Today’s Labor Updates:
New overtime rules may fatten checks of more white-collar workers
BP strike seen as victory for future generations
GE Agrees To Settlement In Union Interference
Summary of NLRB Decisions for Week of April 27 – May 1, 2015
New overtime rules may fatten checks of more white-collar workers
By MICHAEL A. LINDENBERGER
Washington Bureau
Published: 07 May 2015 12:29 AM
Updated: 07 May 2015 09:14 AM
WASHINGTON —Thousands of Dallas-area white-collar workers could see fatter paychecks or shorter workweeks from changes in overtime laws that President Barack Obama plans to announce.
Those changes, promised 14 months ago, have already riled up business groups that warn of higher labor costs and reduced flexibility. Some low-level management jobs, they argue, simply require long hours.
Unsurprisingly, labor unions and workers’ advocates are cheering the rules, which would update the 1938 overtime laws for the first time since 2004.
But just how excited — or worried — they should be nobody knows, since the proposal remains secret. On Tuesday, Labor Secretary Thomas Perez said his agency has finished them but is sharing them with the White House and other agencies before making them public. That could take weeks.
Here’s what is known: Obama plans to raise the ceiling on annual salary for a white-collar worker to qualify for overtime. For eligible workers, overtime is paid at time-and-a-half for hours worked beyond 40 in a week.
Redefining exempt
Currently, employees who meet a handful of other criteria — including whether they are managers or professionals, for instance — can be exempted from overtime laws. But for that to happen, their salaries must be at least $455 a week, or just under $24,000 a year.
Way too many Americans are paid more than that but still deserve to be paid time-and-a-half for long weeks, Obama has said.
“The overtime rules that establish the 40-hour workweek, a linchpin of the middle class, have eroded over the years,” the White House said in March 2014 when Obama promised the new rules. “As a result, millions of salaried workers have been left without the protections of overtime or sometimes even the minimum wage.”
House Democrats have urged him to set the new rate at $69,000. An increase that big would make 10 million American salaried workers eligible for overtime.
But most observers say he’s unlikely to aim that high. Senate Democrats have urged him to set the threshold at just under $1,100 a week, or $56,000. Other experts predict a threshold of about $40,000.
If he matches the senators’ expectations, the impacts in North Texas will be felt widely, according to The Dallas Morning News’ analysis of 2013 data from the U.S. Census Bureau.
The data suggest 413,000 full-time workers in Dallas County earned between the current threshold of $24,000 and $56,000. That number excludes government workers and those who are self-employed.
The Census Bureau doesn’t ask whether workers are salaried or paid hourly, so it’s not possible to say with precision how many workers in that range are already eligible for overtime.
But the Current Population Survey results from March suggest that most full-time workers in Texas are salaried, not hourly. Of 7 million full-time workers in Texas who answered whether they were salaried or not, about 5 million were.
By law, overtime rules don’t apply to lawyers, doctors or outside salespersons no matter what their pay is.
Obama is expected to also narrow exemptions in other ways, by requiring, for instance, that a “manager” spend most or all of the work week managing.
Tweaking those definitions will bring unexpected consequences, former Labor Department official Alexander Passantino told The News. Courts are only now settling questions that arose in a wave of lawsuits after the 2004 revision, he said. New changes will probably trigger years of litigation.
Passantino, who led the wage and hour division at the tail end of President George W. Bush’s second term, also predicted that some workers who benefit from the changes won’t like them.
Accounting for hours
Many managers and other white-collar workers spend their days multitasking, he said. They greet customers for an hour, then spend an hour making next week’s schedule — and sometimes are thinking about both at the same time.
Under the new rules, workers who’d rather not have to track their time hour by hour will find that they now must, he said.
That’s why the National Retail Federation says it opposes the changes. And the U.S. Chamber of Commerce has long argued that such changes will hurt job seekers and some current workers.
“Changing the rules for overtime eligibility will, just like increasing the minimum wage, make employees more expensive and will force employers to look for ways to cover these increased costs,” the chamber’s Marc Freedman told Business Insider in March.
Still, Obama has argued that a system that makes just 12 percent of all salaried workers in America eligible for overtime needs fixing.
Using Labor Department numbers, the liberal Economic Policy Institute said that even increasing the threshold to $42,000 would raise that share to 32 percent.
Meanwhile, Congress has been left out of the debate for now. But once Obama issues the executive order establishing the new rules, Republicans may try to curtail them through legislation. Doing so in response to Obama’s executive action on immigration has proven difficult, however.
Sen. John Cornyn, R-Texas, said Wednesday that he’s not surprised by Obama’s approach.
“The president seems to be determined to go it alone everywhere he can,” Cornyn said. “I just worry he is going to create more confusion just to give the impression he is actually doing something.”
Follow Michael A. Lindenberger on Twitter at @lindenberger.
BP strike seen as victory for future generations
May 06, 2015 9:20 pm
Joseph S. Pete
WHITING | Strikes aren’t anything like they used to be in a more rough-and-tumble era.
Striking workers who picketed outside the BP Whiting Refinery for the last few months didn’t swear, or march up and down the picket line. They didn’t throw nails outside the gate, bust windows or park junk cars on the railroad tracks where oil tank cars exit before hurling the keys into nearby Lake Michigan.
United Steelworkers Local 7-1 members were however out on the picket line day and night to show they wouldn’t back down. They made sacrifices like keeping the thermostats down during the winter, not going out to eat, and not taking their kids on outings.
The nearly three-month-long strike took a toll. Social service agencies were starting to step in to offer assistance, such as loans to help the 1,100 or so refinery workers to keep up on their mortgage payments and stave off foreclosure.
So in the end, was it worth it?
USW Local 7-1 members say they won an important victory that will benefit future generations by preserving bargaining rights and giving the union a say in safety. The national pattern agreement, which BP agreed to, requires that the USW participate in reviews of staffing, workloads, daily maintenance and repair work at refineries nationwide.
“This strike has become part of my legacy,” said Sharon Warnecke, who was the first female firefighter at the refinery and the only one for 17 years. “What we’ve done is going to affect generations behind us. We’re grateful we were able to protect the people coming up behind us.”
The USW was unwilling to concede bargaining rights it’s had at the 126-year-old refinery since 1937. BP added language to the contract saying the union can bargain over wages, benefits and working conditions when USW Local 7-1 agreed to forfeit its ability to strike over local issues when the agreement is in effect.
“People who haven’t even been born yet will be affected by what we did,” Warnecke said. “You got to remember, this refinery has been here for more than 120 years, so it’s going to be here for a long time. We have to protect the people who are coming up behind us and their rights. Kids that are 5 years old now will someday be here working.”
Striking worker Teri Smith said the union took a stand, and the tentative agreement it secured was historically important. She said they were fighting to preserve the middle class in Northwest Indiana.
“We’re aware of what previous generations did for us,” she said. “And we’re aware that we held onto it for our future.”
GE Agrees To Settlement In Union Interference
05/08/2015 11:07 AM
GROVE CITY, PA – General Electric has responded to a recent labor dispute at the company’s Grove City Plant.
General Electric has agreed to a settlement of charges by the National Labor Relations Board (NLRB) that the company illegally interfered with free speech and labor rights of more than a thousand workers at its diesel engine plants here, according to news release from the United Electrical, Radio and Machine Workers of America Union. The union says, GE has agreed to post notices at 10 locations within the plants, pledging not to violate those rights. In the settlement agreement signed by officials of GE, the NLRB and the United Electrical, Radio and Machine Workers of America (UE), the company further agrees to “repeal the rule in our handbook that prevents our employees” from promoting the union during non-work time and distributing union literature in non-work areas during non-work time.
According to GE spokeswoman Catherine Heiman, “GE Transportation fully supports open, timely communication with its employees on work related matters such as safety and productivity. GE’s Grove City facility does not have a recognized union, however some employees did bring NLRB charges. While the settlement makes it clear GE didn’t admit any wrongdoing, GE’s Grove City facility has updated its internal communication policies.
GE and its Grove City employees have enjoyed a strong relationship for more than 42 years. Over the past 3 years, we have invested $130 million in our Grove City sites and created more than 400 new jobs. We are proud of these sites and their contribution to the community.”
After the union filed charges alleging violation of workers’ right under federal labor law, the NLRB investigated and on January 29 issued a complaint against GE, citing multiple labor law violations, according to the union. The complaint was originally scheduled for a hearing before an administrative law judge in Pittsburgh on March 25, later rescheduled for April 30, and a few days before that date the settlement was reached. The alleged violations by GE included prohibiting the posting and distribution of information about labor unions. According to the NLRB’s complaint the company “removed off-duty employees from its employee cafeterias while they were engaged in lawful union and other protected activities,” and threatened those employees with discipline.
“This is a huge victory for all GE employees,” said Steve Gallagher, president of UE Local 601, Grove City United Employees. “It was illegal for the company to threaten their employees while they were engaged in organizing activities during non-work time. This activity is protected by federal law and we are happy that the NLRB defended our rights. We will continue building the union at Grove City GE.”
GE employees in Grove City don’t have a union contract, but they do have a union. Their “members-only” union, which advocates for workers on issues including wages, insurance and working conditions, has dozens of dues-paying members in both Grove City GE plants, says Gallagher.
GE employs more than 1,200 workers at the Grove City plants, which produce new and remanufactured diesel engines. In a move that has drawn objections from the union, the company recently began hiring new employees at rates far below those paid to existing employees.
The Grove City union is an affiliate of UE, a national union that holds a national contract with GE that covers the Erie GE plant and other facilities. The local union works through the national organization to impact GE’s overall labor policies, Gallagher said.
Summary of NLRB Decisions for Week of April 27 – May 1, 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, LLC (06-CA-121513; 362 NLRB No. 73) Shippingport, PA, April 27, 2015.
The Board affirmed the Administrative Law Judge’s findings that the Union demonstrated the relevance of the requested retiree information by explaining to the Respondent that it needed the information to develop proposals regarding the current bargaining unit employees’ future retirement benefits, and that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with this relevant requested information. Additionally, the Board found that the judge did not abuse his discretion in finding that the Respondent’s proposed Exhibit 5, the complaint in a class-action lawsuit filed against the Respondent on behalf of former union employees who retired on or after January 1, 1996, and before January 1, 2005, would not support the Respondent’s claim that the Union’s request was made in bad faith for purposes unrelated to bargaining. Charge filed by International Brotherhood of Electrical Workers, Local Union No. 272, AFL-CIO. Administrative Law Judge David I. Goldman issued his decision on January 23, 2015. Chairman Pearce and Members Johnson and McFerran participated.
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Local 1235, International Longshoreman’s Association, AFL-CIO (Metal Management Northeast, Inc./Naporano Iron & Metal Company and Waste Material Recycling and General Industrial Laborers Local 108, LIUNA, Party in Interest/Intervenor (22-CD-128447 and 22-CD-132070; 362 NLRB No. 76) Newark, NJ, April 29, 2015.
This is a jurisdictional dispute proceeding under 10(k) of the National Labor Relations Act. The Employer filed charges alleging that Local 1235, International Longshoreman’s Association, AFL-CIO (Local 1235) violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Waste Material Recycling and General Industrial Laborers Local 108, LIUNA (Local 108). The Employer also filed a charge alleging that Local 108 violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Local 1235. The Board found that there are competing claims for work in dispute and that there is reasonable cause to believe that both unions have violated Section 8(b)(4)(D). The Board awarded the work in dispute to employees represented by Local 108 based on the factors of employer preference and past practice, collective-bargaining agreements, economy and efficiency of operations, and a prior AFL-CIO award over the same work in dispute. Members Hirozawa, Johnson and McFerran participated.
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Fred Meyer Stores, Inc. (36-CA-010555; 362 NLRB No. 82) Hillsboro, OR, April 30, 2015.
Upon de novo review in light of NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board found that the employer violated Section 8(a)(5) when it unilaterally altered terms and conditions of employment by limiting the right of union representatives to contact store employees, and that it violated Section 8(a)(1) when it prohibited union representatives and employees from talking on the store floor, disparaged the Union in the presence of employees, threatened to have union representatives arrested or removed from the store, called the police to the store, and caused the arrest of three union representatives. Regarding the 8(a)(5) violation, as in the vacated decision reported at 359 NLRB No. 34 (2012), a Board panel majority consisting of Chairman Pearce and Member Hirozawa agreed with the judge’s finding that the Union’s bringing 8 representatives to the 165,000 square-foot store to talk in pairs to employees about negotiations and solicit signatures for a petition did not extinguish the Union’s visitation rights because the contract did not limit the number of union representatives, the manager was aware of the presence of only 2 union representatives when he imposed the limitation, and there was no evidence they disrupted operations. Member Johnson agreed with the majority that the store manager’s prohibiting union representatives and an employee from talking with one another violated the Act. However, Member Johnson dissented and would have found that the Respondent’s other conduct was lawful because the Union staged the confrontation, the number of union representatives and the purpose of their visit exceeded the scope of the visitation policy and practice, and the Union had no right to argue at length with the employer. He also would find that the store manager’s remarks about the Union were personal opinions protected by Section 8(c). Charge filed by United Food and Commercial Workers Local No. 555, affiliated with United Food and Commercial Workers International Union. Administrative Law Judge Clifford H. Anderson issued his decision on December 8, 2010. Chairman Pearce and Members Hirozawa and Johnson participated.
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Tri-State Wholesale Building Supplies, Inc. (09-CA-125950; 362 NLRB No. 85) Cincinnati, Ohio, April 30, 2015.
The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) of the Act by unlawfully discharging 10 economic strikers before they were permanently replaced. In doing so, the Board agreed with the judge that the Respondent failed to prove a mutual understanding between itself and the replacements that they were permanent. The Board’s decision includes an amended remedy directing the Respondent to discharge any replacements currently in positions previously held by the strikers. Additionally, the remedy was amended and the judge’s Order was modified to reflect the Board’s tax compensation and Social Security Administration reporting remedies. Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on September 2, 2014. Members Hirozawa, Johnson, and McFerran participated.
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Sabo, Inc. d/b/a Hoodview Vending Co. (36-CA-010615; 362 NLRB No. 81) Tualatin, OR, April 30, 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 359 NLRB No. 36, a Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the judge’s conclusion that the Respondent violated the Act by discharging an employee for engaging in an inherently concerted conversation about job security. The Board majority stated that because the conversation was inherently concerted, it was also protected, and that in any event job security is a topic of mutual concern and directly linked to the conversants’ interests as employees. Dissenting, Member Miscimarra would not have applied the doctrine of inherently concerted activity, and would have found that the conversation was neither concerted nor protected under Meyers Industries, 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). Charge filed by Association of Western Pulp and Paper Workers Union, affiliated with United Brotherhood of Carpenters and Joiners of America. Administrative Law Judge Lana H. Parke issued her decision on November 30, 2010. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Boch Imports, Inc. d/b/a Boch Honda (01-CA-083551; 362 NLRB No. 83) Norwood, MA, April 30, 2015.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining numerous provisions in its 2010 employee handbook that interfered with the exercise of Section 7 rights, and that the Respondent did not effectively repudiate its unlawful maintenance of the rules by its May 2013 issuance of a new handbook containing revised rules. Chairman Pearce and Member Hirozawa further found that the Respondent violated Section 8(a)(1) by maintaining, in its 2010 handbook, social media rules that (a) required employees to identify themselves when posting comments about the Respondent, the Respondent’s business, or a policy issue, and (b) prohibited employees from using the Respondent’s logos in any manner. Contrary the judge, the same panel majority found that the Respondent failed to demonstrate special circumstances justifying its maintenance of a dress code rule that prohibited employees who have contact with the public from wearing pins. The panel unanimously adopted the judge’s finding that the Respondent failed to demonstrate special circumstances justifying its proscription of insignia or message clothing worn by its public-facing employees. With respect to the remedy, the panel, finding the judge’s recommended notice-posting remedy too broad, ordered only the Respondent named in the amended complaint to post notices at the facility or facilities it operates. Member Johnson dissented in part, stating that he would find that the Respondent repudiated its maintenance of overbroad rules in its 2010 handbook, and that he would adopt the judge’s finding that the Respondent demonstrated special circumstances justifying its dress code prohibition of pin wearing for employees interacting with the public.
Charge filed by International Association of Machinists & Aerospace Workers, District Lodge 15, Local Lodge 447. Administrative Law Judge Joel P. Biblowitz issued his decision on January 13, 2014. Chairman Pearce and Members Hirozawa and Johnson participated.
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Faro Screen Process, Inc. (07-CA-102899; 362 NLRB No. 84) Canton, MI, April 30, 2015.
The Board affirmed the Administrative Law Judge’s remedy for the Respondent’s unilateral implementation and rescission of a wage increase. However, the Board reversed the Administrative Law Judge’s conclusion that the Respondent’s letter announcing rescission of the wage increase did not violate Section 8(a)(1). The letter referred to the Respondent’s unilateral increase and its subsequent rescission, both of which violated Section 8(a)(5). Moreover, the Respondent’s letter misrepresented the Union’s position. For these reasons, the Board found that the Respondent’s letter constituted interference, restraint and coercion that unlawfully tended to undermine the Union in violation of Section 8(a)(1).
Charge filed by Local 591, Sign and Display Union, International Union of Painters and Allied Trades of the United States and Canada (IUPAT), AFL-CIO/CLC . Administrative Law Judge David I. Goldman issued his decision on March 27, 2014. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Chesapeake Energy Corporation and its wholly owned subsidiary Chesapeake Operating, Inc. (14-CA-100530; 362 NLRB No. 80) Oklahoma City, OK, April 30, 2015.
Applying D.R. Horton, 357 NLRB No. 184, enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA, 361 NLRB No.72 (2014), a unanimous Board panel adopted the judge’s finding that Respondents Chesapeake Energy and Chesapeake Operating violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that employees would reasonably construe to prohibit the filing of unfair labor practice charges with the Board. Reversing the judge, a panel majority consisting of Chairman Pearce and Member Hirozawa found that maintenance of the arbitration agreement also violated Section 8(a)(1) by waiving the rights of employees to pursue employment claims against Respondents on a class or collective basis in all forums, arbitral and judicial. The panel majority found, contrary to judge, that this violation was not foreclosed by Supreme Court precedent, including its decision that issued after D.R. Horton in American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013). Member Johnson dissented from this 8(a)(1) finding, citing his dissent in Murphy Oil.
The Board rejected Respondents’ argument that the complaint should be dismissed as time-barred by Section 10 (b), and because the underlying charge was filed by a statutory supervisor. The Board also rejected Respondents’ argument that because the individual who filed the charge was employed solely by Chesapeake Operating, the complaint against Chesapeake Energy should be dismissed. Charge and amended charges were filed by an individual. Administrative Law Judge Bruce D. Rosenstein issued his decision on November 8, 2013. Chairman Pearce and Members Hirozawa and Johnson participated.
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Manor Care-Ruxton, MD, LLC d/b/a ManorCare Health Services (05-RC-108090; 362 NLRB No. 68) Ruxton, MD, April 30, 2015.
The Board found that the Employer engaged in objectionable conduct warranting setting aside the election and directed a second election. A Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Employer, despite announcing to some of its employees before the critical period that they would be receiving an unspecified wage rate increase, engaged in objectionable conduct by announcing to its employees during the critical period the amount of their wage rate increase or that they would be receiving a lump-sum bonus payment. In addition, the Employer’s subsequent issuance during the critical period of paychecks reflecting those payments was also found to be objectionable. Chairman Pearce and Member Hirozawa found it unnecessary to pass on the Union’s objections to the Employer’s statements at its presentations to employees during the critical period. Member Miscimarra dissented from his colleagues’ finding that the Employer’s announcement and implementation of a wage rate increase was objectionable because he would have found that it occurred before the critical period. However, Member Miscimarra concurred with the direction of a second election because he would have found that the Employer engaged in objectionable conduct at its presentations to employees during the critical period by making a wage comparison that included employees’ recent wage rate increase for which there was insufficient evidence that it resulted from legitimate business reasons unrelated to the Union’s activities. Petitioner—1199 SEIU, United Healthcare Workers East. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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DHSC, LLC, d/b/a Affinity Medical Center (08-CA-090083, et al.; 362 NLRB No. 78) Massillion, OH, April 30, 2015.
The Board adopted, with limited footnote modifications of rationale, the Administrative Law Judge’s findings that the Respondent violated the Act by failing to recognize and bargain with the Union; by discriminatorily warning, discharging, and reporting a registered nurse to the Ohio State Nursing Board; by discriminatorily banning a union agent from previously permitted access to the Respondent’s hospital; and by certain statements made by its Director of Clinical Care Services. In addition, the Board rejected each of the Respondent’s several procedural defenses to the refusal to bargain allegations, and, noting that these same defenses have been raised and rejected in other Board proceedings involving the Respondent’s hospitals and counsel, gave notice that further repetition may warrant referral of the matter to the investigating officer for possible disciplinary proceedings under Section 102.177 of the Board’s Rules and Regulations. In finding the warning, discharge, and reporting unlawfully motivated, the Board found that the strong circumstantial evidence cited by the judge was alone sufficient to establish retaliation against the nurse for her support of the Union. The Board’s Order requires the Respondent to forward a copy of the Board’s decision to the Nursing Board, to reimburse the nurse for legal expenses she may have incurred while having to defend herself before Nursing Board, and to read the notice aloud to employees. Charges filed by National Nurses Organizing Committee (NNOC). Administrative Law Judge Arthur J. Amchan issued his decision on July 1, 2013. Chairman Pearce and Members Johnson and McFerran participated.
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Mazzara Trucking & Excavating Corporation (04-CA-116883; 362 NLRB No. 79) Wrightstown, NJ, April 30, 2015.
The Board adopted the Administrative Law Judge’s finding that the Respondent did not violate Section 8(a)(1) by interfering with union representatives who sought access to the Respondent’s Pilesgrove jobsite on November 8, 2014. Members Hirozawa and McFerran found it unnecessary to pass on the judge’s finding that the representatives were not engaging in protected activity, and instead relied on the judge’s alternative analysis that assuming their conduct was protected, the representatives lost the protection of the Act by disrupting the Respondent’s work. Member Johnson stated that he agreed with the judge’s decision. Members Hirozawa and McFerran also found it unnecessary to pass on the judge’s recommended dismissals of the complaint allegations that the Respondent violated Section 8(a)(1) by summoning police to interfere with union representatives filming alleged safety violations at the Respondent’s Green Street jobsite on November 22, 2014, and December 5, 2014, as a finding on these alleged violations would be cumulative to the judge’s finding that the Respondent violated Sec. 8(a)(1) by summoning police to interfere with union representatives’ protected activity at the Green Street jobsite on December 3, 2014, and would not affect the remedy. Member Johnson agreed with the judge’s recommended dismissals. Charge filed by Local 172, Laborers International Union of North America. Administrative Law Judge Robert A. Giannasi issued his decision on May 7, 2014. Members Hirozawa, Johnson, and McFerran participated.
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Steve Zappetini & Son, Inc. (20-CA-114390; 362 NLRB No. 77) San Rafael, CA, April 30, 2015.
In the absence of exceptions filed by the Respondent, the Board affirmed the judge’s finding that the Respondent violated Section 8(a)(3), (4), and (1) by discharging an employee. The Board denied the Charging Party’s request, raised in its exceptions, that the Board modify its standard remedies. Charge filed by International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 790, AFL-CIO. Administrative Law Judge Mary Miller Cracraft issued her decision on May 8, 2014. Chairman Pearce and Members Johnson and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Americold Logistics, LLC (25-RD-102210) Rochelle, IL, April 27, 2015. Order denying Petitioner’s Request for Review of the Regional Director’s Decision and Order dismissing the decertification petition on the ground that it raises no substantial issues warranting review. In Americold Logistics, LLC, 362 NLRB No. 58 (2015), the Board reversed the Regional Director and found that the petition in that case was barred because a reasonable time for bargaining had not elapsed when the petition was filed. In the instant case, the Board found that consistent with its Decision on Review and Order dismissing the petition in that case, it would deny the Petitioner’s request for review of the dismissal in this case by a separate order. Member Miscimarra would grant review to consider whether, consistent with the views expressed in his dissenting opinion in Americold Logistics, LLC, 362 NLRB No. 58 (2015), the petition at issue in the instant case should be processed. Petitioner—an individual. Intervenor—Retail, Wholesale and Department Store Union, UFCW, Local 578. Chairman Pearce and Members Miscimarra and Hirozawa participated.
DLH Solutions, Inc. (13-RC-135503) Hines, IL, April 28, 2015. No exceptions having been filed to the hearing officer’s overruling of the Employer’s objections in their entirety, the Board adopted the hearing officer’s findings and recommendations and certified the Petitioner, Teamsters Local 705, as the exclusive collective-bargaining representative of the employees in the appropriate unit.
Global Contact Services, Inc. (29-RC-134071) Long Island City, NY, April 28, 2015. The Board adopted the hearing officer’s recommendation to overrule the Employer’s objections, which alleged that Intervenor Transport Workers Union, Local 100, AFL-CIO, promised and provided cash benefits to employees in exchange for their voting and campaigning on Local 100’s behalf. The Board rejected the Employer’s argument that the Board should draw certain adverse inferences against Local 100 based on its failure to call its business agent as a witness and the failure of an employee to either appear or testify. Accordingly, the Board certified Intervenor Transport Workers Union, Local 100 as the exclusive collective-bargaining representative of the unit employees. Petitioner—Local 621, United Construction Trades & Industrial Employees. Other Intervenor—Local 322, United Workers of America. Chairman Pearce and Members Miscimarra and McFerran participated.
Bio-Medical Applications of New Jersey, Inc. d/b/a Bio-Medical Applications of Jersey City, Inc. (22-RD-114233) Jersey City, NJ, April 29, 2015. The Board affirmed the hearing officer’s determination that the Union engaged in objectionable conduct by requesting the discharge of the decertification petitioner, a unit employee, for alleged non-payment of dues. The Board found that the request was not a valid invocation of the contractual union security clause, where the amount demanded was “inaccurate and unsubstantiated.” The Union’s offer to the decertification petitioner of a position, whether as an employee of the Union or as an unpaid delegate, further suggested that his continued employment depended on his supporting the Union in the election. Members Miscimarra and Hirozawa found nothing objectionable in appeals by a union official to support the union to save the official’s job and based on shared ethnic heritage. Member Johnson did not reach those issues. Petitioner – an individual. Union involved – District 1199J, NUHHCE, AFSCME, AFL-CIO. Members Miscimarra, Hirozawa, and Johnson participated.
VWR International, LLC (32-RC-095934) Visalia, CA, April 29, 2015. The Board unanimously adopted the Regional Director’s findings and recommendations overruling the Employer’s objections to the election, which alleged that employees and union agents threatened and engaged in electioneering and other coercive conduct towards employees. Accordingly, the Board certified International Brotherhood of Teamsters Union, Local No. 948 as the exclusive collective bargaining representative of the employees in the unit specified in the parties’ Stipulated Election Agreement. The Board noted that the parties did not resolve the unit placement of certain employees, who were thus neither included in, nor excluded from the bargaining unit. The Board also noted that it had taken the Employer’s factual assertions regarding the timing of certain incidents as true for the purpose of evaluating the Employer’s exceptions, and that its careful examination of the Regional Director’s report and of the entire record satisfied it that the Employer’s contentions that the Regional Director was biased and prejudiced were without merit. Member Miscimarra included a footnote stating that, while he otherwise agrees with the multifactor standard set forth in Westwood Horizons Hotel, 270 NLRB 802, 803 (1984) for determining whether third-party threats warrant setting aside an election, he would abandon the phrase “general atmosphere of fear and reprisal” because it improperly suggests that an election cannot be set aside unless third-party threats affected nearly all eligible voters, no matter how close the tally and how serious the misconduct. Petitioner—International Brotherhood of Teamsters Union, Local No. 948. Chairman Pearce and Members Miscimarra and McFerran participated.
Sweet Specialty Solutions, LLC (13-RC-146414) Lemon, IL, April 29, 2015. No exceptions having been filed the Acting Regional Director’s overruling of an objection to an election held February 23, 2015, the Board certified the Petitioner, International Brotherhood of Teamsters, Local 781 as the exclusive collective-bargaining representative of the employees in the appropriate unit.
Electric Boat Corporation (01-RC-124746) Groton, CT, April 30, 2015. On a grant of review, the Board unanimously affirmed the Regional Director’s Decision and Direction of Election, finding that the Regional Director correctly directed a severance election among employees in the petitioned-for-unit of approximately 220 carpenters currently included in the Employer’s broader production and maintenance unit, and remanded the case to the Regional Director for further appropriate action. The Board found that the Regional Director had appropriately considered all relevant factors and correctly concluded that these warranted permitting the employees in the petitioned-for unit to determine whether to be represented by the Petitioner or by the Intervenor. Petitioner—United Brotherhood of Carpenters and Joiners of America, Local 1302. Intervenor—Metal Trades Council of New London County, Affiliated with AFL-CIO. Members Hirozawa, Johnson, and McFerran participated.
Orchard Manor ALP, LLC d/b/a Orchard Manor Rehabilitation & Nursing Center (03-RC-110739) Buffalo, New York, April 30, 2015. Order denying the Employer’s request to amend the certification of representation issued by the Board on December 15, 2014 to note that the inclusion (or exclusion) of the LPN Medication Nurses should be determined by a later unit clarification proceeding. In denying the request, the Board found that the stipulated election agreement did not warrant amending the certification in this manner, but that, if warranted, it could be amended on the basis of a later unit classification petition. Petitioner—CSEA, Local 1000, AFSCME, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Central Transport, LLC (14-RC-148258) St. Louis, MO, May 1, 2015. Order denying the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election on the ground that it raises no substantial issues warranting review. Member Miscimarra joins in the decision to deny review but would not apply Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013) or the “overwhelming community of interest” standard to determine whether the petitioned-for unit must include additional employees. Rather, he finds that the interests of the petitioned-for local pickup and delivery drivers are sufficiently distinct from those of the over-the road drivers (here called road drivers) to warrant establishment of a separate unit, and the Board has long held local drivers and over-the-road drivers constitute separate appropriate units where they are shown to be clearly defined, homogenous, and functionally distinct groups with separate interests which can effectively be represented separately for bargaining purposes. Petitioner–Teamsters Local 600, a/w, International Brotherhood of Teamsters. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
Isleta Resort & Casino, an Enterprise of the Pueblo of Isleta (28-CA-140945) Albuquerque, NM, May 1, 2015. Order denying the Respondent’s motion for summary judgment. Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
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Appellate Court Decisions
Woodcrest Health Care Center (800 River Road Operating Co., LLC), Board Case No. 22-CA-083628 (reported at 360 NLRB No. 58) (3d Cir. decided April 29, 2015)
In a published opinion, the court reviewed the Board’s findings that this rehabilitation and nursing facility in New Milford, New Jersey committed unfair labor practices before and after a representation election held in March 2012 in which a unit of 200 employees elected to be represented by 1199 SEIU United Healthcare Workers East. The court enforced those portions of the Board’s order remedying the employer’s 8(a)(1) violations of unlawful interrogation and creation of the impression of surveillance, but remanded to the Board the issue whether the employer’s withholding of benefits from unit employees violated Section 8(a)(3) and (1) of the Act.
The administrative law judge found that the employer committed three coercive interrogations prior to the election and unlawfully announced and implemented improvements to its healthcare plan for all employees, except those employees eligible to vote in the upcoming election. With respect to the latter issue, the parties stipulated that HealthBridge Management, LLC, which manages Woodcrest and three other health care centers and provides a common health plan for the four centers decided to adopt improvements to the plan after an unpopular reduction in benefits. Four days before the election, the employer distributed to all Woodcrest employees, except those eligible to vote in the election, a memo announcing that they, but not the employees who would be voting, would receive the improved benefits, a fact quickly discovered by unit employees. The judge found that the employer would have granted the improvements to the unit employees “but for” the upcoming election, and thus found the violation. In doing so, the judge noted that the employer had not availed itself of the Board’s safe-harbor rule, whereby it could have postponed the changes and made clear to employees that the changes would occur whether or not they select a union, but that it they were postponed to avoid the appearance of influencing the election outcome. Lastly, the judge dismissed the allegation that the employer had created of an impression of surveillance.
The Board adopted the coercive-interrogations findings, but disagreed with the judge and found that the employer unlawfully created an impression of surveillance. On the benefits issue, the Board adopted the judge’s finding that the employer’s withholding of benefits from unit employees violated 8(a)(3) and (1) for the reasons set forth in the judge’s decision.
On review, the court found that substantial evidence supported the Board’s findings that the employer created an impression of surveillance, as well as “at least one” of the coercive interrogations, stating it unnecessary to reach the other two because “it takes just a single coercive interrogation to support the remedy ordered by the Board.” On the withholding of benefits issue, the court, after discussing cases such as Radio Officers’ Union of Commercial Telegraphers Union, AFL v. NLRB, 347 U.S. 17 (1954), Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300 (1965), NLRB v. Brown, 380 U.S. 278 (1965), and NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33 (1967), stated: “We are at a loss as to why the Board’s operative test—tailored to the safe harbor—failed to address” the issues of employer motive and justification or the action’s effect on employee rights. The court held that the Board’s lack of consideration of those matters “cannot be reconciled with what the Supreme Court has instructed . . . the Board to do.” Instead, the court stated, “the Board treated the § 8(a)(3) inquiry as a ‘but for’ test—i.e., asking only whether the employees would have received benefits but for the Union’s presence—rather than considering the nature of the discrimination or the employer’s purpose.” Accordingly, and because the record was not developed on the issues it considered determinative, the court remanded the benefits issue to the Board.
The court’s opinion is available here (link is external).
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Ozburn-Hessey Logistics, LLC, Board Case No. 26-CA-023675 (reported at 357 NLRB No. 125) (D.C. Cir. decided May 1, 2015)
In a unpublished per curiam opinion, the court enforced the Board’s order and upheld its findings that this provider of transportation, warehousing, and logistics services in Memphis, Tennessee, committed unfair labor practices during the United Steelworkers Union’s organizing campaign in the seven months leading up to an election that the union lost by one vote in March 2010.
In November 2011, the Board (Chairman Pearce and Members Becker and Hayes) agreed with the administrative law judge and found that the employer unlawfully interrogated three employees about their and other employees’ union activities and sympathies, threatened one of the interrogated employees with unspecified reprisals if anyone found out about the conversation in which she was interrogated, and violated Section 8(a)(3) and (1) of the Act by denying overtime opportunities to that employee and discharging another because of their union support.
The court held that substantial evidence supported the Board’s unfair-labor-practice findings and rejected the employer’s contentions, which were largely based on challenges to the judge’s credibility resolutions that were adopted by the Board. With respect to the 8(a)(3) violations, the court agreed with the Board that, under the applicable Wright Line test, the General Counsel demonstrated union activity, knowledge, timing, and animus, and that the employer failed to show that it would have taken the same actions in the absence of the protected activity.
The Court’s unpublished opinion may be found here.
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Administrative Law Judge Decisions
Stein Industries Inc. (29-CA-134711; JD(NY)-18-15) Amityville, NY. Administrative Law Judge Steven Davis issued his decision on April 27, 2015. Charge filed by New York City and Vicinity District Council of Carpenters.
Ozburn-Hessey Logistics, LLC (15-CA-097046, et al.; JD(ATL)-08-15) Memphis, TN. Administrative Law Judge Keltner W. Locke issued his decision on April 28, 2015. Charges filed by individuals and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC a/k/a United Steelworkers Union.
Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (29-CB-125701; JD(NY)-19-15) New York, NY. Administrative Law Judge Steven Fish issued his decision on April 28, 2015. Charge filed by Time Warner Cable New York City LLC.
Rochester Regional Joint Board Local 14A (03-CC-137244 and 03-CE-137252; JD(NY)-17-15) Rochester, NY. Administrative Law Judge Lauren Esposito issued her decision on April 28, 2015. Charges filed by Xerox Corporation and Jones Lang LaSalle Americas, Inc.
Neises Construction Corp. (13-CA-135991, et al.; JD-23-15) Crown Point, IN. Errrata to the April 10, 2015 decision of Administrative Law Judge Arthur J. Amchan. Errata Amended decision.
Green Fleet Systems, LLC (21-CA-100003, et al.; JD(SF)-16-15) Carson, CA. Erratum to the April 9, 2015 decision of Administrative Law Judge Jeffrey D. Wedekind. Erratum Amended decision
International Association of Machinists and Aerospace Workers, AFL-CIO, District 70 and Local Lodge 839 (Spirit Aerosystems) (14-CB-133028; JD-25-15) Wichita, KS. Administrative Law Judge Michael A. Rosas issued his decision on April 29, 2015. Charge filed by an individual.
S. Freedman & Sons, Inc. (05-CA-121221, et al.; JD-21-15) Landover, MD, April 30, 2015. Erratum to the March 31, 2015 decision of Administrative Law Judge Michael A. Rosas. Erratum Amended decision