washington, DC, September 28, 2015.  Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party individual, and the General Counsel, and specifying the actions the Respondent must take to comply with the National Labor Relations Act.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Colorado Fire Sprinkler, Inc.  (27-CA-115977 and 27-CA-120823)  Pueblo, CO, September 29, 2015.  The Board granted an employee’s motion to file an amicus curiae brief.

Harry Asato Painting, Inc.  (20-CA-124382 and 20-CA-125157)  Honolulu, HI, September 30, 2015.  The Board denied the Respondent’s Motion for Reconsideration and Reopening of the Record, finding that the Respondent had failed to demonstrate “extraordinary circumstances,” as required by Section 102.48(d)(1) of the Board’s Rules and Regulations.  The Respondent asserted that the Board made a material error in assessing the remedy for the underlying Section 8(a)(5) and (1) contract repudiation violation found by the Board in its underlying decision reported at 362 NLRB No. 104, by failing to consider agreed-upon changes to the collective-bargaining agreement.  The Board rejected this argument on the grounds that such evidence did not exist at the time of the hearing.  Further, the Board found that the Respondent failed to demonstrate (1) that the new evidence would require a different result; and (2) that the Respondent brought the evidence to the Board’s attention promptly upon discovery.  Charges filed by the International Union of Painters and Allied Trades, Painters Local Union 1791.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Compass Group USA, Inc. d/b/a Chartwells Dining Services  (25-CA-134883, 25-CA-136328, and 25-RC-130359)  Anderson, IN, September 30, 2015.  No exceptions having been filed, the Board adopted the July 14, 2015 decision of Administrative Law Judge David I. Goldman finding that the Respondent had engaged in certain unfair labor practices, and ordered the Respondent and the Regional Director to take the action set forth in the judge’s recommended Order.  Charges and Petition filed by United Food and Commercial Workers, Local 700, AFL-CIO.

Mineral Resources, LLC  (20-RC-125608)  Oroville, CA, September 30, 2015.  No exceptions having been filed to the Administrative Law Judge’s overruling of the Employer’s objections to a mail-ballot election held May 27 to June 11, 2014, the Board adopted the Administrative Law Judge’s findings and recommendations, and remanded the case to the Regional Director for the purpose of issuing a certification of representative.  Petitioner—Operating Engineers Local Union 2, International union of Operating Engineers, AFL-CIO.

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Appellate Court Decisions  (Two of the following three decisions issued in a prior week, specifically, on September 18, 2015.)

Caterpillar, Inc., Board Case No. 30-CA-064314 (reported at 361 NLRB No. 77) (7th Cir. decided October 2, 2015)

In a published opinion, the court enforced the Board’s order issued against Caterpillar for violating Section 8(a)(5) and (1) of the Act by prohibiting a health and safety specialist of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, from accessing its South Milwaukee facility to investigate an industrial accident that killed a unit employee.

In September 2011, a crane operator at the facility was killed in the weld shop when a crawler frame unexpectedly pivoted and crushed him.  The employer reported the death to the local police department and OSHA, and officials immediately arrived to investigate the accident scene and observed the employer’s filming of a video reenactment.  The employer did not inform the union of the accident, nor did it invite the union to the reenactment.  The next day, the union’s safety specialist arrived at the facility to investigate the accident scene but was barred from entering the premises.  Multiple, repeated requests for entry over the coming months were continually denied by the employer, which steadfastly claimed that its property interest trumped the employees’ need to have the union’s safety specialist inspect the site to ensure their safety.  The employer asserted that the union could make do with photographs, video recordings, and various reports that were eventually produced in February 2012.  One month later, OSHA cited and fined the employer for contributing to the employee’s death by not providing a workplace free of crushing hazards.  The exact cause of the accident was never determined.

In October 2014, the Board (Members Miscimarra, Johnson, and Schiffer) found, in agreement with the administrative law judge, that the employer failed to establish that its property interest in its South Milwaukee facility overcame the employees’ right to responsible representation in light of the serious health and safety considerations after the fatal accident.  The Board thus found that the employer violated the Act by prohibiting the union’s safety inspector from accessing the facility to conduct an inspection of the site of the unit employee’s death.

On review, the court (Judges Posner, Manion, and Hamilton), in an opinion by Judge Posner, took the employer to task and rejected its argument that the Board’s order encroached on its right to control its operations and property.  The court explained that “[t]he union’s duty to attend to the safety of the employees whom it represents entitles it to insist on performing its own investigation of safety issues, rather than relying entirely on data given it by the [employer].”  In contrast, the court stated, the “cost to the [employer] would be negligible,” and noted that “[a]t oral argument [the employer]’s lawyer admitted that allowing [the union’s inspector] to conduct an on-site investigation, which would last only a few hours and would not interfere with the factory’s production, would cause ‘no actual harm’ to the [employer].”  The court found that the employer had not satisfied its legal obligations by providing video reenactments, noting that “one has only to view the videos, as we have done, to realize the shallowness of the argument,” and “[t]o say that they depict a reenactment of the accident is absurd.”  The court also found the employer’s attempt to invoke Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), “a manifestly inapt reference.”  In conclusion, the court stated that the challenge to the Board’s order had no merit because “it is apparent that the materials shown [to the union inspector] were not an adequate substitute for an on-site investigation, and it is admitted that the investigation would have imposed trivial costs on the [employer].”  In a concurring opinion, Judge Manion wrote to clarify that “[t]he balance weighed is between the parties’ respective rights, not the harms or burdens.”

The court’s opinion is here.

UC Health, Board Case No. 09-CA-110508 (reported at 360 NLRB No. 71) (D.C. Circuit decided September 18, 2015)

The D.C. Circuit, in a detailed published opinion with one judge dissenting, held that the Board’s Regional Director had the authority to conduct the April 2013 representation election at issue in this test-of-certification case and to certify its results despite the Board’s then lack of quorum.  Accordingly, the court enforced the bargaining order issued against this operator of a Cincinnati, Ohio hospital for refusing to bargain with UC Health Public Safety Union as the certified representative of a unit of security officers.

The court’s opinion is here.

SSC Mystic Operating Company, LLC, Board Case No. 01-CA-120161 (reported at 360 NLRB No. 68) (D.C. Circuit decided September 18, 2015)

In a published opinion, the court upheld the Board’s order requiring this nursing home operator to bargain with SEIU Local 1099 as the representative of a unit of nurses.  Relying on UC Health v. NLRB (summarized immediately above) the court, with one judge dissenting, held that the Board’s Regional Director had the authority to conduct the April 2013 representation election despite the Board’s then lack of quorum.  The court went on to uphold the Board’s overruling of the employer’s election objections, which had alleged that the pro-union conduct of a supervisor tainted the election.  In upholding the Board’s determination, the court reviewed the Board’s application of its test in Harborside Healthcare, Inc., 343 NLRB 906 (2004), for determining whether supervisory, pro-union conduct materially affects the results of an election, and concluded that the Board’s findings were supported by substantial evidence.  Specifically, the court recognized that it was undisputed that the supervisor engaged in pro-union conduct, but that “the Board reasonably determined that [her] efforts did not materially affect the election’s outcome because [the employer] adequately made up for them by disavowing [her] conduct and by running its own anti-union campaign.”  That mitigating evidence included requiring employees to attend anti-union meetings, sending materials to their homes, posting materials in the workplace, and distributing anti-union bracelets for employees to wear at work to show their opposition to the union, as well as posting a public notice disavowing supervisory pro-union behavior that was discussed at mandatory employee meetings, and ultimately discharging the supervisor.  The court held that the Board reasonably concluded that the combination of tactics deployed in its extensive effort to defeat the union “cancelled out [the supervisor]’s own attempt to help the [u]nion prevail.”  The court also upheld the hearing officer’s ruling not to enforce the employer’s subpoena of union records, holding that the employer was not prejudiced because the records “simply could not have changed the outcome” of the election, and that the employer could not “complain that it was prejudiced when it failed to call the only witness whose testimony might have made the records relevant.”  Accordingly, the court found no abuse of discretion.

The court’s opinion is here.

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Administrative Law Judge Decisions

Paragon Systems, Inc.  (05-CA-127523; JD-59-15)  Washington, DC.  Administrative Law Judge Eric M. Fine issued his decision on September 30, 2015.  Charge filed by National Association of Special police and Security Officers.

Colonial Parking  (05-CA-141241; JD-57-15)  Washington, DC.  Administrative Law Judge Michael A. Rosas issued his decision on September 30, 2015.  Charge filed by Unite Here Local 23.

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