Today’s Labor Updates:

Fuzzy math may be basis for Labor Secretary’s claim that union workers earn more, analysis asserts
President Obama orders federal contractors to provide paid sick leave

Summary of NLRB Decisions for Week of August 24 – 28, 2015

 

Fuzzy math may be basis for Labor Secretary’s claim that union workers earn more, analysis asserts
Jackson Lewis PC – Linda L. Ryan, Howard M. Bloom and Philip B. Rosen

USA September 10 2015

“Join the union, and you’ll make more money!”

It’s a common refrain for unions trying to sell employees on the virtues of union representation. And now, Labor Secretary Thomas Perez has joined the chorus, authoring a blog post entitled, “Stronger Together: Your Voice in the Workplace Matters,” in which he claims that workers represented by unions earn $200 more weekly than non-union workers. He wrote:

“According to data from the Bureau of Labor Statistics, the median weekly earnings for union members last year were $200 a week more than for non-union workers. That’s not pocket change — $200 a week is the difference between paying the bills and worrying about whether the lights will go out.”

However, Diana Furchtgott-Roth of MarketWatch in her September 2, 2015 article, “Opinion: Workers don’t do better in unions,” disputes Secretary Perez’s claim. In brief, she notes the following

• Fact: 40% of all union workers are government employees. Perez’s data does not separate public and private sector workers. This is significant because “union members are more concentrated in higher-paying” public sector jobs, .
• Fact: Union workers tend to be older, and thus earn more money as a result of their seniority
• Fact: More union workers are located in the Northeast where wages are higher to account for the higher cost of living. A worker in Georgia earns less than one in New York, but the cost of living is less there.
• Fact: With the exception of government workers, jobs in unionized industries are shrinking. Employment in the construction industry, for example, which has a higher percentage of unionized workers, has declined by 13% in the past ten years.
• Fact: In the professional and business services industry, where there is job growth, union workers earn less—an average of $113/week less.

That union workers earn more than their non-union counterparts may be the “conventional wisdom” in some parts, but it may be a misconception – one that unions don’t hesitate to perpetuate. Organizations whose employees are presented with a union claim that union representation inevitably will increase their “bottom line” may find this analysis helpful in debunking that myth.

President Obama orders federal contractors to provide paid sick leave

Ogletree Deakins – Dara L. DeHaven and James J. Murphy

USA September 10 2015

On Labor Day, President Obama announced a new Executive Order that will require federal contractors to provide employees with paid sick leave. The new order, anticipated to apply to new federal contracts entered into on or after January 1, 2017, will require covered federal contractors and subcontractors to provide at least one hour of paid leave for every 30 hours worked and will enable employees to earn up to 7 days or more of paid sick leave annually.  Employees may use the paid time off to take care of themselves or family members and also for absences related to domestic violence, sexual assault, and stalking.

The language of the order indicates that the leave requirements will apply to only those contractor employees who are employed “in the performance of the contract or any subcontract thereunder.” Ogletree Deakins will provide updates and clarifications on this important issue and others when the U.S. Secretary of Labor proposes implementing regulations.

Summary of NLRB Decisions for Week of August 24 – 28, 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

Chemical Solvents, Inc. and Turn-To Transport, LLC, a single employer and/or alter egos  (08-CA-039218, et al.; 362 NLRB No. 164)  Cleveland, OH, August 24, 2015.

The issues involved in this case arise in the context of the Respondent Chemical Solvents, Inc.’s (CSI) decision to subcontract its trucking operations and the subsequent implementation of that decision.  The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(5) and (1) by unilaterally subcontracting the bargaining unit’s driving work.  The Board found that the parties’ collective-bargaining agreement, which expressly entitled the Respondent to transfer work to any other entity, privileged the Respondent to unilaterally subcontract the work.  The Board also affirmed the judge’s conclusion that the Respondent’s decision to lay off all the bargaining unit drivers and subcontract the driving work did not violate Section 8(a)(3) and (1).   The Board found merit in the judge’s finding that the Respondent demonstrated that it would have laid off all of the drivers for financial reasons, even in the absence of their union activities.

The Board reversed the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing changes to the unit employees’ health insurance benefits.  The Board disagreed with the judge’s conclusion that the Respondent had presented the change in health benefits to the Union as a fait accompli.  Instead, the Board finds that the Respondent provided the Union with almost 7 weeks’ notice, that the existing coverage was extended an additional month at the Respondent’s request during which time the Respondent continued to search for more attractive alternative changes, and that the parties actually engaged in meaningful bargaining over the issue.

Reversing the judge, the Board found that the Respondent’s unilateral changes to its cell phone usage policy and pretrip reporting requirements violated Section 8(a)(5) and (1).  The Board majority (Member Johnson found it unnecessary to pass on the issue) also adopted the judge’s finding that the Respondent unlawfully failed to produce information requested by the Union that was related to the effects of the decision to subcontract the bargaining unit work.  Based on this finding, and in the absence of exceptions, the Board adopted the judge’s finding that the Respondent failed to bargain about the effects of its subcontracting decision in violation of Section 8(a)(5) and (1).

Finally, the Board reversed the judge to find that the Respondents CSI and Turn-To Transport constituted a single employer and, accordingly, held both companies jointly liable for the unfair labor practices found.  The Board found it unnecessary to decide whether the Respondents were also alter egos, because doing so would not affect the remedy.  Charges filed by Teamsters Local Union 507 a/w International Brotherhood of Teamsters.   Administrative Law Judge Ira Sandron issued his decision on May 15, 2012.  Members Hirozawa, Johnson, and McFerran participated.

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Benjamin H. Realty Corp.  (22-CA-110689; 362 NLRB No. 181)  East Orange, NJ, August 25, 2015.

On September 10, 2013, the Acting General Counsel filed a Motion for Summary Judgment and a memorandum in support.  On September 11, 2013, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted.  The Respondent filed a response.

On November 13, 2014, the Board issued a Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the November 13, 2014 certification of representative issued.  This Decision is reported at 361 NLRB No. 103. Thereafter, on December 10, 2014, the Respondent filed a motion for reconsideration of the November 13, 2014 Decision, Certification of Representative, and Notice to Show Cause, based on the fact that at the time the Decision issued, the Board had not acted on the Respondent’s October 15, 2014 Motion to Reopen the Record in Case 22-RC-087792.  By unpublished Order dated May 7, 2015, the motion to reopen the record and the motion for reconsideration were denied.

On February 6, 2015, the General Counsel filed a Motion to Amend the complaint, to include the allegations that on about January 22, 2015, the Union requested that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit employees, and that since that time, the Respondent refused to do so and continues to refuse to do so.  The Respondent filed an opposition to the motion on February 13, 2015.  On May 27, 2015, the Board granted the motion to amend. Thereafter, the Respondent filed an answer to the amended complaint.  The Respondent admitted its refusal to bargain but contested the validity of the certification on the basis of its contention in the underlying representation proceeding that the bargaining unit is inappropriate.  The Respondent also alleged as an affirmative defense that it intended “to challenge all Board Decisions by Appeal to the United States Circuit Court of Appeals.”

The Board granted the General Counsel’s motion for summary judgment, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.  In addition, the Board rejected the Respondent’s affirmative defense, finding that the Respondent did not articulate what alleged deficiencies it found in any particular decision, and therefore that the Respondent’s affirmative defense did not clearly articulate any justiciable issue.  Charge filed by Residential Construction and General Service Workers, Laborers Local 55. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Leslie’s Poolmart, Inc.  (21-CA-102332; 362 NLRB No. 184)  Phoenix, AZ, August 25, 2015.

Applying Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), the Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) of the Act by maintaining and enforcing a Mutual Agreement to Arbitrate Claims, which required employees, as a condition of employment, to agree to resolve certain employment-related disputes exclusively through individual arbitration and to relinquish any right to resolve such disputes through collective or class action.  The Board rejected the Respondent’s arguments that the complaint was time-barred under Section 10(b), that the Charging Party did not have standing to assert his unfair labor practice charge because he was no longer employed by the Respondent, and that the Charging Party did not engage in protected concerted activity by filing, as an individual, a class action suit.  The Board ordered the Respondent to rescind or revise its unlawful policy, to notify the court in which it had opposed the Charging Party’s class action that it had done so and would no longer oppose the action on the basis of the policy, and to reimburse the Charging Party for reasonable expenses and legal fees incurred in opposing the Respondent’s motion to compel individual arbitration.

Member Johnson, dissenting, would not have found the Respondent’s maintenance or enforcement of the agreement unlawful.  Because he would find no violation, he found it unnecessary to consider the propriety of the remedies ordered for the enforcement violation.  He similarly found it unnecessary to pass on the Respondent’s argument that the Charging Party did not engage in concerted activity by individually filing a class claim, but observed that he does not agree with his colleagues that the mere filing of an opt-out class action falls within the framework created by Meyers Industries, Inc., 281 NLRB No. 118 (1986)(“Meyers II”), enfd. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied, 487 U.S. 1205 (1988), for determining protected, concerted activity.  Charge filed by an individual.  Administrative Law Judge Lisa D. Thompson issued her decision on January 17, 2014.  Members Hirozawa, Johnson, and McFerran participated.

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DPI Secuprint, Inc.  (03-RC-012019; 362 NLRB No. 172)  Rochester, NY, August 25, 2015.  Errata to August 20, 2015 Board decision.  Errata   Amended Decision.

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Local 560, International Brotherhood of Teamsters (County Concrete Corporation)  (22-CC-083895, et al.; 362 NLRB No. 183)  Kenvil, NJ, August 26, 2015.

The Board found that the Respondent waived any challenge to the Administrative Law Judge’s finding that, through language in its Winter 2013 Update Letter, which it sent to signatory contractors, the Respondent violated Section 8(b)(4)(ii)(A).  Further, the Board affirmed the administrative law judge’s finding that, through language in the Winter 2013 Update Letter, the Respondent also violated Section 8(b)(4)(ii)(B).  Finally, the Board denied the General Counsel’s motion for summary default judgment in Cases 22-CC-083895 and 22-CE-084893, without prejudice to the General Counsel’s renewing the motion within 14 days from the date of the Decision and Order.  Charge filed by County Concrete Corporation.   Administrative Law Judge Arthur J. Amchan issued his decision on July 26, 2013.  Chairman Pearce and Members Miscimarra and Johnson participated.

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ABM Onsite Services-West, Inc.  (19-CA-153164; 362 NLRB No. 179)  Portland, OR, August 26, 2015.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union.  Charge filed by International Association of Machinists and Aerospace Workers, District Lodge W24, Local Lodge 1005.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Ozburn-Hessey Logistics, LLC  (26-CA-070471, et al.; 362 NLRB No. 180)  Brentwood, TN, August 26, 2015.

This is one of several unfair labor practice cases arising out of the Charging Party Union’s effort to organize the Respondent’s Memphis, Tennessee facilities.  The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(4), (3) and (1)  by suspending one employee and that it violated Section 8(a)(3) and (1) by discharging another employee.  Member Miscimarra dissented, in part, as to the discharge violation.  He would find that the General Counsel failed to establish a prima facie case of unlawful antiunion motivation.  The Board reversed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) and (1) by discharging two other employees.  The remedies imposed included a broad cease and desist order, and a requirement that the notice be read to assembled employees.  Charges filed by United Steelworkers Union.  Administrative Law Judge Margaret G. Brakebusch issued her decision on April 26, 2013.  Members Miscimarra, Johnson and McFerran participated.

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Berklee College of Music  (01-CA-089878; 362 NLRB No. 178)  Boston, MA, August 26, 2015.

The Board reversed the Administrative Law Judge and dismissed the complaint alleging that the Respondent violated Section 8(a)(5) by failing to bargain over the effects of its decision to change the minimum course population for classes.  Contrary to the judge, the Board found that the Respondent provided the Union with an opportunity for effects bargaining at a meaningful time.  While the decision was announced prior to any meeting with the Union, the parties met before the change had been fully implemented in a manner consistent with prior bargaining over similar issues and the Union retained bargaining leverage in the particular circumstances of the case.  The Union, however, made no proposals and requested no information when the parties met.  Charging Party—Berklee Faculty Union, American Federation of Teachers, Local 4412, AFT-MA, AFL-CIO.  Members Miscimarra, Johnson, and McFerran participated.

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Paragon Systems, Inc.  (10-CA-095371; 362 NLRB No. 182)  Savannah, GA, August 26, 2015.

The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(3) and (1) by suspending and then discharging three employees for their union activities.  The Board first concluded that the Respondent failed to establish that the case was nonjusticiable on national security grounds.  In adopting the judge’s finding of a violation, the Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the General Counsel amply proved the Respondent’s antiunion animus and that the Respondent failed to show that it would have taken the same actions in the absence of the employees’ union activities.  In concurrence, Member Johnson stated that substantial weight should be given to national security concerns when raised by a contractor in defense of disciplinary action recommended by a government agency, but he agreed with his colleagues that the Respondent’s reliance on the Federal government’s report recommending discharge of its employees was pretextual, based on the evidence that the Respondent’s officials knew about and shared the antiunion animus against the employees evinced by the Federal agent who recommended their discharge.  Charge filed by an individual.  Administrative Law Judge Heather Joys issued her decision on February 7, 2014.   Chairman Pearce and Members Hirozawa and Johnson participated.

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United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1192, AFL-CIO, CLC (Buckeye Florida Corporation, a subsidiary of Buckeye Technologies, Inc. and Georgia Pacific, LLC) and Jimmie Ray Williams and Buckeye Florida Corporation, a subsidiary of Buckeye Technologies, Inc. and Georgia Pacific, LLC, Party in Interest  (12-CB-109654; 362 NLRB No. 187)  Perry, FL, August 27, 2015.

The Administrative Law Judge in this case found that the Respondent Union violated Section 8(b)(1)(A) by (1) maintaining a policy under which the Respondent charges nonmembers in the bargaining unit a fee for processing a grievance, and (2) implementing this policy by telling the Charging Party employee/nonmember that it would process his grievance regarding working overtime only if he paid the fee.  Both the Respondent and the General Counsel filed exceptions to the judge’s decision.

In this Decision and Order, the full Board granted the Respondent’s and the General Counsel’s joint motion to withdraw their respective exceptions, in light of the Respondent’s agreement to make the Charging Party whole for any loss of earnings and benefits he suffered as a result of the Employer’s refusal to permit him to work overtime.  The Board found that it will effectuate the policies of the Act to give effect to the agreement reached between the Respondent and the General Counsel.  Thus, consistent with the joint motion, the Board issued an Order adopting the judge’s decision, as modified by the Respondent’s agreement to make the Charging Party whole.

Accordingly, in light of its granting of the joint motion, the Board withdrew its April 15, 2015 Notice and Invitation to File Briefs in this case, in which it asked the parties and interested amici to address certain questions, including whether the Board should adhere to or overrule Machinists Local 697 (H.O. Canfield Rubber Co.), 223 NLRB 832 (1976), and its progeny.  Charge filed by an individual.  Administrative Law Judge William Nelson Cates issued his decision on March 24, 2014.  Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.

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Sun Cab, Inc. d/b/a Nellis Cab Company  (28-CA-079813; 362 NLRB No. 185)  Las Vegas, NV, August 27, 2015.

The Board unanimously found that the Respondent violated Section 8(a)(1) by suspending 17 employees who engaged in a concerted work stoppage (the “extended break”) to protest a proposed action that would affect their pay.  Applying Quietflex Mfg. Co., 344 NLRB 1055 (2005), the Board explained that the employees’ conduct did not lose its Section 7 protection.  The Board also unanimously found that the Respondent violated Section 8(a)(1) by interrogating employees about the identity of the leader of the “extended break.”  Further, a Board Panel majority consisting of Member Johnson and Member McFerran found that the Respondent violated Section 8(a)(1) by interrogating employees about why they engaged in the “extended break,” and threatening an employee with loss of benefits and discharge.  Member Miscimarra dissented with respect to those findings.  Finally, the Board unanimously dismissed an allegation that the Respondent unlawfully discharged an employee, on the grounds that the General Counsel failed to meet his initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).  Charge filed by an individual.  Administrative Law Judge Jay R. Pollack issued his decision on December 27, 2012.  Members Miscimarra, Johnson and McFerran participated.

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GVS Properties, LLC  (29-CA-077359; 362 NLRB No. 194)  New York, NY, August 27, 2015.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s finding that the Respondent was a Burns successor employer and violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.  The panel majority found that the appropriate time to determine successorship status is when a new employer assumes control over the predecessor’s business and hires the predecessor’s employees, even though the Respondent was required to retain its predecessor’s employees for a period of 90 days pursuant to the New York City Displaced Building Service Workers Protection Act (DBSWPA).  Member Johnson dissented and would have dismissed the charge finding the Respondent was not a Burns successor at the time the Union requested bargaining because the DBSWPA prevented the Respondent from making a voluntary decision to hire its predecessor’s employees and Member Johnson would apply the successorship doctrine after the end of the mandatory retention period.  Charge filed by International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 15, Local Lodge 447.  Administrative Law Judge Kenneth W. Chu issued his decision on December 27, 2012.  Chairman Pearce, and Members Hirozawa and Johnson participated.

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Manhattan Beer Distributors, LLC  (29-CA-115694; 362 NLRB No. 192)  Wyandanch, NY, August 27, 2015.

A Board majority consisting of Members Hirozawa and McFerran adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by denying its employee the right to have union representation at an investigatory interview that he reasonably believed could result in discipline. NLRB v. Weingarten, 420 U.S. 251, 252-253 (1975).  The Board majority reasoned that the employee had the right to union representation before consenting to take a drug test that was requested by the Respondent.  Safeway Stores, 303 NLRB 989 (1991); System 99, 289 NLRB 723, 727 (1988).  The Board majority further explained that the employee had the right to union representation even though it would have caused some delay in the administration of the drug test.  Ralphs Grocery Co., 361 NLRB No. 9 (2014); Super Valu Stores, 236 NLRB 1581, 1591 (1978), enf. denied on other grounds 627 F.2d 13 (6th Cir. 1980).  The Board majority found that the Respondent violated the employee’s Weingarten rights because it failed to afford him a reasonable period of time to obtain union representation.  Member Johnson dissented, finding that the employee’s phone conversation with his union representative satisfied his right to union representation under Weingarten, reasoning that, in his view, the role of a union representative is more limited in a drug- or alcohol-testing situation.

A Board majority consisting of Members Hirozawa and McFerran reversed the judge and found that the Respondent unlawfully discharged the employee.  Relying on Ralphs Grocery Co., the majority found that, because the employee refused to take the drug test without consulting with a union representative beforehand, the reason for his discharge was inextricably linked to his assertion of Weingarten rights.  Dissenting, Member Johnson argued that the employee was discharged based on the Respondent’s reasonable suspicion that he had reported to work under the influence of drugs, as well as on the employee’s failure to overcome that reasonable suspicion by submitting to, and passing, a drug test.  Charge filed by an individual. Administrative Law Judge Steven Davis issued his decision on May 15, 2014.  Members Hirozawa, Johnson, and McFerran participated.

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Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery and FPR-II, LLC, d/b/a Leadpoint Business Services  (32-RC-109684; 362 NLRB No. 186)  Milpitas, CA, August 27, 2015.

In this decision, a majority of the full Board consisting of Chairman Pearce and Members Hirozawa and McFerran restated its joint-employer standard to reaffirm that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment. If a common-law employment relationship exists, the Board’s inquiry turns to whether the putative joint employer possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining. The Board indicated that it will examine the existence, extent, and object of a putative joint employer’s control.

Significantly, the Board rejected the limiting requirements that it had imposed in the past. First, the Board held that it will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. Reserved authority to control terms and conditions of employment, even if not exercised, will now be relevant to the joint-employment inquiry. The Board also held that it will no longer require that a statutory employer’s control must be exercised directly and immediately. Control exercised indirectly – such as through an intermediary – may now establish joint-employer status. The Board reasoned that these previous limiting requirements left the Board’s joint-employment jurisprudence increasingly out of step with changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships.

Applying the restated joint-employer standard in this case, the Board reversed the Regional Director to find that the Union established that BFI and Leadpoint are joint-employers of the employees in the petitioned-for unit – sorters, screen cleaners, and housekeepers. In so finding, the Board relied on, among other things, BFI’s possession of control over who Leadpoint can hire to work at its facility; BFI’s direct and indirect control over work processes and task assignments; and BFI’s significant role in determining employees’ wages.

In dissent, Members Miscimarra and Johnson argued that the majority improperly resurrected the Supreme Court’s theory in NLRB v. Hearst Publications by reading the Act’s classifications broadly and considering economic realities rather than using previously established common-law agency principles. They also contended that the majority’s test does not comport with common-law agency principles, which require some evidence of direct and immediate control even where indirect factors are deemed probative. They asserted that the majority abandoned a longstanding test that provided certainty and predictability, and replaced it with an ambiguous standard that will impose unprecedented bargaining obligations on multiple entities in a wide variety of business relationships. Finally, they argued that the majority’s test will undermine existing principles of (1) sales and successorship, (2) franchising arrangements, (3) parent-subsidiary relationships, and (4) secondary economic protest.

Petitioner—Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.

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Lincoln Lutheran of Racine  (30-CA-111099; 362 NLRB No. 188)  Racine, WI, August 27, 2015.

A majority of the full Board, consisting of Chairman Pearce and Members Hirozawa and McFerran, held that under Section 8(a)(5), an employer’s obligation to check off union dues continues after the expiration of a collective-bargaining agreement that establishes such an arrangement.  The Board majority overruled a contrary earlier decision, Bethlehem Steel, 136 NLRB 1500 (1962), observing that the Board had never provided a coherent explanation for its traditional approach.  That approach created an exception to the general rule that after a collective-bargaining agreement expires, an employer must continue in effect the terms and conditions of employment established by the contract, if they are mandatory subjects of bargaining, until the parties either negotiate a new agreement or bargain to a lawful impasse. The Board majority explained that an employer’s unilateral change to dues checkoff undermines collective bargaining no less than other unilateral changes that have been held unlawful.  Dues checkoff, in turn, was unlike those few terms and conditions of employment held not to survive the expiration of an agreement. The majority decided to apply the new rule only prospectively, however, and therefore found no violation in this case.  Dissenting, Members Miscimarra and Johnson argued that the Board should have adhered to the longstanding Bethlehem Steel exception, which they asserted was justified by statutory and policy considerations. Dues checkoff, in their view, is a form of union security and involves a waiver of statutory rights.  The dissenters argued that requiring employers to continue dues checkoff will adversely affect collective-bargaining practices that promote labor relations stability.  In addition, Members Miscimarra and Johnson argued that because the primary consequence of the decision was to substantially alter the current balance of interests between employers and union on contract expiration, any change in the law should have been left to Congress.

Charge filed by Service Employees International Union Healthcare Wisconsin, SEIU-HCWI.  Administrative Law Judge Paul Bogas issued his decision on August 11, 2014.  Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.

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LIN Television Corporation d/b/a WIVB-TV/WNLO-TV  (03-CA-129811; 362 NLRB No. 197)  Buffalo, NY, August 27, 2015.

In a published decision, the Board granted the Charging Party Union’s Request for Special Permission to Appeal the administrative law judge’s ruling approving a unilateral settlement,  and granted the appeal on the merits.  The Board observed that the resolution of an unfair labor practice by a unilateral agreement proffered by a respondent and approved by a judge is not a true settlement between parties to the dispute, and has been described by the Board as a consent order.  The Board further noted that when evaluating proposed consent orders, the Board has generally applied the factors set forth in Independent Stave, 287 NLRB at 740.  The Board found that in this proceeding, the appropriateness of the consent order must be considered against the backdrop of the Respondent’s misrepresentation to Region 3 that it agreed that the 8(a)(5) and (3) allegations in the instant case should be deferred to arbitration—a representation later belied by the Respondent’s contrary arguments to the arbitrator and its motion to stay the arbitration.  Given this background, the Board found that the judge erred in accepting the consent order over the objections of the Charging Party and the General Counsel.  Specifically, the Board held that in light of the Respondent’s demonstrated efforts to avoid resolution of the deferred allegations, the consent order’s inclusion of a broad non-admission clause and the order’s omission of the General Counsel’s proffered notice language stating that the Respondent would not “attempt” to prevent, or “attempt” to interfere with, employees’ exercise of their Section 7 rights preclude a finding that the consent order meets the standards set forth in Independent Stave.

Member Hirozawa concurred in the result, stating that he agreed with his colleagues in granting the appeal and in finding that the judge erred in accepting the Respondent’s unilateral “settlement,” but indicted that he disagrees with the Board’s reference to such unilateral offers as either “settlements” or “consent orders.”  In his view, a consent order is a settlement agreement that is entered as an order by a judge with the consent of the parties, and that regardless of whether the order explicitly states that the parties have agreed to the terms, it is their agreement that forms the basis for the order.  Member Hirozawa observed that in this case, there was no agreement on the terms of the order; the only party who consented was the Respondent.  Thus, he would find that the order is not a consent order.  He also stated that he would not find that it is it a settlement agreement, because there is no agreement between or among any parties.  Member Hirozawa further indicated that in his view, the Independent Stave factors are designed to evaluate true settlement agreements between parties other than the General Counsel.  Member Hirozawa stated that he fully supports the Board’s strong commitment to negotiated settlements and its policy of encouraging parties to resolve disputes peacefully and without litigation, but noted that at the same time, it is well settled that the Board’s power to prevent unfair labor practices is exclusive, that its function is to be performed in the public interest and not in vindication of private rights, and that the Board alone is vested with lawful discretion to determine whether a proceeding, when once instituted, may be abandoned.  In conclusion, Member Hirozawa stated that the Board should not permit a judge to truncate the statutory procedures for adjudicating unfair labor practices in the absence of a settlement agreement entered into by the General Counsel, the charging party, or at least the alleged discriminatee, except for entry of an order, agreed to by the respondent, providing a full remedy for the alleged violations.

Charge filed by National Association of Broadcast Employees and Technicians—Communications Workers of America, AFL-CIO.  Members Hirozawa, Johnson, and McFerran participated.

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On Assignment Staffing Services, Inc.  (32-CA-095025; 362 NLRB No. 189)  Castro Valley, CA, August 27, 2015

Applying Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), and D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 727 F.3d 344 (5^th Cir. 2013), a Board panel majority consisting of Chairman Pearce and Member McFerran granted the General Counsel’s motion for summary judgment and found that the Respondent violated Section 8(a)(1) by promulgating and maintaining a mandatory arbitration agreement under which employees were compelled, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial, unless employees individually opted out of the waiver within 10 days of receiving a copy of the agreement.  The panel majority concluded that the Respondent’s opt-out procedure was itself a condition of employment that significantly burdened employees’ exercise of their Section 7 right to pursue collective or class litigation.  Further, in deciding an issue left open by the Board’s decision in D. R. Horton, the panel majority concluded that, even assuming that the opt-out provision rendered the Respondent’s arbitration agreement not a condition of employment, it was still unlawful because it required employees to prospectively waive their Section 7 right to engage in concerted activity.

Member Johnson dissented, observing that he would dismiss the complaint for the reasons set forth in his dissent in Murphy Oil alone.  Further, Member Johnson concluded that the opt-out provision in this case rendered the individual arbitration agreement voluntary and therefore not a mandatory condition of employment.  Finally, he concluded that such voluntary individual arbitration agreements do not require employees to prospectively waive any substantive statutory right or otherwise violate the Act.  Charge filed by an individual.  Chairman Pearce and Members Johnson and McFerran participated.

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Oberthur Technologies of America Corporation  (04-CA-086325, 04-CA-087233, and 04-RC-086261, 362 NLRB No. 198)  Exton, PA, August 27, 2015.

This proceeding involved consolidated unfair labor practice cases and a representation case.  With respect to the unfair labor practice cases, the Board unanimously adopted the administrative law judge’s findings that the Respondent violated Section 8(a)(1) by telling employees that they could not discuss the Union in work areas or during worktime, and telling employees that bonuses, wage increases, transfers, and promotions were being put on hold until after the election.  The Board also unanimously adopted the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by delaying and withholding wage increases, bonuses, transfers, and promotions.  The Board unanimously agreed with the judge’s dismissal of an allegation that the Respondent violated Section 8(a)(1) by prohibiting an employee from using the Respondent’s copier to copy union literature.  A Panel majority of Members Miscimarra and Johnson, with Member Hirozawa dissenting, also agreed with the judge’s dismissal of an allegation that the Respondent violated Section 8(a)(1) by telling an employee that it preferred that she hand out union literature rather than place it on a cafeteria table.

With respect to the representation case, the Board unanimously found, in agreement with the judge, that two challenged voters were professional employees under Section 2(12).  A Panel majority consisting of Member Hirozawa and Member Johnson concluded that the judge properly sustained the challenges to their ballots even if the Board were to assume that the parties intended to include them in the stipulated unit.  Thus, Member Hirozawa and Member Johnson rejected the Respondent’s contention, raised for the first time in its exceptions that, even if the two challenged voters were professional employees under Section 2(12), the representation election should be nullified because they were improperly denied a self-determination election under Sonotone, 90 NLRB 1236 (1950).  The Panel majority of Member Hirozawa and Member Johnson, citing Tekweld Solutions, 361 NLRB No. 18 (2014), found that, because the Respondent had failed to raise this argument in a timely-filed objection to the election, or in any other way raise its concerns at the appropriate time, the Board was precluded from considering it under its established procedural requirements.  Pursuant to the decision of the Panel majority of Member Hirozawa and Member Johnson, the Board issued a certification of representative, certifying the Union as the unit employees’ exclusive collective-bargaining representative.  Member Hirozawa concurred with the decision upholding the two above-described challenges, finding that the Respondent failed to timely raise its argument that a Sonotone election was required.  He stated that he would also find that the Respondent’s arguments that the two challenged voters should have received a Sonotone ballot failed on the merits.  In Member Hirozawa’s view, the stipulation clearly and unambiguously provided for a nonprofessional unit, excluding all professional employees.  In his partial dissent, Member Miscimarra agreed that the two challenged voters are professional employees, but otherwise disagreed with the Panel majority’s disposition of the representation case.  Member Miscimarra stated that he believed that the stipulated unit unambiguously includes the two challenged voters.  He further stated that, in his view, the case is controlled by Sunrise, Inc., 282 NLRB 252 (1986), where the Board addressed a stipulated election agreement that provided for the inclusion of professional employees in a mixed professional/nonprofessional unit without a self-determination election.  Member Miscimarra stated that, as in Sunrise, it would best effectuate the purposes of the Act to set aside the election, vacate the stipulation, and remand the proceeding to the Regional Director to resume processing of the petition by either assisting the parties to reach agreement on a new stipulation or, in the absence of a new stipulation, conducting a hearing on the unit issue.   The Panel majority of Member Hirozawa and Johnson responded that, in their view, Sunrise was distinguishable from the present case.

Charge and Petition filed by Graphic Communications Conference International Brotherhood of Teamsters, Local 14-M.   Administrative Law Judge Raymond P. Green issued his decision on February 20, 2013.  Members Miscimarra, Hirozawa, and Johnson participated.

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UPMC and its subsidiaries UPMC Presbyterian Shadyside and Magee-Womens Hospital of UPMC, single employer, d/b/a Shadyside Hospital and/or Presbyterian Hospital and/or Montefiore Hospital and/or Magee-Womens Hospital  (06-CA-081896; 362 NLRB No. 191)  Pittsburgh, PA, August 27, 2015.

Applying Purple Communications, 361 NLRB No. 126 (2014), a Panel majority of Chairman Pearce and Member Hirozawa found that the Respondents violated Section 8(a)(1) of the Act by their maintenance of a solicitation policy that prohibits employees’ use of the Respondents’ email system to engage in solicitation, including Section 7-protected communications, during nonworking time, and that requires employees to report violations of the solicitation policy.  The Administrative Law Judge had dismissed the allegation regarding the solicitation policy, based on his application of Register Guard, 351 NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009), as then-extant precedent.  While the case remained pending, the Board, in Purple Communications, overruled Register Guard “to the extent it holds that employees can have no statutory right to use their employer’s email systems for Section 7 purposes.”  The Panel majority of Chairman Pearce and Member Hirozawa found that, under Purple Communications, the Respondents’ employees have a presumptive right to use the Respondents’ email system to engage in Section 7-protected activity during nonworking time.  The Panel majority stated that the Board remanded Purple Communications for a determination of the lawfulness of the email policy at issue there, particularly with regard to the existence of special circumstances, and that the Board did likewise in DirecTV, 362 NLRB No. 48 (2015).  The Panel Majority explained that here, however, because the Respondents have already litigated the issue of special circumstances, it was unnecessary to remand the solicitation policy issue to the administrative law judge for further proceedings. The Panel majority, analyzing the merits of the Respondents’ “special circumstances” defense, found that they have not rebutted the above-mentioned presumption.

In dissent, Member Johnson stated that, in his view, because Purple Communications was wrongly decided, he would find that the allegation involving the solicitation policy should be dismissed.  He further stated that, in the alternative, even under Purple Communications, the Respondents established special circumstances justifying their ban on use of their electronic resources for solicitation.  Member Johnson also stated that, in that vein, he would not extend the presumption of a Section 7 right to the healthcare setting.  Member Johnson further stated that the case must at the very least be remanded to allow the Respondents to establish special circumstances justifying its policy.  Finally, Member Johnson stated that, although he disagreed with the decision in Purple Communications, he did not take the position that an employer cannot relinquish some right of control over its email system where it maintains a discriminatory prohibition on usage, and would instead clarify Register Guard in certain respects.  He stated that, under that clarified approach, and for the other reasons stated in his dissent here, the Respondents’ solicitation policy was lawful.

The Panel majority of Chairman Pearce and Member Hirozawa adopted the administrative law judge’s finding that the Respondents’ Electronic Mail and Messaging Policy and Acceptable Use of Information Technology Resources Policy violated Section 8(a)(1) on their face, essentially for the reasons stated by the administrative law judge, and with certain clarifications.  The Panel majority observed, among other things, that it found it unnecessary to pass on the effect of Purple Communications on these policies.  Member Johnson dissented from the Panel majority’s view that the Electronic Mail and Messaging Policy was unlawful.  However, he concurred with the finding of a violation in regard to the Acceptable Use of Information Technology Resources Policy, with the exception of the ban on use of logos, but only for the reasons stated in his partial dissent.

Charge filed by SEIU Healthcare Pennsylvania, CTW, CLC.   Administrative Law Judge David I. Goldman issued his decision on April 19, 2013.  Chairman Pearce and Members Hirozawa and Johnson participated.

***

The Boeing Company  (19-CA-089374; 362 NLRB No. 195)  Renton, WA, August 27, 2015.

The Board found that the Respondent violated Section 8(a)(1) by: (1) maintaining an unlawful rule directing employees not to discuss the Respondent’s human resources investigations with other employees; and (2) maintaining a revised rule recommending that employees not discuss such investigations with other employees.  The Board also found that the Respondent violated Section 8(a)(3) and (1) by disciplining an individual pursuant to the original unlawful rule.    Charge filed by an individual.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on July 26, 2013.  Chairman Pearce and Members Hirozawa and Johnson participated.

***

Midwest Division – MMC, LLC d/b/a Menorah Medical Center  (17-CA-088213 and 17-CA-091912; 362 NLRB No. 193)  Overland Park, KS, August 27, 2015.

The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a rule prohibiting employees from discussing discipline or ongoing investigations with other employees.  The Board also adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by denying two employees’ requests for a union representative when they appeared before the Respondent’s Nursing Peer review Committee.  Applying NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Board rejected the Respondent’s contentions that (a) the employees did not reasonably expect that discipline could result from their appearances before the Committee, and (b) their attendance at the Committee’s meeting was voluntary.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa also found that the Respondent violated Section 8(a)(5) and (1) by failing to furnish the Union with requested information relating  to the Respondent’s nursing peer review process. The majority found that the requested information was relevant and that the Respondent failed to establish a legitimate and substantial confidentiality interest in any of the requested information.  Noting that a Kansas state law protects the confidentiality of the deliberations of a peer review body such as this, the majority found that much of the information requested relates to the structure and function of the Peer Review Committee and, as such, does not touch on the Committee’s deliberations.  The majority found that information relating to allegations against nurses summoned by the Committee and reports and materials generated outside of the Committee’s deliberations similarly were not reflective of the deliberations.  The panel majority further found that, while the requested copies of the employee discipline issued by the Committee appear to be covered by the state statute, the Respondent failed to prove that the confidentiality interest outweighs the Union’s statutory need for the information.

In his partial dissent, Member Johnson found that the Kansas statute establishes a legitimate confidentiality interest in the copies of the employee disciplines and in any records created for and submitted to the Committee.  In his view, the confidentiality interest established by the state statute outweighs the Union’s need for the information.  He therefore found that the Respondent was not obligated to disclose this information, but rather was obligated to engage in accommodative bargaining concerning these documents. Because the Respondent failed to offer to accommodate the confidentiality interests and the Union’s need for this information, Member Johnson would find that the Respondent violated Section 8(a)(5) and (1) on this basis, and would order the Respondent to engage in accommodative bargaining regarding this information.

Charges filed by National Nurses Organizing Committee—Kansas/National Nurses United, affiliated with National Nurses Organizing Committee/National Nurses United.  Administrative Law Judge Christine E. Dibble issued her decision on December 23, 2013.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Sutter Health Central Valley Region, d//a Sutter Tracy Community Hospital  (32-CA-098549; 362 NLRB No. 199)  San Francisco, CA, August 27, 2015.

The Board reversed the Administrative Law Judge and found that the Respondent did not violate Section 8(a)(5) and (1) by implementing its proposed changes to the unit employees’ 2013 healthcare and wellness programs.  The Board found that Stone Container Corp., 313 NLRB 336 (1993) and Brannan Sand and Gravel, 314 NLRB 282 (1994) provided the applicable legal framework—i.e., the parties were engaged in first contract negotiations and they had stipulated to the Respondent’s past practice of annually reviewing and modifying its healthcare and wellness programs—but rejected the judge’s finding that the Respondent presented its proposed changes to the Union as a fait accompli.  Instead, the Board found that the record supported a finding that the Respondent met its duty to provide the Union with timely notice and a meaningful opportunity to bargain.  Member Hirozawa concurred in the finding and stated his view that the Board needs to reexamine the Stone Container exception and related rulings in light of the policies and purposes of the Act.  Charge filed by California Nurses Association/National Nurses United, CNA/NNU.  Administrative Law Judge Dickie Montemayor issued his decision on March 13, 2014.  Members Hirozawa, Johnson, and McFerran participated.

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Caravan Knight Facilities Management, Inc.  (07-CA-081195 and 07-CB-082391; 362 NLRB No. 196)  Sterling Heights, MI, August 27, 2015.

The Board dismissed allegations that the Respondent Employer discriminated against an employee in job assignments and unlawfully disciplined and discharged her after she engaged in protected union activity by protesting the Employer’s failure to post an overtime equalization list as required by the collective-bargaining agreement.  The Board found insufficient evidence that the employee’s protest was a motivating factor in the Employer’s actions.  The Board also dismissed an allegation that the Respondent Union unlawfully caused the Employer to discriminate against the employee by reporting to the Employer that she had threatened another employee, a report that led to her discharge.  The Board found that the report was justified by legitimate considerations, and that the Union would have reported the employee even absent her protected activity.  Reversing the judge, the Board found that the Union failed to process a grievance regarding the employee’s discharge in good faith as required by its duty of fair representation.  The Union failed to disclose that the steward in charge of processing the grievance at the first stage had submitted a statement against the employee regarding her threat that was, in part, false.  The Board also reversed the judge and found that the Respondent Employer unlawfully interrogated an employee about a statement she made to Board agents during the Board’s investigation of the charges in this case, without providing required assurances against reprisal for refusing to answer or for the substance of her answer.  Charges filed by an individual.  Administrative Law Judge Michael A. Rosas issued his decision on April 3, 2013.  Members Miscimarra, Johnson, and McFerran participated.

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Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino  (28-CA-060841; 362 NLRB No. 190)  Las Vegas, NV, August 27, 2015.

This case involves nine rules contained in the Respondent’s employee handbook.  A Board panel majority consisting of Chairman Pearce and Member McFerran found that the Respondent violated Section 8(a)(1) by maintaining unlawful rules prohibiting: (1) employee disclosure of information about the company, including “salary structures” and “policy and procedures manuals”; and (2) employee use of cameras, camera phones, and audiovisual and other recording equipment on the Respondent’s property without its permission.  Member Johnson dissented from the findings that these provisions are unlawful.  A Board panel majority consisting of Members Johnson and McFerran dismissed allegations that the Respondent violated Section 8(a)(1) by maintaining rules: (1) prohibiting employee disclosure of confidential company information; and (2) guiding employee behavior when using the Respondent’s facilities while off-duty.  Dissenting, Chairman Pearce would have found these rules unlawful.  The Board panel unanimously found lawful the Respondent’s handbook rule prohibiting employees from wearing certain attire on the Respondent’s property.  Finally, a panel majority consisting of Chairman Pearce and Member McFerran remanded allegations related to the Employer’s ban on certain types of computer usage to an administrative law judge for further consideration.  (No party appealed the administrative law judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a rule prohibiting employees from walking off the job during a shift.)

Charge filed by International Union of Painters and Allied Trades, District Council 15, Local 159, AFL-CIO.  Administrative Law Judge William L. Schmidt issued his decision on March 20, 2012.  Chairman Pearce and Members Johnson and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

MV Transportation, Inc.  (13-UD-151151)  Batavia, IL, August 24, 2015.  The Board denied the Union’s Request for Review of the Regional Director’s Supplemental Decision and Certification of Results of Election on the ground that it raised no substantial issues warranting review.  Union involved—International Brotherhood of Teamsters, Local 727.  Petitioner—an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Pacific Gas & Electric Co.  (20-RC-140248)  San Francisco, CA, August 24, 2015.  No exceptions having been filed to the hearing officer’s disposition of the Petitioner’s objections to an election held December 10, 2014, the Board adopted the hearing officer’s findings and recommendations, and ordered that the election be set aside and a new election conducted.  Petitioner—Engineers and Scientists of California, Local 20, IFPTE, AFL-CIO, CLC.

Frontline Security Services, LLC  (10-RC-147443)  Durham, NC, August 25, 2015.  Order granting the Petitioner’s request to remand this case to the Regional Director to permit the Regional Director to rule on its request to withdraw the petition in this matter.  Since the Petitioner seeks to withdraw the petition, the Board found it unnecessary at this time to rule on the Industrial, Technical & Professional Employees Union, OPEIU Local 4873, AFL-CIO’s (the Proposed Intervenor) request for review, which is pending before the Board on a grant of review.  Accordingly, the Board remanded the proceeding to the Regional Director for a ruling on the Petitioner’s request to withdraw the petition and any further appropriate action.  Petitioner—International Union, Security, Police and Fire Professionals of America (SPFPA).  Chairman Pearce and Members Miscimarra and McFerran participated.

Pennsylvania Interscholastic Athletic Association, Inc.  (06-RC-152861)  Mechanicsburg, PA, August 26, 2015.  Order denying the Employer’s request to stay the election or, alternatively, to impound the ballots.  Petitioner—Office and Professional Employees International Union.   Chairman Pearce and Members Miscimarra and Hirozawa participated.

Quartz Corporation  (10-UC-121761)  Spruce Pine, NC, August 27, 2015.  Order affirming the Regional Director’s dismissal of the Employer’s petition seeking to clarify an existing unit of represented employees after the Employer acquired a separate plant of unrepresented employees.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Media Theatre for the Performing Arts  (04-RC-149783)  Media, PA, August 27, 2015.  Erratum to the August 21, 2015 Board Decision and Certification of Representative.  Erratum   Amended Decision.

C Cases

Trader Joe’s Company  (04-CA-136969)  Ardmore, PA, August 24, 2015.  The Board granted the General Counsel’s Request for Special Permission to Appeal the administrative law judge’s order approving a non-Board settlement agreement.   However, the Board denied the appeal on the merits, finding that the agreement satisfied the standards set forth in Independent Stave Co., 287 NLRB 740, 743 (1987), and substantially remedied the Section 8(a)(1) violations alleged in the complaint.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Strategic Materials, Inc.  (08-CA-149572)  Cleveland, OH, August 24, 2015.  Order denying the Employer’s petition to partially revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  The Board stated that to the extent that the subpoena encompassed some documents that the Employer believed in good faith to be subject to the attorney-client privilege or the attorney work product doctrine, the Order was without prejudice to the Employer’s prompt submission of a privilege log to the Region identifying and describing each such document, and providing sufficient detail to permit an assessment of the Employer’s claim of privilege or protection.  The Employer was directed to produce all responsive documents in its possession not subject to any good-faith claim of privilege or protection.  Charge filed by Teamsters Local Union No. 436 a/w International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Puma Energy Caribe, LLC  (12-CA-146113, et al.)  Bayamon, PR, August 24, 2015.  Order denying the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  In addition, the Board denied the Employer’s unsupported request for costs, attorney’s fees, and additional relief.  To the extent that the Employer has provided some of the requested material, the Board noted that it is not required to produce that information again, provided that the Employer accurately describes which documents under subpoena it has already provided, states whether those previously-supplied documents constitute all of the requested documents, and provides all of the information that was subpoenaed.  Further, the Board considered the subpoena as limited by the General Counsel in his opposition brief.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Gourmet Boutique West, LLC  (28-CA-145632 and 28-CA-149064)  Phoenix, AZ, August 24, 2015.  Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Respondent must take to comply with the National Labor Relations Act.  Charges filed by United Food and Commercial Workers Union, Local 99, AFL-CIO, CLC.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Liberty Cablevision of Puerto Rico, LLC  (12-CA-146442, et al.)  San Juan, PR, August 24, 2015.  Order denying the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Christus St. Vincent Regional Medical Center  (28-CA-149798)  Santa Fe, NM, August 24, 2015.  Order denying an individual’s petition to revoke a subpoena ad testificandum.  The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the individual failed to establish any other legal basis for revoking the subpoena.  The Board noted that the disposition of the petition to revoke is consistent with existing Board law as reflected in Postal Workers Local 64 (USPS), 340 NLRB 912 (2003) and Offshore Mariners, 338 NLRB 745 (2002), which enforce subpoenas identifying the case name and number.  Member Miscimarra stated that he agrees the Region has described with sufficient particularity the evidence sought from the individual, based on the Region’s uncontradicted assertion that it explained to the individual’s counsel which allegations will likely be the focus of the testimony it seeks.  In the view of Member Miscimarra, however, the subpoena itself should describe with reasonable particularity the general topic(s) or issue(s) that would be the subject of subpoenaed testimony or other evidence.  See Sec. 11(1) of the Act; Sec. 102.31(b) of the Board’s Rules.  Member Miscimarra believes the requirement of “particularity” requires more than merely giving the case name and number of the proceeding in which the subpoena has been issued.  He also notes that the Board has moved in the direction of providing substantially more detail in remedial notices, for example, to “facilitate a better understanding,” including hyperlinks and QR codes providing direct electronic access to the Board’s decision(s).  Cf. Durham School Services LP, 360 NLRB No. 85 (2014).  Although subpoenas serve a different purpose, Member Miscimarra believes subpoenas should provide fair notice to recipients regarding the topic(s) or issue(s) deemed relevant to the testimony or other evidence being sought.  Charge filed by District 199NM National Union of Hospital and Healthcare Workers AFSME, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Lowe’s Home Improvement  (29-CA-143667 and 29-CA-146545)  Staten Island, NY, August 24, 2015.  Order granting in part and denying in part the Employer’s petition to revoke an investigative subpoena duces tecum.  The Board granted the petition to the extent that a particular request sought documents that do not cover the Staten Island facility.  In all other respects, the Board denied the petition, finding that it sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Temp-Air, Inc.  (18-CA-147152)  Burnsville, MN, August 24, 2015.  Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Respondent must take to comply with the National Labor Relations Act.  Charge filed by Teamsters Local 970.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Vertices Holdings LLC and Shinda Management Corporation, Joint Employers  (29-CA-150709 and 29-CA-153947)  Brooklyn, NY, August 24, 2015.  Order denying Respondent Shinda Management Corporation’s motion for partial summary judgment.  Charges filed by Service Employees International Union, Local 32BJ.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Mountainside Farms, a Division of Worcester Creameries Corp.  (03-CA-097023)  Roxbury, NY, August 24, 2015.  The Board granted the General Counsel’s Motion to Remand the case to the Regional Director for Regional 3 for approval of non-Board settlement agreement.

DHSC, LLC, d/b/a Affinity Medical Center  (08-CA-090083, et al.)  Massillon, OH, August 27, 2015.  The Board denied the Respondent’s Motion for Reconsideration of DHSC, LLC d/b/a Affinity Medical Center, 362 NLRB No. 78 (2015), finding that the Respondent had not identified any material error or shown “extraordinary circumstances” warranting reconsideration of the Board’s decision.  The Respondent had requested reconsideration of the Board’s rejection of its defense that an oral ad hoc agreement between the parties gave exclusive jurisdiction to an arbitrator to determine the complaint allegations; reconsideration and a retraction of what it perceived as the Board’s threat of disciplinary proceedings; and reconsideration of the Board’s additional remedies requiring the Respondent to reimburse the discriminatee for legal expenses she may have incurred while having to defend herself before the Nursing Board, and notice reading.  Chairman Pearce and Members Johnson and McFerran participated.

Kellogg Company  (15-CA-115259)  Memphis, TN, August 27, 2015.  Order denying the Respondent’s motions for reconsideration of the Board’s May 7, 2015 Decision and Order in this case and to reopen the record. Member Johnson adhered to the views expressed in his concurring opinion in the underlying decision. He agreed, however, that there were no grounds for granting the motions for reconsideration or reopening the record.  Chairman Pearce and Members Hirozawa and Johnson participated.

Labor Plus, LLC  (28-CA-150723)  Las Vegas, NV, August 28, 2015.  Order denying the Respondent’s motion to dismiss the complaint.   The Board found that the Respondent has not demonstrated that the complaint fails to provide facts necessary to state a claim upon which relief can be granted.  In this regard, the Board found that the complaint outlines in sufficient detail the basis for the alleged violation.  Charge filed by International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada Local Union 720.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Hanson Aggregates BMC, Inc.  (04-CA-037998 and 04-CA-069822)  Penns Park, PA, August 28, 2015.

Hanson Aggregates BMC, Inc.  (04-CA-033330, et al.)  Penns Park, PA, August 28, 2015.

On July 2, 2014, International Union of Operating Engineers, Local 542, AFL-CIO, filed an “Appeal of Close of Compliance” in numerous proceedings in light of Noel Canning v NLRB, 134 S. Ct. 2550 (2014), where the Supreme Court held that the Board lacked a proper quorum at the time that some of these cases were decided.  By letter dated August 11, 2014, the Union was informed that its submission would be treated as a motion for reconsideration in two of the referenced proceedings, but not others, as no quorum issue existed in those cases.  Regarding the two proceedings in which reconsideration was granted, the Board considered those matters de novo.

In Cases 04-CA-033330 et al., regarding a request for review of the General Counsel’s denial of an appeal of a compliance determination involving a Board decision and order reported at 353 NLRB 287 (2008), the Board found that a remand to the Regional Director concerning his compliance determination was appropriate.  The Board further found that as the Regional Director had already reviewed the compliance determination and issued a revised determination on February 12, 2014, pursuant to a remand order issued by the prior Board, nothing would be gained by ordering the Regional Director to take those steps again, and the Board would not require it.  Further, the Board stated that it would not require the Union to again file an appeal with the General Counsel regarding the revised compliance determination, and provided a time frame in which the Union could file a further request for review.

In Cases 04-CA-037998 and 04-CA-069822, regarding a request for review of the General Counsel’s denial of an appeal of a compliance determination involving a formal settlement stipulation, the Board considered de novo the formal settlement stipulation in light of the Union’s objections, and determined that the parties’ stipulation should be approved.  Accordingly, the Board issued a Decision and Order approving the settlement stipulation on the same date.  The Board also provided a time frame in which the Union could file a further request for review of the Regional Director’s compliance determination in this proceeding.

Charges filed by International Union of Operating Engineers Local 542, AFL-CIO.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Appellate Court Decisions

Onyx Management Group LLC, Board Case No. 29-CA-130471 (reported at 361 NLRB No. 30) (2d Cir. decided August 26, 2015)

In an unpublished summary order, the Court enforced the Board’s order in a test-of-certification case requiring this provider of property-management services at a large office complex in Jericho, New York, to bargain with the International Union of Operating Engineers, Local 30, AFL-CIO.

In the representation case, the employer claimed that the lead outdoor maintenance worker exercised supervisory authority under Section 2(11) of the Act by assigning work to other outdoor maintenance employees at the office complex.  Based on the weight of evidence presented, the Acting Regional Director found that he did not assign work to his fellow outdoor employees within the meaning of the Act.  To the extent he made any assignments, he did not do so with the requisite independent judgment, but rather simply relayed the property manager’s instructions to the rest of the outdoor team.  Addressing the employer’s second claim, the Acting Regional Director found that the working conditions of the indoor and outdoor employees at the office complex were similar in most relevant respects, including overall job functions, supervision, and benefits, and thus they shared a community of interest and constituted an appropriate unit.  The Board certified the union after an election was held among the dozen maintenance employees in May 2014.

On review, the court cited the settled principles that the Board’s factual finding on supervisory status is conclusive if supported by substantial evidence, and that the Board’s unit determination will stand unless arbitrary.  The court held that both standards were met, and granted enforcement.

The court’s summary order is here (link is external).

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Administrative Law Judge Decisions

Amalgamated Transit Union, Local 689  (05-CA-141077; JD-47-15)  Forestville, MD.  Administrative Law Judge Arthur J. Amchan issued his decision on August 25, 2015.  Charge filed by an individual.

Long Island Association for Aids Care, Inc.  (29-CA-149012; JD(NY)-38-15)  Brooklyn, NY.  Administrative Law Judge Kenneth W. Chu issued his decision on August 26, 2015.  Charge filed by an individual.

The Columbus Show Case Company d/b/a CSC Worldwide and CSC Specialty Retail Group, LLC, a single employer  (09-CA-112725, et al.; JD-48-15)  Columbus, OH.  Administrative Law Judge Arthur J. Amchan issued his decision on August 27, 2015.  Charges filed by Sheetmetal Workers International Association, Local Union No. 24, AFL-CIO; Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, Local 2077; International Brotherhood of Electrical Workers, Local Union 683, AFL-CIO; International Union of Painters and Allied Trades, District Council 6, Local Union No. 1275, AFL-CIO, CLC; and Glaziers, Architectural Metal and Glass Workers Local Union No. 372.