Today’s Labor Updates:

One month into NLRB’s new ambush election rules: non-unionized employers’ fears are realized

NLRB expands remedies for employer’s violation of employee’s Weingarten rights.

Summary of NLRB Decisions for Week of May 26 – 29, 2015

  

One month into NLRB’s new ambush election rules: non-unionized employers’ fears are realized

Dykema Gossett PLLC

USA June 5 2015

Just over a month ago, the NLRB’s new “quickie election rules,” a/k/a “ambush election rules,” went into effect. After only a month, the impact of the new rules already is being felt.

The Courts

First, on the legal front, the challenges to the new rules are not faring well. Two cases have been filed, one in Texas and the other in Washington, D.C. The Texas court has already thrown out the challenge as being without merit. The D.C. case is still pending, but the court has denied a preliminary injunction, which is an indicator of the court’s view as to the strength, or lack thereof, of the challenge. More challenges may surface, but absent a victory somewhere, it appears that the rules are here to stay, at least for the foreseeable future. The Congressional effort to block the rules via legislation also failed.

The NLRB

Second, the anticipated increase in union organizing activity already is evident. Based on a recent report from the NLRB, the number of election of petitions filed with the NLRB in the month after the new rules became effective increased by 32 percent over the month prior to the new rules becoming effective, and by 17 percent when compared to the same period one year ago. Unions are obviously heightening their efforts to organize as a result of the new rules.

Part of the reason for this increase is that, under the new rules, the time from the petition to the election is designed to be shorter than before. Under the old rules, the median time from filing to election was 38 days. Under the new rules, that time has dropped to 23 days—40 percent shorter than before. The typical drop, though, has been greater since that figure includes the few cases that went to hearing (1.5 percent of filings vs. closer to 20 percent under the old rules).  Most elections have been set to be held in fewer than 23 days, that is, much closer to the 14 day goal under the new rules. The new rules are designed for elections to be held first, and for fights over the merits of the petitions to occur later. This new structure is preferred by unions and serves to shorten greatly the time employers have to educate their employees as to the pitfalls for union representation, despite the fact that the unions may have been campaigning within the workplace for months.

Tips For Employers

The rules of the game have changed, and so employers must consider making changes to their playbooks. In the course of doing so, employers should:

• Examine their workforce and determine their most vulnerable spots, particularly in light of the new “micro-unit” concept now in place at the NLRB;
• Examine, under the new rules, what the appropriate bargaining units are, whether there are ways to make micro-units more difficult to establish, which employees share a “community of interest,” and who should be regarded (or may be regarded) as supervisors; 
• Closely scrutinize policy manuals, particularly those which the NLRB or unions may claim indirectly chill legal union organizing activity, including solicitation policies, work rules, social media and e-mail policies, and confidentiality policies;
• Review workplace issues such as wages, benefits and schedules, and proactively address them to that employees will be less likely to value a union’s intervention; and
• Train supervisors—before a petition is filed—as to how to legally and effectively address union organizing activities.

In a sense, now more than ever, it is important to plan ahead. Contrary to the standard operating procedures of the past, waiting to develop and implement a plan of action upon the filing of a petition will be too late. Employers must weigh these issues now so that they are neither surprised nor unprepared if a union surfaces in the workplace. Of course, navigating these issues entail complex and still developing legal issues. Consequently, counsel should be involved in developing the strategy to be deployed.

 

NLRB expands remedies for employer’s violation of employee’s Weingarten rights.

Gerard A. McInnis, Howard M. Bloom and Philip B. Rosen
USA June 6 2015

The NLRB has issued a decision allowing new remedies — reinstatement and back pay (“make-whole relief”) — for certain violations of an employee’s “Weingarten” rights. E.I. Dupont de Nemours & United Steel Workers Local 6992, 362 NLRB No. 98 (May 29, 2015).

In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the U.S. Supreme Court held a bargaining unit employee is entitled to union representation, on request, during an investigatory interview the employee reasonably believes might result in disciplinary action. When an employee requests representation, the employer may deny the request and conduct its investigation without interviewing the employee. However, if the employer proceeds with the interview, it must allow a union representative to represent the employee during the interview.

In Dupont, employee Smith was involved in a workplace accident in May, 2012. Smith was initially questioned by his supervisor and the company’s medical personnel about the accident. Smith did not request union representation during these interviews. When Smith was later called into an investigatory interview, he requested a union representative. His request was denied, but the company nevertheless questioned him about the accident. Company managers interviewed Smith several days later, again without union representation, and in a third interview with a union representative present. Dupont ultimately terminated his employment for providing false or incomplete information during the investigation based on his inconsistent explanation of the accident.

The Board’s Administrative Law Judge decided the employer unlawfully had denied Smith’s request for union representation, but it denied his request to be reinstated with back pay. The ALJ reasoned that Smith had not been discharged for asserting his Weingarten rights and his discharge was for cause (dishonesty in giving inconsistent responses).

Although the three-member NLRB panel reviewing the ALJ’s decision agreed the employer unlawfully refused Smith’s request for union representation while it went ahead with its questioning, two of the three also found the case presented an “issue of first impression . . . whether to provide make-whole relief to an employee discharged for misconduct that occurred during an unlawful interview.” Those members also created a new standard to be applied where the misconduct causing termination is precipitated by and occurs during an unlawful interview following a denial of Weingarten representation. In their opinion, make-whole relief is appropriate where: (1) an employer, in discharging an employee, relies at least in part on the employee’s misconduct during an unlawful interview; and (2) the employer is unable to show it would have discharged the employee absent that purported misconduct.

Because Smith answered questions in both lawful and unlawful interviews, the NLRB remanded the case to the ALJ to make specific findings regarding which interviews were the source of the inconsistent statements the employer relied on and whether the employer could demonstrate it would have discharged Smith regardless of any conduct during the unlawful interviews.

Given the NLRB’s activist approach, it was only a matter of time before it expands Weingarten rights. Unionized employers should be extra cautious about denying employees these rights, and where an employee declines representation during an investigatory interview, documenting that decision. This may not be the last expansion of Weingarten rights. Many commentators believe the Board will revisit Epilepsy Foundation, 331 NLRB 676 (2000), and again apply Weingarten to non-union employees.

Summary of NLRB Decisions for Week of May 26 – 29, 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 (link sends e-mail) or 202‑273‑1991.

Summarized Board Decisions

Bay Area Healthcare Group, LTD., d/b/a Corpus Christi Medical Center  (16-CA-105302, et al.; 362 NLRB No. 94)  Corpus Christi, TX, May 27, 2015. 

The Board adopted the Administrative Law Judge’s finding that the Union waived bargaining over the Respondent’s change in its extended leave policy.  The parties’ collective-bargaining agreement permitted the Respondent to change or substitute its leave plan provided that the Respondent satisfied certain conditions.  In agreement with the judge, the Board found that the Respondent had satisfied the contractual requirements and therefore was not required to bargain.  In a personal footnote, Member McFerran explained that she would find that the collective-bargaining agreement clearly and unmistakably permitted the Respondent to unilaterally change its policy and the Respondent had a sound arguable basis for concluding that it had satisfied each of those contractual conditions.  Accordingly, the Board dismissed the complaint.  Charges filed by Service Employees International Union Healthcare Texas.  Administrative Law Judge Joel P. Biblowitz issued his decision on November 21, 2014.  Chairman Pearce and Members Johnson and McFerran participated.

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Parkview Community Hospital Medical Center  (21-CA-147256; 362 NLRB No. 97)  Riverside, CA, May 27, 2015. 

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. 

Charge filed by Service Employees International Union, United Healthcare Workers – West (SEIU-UHW).  Chairman Pearce and Members Johnson and McFerran participated.

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Meredith Corporation  (17-CA-077657; 362 NLRB No. 93)  Fairway, KS, May 27, 2015. 

On June 14, 2012, the Board issued a Decision and Order in this test-of-certification case, reported at 358 NLRB No. 57, granting the General Counsel’s motion for summary judgment on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board issued an order setting aside the Decision and Order.

On December 10, 2014, the Board issued a further Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the December 10, 2014 certification of representative issued.  The Respondent filed an answer to the amended complaint and an opposition to the General Counsel’s motion.

The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.

In granting the motion the Board found that the Respondent offered no argument in support of its assertions that the Board currently lacks a quorum, or that it lacked a quorum on December 10, 2014, when the Board certified the Union.  The Board additionally rejected the Respondent’s argument, which was raised and rejected in the underlying representation proceeding, that the Regional Director erred in ordering a self-determination election in the petitioned-for voting group of news producers, whom the Respondent claimed were supervisors. 

Charge filed by Screen Actors Guild (SAG)-American Federation of Television and Radio Artists (AFTRA), Kansas City Local.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Fused Solutions, LLC  (03-CA-098461; 362 NLRB No. 95)  Potsdam, NY, May 28, 2015. 

On May 6, 2013, the Board issued a Decision and Order in this test-of-certification case, reported at 359 NLRB No.118, granting the General Counsel’s motion for summary judgment on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.  Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board issued an order setting aside the Decision and Order.

On November 26, 2014, the Board issued a further Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the November 26, 2014 certification of representative issued.  The Respondent filed an answer to the amended complaint and an opposition to the General Counsel’s motion.

The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.  The Board further found no factual issues warranting a hearing respect to the Union’s information request.

The Board rejected the Respondent’s contention, argued for the first time in this proceeding, that the Regional Director lacked authority to conduct the election at a time when the Board lacked a quorum, noting (1) that the Respondent did not raise this issue previously, and therefore was estopped from challenging the authority of the Regional Director at this time and (2) that the authority of a Regional Director to act in representation case proceedings is derived a 1961 delegation from the Board and thus the Regional Director was fully empowered to process the representation petition and conduct the election without regard to the presence or absence of a Board quorum.  Charge filed by United Food and Commercial Workers, District Union Local One. Chairman Pearce and Members Hirozawa and McFerran participated.

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Roemer Industries, Inc.  (08-CA-124110; 362 NLRB No. 96)  Masury, OH, May 28, 2015.

The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) and (1) of the Act by: (1) suspending two employee union representatives for their conduct in investigating a grievance dispute; and (2) further disciplining one of the employees for comments made about a coworker’s unwillingness to be involved in the grievance investigation.  In adopting the judge’s finding that the Respondent unlawfully issued a 3-day suspension to the latter employee, the Board noted that even assuming Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) was applicable, the Respondent did not make any argument showing that the General Counsel failed to meet his initial burden, and the Respondent additionally failed to provide any evidence that it would have disciplined the employee even in the absence of his protected concerted activity.  In a personal footnote, Member Johnson indicated that in adopting the judge’s credibility resolutions, he would not rely on the judge’s analysis of the note a supervisor created shortly after her September 11, 2014, meeting with an employee and the employee union representative.  Charge filed by United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.  Administrative Law Judge David I. Goldman issued his decision on November 5, 2014.  Members Hirozawa, Johnson, and McFerran participated.

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Globe Wholesale Tobacco Distributors Inc., d/b/a Globe Wholesale Co.  (29-CA-093481; 362 NLRB No. 100)  Brooklyn, NY, May 28, 2015.

The Board adopted the Administrative Law Judge’s decision dismissing the complaint alleging the discriminatory discharge of an employee.  The Board also adopted the judge’s denial of the General Counsel’s motion to reopen or supplement the record, finding that the General Counsel failed to show abuse of discretion by the judge, and further failed to demonstrate that additional evidence would have affected the judge’s credibility-based findings regarding the discharge.  Charge filed by an individual.  Administrative Law Judge Raymond P. Green issued his decision on August 11, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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GD Copper (USA) Inc.  (15-RC-137562; 362 NLRB No. 99)  Pine Hill, AL, May 28, 2015.

The Board unanimously adopted the hearing officer’s findings and recommendations overruling the Employer’s objections to the election, which alleged that employees and union agents had threatened eligible voters and made racially inflammatory remarks that required setting aside the election.  Accordingly, the Board certified United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (also known as USW) as the exclusive collective-bargaining representative of the employees in the unit specified in the parties’ Stipulated Election Agreement.  The Board noted that the record did not support overruling the hearing officer’s credibility determinations, that an employee who had made allegedly racially inflammatory statements was not an agent of the union, and that certain statements made by that employee, even if they could be attributed to the Union, would not warrant setting aside the election under Coca-Cola Bottling Co., 273 NLRB 444 (1984).  Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (also known as USW).  Members Hirozawa, Johnson, and McFerran participated.

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American Electric Power and its subsidiaries Appalachian Power Company, Indiana Michigan Power Company, Kentucky Power Company, Kingsport Power Company, Ohio Power Company, Public Service Company of Oklahoma and Southwestern Electric Power Company  (09-CA-095384; 362 NLRB No. 92)  Columbus, OH, May 28, 2015.

The Board reversed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by eliminating retiree medical benefits for all employees hired after January 1, 2014 without the Union’s consent at a time when a collective-bargaining agreement between the parties was in effect.  The Board found that the Respondent had a sound arguable basis for believing that the agreement allowed it to make the change, based on the participation clause of the agreement and the Respondent’s past practice of making unilateral changes to its benefits plan.  Because the Respondent had a sound arguable basis for its interpretation, the Board found that the Respondent had not modified the contract, within the meaning of Section 8(d) of the Act, pursuant to Bath Iron Works Corp., 345 NLRB 499, 501-502 (2005), affd. sub nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007).  Member Miscimarra expressed his view that the Respondent also had a sound arguable basis for interpreting the contract as incorporating the reservation of rights language in the plan documents, privileging the Respondent to make the change.  Accordingly, the Board dismissed the complaint.  Charges filed by International Brotherhood of Electrical Workers, System Council U-9 and Locals 329, 386, 696, 738, 876, 934, 978, 1002, 1392, and 1466, AFL-CIO.  Administrative Law Judge Eric M. Fine issued his decision on July 31, 2013.  Members Miscimarra, Hirozawa, and McFerran participated.

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Harry Asato Painting, Inc.  (20-CA-124382 and 20-CA-125157; 362 NLRB No. 104)  Honolulu, HI, May 29, 2015.

No exceptions having been filed by the Respondent, the Board adopted the findings of the Administrative Law Judge that the Respondent failed to recognize and bargain with the Union and apply the terms of the collective-bargaining agreement, and also coercively interrogated employees about their union membership.  The Board also granted the General Counsel’s limited exceptions correcting the judge’s order and notice to conform to the unfair labor practices found and the Board’s standard remedial language.  Charges filed by International Union of Painters and Allied Trades, Painters Local Union 1791.  Administrative Law Judge Eleanor Laws issued her decision on December 19, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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United States Postal Service  (15-CA-093567, et al.; 362 NLRB No. 103)  New Orleans, LA, May 29, 2015.

The Board unanimously affirmed the Administrative Law Judge’s finding that the National Association of Letter Carriers Branch 124 did not violate Section 8(b)(1)(A) and (2), and the United States Postal Service did not violate Section 8(a)(3) and (1), by settling a grievance that resulted in the Charging Party losing her assigned postal route.  The Board agreed with the judge that the General Counsel failed to show that the parties settled the grievance because the Charging Party resigned her union membership.  In addition, the Board unanimously affirmed the judge’s findings that the United States Postal Service did not violate Section 8(a)(1) by allegedly threatening the Charging Party, but that National Association of Letter Carriers Branch 124 violated Section 8(b)(1)(A) by failing and refusing to furnish the Charging Party with a copy of its collective-bargaining agreement upon request.  Charges filed by an individual.  Administrative Law Judge Robert A. Ringler issued his decision on October 23, 2014.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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WCCO-TV  (18-CA-100535; 362 NLRB No. 101)  Minneapolis, MN, May 29, 2015.

The Board reversed the Administrative Law Judge and found that the Respondent’s bargaining proposal, which would allow daily cross-utilization of nonunit employees to perform unit work, was a mandatory, not permissive, subject of bargaining. Thus, the Board found that the Respondent did not violate Section 8(a)(5) and (1) by bargaining to impasse over, and then implementing, the proposal.  Charges filed by National Association of Broadcast Employees & Technicians-Communications Workers of America, AFL-CIO (NABET-CWA).  Administrative Law Judge Arthur J. Amchan issued his decision on July 22, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated. 

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E.I. Dupont de Nemours & Co., Inc.  (03-CA-090637; 362 NLRB No. 98)  Tonawanda, NY, May 29, 2015. 

The Board unanimously affirmed the Administrative Law Judge’s finding that the Respondent, when investigating a workplace accident, violated Section 8(a)(1) of the Act by denying an employee a Weingartenrepresentative during investigatory interviews that the employee reasonably believed might result in discipline.  NLRB v. Weingarten, 420 U.S. 251, 252-253 (1975).  The employee was ultimately terminated for misconduct following the Respondent’s investigation.  The Board agreed that an appropriate remedy for the Weingarten violations was a cease and desist provision.  A Board panel majority, consisting of Chairman Pearce and Member Hirozawa, additionally found – in an issue of first impression – that because the misconduct for which the employee was discharged may have included statements the employee  made during the unlawful interviews, the Board could determine whether the employee was also entitled to make-whole relief.  The majority explained that here the asserted misconduct occurred during, and was prompted by the Respondent’s unlawful interviews, rendering Taracorp, 273 NLRB 221 (1984), which held that prior misconduct occurring outside an unlawful interview precluded make-whole relief, inapplicable.  Accordingly, the Board remanded the case to the judge to determine, in the first instance, whether the employee’s discharge was based at least in part of his conduct during the unlawful interviews.  If so, then the Respondent bore the burden of showing it would have terminated the employee for reasons independent of his conduct during the unlawful interviews.  If the Respondent failed to make this showing, the employee would be entitled to the make-while relief of reinstatement and back-pay.  Dissenting, Member Johnson argued that Taracorp controlled, and that misconduct occurring during the unlawful interviews, and not before (as in Taracorp), was a distinction without legal significance.  Member Johnson criticized the majority’s holding as a partial return to the overruled Kraft Foods, Inc., 251 NLRB 598 (1980), and that the lack of a limiting principle would entitle an employee to make-whole relief—no matter how abhorrent or criminal the conduct engaged in at an unlawful Weingarten interview.  The majority responded by explaining that the instant case involved a scenario which neither Kraft nor Taracorp addressed, and that the decision did not alter the well-established principle that make-whole relief is unavailable for conduct that exceeds the Act’s protection.  Charge filed by United Steelworkers, Local 692.  Administrative Law Judge Steven Davis issued his decision on August 26, 2013.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Con-Way Freight Inc.  (31-RC-136543)  Los Angeles, CA, May 27, 2015.  A unanimous panel of the Board overruled the Union’s election objection, which alleged that the Employer announced or granted a raise in pay to bargaining unit employees during the critical period.  The Board certified that the Union did not receive a majority of the valid ballots cast, and that it is not the exclusive representative of the bargaining unit employees.  Petition filed by International Brotherhood of Teamsters, Local 63.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Comprehensive Care of Oakland LP d/b/a Bay Area Healthcare Center  (32-RD-134177) Oakland, CA, May 27, 2015.  Order denying Service Employees International Union, United Healthcare Workers-West’s (the Union) Request for Review of the Regional Director’s Supplemental Decision on Objections and Notice of Hearing.  The Union argued that the Regional Director erred by scheduling the decertification election during the notice posting period, which was part of a remedial action pursuant to a settlement of concurrent unfair labor practice charges, without obtaining a written waiver from the Union in accordance with Casehandling Manual (Representation, Part Two), Section 11734.  Petitioner—an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Industrial Container Services—WA, LLC  (19-RC-139080)  Seattle, WA, May 27, 2015.  The Board adopted the hearing officer’s recommendations to overrule the Employer’s Objections 1 and 2 to an election held on December 1, 2014. The Board affirmed the hearing officer’s finding that the Employer failed to establish that Efrain Name was a Section 2(11) supervisor, and found that even assuming, arguendo, that the Employer demonstrated a single instance of Name exercising the supervisory authority to discharge, such an isolated instance does not establish that Name was a Section 2(11) supervisor. The Board found it unnecessary to pass on the hearing officer’s alternative assessment of whether, assuming that Name was a statutory supervisor, he engaged in objectionable prounion conduct. The Board certified the Petitioner as the exclusive collective-bargaining representative of the unit employees. Petitioner—International Brotherhood of Teamsters, Local 117. Chairman Pearce and Members Johnson and McFerran participated.

AAA Transportation/Yellow Cab  (28-RC-106979)  Tucson, AZ, May 28, 2015.  Order granting the Petitioner’s Request for Review of the Regional Director’s Decision and Order, and remanding the proceeding to the Regional Director for further appropriate action, including reopening the record, if necessary, consistent with the Board’s decision in Fedex Home Delivery, Inc., 361 NLRB No. 55 (2014), in which it restated and refined its approach for assessing independent contractor status.  Member Johnson would deny review in accord with his dissenting opinion in FedEx Home Delivery, but he agreed with his colleagues that a remand is appropriate to resolve the independent contractor issue under the test stated by the majority in that case.  Petitioner—Tucson Hacks Association.  Chairman Pearce and Members Hirozawa and Johnson participated.

Carso Construccion de Puerto Rico, LLC  (12-RC-127828)  Toa Baja, PR, May 28, 2015.  Order granting Petitioner’s Request for Review of the Regional Director’s Decision and Order, and remanding the proceeding to the Regional Director for further appropriate action, including reopening the record, if necessary, consistent with the Board’s decision in FedEx Home Delivery, Inc., 361 NLRB No. 55 (2014), in which it restated and refined its approach for assessing independent contractor status.  Member Johnson would deny review in accord with his dissenting opinion in FedEx Home Delivery, but he agreed with his colleagues that a remand is appropriate to resolve the independent contractor issue under the test stated by the majority in that case.  Petitioner—Communication Workers of America, Local 3010.  Chairman Pearce and Members Hirozawa and Johnson participated.

C Cases

Panera, LLC and Panera Bread Company, and Manna Development Group, LLC, and Bread of Life, LLC d/b/a Panera Bread  (07-CA-136197)  St. Louis, MO, May 26, 2015. 

The Board denied the petitions to revoke subpoenas duces tecum filed by Panera, LLC, the Panera Bread Company, the Manna Development Group, and Bread of Life.  The Board found that the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the petitioners failed to establish any other legal basis for revoking the subpoenas.

In a personal footnote, Member Johnson agreed that the petitions were not burdensome due to the date range or the requested response time, arguments that were advanced by the petitioners.  However, he agreed with the petitioners’ general burdensomeness contention, noting that his concern with the subpoenas was not merely numerosity, but numerosity combined with minutiae.  In this regard, he stated that the subpoenas’ numerous requests were “too much,” covered matters that were too minute, and far exceeded what would reasonably enable the General Counsel to determine whether a complaint should issue or be expanded.  Member Johnson would therefore have granted the petitions to revoke to the extent that the subpoenas requested “all documents” regarding a particular item, and he denied the petitions in all other respects. 

Contrary to their colleague, Members Hirozawa and McFerran did not find that the petitions were unduly burdensome.  They noted that the mere fact that the requests were numerous was insufficient to show that the burden was unreasonable.  Moreover, they found that the requested documents were relevant to whether Panera Bread Company is a joint employer of the employees in the bargaining unit, and to the investigation into Bread of Life’s alleged unfair labor practices.  In the view of Members Hirozawa and McFerran, the requested information was tailored to particular factual questions at issue and was not overly burdensome.  Charge filed by Local 70, Bakery, Confectionery, Tobacco Workers, and Grain Millers International Union, AFL-CIO.  Members Hirozawa, Johnson and McFerran participated.

Metal Services, LLC d/b/a Phoenix Services, LLC  (15-CA-116456, et al.)  Blytheville, AR, May 27, 2015.  No exceptions having been filed to the February 18, 2015 decision of Administrative Law Judge Mark Carissimi 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 United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO and other individuals.

United States Postal Service  (10-CA-133755 and 10-CA-141564)  Roswell, GA, May 28, 2015.  Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Unions, and the General Counsel, and specifying actions that the Employer must take to comply with the National Labor Relations Act.  Charges filed by National Association of Letter Carriers Branch 4862 and American Postal Workers Union, Local 32.  Chairman Pearce and Members Miscimarra and McFerran participated.

Local 38, International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada (IATSE), AFL-CIO (Crown City Pictures, Inc.)  (07-CB-128512)  Pontiac, MI, May 29, 2015.  No exceptions having been filed to the March 18, 2015 decision of Administrative Law Judge Eric M. Fine 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.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Emlo Corporation  (29-CA-135944; JD(NY)-24-15)  Paterson, NJ.  Administrative Law Judge Steven Davis issued his decision on May 26, 2015.  Charge filed by Asbestos, Lead & Hazardous Waste Laborers, Local 78, Laborers’ International Union of North America.

Unique Personnel Consultants, Inc.  (25-CA-132398; JD-30-15)  Troy, IL.  Administrative Law Judge Christine E. Dibble issued her decision on May 28, 2015.  Charge filed by an individual.

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