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Cases & Decisions

Summary of NLRB Decisions for Week of June 13 - 17, 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 Public Affairs at Publicinfo@nlrb.gov or 202‑273‑1991.

Summarized Board Decisions

Long Island Association for AIDS Care, Inc.  (29-CA-149012; 364 NLRB No. 28)  Hauppauge, NY, June 14, 2016.

A unanimous panel of the Board affirmed the administrative law judge’s finding that the Employer violated the Act by promulgating and maintaining a confidentiality statement that prohibited employees from disclosing “salaries, contents of employment contracts, [and] . . . staff addresses and phone numbers” and from engaging in the “personal use of such information,” and that also prohibited employees from disclosing to “any media source” information “regarding [employees’] employment at [the Employer], the workings and conditions of [the Employer], or any . . . staff member.”

The Board also found that the Employer violated the Act by threatening to discharge and then discharging an employee for refusing to agree to the unlawful confidentiality statement.  The Board ordered the Employer to reinstate the employee and make him whole for any loss of earnings and other benefits resulting from his discharge.

Member Miscimarra concurred in the finding of violation, but would not apply the test applicable to facially neutral work requirements that the Board adopted in Lutheran Heritage Village-Livonia, 343 NLRB 646, 466 (2004), but instead the balancing test that he described in William Beaumont Hospital, 363 NLRB No. 162, slip op. at 9 (2016).

Charge filed by an individual.  Administrative Law Judge Kenneth W. Chu issued his decision on August 26, 2015.  Members Miscimarra, Hirozawa, and McFerran participated.

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Ace Heating and Air Conditioning Company, Inc.  (08-CA-133965, 08-CA-133967, 08-CA-133968 and 08-RC-127213; 364 NLRB No. 22)  Cleveland, OH, June 15, 2016.

A Board panel majority consisting of Chairman Pearce and Member McFerran adopted the judge’s decision to dismiss all of the complaint allegations, except for the allegation that the Respondent unlawfully threatened employees with business closure.  As to that allegation, the majority reversed the judge’s dismissal and found that the Respondent violated Section 8(a)(1) because a statutory supervisor told employees that the Respondent’s owner had directed him to inform them that the Respondent would close if they voted for the Union.  The majority found that the Respondent was liable for the supervisor’s statement based either on the supervisor’s status as a statutory supervisor under Section 2(11) of the Act or on his apparent authority to speak for the Respondent on matters relating to the Union.  In adopting the judge’s dismissal of the allegation that the Respondent engaged in unlawful conduct by telling employees it would pay them to vote against the Union, the majority relied on clear evidence that the alleged offer to pay employees was phrased in a humorous tone as a joke, was immediately dismissed by the employee who heard it as an obvious joke, and thus was not reasonably likely to be taken seriously and would not tend to coerce or influence an employee.  In adopting the judge’s dismissal of the allegation that the Respondent told two employees it was not changing employees’ compensation or giving raises until the issue of union representation was resolved, the majority relied on its findings that the Respondent adequately conveyed its purpose in keeping wages unchanged was to avoid the appearance of attempting to interfere with the election proceeding.  The majority further explained that the Respondent did not condition future raises on a lack of union representation and did not seek to capitalize on the postponed raises as a way to retaliate against employees or denigrate the Union; thus, the majority concluded that nothing the Respondent said would make it reasonable for employees to think that raises would not be given if the Board certified the Union or if employees continued to support its organizational efforts.

Because the Respondent’s threat of business closure was unlawful and was disseminated to half the eligible voters 1 week prior to the election, the majority set aside the election and directed a second election.  However, the majority declined the General Counsel’s request for a Gissel bargaining order, explaining that although the Respondent’s threat of closure is a serious violation, under the circumstances, the Board’s standard remedies will suffice to ensure that the Respondent will not engage in similar unlawful conduct in the future.

Member Miscimarra, dissenting in part, would have upheld the judge’s dismissal of the complaint in its entirety, including the judge’s determination that the results of the election should stand.  While agreeing that typically any statement made by an employer’s statutory supervisor is treated as a statement made by the employer itself, Member Miscimarra would find, based primarily on evidence that the Respondent’s supervisor supported and advocated for the Union in the presence of employees, that under the circumstances employees would not reasonably view the supervisor as speaking for management when he claimed to be relaying a closure threat from the Respondent’s owner.

Charges and petition filed by Sheet Metal Workers International Association, Local Union No. 33, AFL–CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on January 15, 2015. Chairman Pearce and Members Miscimarra and McFerran participated.

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United States Postal Service  (05-CA-119507; 364 NLRB No. 27)  Washington, DC, June 15, 2016.

The Board unanimously adopted the judge’s finding that the Respondent violated Section 8(a)(5) by failing to provide or unreasonably delaying in providing the Union with requested information related to the Respondent’s subcontract of unit work to Staples.  The Board majority (Chairman Pearce and Member Hirozawa) ordered immediate, unredacted production of all outstanding information because the Respondent failed to timely raise a confidentiality defense.  Member Miscimarra dissented and would have adopted the judge’s recommended remedy of immediate production subject to certain redactions, along with ordering the Respondent to bargain with the Union over a nondisclosure agreement, then provide the Union with the unredacted information.  A different Board majority (Members Miscimarra and Hirozawa) adopted the judge’s recommended narrow cease-and-desist order; Chairman Pearce would have issued a broad cease-and-desist order due to the Respondent’s proclivity to violate the Act by failing to properly respond to information requests.

Charges filed by the American Postal Workers Union, AFL-CIO.  Administrative Law Judge Eric M. Fine issued his decision on August 13, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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California Commerce Club, Inc.  (21-CA-149699; 364 NLRB No. 31)  Commerce, CA, June 16, 2016.

Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an Arbitration Agreement and Mandatory Dispute Resolution Process that requires employees, as a condition of employment and continued employment to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. In addition, the majority found that the Respondent independently violated Section 8(a)(1) by requiring employees to keep arbitration proceedings confidential and prohibiting disclosure of any “evidence or award/decision beyond the arbitration proceeding.”

Concurring in part and dissenting in part, Member Miscimarra agreed with his colleague’s finding that the Arbitration Agreement interfered with protected concerted activity in violation of Section 8(a)(1) based on its requirement that “the arbitration shall be conducted on a confidential basis and there shall be no disclosure of evidence or award/decision beyond the arbitration proceeding.” Relying on his partial dissent in Murphy Oil, Member Miscimarra dissented from the majority’s finding that the arbitration policy otherwise violated Section 8(a)(1).  Member Miscimarra would find that agreements between employers and employees that waive class and collective actions regarding non-NLRA employment claims are lawful, and that enforcement of class-action waivers as part of arbitration agreements is warranted by the FAA.

Charge filed by an individual. Administrative Law Judge Administrative Law Amita Baman Tracy issued her decision on January 6, 2016.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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SJK, Inc. d/b/a Fremont Ford  (32-CA-151443; 364 NLRB No. 29)  Newark, CA, June 16, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran granted the General Counsel’s motion for summary judgment, finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive their right to maintain class or collective actions in all forums, whether arbitral or judicial.

For the reasons explained in his partial dissenting opinion in Murphy Oil USA, Inc., Member Miscimarra would find that the arbitration agreement’s class-action waiver is lawful.  In his view, the NLRA creates no substantive right for employees to engage in class treatment of non-NLRA claims, a waiver of non-NLRA claims does not infringe on any NLRA rights or obligations, and enforcement of non-NLRA class action waivers is warranted by the Federal Arbitration Act.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued

C Cases

The Permanente Medical Group  (32-CA-149245)  Oakland, CA, June 15, 2016.  No exceptions having been filed to the May 2, 2016 decision of Administrative Law Judge Amita Baman Tracy’s 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 National Union of Healthcare Workers, California Nurses Association, AFL-CIO.

Bailey Electric Inc., and CB Electric LLC, alter egos  (19-CA-146474)  Yakima, WA, June 15, 2016.  The Board corrected its Order of June 6, 2016 to find that Bailey Electric Inc. is the sole Respondent that must take the action set forth in the April 22, 2016 decision and recommended order of Administrative Law Judge Christine E. Dibble, absent exceptions.  Charge filed by International Brotherhood of Electrical Workers, Local Union 112, AFL-CIO-CLC.

International Longshoremen’s Association, Local 1838 (Marine Terminals Corp. East d/b/a Ports America and SSA Cooper, LLC)  (10-CB-145609 and 10-CB-148396)  Wilmington, NC, June 16, 2016.  No exceptions having been filed to the May 4, 2016 decision of Administrative Law Judge Paul Bogas; 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.

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Appellate Court Decisions

Gaylord Chemical Co., LLC, Board Case No. 10-CA-038782 (reported at 361 NLRB No. 67) (11th Cir. decided June 3, 2016)

In a published opinion, the court enforced the Board’s order issued against this chemical manufacturer for violating Section 8(a)(5) and (1) for its refusal to bargain with United Steelworkers International Union, and its Local 887, after relocating its plant from Bogalusa, Louisiana, to Tuscaloosa, Alabama, in February 2009.

On a stipulated record, the Board (Chairman Pearce and Members Hirozawa and Johnson) found, in agreement with the administrative law judge, that the employer’s refusal to bargain was unlawful because a majority (12 of 18) of the Bogalusa employees had relocated to Tuscaloosa, where they performed substantially similar work, and where the employer operated the Tuscaloosa facility in basically unchanged form.  The stipulated facts also confirmed that the employer’s collective-bargaining relationship, by contract and bargaining history, was with the International and Local 887, and not only with Local 887.  The Board found that the employer further violated its duty to bargain by refusing to provide the union with requested information and by unilaterally creating a lead shipper position.  Finally, the Board found the employer had unlawfully interrogated an employee about his union views.

Before the court, the employer challenged only its duty to bargain after the relocation and the interrogation finding.  On both issues, the court fully agreed with the Board’s reasoning and conclusions and, accordingly, enforced the Board’s order in full.

The court’s opinion is here.

Flamingo Las Vegas Operating Company, LLC, Board Case No. 28-CA-069588 (reported at 361 NLRB No. 130) (D.C. Cir. decided June 10, 2016)

In an unpublished judgment, the court enforced in part the Board’s order that issued against this operator of a hotel and casino in Las Vegas, Nevada, for violations of Section 8(a)(1) committed during a campaign by the International Union, Security, Police and Fire Professionals of America to organize its security officers.

The Board (Chairman Pearce and Members Hirozawa and Johnson) found that, in the months leading up to the election scheduled in early 2012, the employer repeatedly threatened and interrogated employees, solicited grievances, promised employees improved terms and conditions of employment if they declined to choose union representation, and created an impression of surveillance when it distributed two flyers opposing unionization. Regarding the first flyer, the Board found that because it was distributed during the first weeks of the campaign and contained the image of a blank union authorization card and warned employees not to sign the card, that it gave the impression that the employer was aware of and watching the card authorization process. The second flyer, the Board found, had a similar effect because it contained a thinly veiled reference to the name of the key organizer and thereby served to alert employees that the employer knew of his union activities and targeted him for public ridicule because of those activities.

On review, the court upheld the bulk of the Board’s unfair labor practices, but concluded that substantial evidence did not support the Board’s findings that the employer’s distribution of the flyers created an impression of surveillance. Regarding the first flyer, the court concluded that “[n] o reasonable employee would assume, by the simple reproduction of a union authorization card during an open campaign for unionization, that the employer surveilled union activities.” Regarding the second flyer, the court held that no employee would reasonably assume that the employer was monitoring union organizing activities simply because the flyer contained “an artless pun on an employee’s name without suggesting adverse consequences.”

The court’s judgment may be found here.

PJ Cheese, Inc., Board Case No. 10-CA-113862 (reported at 362 NLRB No. 177) (5th Cir. decided June 16, 2016)

In an unpublished per curiam order, the court granted the employer’s motion for summary reversal of the Board’s decision that found that the employer violated Section 8(a)(1) by maintaining a mandatory arbitration policy that requires its employees, as a condition of employment, to submit their employment-related claims for resolution by individual arbitration, thereby compelling them to waive their Section 7 right to pursue such claims through class or collective action in all forums, arbitral and judicial.  The order issued one month after the Fifth Circuit denied the Board’s petition for rehearing en banc in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), in which the court held it was bound by its prior decision in D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), denying enforcement in relevant part 357 NLRB No. 184 (Jan. 3, 2012), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014).

The Court’s June 16, 2016 order may be found here.

Macy's, Inc., Board Case No. 01-CA-137863 (reported at 361 NLRB No. 163) (5th Cir. decided June 2, 2016)

In a published opinion issued in this test-of-certification case, the court upheld the Board’s standard for determining whether a proposed bargaining unit is an appropriate unit as clarified in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enforced sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).  With this decision, four circuits have now upheld the standard.  See Macy’s, Inc. v. NLRB, __ F.3d __, 2016 WL 3124847, at *6-9 (5th Cir. June 2, 2016); Nestle Dreyer’s Ice Cream Co. v. NLRB, __ F.3d __, 2016 WL 1638039, at *5-11 (4th Cir. Apr. 26, 2016); FedEx Freight, Inc. v. NLRB, 816 F.3d 515, 522-27 (8th Cir.), reh’g & reh’g en banc denied (May 26, 2016); Kindred Nursing Ctrs. East, LLC v. NLRB, 727 F.3d 552, 559-65 (6th Cir. 2013).

In the underlying representation case, United Food and Commercial Workers Union, Local 1445, petitioned to represent a unit of 41 cosmetics and fragrances department employees at a Macy’s store in Saugus, Massachusetts.  The employer argued that the unit, to be appropriate, must include a wall-to-wall unit of all 120 Saugus store employees or, alternatively, additionally include the 30 other selling employees at the store.  The Regional Director found, and the Board (Chairman Pearce and Members Hirozawa and Schiffer; Member Miscimarra, dissenting) affirmed in its denial of review, that the petitioned-for unit was an appropriate unit and that the employer had not met its burden of showing that the excluded employees share an “overwhelming community of interest” with the employees in the petitioned-for unit, such that there is no legitimate basis upon which to exclude them.  Thereafter, an election was held in which the cosmetics and fragrances department employees voted for union representation.  In August 2014, the Board certified the union.

Before the court, the employer raised a variety of challenges to the Board’s Specialty Healthcare standard, many of which have now been repeatedly rejected by the courts.  Those rejected arguments include contentions that the overwhelming-community-of-interest test improperly affords controlling weight to the extent of union organization in violation of Section 9(c)(5) of the NLRA, that the test departs from established Board precedent, and that the Board violated the Administrative Procedure Act by promulgating the standard through adjudication rather than rulemaking.  In sum, the court held that the Board “reasonably concluded that the unit of cosmetics and fragrances employees at the Saugus store was appropriate, and that the employer failed to establish that the unit is clearly not appropriate and has failed to demonstrate that the Board abused its discretion by articulating and applying the overwhelming community of interest test.”

The court’s opinion is here.

Cellular Sales of Missouri, LLC, Board Case No. 14-CA-094714 (reported at 362 NLRB No. 27) (8th Cir. decided June 2, 2016)

In a published opinion, the court denied in part and granted in part the Board’s application of enforcement.  In rejecting the Board’s finding that the employer violated Section 8(a)(1) by maintaining a mandatory arbitration policy that requires its employees, as a condition of employment, to submit their employment-related claims for resolution by individual arbitration, the court cited the Fifth Circuit’s holdings in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), and D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), denying enforcement in relevant part 357 NLRB No. 184 (Jan. 3, 2012), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014), and stated that it was bound by the similar in-circuit precedent of Owen v. Bristol Care, Inc., 702 F.3d 1050, 1054 (8th Cir. 2013).  In briefing to the court, the Board had recognized that binding precedent and thus had filed a motion for initial hearing en banc requesting that Owen be reconsidered, which was denied.

However, the court upheld the Board’s finding that the employer violated Section 8(a)(1) by maintaining in its arbitration agreement an overly broad requirement that employees would reasonably read as limiting their right to file unfair-labor-practice charges with the Board.  The court rejected the employer’s defense that the charge in this case was untimely under Section 10(b) of the Act, holding instead that “the maintenance of an unlawful rule is a continuing violation, regardless of when the rule was first promulgated.”  The court also rejected the employer’s claim that a former employee is not an “employee” under Section 2(3) of the Act.

The court‘s opinion is here.

Aggregate Industries, Board Case No. 28-CA-023220 (reported at 361 NLRB No. 80) (D.C. Cir. decided June 10, 2016)

In a published opinion, the court enforced in part the Board’s order that issued against this Las Vegas, Nevada employer that quarries crushed stone, rock, sand, and gravel, and hauls it to construction sites.  In brief, the court disagreed with the Board on issues related to changes in the scope of a bargaining unit and the transfer of work for some of its construction drivers, but upheld the Board’s finding that it violated Section 8(a)(5) and (1) by dealing directly with its sweeper truck drivers and by unilaterally changing and assigning them work.

The Teamsters, Chauffeurs, Warehousemen and Helpers, Local 631, represents two discrete bargaining units of drivers—a construction unit and a ready-mix unit—governed by separate labor agreements.  In 2011, the employer announced, and later implemented, a plan to move about 60 construction-unit drivers to the ready-mix unit who received reduced wages and benefits after the move.  The employer also reassigned the work of certain sweeper truck drivers, and in doing so changed their affiliation from the Teamsters to the Laborers International Union of North America, Local 872, without notice to the union.  On those facts, the Board (Chairman Pearce and Members Hirozawa and Schiffer) found that the employer violated Section 8(a)(5) and (1) by unilaterally changing the scope of the construction unit, transferring unit work, making unilateral changes, dealing directly with its sweeper truck drivers, and unilaterally changing and reassigning their work.

On review, the court stated that “when a bargaining unit is defined in terms of the work it performs . . . , a work transfer changes the scope of the unit by definition, and the same facts can be put in either category with equal plausibility,” but that “when the bargaining unit is not defined in terms of the work the employees perform, . . . transferring work out of the unit does not necessarily change the unit’s scope.”  The latter, the court held, “is what we have here.”  The court further explained that both labor contracts defined the bargaining units by job classifications, and that because a work transfer is a mandatory subject of bargaining, the union was obligated to bargain over the employer’s proposal and waived its bargaining rights by not doing so.  The court also disagreed with the Board’s finding that the proposal had been announced as a fait accompli, noting its view that there had been sufficient time to bargain.  “[D]oubt[]ing] that unions are so easily cowed,” the court found the proposal was the announcement of a bargaining position, rather than a “pronouncement of a final and unqualified decision.”  Finally, the court enforced those portions of the Board’s order remedying the violations related to the sweeper truck drivers.

The court’s opinion is here.

United Food & Commercial Workers International Union, Local 700, Board Case No. 25-CB-008896 (reported at 361 NLRB No. 39) (D.C. Cir. decided under the name Sands v. NLRB, June 17, 2016)

In a published opinion, the court dismissed as moot the petition filed by charging party Laura Sands for review of the Board’s order that dismissed an unfair-labor-practice complaint against the union, and on the basis of mootness also vacated the Board’s decision and order.

The General Counsel issued a complaint against the union alleging a violation of Section 8(b)(1)(A) on the basis of a notice that the union had provided Sands, a new employee of Kroger grocery stores, stating her rights and obligations under a union-security clause.  That statement included the right to refrain from joining the union and, if she chose to remain a nonmember, the right to refuse to pay for any activities unrelated to the union’s fulfillment of its collective-bargaining obligations.  Specifically, the notice was alleged to be unlawful because it did not “advise Sands of the percentage reduction in dues” that she would receive if she objected to paying for activities non-germane to collective bargaining.  The administrative law judge determined that he was bound, under extant Board law, to dismiss the complaint, and the Board agreed.  Sands then filed a petition for review with the D.C. Circuit.

After briefing and argument, the court vacated the Board’s decision without reaching the merits.  Because Sands no longer worked for Kroger the union had already refunded her union dues, plus interest, the court held her petition for review moot, and vacated the Board’s decision and order.

The court’s opinion is here.

Boch Imports, Inc. d/b/a Boch Honda, Board Case No. 01-CA-083551 (reported at 362 NLRB No. 83) (1st Cir. decided June 17, 2016)

In a published opinion, the court enforced the Board’s order that issued against this car dealership in Norwood, Massachusetts.

In April 2015, the Board (Chairman Pearce and Member Hirozawa; Member Johnson, dissenting in part) found that the employer violated Section 8(a)(1) by maintaining a number of unlawful rules in its 2010 employee handbook that employees would reasonably read to restrict their Section 7 rights.  The rules covered a range of subjects, including confidential and proprietary information, discourtesy, employee inquiries, solicitation and distribution, the use of social media, and a dress code that “prohibited public-facing employees from wearing ‘message clothing’ and insignias.”  In 2013, the employer, in consultation with the Regional Office, had revised the objectionable provisions to the satisfaction of the Regional Office, except for the dress code.  The Board found that the employer, by issuing the revised rules in the 2013 handbook, had failed to repudiate those Section 8(a)(1) violations, and also had not provided the employees with notice that the 2010 handbook rules were unlawful.  Finally, the Board found that the employer violated Section 8(a)(1) by maintaining overly broad dress codes in both the 2010 and 2013 Handbooks.

Before the court (Circuit Judges Barron and Stahl, and District Judge Sorokin), the employer did not contest that the 2010 handbook rules were unlawful.  Rather, it challenged the Board’s finding that it had failed to repudiate the unlawful rules, arguing that the Board’s finding is contrary to assurances of fair treatment provided in the 2013 handbook, is inconsistent with Board precedent, and cannot be squared with the Board’s policy in favor of remedying unfair labor practices through cooperative means.  The court disagreed.  The court noted that the assurances in the 2013 handbook “do not speak specifically to the Section 7 rights” that were infringed, and the cases cited by the employer were not inconsistent with the Board’s finding.  Regarding its policy argument, the court noted that the employer “clearly did not reach an agreement with the Board that encompassed whether [it] had repudiated the 2010 [rules],” and thus its contention that it had fully cooperated with the Board was unfounded.

Regarding the dress codes, the employer contested only the 2013 ban, which stated: “Employees who have contact with the public may not wear pins, insignias, or other message clothing.”  The employer argued that it reasonably believed that the 2013 ban would further its interest in promoting its public image, and further contended that its interests in promoting workplace safety and preventing damages to vehicles (into which the pins might drop) justified its outright ban.  The court majority (Circuit Judge Barron and District Judge Sorokin) disagreed, finding in both instances that the employer failed to prove special circumstances that would justify the scope of the bans, and upheld the Board’s findings that they were overly broad.  Dissenting, Circuit Judge Stahl wrote to express his view that the employer had demonstrated special circumstances warranting the 2013 dress code ban.

The court’s opinion is here.

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Administrative Law Judge Decisions

Mid-Atlantic Restaurant Group LLC d/b/a Kelly’s Taproom  (04-CA-162385; JD-50-16)  Bryn Mawr, PA.  Administrative Law Judge Mark Carissimi issued his decision on June 13, 2016.  Charge filed by an individual.

Time Warner Cable New York City, LLC  (02-CA-126860; JD-51-16)  New York, NY.  Administrative Law Judge Michael A. Rosas issued his decision on June 14, 2016.  Charge filed by Local Union No. 3 International Brotherhood of Electrical Workers, AFL-CIO.

Rim Hospitality  (21-CA-137250; JD(SF)-27-16)  Los Angeles, CA.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on June 15, 2016.  Charge filed by an individual.

Oberthur Technologies of America Corporation  (04-CA-128098, 04-CA-132055, 04-CA-134781 and 04-CA-158860; JD-53-16)  Exton, PA.  Administrative Law Judge Arthur J. Amchan issued his decision on June 16, 2016.  Charges filed by Local 14M, District Council 9, Graphic Communications Conference/International Brotherhood of Teamsters.

Hospital Santa Rosa, Inc., a/k/a Clinica Santa Rosa  (12-CA-143221; JD(NY)-23-16)  San Juan, PR.  Administrative Law Judge Kenneth W. Chu issued his decision on June 16, 2016.  Charge filed by Unidad Laboral de Enfermeras(OS) y Empleados de la Salud.

U.S. Foods, Inc.  (27-CA-158614; JD(SF)-28-16)  Boise, ID.  Administrative Law Judge Amita Baman Tracy issued her decision on June 17, 2016.  Charge filed by International Brotherhood of Teamsters, Local 483.

The Scherzinger Corporation  (09-CA-165460; JD-52-16)  Cincinnati, OH.  Administrative Law Judge Paul Bogas issued his decision on June 17, 2016.  Charge filed by an individual.

Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew (20-CA-154749, 20-CA-157769, 20-CA-160516 and 20-CA-160517; JD(SF)-24-16) Honolulu, HI.  Errata to Administrative Law Judge Mara-Louise Anzalone May 31, 2016 decision.  Errata   Amended Decision.

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