Today’s Labor Updates:
NLRB General Counsel Griffin issues Memorandum on the Agency’s 10(j) program
Summary of NLRB Decisions for Week of April 28 – May 2, 2014
Office of Public Affairs
202-273-1991
NLRB General Counsel Griffin issues Memorandum on the Agency’s 10(j) program
May 9, 2014
National Labor Relations Board General Counsel Richard F. Griffin, Jr. issued a Memorandum on the Agency’s 10(j) program affirming the Agency’s priority in continuing efforts to obtain immediate relief in cases that present a significant risk of remedial failure. Section 10(j) of the National Labor Relations Act authorizes the National Labor Relations Board to seek temporary injunctions against employers and unions in federal district courts to stop unfair labor practices while the case is being litigated before administrative law judges and the Board. General Counsel Griffin stated his intention to “aggressively seek 10(j) relief where necessary to preserve the status quo and the efficacy of final Board orders.”
General Counsel Griffin endorsed the initiatives begun by former General Counsel Ronald Meisburg involving first contract bargaining cases and by former Acting General Counsel Lafe Solomon involving discharges during union organizing campaigns indicating that efforts to seek injunctive relief in those cases “have led to extremely positive results.” He then underscored his interest in having field offices also seek injunctive relief “in appropriate cases involving a successor’s refusal to bargain and, more importantly, successor refusal to hire cases” since the status of the employee’s chosen collective-bargaining representative in successor cases is particularly vulnerable to unfair labor practices. General Counsel Griffin noted that, in refusal to bargain cases, unlawful conduct by a new employer that undermines the representative “will lead employee disaffection, concomitant loss of bargaining power, and loss of employee benefits that cannot be restored by a final Board order.” He further stated that, in cases where a successor employer refuses to hire employees to avoid bargaining with an incumbent union, “the potential scattering of those employees creates an even greater risk that a final Board order will not effectively restore the parties to establish a good faith bargaining relationship.”
The General Counsel’s Memorandum directs field offices to seek remedies that will restore pre-violation conditions and ensure that employee rights under the National Labor Relations Act are restored. It also references the roll out of a training program for field personnel, which will include new training material and resources to assist them in investigating and litigating 10(j) cases.
The Memorandum can be found here.
Information on 10(j) cases can be found here.
Summary of NLRB Decisions for Week of April 28 – May 2, 2014
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
Durham School Services, L.P. (05-RC-103218; 360 NLRB No. 86) Rosedale, MD, April 29, 2014.
The Board reversed an Administrative Law Judge’s decision, and found that the Employer engaged in objectionable conduct when, a week before the election, it responded to employee complaints about longstanding shortfalls in their paychecks by providing employees with cash payments equal to the amount of the shortfalls. Accordingly, the Board set aside the election and directed a second election. Petitioner—Teamsters Local Union No. 570, a/w International Brotherhood of Teamsters. Chairman Pearce and Members Hirozawa and Johnson participated.
***
Customer Creation Centers, LLC (07-CA-104686; 360 NLRB No. 91) St. Joseph, MI, April 29, 2014.
The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of a settlement agreement. The Board found that the Respondent had failed to comply with the terms of the settlement agreement by failing to expunge from its files and records all copies of its Code of Conduct; failing to either return copies of the Code of Conduct to employees or certify to employees in writing that no copies exist; and by failing to post and mail appropriate notices. Applying the noncompliance provisions of the settlement agreement, the Board deemed all of the allegations in the General Counsel’s reissued complaint to be true. The Board ordered the Respondent to cease and desist from promulgating and maintaining an overly broad rule requiring employees to be confidential regarding conversations with management concerning work related matters such as hourly pay; cease and desist from threatening employees with a reduction of work hours because they engaged in protected concerted activities; and to rescind the unlawful rule, expunge the rule from its records, and notify its employees in writing that this has been done and that the rule is no longer in force.
Charge filed by an individual. Members Hirozawa, Johnson, and Schiffer participated.
***
United Workers of America, Local 621 (29-CB-097003; 360 NLRB No. 89) Brooklyn, NY, April 29, 2014.
The Board reversed the Administrative Law Judge’s finding that the Respondent Union violated Section 8(b)(1)(A) by accepting union dues after employees revoked their check-off authorizations 10 days before the Region’s certification of the results of the election. The Board found that the Respondent did not violate the Act through its collection of dues, because the revocations were premature. Administrative Law Judge Michael A. Rosas issued his decision on July 31, 2013. The charge was filed by Service Employees International Union Local 32BJ. Chairman Pearce and Members Johnson and Schiffer participated.
***
ManorCare of Kingston PA, LLC (04-RC-109516; 360 NLRB No. 93) Kingston, PA, April 29, 2014.
A Board panel majority consisting of Chairman Pearce and Member Schiffer reversed the hearing officer’s recommendation to sustain the Employer’s Objection 2, which alleged that certain prounion employees, who were not union agents but third parties to the election, made election-related threats to employees and their property that interfered with the election. The statements were disseminated by other employees not in the presence of the speakers who actually made the comments and were apparently characterized out of context. The Board specifically found that, in the circumstances of this case, statements which were not threats when made, did not, through the repetition by others, become transformed into objectionable conduct. Member Johnson, dissenting, stated that although this was a close case, the statements, as disseminated to other eligible voters who did not actually hear the alleged threats being made, were threats to person and property. He further found that there were no countervailing circumstances that would lend an objective observer to believe these comments were exaggerated or were intended in a joking manner, and a significant number of employees were exposed to these threatening statements, regardless of the original intent of the speakers. Petitioner—Laborers International Union of North America Local 1310. Chairman Pearce and Members Johnson and Schiffer participated.
***
Amalgamated Transit Union Local No. 1498 (Jefferson Partners L.P.) (18-CB-086687; 360 NLRB No. 96) Minneapolis, MN, April 30, 2014.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the Administrative Law Judge’s finding that the Union violated its duty of fair representation by failing to timely request arbitration of the Charging Party’s grievance, resulting in the forfeiture of his arbitral claim. The majority determined that because the Union neither ignored the grievance nor processed it in a perfunctory manner, but simply failed through mere negligence to timely file for arbitration, the evidence did not establish that it acted arbitrarily under its duty of fair representation. The majority further observed that the Union’s erroneous informing of the Charging Party that the grievance was scheduled for arbitration was the product of its good-faith but mistaken belief that arbitration had been properly scheduled, rather than any deliberate misrepresentation. Dissenting Member Miscimarra found that the Union engaged in multiple cumulative lapses that, when viewed together, constituted gross negligence warranting a finding of a fair representation violation. He found that the Union repeatedly failed to undertake any reasonable steps over a lengthy period to confirm that arbitration was being pursued, where recurring inquiries should have merited some further action by the Union. Charge filed by an individual. Administrative Law Judge Ira Sandron issued his decision on April 4, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.
***
Conditioned Air Systems, Inc. (05-CA-079299; 360 NLRB No. 97) Frederick, MD, April 30, 2014.
The Board adopted the Administrative Law Judge’s finding that the Employer violated Section 8(a)(5) and (1) by failing to respond to the Union’s request for information. The Board found that a number of Respondent’s arguments were untimely raised and thus waived. A majority of the Board panel, consisting of Members Hirozawa and Schiffer, would have rejected those arguments even if they were timely raised. The Board also denied the Employer’s motion to reopen the record. Charge filed by Plumbers and Gas Fitters Local Union No. 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO. Administrative Law Judge Arthur J. Amchan issued his decision on October 26, 2012. Members Miscimarra, Hirozawa, and Schiffer participated.
***
Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County (04-CA-097635; 360 NLRB No. 95) Salem, NJ, April 30, 2014.
The Board affirmed the Administrative Law Judge’s finding that Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with information it requested on February 11, 2013, and by unilaterally changing its dress code policy on September 4, 2012. The new dress code policy differed materially, substantially, and significantly from Respondent’s April 2012 handbook provisions. Under the past dress code, employees had wide latitude to determine the color and type of their scrubs, and were permitted to wear hoodies, sweatshirts, and fleece jackets. The new dress code required employees to wear color-coded uniforms, and only permitted coordinating solid or print warm-up jackets. The Board found that these changes had a significant financial impact on unit employees. In addition to imposing changed attire requirements, the revised dress code imposed a new disciplinary process for dress code violations. The Board found that unit employees faced a heightened prospect of discipline under the new policy because it imposed more stringent discipline and contained more restrictions than the past dress code, thus making it more easily violated. Finally, the Board found no merit in Respondent’s argument that the timing of the Union’s charge undercuts the significance of the changes to the dress code. Charge filed by Health Professionals and Allied Employees (HPAE). Administrative Law Judge Michael A. Rosas issued his decision on September 10, 2013. Chairman Pearce and Members Hirozawa and Schiffer participated.
***
YRC Inc., d/b/a YRC Freight (13-CA-087525; 360 NLRB No. 90) Bolingbrook, IL, April 30, 2014.
The Board adopted the Administrative Law Judge’s finding that the Respondent did not violate the Act by denying an employee’s request for a Weingarten representative and then discontinuing the interview. A panel majority consisting of Members Miscimarra and Johnson also affirmed the Judge’s finding that the Respondent did not violate the Act in later issuing discipline, while Member Schiffer, dissenting, found that the Respondent’s issuance of discipline violated the Act because it was motivated by the employee’s request for a representative. Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on February 15, 2013. Members Miscimarra, Johnson, and Schiffer participated.
***
Regency Heritage Nursing and Rehabilitation Center (22-CA-074343; 360 NLRB No. 98) Somerset, NJ, April 30, 2014.
The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by changing wage rates for employees hired after the collective-bargaining agreement expired without giving the Union notice of the change or the opportunity to bargain. Charge filed by1199 SEIU, United Healthcare Workers East, New Jersey Region. Administrative Law Judge Steven Fish issued his decision on June 6, 2013. Members Miscimarra, Hirozawa, and Schiffer participated.
***
SPCA in Cattaraugus County, Inc. (03-CA-090311; 360 NLRB No. 88) Olean, NY, April 30, 2014.
The Board granted the General Counsel’s motion for default judgment in the absence of an answer to the compliance specification. The Board ordered the Respondent to pay the discriminatee the amounts set forth in the compliance specification, plus interest accrued to the date of payment, compounded daily, minus required tax withholdings. Member Johnson would have held the motion for default judgment in abeyance for fourteen (14) calendar days from the date of order to give the Respondent an opportunity to explain, with supporting affidavits, why the answer was not timely filed. In disagreement with Member Johnson, Chairman Pearce and Member Hirozawa found that the Respondent provided an explanation that does not demonstrate good cause for its failure to file a timely answer. In these circumstances, they found that giving the Respondent an additional 14 days to repeat that explanation, with supporting affidavits, is not warranted. Charge filed by an individual. Chairman Pearce and Members Hirozawa and Johnson participated.
***
United States Postal Service (07-CA-098122; 360 NLRB No. 94) Detroit, MI, April 30, 2014.
The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing to furnish the Union with requested information relevant to grievance processing. Charge filed by Local 295, Detroit District Area Local, American Postal Workers Union, (APWU), AFL-CIO. Administrative Law Judge Joel P. Biblowitz issued his decision on January 6, 2014. Members Hirozawa, Johnson, and Schiffer participated.
***
DHL Express (USA), Inc. (09-CA-079842 and 080777; 360 NLRB No. 87) Erlanger, KY, April 30, 2014.
The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by prohibiting the distribution of literature in its cafeteria and threatening to escort employees from the facility unless they ceased distributing literature there. The Board also adopted the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by discharging an employee. Charges filed by American Postal Workers Union, AFL-CIO and American Postal Workers Union, Cincinnati, Area Local 164. Administrative Law Judge Mark Carissimi issued his decision on April 22, 2013. Chairman Pearce and Members Hirozawa and Johnson participated.
***
Laborers’ International Union of North America, Local No. 16, AFL-CIO (28-CA-092331; 360 NLRB No. 77) Albuquerque, NM, April 30, 2014.
A Board panel majority consisting of Chairman Pearce and Member Johnson adopted the Administrative Law Judge’s finding that the Respondent Union did not violate Section 8(a)(3) and (1) by requiring its employee to become a member of the Union as a condition of her employment. The Board majority agreed with the Judge that these allegations were time-barred because there was no evidence that the Union maintained or imposed a membership requirement within the Section 10(b) 6-month limitations period. Instead, a violation could be make out only by relying on anterior events that predate the limitations period, which Machinists Local 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960) forbids. Member Hirozawa dissented. In his view, the violation was established because the Union earlier required the employee to become a Union member and pay dues, never told her that membership was voluntary, and she continued to pay dues within the limitations period. Chairman Pearce and Member Johnson responded that the employee’s retention of union membership within the 10(b) period and payment of dues does not establish a violation, as employees are free to join and maintain membership in a union that does not represent them. Nor would they rely on the Union’s failure to affirmatively inform the employee that membership was voluntary, as that would improperly shift the burden of proving the current unfair labor practice from the General Counsel to the Union. Charge filed by an individual. Administrative Law Judge William L. Schmidt issued his decision on October 30, 2013. Chairman Pearce and Members Hirozawa and Johnson participated.
***
Crisdel Group, Inc. (22-CA-077469; 360 NLRB No. 92) South Plainfield, NJ, April 30, 2014.
In adopting the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(3) and (1) by laying off an employee, the Board found that the Respondent’s layoff decision was motivated by the employee’s expulsion from International Union of Operating Engineers, Local 825, rather than animus toward his internal union activity. The Board further noted that the Respondent could not justify its layoff decision under the final proviso to Section 8(a)(3), because the Respondent was notified that the employee was current on his dues payments and, therefore, had reasonable grounds for believing that the employee’s union membership was terminated for a reason other than his failure to pay dues. Charge filed by an individual. Administrative Law Judge Lauren Esposito issued her decision on August 26, 2013. Chairman Pearce and Members Hirozawa and Johnson participated.
***
American Baptist Homes of the West d/b/a Piedmont Gardens (32-CA-078124 and 080340; 360 NLRB No. 100) Oakland, CA, May 1, 2014.
The Board unanimously adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by posting a sign in an employee break room prohibiting union meetings there, where the union had a right to hold meetings under the terms of an expired collective-bargaining agreement. Members Johnson and Schiffer adopted the judge’s finding that the Respondent also violated Section 8(a)(1) by maintaining a facially invalid off-duty access rule in its employee handbook. That rule prohibited employees from remaining on the Respondent’s premises after their shift unless previously authorized by their supervisor. Members Johnson and Schiffer further found that the Respondent violated Section 8(a)(1) by enforcing that rule against two off-duty employees who sought to attend a scheduled meeting during which employees, in the presence of a union agent, were to communicate their complaints to management. Member Miscimarra agreed with his colleagues that the Respondent unlawfully enforced the access rule against the two employees, but disagreed with their conclusion that the rule was facially unlawful. Charges filed by Service Employees International Union, United Healthcare Workers-West. Administrative Law Judge Jay R. Pollack issued his decision on January 29, 2013. Members Miscimarra, Johnson, and Schiffer participated.
***
NStar Electric & Gas Co. (01-CA-122562; 360 NLRB No. 106) Westwood, MA, May 2, 2014.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification refusal-to-bargain 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. Charge filed by Utility Workers Union of America, AFL-CIO, Local 369. Chairman Pearce and Members Miscimarra and Schiffer participated.
***
JT Bay, LLC d/b/a Performance Cleaning Group (12-CA-075591; 360 NLRB No. 99) Tampa, FL, May 2, 2014.
The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of a settlement agreement. The Board found that the Respondent had failed to comply with the terms of the settlement agreement by failing to remit the full amount of the agreed-upon backpay and interest to certain employees and failing to send to the Regional Office a signed and dated Notice to Employees in Spanish along with a certification of posting. Applying the noncompliance provisions of the settlement agreement, the Board deemed all of the allegations in the General Counsel’s reissued complaint to be true. The Board ordered the Respondent to recognize and bargain with the Union in the appropriate unit, rescind the unilateral changes in initial terms and conditions of employment and restore the status quo ante with regard to work schedules and cessation of benefits such as holiday pay and health insurance, until such time as the Respondent and the Union reach an agreement for a new collective-bargaining agreement or a lawful impasse based on good-faith negotiations, and to make named employees whole for loss of earnings due to the Respondent’s unlawful actions, in accordance with the terms of the settlement agreement. In limiting the affirmative remedies to those enumerated above, the Board noted that that the General Counsel is empowered under the default provision of the settlement agreement to seek a full remedy for the violations found, including backpay beyond that specified in the settlement agreement, but that the General Counsel did not seek such remedies in his motion. Charge filed by Local 32BJ, Service Employees International Union. Members Hirozawa, Johnson, and Schiffer participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery (32-RC-109684) Milpitas, CA, April 30, 2014. A Board panel majority consisting of Members Hirozawa and Schiffer granted Petitioner Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters’ request for review of the Acting Regional Director’s Decision and Direction of Election on the ground that it raised substantial issues warranting review. The Board stated its intention to subsequently issue a notice establishing a schedule for briefing, and inviting amicus briefs, to afford the parties and interested amici the opportunity to address issues raised in this case. In dissent, Member Johnson would have denied the request for review. Members Hirozawa, Johnson, and Schiffer participated.
C Cases
Public Service Company of New Mexico (28-CA-105815) Albuquerque, NM, April 28, 2014. Order denying Respondent’s motions to dismiss or for summary judgment or to defer specified complaint allegations. Charges filed by International Brotherhood of Electrical Workers, Local Union No. 611, AFL-CIO. Members Hirozawa, Johnson, and Schiffer participated.
International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC, Local 838 (Freeman Decorating Company) (27-CB-093060) Salt Lake City, UT, April 30, 2014. The Executive Secretary, by direction of the Board, granted the joint motion of the Respondent, the Charging Party, and the General Counsel to waive a hearing and decision by an administrative law judge, and to transfer the proceedings to the Board for a decision based on the stipulated record.
United States Postal Service (34-CA-092726) Windsor, CT, April 30, 2014. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Employer must take to comply with the National Labor Relations Act. Charges filed by American Postal Workers Union, AFL-CIO. Members Hirozawa, Johnson, and Schiffer participated.
Purple Communications, Inc. (21-CA-095151, 21-RC-091531 and 21-RC-091584) Corona and Long Beach, CA, April 30, 2014. The Board issued a Notice and Invitation to File Briefs, which invited the parties and interested amici to file briefs on the issue of whether the Board should reconsider its conclusion in Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009), that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.” The Board further invited the parties and amici to address several related questions regarding the appropriate standard if Register Guard is overruled: permissible restrictions on employees’ email use; the impact on the employer of employees’ email use; the significance of employees’ access to personal devices, social media accounts, and personal email accounts; and any technological issues that the Board should consider. Briefs are due to be filed with the Board by June 16, 2014, with the parties permitted to file responsive briefs by June 30, 2014. Charge and Petition filed by Communications Workers of America, AFL-CIO.
Cobalt Coal, Ltd., Westchester Coal, L.P., and Cobalt Coal Corp. Mining Inc., a single employer (09-CA-112146) Premier, WV, May 2, 2014. No exceptions having been filed to the Administrative Law Judge’s findings 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 United Mine Workers of America, AFL-CIO.
International Brotherhood of Electrical Workers, Local Union 357, AFL-CIO (28-CC-115255) Las Vegas, NV, May 2, 2014. The Board denied the Respondent’s motion for summary judgment, finding that it had failed to establish that there are no genuine issues of material fact at issue and that it is entitled to judgment as a matter of law. Charge filed by Desert Sun Enterprises Limited d/b/a Convention Technical Services. Members Hirozawa, Johnson, and Schiffer participated.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board decisions to report.
***
Administrative Law Judge Decisions
Labor Ready Southwest, Inc., a subsidiary of Trueblue, Inc. (31-CA-072914; JD(SF)-17-14) Tacoma, WA. Administrative Law Judge Gerald A. Wacknov issued his decision on April 29, 2014. Charge filed by an individual.
200 East 81st Restaurant Corp. d/b/a Beyoglu (02-CA-115871; JD(NY)-19-14) New York, NY. Administrative Law Judge Raymond P. Green issued his decision on April 29, 2014. Charge filed by an individual.
Lederach Electric, Inc. and Morris Road Partners, LLC (single employers) (04-CA-037725; JD-22-14) Lederach, PA. Administrative Law Judge Arthur J. Amchan issued his decision on April 30, 2014. Charge filed by International Brotherhood of Electrical Workers, Local 380.
Deer Creek Electric, Inc. and Black Hills Electric, Inc., alter egos (19-CA-097260; JD(SF)-18-14) Tumwater, WA. Administrative Law Judge Mary Miller Cracraft issued her decision on May 1, 2014. Charge filed by International Brotherhood of Electrical Workers, Local 76, AFL-CIO, CLC.
Canton-Potsdam Hospital (03-CA-114181; JD(NY)-20-14) Potsdam, NY. Administrative Law Judge Steven Davis issued his decision on May 1, 2014. Charge filed by 1199 SEIU United Healthcare Workers East.
Advanced Life Systems, Inc. (19-CA-096464 and 096899; JD-23-14) Yakima, WA. Administrative Law Judge Michael A. Rosas issued his decision on May 2, 2014. Charges filed by International Association of EMT’s and Paramedics.
Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, affiliated with UNITE HERE (28-CB-107960; JD(SF)-16-14) Las Vegas, NY. Administrative Law Judge Dickie Montemayor issued his decision on May 2, 2014. Charge filed by an individual.