This Week’s Updates:
Summary of NLRB Decisions for Week of April 13 – 17, 2015
Reasonable Accommodation Quiz
Summary of NLRB Decisions for Week of April 13 – 17, 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
FirstEnergy Generation Corp. (06-CA-036631; 362 NLRB No. 66) Shippingport, PA, April 14, 2015.
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 decision and order. For the reasons stated in its now-vacated Decision and Order reported at 358 NLRB No. 96 (2012), the Board adopted the judge’s conclusion that the Respondent violated the Act by unilaterally implementing a change to the future retirement healthcare benefits of current employees.
Charge filed by International Brotherhood of Electrical Workers, Local Union No. 272, AFL-CIO. Administrative Law Judge David I. Goldman issued his decision on September 17, 2010. Members Hirozawa, Johnson, and McFerran participated.
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Katz Metals Fabricators, Inc. d/b/a Major Sheet Metals Company, single employers and alter egos (02-CA-095920, et al.; 362 NLRB No. 67) Bronx, NY, April 15, 2015.
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 offer reinstatement to an employee as agreed in the settlement. 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. Because the agreement objectively manifested assent to the entry of a default-judgment order in the event of the Respondent’s noncompliance, and the Respondent is undisputedly noncompliant, the Board noted that entry of default judgment is appropriate, even though the agreement states that the Respondent “will have waived its right to file an Answer” rather than stating that a previously filed answer “will be considered withdrawn.”
The Board ordered the Respondent to honor and abide by the terms of the 2012-2015 agreement during its term; make the unit employees whole for any loss of earnings and other benefits they may have suffered as a result of unlawful changes to the agreement; offer reinstatement to named employees; remove from the employees’ files any references to the unlawful layoffs and notify them that this has been done; and 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 addition, the Board ordered the Respondent to make all contractually-required contributions to fringe benefit funds that it failed to make, if any; reimburse unit employees for any expenses ensuing from its failure to make any required contributions; compensate employees for any adverse tax consequences of receiving lump-sum backpay awards; and file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters.
Charge filed by Local 810 International Brotherhood of Teamsters, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Landry’s Inc. and its wholly owned subsidiary Bubba Gump Shrimp Co. Restaurants, Inc. (32-CA-118213; 362 NLRB No. 69) Houston, TX, April 16, 2015.
The Board agreed with the judge’s dismissal of the complaint, which alleged that the Respondent violated Section 8(a)(1) by maintaining an unlawful social media policy in the May 2012 edition of the employee handbook. But the Board relied only on the judge’s findings that the charge in this case was filed when the May 2012 handbook, which was specifically identified in the complaint as the basis for the alleged violation, had already been superseded by the October 2013 handbook and that the October 2013 version was neither alleged nor found to be unlawful. The Board did not rely on the judge’s misstatement that the 2012 social media policy had not been enforced, but found no evidence that the policy had been enforced in response to Section 7 activity. The Board also did not rely on the judge’s comment that, were the Board to order a remedy here, such a remedy “could be characterized as punitive rather than remedial.” Charge filed by an individual. Administrative Law Judge Gerald A. Wacknov issued his decision on June 26, 2014. Members Miscimarra, Hirozawa, and Johnson participated.
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United States Postal Service (10-CA-129726; 362 NLRB No. 70) Columbia, SC, April 17, 2015.
The Board affirmed the judge’s findings that the Respondent unlawfully failed to furnish relevant information to the Union. The Board also ordered the Respondent waive any grievance processing deadlines that the Union missed due to the Respondent’s delay in providing information specified in the complaint. Charge filed by National Association of Letter Carriers, Branch 233. Administrative Law Judge Keltner W. Locke issued his decision on January 16, 2015. Chairman Pearce and Members Johnson and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Pacific Gas & Electric Co. (20-RC-140248) San Ramon, CA, April 13, 2015. No exceptions having been filed to the Regional Director’s overruling of the challenge to a ballot cast in an election held December 10, 2014, the Board ordered the Regional Director to open and count the challenged ballot, prepare a revised tally of ballots, and issued the appropriate certification.
Wyman Gordon Pennsylvania LLC (04-RC-126196) Plains, PA, April 14, 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 representatives threatened and engaged in other coercive conduct towards employees. Accordingly, the Board certified the Petitioner, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, as the exclusive collective-bargaining representative of the employees in the appropriate unit specified in the parties’ Stipulated Election Agreement. Member Miscimarra included a footnote agreeing with the decision but recommending the Board revise its standard for determining whether third-party threats warrant setting aside an election, set forth in Westwood Horizons Hotel, 270 NLRB 802, 803 (1984). In particular, he would remove the phrase “general atmosphere of fear and reprisal” from the standard because it improperly suggests that an election cannot be set aside unless the threats affected nearly all eligible voters, regardless of the closeness of the election results or the seriousness of the misconduct. Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Frontline Security Services, LLC (10-RC-147443) Durham, NC, April 14, 2015. The Board granted Industrial, Technical & Professional Employees Union, OPEIU Local 4873, AFL-CIO’s (Proposed Intervenor) Request for Review of the Regional Director’s Denial of its Request to Intervene. The Proposed Intervenor, a labor organization that represents guards and non-guards, seeks to intervene in this proceeding based on its status as the current representative of the petitioned-for employees and appear on the ballot only to have the Board certify the arithmetic results should it receive the majority of the ballots. The Regional Director denied the Proposed Intervenor’s request to intervene and the Proposed Intervenor, conceding that it admits non-guards into membership, sought review, urging the Board to overrule University of Chicago, 272 NLRB 873 (1984). Member Miscimarra joined in the decision to grant review on the basis that the Proposed Intervenor raises a significant question of statutory interpretation that the Board has previously declined to address. He noted that the Board does not here reach or resolve the Proposed Intervenor’s position on the merits. Petitioner—International Union, Security, Police and Fire Professionals of America (SPFPA). Chairman Pearce and Members Miscimarra and McFerran participated.
Nistel, Inc. (03-RD-130926) Kingston, NY, April 15, 2015. Order denying the Union’s Request for Review as not raising substantial issues regarding whether the Regional Director erred by finding that the Union’s assertion that the Employer will imminently cease operations too speculative to bar an election, and by directing that the ballots be opened and counted. Petitioner—an individual. Union—New York State Nurses Association. Chairman Pearce and Members Miscimarra and McFerran participated.
Long Island Living Center, LLC, and Staffpro Inc. NY (29-RC-144804 and 29-RC-144470) Far Rockaway, NY, April 15, 2015. Order denying United Food and Commercial Workers, Local 2013’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Local 2013’s request to stay the election was denied as moot. Petitioners—Local 2013 (29-RC-144804) and International Brotherhood of Trade Unions, Local 713 (29-RC-144470). Interested Party–Local 713 (29-RC-144804). Intervenor—Local 2013 (29-RC-144470). Chairman Pearce, and Members Miscimarra and McFerran participated.
Airway Cleaners, LLC (29-RC-099871) New York, NY, April 15, 2015.
The Board granted the Employer’s and Local 660, United Workers of America’s requests for review of the Regional Director’s Decision and Direction of Election. The Board found that the Regional Director’s application of accretion analysis was not appropriate in this case, and that the Employer and Local 660’s current collective-bargaining agreement bars the petition because the petitioned-for employees are included in the existing bargaining unit. To support these findings, the Board relied on its finding that the current collective-bargaining agreement’s recognition clause, read in light of its Exhibit A wage schedule, clearly covers the petitioned-for employees, who were hired to service the Employer’s new Terminal 8 contracts with American Airlines. Further, the Board relied on its findings that when the Employer acquired the new Terminal 8 contracts, it already employed, in Terminal 8 and other terminals at JFK Airport, employees who worked in the same job classifications as the petitioned-for employees, and that when the Employer had previously acquired new contracts, the employees who were hired to service those contracts were included in the existing bargaining unit. Member Miscimarra agreed that the facts support application of a contract bar in this case, although he stated that an accretion analysis may be appropriate where, for example, a collective-bargaining agreement purported to apply to a broader geographic area, to non-contiguous operations, or substantially beyond the preexisting bargaining unit. Accordingly, the Board dismissed the petition.
Additionally, the Board denied the Employer’s motion for reconsideration, which was filed with the Regional Director. The Board found that, based on the record facts and the substantial deference given to the National Mediation Board’s decision in Airway Cleaners, LLC, 41 NMB 262 (2014), the Employer was not subject to the Railway Labor Act but was subject to the National Labor Relations Act. Member Miscimarra found it unnecessary to decide the jurisdictional question because dismissal of the election petition would also be the result in the absence of jurisdiction.
Petitioner—United Construction Trades and Industrial Employees Union (UCTIE), Local 621. Intervenors—Local 660, United Workers of America; and Local 32BJ, Service Employees International Union. Chairman Pearce and Members Miscimarra and McFerran participated.
Labriola Baking Company (13-RD-089891) Chicago, IL, April 17, 2015.
The Board adopted the Regional Director’s recommendations to overrule the Employer’s objections to an election held on October 8, 2014. The Board found that the Regional Director did not err by failing to conduct a hearing because the Employer’s objections did not raise substantial and material factual issues.
In overruling Employer Objection 1, the Board found that this objection was improper because it did not concern the conduct of the election or conduct affecting the results of the election as required by Section 102.69(a) of the Board’s Rules and Regulations. The Board stated that Employer Objection 1 was essentially a motion for reconsideration of the Board’s earlier decision in Labriola Baking Co., 361 NLRB No. 41 (2014), and, as such, was untimely under Section 102.65(e)(2) of the Board’s Rules and Regulations. Member Johnson stated that he adheres to his and Member Miscimarra’s dissenting position in Labriola Baking Co., supra, but agrees with the Board’s rationale for overruling Employer Objection 1.
In overruling Employer Objection 2, the Board affirmed the Regional Director’s finding that the Employer failed to establish that Noe Ornelas was the Union’s agent. Additionally, even assuming, arguendo, that Ornelas was the Union’s agent, the Board found that his alleged threat of job loss to an employee was not objectionable because the Employer did not proffer any evidence that established that the employee could have reasonably believed that the Union or Ornelas had the ability to carry out the alleged threat. Member Johnson found it unnecessary to pass on whether Ornelas was the Union’s agent. For the reasons stated by the Regional Director, the Board also rejected the Employer’s allegation that the Union engaged in objectionable electioneering.
Accordingly, the Board certified Teamsters Local 734 as the exclusive collective-bargaining representative of the employees in the appropriate unit. Petitioner—an individual. Chairman Pearce and Members Johnson and McFerran participated.
C Cases
United States Postal Service (07-CA-101857 and 07-CA-114412) Detroit, MI, April 13, 2015. No exceptions having been filed to the February 24, 2015 decision of Administrative Law Judge Thomas M. Randazzo 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 Detroit District Area Local, American Postal Workers Union, (APWU), AFL-CIO.
Domsey Trading Corporation, Domsey Fiber Corporation and Domsey International Sales Corporation, a single employer and Arthur Salm, individually (29-CA-014548, et al.) Brooklyn, NY, April 13, 2015. With no exceptions pending before the Board after the Respondent and the General Counsel withdrew the exceptions they had previously filed to the May 22, 2013 decision of Administrative Law Judge Michael A. Marcionese 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 International Ladies’ Garment Workers’ Union, AFL-CIO and Local 99, International Ladies’ Garment Workers Union, AFL-CIO.
Austin Professional Dental Corporation, P.C. (16-CA-111300) Austin, TX, April 14, 2015. No exceptions having been filed to the February 26, 2015 decision of Administrative law Judge Gerald E. Etchingham 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 an individual.
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union International, Local 1192, AFL-CIO, CLC (Buckeye Florida Corporation, a subsidiary of Buckeye Technologies, Inc., and Georgia Pacific, LLC) (12-CB-109654) Perry, FL, April 15, 2015. The Board issued an invitation to file briefs to aid in deciding whether the Board should reconsider its rule that a union may not charge nonmembers a fee for processing grievances or if it charges such fees, what factors should be considered to determine whether the amount violates Section 8(b)(1)(A).
Domsey Trading Corporation, Domsey Fiber Corporation and Domsey International Sales Corporation, a single employer and Arthur Salm, individually (29-CA-014548, et al.) Brooklyn, NY, April 15, 2015. A corrected order issued on April 15, 2015.
United States Postal Service (10-CA-134589, et al.) Auburn, Birmingham, Decatur, Gadsden, Huntsville, Jacksonville, Leeds, and Tuscaloosa, AL, April 16, 2015. Decision and 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 American Postal Workers Union, Gadsden Area Local 537; National Association of Letter Carriers, Branch 1047; and National Postal Mail Handlers Union, Local 317. Chairman Pearce and Members Johnson and McFerran participated.
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Appellate Court Decisions
Amalgamated Transit Union, Local Union No. 1433, AFL-CIO, Board Case No. 28-CB-078377 (reported at 360 NLRB No. 44) (D.C. Circuit decided April 17, 2015)
In a published opinion, the Court denied the charging party’s petition for review of the Board’s dismissal of a complaint allegation founded on its charge that the Amalgamated Transit Union, Local Union No. 1433, AFL-CIO, violated Section 8(b)(1)(A) with regards to certain Facebook activity. Specifically, the charging party, a non-union employee, claimed that the Union unlawfully failed to remove or disavow disparaging comments that its members posted on the union’s members-only Facebook page about people who crossed the picket line during a strike over a successor contract for a unit of bus drivers at Veolia Transportation Services in Phoenix, Arizona.
In March 2012, while the parties were negotiating over the terms of a successor agreement, the negotiations broke down and a six-day strike ensued. During the negotiations and the strike, the union used its Facebook page to communicate with its members about progress in negotiations and its picketing plans. The Facebook page was private and could only be accessed by union members. During the strike, member postings became impassioned and included comments such as the rhetorical question whether picketers could “bring the Molotov Cocktails” to picket the hotel where the “scabs” were being housed, and a comment that a union member who crossed the picket line might get “2 black eyes.” There was however no allegation of strike misconduct.
The General Counsel argued at hearing that the union had a “duty to disavow” the Facebook comments, just as it might have a duty to disavow picket-line misconduct. The administrative law judge, however, rejected that position and found that the “Facebook page is in no way ‘an electronic extension’ of [the union’s] picket line.” On review, the Board agreed with the judge and held that the union was not responsible for the Facebook comments because “the individuals who posted the comments were neither alleged nor found to be [union] agents.” Chairman Pearce and Member Hirozawa (with Member Miscimarra disagreeing) also found that the Facebook comments were not unlawful threats.
On review, the court held that the Board reasonably dismissed the allegation. As the court noted, “[i]f neither the [u]nion nor one of its agents is responsible for the cited conduct then the conduct cannot form the basis of an unfair labor practice charge against the Union,” and that here it is undisputed that the union members who posted the comments were not union agents. The court rejected the charging party’s contention that a union should be held responsible if its officer or agent, who controls access to a union Facebook page, “fails to admonish online union members when misconduct occurs.” In doing so, the court held that the picket-line misconduct cases that formed the basis of that argument were inapplicable. As the court explained, citing the judge’s reasoning adopted by the Board, “a picket line—unlike a private Facebook page—is a ‘highly visible’ signal to the public and all employees of a dispute with the employer and the ‘coercive effect’ of a threat made on a picket line is “immediate and unattenuated.’” In stark contrast, the court noted, “the speech complained of here occurred on a private forum on the internet that was meant for [u]nion members’ eyes only.” At most, then, in the court’s words, the union’s “maintenance of the Facebook page facilitated communications between the [u]nion members,” and were “not threats against non-[u]nion employees.” In concluding comments, the court noted the limits of its decision to the facts of the case, and clarified that it did not mean to suggest “that the Board is foreclosed from ever finding a union guilty of unfair labor practices for postings on “closed” Internet sites.” The court then cautioned that it is “in no position to speculate about the range and limits of communications in the fast-changing world of social media” that might be implicated in subsequent cases.
The Court’s opinion is available here (link is external).
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Administrative Law Judge Decisions
Kenai Drilling Limited (31-CA-128266; JD(SF)-13-15) Bakersfield, CA. Administrative Law Judge Dickie Montemayor issued his decision on April 13, 2015. Charge filed by an individual.
Katch Kan USA, LLC (16-CA-134743; JD(NY)-15-15) San Antonio, TX. Administrative Law Judge Joel P. Biblowitz issued his decision on April 14, 2015. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC.
Boothwyn Fire Company No. 1 (04-CA-133498 and 04-CA-140365; JD-18-15) Boothwyn, PA. Administrative Law Judge Robert A. Giannasi issued his decision on April 15, 2015. Charges filed by an individual.
Logisticare Solutions, Inc. a subsidiary of Providence Service Corporation (16-CA-134080; JD(NY)-16-15) Austin, TX. Administrative Law Judge Joel P. Biblowitz issued his decision on April 15, 2015. Charge filed by an individual.
SMG Puerto Rico, II, LP (12-CA-130436, et al.; JD(ATL)-07-15) San Juan, PR. Administrative Law Judge William Nelson Cates issued his decision on April 17, 2015. Charges filed by UNITED HERE!, La Gastronomica, Local 610.
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Reasonable Accommodation Quiz |
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One of the most important concepts of employment law is the duty of reasonable accommodation. It is also probably the most misunderstood, both as to when and how to apply it. Past quizzes on Monday Morning Minute have had a few questions regarding this duty, but we thought it worthwhile to zero in on this topic alone, based on the many client questions that are posed that implicate it and require an understanding of it. So here we go:
TRUE OR FALSE
1. The duty of reasonable accommodation only arises when an employee asks for an accommodation.
FALSE. While it is usually the case that the employee or applicant must make the request for an accommodation in order for the duty to be triggered and attach to the employer, it is sometimes not necessary. This exception to the usual rule most often applies in a situation where a mental limitation or illness either prevents, or makes it difficult for the employee to request the accommodation; but, it is reasonably feasible, or at least possible that one will work (and the employer is put on constructive notice of such a need) if it is requested and applied.
2. The duty of reasonable accommodation is required only in cases involving individuals with disabilities under either the Americans with Disabilities Act or state disability laws.
FALSE. A duty of reasonable accommodation also arises when an employee or applicant requests an accommodation of their religious beliefs to certain workplace requirements. These are most often requested in terms of Sabbath observance or relief from dress code requirements. Additionally, some states including Illinois, have provided that pregnancy is to be reasonably accommodated as well.
3. To accommodate an individual with a disability an employer must do whatever it takes that will allow the employee to do the job in question.
FALSE. This is a frequent misconception. An employer under the obligation to accommodate must act reasonably to accommodate the disability up to the point where it causes an UNDUE HARDSHIP to the employer or to the other employees in the work place.
4. If an employee requests a particular accommodation, the employer must grant it or face civil liability under ADA or state disability law.
FALSE. Again, this is a misconception. The employer is only obligated to engage in what is known as the GOOD FAITH INTERACTIVE PROCESS with the employee to determine what, if any, accommodation will allow the employee to perform the essential functions of the job at issue.
5. An employer has a duty under Wisconsin state law to reasonably accommodate an employee’s criminal conviction record and work with them to give them time off to serve jail time under Huber laws.
FALSE. There is no duty to reasonably accommodate under this relatively unique Wisconsin law. While this law does require that individuals not be discriminated against because of their arrest or conviction record that is unrelated to their employment it does not require the extra duty to reasonably accommodate such a situation.
6. It is not necessary to enter into the accommodation interactive process if it is obvious that you will not be able to accommodate the employee’s disability because it is so severe.
FALSE. This is a simple, but usually costly, mistake to make. Most courts that have looked at this issue have said that the duty to engage in the interactive process is automatic whenever an employee or applicant requests, or is obviously in need of, an accommodation. These courts have even held that it is an independent violation of ADA not to engage in the process even if it is later proven that no accommodation was possible.
7. An employer is not required to grant an accommodation that is at odds with the seniority system in its collective bargaining agreement with the union that represents its employees.
FALSE. It is usually the case that an employer can refuse an accommodation of a disability because it is at odds with a union contract, but the Supreme Court in a case decided a few years ago, said that there may be “special circumstances” where an accommodation request may, in effect, trump a contract provision. The Court did not identify what these “circumstances” are, so this can be a perplexing problem that can crop up in simple situations such as an individual with diabetes requesting first-shift when they only have seniority to work the third shift. Each case should be carefully scrutinized and usually must be discussed with the union.
8. If an employee requests either Saturday or Sunday off due to their strongly held sincere religious beliefs, the employer must grant them the day they request off.
FALSE. This is, of course, the most often made request for a religious accommodation. It only needs to be granted if the employer can do so without an “undue hardship” to itself or to other employees. However, while this is true, it is often not the case that granting the request would cause an undue hardship. In such situations the employer must engage in the interactive process with employee(s) and carefully, and in good faith, weigh the respective interests of the employee and itself and other employees and come to either a reasonable accommodation or deny the request.
9. It is lawful to treat a request to be off on Sundays, due to a sincerely held religious belief requiring the employee to observe the Sabbath, the same as the request of an employee who wants off on Sunday to attend the Super Bowl.
FALSE. This is a common error. Football, even Green Bay Packers’ football in Wisconsin, is not a “religion.” Request for a schedule accommodation due to religious observance must be dealt with in the manner discussed above as the answer to question 8, as this is required by federal and state law.
10. There are only three ways to accommodate employees with disabilities in the workplace: time off with pay, changing their job duties or a leave of absence without pay.
FALSE. There are a myriad of ways to effect an accommodation. We encourage clients to think creatively and document all of their efforts to do so. While these three are among the most prominent and frequently used, one should also consider possible accommodations such as physical workplace improvements or alterations to aid in accessibility, schedule changes, part-time work schedules, other forms of flex-time, telecommuting where feasible or appropriate, reassignment to a different or vacant position, assistive lifting devices, interpretative devices, visual aids, EAP services, etc. … and the list is long and highly dependent on the individualized circumstances of each case.
As we said last week, there are many more issues raised by this fundamental, and often perplexing concept, and we will feature more quizzes on this particular topic. Drop us a line if you are interested in us doing so…..or if you have questions about any of the foregoing or any labor and employment law topic. |