Today’s Labor Updates:

Did you know…June 2015

NLRB Backs Overruling of Anheuser-Busch, Expands Union Right to Witness Statements

Summary of NLRB Decisions for Week of June 15 – 19, 2015

 

Did you know…June 2015

Lehr Middlebrooks Vreeland & Thompson, P.C.

USA June 29 2015

… that a Texas law effective June 13 permits employees to carry handguns openly at work? The law does not permit employees to carry a gun inside the employer’s premises. Covering pistols only, the law permits employees to have unconcealed pistols in their vehicles. Texas also passed the “campus carry” bill which permits pistols to be brought onto the campuses of public colleges. The Texas law does not cover private universities.

… that almost 75% of employees have no idea what to do in the event of a physical threat at work? According to a recent Harris Poll, 30% of those surveyed do not believe the workplace is secure from attacks from another person and 30% also believe that the workplace does not have adequate cyber security. Eighty-five percent believe the workplace is well protected in the event of a natural disaster and 83% believe their workplace is well protected in the event of weather threats. Approximately 40% do not believe their employer has a plan in place to deal with workplace violence, threats, or incidents.

… that work and family responsibilities are driving increasing focus on workplace accommodations for fathers? Pursuant to a survey led by MenCare, which is a global campaign to promote men as caregivers, “it’s about time we  really  took  fatherhood  seriously. We’re finding from research around the world that men can’t do this alone. It’s literally about time—who spends time with children.” The report recommends employers provide for paid family leave and extensive paid sick time, regardless of whether the employee is covered FMLA. According to MenCare, “gender justice” includes father-friendly workplace policies. Richard Branson recently made headlines by announcing that full-time Virgin Atlantic employees who had worked for the company for four years would be eligible for one year of fully-paid maternity/paternity leave.

… that a “conflict of interest” rule violated the National Labor Relations Act, according to the NLRB? One would think that a conflict of interest policy is rather basic to the integrity of an employee’s commitment to an employer. Not so, according to the National Labor Relations Board in the decision of Remington Lodging & Hospitality, LLC (June 18, 2015). The employer’s rule focused on competing against the employer or disclosing confidential business information. According to the NLRB, “employees would reasonably fear that the rule prohibits any conduct the Respondent may consider to be detrimental to its image or reputation or to present a conflict with its interests, such as informational picketing, strikes or other economic pressure.” A factor that influenced the NLRB in this decision was the existence of other employer rules and actions which were considered a violation of employee rights. In our view, a well drafted conflict of interest policy, will adequately protect the employer’s needs and not conflict with employee rights under the NLRA.

… that the Big Three auto negotiations will begin on July 13, covering 140,000 hourly employees? It is anticipated the UAW will try to eliminate two-tier pay systems, which provide for a $9 an hour gap between tiers 1 and tier 2 employees. Forty-three percent of Chrysler employees are paid on the lower scale, compared to 19% at GM and 28% at Ford. With Michigan now a Right-to-Work state, the UAW considers the elimination of the two-tier structure essential to retaining the dues paying members who are paid according to the lower tier.

June 30, 2015

NLRB Backs Overruling of Anheuser-Busch, Expands Union Right to Witness Statements

By Lawrence E. Dubé

June 29 — Overruling a long-standing precedent, the National Labor Relations Board June 26 held that employers have no blanket right to deny union requests for access to witness statements that are secured during a company investigation.

The board held in Anheuser-Busch Inc., 237 N.L.R.B. 982, 99 LRRM 1174 (1978), that witness statements were distinguishable from other information that a unionized employer must provide to a bargaining agent. NLRB Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran disagreed, and said union requests for relevant information should be granted unless an employer can demonstrate a substantial interest in keeping them confidential.

Members Philip A. Miscimarra and Harry I. Johnson dissented from the decision to overrule Anheuser-Busch. Both said the 1978 ruling has protected the integrity of workplace investigations and should not be rejected by the board.

Earlier Board Ruling Was Set Aside

The new decision represents the NLRB’s second attempt to overrule Anheuser-Busch.

In December 2012, Pearce and then-Members Richard F. Griffin and Sharon Block decided that American Baptist Homes of the West, which operates the Piedmont Gardens continuing care facility, had an obligation to turn over witness statements requested by Service Employees International Union, United Healthcare Workers-West, which represents employees at the facility (359 N.L.R.B. No. 46, 194 LRRM 1406 (2012)). Then-Member Brian E. Hayes dissented.

However, the board set aside that ruling after the U.S. Supreme Court held in NLRB v. Noel Canning, 134 S. Ct. 2550, 199 LRRM 3685 (2014) that President Obama’s January 2012 recess appointments to the NLRB, including those of Griffin and Block, were unconstitutional.

The current board considered the case de novo, and ruled 3-2 that Anheuser-Busch should be overruled.

General Duty to Furnish Relevant Information Cited

Citing NLRB v. Acme Industrial Co., 385 U.S. 432, 64 LRRM 2069 (1967), the board said the National Labor Relations Act gives a unionized employer a general obligation to provide information relevant to a union’s performance of its bargaining duties, including information the union needs to reach a decision on whether or not to pursue a grievance to arbitration.

Pearce, Hirozawa, and McFerran wrote Anheuser-Busch “created a broad, right line exception” for witness statements but “we are not persuaded that witness statements are so fundamentally different from other types of information that a blanket exemption from disclosure is warranted.”

The board majority acknowledged that there may be some cases in which an employer has legitimate and substantial interests that “must be accommodated,” such as avoiding witness intimidation or harassment. However, they stressed, “there is no basis for concluding that all witness statements, no matter the circumstances, warrant exemption from disclosure.”

New Rule Will Apply Prospectively

As it did in the 2012 decision, the board acknowledged that overruling Anheuser-Busch is a departure from precedent. Piedmont Gardens relied on that precedent in denying the union access to witness statements, and the board said the employer’s conduct was “unquestionably lawful at the time.”

The board said it will apply its new standard prospectively. “[I]n the present case and all other cases where the employer’s refusal to provide requested witness statements occurred before the date of this decision,” the board members wrote, “the Board shall apply Anheuser-Busch in evaluating the lawfulness of the employer’s conduct.”

In the future, however, the board said it will require employer production of witness statements on the same basis that it now requires the production of witness names—“if the requested information is relevant, the party asserting the confidentiality defense has the burden of proving that it has a legitimate and substantial confidentiality interest in the information, and that it outweighs the requesting party’s need for the information.”-

Applying the 1978 standard to Piedmont Garden’s conduct, the board found the employer lawfully withheld several statements but violated its duty to bargain under the NLRA by refusing to give the union a statement from one employee who gave a statement in the courts of her job duties without any assurance of confidentiality from the employer.

Dissenters See Negative Effect on Investigations

Dissenting from the overruling of Anheuser-Busch, Miscimarra said “[w]hen employees step forward to provide information that may involve a coworker’s misconduct, there is little question that they risk coercion, intimidation, harassment, and retaliation, and this risk is especially high if the employer is required to disclose their witness statements to a union.”

By overruling the 1978 precedent, Miscimarra said, “the Board is substantially undermining workforce investigations, to the detriment of employers and employees alike.” He warned the “predictable result” of the board’s decision will be that fewer employees will be willing to provide witness statements, and employers will be less effective in conducting investigations that are often critical to maintaining safe and legally compliant workplaces.

Johnson said “strong confidentiality concerns are inherent to all internal employer investigations into employee misconduct,”

Compelling employers to surrender witness statements to union representatives will “undermine an employer’s ability to investigate claims of workplace violence, harassment, theft, drug and alcohol use, and other forms of serious misconduct in the workplace,” Johnson wrote.

Summary of NLRB Decisions for Week of June 15 – 19, 2015

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

Summarized Board Decisions

Ozburn-Hessey Logistics, LLC  (15-CA-109236; 362 NLRB No. 118)  Memphis, TN, June 15, 2015

On May 2, 2013, the Board issued a Decision, Order, and Direction in a consolidated unfair labor practice and representation case, reported at 359 NLRB No. 109 (2013), adopting the administrative law judge’s decision, including his resolution of challenged ballots and ordering that certain of those ballots be opened and counted.  On May 24, 2013, after counting the ballots, the Acting Regional Director certified the Union.   At the time of the Decision, Order, and Direction the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm.

On July 30, 2013, the General Counsel issued a complaint in the instant case alleging that the Respondent was failing and refusing to recognize and bargain with the Union in violation of Section 8(a)(5) and (1).  The Respondent filed an answer, and the General Counsel filed a Motion for Summary Judgment contending that the Respondent was attempting to relitigate the representation case issues.  The Board issued a Notice to Show Cause why the motion should not be granted.

Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board issued an order setting aside its Decision, Order, and Direction in the consolidated unfair labor practice and representation case and retained the case on its docket for further appropriate action.

On November 17, 2014, the Board issued a further Decision, Order and Certification in the consolidated proceeding adopting the administrative law judge’s rulings, findings, and conclusions, including the judge’s resolution of 10 challenged ballots at issue, found that the tally of ballots previously issued accurately reflected the election results, and, in an abundance of caution, issued a new Certification of Representative.   Subsequently the United States Court of Appeals for the District of Columbia Circuit upheld the Board’s unfair labor practice findings. 

On January 20, 2015, the Board issued a supplemental notice to show cause in the instant case why the General Counsel’s motion for summary judgment should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the November 17, 2014 certification of representative issued. The Respondent filed an answer to the amended complaint reiterating many of the arguments made in the consolidated unfair labor practice and representation proceeding, and arguing that the amended complaint should be dismissed because no new or amended charge was filed after the Board issued the November 17, 2014, certification of representative.

The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.

In granting the motion the Board noted that the court’s disposition of the issues that were resolved in the consolidated proceeding is final.  As to the Respondent’s argument concerning the lack of a new charge, the Board found that the allegations in the amended complaint are part of a continuity of events beginning with the filing of the underlying representation petition and culminating in the Respondent’s ongoing refusal to bargain with the Union for the purpose of testing the Board’s certification.  The Board found that these events are sufficiently related to the original charge to be included the amended complaint.  The Board observed that it specifically granted the General Counsel leave to file an amended complaint to conform to the current state of the evidence, “including whether the Respondent had agreed to recognize and bargain with the Union after the November 17, 2014 certification of representative issued.”

Charge filed by United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Brusco Tug & Barge, Inc.  (19-CA-096559; 362 NLRB No. 115)  Longview, WA, June 15, 2015. 

On May 20, 2013, the Board issued a Decision and Order in this test-of-certification case, reported at 359 NLRB No. 122 (2013), granting the General Counsel’s motion for summary judgment 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. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board issued an order setting aside the Decision and Order and retained this case on its docket for further appropriate action.

On March 18, 2015 the Board (Member Johnson dissenting) issued a further Decision, Order Affirming Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the March 18, 2015 Order affirming certification of representative issued. The Respondent filed an answer to the amended complaint, a second brief in response to the Notice to Show Cause and an opposition to the General Counsel’s motion.

The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.

The Board rejected the Respondent’s contention that the Acting General Counsel was not a proper recess appointee, noting that the Acting General Counsel was designated by the President pursuant to the Federal Vacancies Reform Act, 5 U.S.C. 3345, et seq. and was fully authorized to prosecute the complaint in this matter and that in any event, the current General Counsel, who was appointed by the President with the advice and consent of the Senate, unquestionably is authorized to prosecute this case.

The Board also rejected the Respondent’s attempt to raise alleged changes in mates’ duties in this proceeding as procedurally improper, finding that the Respondent failed to file a motion to reopen the record in the underlying representation proceeding.  The Board further rejected the Respondent’s arguments that the passage of time since the Union’s certification in 2000 constitutes a “special circumstance” warranting relitigation of the representation case and that under the doctrine of laches the certification should not be upheld.

Member Johnson noted that for the reasons set forth in his dissent to the Board’s March 18, 2015 decision, he would have reversed the Regional Director on review in the underlying representation proceeding and found that the mates in the petitioned for bargaining unit are supervisors within the meaning of the Act. He ultimately agreed, however, that the Respondent did not raise any new matters properly litigable in this unfair labor practices proceeding.

Charge filed International Organization of Masters, Mates, & Pilots, ILA, AFL-CIO.  Chairman Pearce and Members Hirozawa and Johnson participated.

***

M&B Services, Inc.; Berry Service, Inc. (Berry I); Berry Services, Inc. (Berry II); Berry Transportation, LLC, Milton Berry, an individual charged with personal liability; Carolyn Berry, an individual charged with personal liability  (15-CA-018808; 362 NLRB No. 122)  New Orleans, LA, June 15, 2015.

The Board granted the General Counsel’s motion for default judgment in this compliance proceeding, on the ground that the Respondents failed to file an answer to the compliance specification. In the absence of an answer, the Board deemed the allegations to be true, and ordered the Respondents to jointly and severally make whole the bargaining-unit employees as specified in the compliance specification.

Charge filed by Service Employees International Union, Local 100. Chairman Pearce and Members Miscimarra and McFerran participated.

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800 River Road Operating Company LLC, d/b/a Woodcrest Health Care Center  (22-CA-097938; 362 NLRB No. 114)  New Milford, NJ, June 15, 2015. 

On July 10, 2013, the Board issued a Decision and Order in this test-of-certification case, reported at 359 NLRB No. 129 (2013), granting the General Counsel’s motion for summary judgment 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. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board issued an order setting aside the Decision and Order and retained this case on its docket for further appropriate action.

On November 26, 2014, the Board issued a further Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the November 26, 2014 certification of representative issued. The Respondent filed an answer to the amended complaint and a response to the Notice to Show Cause.

The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.

Charge filed by 1199 SEIU United Healthcare Workers East.  Chairman Pearce and Members Hirozawa and McFerran participated.

***

UNF West, Inc.  (21-CA-144972; 362 NLRB No. 117)  Norristown, PA, June 15, 2015.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

Charge filed by the International Brotherhood of Teamsters, Local 63.  Chairman Pearce and Members Hirozawa and McFerran participated.

***

Laguna College of Art and Design  (21-RC-128268; 362 NLRB No. 112)  Laguna Beach, CA, June 15 2015.

The Board adopted the hearing officer’s recommendation to overrule the Employer’s objections and certify the Union.  The Board agreed with the hearing officer that a prounion supervisor did not engage in objectionable conduct warranting setting aside the election under the two-prong test of Harborside Healthcare, Inc., 343 NLRB 906 (2004).  Additionally, the Board found that the hearing officer did not commit prejudicial error by granting the supervisor’s oral petition at the hearing to revoke a subpoena as it related to his personal emails and text messages to the organizing committee and union officials about organizing strategy.  Petitioner—Service Employees International Union, Local 721.  Members Hirozawa, Johnson, and McFerran participated.

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KAG-West, LLC  (21-CA-039488 and 21-CA-039665; 362 NLRB No. 121)  Los Angeles, CA, June 16, 2015. 

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s decision and order.  For the reasons stated in its now-vacated Decision and Order reported at 358 NLRB No. 161 (2012), a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent unlawfully withheld a wage increase from union-represented employees.  The Board majority emphasized that the Respondent, which implemented the increase for unrepresented employees, took affirmative steps to implement the increase for unrepresented employees only after becoming aware of the union organizing drive, and that it disseminated its memo announcing the wage increase for unrepresented employees at facilities where the unit employees worked, but made no contemporaneous announcement to unit employees that it intended to bargain over implementation of a wage increase for them.  The Board majority further found that the Respondent failed to prove that the wage increase would have been withheld from unit employees notwithstanding the union activity.  Member Johnson, dissenting, found that the General Counsel failed to show that the increase was withheld due to antiunion animus.  In his view, the timing of the increase was driven as much by the Respondent’s improved economic circumstances as by the union campaign.

Charges filed by Miscellaneous Warehousemen Drivers and Helpers, Local 986, International Brotherhood of Teamsters.  Administrative Law Judge William G. Kocol issued his decision on December 30, 2011.  Chairman Pearce and Members Hirozawa and Johnson participated.

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PCMC/Pacific Crane Maintenance Company, Inc. and/or Pacific Marine Maintenance Co., LLC, a single employer, and/or PCMC/Pacific Crane Maintenance Company, LP, their successor   (32-CA-021925, et al.; 362 NLRB No. 120)  Oakland, CA/Tacoma, WA, June 17, 2015.

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s decision and order.  For the reasons stated in its now-vacated Decision and Order reported at 359 NLRB No. 136, the Board reversed the administrative law judge and found that Respondent Pacific Crane Maintenance Company (PCMC) and Respondent Pacific Marine Maintenance Company (PMMC), whom the parties stipulated at the hearing constituted a single employer (together, the Employer), violated Section 8(a)(5) by withdrawing recognition from the Machinists Union, unilaterally laying off unit employees in March 2005, bypassing the Machinists and offering unit employees continued employment with different terms and conditions of employment, and unilaterally changing terms and conditions of employment.  Additionally, the Board found that Respondent Employer violated Section 8(a)(2) by granting assistance to and recognizing Respondent ILWU when it did not represent an unassisted and uncoerced majority of employees and that Respondent ILWU violated Section 8(b)(1)(A) and (2) by accepting such recognition.

Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 190, Local Lodge 1546, and District Lodge 160.  Administrative Law Judge Clifford H. Anderson issued his decision on February 12, 2009.  Chairman Pearce and Members Hirozawa and McFerran participated.

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Coastal Sunbelt Produce, Inc.  (05-CA-036362; 362 NLRB No. 126)  Savage, MD, June 17, 2015.

The Board affirmed the Administrative Law Judge’s findings that the Respondent violated the Act by coercively interrogating an employee, and by discharging her because her husband was a union supporter.  The Respondent asserted that she was terminated as part of a reorganization of its tomato packing operation, but the Board found this explanation pretextual.  Although there was no direct evidence that the persons who discharged her knew that her husband was a Union supporter, the Board inferred knowledge from circumstantial evidence including the fact that the decision makers were aware that other employees believed her husband supported the Union.  A 2012 decision in this case was set aside pursuant to NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), and a subsequent decision was rescinded in 2014. Administrative Law Judge Eric M. Fine issued his decision on February 17, 2012.  Charges filed by an individual.  Chairman Pearce and Members Miscimarra and McFerran participated.

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CC 1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers and Hector Sanchez-Torres and Jan Rivera-Mulero and Luis Revera-Morales and Miguel Colon  (24-CA-011035, et al.; 362 NLRB No. 125)  Cayey, PR, June 18, 2015. 

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s decision and order.  For the reasons stated in its now-vacated Decision and Order reported at 358 NLRB No. 129 (2012), a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent Employer violated the Act by terminating a shop steward for engaging in a protected walkout. The Board majority also found that the Employer violated the Act by terminating employees for engaging in a 3-day unfair labor practice strike to protest the steward’s suspension and termination. The majority rejected the argument that the employees engaged in an illegal wildcat strike. The Board also found that the Employer violated the Act by requiring employees to sign overbroad last-chance agreements.  Finally, the majority found that the Respondent Union’s discipline of members violated the Act because the discipline affected the members’ seniority.

In dissent, Member Johnson would have found that employees who participated in the 3-day strike engaged in an illegal wildcat strike and he would have dismissed allegations that the Employer violated the Act by disciplining those employees. Member Johnson would have also dismissed the allegation that the Union violated the Act by fining and expelling members working for another employer because they participated in the illegal strike.

Administrative Law Judge Bruce D. Rosenstein issued his decision on April 16, 2010.  Charges were filed by individuals.  Chairman Pearce and Members Hirozawa and Johnson participated. 

***

Remington Lodging & Hospitality, LLC, d/b/a The Sheraton Anchorage  (19-CA-032148, et al.; 362 NLRB No. 123)  Anchorage, AK, June 18, 2015.

In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s decision and order.  For the reasons stated in its now-vacated Decision and Order reported at 359 NLRB No. 95, the Board adopted the Administrative Law Judge’s findings that the Respondent violated the Act by: (1) changing unit employees’ terms and conditions of employment after contract expiration without first providing at least 30 days’ notice to the Federal Mediation & Conciliation Service; (2) unilaterally implementing a new health benefit plan without first bargaining to impasse or agreement; (3) disciplining nine off-duty employees for presenting a boycott petition to the Respondent in its hotel lobby; (4) discharging four off-duty employees for distributing boycott handbills under the hotel’s porte cochere; (5) maintaining and/or enforcing eight separate employee handbook rules; (6) soliciting unit employees to sign a decertification petition; and (7) withdrawing recognition from the Union. Reversing the judge, the Board found that the Respondent also violated the Act by unilaterally implementing a performance incentive plan for unit employees. Additionally, the Board adopted the Judge’s dismissal of complaint allegations that the Respondent violated the Act by subcontracting certain bargaining-unit work and by denigrating the Union.  Dissenting in part, Member Miscimarra disagreed with the majority’s finding that the Respondent’s handbook rule prohibiting employees from having a “conflict of interest with the hotel or company” is unlawful on its face.

Charges filed by UNITE-HERE! Local 878, AFL-CIO.  Administrative Law Judge Gregory Z. Meyerson issued his decision on August 25, 2011. Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Tito Contractors, Inc.  (05-CA-149046; 362 NLRB No. 119)  Washington, DC, June 18, 2015.

The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  Charge filed by International Union of Painters and Allied Trades, District Council 51 (AFL-CIO).  Chairman Pearce and Members Miscimarra and Hirozawa participated.

***

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Mas Tec North America, Inc.  (01-RD-103288)  Durham, CT, June 16, 2015.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Employer’s Request for Review of the Regional Director’s determination to hold the decertification petition in abeyance pending investigation of unfair labor practice charges filed by the International Brotherhood of Electrical Workers, Local 488, AFL-CIO (the Union), alleging that the Employer has maintained overly broad work rules and policies in its employee handbook-specifically, the dispute resolution policy, the tape recording policy, and the derogatory language rule.  The Regional Director issued a complaint setting forth these three policies and alleging that by having these policies in its handbook the Employer has been in violation of Sec. 8(a)(3) of the Act.  In denying the Employer’s Request for Review, the Board majority noted that the Regional Director’s determination to hold the petition in abeyance was an exercise of administrative discretion, in accordance with Secs. 11730-11733 of the Board’s Casehandling Manual (Part Two), Representation Proceedings, and found that the Employer has not demonstrated that the Regional Director abused his discretion.  Member Miscimarra would grant review of the Regional Director’s decision to hold the petition in abeyance.  Without passing on the merits of the charge, he found that the Employer has raised substantial issues warranting review regarding the determination that the alleged unfair labor practice, if proven, would interfere with employee free choice given: (1) the subject matter of the allegedly unlawful rules, which on their face do not broadly prohibit Section 7 activity; (2) the fact that the rules were in place when the Union was certified, with no apparent effect on that election; and (3) one of the disputed rules, prohibiting, among other things, the use of abusive language, was modified prior to the filing of the petition to eliminate that prohibition.  Member Miscimarra stated that there is no claim that the maintenance of the rules tainted the petition itself, and that such a claim would in any event be untenable in light of the rules having been in place prior to the Union’s certification and the complete absence of any evidence linking the disputed rules to the decertification petition.  Petitioner—an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Mas Tec North America, Inc.  (01-RD-130917)  East Hartford, CT, June 16, 2015.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa denied the Employer’s Request for Review of the Regional Director’s determination to hold the decertification petition in abeyance pending investigation of unfair labor practice charges filed by the International Brotherhood of Electrical Workers, Local 488, AFL-CIO (the Union) alleging that the Employer has maintained overly broad work rules and policies in its employee handbook-specifically, the dispute resolution policy, the tape recording policy, and the derogatory language rule.  The Regional Director issued a complaint setting forth these three policies and alleging that by having these policies in its handbook the Employer has been in violation of Sec. 8(a)(3) of the Act.  In denying the Employer’s Request for Review, the Board majority noted that the Regional Director’s determination to hold the petition in abeyance was an exercise of administrative discretion, in accordance with Secs. 11730-11733 of the Board’s Casehandling Manual (Part Two), Representation Proceedings, and found that the Employer has not demonstrated that the Regional Director abused his discretion.  Member Miscimarra would grant review of the Regional Director’s decision to hold the petition in abeyance.  Without passing on the merits of the charge, he found that the Employer has raised substantial issues warranting review regarding the determination that the alleged unfair labor practice, if proven, would interfere with employee free choice given: (1) the subject matter of the allegedly unlawful rules, which on their face do not broadly prohibit Section 7 activity; (2) the fact that the rules were in place when the Union was certified, with no apparent effect on that election; and (3) one of the disputed rules, prohibiting, among other things, the use of abusive language, was modified prior to the filing of the petition to eliminate that prohibition.  Member Miscimarra stated that there is no claim that the maintenance of the rules tainted the petition itself, and that such a claim would in any event be untenable in light of the rules having been in place prior to the Union’s certification and the complete absence of any evidence linking the disputed rules to the decertification petition.  Petitioner—an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Americold Logistics, LLC  (04-RC-134233)  Gouldsboro, PA, June 16, 2015.  A Board panel majority consisting of Chairman Pearce and Member McFerran denied the Employer’s Request for Review of the Regional Director’s decision and direction of election.  In denying review, the Board majority agreed with the Regional Director’s finding that the Employer did not establish that the petitioned-for checkers share an “overwhelming community of interest” with the warehouse persons the Employer contended must also be included in the unit.  The Board specifically found that the record supported the Regional Director’s finding that interchange between the checkers and warehouse persons is limited.  Further, the Board found that the bargaining history at the facility at issue strongly supported the Regional Director’s analysis, given that the checkers have been historically excluded from the existing warehouse persons unit at this facility.  Dissenting, Member Miscimarra would have granted review, including whether the petitioned-for unit is an appropriate residual unit and whether the unit gives controlling weight to the extent of organization, contrary to Sec. 9(c)(5).  In doing so, Member Miscimarra would have applied traditional community of interest standards, not Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub nom. Kindred Nursing centers East LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).  Petitioner—Teamsters Local 863.  Intervenor—Teamsters Local 229.  Chairman Pearce and Members Miscimarra and McFerran participated.

Primeflight Aviation Services, Inc.  (12-RC-113687)  Carolina, Puerto Rico, June 18, 2015.  The Board denied the Employer’s Request for Review as raising no substantial issues warranting review regarding the Regional Director’s refusal to refer the election petition to the National Mediation Board (NMB).  The Employer asserted that the NMB should decide whether the petitioned-for unit of wheelchair attendants serving airline passengers at the Luis Munoz Airport should come under the jurisdiction of the Railway Labor Act rather than the National Labor Relations Act.  Member Johnson joined in the decision to deny review, noting that recent NMB precedent supported the view that these employees did not come under its jurisdiction, and distinguishing his recent dissent in Prospect Airport Services, 04-RC-085882, rev. denied March 31, 2015.  Petitioner—Sindicato Puertorriqueno de Trabajadores Local 1996, SEIU.  Members Hirozawa, Johnson, and McFerran participated.

Tyco Integrated Security  (12-RC-147392)  Miramar, FL, June 19, 2015.  No exceptions having been filed the hearing officer’s overruling of the Petitioner Union’s objections to an election held April 8, 2015, the Board adopted the hearing officer’s findings and recommendations, and certified that a majority of the valid ballots had not been cast for Petitioner International Brotherhood of Electrical Workers, Local Union No. 349, and therefore it is not the exclusive collective-bargaining representative of the unit employees. 

C Cases

CVS RX Services, Inc.  (29-CA-141164)  Lindenhurst, NY, June 15, 2015.  Order denying the Respondent’s motion to dismiss the complaint and finding that the Respondent’s request for a bill of particulars is not before the Board.  Charge filed by an individual.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Century Management, LLC, a McDonald’s Franchisee, and McDonald’s USA, LLC  (15-CA-144108)  Memphis, TN, June 15, 2015.  Order denying 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 evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  To the extent that the Employer believes in good faith that some of the documents requested are subject to the attorney-client privilege or the attorney work product doctrine, the order permits the Employer to submit a complete privilege log to the Region identifying and describing each such document in sufficient detail to permit an assessment of the claim.  Charge filed by Memphis Workers Organizing Committee.  Chairman Pearce and Members Miscimarra and Hirozawa participated. 

Century Management, LLC, a McDonald’s Franchisee, and McDonald’s USA, LLC  (15-CA-143890)  Memphis, TN, June 15, 2015.  Order denying 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 evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  To the extent that the Employer believed in good faith that some of the documents requested are subject to the attorney-client privilege or the attorney work product doctrine, the order allowed the Employer to submit a complete privilege log to the Region identifying and describing each such document in sufficient detail to permit an assessment of the claim.  Charge filed by Memphis Workers Organizing Committee.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Pro Works Contracting, Inc.  (21-CA-120477 and 21-CA-121946)  Santee, CA, June 17, 2015.  The Board denied the Respondent’s motion for reconsideration of the Board’s January 27, 2015 decision granting the General Counsel’s motion for default judgment.  Charge filed by Iron Workers Local 229, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

Hard Hat Services, LLC  (04-CA-144254)  Norristown, PA, June 19, 2015.  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 evidence sought.  Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by International Brotherhood of Electrical Workers, Local Union No. 98.  Chairman Pearce and Members Miscimarra and Hirozawa participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Adams & Associates, Inc. and McConnell, Jones, Lanier & Murphy, LLP  (20-CA-130613 and 20-CA-138046; JD(SF)-25-15)  Sacramento, CA.  Administrative Law Judge Mary Miller Cracraft issued her decision on June 16, 2015.  Charges filed by Sacramento Job Corps Federation of Teachers, AFT Local 4986, American Federation of Teachers.

Tinley Park Hotel and Convention Center, LLC  (13-CA-141609; JD-36-15)  Chicago, IL.  Administrative Law Judge Charles J. Muhl issued his decision on June 16, 2015.  Charge filed by an individual.

Megan Sweitzer, William Maher and Denise Maher, individuals and owners of Retro Fitness and PA Fit, LLC  (04-CA-139626; JD-37-15)  East Norriton and Holmes, PA.  Administrative Law Judge Arthur J. Amchan issued his decision on June 19, 2015.  Charge filed by an individual.