Summary of NLRB Decisions for Week of February 22 – 26, 2016

Today’s Labor Updates:

Summary of NLRB Decisions for Week of February 22 – 26, 2016

China’s Growing Labor Movement Threatens Beijing

Summary of NLRB Decisions for Week of February 16 – 19, 2016

Summary of NLRB Decisions for Week of February 22 – 26, 2016

The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov (link sends e-mail) or 202‑273‑1991.

Summarized Board Decisions

Alternative Entertainment, Inc. (07-CA-144404; 363 NLRB No. 131) Bryon Center, MI, February 22, 2016.

The Board affirmed the judge’s findings that the Respondent violated Section 8(a)(1) by: (a) maintaining a handbook rule prohibiting the unauthorized disclosure of employee compensation and salary information; (b) prohibiting an employee from discussing changes to compensation with his coworkers; and (c) discharging that employee for engaging in protected concerted activity. In so doing, the Board clarified that the employee engaged in two types of protected activity: (1) he repeatedly discussed shared concerns about the change in pay structure with his coworkers, and (2) he voiced those concerns to management on several occasions. The Board also affirmed the judge’s finding that the General Counsel met his initial burden under Wright Line, and that the Respondent’s explanations for the termination were pretextual. The Board rejected the Respondent’s exception that the judge improperly found that the employee was discharged for complaining to his coworkers about the change in pay structure because that theory was not pled in the complaint, and observed that the Respondent fully litigated this issue during the hearing.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran also affirmed the judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an arbitration policy that employees were required to sign as a condition of employment. The majority noted that, by prohibiting the pursuit of class or collective employment claims in both arbitral and judicial forums, the Respondent’s policy expressly restricts protected Section 7 activity, and its maintenance violates Section 8(a)(1). The majority further noted that the Act does create a right to pursue joint, class, or collective claims if and as available, without the interference of an employer-imposed restraint, and concluded that the Respondent’s policy is such an unlawful restraint. Citing Murphy Oil and Bristol Farms, 363 NLRB No. 45 (2015), the majority rejected the dissent’s view that finding the policy unlawful runs afoul of employees’ Section 7 right to “refrain from” engaging in protected concerted activity or that Section 9(a) of the Act requires the Board to permit individual employees to prospectively waive their right to engage in concerted legal activity.

Member Miscimarra dissented from the majority’s finding regarding the arbitration policy for the reasons explained in his partial dissenting opinion in Murphy Oil USA, Inc. In so doing, he noted that Section 9(a) protects the right of every employee as an “individual” to “present” and “adjust” grievances at any time.

Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on July 9, 2015. Chairman Pearce and Members Miscimarra and McFerran participated.

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Apple American Group LLC Applebees, d/b/a Applebees Neighborhood Grill and Bar (18-CA-103319; 363 NLRB No. 111) Saint Paul, MN, February 22, 2016.

Member Miscimarra, dissenting, would have dismissed the complaint. Consistent with his dissents in Murphy Oil USA, Inc. and Beyoglu, 362 NLRB No. 152 (2015), he concluded that the Program did not violate the Act and that its enforcement was warranted by the Federal Arbitration Act.

Charge filed by an individual. Administrative Law Judge Joel P. Biblowitz issued his decision on September 30, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Midwestern Video Personnel, Inc. (07-CA-148107; 363 NLRB No. 120) Spencer, OH, February 22, 2016.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of an informal settlement agreement. The Board found that the Respondent failed to comply with the terms of the settlement agreement, and, accordingly, deemed all of the allegations in the reissued complaint to be true. The Board ordered the Respondent to make the Charging Party whole by payment of the remaining balance of backpay as provided for in the settlement agreement, to file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters, and to reimburse the Charging Party for any additional Federal and State income taxes that the Charging Party may owe as a consequence of receiving a lump-sum backpay award in a calendar year other than the year in which the income would have been earned had the Act not been violated.

Charge filed by an individual. Chairman Pearce and Members Miscimarra and McFerran participated.

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United Food and Commercial Workers Union, Local 4, Affiliated with United Food and Commercial Workers Union (Safeway, Inc.) (19-CB-009660; 363 NLRB No. 127) Whitefish, MT, February 22, 2016.

Following a Ninth Circuit remand, the Board reversed the Administrative Law Judge and concluded that a Respondent local union violated its duty of fair representation when it failed to provide the Charging Party, a Beck objector, with information sufficient to allow her to determine whether to challenge her dues reduction. In accordance with well-established law, the Board held that the Respondent’s failure to provide an independent verification of its underlying expenses, and not merely a review based on the Respondent’s own representations, was insufficient to satisfy its duty to the Charging Party.

Charge filed by an individual. Administrative Law Judge James M. Kennedy issued his decision on May 20, 2008. Chairman Pearce and Members Miscimarra and McFerran participated.

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Haynes Building Services, LLC (31-CA-093920; 363 NLRB No. 125) Monrovia, CA, February 23, 2016.

The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by requiring all job applicants to sign a Notice to Applicants, which stated that all disputes were to be submitted to obligatory arbitration, because employees would reasonably read that provision as prohibiting employees from bringing charges before the Board. A Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the judge as to the Respondent’s maintenance and enforcement of a similar statement in its Employment Agreement, finding that the Respondent violated Section 8(a)(1) by threatening to file a motion in state court to dismiss the Charging Party’s wage and hour class action lawsuit brought in violation of the Employment Agreement’s mandatory arbitration clause. In so doing, the majority applied D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015). Contrary to the judge, the majority found that the Respondent required employees to agree to the arbitration provisions in the Employment Agreement, citing the earlier requirement to sign the similar arbitration provision in the Notice to Applicant and the Employment Agreement’s directive that employees address any concerns prior to signing.

Relying on his dissenting opinion in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s holding that the Respondent violated Section 8(a)(1) by applying the Employment Agreement to require individual arbitration. Member Miscimarra would find that Section 8(a)(1) does not create a substantive right for employees to insist on class-type treatment of non-NLRA claims. In his view, the arbitration provision in the Employment Agreement does not infringe on NLRA rights; thus, any claim that the Charging Party brought should be subject to arbitration as warranted by the Federal Arbitration Act.

Charge filed by an individual. Administrative Law Judge Keltner W. Locke issued his decision on February 7, 2014. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Great Lakes Restaurant Management, LLC (03-CA-143685; 363 NLRB No. 130) Buffalo, NY, February 23, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran granted the General Counsel’s motion for summary judgment in part and found that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that explicitly requires employees to waive their right to maintain class or collective actions in all forums, whether arbitral or judicial. The majority also found that the mandatory arbitration agreement separately violates Section 8(a)(1) because employees would reasonably believe that it bars or restricts their right to file and pursue unfair labor charges with the Board. Member Miscimarra dissented from these two findings. However, the Board panel unanimously dismissed the allegation that the Respondent unlawfully enforced the mandatory arbitration agreement by requiring applicants to sign the agreement because there was no claim or evidence that the Respondent ever sought to enforce the arbitration agreement in a judicial proceeding.

Charge filed by the Fast Food Workers Committee. Chairman Pearce and Members Miscimarra and McFerran participated.

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Ralph’s Grocery Company (21-CA-073942; 363 NLRB No. 128) Compton, CA, February 23, 2016.

Second, citing U-Haul Co. of California, 347 NLRB 375 (2006), enfd. 255 Fed.Appx. 527 (D.C. Cir. 2007), the majority found that the MBAP interfered with employees’ right to file charges with the Board. The majority found that the MBAP as a whole was not written in a manner reasonably calculated to assure employees that their right to file charges was unaffected, even though, halfway through six pages of fine print, the MBAP did state that employees retained the right to file charges. The majority found that the ambiguity surrounding the right to file charges was further demonstrated by an employment application that contained a one-paragraph summary of the MBAP, but no reference to employees’ rights to file Board charges. Finally, the majority found that the MBAP could be reasonably read to suggest that filing charges with the Board would be futile because the final resolution of the dispute would lie with the arbitrator, not with the Board. The majority disagreed with Member Miscimarra’s dissenting position that the Act allows an employer to unilaterally restrict employees’ rights to resolve unfair labor practices through the Board’s processes so long as employees retain the right to file charges with the Board.

Third, the majority affirmed the judge’s finding that the MBAP unlawfully required employees to keep information related to an arbitration claim confidential. Member Miscimarra concurred in this finding, but only because the employer demonstrated no countervailing interest to justify the limitation.

For the reasons stated in his partial dissent in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s findings that (1) the MBAP violates Section 8(a)(1) because it waives the right to participate in class or collective actions regarding non-NLRB employment claims, and (2) by filing a motion to compel arbitration, the Respondent unlawfully enforced its policy. Member Miscimarra also dissented from the majority’s finding that the MBAP unlawfully interfered with employees’ rights to file charges with the Board. In Member Miscimarra’s view, the Supreme Court and the Board have long held that an agreement may lawfully provide for the arbitration of NLRA claims and such an agreement does not unlawfully interfere with Board charge-filing where, as here, the agreement expressly preserves the right to file Board charges. Member Miscimarra rejected the majority’s assertion that a labor union may bind employees it represents to an agreement to arbitrate their unfair labor practice claims, but an individual employee may not lawfully enter into such an agreement.

Charge filed by an individual. Administrative Law Judge Eleanor Laws issued her decision on July 31, 2013. Chairman Pearce and Members Miscimarra and McFerran participated.

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RGIS, LLC (28-CA-136313; 363 NLRB 132) Mesa, AZ, February 23, 2016.

On a stipulated record, and applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent violated Section 8(a)(1) by maintaining a dispute resolution program that requires employees, as a condition of employment, to waive their right to maintain class or collective actions in all forums, whether arbitral or judicial. Dissenting, Member Miscimarra would find that the maintenance of agreements between employers and employees that waive class and collective actions do not violate Section 8(a)(1), especially where, as here, the program contains an opt-out provision. The Board unanimously found that the General Counsel did not litigate the question of whether the program was independently unlawful because employees would reasonably believe that it bars or restricts their right to file charges with the Board.

Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Vista Del Sol Health Services, Inc. d/b/a Vista Del Sol Healthcare (31-CA-115318, et al.; 363 NLRB No. 135) Los Angeles, CA, February 24, 2016.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by instructing employees not to talk to the Union and to leave the Respondent’s premises, more strictly enforcing its tardiness policy in response to employees’ union activities, interrogating employees about whether they had engaged in union activities, polling employees about their union sympathies, and threatening to close the facility. The Board affirmed the judge’s finding that the Respondent also violated Section 8(a)(1) by coercively interrogating an employee about union house visits and employees’ distribution of union authorization cards, but found it unnecessary to pass on the judge’s finding that this conduct also unlawfully created the impression of surveillance. Further, the Board affirmed the judge’s finding that the Respondent violated Section 8(a)(3) by discharging nine employees for engaging in union activities. The Board reversed the judge and found that the Respondent violated Section 8(a)(1) by granting a discretionary wage increase to two employees during the Union’s organizing campaign. Finally, in the absence of exceptions, the Board adopted certain other Section 8(a)(1) and (5) violations found by the judge, along with the judge’s finding that a bargaining order is appropriate pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

Charges filed by SEIU-ULTCW, Service Employees International Union, United Long Term Care Workers. Administrative Law Judge Eleanor Laws issued her decision on June 5, 2015. Members Miscimarra, Hirozawa, and McFerran participated.

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FAA Concord H Inc. d/b/a Concord Honda (32-CA-066979, 31-CA-070343 and 32-CA-072231; 363 NLRB No. 136) Concord, CA, February 24, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), the Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions in employment-related claims in all forums, whether arbitral or judicial. The Board reversed the judge’s finding that the Respondent unlawfully enforced the mandatory arbitration agreement, because the employees only pursued their class action through arbitration, and not in court, so the Respondent never sought to enforce the mandatory arbitration agreement as a waiver of employees’ rights to pursue class or collective actions in all forums. The Board adopted the judge’s findings that the Respondent violated Section 8(a)(5) by unilaterally implementing a bonus plan, by unilaterally changing employees’ work schedules, and by directly dealing with employees in holding an election to establish an alternative work-week.

Charges filed by Automotive Machinists Lodge No. 1173, International Association of Machinists and Aerospace Workers. Administrative Law Judge Eleanor Laws issued her decision on October 23, 2013. Chairman Pearce and Members Hirozawa and McFerran participated.

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UnitedHealth Group, Inc. (02-CA-118724; 363 NLRB No. 134) New York, NY, February 25, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s finding that the Respondents violated Section 8(a)(1) by maintaining an arbitration policy that required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the majority rejected the Respondents’ argument that their policy was lawful because it permitted employees to file charges with administrative agencies, including with the Board. The majority modified the judge’s finding that the Respondents had violated Section 8(a)(1) by enforcing the arbitration policy in two federal lawsuits. The majority agreed with the Respondents that Section 10(b) precluded finding a violation for one of the lawsuits because it had concluded more than 6 months before the charge. Rejecting the Respondents’ argument that the complaint did not allege unlawful enforcement, the majority found that the Respondents’ enforcement in the second lawsuit did violate Section 8(a)(1) because, under Pergament United Sales, Inc., 296 NLRB 333 (1989), the allegation was closely connected to the subject matter of the complaint and had been fully litigated.

Member Miscimarra concurred in part and dissented in part. Consistent with his dissent in Murphy Oil USA, Inc., he concluded that the arbitration policy did not violate the Act and that its enforcement was warranted by the Federal Arbitration Act. Given his views on the merits, he found it unnecessary to pass on the 10(b) and due-process issues addressed by the majority.

Charge filed by individuals. Administrative Law Judge Raymond P. Green issued his decision on August 5, 2014. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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AWG Ambassador, LLC (28-CA-118801; 363 NLRB No. 137) Las Vegas, NV, February 25, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining and enforcing an arbitration agreement that required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. The majority rejected the Respondent’s arguments that (1) an exemption in the arbitration agreement allowing employees to file charges with administrative agencies, including the Board, legitimized the agreement; and (2) because multiple employees refused to sign the arbitration agreement and were not disciplined for doing so, the arbitration agreement was voluntary rather than mandatory. For the reasons stated in his partial dissent in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s holding that the Respondent acted unlawfully in requiring employees to waive their right to pursue employment-related class or collective actions.

Charge filed by an individual. Administrative Law Judge Eleanor Laws issued her decision on October 17, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.

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Labor Ready Southwest, Inc., a subsidiary of TrueBlue, Inc. (31-CA-072914; 363 NLRB No. 138) North Hollywood, CA, February 26, 2016.

For the reasons explained in his partial dissenting opinion in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s finding that the arbitration agreement violated the Act because it required employees to waive their rights to pursue class or collective actions regarding non-NLRA claims. Member Miscimarra also dissented from the majority’s finding that the agreement unlawfully interferes with Board charge-filing; in his view, any reasonable interpretation of the agreement reveals that it has no impact on NLRB charge-filing.

Charge filed by an individual. Administrative Law Judge Gerald A. Wacknov issued his decision on April 29, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.

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Cowabunga, Inc. (10-CA-151454; 363 NLRB No. 133) Alpharetta, GA, February 26, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member Hirozawa granted the General Counsel’s motion for summary judgment, finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive their right to maintain class or collective actions in all forums, whether arbitral or judicial. The majority also found that the Respondent unlawfully enforced that provision by filing a motion in federal district court to dismiss, or, in the alternative, to stay and compel the Charging Party to submit his class action wage and hour claim to individual arbitration. The Board unanimously found that the arbitration agreement was independently unlawful because employees would reasonably believe that it bars or restricts their right to file unfair labor practice charges with the Board.

For the reasons explained in his partial dissenting opinion in Murphy Oil USA, Inc., Member Miscimarra would find that the agreement’s class-action waiver and the Respondent’s action to enforce the agreement were lawful. In his view, the NLRA creates no substantive right for employees to engage in class treatment of non-NLRA claims; a waiver of non-NLRA claims does not infringe on any NLRA rights or obligations; and enforcement of non-NLRA class action waivers is warranted by the Federal Arbitration Act.

Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Samuel Pressure Vessel Group d/b/a Steel Fab, Inc. (10-RD-162329) Lebanon, VA, February 22, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s determination to hold the petition in abeyance pending resolution of the outstanding unfair labor practice charge on the ground that it raised no substantial issues warranting review. Petitioner – an individual. Union – International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL-CIO. Chairman Pearce and Members Hirozawa and McFerran participated.

Northwestern Corporation d/b/a Northwestern Energy (19-RC-154336) Anaconda, MT, February 23, 2016. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order dismissing the Petitioner’s petition for an Armour-Globe self-determination election on the ground that it raised no substantial issues warranting review. In denying review, Member Miscimarra noted that he would do so applying traditional community of interest standards, and not Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), for the reasons stated in his dissent in Macy’s, Inc., 361 NLRB No. 4 (2014). Petitioner – International Brotherhood of Electrical Workers, Local 44. Members Miscimarra, Hirozawa, and McFerran participated.

Luckinbill, Inc. (14-RC-157045) Edmond, OK, February 25, 2016. The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s Decision and Certification of Results of Election on the ground that it raised no substantial issues warranting review. Petitioner – Road Sprinklerfitters Local Union 669, U.A., AFL-CIO. Members Miscimarra, Hirozawa, and McFerran participated.

C Cases

Relco Locomotives, Inc. (18-CA-153845 and 18-CA-156999) Albia, IA, February 22, 2016. The Board approved the parties’ formal settlement agreement and ordered the Employer to cease threatening employees with discipline for attending Board hearings as subpoenaed witnesses, requiring them to use accrued or unpaid leave to do so, and discharging them for testifying as union witnesses at a Board hearing and in order to discourage union membership. The Board also required the Employer to pay backpay with interest to one employee and to post notices at its facility. Charges filed by International Association of Sheet Metal, Air, Rail, and Transportation Workers. Members Hirozawa, Miscimarra, and McFerran participated.

Riccelli Enterprises, Inc. (03-CA-130137) North Syracuse, NY, February 22, 2016. The Board remanded the case to the Regional Director for appropriate action.

Archer Daniels Midland Company (ADM) (25-CA-143250, 25-CA-145578 and 25-RC-142796) Decatur, IL, February 23, 2016. No exceptions having been filed to the January 12, 2016 decision of Administrative Law Judge Melissa M. Olivero finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and ordered the Respondent to take the action set forth in the judge’s recommended Order. The Board remanded the case to the Regional Director for further action. Charges filed by Bakery, Confectionery, Tobacco Workers & Grain Millers International Union, AFL-CIO, CLC Local 103-G.

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Appellate Court Decisions

NBC Universal, Inc., Board Case No. 02-CA-115732 (reported at 360 NLRB No. 69) (D.C. Cir. decided February 23, 2016)

In a published opinion, the court in this test-of-certification case remanded in full the Board’s order issued against this producer of television programming. In brief, the court concluded that it was unable to discern the rationale underlying a significant portion of the Board’s decision in the underlying representation case, and thus remanded the case for clarification.

For several decades, the Union—the National Association of Broadcast Employees & Technicians – Communication Workers of America, AFL-CIO, including Local 11 (New York), Local 41 (Chicago) and Local 53 (Los Angeles)—has represented various classifications of electrical and technical employees at NBC’s local stations. As consumers increasingly turned to other platforms for news—including 24/7 cable channels, the internet, cell phones and other “out of home” sources such as television screens installed in taxi cabs and at gas stations—NBC decided to restructure its model for creating and producing local news. As a result, NBC created a Content Center and, in doing so, created the job classification of content producer, which has functions that overlap with other job classifications represented by the Union.

The representation case began with a series of unit-clarification petitions filed by the Union’s locals in New York, Chicago, and Los Angeles. In October 2011, after briefing by the parties, an Acting Regional Director issued a decision on the petitions that found that all employees covered under the Master Agreement executed between NBC and the Union’s New York local constitute a single, nationwide bargaining unit and that, under the standard set forth in Premcor, Inc., 333 NLRB 1365 (2001), the content producers should be included in that covered unit because they perform the same basic functions that were previously performed by other unit employees. In September 2013, the Board (Chairman Pearce and Members Hirozawa and Schiffer) denied NBC’s request for review. Subsequently, NBC refused to bargain in order to seek review in the court of appeals.

The court (Circuit Judges Tatel and Millett, and Senior Circuit Judge Edwards), in a decision authored by Judge Edwards, remanded the case for the Board to further clarify the factual and legal bases for its decision.

The court’s decision is here (link is external).

Matson Terminals, Inc., Board Case No. 20-CA-132200 (reported at 361 NLRB No. 50) (D.C. Cir. decided February 26, 2016)

In an unpublished judgment in this test-of-certification case, the court enforced the Board’s order issued against this operator of a stevedoring facility in Honolulu, Hawaii, for refusing to bargain after 43 of its container vessel stevedoring superintendents and senior superintendents voted in an election to be represented by the Hawaii Teamsters & Allied Workers Union, Local 996.

Prior to the election, the Employer asserted that the superintendents were supervisors under Section 2(11) because they had authority to assign, responsibly direct, adjust grievances, discipline, and hire. After holding a hearing, the Acting Regional Director issued a decision and direction of election finding that the Employer had not met its burden of establishing supervisory status. First, applying the principles of Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006), the Acting Regional Director found that the superintendents do not assign or responsibly direct employees because assignments are prepared by managers and dispatchers, and any changes are strictly controlled by collective-bargaining agreement rules. Moreover, any direction by superintendents consisted only of ad hoc, discrete instructions, and the superintendents had no authority to take corrective action and were not held responsible for employee performance. Second, the Acting Regional Director found that the Employer failed to prove that the superintendents adjust grievances, discipline, or hire employees, because they perform only a reportorial role, while their superiors settle grievances, issue discipline, and make hiring decisions. Third, the Acting Regional Director found that the Employer failed to prove that the superintendents exercise independent judgment within the meaning of the Act in performing any purportedly supervisory task. As the Board recognized, implementation of new technology transformed the Employer’s operations in recent years, leaving most instructions given by superintendents too routine and too heavily circumscribed by company policies and plans, or the dictates of the collective-bargaining agreement, to require independent judgment.

On review, the court found “no basis in the record to disturb the Regional Director’s well-reasoned determination,” and enforced the Board’s bargaining order.

The court’s unpublished judgment is here.

Dixie Electric Membership Corp., Board Case No. 15-CA-019954 (reported at 361 NLRB No. 107) (5^th Cir. decided February 25, 2016)

In a published opinion, the court enforced the Board’s order issued against this operator of an electrical power cooperative in Baton Rouge, Louisiana, to remedy its unilateral removal of two job classifications from the electric operators unit covered by its collective-bargaining agreement with International Brotherhood of Electrical Workers, Local Union 767.

In August 2010, the Employer began making plans to adjust the duties of the two systems operator positions and to reclassify them as supervisors. In December, it removed both positions from the unit. After a hearing, the Administrative Law Judge found that the Employer violated Section 8(a)(5) and (1) by unilaterally eliminating the two systems operator positions from the represented unit, thus unlawfully altering the scope of the unit without the Union’s consent. Alternatively, the judge found that the Employer failed to bargain with the Union over its decision to transfer the operators’ work out of the unit, as well as the effects of the decision. In doing so, the judge rejected the Employer’s argument that it was privileged to remove the operators from the unit because they were supervisors. The judge reasoned that whether the operators were supervisors or not is irrelevant because the Employer had voluntarily chosen to include them in the unit. Lastly, the judge found that a unit clarification petition that the Employer filed more than 4 months into the term of the collective-bargaining agreement was untimely. The Board adopted those findings.

On review, the court agreed, holding that substantial evidence supported the Board’s unfair-labor-practice finding, as well as its finding that the unit clarification petition was untimely.

The court’s opinion is here (link is external).

Contemporary Cars, Inc. d/b/a Mercedes Benz of Orlando and Auto Nation, Inc., Board Case No. 12-CA-026126 (reported at 361 NLRB No. 143) (7^th Cir. decided February 26, 2016)

In a published opinion, the court enforced the Board’s order issued against this automotive dealership in Maitland, Florida, for its unfair labor practices that were, as the court put it, “aimed at coercing their employees’ choices in the run-up to a December 2008 union election and frustrating their employees’ protected concerted activities after the election.” The majority of the Employer’s 37 service technicians who voted in that election chose to be represented by the International Association of Machinists and Aerospace Workers.

The Board (Chairman Pearce and Members Johnson and Schiffer) found that the Employer violated Section 8(a)(1) by maintaining an overly broad work rule in its employee handbook prohibiting all solicitation on company property; creating the impression that its employees’ union activities were under surveillance, and interrogating employees regarding those activities; soliciting employee grievances, implying they would be fixed, and later announcing they had been fixed by the Employer’s demotion of two supervisors; informing employees it would not recognize the Union until there was a contract; and issuing one employee a documented coaching because of his protected concerted activities. The Board also found that the Employer violated Section 8(a)(3) and (1) by discharging a key organizer because of his protected union activities. Finally, the Board found that the Employer violated Section 8(a)(5) and (1) by unilaterally laying off four employees, suspending skill-level reviews, reducing the specified hours for performing prepaid-maintenance work, and by refusing to provide the Union with relevant requested information.

The court (Circuit Judges Manion, Rovner, and Hamilton) held that substantial evidence supported the Board’s unfair-labor-practice findings. Regarding the Board’s ordering of a nationwide posting to remedy the Employer’s overly broad no-solicitation rule contained in the employee handbook distributed nationwide, the court rejected the Employer’s challenge, finding the nationwide posting “well-tailored” to remedy the unfair labor practice. Concerning the Board’s findings that the Employer violated its duty to bargain by taking a number of unilateral actions—made after the election but before the Board’s eventual resolution of election challenges that resulted in certification of the Union—the court recognized the Board’s doctrine that, under such circumstances, “an employer acts at its peril in making changes in terms and conditions of employment.” Further, the court “decline[d] the [Employer’s] invitation to depart from this established law and to undermine effective enforcement of the Act while an employer’s challenge to an election is pending.” In rejecting that challenge, the court also held that no “compelling economic considerations” existed that would excuse the Employer’s duty to bargain.

Judge Manion wrote separately, joining the court’s decision in all aspects except with regard to the backpay ordered to remedy the four layoffs. Noting the length of time that had passed since the 2008 violations, he wrote “to highlight the need for back-pay mitigation.”

The court’s opinion is here (link is external).

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Administrative Law Judge Decisions

Walmart Stores, Inc. (16-CA-096240, et al., 21-CA-105401, 26-CA-093558, and 13-CA-107343; JD-03-16) Lancaster, TX, February 23, 2016. Errata to January 21, 2016 decision of Administrative Law Judge Geoffrey Carter. Errata Amended Decision.

Alaris Health at Rochelle Park (22-CA-124968, 22-CA-125889 and 22-CA-140560; JD-17-16) Rochelle Park, NJ. Administrative Law Judge Michael A. Rosas issued his decision on February 25, 2016. Charges filed by 1199, SEIU United Healthcare Workers East.

China’s Growing Labor Movement Threatens Beijing

Without independent unions, workers aren’t holding back any longer.

Mar 16, 2016

Rebecca McCray is a staff writer covering social justice. She is based in New York.

As the economic downturn in China continues and more jobs are outsourced overseas or eliminated entirely, workers are standing up in spite of the country’s ban on independent labor unions.

With little left to lose and few avenues for legal recourse, aggrieved Chinese workers are organizing protests in growing numbers. According to the Hong Kong–based advocacy group China Labour Bulletin, 2015 saw twice as many worker strikes as the previous year—and the repression of workers by employers and government officials has followed.

“Workers are more aware and have more knowledge about their legal rights,” said Aaron Halegua, a consultant and research scholar with New York University’s School of Law. “Social media has also made it easier for workers to communicate with each other and to connect with labor NGOs.”

With companies shutting down, wages getting cut, and layoffs on the rise, employees have little left to lose if they choose to speak up.

“That’s a huge driver in why you’re seeing this increase in protests and strikes,” said Halegua. “The official union does not function to help resolve these issues between workers and employers, and China has failed to create any other effective system for the two sides to communicate about and resolve workplace problems.”

The country’s only legal union, the All-China Federation of Trade Unions, is essentially a front group for the Communist Party, which controls the Chinese government. Despite the power that its 288 million members might wield, unlike labor unions in the U.S., the ACFTU doesn’t engage in collective bargaining on behalf of workers, and has no hand in organizing strikes or protests. The majority of ACFTU officials are appointed by the central government in Beijing, according to the International Trade Union Federation.

“China’s unions do not belong to the workers,” Meng Han, a hospital security guard in the southern province of Guangdong, told The Economist.

Guangdong is home to the country’s largest concentration of manufacturing plants, making it home to the highest number of protests, as tracked by the China Labor Bulletin’s Strike Map. As of March 11, the group recorded 124 strikes or protests in the province in the last three months alone.

Those who participate are increasingly the targets of repression. Strike leaders are often arrested or detained, and state-sanctioned violence via the police is commonplace. Three activists in Guangdong, Zeng Feiyang, Meng Han, and He Xiaobo, are still detained on criminal charges following their Dec. 3 arrests for “assembling crowds to disrupt social order,” and have been denied access to their lawyers.

With China embarking on a transition from a manufacturing-based economy to a consumer-driven one—just 35 years after investing wholeheartedly in transitioning from an agricultural economy to an industrial one—these growing pains may only be the beginning. Beijing’s challenge will be keeping the people happy enough with continued economic growth that Communist Party leaders are able to hold on to power.

Summary of NLRB Decisions for Week of February 16 – 19, 2016

Summarized Board Decisions

Vince & Sons Co. and Jo Mo Enterprises, Inc. d/b/a Vince & Sons Pasta, alter-ego and/or Golden State Successor (13-CA-123828; 363 NLRB No. 121) Bridgeview, IL, February 17, 2016.

The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the compliance specification. Accordingly, the Board ordered the Respondent to pay the three discriminatees backpay accrued to the date the Respondent makes them valid offers of reinstatement, plus interest accrued to the date of payment. Charge filed by United Food and Commercial Workers Local 1546. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Apogee Retail, NY, LLC d/b/a Unique Thrift Store (02-CA-133989, 02-CA-134059, and 02-CA-137166; 363 NLRB No. 122) Bronx, NY, February 17, 2016.

The Board dismissed the complaint, affirming the Administrative Law Judge’s dismissal of allegations that the Respondent violated: (1) Section 8(a)(1) by telling employees that wages were frozen pending the outcome of contract negotiations; and (2) Section 8(a)(5) by bargaining in bad faith by refusing to agree to the Union’s proposed union-security and dues check-off provisions. Charges filed by Local 338, RWDSU/UFCW. Administrative Law Judge Raymond P. Green issued his decision on July 30, 2015. Chairman Pearce and Members Miscimarra and McFerran participated.

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Voith Industrial Services, Inc. (09-CA-075496, et al.; 363 NLRB No. 116) Louisville, KY, February 17, 2016.

In this successorship case, the Board found that the Respondent Employer violated: (1) Section 8(a)(3) by implementing a plan to avoid hiring former employees of the predecessor, and discriminating against or refusing to hire those former employees to avoid a successorship obligation to recognize and bargain with the Teamsters; (2) Section 8(a)(5) by refusing, as a successor, to recognize and bargain with the Teamsters as the representative of its vehicle processing employees; (3) Section 8(a)(2) by rendering assistance and support to the Respondent Union (UAW), and recognizing and bargaining with the UAW as the collective-bargaining representative of the vehicle processing employees when the UAW did not represent an uncoerced majority of the unit employees, and at a time before the commencement of normal vehicle processing operations when the Employer did not employ a representative segment of its ultimate vehicle processing employee complement; and (4) Section 8(a)(1) by telling an applicant that, if he were hired, he would have to become a member of the UAW; informing an applicant that, to be hired, he would have to refrain from engaging in Section 7 activity such as striking; threatening to discharge employees if they did not wear a safety vest bearing the UAW logo; and denying the Teamsters access to employees while granting the UAW access to them.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa also found that the Respondent Employer violated Section 8(a)(5) by unilaterally setting initial terms and conditions of employment for unit employees without first giving notice to and bargaining with the Teamsters about those changes, and by unilaterally subcontracting some of the unit work. The majority also found that the Respondent Employer violated Section 8(a)(3) by engaging in hiring discrimination against Teamsters-affiliated applicants who were not previously employed by the predecessor, in addition to those previously employed by the predecessor, and found that reinstatement and backpay remedies should be awarded to any Teamsters Local 89-affiliated individuals who did not previously work for the predecessor but who filed individual applications with the Respondent Employer. In addition, the majority found that the remedies should also extend to all of the employees on the predecessor’s seniority list, not just those who filed applications with the Respondent Employer.

Member Miscimarra concurred in part and dissented in part. He agreed that the Respondent Employer should be considered a legal successor whose refusal to recognize and bargain with the Teamsters violated Section 8(a)(5). He also agreed that the Respondent Employer violated Section 8(a)(3) by its discriminatory refusal to hire 85 applicants who had previously been employed by the predecessor. He found, however, that the remedies should be limited to those 85 applicants and should not be extended to those applicants who had not worked for the predecessor or to employees of the predecessor who had not filed applications with the Respondent Employer. He also found, contrary to the majority, that the Respondent Employer did not violate Section 8(a)(5) by setting initial terms and conditions of employment for the vehicle processing employees or by unilaterally subcontracting out some of the unit work. Finally, he agreed that the Respondent Employer violated Section 8(a)(1) by threatening to send employees home if they refused to wear a safety vest bearing the UAW logo, but he added a personal footnote concerning his rationale for so finding.

The Board granted the General Counsel’s request that the Respondent Employer be ordered to make whole any employees whose hiring was delayed by its discriminatory hiring scheme for any losses resulting from the delay in hiring them. The Board denied the General Counsel’s and Charging Party’s request that the Respondent Employer be ordered to remit to the Teamsters dues that would have been deducted and remitted to it had the Respondent Employer recognized the Teamsters as the employees’ bargaining representative. The Board also made additional modifications to the judge’s remedy. A Board panel majority (Chairman Pearce and Member Hirozawa, Member Miscimarra dissenting) included a provision requiring the Respondent Employer to post the Respondent Union’s remedial notice, along with its own.

Charges filed by General Drivers, Warehousemen & Helpers, Local Union 89, affiliated with the International Brotherhood of Teamsters. Administrative Law Judge Bruce D. Rosenstein issued his decision on December 21, 2012. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Voith Industrial Services, Inc. (09-CA-097589; 363 NLRB No. 109) Louisville, KY, February 17, 2016.

Relying on its decision in Voith Industrial Services (Voith I), 363 NLRB No. 116 (2015), the Board affirmed the Administrative Law Judge’s finding that the Respondent is a legal successor to Cooper Auto Handling. The Board therefore concluded that the Respondent was not permitted to relitigate that issue in this case, and, as the legal successor, the Respondent was obligated to recognize and bargain with Teamsters Local 89. The Board also concluded that the record in this case and in Voith I contained abundant evidence of the Respondent’s animus toward the Teamsters. For the reasons stated by the judge, the Board agreed that the Respondent violated Section 8(a)(3) when it disciplined and discharged two, Teamsters-affiliated employees, and that their discipline and discharge also violated Section 8(a)(4). Regarding the Section 8(a)(4) violations, the Board noted that the discharged employees served as witnesses for the General Counsel at the hearing in Voith I, which occurred during the same time period as the events at issue in this case. The Board also modified two of the judge’s conclusions of law in accordance with its finding that the Respondent violated Section 8(a)(5) by unilaterally implementing changes to its attendance policy and by unilaterally adopting a new requirement that employees load rail cars during non-daylight hours. The Board clarified that these are Katz-type violations, not general refusals to recognize and bargain on request with the Union. In so doing, however, the Board also noted that, in Voith I, the Respondent was found to have refused to recognize and bargain with the Union generally, and reminded the Respondent that it is subject to the affirmative bargaining order issued in that decision.

In addition to providing the relief ordered for the discharged employees, the Board amended the remedy to provide make-whole relief for all unit employees who may have suffered losses as a result of the Respondent’s unlawful changes to the attendance and rail car loading policies, to be determined in compliance. To the extent that the Respondent maintains that adversely affected unit employees would have been disciplined or discharged even in the absence of its unlawful unilateral changes, the Board found that the Respondent is entitled to litigate that issue in the compliance proceeding. The Board also ordered a notice-reading remedy.

Charge filed by General Drivers, Warehouseman & Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters. Administrative Law Judge Paul Bogas issued his decision on January 23, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.

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Leukemia and Lymphoma Society (16-CA-152958; 363 NLRB No. 124) Fort Worth, TX, February 17, 2016.

A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Respondent’s motion for summary judgment on the ground that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. The majority found that the pleadings and the Respondent’s motion demonstrate that a genuine issue exists concerning the alleged discriminatee’s supervisory status, and that Section 102.24(b) of the Board’s Rules does not require the General Counsel to support his opposition to the motion with affidavits or other documentary evidence contrary to the evidence submitted by the Respondent with its motion.

Member Miscimarra, dissenting, would have issued a Notice to Show Cause why the Respondent’s motion should not be granted. In his view, the Respondent produced sworn declarations and other evidence supporting its position that the alleged discriminatee was a supervisor; the General Counsel’s conclusory statements in opposition failed to identify material facts genuinely in dispute, and thus failed to show why a hearing was necessary. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Leukemia and Lymphoma Society (16-CA-152958; 363 NLRB No. 123) Fort Worth, TX, February 17, 2016.

The Board denied the Respondent’s motion to dismiss the complaint allegations that the Respondent’s handbook rules are unlawful. The Board found no merit in the Respondent’s contention that the allegations are barred by Section 10(b). Contrary to the Respondent’s argument that the General Counsel improperly initiated the amended charge that included these allegations, the Board found that the Region acted in compliance with the Board’s Rules and precedent by identifying the handbook rules that potentially violated Section 8(a)(1) and by providing the Charging Party with an opportunity to amend the charge to include those allegations.

Member Miscimarra concurred in the denial of the Respondent’s motion to dismiss. However, he noted that his colleagues appeared not only to deny the motion to dismiss, but also to reject the Respondent’s arguments on the merits. In his view, what occurred during the Region’s investigation was a matter that should be addressed by an administrative law judge based on an evidentiary record developed at a hearing. In the absence of a factual record, Member Miscimarra would not reach the issue of whether the Board lacks jurisdiction over the handbook allegations. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.

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FedEx Freight, Inc. (32-CA-164936; 363 NLRB No. 126) Stockton, CA, February 18, 2016.

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Network Capital Funding Corporation (21-CA-107219; 363 NLRB No. 106) Irvine, CA, February 18, 2016.

Applying D. R. Horton, Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), as reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting of Chairman Pearce and Member McFerran affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining and enforcing an arbitration agreement that required employees, as a condition of employment, to waive their right to pursue class or collective actions in all forums, whether arbitral or judicial. Although the agreement was silent on whether employees could arbitrate claims on a class or collective basis, the majority found that the Respondent interpreted and applied the agreement to restrict all employment disputes to individual arbitration, and that employees would reasonably read the agreement to that effect. The majority further found that signing the Respondent’s agreement was a mandatory condition of employment. The majority rejected the Respondent’s arguments that: (1) the complaint was time-barred under Section 10(b); and (2) an exemption in the agreement allowing employees to file charges with administrative agencies, including the Board, legitimized the agreement.

For the reasons stated in his partial dissent in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s findings that: (1) the agreement violates Section 8(a)(1) because it waives the right to participate in class or collective actions regarding non-NLRB employment claims; and (2) by filing a motion to compel arbitration, the Respondent unlawfully enforced its agreement. Member Miscimarra did not reach the issues of whether the agreement was a condition of employment, or whether the inclusion of an administrative agency exemption legitimized the agreement.

Charge filed by an individual. Administrative Law Judge William Nelson Cates issued his decision on March 5, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.

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Battelle Memorial Institute (19-RC-135888; 363 NLRB No. 119) Richland, WA, February 18, 2016.

A Board panel majority consisting of Chairman Pearce and Member McFerran denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order dismissing its petition on the ground that it raised no substantial issues warranting review.

The Petitioner sought to represent a unit of carpenter and millwright employees who had historically been represented by the Intervenor in a multi-craft unit consisting of 13 local trade unions. The Petitioner had been affiliated with the Intervenor since its inception, and had functioned as the local union representing the carpenters and millwrights. However, after a 15-year dispute between the Petitioner’s and the Intervenor’s respective parent organizations, the Intervenor expelled the Petitioner from the Council. Following this disaffiliation, the Intervenor directed that the approximately 21 carpenters and millwrights in the Employer’s maintenance department be represented by two other of its local unions. The Petitioner sought to sever the carpenters and millwrights from the existing maintenance unit and to represent them in a separate unit. The Regional Director evaluated the petition under the Board’s craft severance standard as articulated in Mallinckrodt Chemical Works, 162 NLRB 387, 393 (1966), and dismissed the petition.

The Board panel majority found no compelling reason to reconsider well-established standards created under Mallinckrodt. The majority further found that the Petitioner had not established that the Regional Director’s decision raised a substantial question of law or policy by departing from reported Board precedent, or that it contained clear, substantial factual errors prejudicial to the Petitioner.

Member Miscimarra, dissenting, would have granted review. He found that: (1) the Regional Director’s dismissal is contrary to Electric Boat Corporation, 1-RC-124746 (2015) (unpublished decision) where the Board, under similar circumstances, affirmed a regional director’s decision directing an election in a separate unit of carpenters and joiners; (2) the Request for Review raises substantial questions as to whether the Regional Director’s complex factual findings are clearly erroneous; and (3) this case presents a substantial public policy question.

Petitioner – Pacific Northwest Regional Council of Carpenters Local 2403. Intervenor – Hanford Atomic Metal Trades Council. Chairman Pearce and Members Miscimarra and McFerran participated.

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Fuji Food Products, Inc. (21-CA-095997; 363 NLRB No. 118) Santa Fe Springs, CA, February 19, 2016.

Member Miscimarra concurred in his colleagues’ finding that the Agreement violated Section 8(a)(1) because employees would reasonably read it to restrict or preclude filing charges with the Board. However, dissenting consistent with his partial dissenting opinion in Murphy Oil USA, Inc., Member Miscimarra would find that the Respondent’s maintenance and enforcement of the Agreement are lawful because, among other reasons: (1) the NLRA creates no substantive right for employees to insist on class-type treatment of non-NLRA claims; (2) a class-waiver agreement pertaining to non-NLRA claims does not infringe on any NLRA rights or obligations; and (3) enforcement of non-NLRA class-action waivers is warranted by the Federal Arbitration Act.

Charge filed by an individual. Administrative Law Judge Jeffrey D. Wedekind issued his decision on July 15, 2014. Chairman Pearce and Members Miscimarra and McFerran participated.

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Durham School Services, L.P. (32-CA-165556; 363 NLRB No. 129) Hayward and Livermore, CA, February 19, 2016.

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. The Board noted that, in denying the Employer’s Request for Review in the underlying representation proceeding, a majority of the Board had agreed with the Regional Director that the Employer had untimely raised its argument challenging the validity of the Board’s revised representation case procedures. In a personal footnote, Member Miscimarra noted that he had expressed his disagreement with these procedures in his dissent to the Final Rule, and that he would have granted review in the underlying representation proceeding on the basis that it raised substantial questions regarding the effect and application of the Final Rule. While he remains of that view, Member Miscimarra stated that he agreed that the Respondent did not present any new matters that are properly litigable in this unfair labor practice case, and, therefore, he agreed with the decision to grant the motion for summary judgment. Accordingly, the Board found that the Respondent violated Section 8(a)(5) by refusing to recognize and bargain with the Union. Charge filed by Teamsters Local 853. Members Miscimarra, Hirozawa and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Blommer Chocolate Company of California, LLC (32-RC-131048) Union City, CA, February 17, 2016. A Board panel majority consisting of Chairman Pearce and Member McFerran directed a second election in the petitioned-for unit. The majority adopted the hearing officer’s finding that the Employer engaged in objectionable conduct that could reasonably have affected the results of the election by maintaining three overbroad work rules: (1) a confidentiality rule that prohibits employees from disclosing employee lists; (2) a computer use rule that allows employees to use their work computers for personal uses, but prohibits them from expressing personal opinions; and (3) a prohibition on employee use of the company name and logo. Dissenting in part, Member Miscimarra agreed with the majority that the confidentiality rule related to employee lists was overbroad, but he would not find that the work rules are otherwise objectionable. Moreover, even assuming that the rules are objectionable, he would not find that the work rules could reasonably have affected the election results because: (1) the mere maintenance of overbroad work rules does not necessarily require that an election be set aside; and (2) the election margin was substantial and it is improbable that the lopsided election results were attributable to the work rules. Petitioner – Bakers Union Local 125, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union. Chairman Pearce and Members Miscimarra and McFerran participated.

Linwood Care Center (04-RM-145463) Linwood, NJ, February 17, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s dismissal of its petition on the ground that it raised no substantial issues warranting review. In dismissing the petition, the Regional Director found that the Employer failed to establish objective considerations in support of its petition based on his administrative investigation and parallel unfair labor practice charges filed by the Union. Thereafter, the Regional Director issued a consolidated complaint on those charges. Because the Regional Director found merit to the charges and because the alleged conduct, if proven, directly affects the petition, the Board found that the Regional Director properly dismissed the petition. Member Miscimarra agreed that the Regional Director did not abuse his discretion by dismissing the petition, and noted that the petition is subject to reinstatement, if appropriate, after final disposition of the unfair labor practice charges. Member Miscimarra also noted that he favors a reconsideration of the Board’s blocking charge doctrine for the reasons expressed in the dissenting views that were contained in the Board’s representation election rule, but he acknowledged that the Board has declined to change materially its blocking charge doctrine. Petitioner – Linwood Care Center. Union – 1199 SEIU United Healthcare Workers East. Chairman Pearce and Members Miscimarra and Hirozawa participated.

JAM Productions, LTD, Event Productions, Inc., Standing Room Only, Inc., and Victoria Operating Co. (13-RC-160240) Chicago, IL, February 19, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s Order denying the Employer’s motion to dismiss the petition on the ground that it raised no substantial issues warranting review. The Board noted that the Employer’s allegation that a supervisor’s prounion conduct tainted the Petitioner’s showing of interest has been raised in a related unfair labor practice case, in which a hearing will soon commence. Petitioner – Theatrical Stage Employees Union, Local No. 2, IATSE. Members Miscimarra, Hirozawa, and McFerran participated.

C Cases

Service Employees International Union, Local 87 (Exemplar Enterprises, Inc.) (20-CB-151336) San Francisco, CA, February 16, 2016. No exceptions having been filed to the January 5, 2016 decision of Administrative Law Judge Mary Miller Cracraft finding that the Respondent engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and ordered the Respondent to take the action set forth in the recommended Order. Charge filed by Exemplar Enterprises, Inc.

Allways East Transportation, Inc. (03-CA-128669 and 03-CA-133846) Wappingers Falls, NY, February 17, 2016. The Board denied Respondent’s motion to strike General Counsel’s exceptions and brief and motion for tolling of time to file an answering brief to exceptions and brief supporting exceptions.

Pharmedium Services, LLC (15-CA-143030) Memphis, TN, February 18, 2016. The Board denied 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, and that the Employer failed to establish any other legal basis for revoking the subpoena. The Board indicated that: (1) to the extent that the Employer has provided some of the requested material, it is not required to produce that information again; (2) to the extent that the subpoena encompasses some documents that the Employer believes in good faith are subject either to the attorney-client privilege or to the attorney work product doctrine, the Board’s Order is without prejudice to the Employer’s prompt submission of a privilege log; (3) the Board’s Order is also without prejudice to the Employer’s ability to seek a confidentiality agreement regarding documents that involve privacy concerns recognized under Board law; and (4) in considering the petition to revoke, the Board evaluated the subpoena as clarified by the Region in its opposition brief. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.

Pharmedium Services, LLC (15-CA-144181) Memphis, TN, February 18, 2016. The Board denied 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, and that the Employer failed to establish any other legal basis for revoking the subpoena. The Board indicated that: (1) to the extent that the Employer has provided some of the requested material, it is not required to produce that information again; (2) to the extent that the subpoena encompasses some documents that the Employer believes in good faith are subject either to the attorney-client privilege or to the attorney work product doctrine, the Board’s Order is without prejudice to the Employer’s prompt submission of a privilege log; (3) the Board’s Order is also without prejudice to the Employer’s ability to seek a confidentiality agreement regarding documents that involve privacy concerns recognized under Board law; and (4) in considering the petition to revoke, the Board evaluated the subpoena as clarified by the Region in its opposition brief. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.

Pharmedium Services, LLC (15-CA-144416) Memphis, TN, February 18, 2016. The Board denied 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, and that the Employer failed to establish any other legal basis for revoking the subpoena. The Board indicated that: (1) to the extent that the Employer has provided some of the requested material, it is not required to produce that information again; (2) to the extent that the subpoena encompasses some documents that the Employer believes in good faith are subject either to the attorney-client privilege or to the attorney work product doctrine, the Board’s Order is without prejudice to the Employer’s prompt submission of a privilege log; (3) the Board’s Order is also without prejudice to the Employer’s ability to seek a confidentiality agreement regarding documents that involve privacy concerns recognized under Board law; and (4) in considering the petition to revoke, the Board evaluated the subpoena as clarified by the Region in its opposition brief. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.

King Soopers, Inc. (27-CA-129598) Denver, CO, February 19, 2016. The Board issued a Notice and Invitation to File Briefs regarding whether the Board should continue to treat a discriminatee’s reasonable search-for-work and interim employment expenses as an offset that reduces the amount of interim earnings subtracted from gross backpay. Parties and interested amici may file briefs by March 18, 2016, and parties may file responsive briefs by April 1, 2016.

United States Postal Service (07-CA-142926) Swartz Creek, MI, February 19, 2016. The Board granted the General Counsel’s request for special permission to appeal the Administrative Law Judge’s order adopting the Respondent’s settlement offer to which all other parties objected. In addition, the Board invited the parties and interested amici to address the following questions:

May the Board, consistent with Section 3(d) of the National Labor Relations Act, continue to permit administrative law judges to issue a “consent order,” subject to review by the Board, incorporating the terms proposed by a respondent to settle an unfair labor practice case, to which no other party has agreed, over the objection of the General Counsel?
If Section 3(d) does allow the Board’s current practice, should the Board alter or discontinue the practice as a matter of policy?

Charge filed by Branch 256, National Association of Letter Carriers (NALC), AFL-CIO. Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.

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Appellate Court Decisions

ConAgra Foods, Inc., Board Case No. 09-CA-089532 (reported at 361 NLRB No. 113) (8^th Cir. decided February 19, 2016)

In a published opinion, the court set aside in part and enforced in part the Board’s order issued against this Troy, Ohio food-processing facility, and remanded for further proceedings. In doing so, the court rejected the proposition that, for an employee statement to constitute solicitation of union support, there must be a request to sign an authorization card accompanied by the presentation of a card.

In 2011, the United Food and Commercial Workers International Union, Local 75, began a campaign to organize employees at the Troy facility. In September 2012, a union supporter met with two fellow employees in the restroom and asked whether they would sign union authorization cards. Both readily agreed to sign cards. In a follow-up conversation, also in the restroom, one of employees provided the number of the locker that they shared so that the union supporter could leave authorization cards there for them to sign. After the union supporter placed cards in the locker, she walked to the production floor where the two employees were working together and said as she passed by, “I put those cards in your locker.” On that credited evidence, the Board (Chairman Pearce and Member Schiffer, Member Miscimarra dissenting) found that the union supporter had not engaged in solicitation, and therefore the Employer’s subsequent verbal warning issued to her for violating its lawful no-solicitation policy violated Section 8(a)(3) and (1). The Board concluded that, during “this brief interaction,” there was no request to sign cards “and there were no cards presented for signature.” The Board explained that it had consistently held that “drawing the ‘solicitation’ line at the presentation of a card for signature makes sense because it is that act which ‘prompts an immediate response from the individual or individuals being solicited and therefore presents a greater potential for interference with employer productivity if the employees are supposed to be working,’” quoting Wal-Mart Stores, 340 NLRB 637, 639 (2003), enf. denied in relevant part, 400 F.3d 1093 (8th Cir. 2005).

The Board also found that the Employer violated Section 8(a)(1) by stating an overly broad rule in a letter posted to employees that they would reasonably construe as prohibiting all discussion about unions during working time. Lastly, the Board granted the General Counsel’s motion for default judgment of allegations contained in an earlier 2011 complaint that were the subject of a settlement agreement, finding that the unlawful warning issued to the union supporter for solicitation constituted a breach of that agreement’s noncompliance provisions.

On review, the court (Chief Judge Riley, Circuit Judges Beam and Kelly) disagreed with the Board’s reasoning. First, citing cases, the court held that the Board “has not ‘consistently held’ that a presentation of an authorization card for signature at the time of solicitation is required.” Second, the court held that “a categorical rule such as this would be contrary to the Act’s policy of balancing the rights of employers and employees,” by “tilt[ing] that balance toward employees by providing a road map to organizers on how to garner support for union membership on working time and in work areas,” and by increasing the likelihood of work disruption. Third, the court held that the requirement that an authorization card be presented for signature at the time of the solicitation is “patently unreasonable,” because an Employer would be unable to apply a valid no-solicitation rule to stop an employee, for example, “from requesting support for union organization from another employee in the most explicit terms, putting a pen in his fellow employee’s hand, so long as he directs the solicited party to sign a card only at the end of the shift.” The court also rejected the Board’s reliance on the brevity of the remark, stating its view that the “right to organization would wax to include de facto solicitation that the employer could not show to be sufficiently disruptive[.]”

The court (with Judge Kelly dissenting on this single issue) then held that substantial evidence did not support the Board’s finding. Rather, it stated that “all indications in the record point to [employee]’s statement as part of a prolonged effort of soliciting union support,” which it held would constitute solicitation. As the court majority put it, “where an employee makes a statement that is intended and understood as an effort to obtain a signed card, and that effort is part of a concerted series of interactions calculated to acquire support for union organization, that employee has engaged in solicitation subject to censure under an employer’s validly enacted and applied no-solicitation policy.” Judge Kelly would have concluded to the contrary because, by the time the remark was made on the production floor, the employees had already agreed to sign cards.

Based on its reversal of that solicitation finding, which was the basis of the default judgment, the court vacated the default judgment. However, it affirmed the Board’s finding that the Employer violated the Act by maintaining an overly broad rule in the posted letter to employees, and enforced that portion of the Board’s order. Accordingly, the court remanded the case to the Board to determine whether that unlawful rule finding could serve as a basis for granting the motion for default judgment.

The court’s decision is here (link is external).

***

Administrative Law Judge Decisions

Johnson Controls, Inc. (10-CA-151843; JD-14-16) Florence, SC. Administrative Law Judge Keltner W. Locke issued his decision on February 16, 2016. Charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, and its affiliated Local Union No. 3066.

EYM King of Missouri, LLC, d/b/a Burger King (14-CA-148915, 14-CA-150321, and 14-CA-150794; JD-10-16) Kansas City, MO, February 17, 2016. Errata to February 9, 2016 decision of Administrative Law Judge Christine E. Dibble. Errata Amended Decision.

Alaris Health at Boulevard East (22-CA-125076, et al.; JD-15-16) Guttenberg, NJ. Administrative Law Judge Michael A. Rosas issued his decision on February 18, 2016. Charges filed by 1199, SEIU United Healthcare Workers East.

Prime Healthcare Services-Encino Hospital, LLC d/b/a Encino Hospital Medical Center ( 31-CA-140827, 31-CA-140844, and 31-CA-141016; JD(SF)-07-16) Los Angeles, CA. Administrative Law Judge Lisa D. Thompson issued her decision on February 18, 2016. Charges filed by SEIU United Healthcare Workers – West.

Alaris Health at Castle Hill (22-CA-125034; JD-09-16) Union City, NJ, February 19, 2016. Errata to February 3, 2016 decision of Administrative Law Judge Michael A. Rosas. Errata Amended Decision.

Alaris Health at Harborview (22-CA-125023, 22-CA-125882, and 22-CA-140591; JD-12-16) Jersey City, NJ, February 19, 2016. Errata to the February 11, 2016 decision of Administrative Law Judge Michael A. Rosas. Errata Amended Decision.

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