Today’s Labor Updates:
Can employers use paid meal breaks to offset unpaid donning and doffing time under the FLSA?
Houston Haven for Oilmen Bows to the Times
Summary of NLRB Decisions for Week of November 3 – 7, 2014, 2014
Can employers use paid meal breaks to offset unpaid donning and doffing time under the FLSA?
November 13 2014
Yes – according to a recent federal court decision in Pennsylvania, an employer can take an offset for payments for non-working meal breaks against any claims for unpaid donning and doffing time.
In Smiley v. E.I. Du Pont De Nemours and Co., the plaintiffs alleged that they were not paid for donning and doffing time before and after their shifts in violation of the Fair Labor Standards Act (FLSA). No. 3:12-cv-2380 (M.D. Pa., Nov. 5, 2014). The employees typically worked 12-hour shifts, during which they received three thirty-minute meal breaks, which the employer paid even though it was not required to do so under the FLSA. The employer argued that because the paid meal breaks exceeded any amount of payment allegedly due for donning and doffing, it could not be held liable. The court agreed.
The court explained that, although the FLSA does not specifically authorize offsets of paid non-work time for unpaid work time, offsets are only precluded in two circumstances. First, an employer may not take an offset for any payment that is excluded from the employee’s “regular rate of pay” for purposes of calculating overtime. Second, an employer cannot take an offset if the parties agreed to treat the non-work time as “hours worked” for FLSA purposes. If neither of these conditions applies, an offset may be permissible.
In Smiley, the court held that an offset was permissible for the paid meal breaks. There was no dispute that the employer included the paid meal breaks in the employee’s regular rate of pay, nor was there any evidence that the parties agreed to treat the meal breaks as hours worked. Because the paid meal break time exceeded the amount of time the employees spent donning and doffing, the court determined there was no liability under the FLSA and granted the employer’s motion for summary judgment.
Takeaway: In limited circumstances, an employer may take an offset for paid non-work time against unpaid work time, precluding liability under the FLSA.
Houston Haven for Oilmen Bows to the Times
Petroleum Club, Built for Wildcatters, Aims to Mirror More Diverse Industry
By Daniel Gilbert
Updated Nov. 12, 2014 7:51 p.m. ET
HOUSTON—When this city’s Petroleum Club settled into a 44-story high-rise half a century ago, it occupied the loftiest perch in the tallest building west of the Mississippi.
Now the club built for the outsize personalities of wildcatters is moving across the street and getting a makeover that reflects the current state of the energy industry here—global, cosmopolitan and at least a little bit female.
On Thursday, the club is scheduled to auction off many of its furnishings, from burnt-orange leather couches to geology-themed art. It will leave behind both the grand—dark oak-paneled walls and a ballroom with 26-foot windows—and the faded, including stained asbestos ceiling tiles and a service elevator with a flickering, greenish light.
Exxon Mobil Corp. , the club’s landlord, sold the building last year as part of its move to a new campus north of Houston. The club’s lease is up in January, and the new owner plans extensive renovations.
So the club is relocating to a 31,000-square-foot space, about a third smaller than its current 45,000 square feet. The move will bring an increase in membership costs, which now include a $2,000 initiation fee and a monthly charge that varies by the age of the member.
“I love old, historic clubs,” said Daniel Moreno, the Petroleum Club’s general manager, who took the job last year after running a yacht club in nearby Kemah, Texas. The old location “had its day,” he said. “It’s time for a move.”
The Petroleum Club of Houston, founded in 1946, moved to its current home in 1963. John F. Kennedy was president, and a group of oil-rich nations had begun calling itself the Organization of Petroleum Exporting Countries. Over more than 50 years, the club has catered to generations of Texas oilmen through America’s heyday as an energy superpower, the oil bust of the late 1980s, and a technology-fueled renaissance that has sent U.S. crude output soaring anew.
Jack Donahue, who wrote a history of the club, summed up its ethos as “Clark Gable with a touch of gray at his temples.”
Its décor is a throwback to the times when the oil business was run almost solely by men, who ordered up furnishings to reflect their power.
“The design and appointments must create a feeling of strength,” Adolphe G. Gueymard, a banker and club official, instructed the architects in a 1960 letter, quoted in Mr. Donahue’s book, “The Finest in the Land,” published in 1984.
“Although the club is to be basically for the male sex, we must not completely disregard our opposite sex,” Mr. Gueymard wrote. The club offered bridge luncheons and fashion shows for the “ladies.”
Chairs were built for “big-butted Texas oilmen,” according to the history. Leather designed to mimic the iridescent quality of petroleum came from Scottish cows, whose hides lacked the barbed-wire punctures common in American livestock.
The club’s most prominent piece of art hangs in its cavernous ballroom: a 21-foot-tall tapestry of the layers of rock that run beneath Texas, created by Houston artist David Adickes and hand-woven in Madrid. It is for sale at Thursday’s auction.
“A lot of it yells 1960s at you,” said Fort Flowers, a Houston investment manager whose parents had their first date at the Petroleum Club. Mr. Flowers, a former engineer at Schlumberger Ltd. , joined the club in 1988. It has become more inclusive over the years, he said, even accepting members who haven’t drilled an oil well.
When it moves to its new home, the club will shed the names of suites that honor industry figures like Col. Edwin Drake, who drilled America’s first gusher in Titusville, Pa., in 1859. Instead, rooms will bear the names of corporate sponsors. A banquet room, stocked with wines including a 4-liter bottle of 1975 Chateau Fombrauge, will be called the Schlumberger Vintage Room.
The refashioned club will have new refinements: a ventilated cigar room; an English-style pub; a chef’s table with a view of downtown.
It will feature marble floors, custom-designed carpets, earth tones and gold-leaf ceilings.
The décor committee calls the new look “timeless elegance.” The most visible display of petroleum will be geodes, often unearthed by oil companies, that are on loan from Houston’s Museum of Natural Sciences.
But the club still depends enough on the fortunes of the petroleum business for Mr. Moreno to fret about oil prices, which have fallen more than 25% since the summer. “It affects us,” he said. “We’re in the middle of a capital campaign.”
Summary of NLRB Decisions for Week of November 3 – 7, 2014, 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 (link sends e-mail) or 202‑273‑1991.
Summarized Board Decisions
Ampersand Publishing, LLC d/b/a Santa Barbara News-Press (31-CA-029253; 361 NLRB No. 88) Santa Barbara, CA, November 3, 2014.
In light of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s Decision and recommended Order. The Board affirmed the judge’s rulings, findings, and conclusions and adopted the judge’s recommended Order to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 358 NLRB No. 155, which was incorporated by reference. In the Decision and Order reported at 358 NLRB No. 155, the Board found that the Respondent violated Section 8(a)(1) by issuing subpoenas to current and former employees, prior to their testimony at a National Labor Relations Board hearing, that requested copies of affidavits the employees had submitted to the National Labor Relations Board in an unfair labor practice investigation. In so finding, the Board rejected the Respondent’s argument that the Noerr-Pennington doctrine immunizes it from liability because the subpoenas constituted direct petitioning or, alternatively because they constituted conduct incidental to direct petitioning under the First Amendment.
In agreeing with the rationale in the now-vacated decision reported at 358 NLRB No. 155 that the Respondent acted with an illegal objective in serving the 2009 subpoenas on several current and former employees to obtain their confidential Board affidavits, the Board stated that it relied for background purposes only on the Respondent’s issuance of similar subpoenas in 2007 and clarified that the Respondent’s 2009 activity would be unlawful even without regard to its 2007 actions. In addition, the Board noted that Santa Barbara News-Press, 357 NLRB No. 51 (2011), referenced in the now-vacated Board decision, was subsequently vacated by the U.S. Court of Appeals for the D.C. Circuit. See Ampersand Publishing, LLC v. NLRB, 702 F.3d 51 (D.C. Cir. 2012). The Board clarified that the outcome of that case did not affect its decision in this proceeding. Finally, the Board substituted a new notice in accordance with Durham School Services, 360 NLRB No. 85 (2014).
Administrative Law Judge Lana Parke issued her decision on February 5, 2010. The charges were filed by Graphic Communications Conference, International Brotherhood of Teamsters. Chairman Pearce and Members Hirozawa and Schiffer participated.
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Quicken Loans, Inc. (28-CA-075857; 361 NLRB No. 94) Scottsdale, AZ, November 3, 2014.
In light of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s Decision and recommended Order. The Board adopted, for the reasons stated in the vacated Decision and Order reported at 359 NLRB No. 141 (2013), the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) of the Act by maintaining an unlawful non-disparagement handbook rule, as well as a proprietary/confidential information handbook rule to the extent that it unlawfully prohibited disclosure of certain personnel information. Administrative Law Judge Joel P. Biblowitz issued his decision on January 8, 2013. Charge filed by an individual. Chairman Pearce and Members Hirozawa and Schiffer participated.
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Nestlé-Dreyer’s Grand Ice Cream, Inc. (31-CA-074297; 361 NLRB No. 95) Bakersfield, CA, November 5, 2014.
The Board granted the General Counsel’s motion for summary judgment in this 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.
The Board noted that at the time it issued its original Decision and Order in this proceeding, the composition of the Board included three persons whose appointments had been challenged as constitutionally infirm. That Decision and Order was pending before the Fourth Circuit Court of Appeals on a petition for review and a cross application for enforcement at the time that the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. Thereafter, the court of appeals remanded this case to the Board for further proceedings consistent with the Supreme Court’s decision.
In granting the motion, the Board rejected the Respondent’s contention that the bargaining unit is inappropriate, finding that all representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding.
Member Johnson noted that he did not participate in the underlying representation proceeding and expressed no opinion concerning whether it was correctly decided. He agreed that the Respondent did not present any new matters that were properly litigable in the unfair labor practice case.
Charge filed by International Union of Operating Engineers Local 501, AFL-CIO. Chairman Pearce and Members Hirozawa and Johnson participated.
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Dover Hospitality Services, Inc. a/k/a Dover Caterers, Inc. a/k/a Dover College Services, Inc. a/k/a Dover Group of New York a/k/a Dover Group a/k/a Quick Snack Foods, Inc. (29-CA-063398; 361 NLRB No. 90) Plainview, NY, November 5, 2014.
In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order. Chairman Pearce and Member Schiffer affirmed the Judge’s rulings, findings, and conclusions and adopted the judge’s recommended Order to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 359 NLRB No. 126 (2013), which was incorporated by reference. In that Decision, the Board adopted the Administrative Law Judge’s findings that the Respondent violated the Section 8(a)(5) of the Act by failing and refusing to provide the Union with relevant requested information and by failing to respond to the union’s information request in a timely manner.
Member Miscimarra concurred in finding the violation for the reasons stated by the judge, while observing that the Respondent’s failure to timely respond to the Union’s information requests meant that potential confidentiality and overbreadth defenses to the Union’s requests were not timely raised.
Administrative Law Judge Mindy E. Landow issued her decision on February 22, 2013. Charge filed by Local 1102 of the Retail, Wholesale & Department Store Union, United Food & Commercial Workers Union. Chairman Pearce and Members Miscimarra and Schiffer participated.
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International Union of Operating Engineers, Local 627 (17-CB-072671; 361 NLRB No. 93) Tulsa, OK, November 5, 2014.
In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order. The Board adopted the Judge’s rulings, findings, and conclusions to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 359 NLRB No. 91 (2013) that the Respondent violated the Act by denying the Charging Party’s requests to examine the exclusive hiring hall out-of-work referral list; removing the Charging Party from the out-of-work referral list and refusing to permit the Charging Party to re-register on the out-of-work referral list; and refusing to stamp the Charging Party’s Oklahoma Employment Security Commission work search book. Member Miscimarra concurred in the decision. He stated that, as to the analysis applied by the Judge pursuant to Wright Line, he would adhere to the formulation that he described in his concurring opinion in Starbucks Coffee Co., 360 NLRB No. 134 (2014). Administrative Law Judge Eleanor Laws issued her decision on August 21, 2012. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Tekweld Solutions, Inc. (29-RC-099621) Farmingdale, NY, November 3, 2014. Order denying the Employer’s motion for full-Board reconsideration of the Board’s August 15, 2014 Decision and Direction, reported at 361 NLRB No. 18. The Board stated that the Employer’s motion was referred to the three-member panel that issued the Decision and Direction, the Board was polled at the request of one of the members of the original panel, and a majority did not vote in favor of reconsideration. Further, the Board stated that the motion raised no issue not previously considered. Member Miscimarra joined the decision for the same reasons, but stated that he adhered to his position, expressed in his partial dissenting opinion in the Decision and Direction, that the Board should establish a new eligibility date and direct a new election in this case, or in the absence of a new election count the 23 challenged ballots. Petitioner—Warehouse Production Sales and Allied Services Employees Union, Local 811. Members Miscimarra, Hirozawa, and Johnson participated.
Tekweld Solutions, Inc. (29-RC-099621) Farmingdale, NY, November 3, 2014. Order denying the Employer’s Appeal of the Regional Director’s determination not to process the Employer’s September 2, 2014 letter as an objection to the revised tally of ballots. In denying the appeal, the Board did not rely on the Regional Director’s statement that the conduct described in the Employer’s letter falls outside of the time period for objections to a rerun election as provided in Sec. 11456.3 of the NLRB Casehandling Manual (Part Two) Representation Proceedings, but instead relied on Sec. 11392.2(c), which provides that objections to a revised tally of ballots should serve as a basis for investigation only of the circumstances leading up to and surrounding the revised count, not those leading up to and surrounding the election itself. The Board noted that the Employer’s letter involved circumstances surrounding the initial election, not the revised count. Member Miscimarra agreed with the disposition, but as expressed in his dissenting opinion in Tekweld Solutions, 361 NLRB No. 18 (2014), stated that the Board should establish a new voter eligibility date and direct a new election in this case, or in the absence of a new election, count the 23 challenged ballots. Petitioner—Warehouse Production Sales and Allied Services Employees Union, Local 811. Members Miscimarra, Hirozawa, and Johnson participated.
Lawrence+Memorial Corporation, Lawrence+Memorial Hospital, Inc., and Lawrence & Memorial Physician Association, Inc. (01-RC-134298 and 134311) New London, CT, November 5, 2014. Chairman Pearce and Member Hirozawa denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review. In dissent, Member Miscimarra stated that he would grant review on the basis that the Employer has raised a substantial issue as to the appropriateness of the single-location unit. Petitioner—AFT Connecticut, American Federation of Teachers, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Noll-Fisher, Inc. (08-RC-107099) Anna, OH, November 6, 2014. Order denying the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election. The Regional Director included three disputed employees in the unit of electricians found appropriate, as dual-function employees, finding that the parties’ oral stipulation that the unit was limited to “full-time electricians” did not provide clear guidance. Petitioner—International Brotherhood of Electrical Workers, Local 683. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
Management & Training Corp d/b/a Keystone Job Corp Center (04-CA-118130) Centerville, UT, November 4, 2014. No exceptions having been filed to the September 22, 2014 decision of Administrative Law Judge Susan A. Flynn finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the Judge’s findings and conclusions and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charge filed by Service Employees International Union, Local 668.
Star-Hyundai (29-CA-130067) Bayside, NY, November 4, 2014. Order denying the Respondent’s petition to revoke an investigative 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 Respondent failed to establish any other legal basis for revoking the subpoena. Members Hirozawa, Johnson and Schiffer participated. Charge filed by an individual.
Decker Truck Line, Inc. (27-CA-107239) Fort Collins, CO, November 5, 2014. No exceptions having been filed to the September 23, 2014 decision of Administrative Law Judge Eleanor Laws finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the Judge’s findings and conclusions and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charge filed by David Miller, Esq., The Sawaya Law Firm.
International Union of Operating Engineers Local No. 324 and 324-A, AFL-CIO (Michigan Conveyor Manufacturers Association) (07-CB-109303) Bingham Farms, MI, November 5, 2014. No exceptions having been filed to the September 23, 2014 decision of Administrative Law Judge Kenneth W. Chu finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the Judge’s findings and conclusions and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charge filed by Michigan Conveyor Manufacturers Association.
National Association of Letter Carriers Branch 283, affiliated with National Association of Letter Carriers, AFL-CIO, CLC (United States Postal Service) (16-CB-112283 and 120229) Houston, TX, November 5, 2014. No exceptions having been filed to the September 23, 2014 decision of Administrative Law Judge Joel P. Biblowitz finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the Judge’s findings and conclusions and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charge filed by an individual.
Danite Holdings, Ltd d/b/a Danite Sign Company (09-CA-123404 and 09-CA-124532) Columbus, OH, November 7, 2014. No exceptions having been filed to Administrative Law Judge Christine E. Dibble’s September 26, 2014 decision finding that the Respondent had engaged in certain unfair labor practices, the Board adopted those findings and conclusions and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charges filed by Sheet Metal Workers International Association, Local Union No. 24, AFL-CIO-CLC (SMWIA) and International Brotherhood of Electrical Workers, Local Union 683, AFL-CIO-CLC.
Tri-State Metal Works, Inc. (22-CA-072415) Wayne, NJ, November 7, 2014. No exceptions having been filed to Administrative Law Judge Steven Fish’s November 20, 2012 decision finding that the Respondent had engaged in certain unfair labor practices, the Board adopted those findings and conclusions and ordered the Respondent to take the action set forth in the Judge’s recommended Order. The Board noted that by order dated October 24, 2014, the United States Court of Appeals for the Third Circuit granted the Board’s motion to vacate and remand this proceeding in light of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). Accordingly, the Board stated that it was now issuing a new unpublished Order in the absence of exceptions. Charge filed by Sheet Metal Workers Local Union 25.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Danite Holdings, Ltd d/b/a Danite Sign Company (09-CA-123404; JD-57-14) Columbus, OH, November 3, 2014. Errata of decision of Administrative Law Judge Christine E. Dibble issued on September 26, 2014. Errata Amended Decision.
McKenzie-Willamette Regional Medical Center Associates, LLC, d/b/a McKenzie-Willamette Medical Center (19-CA-119098; JD(SF)-54-14) Springfield, OR. Administrative Law Judge Dickie Montemayor issued his decision on November 4, 2014. Charge filed by Service Employees International Union Local 49, CTW-CLC.
McKesson Corporation (12-CA-094552, et al.; JD(ATL)-30-14) Lakeland, FL. Administrative Law Judge Keltner W. Locke issued his decision on November 4, 2014. Charges filed by International Brotherhood of Teamsters, Local 79.
Oncor Electric Delivery Company, LLC (16-CA-103387 and 112404; JD(ATL)-31-14) Dallas, TX. Administrative Law Judge Ira Sandron issued his decision on November 4, 2014. Charges filed by International Brotherhood of Electrical Workers, Local Union No. 69, affiliated with International Brotherhood of Electrical Workers.
Tito Contractors, Inc. (05-CA-119008, et al.; JD-63-14) Washington, DC. Administrative Law Judge Arthur J. Amchan issued his decision on November 4, 2014. Charges filed by International Union of Painters and Allied Trades, AFL-CIO, District Council 51.
Roemer Industries, Inc. (08-CA-124110; JD-64-14) Masury, OH. Administrative Law Judge David I. Goldman issued his decision on November 5, 2014. Charge filed by United Steel Paper & Forestry Rubber Manufacturing Energy Allied Industrial and Service Workers International Union, AFL-CIO, CLC.
Jamestown Fabricated Steel and Supply, Inc. (03-CA-119345; JD-65-14) Jamestown, NY. Administrative Law Judge Mark Carissimi issued his decision on November 6, 2014. Charge filed by Shopmen’s Local Union No. 470 of the International Association Bridge, Structural, Ornamental & Reinforcing Iron Workers.