Today’s Labor Updates:
Second Circuit Extends the Reach of the Cat’s Paw
Americans Increasingly Believe Labor Unions Benefit The Economy
Novelis once again appealing labor board ruling
Second Circuit Extends the Reach of the Cat’s Paw
Epstein Becker Green – John M. O’Connor USA September 1 2016
In employment litigation, plaintiffs often rely on the “cat’s paw” doctrine to hold their employers liable for discriminatory or retaliatory animus of a supervisory employee who influenced, but did not make, the ultimate employment decision. On August 29, 2016, the United States Court of Appeals for the Second Circuit, in Vasquez v. Empress Ambulance Service, Inc., greatly extended the reach of the “cat’s paw,” holding that the doctrine could be applied to hold an employer liable for an adverse employment decision that was influenced by the discriminatory or retaliatory animus of a low-level, non-supervisory co-worker.
The plaintiff, an emergency medical technician employed by the defendant, was terminated within hours of complaining to her supervisors that a male co-worker had sent her a text message containing a graphic, sexual photograph. Plaintiff alleged that when her male co-worker learned that she had complained, he manipulated his iPhone to make it appear that a conversation containing consensual sexual text banter that he had with another person was a conversation between him and plaintiff and, when questioned by the employer about plaintiff’s allegations, provided printed screen shots of portions of this alleged conversation, telling the employer that he and the plaintiff had been involved in a consensual relationship. In her lawsuit, plaintiff complained that her employer accepted the co-worker’s tale as true, and rejected her offer to turn over her cell phone for inspection or otherwise refute his claim. Instead, plaintiff asserted that she was told by her employer that it “kn[e]w the truth,” that she had a sexual relationship with the co-worker, and that her employment was being terminated because she had sexually harassed him. Plaintiff filed suit, asserting that the employer’s decision to terminate her employment was an act of retaliation in violation of Title VII because she had voiced complaints of sexual harassment. Relying on the “cat’s paw” doctrine, the plaintiff argued that the employer’s decision to terminate her employment was influenced by false information provided by her male co-worker. The district court dismissed her complaint, concluding that an employer could not be held liable under the “cat’s paw” doctrine for the discriminatory or retaliatory intent of a non-supervisory co-worker.
On appeal, the Second Circuit disagreed and reinstated plaintiff’s Complaint. Despite the fact that the male co-worker was a low-level employee without any supervisor authority, the Second Circuit held that the employer’s “own negligence provides an independent basis” to treat the male co-worker as its agent and hold it accountable for his illegitimate intent. Referencing the allegations that the employer “blindly credited” the male co-worker’s assertions and “obstinately refus[ed] to inspect [plaintiff]’s phone or to review any other evidence proffered by [plaintiff] in refutation,” the Second Circuit concluded that “an employer may be held liable for an employee’s animus under a ‘cat’s paw’ theory, regardless of the employee’s role within the organization, if the employer’s own negligence gives effect to the employee’s animus and causes the victim to suffer an adverse employment action.”
The impact of this decision on retail employers who are often called upon to make employment decisions based on information provided by one employee about another? Negligence is the key. Only when the retail employer effectively adopts the co-worker’s animus by acting negligently with regards to the information provided may the co-worker’s improper motivation be imputed to the employer to support a claim under the cat’s paw doctrine. Exercise good faith and be thorough in conducting internal investigations. Do not ignore warning signs. Consider all evidence offered in making employment decisions.
This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company. © 2015 Epstein Becker & Green, P.C.
Americans Increasingly Believe Labor Unions Benefit The Economy
This is the most optimistic Americans have been about unions since 2006.
08/31/2016 06:26 pm ET
Janie Velencia Associate Polling Editor, The Huffington Post
During the Great Recession, Americans believed labor unions mostly hurt the economy. Now a majority think unions help the economy.
Americans’ perceptions of labor unions and their impact on the economy have reached a five-year peak.
According to a new Gallup poll, 52 percent of Americans now believe unions help the U.S. economy, while 41 percent believe they hurt the economy.
This represents a 7-point rise since 2011 and it is the most positive Americans have been about the economic effects of unions since 2006, the year prior to the Great Recession.
Between 2006 and 2009, Americans’ views on the economic benefits of labor unions dropped 14 points, reaching the lowest position in over a decade. This coincided with the failure of General Motors and Chrysler, two of the big three American auto companies, and the subsequent government bailout.
Since then, the opinion of unions has been steadily improving and has nearly recovered to levels seen prior to the Great Recession.
Perceptions have improved across party lines, though among Republicans they have improved the least.
All in all, Americans are positive about other effects of labor unions. Seventy percent think unions help members of the union and 55 percent believe they help companies where workers are unionized. And overall approval of labor unions is at 56 percent, a 2-point drop from last year, when approval reached a six-year peak.
According to the Economic Policy Institute, union membership among men in the private sector dropped from 34 percent in 1979 to just 10 percent in 2013. Among women, unionization has dropped from 16 to 6 percent in the same time period. A study released on Tuesday by the EPI points to declining union membership as one cause of wage stagnation among all Americans.
But while union membership overall has been declining for decades, it has seen a growth in the digital media industry. Several big media companies, including The Huffington Post, have unionized in the last couple of
Novelis once again appealing labor board ruling
The plant is accused of widespread unfair labor practices
Published 08/27 2016 08:42PM
The United Steelworkers Union is demanding that Novelis in Oswego County comply with an order from the National Labor Relations Board to recognize and bargain with the union.
On Friday, the board maintained a judge’s decision that the company interfered in a union election.
Novelis says it is challenging the NLRB’s decision once again:
“We disagree with the NLRB’s ruling, as our employees have already spoken on the issue of joining the United Steelworkers (USW) and made their voices heard in a fair and lawful election.
Because our obligation is, as it has been throughout this process, to ensure that our employees’ decision is validated and respected, we will appeal this decision in the federal courts system, where our employees’ decision had been previously validated in the September 2014 U.S. District Court decision, and the court denied the NLRB’s request for a bargaining order.
We have enjoyed a direct and open relationship with our employees for more than 50 years and will continue to defend their choice to maintain that.”
The latest ruling from the NLRB, arrived after the company appealed accusations of “widespread unfair labor practices.”
In a statement, USW International President Leo Gerard said:
“The best course of action for Novelis to take now is to accept this ruling, drop any further legal challenges and get to work bargaining a fair contract. Workers trying to make their voices heard to improve their workplace should never face threats and intimidation.”
When workers began to organize nearly three years ago – some say they were interrogated, threatened with job loss, pay cuts, more difficult working conditions and a possible plant closure if they voted in favor of a union.
The labor board found that the offenses were so serious, there was no way to hold a fair vote.
On Friday, that ruling was upheld after the company’s appeals went all the way to the NLRB’s counsel in Washington D.C.
Summary of NLRB Decisions for Week of August 15 – 19, 2016
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
Retro Environmental, Inc./Green Jobworks, LLC (05-RC-153468; 364 NLRB No. 70) Washington, DC, August 16, 2016.
In this decision on review, a Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the Regional Director’s dismissal of the petition, finding that Retro Environmental, Inc. and Green JobWorks, LLC are joint employers of the employees in the petitioned-for unit, and that the Employers failed to prove that cessation of their joint operations is both imminent and definite. The majority reinstated the petition and remanded the case to the Regional Director for further appropriate action. Dissenting, Member Miscimarra would affirm the Regional Director’s dismissal of the petition based on imminent cessation of operations. He found it unnecessary to reach or pass on the joint-employer issue, but noted that, in his view, it was speculative whether the Employers would constitute a joint employer on future projects.
Petitioner – Construction and Master Laborers’ Local 11 a/w Laborers’ International Union of North America (LIUNA). Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Building Contractors Association, Inc. (02-RC-154031; 364 NLRB No. 74) New York, NY, August 16, 2016.
The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and Supplemental Decision and Direction of Election. A Board panel majority consisting of Chairman Pearce and Member Hirozawa agreed with the Regional Director that a multi-employer unit was appropriate because the member-employers of the bargaining association had indicated their “unequivocal intent” to participate and be bound by group bargaining. The majority also agreed with the Regional Director that the employees in the Carpenter-Foreman and Carpenter-General Foreman classifications should be not excluded from the bargaining unit as supervisory employees. Member Miscimarra dissented, stating that he would grant review because the record did not indicate that the member-employers intended to engage in Section 9(a)—rather than Section 8(f)—bargaining. He also contended that the inclusion within the multi-employer unit of 16 employers who employed no unit employees during the eligibility period was unwarranted. Finally, Member Miscimarra stated that he would grant review to consider whether it is appropriate to include the two foremen classifications in the proposed unit, given language in the parties’ 8(f) agreement indicating that these employees possess supervisory hire-and-discharge authority.
Petitioner – The District Council of New York City and Vicinity of The United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Chairman Pearce and Members Hirozawa and Miscimarra participated.
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United States Postal Service (19-CA-092096; 364 NLRB No. 62) Portland, OR, August 16, 2016. Errata to July 29, 2016 Decision and Order. Errata Amended Decision.
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Burndy, LLC (34-CA-065746, 34-CA-078077, and 34-CA-079296; 364 NLRB No. 77) Bethel, CT, August 17, 2016.
The Board rejected the Respondent’s challenges to the authority of the former General Counsel to issue the complaint and prosecute this case and the authority of the current General Counsel to ratify the issuance and continued prosecution. The Board affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by applying a work rule to prohibit talking about union matters during worktime, threatening employees with discipline and unspecified reprisals in retaliation for their union support and activities, creating the impression of surveillance of employees’ union activities, maintaining a public statements policy that prohibits employees from responding to media inquiries without prior approval and limits which employees can respond to media inquiries, and maintaining a general rule that prohibits solicitation for any unauthorized purpose on company time. The Board also affirmed the judge’s conclusions that the Respondent violated Section 8(a)(3) by harassing, disciplining, and suspending employees in retaliation for their union activities.
Charges filed by Glass Molders, Pottery, Plastics & Allied Workers Local 39B and by IUE-CWA, Local 485. Administrative Law Judge Lauren Esposito issued her decision on July 31, 2013. Chairman Pearce and Members Hirozawa and McFerran participated.
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Chipotle Services LLC d/b/a Chipotle Mexican Grill (04-CA-147314 and 04-CA-149551; 364 NLRB No. 72) Havertown, PA, August 18, 2016.
The Board affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by: (1) maintaining a rule entitled “Social Media Code of Conduct” that prohibits employees from posting incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements; (2) prohibiting an employee from circulating a petition regarding the Respondent’s adherence to its break policy; (3) discharging an employee because he engaged in protected, concerted activity by circulating a petition concerning the Respondent’s nonadherence to its break policy; (4) maintaining a rule entitled “Solicitation Policy” that prohibits employee solicitation during nonworking time in working areas if the solicitation could be within the visual or hearing range of customers; (5) maintaining a rule entitled “Chipotle’s Confidential Information” that unlawfully limits the use of the Respondent’s name; (6) maintaining a rule entitled “Ethical Communications” that directs employees to avoid exaggeration, guesswork, and derogatory characterizations of people and their motives; and (7) maintaining a rule entitled “Political/Religious Activity and Contributions” that prohibits employees from discussing politics and from using the Respondent’s name for political purposes. A Board panel majority consisting of Members Hirozawa and McFerran reversed the judge’s finding that the Respondent violated Section 8(a)(1) by directing an employee to delete certain tweets from his Twitter account, finding that the employee’s underlying actions were not concerted based on the record. Chairman Pearce would have affirmed those findings for the reasons stated by the judge, except for the judge’s finding that the employee’s tweet regarding the price of guacamole constituted protected, concerted activity, as this tweet appears unrelated to employees’ terms and conditions of employment, and thus was not for the purpose of mutual aid or protection.
Charges filed by Pennsylvania Workers Organizing Committee, a project of the Fast Food Workers Committee. Administrative Law Judge Susan A. Flynn issued her decision on March 14, 2016. Chairman Pearce and Members Hirozawa and McFerran participated.
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Verizon California, Inc. (21-CA-039382; 364 NLRB No. 79) Pomona, CA, August 19, 2016.
The Board, reversing the Administrative Law Judge, found that deferral to an arbitration award is not appropriate, and remanded the proceeding to the Region for further appropriate action. The Board held that the arbitrator’s decision—finding that an employee was not entitled to Weingarten representation because his belief that discipline might result from a telephonic interview was “unreasonable, considering all of the facts as presented”—could not be reconciled with Weingarten. The Board found that an examination of the facts under the proper standard—from the point of view of a reasonable employee rather than the supervisor—requires a finding that the employee’s belief that discipline might result from the interview was reasonable under all the circumstances. The Board thus concluded that the arbitrator’s finding that the employee was not entitled to Weingarten representation because his fear of discipline was not reasonable was “palpably wrong.”
Charge filed by Communications Workers of America, Local 9588, AFL-CIO. Administrative Law Judge Mary Miller Cracraft issued her decision on March 20, 2014. Chairman Pearce and Members Hirozawa and McFerran participated.
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McClay Energy, Inc. (09-CA-168156; 364 NLRB No. 83) Hensley, WV, August 19, 2016.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing to bargain collectively and in good faith with the Union regarding the effects of its decision to cease operations at its Hensley, West Virginia facility, and by failing to provide the Union with relevant requested information necessary to the Union’s performance of its functions as the exclusive collective-bargaining representative.
Charge filed by the United Mine Workers of America. Chairman Pearce and Members Hirozawa and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Agora Cyber Charter School (04-RC-179402) King of Prussia, PA, August 19, 2016. The Board denied the Employer’s request to stay the election, or alternatively, to impound the ballots pending the Board’s determination of its Request for Review. While expressing his disagreement with the Board’s new representation rules, Member Miscimarra agreed with the denial of the Employer’s request, without prejudice to the Board’s consideration of the Employer’s pending Request for Review. Petitioner – Agora Cyber Professionals Association, PSEA/NEA. Chairman Pearce and Members Miscimarra and McFerran participated.
RHCG Safety Corp. (29-RC-157827) Bay Shore, NY, August 19, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision on Determinative Challenged Ballots on the ground that it is moot, but without prejudice to the Employer’s right to renew its arguments concerning the eligibility of the employee at issue in its Request for Review, should the issue arise in subsequent proceedings. Petitioner – Construction & General Building Laborers Local 79. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
Wal-Mart Stores, Inc. (12-CA-171540) North Miami Beach, FL, August 18, 2016. The Board denied the Employer’s petition to revoke or modify 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, and that the Employer failed to establish any other legal basis for revoking the subpoena. The Board stated that, in considering the petition to revoke, the Board evaluated the subpoena in light of the Region’s subsequent clarifications regarding the scope of the subpoena. Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.
Paragon Systems, Inc. (09-CA-162681 and 09-CA-162706) Louisville, KY, August 19, 2016. No exceptions having been filed to the July 8, 2016 decision of Administrative Law Judge Ira Sandron’s 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 recommended Order. Charges filed by The Protection & Response Officers of America, Inc.
Personnel Staffing Group, LLC d/b/a Most Valuable Personnel (13-CA-155513) Northbrook, IL, August 19, 2016. The Board denied the Respondent’s motion for summary judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charge filed by an individual. Chairman Pearce and Members Hirozawa and McFerran participated.
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Appellate Court Decisions
Regency Heritage Nursing & Rehabilitation Center, Board Case No. 22-CA-074343 (reported at 360 NLRB No. 98) (3d Cir. decided August 16, 2016)
In an unpublished opinion, the court enforced the Board’s order issued against this operator of a nursing home in Somerset, New Jersey, for unfair labor practices committed after expiration of its collective-bargaining agreement with 1199 Service Employees International Union, United Healthcare Workers East, New Jersey Region.
The Board (Members Miscimarra, Hirozawa, and Schiffer) found that the Employer violated Section 8(a)(5) and (1) by unilaterally failing to pay contract wage rates to 70 employees hired after the contract expired in March 2011 without giving the Union notice and an opportunity to bargain. In doing so, the Board rejected the Employer’s contentions that it had no duty to pay the employees the rates established by the expired contract. The Board also found no merit to the Employer’s contentions that the unfair-labor-practice charge was untimely filed outside the six-month period specified in Section 10(b), that the Board should have deferred to arbitration, and that Member Hirozawa should have recused himself from the case.
The court upheld the Board’s findings as consistent with settled law and supported by the record evidence. On the timeliness of the charge, the court held that the record evidence indicated that the Employer had concealed its unilateral changes from the Union, and that the Union had timely filed the charge upon discovering them. Regarding the refusal to pay contract wages to the 70 employees, the court noted that the Employer failed to address settled precedent. The court further agreed with the Board that there was no basis to defer to arbitration because the parties’ agreement to arbitrate did not survive contract expiration.
Finally, the court determined that Member Hirozawa’s decision not to recuse himself from the case was not an abuse of discretion, and rejected the Employer’s two arguments for recusal. First, regarding his prior employment at a firm, which represented the Union for many years and represented the Union before the Board in this case, the court noted “there is no allegation that [Member] Hirozawa himself ever represented the Union, and the present matter was not initiated until after he left the firm.” Moreover, the court noted that he left the firm “more than three years before this case was brought before him,” which constituted one year longer than required by Executive Order 13490, and two years longer than required by the Office of Government Ethics regulations.
The court’s opinion is here (link is external).
Securitas Security Services USA, Inc., Board Case No. 31-CA-072179 (reported at 363 NLRB No. 182) (5th Cir. decided August 16, 2016)
In an unpublished per curiam order, the court granted the Employer’s motion for summary reversal of the Board’s decision. The Board found that the Employer violated 8(a)(1) by maintaining and enforcing policies, including one with an opt-out provision, that require employees to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial. The Board also found unlawful policies that employees would reasonably read as restricting their right to access the Board and its processes. The order issued about three months after the Fifth Circuit denied the Board’s petition for rehearing en banc in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), in which the court held it was bound by its prior decision in D. R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), denying enforcement in relevant part 357 NLRB No. 184 (Jan. 3, 2012), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014).
In a concurring opinion, Circuit Judge Dennis wrote separately to urge the court to reconsider en banc its holdings in Murphy Oil USA and D. R. Horton in light of the Seventh Circuit’s decision in Lewis v. Epic Systems Corp., ___ F.3d ___ No 15-2997, 2016 WL 3029464 (7th Cir., May 26, 2016), which held to the contrary.
The court’s order is here.
Klochko Equipment Rental Company, Inc., Board Case No. 07-CA-131088 (reported at 361 NLRB No. 49) (6th Cir. decided August 16, 2016)
In an unpublished opinion, the court enforced the Board’s order issued in this test-of-certification case against the Employer, which rents and repairs construction equipment with a main office in Melvindale, Michigan. The Employer had refused to bargain with Local 324 of the International Union of Operating Engineers as the certified representative of a single mechanic at its satellite office in Saginaw, Michigan, who voted in a self-determination election to be included in the existing unit of mechanics and drivers at the Melvindale facility.
In the underlying representation case, the Regional Director determined that, despite the 111-mile distance between facilities, the single mechanic shared a community of interest with the unit employees because he and the other mechanics possess identical skills, share overwhelmingly similar duties and working conditions, are commonly supervised, and have regular contact and sufficient interchange. The Regional Director also determined that the two facilities are functionally integrated, notwithstanding their geographic separation. After the election was held, the Board overruled the Employer’s objections and certified the Union.
On review, the court held that the Board’s community-of-interest determination was supported by substantial evidence; it was not persuaded by the Employer’s challenges. The court did agree with the Employer that the mechanic’s benefits differed from those of unit members, but noted that the differences were the result of collective bargaining. Accordingly, the court explained: “To deny [the mechanic]’s request to join the collective-bargaining unit based on differences that exist because [he] is not covered by the collective-bargaining agreement would defeat the purpose of the NLRA.”
The court’s opinion is here (link is external).
Rush University Medical Center, Board Case No. 13-CA-139088 (reported at 362 NLRB No. 23) (D.C. Cir. decided August 16, 2016)
In a published opinion in this test-of-certification case, the court enforced the Board’s order issued against this acute care teaching hospital (Hospital) in Chicago, Illinois, for refusing to bargain with International Brotherhood of Teamsters, Local 743 (Union). The Board certified the Union after 245 unrepresented patient care technicians (PCTs) at the Hospital voted in a self-determination election to be included in an existing unit of nonprofessional employees and skilled maintenance workers. The unit the PCTs voted to join is classified as a nonconforming unit under the Board’s Health Care Rule, 29 C.F.R. pt. 103, because it predated by 50 years the Rule’s enumeration in 1989 of the eight units that the Board would deem appropriate bargaining units in acute-care hospitals.
After the Union petitioned for the election, the Hospital claimed that the Heath Care Rule required that the voting group include, not just the PCTs, but also all other nonprofessional employees who were not currently represented. In the alternative, the Hospital contended that, at a minimum, a group of non-professional nursing assistants be included. After a hearing, the Board’s Acting Regional Director determined that a voting group consisting of only PCTs was appropriate. After the election was held in August 2014, the Board certified the Union as the PCTs’ collective-bargaining representative in the existing unit.
On review, the court held that the Board did not abuse its discretion in finding a voting group that consisted only of PCTs appropriate. After providing a summary of the history of the Board’s Health Care Rule and principles developed in Board precedent applying the Rule, the court “reject[ed] [the Hospital]’s challenge to the Board’s interpretation and application of its own regulation.” Specifically, the court upheld the Board’s interpretation of the Rule as stated in St. Vincent Charity Medical Center, 357 NLRB 854, 856 (2011), in which the Board held that self-determination elections are not implicated by the Rule’s requirement that where “there are existing non-conforming units in acute care hospitals, and a petition for additional units is filed … the Board shall find appropriate only units which comport, insofar as practicable, with the [eight defined units].” 29 C.F.R. § 103.30(c). The court agreed: “That regulation, as the Board has explained, applies by its terms to ‘a petition for additional units’” (emphasis by the court), and that a “self-determination election, by its nature, does not involve the creation of any ‘additional units.’” The court also noted that the Board’s interpretation of that provision of the Rule in St. Vincent is consistent with the purpose of the regulation, that is, “guard[ing] against undue proliferation of bargaining units in acute-care hospitals,” because a “self-determination election, by definition, involves no proliferation of bargaining units,” but instead is a mechanism for adding employees to existing units. Similarly, the court rejected the Hospital’s reliance on St. John’s Hospital, 307 NLRB 767 (1992), which involved a union petition to represent a new, rather than an existing, unit. Finally, regarding the Hospital’s alternative argument that the nursing assistants should be included in the voting group, the court found “no basis for overturning the Board’s determination.”
The court’s opinion is here (link is external).
Amglo Kemlite Laboratories, Board Case No. 13-CA-065271 (reported at 360 NLRB No. 51) (7th Cir. decided August 17, 2016)
In a published opinion, the court enforced the Board’s order issued against this manufacturer of specialty lighting equipment for unfair labor practices committed at its facility in Bensenville, Illinois.
In 2011, the Employer’s non-unionized production workers told management that they needed raises. After the company president replied that there was a wage freeze, nearly all 94 employees participated in a work stoppage protesting stagnant wages. The strike stretched into the evening and the employees memorialized their demand for a wage increase in writing. Further discussions with management ensued, in which, among other statements, the plant manager held resignation forms and told employees that if they did not like working for their current wages, they could resign. The next day, the employees continued the strike on nearby public property. Eight days later, the 50 remaining strikers signed an unconditional offer to return to work, but were told that recalls could not be determined yet because the Employer was transferring some work from Illinois to Mexico, “because of the situation.” A month later, the Employer sent letters to the 22 employees who had not been recalled stating that, because some production was moving to its plant in Mexico, it did not currently have jobs for them.
The Board (Chairman Pearce and Members Hirozawa and Johnson) found that the Employer violated Section 8(a)(1) by threatening employees with discharge for engaging in a protected, concerted work stoppage, and by transferring work to another facility in retaliation for the employees’ participation in the work stoppage. As remedies, the Board ordered the Employer to restore production work that was transferred to Mexico in retaliation for the strike. It also ordered backpay and full reinstatement for the employees who lost their jobs, leaving to compliance the determination of the precise amount of work transferred.
Before the court, the Employer challenged only the unlawful transfer of work. After listing a quantity of supporting evidence, the court upheld the Board’s finding that the strike was a motivating factor in the Employer’s transfer of work to Mexico. Regarding the remedy, the court rejected the Employer’s claim that the Board’s order could not be enforced because the General Counsel failed to prove exactly how much work was transferred to Mexico and how many employees were affected. The court explained that under the Board’s judicially approved bifurcation procedure, “the initial proceeding must show the existence of a violation, while the extent may be proved at the second stage.” For that to be true, however, the court noted that it “must be shown in the first proceeding that the violation is not de minimis.” Here, the court held, the amount of work transferred was not “miniscule,” as the Employer claimed, as shown by the significant fraction of employees who were told they might not be recalled to jobs.
The court’s opinion is here (link is external).
Kellogg Company, Board Case No. 15-CA-115259 (reported at 362 NLRB No. 86) (6th Cir. decided August 19, 2016)
In a published opinion, the court granted the petition for review and vacated the Board’s decision and order issued against this nationwide producer and distributor of ready-to-eat-cereal. Employees at the Employer’s four cereal plants are represented by four locals of the Bakery, Confectionary, Tobacco Workers, and Grain Millers International Union. The employment relationship at each plant is governed by two collective-bargaining agreements, a master agreement to which the Employer, the International, and the four locals are all signatories that sets uniform terms, and a supplemental agreement for each plant to which the Employer and the local are parties.
In 2013, during negotiations with Local 252-G for a successor supplemental agreement at its Memphis, Tennessee plant, the Employer proposed new casual-employee and alternative-crewing provisions that would permit the Employer to cease hiring all regular employees in the future and replace them with lower paid casual employees. The Board (Chairman Pearce and Member Hirozawa; Member Johnson, concurring) found that the Employer violated Section 8(a)(5) and (1) by insisting to impasse on the proposals that the Board determined would constitute midterm modifications to the existing master agreement by effectively replacing the master agreement’s system of regular and non-regular employees with a new system under which all new hires at the Memphis plant would be classified as casual employees. Consequently, the Board found the Employer’s insistence to impasse on the proposals, and its later lockout of employees, also violated Section 8(a)(5) and (1).
On review, the court disagreed with the Board’s midterm modification finding because, in its view, the Board’s decision in Milwaukee Spring, 268 NLRB 601 (1984), had disclaimed an effective modification theory, and instead would require the modification of an express contract term. Reading the terms of the master contract de novo, the court held that it contained no distinction between regular and casual employees, aside from wage levels, and thus no express term of the master agreement had been modified.
The court’s opinion is here (link is external).
Ozburn-Hessey Logistics, LLC, Board Case No. 26-CA-024057 (reported at 361 NLRB No. 100), and Ozburn-Hessey Logistics, LLC, Board Case No. 15-CA-109236 (reported at 362 NLRB No. 118) (D.C. Cir. decided August 19, 2016)
In a published opinion in this pair of related cases consolidated for decision, the D.C. Circuit enforced two Board orders issued against this provider of transportation, warehousing, and logistics services. In the first case, the Board found that the Employer committed numerous unfair labor practices in the run up to a second election in July 2011 in which its employees at four warehouses in Memphis, Tennessee, voted 165 to 164 in favor of representation by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. The second case was a technical 8(a)(5) proceeding arising from the Employer’s refusal to bargain in order to contest the validity of that election.
In the case involving the pre-election unfair labor practices, the Board (Chairman Pearce and Members Hirozawa and Schiffer) found that the Employer violated Section 8(a)(1) during the union campaign by threatening and interrogating employees, engaging in surveillance of employees and creating the impression of surveillance, confiscating union materials, and telling employees who supported the Union to resign. The Board found that the Employer violated Section 8(a)(3) by discharging one active union supporter and issuing a final warning to another. The technical 8(a)(5) turned on the Board’s determinations in the underlying representation case that the challenged ballot of a discharged employee should be counted, that the ballots of two office clericals should be excluded, and that pro-union employees had not engaged in threats of violence and electioneering that impaired employee free choice in the election.
On review, the court found that the Employer’s challenges to the certification, as well as its arguments challenging the numerous Section 8(a)(1) violations, “lack merit and warrant no further discussion.” Regarding the Section 8(a)(3) violations, the court rejected the Employer’s contention that the Board had sidestepped a full Wright Line analysis, noting that the Board allowed the Employer to advance its defenses but, after considering them in light of the record, concluded that they were pretextual. The court explained: “If the Board concludes, as it did here, that the employer’s purported justifications for adverse action against an employee are pretextual, then the employer fails as a matter of law to carry its burden at the second prong of Wright Line.” Turning to the Board’s findings of unlawful discharge and discipline, the court held that the Employer’s numerous challenges were contrary to the credited record evidence.
The court’s opinion is here (link is external).
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Administrative Law Judge Decisions
Southern Nuclear Operating Company, Inc. (10-CA-159167 and 10-CA-168661; JD-75-16) Waynesboro, GA. Administrative Law Judge Geoffrey Carter issued his decision on August 16, 2016. Charges filed by International Union, Security, Police and Fire Professionals of America (SPFPA), Local Union No. 580.
E.A. Renfroe & Company, Inc. (10-CA-171072; JD-72-16) Birmingham, AL. Administrative Law Judge Keltner W. Locke issued his decision on August 17, 2016. Charge filed by an individual.
Papa’s Penn Inc. d/b/a Papa John’s (29-CA-169864; JD(NY)-31-16) Brooklyn, NY. Administrative Law Judge Raymond P. Green issued his decision on August 18, 2016. Charge filed by Fast Food Workers Committee.
Darden Restaurants, Inc.; GMRI, Inc.; Yard House USA, Inc.; Yard House Northridge, LLC (31-CA-158487; JD(NY)-26-16) Northridge, CA. Administrative Law Judge Joel P. Biblowitz issued his decision on August 18, 2016. Charge filed by an individual.
Hobson Bearing International, Inc. (14-CA-156114; JD-78-16) Diamond, MI. Administrative Law Judge Christine E. Dibble issued her decision on August 19, 2016. Charge filed by an individual.
Anderson Excavating Company (14-CA-156092; JD-79-16) Omaha, NE. Administrative Law Judge Arthur J. Amchan issued his decision on August 19, 2016. Charge filed by International Union of Operating Engineers Local 571.
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