Today’s Labor Updates:
Summary of NLRB Decisions for Week of April 20 – 24, 2015
UAW Counts Majority Support At VW Plant
Board hints it may let unions charge non-members for grievance processing
Summary of NLRB Decisions for Week of April 20 – 24, 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
FedEx Freight, Inc. (10-CA-145378; 362 NLRB No. 74) Charlotte, NC, April 20, 2015.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative. In addition, the Board rejected the Respondent’s request that the Board “clarify” the record in the underlying representation case by admitting into evidence a report purportedly supporting the Respondent’s position that the appropriate unit must include the Respondent’s dockworkers. The Board denied the request, which it treated as a motion to reopen the representation proceeding record, finding that the proffered information did not constitute newly discovered and previously unavailable evidence, and that it would not, if adduced, establish special circumstances. Charge filed by International Brotherhood of Teamsters, Local 71. Chairman Pearce and Members Hirozawa and Johnson participated.
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Atlantic Queens Bus Corp.; Atlantic Escorts Inc.; Canal Escorts, Inc.; and Amboy Bus Co., Inc. (All American School Bus Corp.) (29-CA-100833, et al.; 362 NLRB No. 65) Brooklyn and Staten Island, NY, April 21, 2015.
The Board affirmed, for different reasons, the administrative law judge’s finding that the Respondents violated the Act by prematurely declaring impasse in negotiations for a successor collective-bargaining agreement and implementing their last offer. The Respondents’ defense in this case was that deadlock over a single issue, the proposed most-favored-nations clause, justified its declaration of overall impasse and implementation of its final offer. The Board concluded that the circumstances here did not meet the single-issue impasse standard. Specifically, it reasoned that even if there was an impasse over the most-favored-nations clause and that issue was critical (the judge had relied only on the issue not being critical), there was no evidence of an overall breakdown in negotiations as of the date the Respondents declared impasse. Charges filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO. Administrative Law Judge Raymond P. Green issued his decision on September 20, 2013. Members Miscimarra, Hirozawa, and Johnson participated.
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ThyssenKrupp Stainless USA, LLC, a wholly owned subsidiary of Outokumpu Stainless USA, LLC (15-CA-070319 and 15-CA-073053; 362 NLRB No. 71) Calvert, AL, April 22, 2015.
The Board denied the General Counsel’s Motion for Default Judgment, which asserted that the Respondent had defaulted on the terms of a settlement agreement. The Board found that default judgment was not appropriate under the circumstances because, based on the conflicting representations of the parties, genuine issues of material fact exist which prevent a final determination as to whether the terms of the settlement agreement have been breached. The Board noted that it had previously denied the Respondent’s Motion for Summary Judgment, and, in so doing, had stated that the “propriety of setting aside the settlement agreement” was “an issue for the judge to decide in the first instance, based on a more complete record regarding, for example, the posting of the notice and letter, and the Respondent’s compliance with the affirmative settlement terms.” Accordingly, the Board remanded the case to the Regional Director for Region 15 for further appropriate action.
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Asset Protection & Security Services, L.P. (28-CA-108982; 362 NLRB No. 72) Florence, AZ, April 22, 2015.
The Board adopted the Administrative Law Judge’s decision that the Respondent did not unlawfully deny an employee his right to a representative in an investigatory interview under NLRB v. J. Weingarten, 420 U.S. 251 (1975), because the employee did not effectively invoke his right. Instead, he insisted that he would represent himself with his coworker serving as a mere observer. The Board also adopted the judge’s decision that the Respondent did not unlawfully interrogate the employee. Charge filed by an individual. Administrative Law Judge Mary Miller Cracraft issued her decision on July 7, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.
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Circo Group, LLC d/b/a Circo Bar (12-RC-123841; 362 NLRB No. 75) Santurce, PR, April 24, 2015.
The Board reversed the hearing officer and overruled the Union’s challenge to the ballot of employee Juan Brand. Contrary to the hearing officer, the Board found that the Union failed to meet its burden of proving that Brand was ineligible to vote. Additionally, the Board adopted pro forma the hearing officer’s recommendation to overrule the challenge to the ballot of employee Edwin Velez. The Board directed that the Regional Director shall, within 14 days from the date of the Decision and Direction, open and count the challenged ballots, and that the Regional Director shall then prepare and serve on the parties a revised tally of ballots and issue the appropriate certification. Petitioner – Central General de Trabajadores. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Veolia Transportation Services, Inc. d/b/a Veolia Transportation (05-RC-137335) Hyattsville, MD, April 21, 2015. A Board panel majority consisting of Chairman Pearce and Member Hirozawa granted the Petitioner Union’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raises a substantial issue regarding whether the Employer’s road supervisors possess the authority to discipline, or effectively recommend discipline, within the meaning of Section 2(11) of the Act. In filing briefs on review, the Board invited the parties specifically to address the Employer’s purported progressive disciplinary system. Member Johnson would deny the Petitioner’s request for review. The Board denied the Petitioner’s motion to consolidate the case with Diamond Transportation Services, Inc., Case 05-RC-134217 (2014) (not reported in Board volumes), and in so doing rejected the Petitioner’s contention that the instant case and Diamond Transportation are factually indistinguishable. Petitioner—Amalgamated Transit Union, Local 689, associated with Amalgamated Transit Union, AFL-CIO. Chairman Pearce and Members Hirozawa and Johnson participated.
ADT, LLC (16-RM-123509) Carroloton, TX, April 22, 2015. A Board panel majority consisting of Chairman Pearce and Member McFerran granted the Union’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raises substantial issues warranting review regarding the Regional Director’s determination that the petitioned-for unit consisting of installation and service technicians at the Employer’s four existing facilities. Member Miscimarra would deny review as he believes there is no substantial question regarding the Regional Director’s determination that the petitioned-for unit is appropriate, or regarding the appropriateness of an RM petition and election in these circumstances, where the Employer acquired a new company and its employees and a subsequent consolidation effectively eliminated the prior bargaining unit of installation and service technicians. Employer-Petitioner—ADT, LLC. Union—Communication Workers of America, Local 6215. Chairman Pearce and Members Miscimarra and McFerran participated.
AHL Healthcare Group d/b/a At Home Living Facilities, Inc. (18-RC-141923) Duluth, MN, April 24, 2015. The Board adopted the Regional Director’s sustaining of the Employer’s challenges to six determinative ballots without a hearing, following the Petitioner Union’s agreement to exclude those ballots. Accordingly, the Board certified Petitioner AFSCME Council 5, AFL-CIO as the exclusive collective-bargaining representative of the employees in the appropriate unit. Member Miscimarra noted that he would reach the same result even considering the Employer’s challenges as objections alleging fraudulent conduct during the mail ballot election, given the absence of support for the allegations. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
Taylor Farms Pacific, Inc./Slingshot Connections, LLC/Abel Mendoza, Inc. (32-CA-142475, et al.) Tracy, CA, April 20, 2015. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Chairman Pearce and Members Miscimarra and McFerran participated.
International Shipping Agency, Inc., Marine Terminal Services, Inc., and Truck Tech Services, Inc., single employer (24-CA-091723, 24-CA-104185 and 12-CA-129846) Bayamon, PR, April 20, 2015. The Board granted the General Counsel’s request for special permission to appeal the Administrative Law Judge’s on-the-record oral ruling accepting a non-Board settlement in this proceeding. The Board majority (Chairman Pearce and Member Hirozawa) found that it would not effectuate the purposes and policies of the Act to approve the non-Board settlement agreement because the agreement does not satisfy the standard set forth in Independent Stave Co., 287 NLRB 740, 743 (1987).
Specifically, the Board noted the General Counsel’s opposition to the settlement and found that it was not reasonable in light of the serious nature of the allegations and the failure of the settlement to address a large portion of the alleged violations. Those serious allegations included, inter alia, allegations that the Respondent repeatedly, and through different officials, threatened employees with discharge, job loss, and plant closure if they joined or supported the Union or if the Union won a Board election; that it made good on these threats by closing two of its facilities (including one facility that the Respondent closed two days after the representation election) and discharging 28 employees; and that it told employees at one facility that it closed another facility because of employees’ union activities. The Board particularly noted the absence of a notice-posting provision, the absence of a reinstatement remedy other than a circumscribed preferential hiring provision, the low percentage of backpay (approximately 32 percent of the amount calculated by the General Counsel), and the agreement’s requirement that employees waive their statutory right to engage in strikes. The Board revoked the judge’s approval of the settlement and remanded the proceeding to the judge for further processing, without prejudice to further settlement negotiations consistent with its Order. In addition, the Board granted the General Counsel’s request for special permission to appeal the Administrative Law Judge’s rejection of GC Exhibits 2, 3, and 4 and reversed this ruling.
Member Miscimarra dissented in part, joining his colleagues in granting the General Counsel’s request for special permission to appeal the Administrative Law Judge’s approval of the settlement agreement and agreeing that the judge improperly excluded GC Exhibits 2, 3, and 4, but stating that he would affirm the judge and refrain from revoking his approval of the agreement. While Member Miscimarra agreed that the agreed upon remedy in this difficult case is far from perfect, he stated that the monetary settlement is substantial, the agreement involves other understandings, and it almost certainly would have never occurred but for the Board’s intervention in this case on behalf of the Union and the employee-claimants. Specifically, Member Miscimarra pointed out that negotiation of the settlement occurred in the course of three or four weeks of settlement conferences, it is far from clear that the resolution of this case will result in backpay or reinstatement for any of the claimants, and it may be a long time before the claimants receive any benefit even if they do prevail in a Board decision on the merits. Therefore, he found that the judge properly exercised his discretion in approving the settlement.
Charges filed by Union de Empleados de Muelles (UDEM), ILA 1901, AFL-CIO. Administrative Law Judge Robert A. Ringler issued his ruling on September 9, 2014. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Angelica Textile Services, Inc. (15-CA-134704) Memphis, TN, April 20, 2015. The Board denied the Employer’s petition to revoke a 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. To the extent that the Employer provided some of the requested material, the Board noted that it is not required to produce that information again, provided that the Employer accurately describes which documents under subpoena it has already provided, states whether those previously supplied documents constitute all of the requested documents, and provides all of the information that was subpoenaed. Members Hirozawa, Johnson, and McFerran participated.
Lewis Foods of 42nd Street, LLC, A McDonald’s Franchisee, and McDonald’s USA, LLC, joint employers, et al. (02-CA-093893, et al.) New York, NY, April 21, 2015. The Board denied Respondent McDonald’s USA’s request for special permission to appeal from the Administrative Law Judge’s ruling denying its request for reconsideration regarding the transcription of a pre-hearing conference call. The Board found that McDonald’s USA failed to establish that the judge abused her discretion in denying its request to create an official record of the conference call.
Member Johnson agreed that McDonald’s USA failed to establish that the judge abused her discretion in denying its request. In doing so, Member Johnson stated that he regretted that the Board had taken so long to issue the order and believed that in the future, the Board can and should achieve a more timely turnaround on similar matters. However, he noted that McDonald’s USA did not file its lengthy request for special permission to appeal until one day before the pre-hearing teleconference when it was not practicable for the Board to consider the voluminous pleadings and act in a timely manner. Member Johnson also reminded all parties that in the context of such a massive case, if expedited consideration is required, they should caption their filings accordingly, make the request for expedition clear in a motion, notify the Office of the Executive Secretary of the need, and make any other appropriate efforts to indicate to the Board the sensitive nature of the request. Chairman Pearce and Members Johnson and McFerran participated.
J Flow Controls (09-CA-142173) Cincinnati, OH, April 21, 2015. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Steve Zappetini & Son, Inc. (20-CA-114390) San Rafael, CA, April 23, 2015. A Board panel majority denied the Respondent’s requests that the Board accept its untimely-filed exceptions and supporting brief. The majority found that the Respondent failed to show good cause for its failure to file timely exceptions or timely requests for extensions of time to file exceptions. The majority held that in these circumstances, where the Respondent was, on several occasions, specifically advised of the Board’s Rules and Regulations concerning filing and was clearly notified concerning the extended due date for the filing of exceptions, the Respondent’s asserted reasons for its late filings do not rise to the level of excusable neglect. Member Miscimarra agreed that the exceptions at issue were filed late based on the Respondent’s neglect, but he stated that he believes it is appropriate to grant the request to accept the late exceptions in the particular circumstances of this case.
Cumberland Manor Nursing & Rehabilitation Center (04-CA-133709) Bridgeton, NJ, April 24, 2015. No exceptions having been filed to the March 13, 2015 decision of Administrative Law Judge Arthur J. Amchan finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s decision and ordered the Respondent to take the action set forth in the judge’s Order. Charge filed by United Auto Workers Local 2327.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
New York University (02-CA-120698; JD(NY)-14-15) New York, NY. Administrative Law Judge Lauren Esposito issued her decision on April 21, 2015. Charge filed by Union of Clerical, Administrative and Technical Staff (UCATS) at NYU, Local 3882, NYSUT, AFT, AFL-CIO.
The Rose Group d/b/a Applebee’s Restaurant (05-CA-135360; JD-24-15) Newtown, PA. Administrative Law Judge Susan A. Flynn issued her decision on April 22, 2015. Charge filed by an individual.
Century Fast Foods, Inc. (31-CA-116102; JD(SF)-17-15) Chatsworth, CA. Administrative Law Judge Ariel L. Sotolongo issued her decision on April 24, 2015. Charge filed by an individual.
UAW Counts Majority Support At VW Plant
By Cary Burke on April 29, 2015
According to disclosure forms filed with the U.S. Department of Labor, the United Auto Workers (UAW) has gathered union authorization cards from 816 employees working at Volkswagen’s Chattanooga, TN plant. The Associated Pressis reporting that this amounts to about 55% support, which is a huge milestone considering that the UAW lost an unopposed representation election at the exact same factory in February 2014.
Despite losing the election a little over a year ago, the UAW’s efforts to organize VW’s Chattanooga plant have continued apace. Last year, the union created a Local in order to educate employees about the benefits of collective bargaining and to “forward their mission.” And as evidenced by their current holding of majority support, their plan seems to be working.
In what could be a further boon for the UAW’s organizing efforts, VW Chairman Ferdinand Piech recently resigned his position after butting heads with the company’s CEO. Berthold Huber, a past supporter of the UAW’s efforts to organize the Chattanooga facility, has been named interim chairman in Piech’s place.
Board hints it may let unions charge non-members for grievance processing
April 27 2015
The NLRA prohibits interference with an employee’s right to engage in concerted activity or to “refrain” from it. An important exception in the NLRA that allows interference with an employee’s right to “refrain” is application of a lawful union security provision in non-right-to-work states. Such a provision allows an employer and union to take adverse action against an employee who refuses to join the union or pay an amount equal to a fair share of dues and fees. This safe harbor to interfere with Section 7 rights and “discriminate” against non-union members generally is illegal in right-to-work states, and as we have reported, the number of right-to-work states is growing, most recently including Wisconsin, Michigan, and Indiana, which had traditionally been union strongholds.
Now, the NLRB has indicated that it may want to start letting unions charge non-dues-paying employees for grievance processing services. Under nearly all collective bargaining agreements, the union controls the grievance and arbitration process, theoretically on behalf of an employee, and the employee must use the union to process any covered dispute the employee has against the employer even if the employee is not a union member. The Board’s current rule is that a union cannot charge such fees unless there is a valid union security clause, which generally would be illegal in a right-to-work state. The Board is requesting amicus briefs on the subject in a case from Florida (a right-to-work state) involving the United Steelworkers Union and a subsidiary of Georgia-Pacific. Commentators and observers of the Board have seen that a request for briefs usually signals the Board’s intent to change the current rule.
The National Right to Work Committee and its National Right To Work Legal Defense Foundation view the anticipated change in position as a “frontal attack” on the freedom against discrimination that right-to-work laws are intended to protect. According to a statement on the Committee’s webpage, “the NLRB wants to force non-members to pay for this forced unionism power.” One thing is certain: if the Board does change the rule, the change will be challenged in court.