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Cases and Decisions

Cases and Decisions

Summary of NLRB Decisions for Week of October 16 - 20, 2017

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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

No Published Decisions Issued

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued

C Cases

Local 560, International Brotherhood of Teamsters (County Concrete Corporation)  (22-CC-083895 and 22-CE-084893)  Union City, NJ, October 17, 2017.  The General Counsel filed a renewed Motion for Default Judgment pursuant to the terms of an informal settlement agreement and the Board’s instructions in Teamsters Local 560 (County Concrete Corp.), 362 NLRB No. 183 (2015) (denying, without prejudice, the General Counsel’s motion to strike portions of the Respondent’s answer, for summary default judgment, and for the issuance of a Board decision and order, and permitting the General Counsel to file a renewed motion).  In its Order, the Board denied the General Counsel’s renewed Motion for Default Judgment and remanded the proceeding to the Regional Director for appropriate action consistent with the Board’s Order.  In reaching this determination, the Board stated that the General Counsel provided a sufficient explanation of how the violations in Teamsters Local 560 (County Concrete Corp.), 362 NLRB No. 183 (2015) breached the terms of the Performance provision in the settlement agreement.  However, the Board further explained, it was compelled to deny the renewed Motion for Default Judgment because the complaint fails to allege violations of Section 8(e), 8(b)(4)(ii)(A), and 8(b)(4)(ii)(B).  Charges filed by County Concrete Corporation.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

Quality Health Services of Puerto Rico, Inc., Board Case No. 24-CA-011782 (reported at 363 NLRB No. 164) (1st Cir. decided October 16, 2017)

In a published opinion, the Court enforced the Board’s order issued against this hospital located in Ponce, Puerto Rico, that employs 300 employees, most of whom are represented by Unidad Laboral de Enfermeras(os) y Empleados de la Salud.  In doing so, the Court held that the Employer had forfeited its belated challenge to the designation of Lafe Solomon as Acting General Counsel under the Federal Vacancies Reform Act of 1998, 5 U.S.C. § 3345, et seq., by not raising it before the Board.

The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that the hospital violated Section 8(a)(1)  by promulgating, maintaining, and enforcing a work rule prohibiting employees from discussing the hospital’s plans to subcontract work performed by its union-represented, respiratory therapy technicians.  Further, the Board found that the hospital violated Section 8(a)(5) and (1) by unilaterally putting its subcontracting plans into action when it entered into a subcontract with an outside vendor to perform the technicians’ work and discharged the technicians.  On the duty to bargain over the subcontracting, the Board rejected, on the evidence provided, the hospital’s defense that its actions were lawful because it had previously and consistently relied on subcontracting as part of its traditional business operations.

Before the Court, the hospital raised, for the first time, a challenge to the designation of Acting General Counsel Solomon and claiming that the complaint in this case that issued under his tenure was invalid.  Citing the jurisdictional bar of Section 10(e), the Court held the issue was forfeited because the hospital had not raised it before the Board, and the Court rejected the hospital’s various claims that the "extraordinary circumstances" exception to Section 10(e)’s bar should be applied to permit the Court to decide the issue.  Specifically, the Court rejected the hospital’s arguments that "extraordinary circumstances" were presented because the question was a purely legal issue of statutory interpretation; the Board, it claimed, knew or should have known that Solomon was acting without statutory authority; and the issue was of great importance.

The Court therefore reached the merits of the case, and upheld the Board’s unfair-labor-practice findings.  The Court held that the hospital had not provided the Union with adequate notice and an opportunity to bargain over its subcontracting decision, and that the hospital failed to show that its decision to subcontract was exempt from liability under the safe harbor exceptions for traditional business operations and established past practices.  The Court further held that substantial evidence supported the Board’s finding the hospital’s discharge of its respiratory therapy technicians was unlawful because the hospital had not reached a genuine impasse in its negotiations with the Union.  The Court rejected the hospital’s defensive assertions that its duty to bargain to impasse was excused by either economic exigencies or delay tactics by the Union.  Finally, the Court summarily enforced the uncontested Section 8(a)(1) findings.

The Court’s opinion is here.

Babcock & Wilcox Construction Co. Inc., Board Case No. 28-CA-022625 (reported at 362 NLRB No. 36) (9th Cir. decided October 17, 2017 under the name Beneli v. NLRB)

In a published opinion that issued, the Court denied the petition for review filed by Charging Party Coletta Kim Beneli that challenged the Board’s determination to apply its newly-adopted deferral standard prospectively only, rather than retroactively to the instant case.

In 2009, Beneli was hired as a forklift and crane operator for the Employer, a construction contractor providing construction and maintenance services for Arizona Public Service at the Cholla Power Generating Station in Joseph City, Arizona.  The Employer holds, among others, a collective-bargaining agreement with the International Union of Operating Engineers.  Shortly after hire, Beneli became the Union’s job steward, and after two heated exchanges with managers about unit issues in which she used salty language, she was suspended and discharged.  The Union filed a grievance, which proceeded to arbitration before a grievance-review subcommittee.  After a hearing, the subcommittee issued a letter decision stating that it had considered whether Beneli had been discharged for “just cause” for her use of profanity, and that it had “reviewed all the information submitted both written and oral” and determined that “no violation of the [collective-bargaining agreement] occurred.”  Thereafter, Beneli filed a charge with the Board.

In the underlying unfair-labor-practice proceeding, the Administrative Law Judge recommended deferring to the subcommittee’s decision and dismissing the complaint under the arbitral deferral standard set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984) (“Spielberg/Olin”).  Under that standard, the Board defers to arbitral decisions when: (1) all parties agree to be bound by the decision; (2) the proceedings appear to be fair and regular; (3) the arbitrator adequately considers the unfair labor practice issue, which requires the unfair labor practice issue and the contractual issue to be “factually parallel” and the arbitrator to have been “presented generally” with the relevant facts; and (4) the arbitration award is not clearly repugnant to the Act.  Spielberg, 112 NLRB at 1082; Olin, 268 NLRB at 574.  In explaining his finding that the subcommittee’s decision was not clearly repugnant to the Act, the judge stated, in part, that although he credited Beneli’s and a Union representative’s version of events in their testimony at hearing, the subcommittee could have credited the Employer’s witnesses and reached a different conclusion.

On review before the full Board (then-Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and Schiffer), in agreement with the judge, deferred to the subcommittee’s decision and dismissed the complaint.  The Board noted that the General Counsel conceded that the first three factors of Spielberg/Olin were satisfied, and agreed with the judge that the subcommittee’s decision was not repugnant to the Act.  In doing so, the Board found that the subcommittee’s decision—despite its brevity—was “arguably consistent” with a finding that the subcommittee had considered and rejected the Union’s contention that Beneli was discharged for her steward activity.  Thus, the Board concluded that because the subcommittee’s decision was “susceptible to an interpretation consistent with the Act,” it was not repugnant under Spielberg/Olin.

Notwithstanding its application of the Spielberg/Olin deferral standard to the instant case, the Board (with then-Member Miscimarra and Member Johnson, dissenting) modified that standard in favor of a new standard to be applied prospectively.  Under the new standard, the Board will defer to an arbitral decision if the party urging deferral shows that:  (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue—requiring the arbitrator to identify the issue and generally explain why he or she finds that the facts presented either do or do not support the unfair labor practice allegation—or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permits the award.  The Board emphasized that, in adopting the modified standard, it did not suggest that the Spielberg/Olin standard constituted an impermissible construction of the Act, but simply concluded that the modified standard would more effectively protect employee’s rights under the Act.

The Board explained its decision to apply the new standard prospectively only, acknowledging that although applying the new standard retroactively would “hasten the day when arbitral decisions more surely protect employees’ statutory rights,” such as Beneli’s, that benefit was outweighed by the unfairness to parties in pending cases, such as the Employer, who had relied on the Spielberg/Olin standard “in negotiating contracts and in determining whether, and in what manner, to process cases . . . through the grievance-arbitration process.”  Thus, the Board deferred to the subcommittee’s decision under Spielberg/Olin and dismissed the complaint.  Beneli then petitioned for review to challenge the Board’s determination to not apply the new standard to her case.

The Court (Circuit Judge Tallman and District Judge Huck, sitting by designation; Circuit Judge W. Fletcher, concurring) upheld the Board’s determination to apply the new standard prospectively.  Noting the deference owed to the Board on such matters, the Court reviewed the Board’s determination under the five-factors set forth in Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982).  The Court concluded that the two factors that inquire whether this is a case of first impression and whether the newly announced rule represents an abrupt departure from well-established practice, weighed in favor of retroactive application.  However, the Court then held that two other factors weighed in favor of prospective application, noting that the Employer here had relied on the old standard in negotiating the contract and resolving the grievance and that it would be severely burdened by retroactive application.  Resolving the question on the weight of the fifth factor, the Court held that the balance of the statutory interests—including the Board’s statutory mandate of fostering stability in labor relations—fell in favor of the Board’s conclusion.

Reaching the same result, Judge Fletcher wrote separately to state his view that the proper analysis for the Court to apply in assessing an agency determination to apply prospectively a new rule that was the product of adjudication, rather than notice-and-comment rulemaking, would be the framework set forth in NLRB v. Wyman-Gordon, 394 U.S. 759 (1969).

The Court’s opinion is here.

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Administrative Law Judge Decisions

Lundeen Simonson, Inc.  (19-CA-195000; JD(SF)-42-17)  Spokane, WA.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on October 17, 2017.  Charge filed by Operative Plasterers & Cement Masons International Association, Local No. 72.

Alorica, Inc., and its Subsidiary/Affiliate Expert Global Solutions  (18-CA-190846, 25-CA-185622 and 25-CA-185626; JD-86-17)  Irvine, CA and Rockford, IL.  Administrative Law Judge Melissa M. Olivero issued her decision on October 18, 2017.  Charges filed by OPEIU Local 153, Office & Professional Employees International Union, AFL-CIO and Seth Goldstein and Office & Professional Employees International Union, Local 153.

Green Apple Supermarket of Jamaica, Inc.  (29-CA-183238 and 29-CA-188130; JD(NY)-13-17)  Brooklyn, NY.  Administrative Law Judge Kenneth W. Chu issued his decision on October 19, 2017.  Charges filed by United Food and Commercial Workers, Local Union 342, AFL-CIO.

Emerald Correctional Management, L.L.C.  (28-CA-188682 and 28-CA-192201; JD(SF)-43-17)  San Luis, AZ.  Administrative Law Judge John T. Giannopoulos issued his decision on October 19, 2017.  Charges filed by International Guards Union of America and an individual.

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