Today’s Labor Updates:
Time Flies When You’re Having Fun: NLRB Further Reduces Time Employers Have to Educate Employees During Union Campaigns
Summary of NLRB Decisions for Week of January 19 – 22, 2016
Time Flies When You’re Having Fun: NLRB Further Reduces Time Employers Have to Educate Employees During Union Campaigns
Ogletree Deakins – Seth D. Kaufman
USA February 10 2016
On January 29, 2016, the National Labor Relations Board (NLRB) issued a decision in Guardsmark, LLC, 363 NLRB No. 103 (Jan. 29, 2016) moving the deadline for employers to hold captive audience meetings in mail ballot elections to 24 hours before the regional office mails the ballots. In so doing, the NLRB overruled a near-60 year-old precedent set in Oregon Washington Telephone Co., 123 NLRB 339 (March 24, 1959), which held that employers could hold captive audience meetings until the time the regional office mailed the ballots. This decision, coming on the heels of the NLRB’s recent “ambush” election rules, is another brick in the wall of the NLRB’s effort to limit the time employers have to speak to and educate their employees during a union organizing campaign.
Captive Audience Meetings and Prior NLRB Precedent
A “captive audience meeting” refers to a meeting held in the course of a union organizing campaign during working hours that employees are required to attend. These meetings can be an effective tool for employers to educate employees during a union organizing campaign. However, as established in Peerless Plywood Co., 107 NLRB 427 (December 17, 1953), captive audience meetings cannot be held within 24 hours of a union election. The NLRB’s reasoning for this rule is that “last-minute speeches by either employers or unions delivered to massed assemblies of employees on company time have an unwholesome and unsettling effect and tend to interfere with that sober and thoughtful choice which a free election is designed to reflect.”
In Oregon Washington Telephone, the NLRB applied its Peerless Plywood reasoning to mail ballot elections and created the bright-line rule that captive audience meetings are forbidden from “the time and date on which the ‘mail in’ ballots are scheduled to be dispatched by the Regional Office until the terminal time and date prescribed for their return.” In addition, the NLRB required regional offices to give the parties 24 hours’ written notice of the mailing.
The NLRB’s Decision
The NLRB’s Guardsmark decision simply replaced one bright-line rule with a different and—unsurprisingly—more union-friendly one. The NLRB focused on the fact that the Oregon Washington Telephone rule has, on occasion, been incorrectly applied by the NLRB, stating that the NLRB’s overall goal in its Guardsmark decision was to “achieve the clarity, uniformity, and simplicity” that the Oregon Washington Telephone rule failed to provide. The NLRB first cited an 18-year-old decision in which the majority and dissent, as asides, stated that captive audience meetings are forbidden starting 24 hours before the ballots are mailed. The NLRB also invoked the section of the NLRB’s Casehandling Manual that cites Oregon Washington Telephone to address captive audience meetings during mail ballot elections, and referred to this section as ambiguous as to when captive audience meetings are forbidden.
The NLRB then devoted a mere paragraph to explain why changing the Oregon Washington Telephone rule was a better approach than reaffirming the rule. The NLRB simply stated in conclusory fashion, citing to off-topic regulations regarding posting notices of elections and barely taking into account the policy considerations of Peerless Plywood, that the NLRB “believe[s] that it is appropriate to provide for a full 24-hour period before the ballot mailing that is free from speeches that tend to interfere with the ‘sober and thoughtful choice which a free election is designed to reflect.’”
In dissent, Member Miscimarra thoroughly rebuked the NLRB’s flimsy reasoning. Member Miscimarra first pointed out that the Oregon Washington Telephone rule already provided the “clarity” and “simplicity” that the majority sought. He also questioned why tangential language from an 18-year-old Board decision and language from the NLRB’s Casehandling Manual specifically citing to Oregon Washington Telephone could provide sufficient ambiguity to warrant overturning nearly 60 years of precedent. Member Miscimarra next examined the policy considerations underlyingPeerless Plywood and noted that the NLRB’s new rule would cut off the time for captive audience meetings much earlier than Peerless Plywood intended and provide a double standard directly in opposition to the NLRB’s stated goal in Guardsmark of “uniformity” in elections. Ballots mailed will not reach employees until, at the earliest, the day after they are mailed; thus, the NLRB’s new rule for mail ballot elections cuts off captive audience meetings at least 48 hours before employees can cast their votes, double the time required for manual elections. Ultimately, according to Member Miscimarra, the NLRB’s new rule upsets the delicate balance struck over 60 years ago in Peerless Plywood between an employer’s right to free speech and employees’ freedom of electoral choice.
Key Employer Takeaways
The most basic employer takeaway going forward is to follow the NLRB’s new rule in any mail ballot election. This decision should also give pause to any employer considering holding a mail ballot election. Although in many instances the parties stipulate to when a regional office will mail the ballots, the fact that a regional office need only give 24 hours’ notice of the mailing could result in an employer being precluded from giving a “25th hour” speech if the regional office were to give the minimum 24 hours’ notice.
More significant on a policy level is that the NLRB’s efforts to limit employers from speaking to and educating their employees during a union organizing campaign has not stopped with the new “ambush” election rule. Nearly 60 years of precedent and a lack of reasoning did not deter the NLRB in Guardsmark from further limiting employer communications. Moreover, the NLRB clearly demonstrated its hostility to captive audience meetings, and with some advocating for the NLRB to require equal time for unions to hold captive audience meetings or to otherwise regulate captive audience meetings, more significant changes in this area could soon come down the pike.
Summary of NLRB Decisions for Week of January 19 – 22, 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
Century Fast Foods, Inc. (31-CA-116102; 363 NLRB No. 97) Chatsworth, CA, January 20, 2016.
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) and D.R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), a Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) of the Act by maintaining an Agreement to Arbitrate (Agreement) that requires employees, as a condition of employment, to use “confidential,” binding arbitration to resolve employment claims. Applying Lutheran Heritage Village–Livonia, 343 NLRB 646, 647 (2004), the Board majority found that employees would reasonably read the Agreement to restrict their Section 7 rights to pursue either class or collective employment claims in all forums including arbitral and judicial. Additionally, the Board majority found that the Respondent unlawfully applied the Agreement by asserting it in a motion to compel individual arbitration. The Board majority rejected the Respondent’s arguments that the Agreement was lawful because it was offered on a voluntary basis and because it included an administrative exemption. Further, the Board majority noted its disagreement with the dissent’s view that Sections 7 and 9(a) of the Act require the Board to permit individual employees prospectively to waive their rights to engage in concerted legal activity. The Board majority also rejected the dissent’s argument that the Respondent’s motion to compel arbitration was protected by the First Amendment’s Petition Clause. Citing U-Haul of California, 347 NLRB 375, 377-378 (2006), enfd. 255 Fed. Appx. 527 (D.C. Cir. 2007), the Board majority next found that the Agreement violated Section 8(a)(1) because employees would reasonably believe it restricts their right to file unfair labor practice charges with the Board. Finally, the Board majority found that the Agreement violated Section 8(a)(1) because the Respondent failed to demonstrate a legitimate and substantial business justification for the Agreement’s confidentiality provision that outweighed the employees’ Section 7 rights.
Member Miscimarra wrote a separate opinion concurring in part and dissenting in part. First, for the reasons explained in his dissenting opinion in Murphy Oil, Member Miscimarra dissented from the finding that the Agreement was unlawful because it required employees to waive their rights to pursue either class or collective actions regarding non-NLRA claims. Because he would find the Agreement lawful, Member Miscimarra also dissented from the Board majority’s finding that the Respondent’s enforcement of the agreement violated Section 8(a)(1). Because there was no illegal objective for the enforcement litigation, Member Miscimarra noted that the Respondent’s motion to compel arbitration was arguably protected by the First Amendment’s Petition Clause. However, noting that the record did not reveal any justification for the confidentiality requirement, Member Miscimarra concurred with the Board majority’s finding that the Agreement’s blanket requirement that employees use “confidential,” binding arbitration unlawfully interfered with employees’ Section 7 rights. Primarily because he found that the Agreement interposed mandatory prerequisites to the filing of Board charges, Member Miscimarra concurred with the Board majority’s finding that the Agreement unlawfully interfered with employees’ ability to file charges with the Board. Charges filed by an individual. Administrative Law Judge Ariel L. Sotolongo issued his decision on April 24, 2015. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Veolia Transportation Services, Inc. (28-RC-071479; 363 NLRB No. 98) Las Vegas, NV, January 20, 2016.
In this Decision on Review and Order, a Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the Regional Director’s finding that the Employer’s road supervisors possess the authority to discipline and to reward and, therefore, are supervisors within the meaning of Section 2(11) of the Act. With respect to discipline, the Board majority found that the Employer had not established the coaching and counseling that the road supervisors provide to bus drivers constitutes discipline. Similarly, the Board majority found that observation notices filled out by the road supervisors did not constitute discipline. Further, given evidence suggesting that the Employer repeated and skipped disciplinary steps, the Board majority found that the Employer had not established that it maintains a progressive disciplinary system. Taking these findings together, the Board majority disagreed with the Regional Director’s findings that observation notices almost always result in discipline and are an “integral first step” in the Employer’s disciplinary policy. Given testimony indicating that observation notices are independently investigated and are merely reportorial, the Board majority also found that observation notices do not constitute effective recommendation of discipline. In addition, the Board majority rejected arguments that the road supervisors’ authority to pull over operators and to investigate accidents establishes their disciplinary authority. With respect to reward, the Board majority found that there was no evidence supporting the Regional Director’s finding of a “direct link” between “pats on the back” submitted by road supervisors and the $100 “On-The-Spot” award because there was no evidence regarding either who decides to grant an “On-The-Spot” award or how that decision is made. In dissent, Member Miscimarra would have found that the road supervisors possess either the actual authority to impose discipline or, alternatively, to recommend its imposition. Petitioner—Amalgamated Transit Union, Local 1637, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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UNF, West, Inc. (21-CA-129446; 363 NLRB No. 96) Moreno Valley, CA, January 20, 2016.
A unanimous Board panel consisting of Chairman Pearce and Members Hirozawa and McFerran adopted the Administrative Law Judge’s rulings, findings and conclusions that the Respondent violated Section 8(a)(1) by unlawfully interrogating two employees, making threats that union representation would be futile, and by threatening a group of employees with a reduction in wages if they voted for the Union.
The Board found unpersuasive the Respondent’s arguments that it was prejudiced because its witness was not permitted to testify in Spanish, his native language, while the Union’s witnesses were permitted to testify in Spanish through an interpreter. The Board noted that the Judge, after due consideration, instructed that the Respondent’s witness could use an interpreter if he appeared to have any difficulty testifying in English. The Board observed that there was no evidence that the Respondent’s witness either demonstrated such difficulty or made a subsequent request for an interpreter. Further, the Board rejected the Respondent’s arguments that the Judge should have allowed 4 employee witnesses to testify that they were never threatened by the Respondent’s agents because their potential testimony was irrelevant and none of these witnesses had personal knowledge of the conversations that were found to have violated the Act. Charges filed by Teamsters, Chauffeurs, Warehousemen, Industrial and Allied Workers of America, Local 166, International Brotherhood of Teamsters. Administrative Law Judge John J. McCarrick issued his decision on August 3, 2015.
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Seven One Seven Parking Services of Michigan, Inc. d/b/a Hospital Parking Management (07-CA–133170; 363 NLRB No. 101) Tampa, FL, January 21, 2016.
Pursuant to the noncompliance provisions of an informal settlement agreement, the Board granted the General Counsel’s Motion for Default Judgment. The Board found that the Respondent failed to comply with the terms of the settlement agreement, deemed all of the allegations in the complaint to be true, and ordered appropriate remedies. Among other remedies, the Board ordered the Respondent to bargain on request with the Union as the exclusive collective-bargaining representative of the unit employees; to meet and bargain with the Union on agreed specified dates at least twice a week and for at least 4 hours per meeting until either a collective-bargaining agreement or a good-faith impasse is reached; to provide a representative at the meetings who has the authority to make adjustments and bind the Respondent; and, in a timely manner, to furnish the Union with the information it requested. Charge filed by International Brotherhood of Teamsters (IBT). Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Multiband EC, Inc. (25-CA-108828; 363 NLRB No. 100) New Hope, MN, January 21, 2016.
Applying its decisions in D. R. Horton, Inc., 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013) and 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 Chairman Pearce and Member Hirozawa found, based on a stipulated record, that the Respondent violated Section 8(a)(1) by maintaining an Arbitration Agreement (Agreement) that required employees, as a condition of employment, to waive their right either to commence or to be a party to any class or collective claims. The Respondent’s Agreement also violated the Act by prohibiting employees from jointly bringing claims with other persons in all forums including arbitral and judicial. Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the Board majority rejected the Respondent’s argument that its Agreement was lawful because it contained an exemption permitting employees to file charges with administrative agencies including the Board. The Board majority disagreed with the dissent’s view that Sections 7 and 9(a) of the Act require the Board to permit individual employees prospectively to waive their rights to engage in concerted legal activity. For the reasons explained in his dissenting opinion in Murphy Oil, Member Miscimarra asserted that the Act neither vests authority in the Board to dictate any particular procedures pertaining to the litigation of non-NLRA claims, nor does the Act render unlawful agreements in which employees waive class-type treatment of non-NLRA claims. Charge filed by Chauffeurs, Teamsters, Warehousemen and Helpers, Local 135. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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AT&T Mobility Services, LLC (22-CA-127746 and 22-CA-127781; 363 NLRB No. 99) Paramus, NJ, January 21, 2016.
Citing 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), and D. R. Horton, Inc., 357 NLRB No. 184 (2012) enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), a Board panel majority consisting of Chairman Pearce and Member McFerran adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an arbitration agreement that requires employees, as a condition of employment, to waive their rights to purse either class or collective actions involving employment-related claims in all forums including arbitral and judicial. Member Miscimarra dissented and 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 when, as here, they contain an opt-out provision. Charge filed by individuals. Administrative Law Judge Mindy E. Landow issued her decision on June 26, 2015. Chairman Pearce and Members Miscimarra and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Children’s Hospital and Research Center of Oakland, Inc. d/b/a UCSF Benioff Children’s Hospital Oakland (32-RC-114542) Oakland, CA, January 20, 2016. No exceptions having been filed to the Acting Regional Director’s report recommending disposition of objections to and challenged ballots in an election held September 21, 2015, the Board adopted the Acting Regional Director’s findings and recommendations, and remanded the proceedings to the Region for further appropriate action.
C Cases
Saint Luke’s Memorial Hospital (12-CA-157352) Ponce, PR January 21, 2016. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to matters under investigation and described with sufficient particularity the information sought. Further, the Board held that the Employer failed to establish any other legal basis for revocation. Charge filed by Unidad Laboral de Enfermeras(os) y Empleados de la Salud. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Appellate Court Decisions
Lederach Electric, Inc. and Morris Road Partners, LLC (a single employer), Board Case No. 04-CA-037725 (reported at 362 NLRB No. 14) (3d Cir. decided January 19, 2016)
In an unpublished opinion, the court enforced the Board’s order and affirmed its finding that the two companies in this case constitute a single employer and therefore are jointly and severally liable for backpay.
Lederach was an electrical contracting company located in Lederach, Pennsylvania, which was formed in 1985 and, as of late 2012, was no longer in business. Morris Road is a commercial realty company that was formed in 1986, and owns the Lederach Commons Building. In 2011, the Board issued a decision finding that Lederach violated Section 8(a)(3) and (1) of the Act by laying off four employees because of their protected, concerted activities for filing claims with the Pennsylvania Department of Labor and Industry, and for their union membership. In 2013, after the first compliance proceeding, the Board issued a supplemental decision and order specifying amounts of backpay owed to the employees. After the second compliance proceeding brought on the issue whether the companies were a single employer, the Board issued a second supplemental decision answering that question in the affirmative. In doing so, the Board applied the well-settled, four-factor test that assesses: (1) functional integration of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership.
On review, the court agreed with the Board’s application of that test. Two factors—common management and ownership—the court noted, were not in dispute. And it held that substantial evidence supported the Board’s finding that there was functional integration of their operations. On the final factor, the court agreed with the Board that, even though there was no evidence of centralized control of labor relations, that lack of evidence on that one factor “is not fatal to the finding that there is single employer status,” particularly here where one entity—Morris Road—has no employees. Accordingly, the court enforced the Board’s backpay order in full.
The court’s opinion is here (link is external).
DHL Express, Inc., Board Case No. 09-CA-046180 (reported at 357 NLRB No. 145) (D.C. Cir. decided January 21, 2016)
In a published opinion, the court enforced the Board’s order and upheld its finding that this international express mail and freight company violated Section 8(a)(1) of the Act by prohibiting nonworking employees from distributing union literature in a hallway of its domestic hub at the Cincinnati Airport in Erlanger, Kentucky, which the Board found was a mixed-use area.
At hearing, the parties stipulated that, on three occasions, off-duty employees who were distributing literature in the hallway in support of an organizing campaign by the American Postal Workers Union, AFL-CIO, were told they could not loiter there, were asked to leave the hallway, and were told they instead could distribute the literature outside or in the cafeteria or breakroom. The hallway runs the length of the building and is used by many employees to walk to their workstations in other parts of the facility to begin their shifts and to leave after their shifts. Upon arrival, employees pass through a security checkpoint, enter the hallway, and walk toward a set of sliding doors at the other end of the hallway. Employees often congregate and socialize in the hallway, which features televisions, where employees can watch for weather and company updates, computer stations for checking benefits information and personal email, and areas for employees to use their personal cellphones. The employer has allowed the hallway to be used for various fairs, charity drives, raffles, and the sale of merchandise. On those facts, the Board (Chairman Pearce and Member Becker; Member Hayes, concurring) found that the employer violated the Act by preventing off-duty employees from distributing union literature in that mixed-use area. In doing so, the Board rejected the employer’s contention that the hallway should be considered a work area in which it could ban distribution, especially because of security-related considerations.
Before the court, the employer argued that the Board’s mixed-use precedents were irrational, and also challenged the Board’s application of that law. The court held that the employer’s challenge to the rationality of the Board’s jurisprudence was jurisdictionally barred from review under Section 10(e) of the Act because it was not sufficiently raised to the Board. Under its precedent, the court explained, a “vague exception” to an administrative law judge’s finding “may be sufficient” to preserve an issue for judicial review when the party’s brief to the Board in support of its exceptions “adequately put[s] the Board on notice” of the grounds for the objection. Alternatively, the court wrote, when a petitioner “specifically object[s] in its exceptions to the ALJ’s findings,” then the issue may still be preserved for appeal even though the petitioner “did not brief and argue the issue to the Board.” Here, the court held, because there is neither a clear statement in the employer’s exceptions, nor a less-than-clear statement in the exceptions that is fully explained in the brief, the mandate of Section 10(e) is not satisfied.
On the preserved issue, the court held that the Board’s analysis in this case “ultimately amounts to a run-of-the-mill application of the Board’s traditional mixed-use framework.” The court noted that the Board “has for decades—with court approval—found areas in which minimal or solely incidental work is conducted are to be considered ‘mixed-use’ areas in which a prohibition on distribution during non-work time has to be justified by special circumstances.” The court also stated that “the Board has adequately explained the (rather obvious) reasons for applying the same presumption to mixed-use areas as to non-work areas: It is the main production area of an employer’s facility where the hazards of loitering and maintaining order are paramount over employee distribution of literature such that employee distribution in these mixed-use areas does not infringe on the employer’s interests in conducting an orderly nonhazardous workplace.” Here, the court concluded that the Board applied that longstanding presumption to the hallway without modification, and that its finding was supported by substantial evidence.
The court’s opinion is here (link is external).
CHS Community Health Systems, Inc. d/b/a Mimbres Memorial Hospital and Nursing Home, Board Case No. 28-CA-016762 (reported at 361 NLRB No. 25) (10th Cir. decided January 20, 2016)
In a published opinion, the court, in a 2-1 decision, enforced the Board’s backpay order issued against this hospital corporation that operates a medical facility in Deming, New Mexico. In the majority opinion, which extensively discussed the policy underpinnings of the Board’s decision, the court upheld the Board’s rationale for its remedial determination that it is inappropriate to deduct interim earnings from backpay when remedying unfair labor practices that do not result in the cessation of employment.
In 2004, in the underlying unfair-labor-practice case, the Board (Members Liebman, Schaumber, and Meisburg) issued an order (342 NLRB 398) finding that the hospital committed various unlawful acts, including a violation of Section 8(a)(5) and (1) for unilaterally reducing the work hours of employees in its respiratory department. As a remedy, the Board ordered the hospital to rescind the unilateral change and make the affected employees whole for any loss of earnings and other benefits computed as prescribed in Ogle Protection Service, 183 NLRB 682 (1970). In 2007, the Tenth Circuit enforced that Board order. NLRB v. Community Health Servs., Inc., d/b/a Mimbres Memorial Hosp. & Nursing Home, 483 F.3d 683 (10th Cir. 2007).
In the ensuing compliance proceeding, the hospital argued that the employees’ interim earnings should be subtracted from the gross backpay it owed for the unilateral reduction in work hours. The administrative law judge found that interim earnings were irrelevant under the “clear language” of Ogle Protection Service, because the employees had not suffered any cessation of employment that would have triggered their duty to mitigate losses. The judge stated that holding otherwise would be “grossly unjust” and “impos[e] a duty on employee victims of an unfair labor practice to moonlight in order to minimize the impact of the unlawful conduct for the benefit of the wrongdoer.” On review, the Board (Chairman Liebman and Members Pearce and Hayes) affirmed and ordered the hospital to pay specific amounts of backpay to 13 named employees without any reduction for interim earnings. 356 NLRB No. 103 (2011). The hospital then petitioned for review in the D.C. Circuit, which held that Ogle Protection Service did not resolve the question, and thus remanded the case to the Board “for a more thorough analysis of the issue.” Deming Hosp. Corp., d/b/a Mimbres Memorial Hospital v. NLRB, 665 F.3d 196, 200-01 (D.C. Cir. 2011).
Thereafter, the Board (Chairman Pearce and Members Johnson and Schiffer) accepted the D.C. Circuit’s remand and, after closely analyzing its own precedent and relevant Supreme Court cases, concluded that the deduction of interim earnings in cases not involving the cessation of employment would run counter to important statutory policies. Specifically, the Board explained that employees in such circumstances have no legal obligation to mitigate their losses by seeking interim employment. Thus, any interim earnings, the Board stated, are the product of employees’ own extra efforts, and in general the Board does not count such earnings against an employee’s total backpay award. Applying that general principle to the question at hand, the Board stated that it encourages extra effort by employees to voluntarily and contemporaneously address the income shortfall caused by an unfair labor practice short of termination, rather than passively waiting to be made whole by a backpay award. This, in turn, promotes the healthy policy of production and employment that serves as one of the animating forces behind the Act. The Board further found that such a result would prevent a windfall to the wrongdoing employer and avoid other potential consequences at odds with the Act’s purposes.
On review, Circuit Judge McHugh, joined by Chief Judge Tymkovich, authored the majority opinion of the Tenth Circuit, which “defer[red] to the Board’s policy-based rationale in support of its remedial decision.” After in-depth discussions of the Board’s precedent regarding the duty to mitigate and the calculation of backpay, the majority held that the Board reasonably applied policy justifications in support of its remedial determination that it is inappropriate to deduct interim earnings from backpay when remedying unfair labor practices that do not result in the cessation of employment. Reviewing each of five key supporting policies in turn, the majority agreed with the Board that its determination: (1) encourages employment and production, (2) is more consistent with the Board’s policy of not deducting interim earnings obtained from work performed above and beyond an employee’s duty to mitigate, (3) better accounts for the hardships that arise when taking on secondary employment, (4) discourages employers from engaging in dilatory conduct such as delaying compliance with an order to rescind unfair labor practices, and (5) prevents a windfall to the wrongdoing employer.
In his dissenting opinion, Circuit Judge Gorsuch presented his view that, whether or not there was a cessation of employment, treating interim earnings differently was an unjustified departure from existing law.
The court’s opinion is here (link is external).
Tekweld Solutions, Inc., Board Case No. 29-CA-138172 (reported at 361 NLRB No. 164) (2d Cir. decided January 22, 2016)
In an unpublished summary order, the court enforced the Board’s bargaining order in this test-of-certification case involving a wholesale distributer of promotional products with an office in Farmingdale, New York, where its employees voted in an election to be represented by Warehouse Production Sales and Allied Service Employees Union, Local 811.
In the underlying representation case, the parties executed a stipulated election agreement in which they specified that the eligible voters “shall be unit employees employed during the payroll period” ending March 8, 2013, for an election scheduled for March 21. Subsequently, the election was delayed when the union filed unfair labor practice charges. After the parties settled those charges, they agreed to reschedule the election for November 19. However, they did not change the March 8 eligibility date. The tally of ballots from the election showed a vote of 22-21 in favor of the union, with 30 challenged ballots. After the employer declined to file objections, the Regional Director investigated the 30 challenged ballots and issued a report recommending that the Board sustain challenges to 24 ballots cast by voters who were not on the Excelsior list—specifically, 23 were hired after the eligibility date, and 1 was employed by an outside agency. The Regional Director also accepted the employer’s request to withdraw 6 ballot challenges.
On August 15, 2014, the Board (Members Hirozawa and Johnson; Member Miscimarra, dissenting in part) issued a decision adopting the Regional Director’s recommendation and directed the Regional Director to open the 6 ballots that the employer no longer challenged. Once opened, the revised tally showed a vote of 26-22 in favor of the union, with 1 void ballot. Six days later, the employer filed an objection asserting that 23 of the challenged ballots should have been counted. Finding that the objection was to the original tally and the Board’s ruling, rather than to the revised tally, the Regional Director concluded that the employer failed to state a valid objection and proceeded to certify the union. Subsequently, the employer refused to bargain in order to challenge the certification, and the General Counsel moved for summary judgment, which the Board granted in the unfair-labor-practice case.
On review, the court held that the Board had not abused its discretion by adhering to the March 8 eligibility list which was “agreed to by the parties, despite a lapse of eight months before the election.” The court noted that the dispute turned on whether the employer’s “objection was to the revised tally or merely the reiteration of an already-rejected challenge to the initial tally,” and concluded that the Board correctly applied its rules to the facts in finding the objection invalid. Accordingly, the court upheld the certification and the refusal-to-bargain violation. Finding no merit to any of the employer’s remaining arguments, it enforced in full.
The court’s opinion is here.
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Administrative Law Judge Decisions
Data Monitor Systems, Inc. (09-CA-145040; JD(NY)-3-16) Dayton, OH. Administrative Law Judge Joel P. Biblowitz issued his decision on January 19, 2016. Charge filed by Teamsters Local Union No. 957, General Truck Drivers, Warehousemen, Helpers, Sales and Service and Casino Employees.
Walmart Stores, Inc. (16-CA-096240, et. al., 21-CA-105401, 26-CA-093558 and 13-CA-107343; JD-03-16) Lancaster, TX. Administrative Law Judge Geoffrey Carter issued his decision on January 21, 2016. Charges filed by The Organization United for Respect at Walmart (Our Walmart).
Security Walls, LLC (16-CA-152423; JD-06-16) Austin, TX. Administrative Law Judge Arthur J. Amchan issued his decision on January 21, 2016. Charge filed by International Union, Security Police and Fire Professionals of America (SPFFA).
Midwest Terminals of Toledo International Inc. (08-CA-119493 and 08-CA-119535; JD-04-16) Toledo, OH. Administrative Law Judge Paul Bogas issued his decision on January 21, 2016. Charges filed by International Longshoremen’s Association, Local 1982, AFL-CIO and an individual.
International Union of Operating Engineers, Local 18 (Welded Construction, L.P.) (08-CB-138850 and 08-CB-138909; JD-05-16) Cleveland, OH. Administrative Law Judge Mark Carissimi issued his decision on January 22, 2016. Charges filed by an individual.
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