Today’s Labor Updates:
What is “Available” Voter Contact Information Under the Quickie Election Rule Remains Unclear for Now
Employee termination law in France
Summary of NLRB Decisions for Week of December 7 – 11, 2015
What is “Available” Voter Contact Information Under the Quickie Election Rule Remains Unclear for Now
Blog: Labor & Collective Bargaining
Jackson Lewis PC – Howard M. Bloom and Philip B. Rosen
USA December 16 2015
The American Federation of Teachers Connecticut has withdrawn its petition to represent 866 full-time, part-time, and per-diem non-professional employees employed at Danbury Hospital. The move likely makes moot the employer’s appeal (Request for Review) of a National Labor Relations Board Regional Director’s ruling that the employer did not exercise “a reasonable amount of diligence” in its preparation of the voting list containing voters’ contact information. Danbury Hospital of the Western Connecticut Health Network, Case 01-RC-153086 (Oct. 16, 2015).
The union had lost an election among the 866 eligible voters in June 2015. The union thereafter filed “objections” with the NLRB seeking a re-run election. In the objections, the union alleged, among other things, that the voting list compiled by the employer was insufficient under the Board’s new rule. That rule, which became effective on April 14, 2015, requires employers to provide eligible voters’ names and addresses, as well as their available personal email addresses and cell phone numbers. The evidence showed that in compiling the voter list, the employer utilized information solely contained in one of its electronic databases. However, as determined by the Regional Director, the employer had other electronic and non-electronic sources of relevant contact information which it also should have accessed.
As a result of the withdrawal, clarity about what constitutes “a reasonable amount of diligence” and “available” information under the Board’s new quickie election rule likely will have to wait for another case. In the meantime, employers should use the Regional Director’s Danbury Hospital decision as a guideline for preparing a rule-compliant voting list if faced with a union petition. For more information see our blog post Act Two: Employer Failed to Provide Union with Available Voter Contact Information, NLRB Regional Director Finds.
Employee termination law in France
Seyfarth Shaw LLP
France, Global November 16 2015
Termination
Notice
Are employers required to give notice of termination?
All termination notices must be in writing. The termination process is strictly regulated under French law and termination letters must explain the grounds for termination and contain certain mandatory information.
Redundancies
What are the rules that govern redundancy procedures?
Terminations for economic reasons must follow a complex procedure which involves:
- selection criteria;
- looking for an alternative role for the employee; and
- explaining the reasons for the redundancy.
Redundancies must be notified to the labour authority. Certain reports and forms must also be filed to ensure that the employee receives unemployment benefits.
Are there particular rules for collective redundancies/mass layoffs?
Redundancies can be considered collective where two or more employees are at risk of redundancy over 30 days. The procedure will depend on:
- the number of employees in the company (fewer or more than 50 employees); and
- the number of employees at risk of redundancy (fewer or more than 10 employees).
This determines whether a social plan is required (from 10 redundancies or more over 30 days), the duration of the consultation and the labour authority’s level of intervention.
Protections
What protections do employees have on dismissal?
Employees are protected from dismissal from their first day of employment. In the case of unfair dismissal, an employee is entitled to financial compensation of up to six months’ salary if he or she has been employed with a larger employer for two years.
Employee representatives and pregnant employees enjoy additional protection. The termination of employee representatives is subject to the labour inspector’s approval. Pregnant employees are protected against dismissal from the date that the employer is informed of the pregnancy to at least four weeks after the end of the maternity leave.
Click here to view the full article.
Summary of NLRB Decisions for Week of December 7 – 11, 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
Sub-Acute Rehabilitation Center at Kearny, LLC d/b/a Belgrove Post Acute Care Center (22-CA-093626; 363 NLRB No. 61) Kearny, NJ, December 9, 2015.
On December 21, 2012, the Acting General Counsel filed a Motion for Summary Judgment in this proceeding. On December 26, 2012, 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 March 13, 2013, the Board issued a Decision and Order, reported at 359 NLRB No. 77. Thereafter, the General Counsel filed an application for enforcement in the US Court of Appeals for the Third Circuit. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. Thereafter, the court of appeals remanded this case for further proceedings consistent with the Supreme Court’s decision.
On November 25, 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 25, 2014 certification of representative issued. (361 NLRB No. 118.) Thereafter, on January 8, 2015, the Respondent filed its response to the Notice to Show Cause and its opposition to the motion for summary judgment. Noting that the General Counsel had not filed an amended complaint, the Respondent argued that summary judgment could not be granted because the prior certification was “invalid,” that the Board could not rely upon an invalid certification to find a refusal to bargain, and that there was no evidence that the Union had requested bargaining after the Board’s November 25, 2014 Decision, Certification of Representative, and Notice to Show Cause. The Respondent also reiterated certain representation and procedural arguments that the Board had considered and rejected in its November 25, 2014 Decision.
On February 4, 2015, the General Counsel filed a Motion to Amend the complaint to include the allegations that on about January 26, 2015, the Union requested that the Respondent recognize and bargain with it, and that since about January 30, 2015, the Respondent refused to do so. The Respondent filed an opposition to the motion on February 6, 2015. On May 26, 2015, the Board granted the motion to amend. Thereafter, the Respondent filed an answer to the amended complaint. The Respondent admitted the factual allegations in the complaint, including its refusal to bargain, reiterated certain representation and procedural arguments that the Board had considered and rejected in its November 25, 2014 Decision, and asserted 15 affirmative defenses. The Respondent also filed a response to the Notice to Show Cause and in opposition to the motion for summary judgment.
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 each of the Respondent’s affirmative defenses. In particular, the Board rejected the Respondent’s third affirmative defense, which raised the previously considered argument that the panel that decided the initial request for review in Case 22–RC–080916 was not properly constituted, noting that the argument was addressed in the Board’s November 25, 2014 Decision by considering the Respondent’s Request for Review de novo and finding the Respondent’s arguments to be without merit. The Board also rejected the Respondent’s fourth affirmative defense, which argued that the Regional Director lacked jurisdiction to issue a certification on September 19, 2012, because the Board lacked a quorum at that time, noting that the authority of the Regional Director is not dependent upon the presence of a quorum. The Board additionally rejected the Respondent’s argument that the September 19, 2012 certification of representative was “invalid” because the Board lacked a quorum, observing that Subpart X of the Board’s Rules and Regulations expressly provides that during periods when the Board lacks a quorum representation cases should continue to be processed to certification “to the extent practicable.”
Further, the Board rejected the Respondent’s thirteenth affirmative defense, which argued that the Board erred in allowing the General Counsel to amend the complaint without the Union having filed an amended charge. The Board found that the General Counsel’s amendment to the complaint was expressly contemplated by the Board’s November 25, 2014 Decision, Certification of Representative and Notice to Show Cause, and that the allegations in the amended complaint are part of a continuum of events that begin with the filing of a petition for a representation election in Case 22–RC–080916 and culminated with the Respondent’s ongoing refusal to recognize and bargain with the Union for the purpose of testing the Board’s certification of representative. The Board concluded that these events are sufficiently related to the original charge in this matter to be included in the amended complaint. Additionally, the Board rejected the Respondent’s fourteenth affirmative defense, which asserted that the Board failed to follow its Rules and Regulations “including by a May 26, 2015 order requiring the Company to file an answer to the amended complaint and then providing that the Company should then file its opposition to the General Counsel’s motion for summary judgment.” In its response to the Notice to Show Cause, the Respondent argued that this procedure, which the Board has followed in numerous cases, improperly placed the Board in the role of prosecuting this case. That Board found that although the Respondent does not cite any case or any of the Board’s Rules and Regulations to support its argument, it appears to have conflated its thirteenth and fourteenth affirmative defenses to assert that in the absence of a new charge and a new investigation the Board cannot consider the current state of the evidence in ruling on the General Counsel’s motion for summary judgment. The Board rejected this argument, noting again that these events were part of an ongoing continuum of events and finding that they were properly before the Board for consideration. Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit.
Charge filed by District 1199J NUHHCE, AFSCME, AFL–CIO. Chairman Pearce and Members Hirozawa and McFerran participated.
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Olean General Hospital (03-CA-097918, et al.; 363 NLRB No. 62) Olean, NY, December 11, 2015.
A Board panel majority consisting of Members Hirozawa and McFerran affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) and (1) when it failed and refused to bargain in good faith with the Charging Party Union both over the decision to implement a training program that employed unit nurses as trainers of nursing students and over the effects of that decision, and when the Respondent failed and refused to supply the Union with relevant information about the training program and about a patient care survey conducted by an outside agency. Member Miscimarra agreed that the Respondent unlawfully failed to provide the Union with that requested information, but he dissented from the majority’s finding that the Respondent unlawfully failed to bargain over the decision to implement the training program. Instead, he would have found only an effects bargaining violation with respect to the implementation. Charge filed by New York State Nurses Association. Administrative Law Judge Arthur J. Amchan issued his decision on September 24, 2013. Members Miscimarra, Hirozawa, and McFerran participated.
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Philmar Care, LLC d/b/a San Fernando Post Acute Hospital (31-CA-133242; 363 NLRB No. 57) Fontana, CA, December 11, 2015.
Applying Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in part, Murphy Oil USA, Inc., v. NLRB, No. 14-60800 (5th Cir. Oct. 26, 2015), a Board panel majority consisting of Members Hirozawa and McFerran affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by maintaining and enforcing a binding arbitration policy that required employees, as a condition of employment, to waive their rights to pursue collective actions involving employment-related claims in all forums. The Board panel majority did not rely on the judge’s rationale that the provision explicitly restricted Section 7 rights, or that employees would reasonably construe the provision to restrict Section 7 activity, because the provision at issue did not expressly address whether employees may assert a group or class grievance in arbitration. Rather, the majority found that the Respondent had unlawfully applied the policy to restrict Section 7 activity under the third prong of Lutheran Heritage, 343 NLRB 646, 647 (2004), when it filed a motion to compel individual arbitration of the Charging Party’s class action wage and hour complaint. Member Miscimarra dissented. He would find that the maintenance and enforcement of agreements between employers and employees that waive class and collective actions do not violate Section 8(a)(1). Charge filed by an individual. Administrative Law Judge Amita Baman Tracy issued her decision on May 6, 2014. Members Miscimarra, Hirozawa, and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
JMF Underground, Inc. (04-RM-146087) Mechanicsburg, PA, December 8, 2015. The Board denied the Employer’s Request for Review of the Regional Director’s dismissal of the instant petition on the ground that it raised no substantial issues warranting review. Accordingly, the Board affirmed the dismissal of the petition. Union – International Union of Operating Engineers, Local 542. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Danbury Hospital of the Western Connecticut Health Network (01-RC-153086) Danbury, CT, December 9, 2015. The Board denied the Employer’s requests to stay the election and to impound the ballots. The Board noted that under its December 2014 amendments to the rules governing representation-case procedures, impoundment of the ballots is considered an extraordinary form of relief. Petitioner—AFT Connecticut. Chairman Pearce and Members Hirozawa and McFerran participated.
Rio Grande Regional Hospital, Inc. (16-RD-122582) McAllen, TX, December 9, 2015. Order granting the Union’s permission to appeal the Hearing Officer’s granting of the Employer’s and Non-Party employers’ petitions to revoke subpoenas duces tecum, but denying the appeal on the merits because the Union did not demonstrate that the subpoenaed documents were relevant. Petitioner—an individual. Union—SEIU Texas. Chairman Pearce and Members Hirozawa and McFerran participated.
Suiza Dairy Corporation (12-RC-156571) San Juan, PR, December 10, 2015. The Board denied the Petitioner’s Request for Review of the Regional Director’s administrative dismissal of its petition on the basis that it raised no substantial issues warranting review. Petitioner— Unión de Tronquistas de Puerto Rico, Local 901. Chairman Pearce and Members Hirozawa and McFerran participated.
American Indian Community Housing Organization (18-RD-154756) Duluth, MN, December 11, 2015. The Board denied the Union’s Request for Review of the Acting Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review. In finding that the Union failed to establish a contract bar, the Board found that the Union failed to meet its burden of proving that the agreement was ratified, which was a condition precedent for contract formation. The Board also found that the Acting Regional Director correctly prohibited the parties from litigating the appropriateness of the unit at the hearing because neither the Union nor the Employer raised this issue in its statement of position, and they both indicated in their statements of position that the unit in the petition is appropriate. Member Miscimarra found that the Acting Regional Director correctly determined that the unit in the petition was appropriate, and, thus, did not reach or rely on the Union’s failure to challenge the appropriateness of the unit in its statement of position. Petitioners—two individuals. Union – American Federation of State, County, and Municipal Employees, Local 3558 (a/k/a AFSCME Local 3558). Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
Panera, LLC and Panera Bread Company, and Manna Development Group, LLC, and Bread of Life, LLC d/b/a Panera Bread, joint employers and/or single employer (07-CA-136197, 07-CA-147774) Grand Rapids, MI, December 8, 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. Member Miscimarra stated that he did not agree with the Board’s revised standard for assessing joint-employer status under the Act, but believes, under the circumstances of this case, that an adequate basis exists for the subpoena’s requests and that compliance would not be unduly burdensome. Charge filed by Local 70, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, AFL-CIO, CLC. Members Miscimarra, Hirozawa, and McFerran participated.
Quality Health Services of P.R., Inc. d/b/a Hospital San Cristóbal (12-CA-127354) Coto Laurel, PR, December 8, 2015. Decision and 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 Unidad Laboral de Enfermeras(os) y Empleados de la Salud. Members Miscimarra, Hirozawa, and McFerran participated.
New York Party Shuttle, LLC (02-CA-073340) New York, NY, December 8, 2015. Order denying the Employer’s petition to revoke a subpoena duces tecum. The Board found that the Respondent lacked standing to file a petition to seek revocation of a subpoena issued to a third party. The Board also 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 Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by an individual. Chairman Pearce and Members Hirozawa and McFerran participated.
Empire Janitorial Sales & Service, LLC (15-CA-146938) Metairie, LA, December 9, 2015. Order denying the Employer’s petition to revoke an investigative subpoena ad testificandum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, as required by Section 11(1) of the Act and Section 102.31(b) of the Board’s Rules and Regulations. See Postal Workers Local 64 (USPS), 340 NLRB 912 (2003); Offshore Mariners United, 338 NLRB 745 (2002). The Board found that the disposition of the petition to revoke is consistent with existing Board law as reflected in Postal Workers and Offshore Mariners, which find subpoenas identifying the case name and number to be sufficiently particular. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. The Board noted that the Employer argued that the subpoena should be revoked because, although the subpoena purportedly seeks testimony, the accompanying cover letter indicated (in the Employer’s view) that its purpose was “to force [the subpoenaed manager] to sign the poorly worded 43 page affidavit.” However, the Board stated that neither the subpoena nor the cover letter contained any indication that the manager would be “forced” to sign any document. The Board observed that the Employer did not deny that the Region repeatedly urged the manager to review the affidavit that he previously gave and revise it as necessary to provide the Region with an accurate statement of the facts as known to him. The Board stated that if the manager declined to review and sign the prior affidavit, he could instead provide fresh testimony pursuant to the subpoena. Member Miscimmara agreed that the Region described with sufficient particularity the evidence sought from the manager based on the Region’s uncontradicted assertions in its brief in opposition to the petition to revoke that it (1) attached to the subpoena a copy of the third amended charge and, in a cover letter to Employer’s counsel, explained (2) which allegations would be the focus of the testimony sought and (3) that a purpose of the interview would include the manager’s review of his proposed Board affidavit. Member Miscimarra stated that in his view, 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 noted 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 United Labor Unions, Local 100. Members Miscimarra, Hirozawa and McFerran participated.
United States Postal Service (15-CA-098739, et al.) Panama City, FL, December 11, 2015. Decision and 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 American Postal Workers Union, Local 1414. Chairman Pearce and Members Hirozawa and McFerran participated.
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Appellate Court Decisions
Mike-Sell’s Potato Chip Co., Board Case No. 09-CA-094143 (reported at 360 NLRB No. 28) (D.C. Cir. decided December 11, 2015)
In a published opinion, the court upheld the Board’s finding that no impasse was reached during contract negotiations and enforced the order in full.
At its Dayton, Ohio facility, this snack food manufacturer and distributor employs units of drivers and warehouse employees under two separate collective-bargaining agreements with General Truck Drivers, Warehousemen, Helpers, Sales and Service, and Casino Employees, Teamsters Local Union No. 957. In September 2012, the parties began bargaining for new contracts and reached numerous tentative agreements over the course of 12 sessions. In what was to become the final session on November 14, they made progress on the remaining issues and the employer proposed meeting next on November 16. The union stated that its negotiators were unavailable that day and promised to propose an alternative date. On November 16, the day before the current contracts were to expire, the employer announced by letter that its most recent sets of contract proposals were its final offers. The union responded that it was willing to meet even though it could not on November 16 and insisted that there was no impasse. On November 18, the employer sent a second letter again stating that impasse had been reached and adding that it intended to implement its final offers on November 19, which it did. On those facts, the Board found, in agreement with the administrative law judge, that the employer violated Section 8(a)(5) and (1) of the Act by unilaterally implementing its offers without first bargaining with the union to a good-faith of impasse.
On review, the court rejected the employer’s assertion of impasse. The court acknowledged that the Board’s finding of no impasse is entitled to deference because it relies on the Board’s expertise in evaluating the parties’ bargaining tactics and intentions. Despite that deference, the court explained, “[o]ur precedent closely read, . . . does set forth certain principles that govern at least our review of such cases.” The court summarized those principles as follows: “If an employer remains firm in collective bargaining as to one or more essential issues and credibly declares a last offer in the negotiations, a last offer that is consistent with and follows logically from its negotiating position, a union’s failure to agree creates an impasse,” and a union’s “denial that an impasse exists, combined with a new negotiating proposal that does not meet the employer’s position, does not rebut an impasse.” Consistent with those principles, the court concluded that here there was no impasse: the employer “had not displayed the requisite firmness on the key issues in negotiations, it had not made a last offer . . . , nor [had it] declared an impasse in the crucial bargaining session.” The court also commented that it had the impression that the employer acted on the misunderstanding that it was free to changes terms and conditions of employment once the contracts expired, which is contrary to settled law.
The court’s opinion is here (link is external).
Entergy Mississippi, Inc., Board Case No. 15-CA-017213 (reported at 361 NLRB No. 89) (5th Cir. decided December 7, 2015)
In a published opinion, the court upheld the Board’s standards for determining supervisory status articulated in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), but denied enforcement on the facts of the case, remanding to the Board for further proceedings. The employer is an electric utility company that transmits and distributes power and employs, among others, dispatchers and field employees who work together to maintain and restore power to geographical areas throughout Mississippi. In reviewing the Board’s factual determination that the dispatchers at issue were not statutory supervisors, the court agreed that they did not “responsibly direct” field employees within the meaning of Oakwood, but disagreed with the Board on the question whether they “assign” field employees to job locations using independent judgment. Accordingly, the court reversed in part and remanded for further proceedings on that “narrow” question.
The employer and the International Brotherhood of Electrical Workers, Local Unions 605 and 985, which represents the 25 dispatchers, have a 60-year bargaining relationship. This case arose in 2003, when the employer filed a unit-clarification petition contending that the dispatchers were supervisors under Section 2(11) of the Act and seeking to exclude them from the bargaining unit. After a hearing, the Region denied the petition, and employer sought review. In 2006, the Board (Chairman Battista and Members Schaumber and Kirsanow) remanded the case to the Region to apply the Board’s then-recent decisions in Oakwood, Golden Crest Healthcare Center, 348 NLRB 727 (2006), and Croft Metals, Inc., 348 NLRB 717 (2006), which address the meaning of Section 2(11)’s terms “assign,” “responsibly to direct,” and “independent judgment.” After a second hearing, the Region again concluded that the dispatchers did not responsibly direct employees using independent judgment, nor that they assigned employees to “places,” “times,” or significant overall duties. In December 2011, after accepting the employer’s request for review, the Board (Chairman Pearce and Member Becker; Member Hayes dissenting) affirmed the Region’s findings. Meanwhile, when the petition was pending and new contract bargaining was underway, the employer insisted to impasse on a separate agreement covering the dispatchers’ terms and conditions and unilaterally removed them from the bargaining unit. Thereafter, the employer refused to bargain in order to obtain court review of the Board’s determination that the dispatchers were not supervisors.
On review, the court upheld the Board’s standards for determining supervisory status articulated in Oakwood, explaining that “[o]ne need look no further than the thorough and well-reasoned opinion itself to discern that the Board’s interpretation is reasonable,” and thus its decision is owed deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984). The court rejected the employer’s contention that the court owed no such deference because the Board had reversed course and issued new standards in Oakwood. The court noted that federal courts must defer even to new, course-reversing agency positions when “the new policy is permissible under the statute, . . . there are good reasons for it, and . . . the agency believes it to be better, which the conscious change of course adequately indicates,” quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). In Oakwood, the court stated, that test was met because the Board “explained that it adopted its new interpretations of Section 2(11) to further its mandate to protect workers, to faithfully follow the dictates of Congress and the courts, and to ‘provid[e] meaningful and predictable standards for the adjudication of future cases and the benefit of the Board’s constituents,’” quoting Oakwood, 348 NLRB at 688. The court also rejected the employer’s related contention that it must follow pre-Oakwood, in-circuit precedent.
Reviewing the Board’s application of Oakwood’s standards, the court agreed that the employer had not carried its burden of proving its claim that the dispatchers “responsibly direct” field employees because the employer failed to show that dispatchers are held accountable for the failures and errors of field employees. For assignment of work, two claims were at issue. The court agreed with the Board that one of the employer’s claims—that dispatchers assigned field employees to “times” by requiring them to stay on duty after their shifts—failed because it was based on discredited testimony. However, with regard to the Board’s finding that the dispatchers did not assign field employees to “places” because work locations are largely determined by a computer program showing trouble spots, the court stated that the Board “ignored significant portions of the record that show how dispatchers arguably exercise independent judgment when deciding how to allocate [] field workers.” The court thus remanded for further proceedings on that “narrow question.” Finally, the court rejected the notion that the doctrine of laches would bar a monetary award, relying on the principle that laches is an unavailable defense against the federal government in enforcing a public right.
The court’s opinion is here (link is external).
Huntington Ingalls Inc., Board Case No. 05-CA-081306 (reported at 361 NLRB No. 64), and Enterprise Leasing Company-Southeast, LLC, Board Case No. 11-CA-073779 (reported at 361 NLRB No. 63), (4th Cir. decided November 23, 2015).
In an unpublished per curiam opinion, the court granted enforcement of the Board’s bargaining orders in this pair of test-of certification cases that the court consolidated for decision. In doing so, the court rejected the employers’ contention that the Board had lacked jurisdiction to issue its orders because the court had previously denied enforcement on the basis of the Board’s earlier lack of quorum without explicitly remanding the cases to the Board for further proceedings.
In Huntington, the employer, which operates a shipyard in Newport News, Virginia, refused to bargain with the International Association of Machinists and Aerospace Workers, AFL-CIO, in order to challenge the Board’s certification of the union as the representative of a unit of 140 technicians in its Nuclear Services Division after a Board-conducted election in May 2009. In the underlying representation case, the Board affirmed the Regional Director’s determination that, contrary to the employer’s claim, the technicians constituted an appropriate unit under the Board’s standard clarified in Specialty Healthcare & Rehabilitation Center. of Mobile, 357 NLRB No. 83 (2011), enforced sub. nom. Kindred Nursing Centers East v. NLRB, 727 F.3d 552 (6th Cir. 2013). In the ensuing unfair-labor-practice case, the Board (Chairman Pearce and Members Hayes and Griffin) granted the General Counsel’s motion for summary judgment and issued the bargaining order in August 2012. Member Griffin was one of the President’s three recess appointees to Board in January 2012.
Meanwhile, in Enterprise Leasing, the employer refused to bargain to test the Board’s certification of the International Brotherhood of Teamsters, Local 391 as the representative of a unit of 100 employees at its car-rental facility at the Raleigh-Durham International Airport after an election was conducted in December 2010. The employer had filed objections concerning an alleged threat by a union organizer, the union’s use of an employee’s photograph on a campaign flyer, and inclement weather that occurred on the first day of the two-day election. On review, the Board issued its decision adopting the hearing officer’s recommendation to overrule the objections and certifying the union. In the unfair-labor-practice case, the Board (Chairman Pearce and Members Hayes and Griffin) granted the General Counsel’s motion for summary judgment and issued the bargaining order in April 2012.
Both cases arrived to the Fourth Circuit. In July 2013, after consolidating the cases, the court denied enforcement and vacated the Board’s orders, despite concluding that substantial evidence supported the Board’s unfair-labor-practice findings. NLRB v. Enterprise Leasing Company-Southeast, LLC, and Huntington Ingalls Inc. v. NLRB, 722 F.3d 609, 614-20 (4th Cir. 2013), cert. denied, 134 S. Ct. 2902 (2014) (citing Noel Canning v. NLRB, 705 F.3d 490, 507 (D.C. Cir. 2013), affirmed on other grounds, 134 S. Ct. 2550 (2014)). In both cases, the Court initially concluded that the Board’s certification of the unions was proper. The sole basis for the court’s denial of enforcement was that the President’s three January, 2012 recess appointments to the Board were invalid and thus the Board lacked a quorum when it issued the decisions. Id. at 660. The Board filed a petition for writ of certiorari on the recess appointment issue. In June 2014, the Supreme Court decided NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), which held that the January 2012 recess appointments were invalid, and thereafter denied the Board’s petition in these cases.
In August 2014, the Board’s Executive Secretary notified the parties that the Board would consider the cases anew and issue decisions resolving the complaint allegations. The employers objected, asserting that absent an explicit remand from the court, the Board lacked jurisdiction over the cases. In October 2014, the Board (Chairman Pearce and Members Hirozawa and Johnson) issued decisions and orders granting the General Counsel’s motions for summary judgment. The Board explained that it could consider the cases anew after the court denied enforcement because “[t]he clear import of the court’s decision denying enforcement, along with the Supreme Court’s Noel Canning decision, is that no validly constituted Board has ruled on the General Counsel’s motion for summary judgment.” The Board thus concluded that the motion was “still pending before the Board, and the Board is free to address it.” Thereafter, the cases returned to the Fourth Circuit.
In its current opinion, the court (Circuit Judges Shedd and Thacker, and Senior Circuit Judge Hamilton) concluded that “[a] [court] decision finding the lack of a proper quorum clearly contemplates further Board action, and, thus, the Board here did not err when it revisited Enterprise’s and Huntington’s challenges to the union elections.” The court explained that were it to accept the employers’ interpretation, the employees who voted for union representation would be deprived of a resolution of the election objections on the merits, and its decision would conflict with “the well-reasoned decision of the Eighth Circuit” in NLRB v. Whitesell Corp., 638 F.3d 883, 889 (8th Cir. 2011) (holding that the denial of enforcement on the basis that the Board lacked a proper quorum did not deprive the Board of jurisdiction to consider the case anew). On the merits, the court held that the employers’ “contentions mirror the challenges previously raised to this court in the prior appeal, and we reject them for the reasons stated in our prior panel opinion.”
The court’s per curiam opinion is here (link is external).
Nova Southeastern University, Board Case No. 12-CA-025114 (reported at 357 NLRB No. 74) (D.C. Cir. decided December 11, 2015)
In a published opinion, the court enforced the Board’s order against this private educational institute with a campus in Fort Lauderdale, Florida. In doing so, the court upheld the Board’s application of New York New York, LLC, 356 NLRB No. 119 (2011), enforced, 676 F.3d 193 (D.C. Cir. 2012), in finding that the university violated Section 8(a)(1) of the Act by prohibiting and disciplining its maintenance contractor’s employees who worked on the campus from engaging in organizational handbilling without first obtaining the university’s permission.
In 2000, the university contracted with UNICCO Service Company to provide maintenance, landscaping, and janitorial services on campus. By contract, UNICCO was required to enforce university policies, report policy violations, and ensure that its employees “abide by all rules, regulations, and policies of [Nova] during the term of this Contract,” which included the rule that no solicitation was allowed on campus without university permission. In 2006, UNICCO’s employees began an organizing campaign. That summer, a UNICCO employee distributing handbills to coworkers as they arrived for their shift was told to stop by a university public safety officer who stated that his handbilling was unauthorized under the no-solicitation rule. Subsequently, a UNICCO manager issued a disciplinary warning to the employee for unauthorized handbilling. After the university ended its services contract in 2007, that manager was hired in a university position and later was approached by a former UNICCO employee who asked the manager to help his get a job there. The manager sarcastically replied that the university might pay him for union picketing. On those facts, the Board (Chairman Liebman and Members Becker and Pearce) found, in agreement with the administrative law judge, that the university unlawfully maintained an overly broad no-solicitation rule, enforced that unlawful rule by disciplining the handbilling employee, and made coercive statements to the former employee who sought work.
Before the court, the university did not challenge the unlawful-rule finding, nor did it contest that it prohibited employees of its onsite maintenance contractor from engaging in handbilling on campus. Rather, it primarily argued that the Board had improperly applied its decision in New York New York, in which the Board held that onsite contractor employees have the right to distribute union-related handbills, during nonwork time and in nonwork areas, unless the property owner can demonstrate that the handbilling significantly interferes with its use of the property or justifies its prohibition by other legitimate business reasons. The court found, however, that those arguments were either sufficiently rejected in New York New York, or were jurisdictionally barred from review under Section 10(e) of the Act because the university had not raised them to the Board. Concerning the university’s contention that it had, in fact, shown a legitimate business reason for its otherwise unlawful rule, the court noted that, although the university presented evidence of security concerns, it “never explained how its campus would be less safe if its on-site contractor employees were permitted to distribute handbills to their co-workers.” Rejecting its additional contention that there was no basis to impute liability for the discipline imposed by the contractor, the court held that substantial evidence supported the Board’s finding that the UNICCO manager who issued a disciplinary warning to the employee for unauthorized handbilling did so while acting as an agent of the university. Similarly, the court found the Board’s finding that the manager made coercive statements to the former employee who sought work was supported by substantial evidence. Finding no merit to the university’s remaining contentions, the court enforced the Board’s order in full.
The court’s decision is here (link is external).
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Administrative Law Judge Decisions
Kern, Inyo and Mono Counties Building and Construction Trades Council (Golden Queen Mining Co., LLC) (31-CE-129697; JD(SF)-47-15) Kern, Inyo, and Mono Counties, CA. Administrative Law Judge John J. McCarrick issued his decision on December 7, 2015. Charge filed by Golden Queen Mining Co., LLC.
T-Mobile USA, Inc. (28-CA-148865; JD(SF)-49-15) Albuquerque, NM. Administrative Law Judge Amita Baman Tracy issued her decision on December 10, 2015. Charge filed by Communications Workers of America, Local 7011, AFL-CIO.