This Week’s Updates:
NLRB holds that an employee’s ridiculously profane Facebook post is protected, concerted activity under the NLRA
Summary of NLRB Decisions for Week of March 30 – April 3, 2015
Twenty-Seven Day Elections (Or Less) Likely Under NLRB’s New Quickie Election Rules
NLRB holds that an employee’s ridiculously profane Facebook post is protected, concerted activity under the NLRA
Michael C. Wilhelm
April 8 2015
On March 31, 2015, the NLRB published a decision holding that an employee’s Facebook post calling his boss a “nasty mother***er” and making other profane comments was protected, concerted activity under the National Labor Relations Act (NLRA).
In Pier Sixty, LLC, the employee of a catering service voiced his frustrations with his supervisor on Facebook. 362 NLRB No. 59 (NLRB, Mar. 31, 2015). At the time, a union campaign was underway at the employer, and an election to certify the union was scheduled. Two days before the election, a server was upset that his supervisor spoke to employees in a loud, harsh tone. During a break, the server posted the following message to his Facebook account:
Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!
Later, the employer’s Human Resources found out about the post and terminated the employee. An unfair labor practice charge followed.
At the hearing, the administrative law judge (ALJ) determined that the workplace was rife with foul language and that comments such as “mother***er,” “a**hole,” and “eat sh**” were commonplace. The ALJ concluded that the server’s Facebook post was consistent with language that was a “daily occurrence” in the workplace and which typically did not result in any disciplinary response. Because the post related to the employee’s working conditions and the pending union campaign, the ALJ determined that the Facebook post was protected, concerted activity and that the employee’s termination violated the NLRA.
On appeal, the NLRB agreed with the ALJ. The NLRB explained that the “Facebook comments were part of a sequence of events involving the employees’ attempts to protest and ameliorate what they saw as rude and demeaning treatment on the part of Respondent’s managers . . . .” The NLRB also held that the Facebook post was not so egregious so as to lose the protections of the NLRA. The NLRB noted that the language was not qualitatively different from the obscene language normally tolerated by the employer and that no other employee had ever been discharged from similar language.
Takeaway: The Pier Sixty case is another example of how obscene language may qualify as protected, concerted activity under the NLRA – although that is not always the case. In Pier Sixty, the fact that the employer regularly tolerated similar language in the workplace was particularly harmful to the employer’s defense.
Summary of NLRB Decisions for Week of March 30 – April 3, 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
Lily Transportation Corporation (01-CA-108618; 362 NLRB No. 54) Cheshire, CT, March 30, 2015.
The Board affirmed the Administrative Law Judge’s decision that the Respondent maintained three overbroad work rules in its employee handbook. The Board unanimously found that two work rules, covering employee dress code and information about Respondent posted on the internet, interfered with employee rights under the Act. Members Hirozawa and McFerran also affirmed the judge’s decision that a third work rule covering confidential information was overbroad. Members Hirozawa and McFerran found that employees would reasonably view the rule, which prohibited disclosure of information maintained in confidential personnel files, as limiting their ability to discuss wages and other terms and conditions of employment. Regarding the confidentiality rule, Member Miscimarra dissented because the handbook used “confidential” as a catch-all term and because the prohibition on disclosing confidential information was juxtaposed with bans on major transgressions, like theft and violence, such that employees would not have reasonably construed the challenged rule to prohibit discussions of wages and benefits merely because a personnel file might contain such non-confidential information. Responding to their dissenting colleague, Members Hirozawa and McFerran observed that other more benign transgressions were included in the prohibition.
After the complaint had issued in this case, the Respondent distributed a new handbook to employees without any explanation but with the offending rules rescinded. The Board unanimously affirmed the judge that the Respondent, through this conduct, did not effectively repudiate the unlawful work rules in accordance with the standard outlined in Passavant Memorial Area Hospital. 237 NLRB 138 (1978). The Board modified the judge’s remedy to eliminate the requirement that the Respondent distribute inserts to the handbook explaining the deletion of the work rules. Instead, the Board modified the Notice to inform employees of the background circumstances surrounding the distribution of the modified handbook. Charge filed by an individual. Administrative Law Judge Kenneth W. Chu issued his decision on April 22, 2014. Members Miscimarra, Hirozawa, and McFerran participated.
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WF Coal Sales, Inc. (09-CA-138757; 362 NLRB No. 47) Premier, WV, March 30, 2015.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint. Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining representative of its employees. The Board ordered the Respondent to meet and bargain with the Union, on request, as the exclusive collective-bargaining representative of the employees in the unit and, if an understanding is reached, to embody the understanding in a signed agreement. Charge filed by United Mine Workers of America, District 17. Chairman Pearce and Members Johnson and McFerran participated.
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Caterpillar Logistics, Inc. (09-CA-114560, 09-CA-120356, and 09-RC-111362; 362 NLRB No. 49) Clayton, OH, March 30, 2015.
The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) and engaged in objectionable conduct by: announcing and granting employees a safety bonus; announcing the construction of smoking shelters for employees; and interrogating employees, all during the critical period. The Board also affirmed the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for conduct that occurred during the course of his protected concerted activity. Contrary to the judge, the Board found that the Respondent also violated Section 8(a)(1) and engaged in objectionable conduct by creating the impression of surveillance. Finally, the Board directed a second election. Member Johnson joined his colleagues in adopting some of the judge’s findings of violations, but he would have reversed the judge’s finding that the Respondent violated Section 8(a)(1) and engaged in objectionable conduct by announcing and granting the safety bonus. Member Johnson noted that he joined the majority in finding the impression of surveillance violation in the absence of evidence that a reasonable employee would be aware of other noncoercive means of observation of the employees’ union activities. Member Johnson would also have adopted the judge’s finding that the interrogations, standing alone, would not require a second election. Charges filed by an individual and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW). Administrative Law Judge Arthur J. Amchan issued his decision on August 4, 2014. Chairman Pearce and Members Johnson and McFerran participated.
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Commercial Air, Inc. (25-CA-092821, et al.; 362 NLRB No. 39) Lebanon, IN, March 30, 2015.
The Board affirmed the Administrative Law Judge’s dismissal of the complaint allegations that the Respondent violated Section 8(a)(1) by threatening an employee and violated Section 8(a)(3), (4), and (1) by terminating two employees. In the absence of exceptions filed by the Respondent, the Board also affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(3), (4), and (1) by unlawfully suspending an employee. In adopting the judge’s dismissal of the termination allegations, Chairman Pearce and Member Hirozawa found that the General Counsel met his initial burden under Wright Line, 251 NLRB 1083 (1980) with respect to the two terminations and clarified that Wright Line does not require the General Counsel to make a particularized showing of animus towards the disciplined employee’s protected activity. Member Miscimarra declined to pass on whether the General Counsel met his initial Wright Line burden for the two terminations and disagreed with the majority’s statement that it is unnecessary under Wright Line for the General Counsel to prove that the alleged discrimination was specifically related to the employee’s protected conduct. Charges filed by Indiana State Pipe Trades Association and U.A. Local 440, AFL-CIO. Administrative Law Judge Paul Bogas issued his decision on August 1, 2014. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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JPB Investments VI, LLC d/b/a 601 Direct, LLC (14-CA-130895; 362 NLRB No. 50) O’Fallon, MO, March 30, 2015.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. Accordingly, the Board found that the Respondent failed and refused to bargain with the Union about the effects of the Respondent’s decision to close a facility, the termination of all of the unit employees, and the ceasing of its past practice of paying terminated employees their accrued vacation pay. Charge filed by Local 6-505M, Graphic Communication Conference of the International Brotherhood of Teamsters.
Chairman Pearce and Members Johnson and McFerran participated.
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Flyte Tyme Worldwide (04-CA-115437; 362 NLRB No. 46) Mahwah, NJ, March 30, 2015.
The Board denied the Charging Party’s motion to withdraw its charge in this case, which is pending before the Board on exceptions to an Administrative Law Judge’s decision finding that the Respondent violated Section 8(a)(1) by maintaining and enforcing an arbitration policy that requires employees to individually arbitrate all employment-related claims or disputes, and to waive their right to maintain collective or class actions in all forums, arbitral and judicial. The judge also found that the Respondent violated Section 8(a)(1) by filing a motion to dismiss a class action wage and hour lawsuit filed by the employees represented by the Charging Party and to compel arbitration under the Respondent’s policy. The Charging Party sought withdrawal of the charge because the employees have reached a class-wide agreement with the Respondent to settle the related collective and class action lawsuit for alleged violations of federal and state wage and hour laws, and the employee-plaintiffs and the Respondent have agreed to resolve the unfair labor practice case as part of the settlement agreement.
The Board found that approving the withdrawal of the charge would not effectuate the purposes of the Act, because the settlement agreement does not address, much less provide any remedy for, the violations alleged in the charge and complaint. The Board stated that the settlement agreement at issue addresses the employees’ private rights under federal and state wage and hour laws, but it does not address the public interest in protecting employees’ statutory right to engage in collective action regarding terms and conditions of employment. The Board pointed out that the settlement leaves in place the arbitration policy’s requirement that employees waive, as a condition of employment, the filing of class and collective action claims in all forums, and does not rescind or modify the waivers already executed by employees pursuant to the mandatory arbitration provision of the Respondent’s policy. Thus, the Board concluded that the policy will continue to have a chilling effect on employees’ Section 7 rights to engage in collective action in the future. Because the parties’ settlement does not address the continued maintenance of a policy mandating arbitration on an individual basis, the Board found that approval of the settlement agreement will not effectuate the purposes of the Act. Thus, the Board will continue to consider the exceptions to the judge’s decision. Charge filed an individual. Administrative Law Judge Robert Giannasi issued his decision on June 3, 2014. Chairman Pearce and Members Hirozawa and McFerran participated.
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Arc Bridges, Inc. (13-CA-044627; 362 NLRB No. 56) Gary, IN, March 31, 2015.
This case was before the Board on remand from the United States Court of Appeals for the District of Columbia Circuit. A Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Employer’s decision, made during bargaining negotiations, to withhold a wage increase from represented employees was unlawfully motivated and, therefore, violated Section 8(a)(3) and (1). Member Miscimarra, dissenting, found that the Respondent did not violate the Act by refraining from unilaterally giving represented employees a wage increase during bargaining that remained incomplete. Charge filed by American Federation of Professionals. The United States Court of Appeals for the District of Columbia Circuit issued its decision on December 9, 2011. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Pier Sixty, LLC (02-CA-068612 and 02-CA-070797; 362 NLRB No. 59) New York, NY, March 31, 2015.
The Board unanimously adopted the Administrative Law Judge’s findings that the Respondent violated the Act by: (1) unlawfully threatening employees with the loss of current benefits, job loss and discharge, and job loss due to lost business, and informing employees that bargaining would start from scratch, and (2) disparately applying a “no talk” rule. A Board panel majority consisting of Chairman Pearce and Member McFerran also adopted the judge’s finding that the Respondent violated the Act by discharging an employee because of his protected, concerted comments made in a Facebook posting. Both the majority and the dissent agreed, in the absence of exceptions, to apply a “totality of the circumstances” test under the facts presented here. Applying that test, Chairman Pearce and Member McFerran, while not condoning the employee’s use of obscene and vulgar language toward his manager in his Facebook post, found that the Respondent tolerated similar profanity in the workplace, and, combined with the other circumstances, found that the employee’s conduct was not so egregious as to lose the protection of the Act. In dissent, Member Johnson found that the employee’s Facebook comments, which also referred to the manager’s family, were qualitatively different from other obscenity tolerated by the Respondent, and reflected a level of animus and aggression so beyond-the-pale as to lose the Act’s protection. Charges filed by individuals. Administrative Law Judge Lauren Esposito issued her decision on April 18, 2014. Chairman Pearce and Members Johnson and McFerran participated.
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Vince & Sons Co. and Jo Mo Enterprises, Inc. d/b/a Vince & Sons Pasta, alter-ego and/or Golden State Successor (13-CA-123828; 362 NLRB No. 62) Bridgeview, IL, March 31, 2015.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s withdrawal of its answers to the complaint and amended complaint. Accordingly,
the Board found that the Respondent violated Section 8(a)(3) and (1) by disciplining and discharging several employees because they joined the Union and engaged in concerted activities, and to discourage employees from engaging in these activities, and that it violated Section 8(a)(1) by threatening employees with unspecified reprisals and discharge. The Board ordered the Respondent to offer reinstatement to the discharged employees, make them whole for any loss of earnings and other benefits they may have suffered as a result of the Respondent’s unlawful conduct, compensate the employees for any adverse tax consequences of receiving lump-sum backpay awards and file a report with the Social Security Administration allocating the backpay awards to the appropriate calendar quarters, and remove references to the unlawful discipline and discharges from the employees’ files. Charge filed by United Food & Commercial Workers Local 1546. Chairman Pearce and Members Johnson and McFerran participated.
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DirecTV U.S. DirecTV Holdings, LLC (21-CA-039546; 362 NLRB No. 48) Riverside, CA, March 31, 2015.
Following 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, the record, the exceptions, the cross exceptions, and briefs. The Board also considered the now-vacated Decision and Order reported at 359 NLRB No. 54 (2013), and agreed with the rationale set forth there, as modified in this decision. Accordingly, the Board agreed with the judge that the Respondent maintained four work rules that were unlawful because employees would reasonably construe them as prohibiting Section 7 activity protected under the NLRA. These included restrictions on employee communication with the media and with NLRB agents, as well as overly-broad rules concerning confidentiality and the disclosure of company information that reasonably encompassed employees’ discussion of wages and other terms and conditions of employment. The Board also agreed with the judge that the Respondent unlawfully discharged an employee because of his union activity and after that employee spoke forcefully in favor of unions at a mandatory employee meeting. Further, however, the Board found it appropriate to remand one issue to the judge for further consideration. The judge found that the Respondent’s work rule titled “Use of Company Systems, Equipment, and Resources” was unlawful under the Board’s decision in Register Guard, 351 NLRB 1110 (2007). The Board pointed out that subsequent to the judge’s decision and the now-vacated Board Decision and Order, the Board overruled Register Guard in Purple Communications, Inc., 361 NLRB No. 126 (2014), and articulated a new analytic framework for determining the lawfulness of an employer’s rule restricting employee use of a company’s email system. Accordingly, the Board remanded the allegation concerning this email work rule to the judge for further proceedings consistent with Purple Communications, including allowing the parties to introduce evidence relevant to a determination of the lawfulness of that rule. Charge filed by International Association of Machinists and Aerospace Workers, District Lodge 947, AFL-CIO. Administrative Law Judge Gerald A. Wacknov issued his decision on December 13, 2011. Chairman Pearce and Members Hirozawa and McFerran participated.
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Casino Pauma (21-CA-103026 and 21-CA-114433; 362 NLRB No. 52) Pauma Valley, CA, March 31, 2015.
The Board adopted the Administrative Law Judge’s finding that the Board has jurisdiction over the Respondent’s casino operation. The Board explained that the judge correctly found that the Board has repeatedly asserted jurisdiction over tribal owned-casinos and that there was no factual basis for distinguishing the Respondent from those casinos operated by tribal governments in San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), affd. 475 F.3d 1306 (D.C. Cir. 2007), Little River Band of Ottawa Indians Tribal Government, 359 NLRB No. 84 (2013), Soaring Eagle Casino & Resort, 359 NLRB No. 92 (2013), and Chickasaw Nation Operating Winstar World Casino, 359 NLRB No. 163 (2013). The Board also adopted the judge’s findings that the Respondent unlawfully maintained and enforced a rule prohibiting employees from wearing union buttons; threatening to suspend or terminate employees who wore a union button; and instructing its managers, supervisors, and agents to surveil employees to see if they were wearing a union button.
Charge filed by UNITE HERE International Union. Administrative Law Judge Jeffrey D. Wedekind issued his decision on June 25, 2014. Members Hirozawa, Johnson, and McFerran participated.
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Midwest Terminals of Toledo International (08-CA-038092, et al.; 362 NLRB No. 57) Toledo, OH, March 31, 2015.
The Board affirmed the judge’s findings that the Respondent unlawfully refused to assign work to employees because of their union activities, threatened not to hire employees because they filed grievances and unfair labor practice charges, threatened employees with future discipline for filing a grievance, coercively told employees that the Union had caused them to lose overtime, threatened to remove from the job or discharge employees because they engaged in union activity, and grabbed employees because they engaged in union activity.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the judge’s rejection of the Respondent’s laches defense on the ground that laches does not apply to bar action by the Board to vindicate public rights. The majority further noted that publicly available records show that many of the charges brought against the Respondent were resolved preceding the commencement of the hearing and that the General Counsel’s decision about when to proceed to a hearing did not warrant a departure from the Board’s long-standing rule. Member Johnson disagreed, stating that the amount of time between the filing of the charge in Case 08-CA-038581 and the commencement of the hearing, in the absence of any explanation from the General Counsel, was well past the point that the Board should tolerate.
In adopting the judge’s finding that the Respondent unlawfully ceased deducting dues, the Board did not rely on his finding that the checkoff cessation was an unlawful unilateral change to the expired master collective-bargaining agreement under WKYC-TV, Inc., 359 NLRB No. 30 (2012), a decision rendered invalid by the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). Rather, the Board found that the cessation of dues checkoff constituted an unlawful contract modification to a memorandum of understanding that the parties had negotiated that extended the Respondent’s obligation to deduct dues beyond the expiration of the master collective-bargaining agreement. Charges filed by individuals and Local 1982, International Longshoremen’s Association, AFL-CIO. Administrative Law Judge Mark Carissimi issued his decision on November 12, 2013. Chairman Pearce and Members Hirozawa and Johnson participated.
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EDRO Corporation d/b/a Dynawash (01-CA-116211 and 01-CA-116225; 362 NLRB No. 53) Berlin, CT, March 31, 2015.
The Board considered only remedial exceptions, as no party excepted to the administrative law judge’s finding that the Respondent discriminatorily discharged an employee. The Board rejected arguments that it should (1) not order the Respondent to reinstate the discriminatee because a staffing agency supplied him, (2) deny reinstatement and toll backpay as of the date that the Respondent learned of the discriminatee’s criminal history, and (3) provide for the notice to be read aloud to employees. The Board did, however, amend the remedy to allow the Respondent to show in compliance that reinstatement should be denied and backpay tolled as of the date it first saw that the discriminatee intentionally misrepresented his criminal history on the staffing agency’s application forms. Member Hirozawa agreed with leaving the issue to compliance, but would not have passed on whether the discriminatee intentionally misrepresented his criminal history on the forms.
Charges filed by an individual and International Association of Machinists & Aerospace Workers, AFL-CIO. Administrative Law Judge Raymond P. Green issued his decision on September 9, 2014. Members Miscimarra, Hirozawa, and Johnson participated.
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Americold Logistics, LLC (25-RD-108194; 362 NLRB No. 58) Rochelle, IL, March 31, 2015.
The Board’s Decision on Review clarified and made clear that, under Lamons Gasket, 357 NLRB No. 72 (2011), a reasonable period of time for bargaining before the union’s majority status can be challenged following voluntarily recognition is a minimum of 6 months and a maximum of 1 year, measured from the date of the first bargaining meeting between the union and the employer. A Board panel majority consisting of Chairman Pearce and Member Hirozawa therefore found that the Regional Director erred in holding that, as a matter of law, the petition was not barred because it was filed more than 1 year after the recognition date. The Board found no support in Lamons Gasket for the Regional Director’s holding because Lamons Gasket neither stated nor suggested that the recognition bar is measured from the date of recognition; the only date identified in Lamons Gasket for measuring a reasonable period of bargaining is “the parties’ first bargaining session.” As explained in Lamons Gasket, “when a bargaining relationship has been initially established . . .it must be given a reasonable time to work and a fair chance to succeed.” Further, a union can only demonstrate its effectiveness in negotiations once bargaining has actually commenced. The Board stated that this focus furthers the Board’s fundamental statutory interest in the “process and the promotion of an autonomous relationship between the parties.” Applying the multifactor test set forth in Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209 (D.C. Cir. 2002), the Board further found that a reasonable period of time for bargaining had not elapsed when the petition was filed and thus concluded that the petition is barred.
Member Miscimarra dissented, arguing first that the Board’s approach in Dana Corp., 351 NLRB 434 (2007), which was overruled by Lamons Gasket Co., appropriately balanced the employee right to participate in a Board-conducted election against the Board’s interest in fostering stable collective-bargaining relationships. Second, even if a “recognition bar” is applied as prescribed in Lamons Gasket Co., he submitted that the Board should adhere to its pre-Dana case law establishing that the recognition bar starts running when recognition is extended by the employer. Third, he stated that it is incongruous to adopt the expansive interpretation of the recognition bar embraced by the majority. Rather, in his view, limiting the bar period to no more than 1 year from the date of recognition is consistent with the Act and more carefully balances labor relations stability and employee free choice. On the facts of the instant case, regardless of when the clock starts running on the recognition bar or its maximum duration, Member Miscimarra stated that he believed that this case demonstrates that a “reasonable period of bargaining” had elapsed at least when the parties reached and signed their new collective bargaining agreement, which occurred before the petition was filed. Petitioner—an individual. Union involved—Retail, Wholesale and Department Store Union, UFCW, Local 578. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Alternative Community Living, Inc. d/b/a New Passages Behavioral Health and Rehabilitation Services (07-CA-099976; 362 NLRB No. 55) Pontiac, MI, March 31, 2015.
The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing to inform the Union of the basis for its decision to refuse to ratify the tentative contract between the parties, and by unilaterally implementing its final contract offer to the Union at a time when the parties were not at a valid impasse in bargaining. Additionally, the Board affirmed the judge’s finding that the Respondent violated Section 8(a)(1) by maintaining certain rules in its employee handbooks. The Board’s decision includes an amended remedy directing the Respondent to make unit employees whole for any loss of earnings and other benefits. Charge filed by Local 517 M, Service Employees International Union (SEIU). Administrative Law Judge Mark Carissimi issued his decision on July 25, 2014. Chairman Pearce and Members Johnson and McFerran participated.
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Micropower USA Corp. (02-CA-130858, et al.; 362 NLRB No. 63) New York, NY, March 31, 2015.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. Accordingly, the Board found that the Respondent violated Section 8(a)(1) by instructing employees not to discuss their terms and conditions of employment and by calling the police to remove certain employees from its premises. The Board further found that the Respondent violated Section 8(a)(3) by discharging two employees and by refusing to reinstate strikers based on their unconditional offer to return to work, because the employees engaged in union and protected concerted activities, and violated Section 8(a)(5) by refusing to bargain with the Union. The Board ordered the Respondent to make the employees whole, to reinstate them if the Respondent resumes its former business operations, and to bargain with the Union. Charges filed by Professionals at Micropower New York State United Teachers and by two individuals. Chairman Pearce and Members Johnson and McFerran participated.
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CNN America, Inc. and Team Video Services, LLC (05-CA-031828 and 05-CA-033125; 362 NLRB No. 38) Washington, DC, April 2, 2015. Correction to decision issued March 20, 2015. Correction Amended decision.
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Professional Transportation, Inc. (12-CA-101034; 362 NLRB No. 60) Jacksonville, FL, April 2, 2015.
The Board unanimously affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by cancelling seven consecutive bargaining sessions scheduled over a 2-month period and then conditioning further bargaining on the outcome of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). The Board found that the cancellations clearly established an impermissible pattern of dilatory conduct by the Respondent. In addition, a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that the Respondent’s conditional bargaining demand on the outcome of Noel Canning was a belated attempt to challenge the Regional Director’s certification of the Union and was also an unlawful insistence on a permissive subject of bargaining to the point of impasse. Member Miscimarra found it unnecessary to determine whether the Respondent timely raised its potential objection regarding Noel Canning because the Respondent’s bargaining position constituted a take-it-or-leave-it position that precluded any bargaining over the matter at issue. As part of the remedy, the Board ordered the Respondent to adhere to a bargaining schedule in which, upon the Union’s request, bargaining sessions shall be held for a minimum of 24 hours per month, for at least 6 hours per bargaining session, or, in the alternative, on another schedule to which the Union agrees, and to submit written bargaining progress reports every 30 days. Charge filed by the International Brotherhood of Teamsters Local 512. Administrative Law Judge William Nelson Cates issued his decision on October 22, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Robinson Aviation (RVA), Inc. (16-RC-139987) Dallas, TX, March 30, 2015. No exceptions having been filed to the hearing officer’s recommendations that the Intervenor’s objection to an election held December 11, 2014, be overruled, and that the case be remanded to the Regional Director for further processing and the scheduling of a runoff election, the Board remanded the case to the Regional Director for further appropriate action. Petitioner—National Air Traffic Controllers Association, AFL-CIO (NATCA). Intervenor—Professional Air Traffic Controllers Organization, Inc. (PATCO).
Prospect Airport Services, Inc. (04-RC-085852) Philadelphia, PA, March 31, 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. The Regional Director concluded that the Board has jurisdiction over the Employer based on the factual similarity of this matter to recent cases in which the National Mediation Board has declined jurisdiction. Member Johnson would grant review to determine whether the carrier US Airways exercised meaningful control over the Employer’s personnel decisions. He stated that the evidence shows that the Employer’s contract with US Airways gives the carrier the right to require that employees be removed from their account, and that he would evaluate the record evidence regarding whether the Employer terminated individuals following a request from US Airways that the employee be removed from the account. Member Johnson stated that in his view review it is especially important for a thorough consideration of the issues where, as in this case, the Board is attempting to apply another agency’s jurisdictional law rather than its own. Petitioner – United Construction Trades and Industrial Employees Union Local 621. Chairman Pearce and Members Johnson and McFerran participated.
Y.M. & Y.W.H.A. of Williamsburg Inc., d/b/a Williamsburg Y Head Start (29-RD-141177) Brooklyn, NY, April 1, 2015. Order denying the Petitioner’s Request for Review as not raising substantial issues regarding whether the Regional Director erred by dismissing the decertification petition and withdrawing the Notice of Hearing on the grounds that the Petitioner failed to demonstrate that the Employer is no longer a member of the multi-employer bargaining unit. Petitioner—an Individual. Union involved—AFSCME-District Council 1707, Local 95. Chairman Pearce and Members Miscimarra and McFerran participated.
Chinese Community Concerns, Corp.; Chinatown Head Start (02-RD-140471) New York, NY, April 1, 2015. Order denying the Petitioner’s Request for Review as not raising substantial issues regarding whether the Regional Director erred by dismissing the decertification petition on the grounds that there is no evidence that the Employer has legally withdrawn from the multi-employer bargaining unit, and that the petitioned-for unit is not coextensive with the existing unit. Petitioner—an Individual. Union involved—Local 95, District Council 1707, AFSCME, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
ABM Onsite Services-West, Inc. (19-RC-144377) Portland, OR, April 2, 2015. A Board panel majority consisting of Chairman Pearce and Member McFerran denied the Employer’s Request for Review as not raising substantial issues regarding whether the Regional Director properly asserted jurisdiction over the Employer, which operates the automated baggage handling system at Portland International Airport. Member Miscimarra dissented. He would grant review and refer the case to the National Mediation Board for its opinion of jurisdiction, based in part on the involvement of a consortium of air carriers in the Employer’s personnel decision and operations. Petitioner—International Association of Machinists & Aerospace Workers, District Lodge W24, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Triumph Construction Corp., Inc. (29-RC-126206) New York, NY, April 2, 2015. Order denying the Petitioner’s Request for Review of the Regional Director’s Decision and Order, on the ground that it raises no substantial issues warranting review. Petitioner—Local 1010, Highway Road and Street Construction Laborers Union, Laborers International Union of North America, AFL-CIO. Members Miscimarra, Hirozawa, and Johnson participated.
NCR Corporation (01-RC-130289) Boston, MA, April 2, 2015. The Board adopted the Regional Director’s recommendation to overrule the Employer’s objection alleging that seven eligible voters were disenfranchised when the Region excluded from the tally their ballots that were received after the ballot count occurred. Accordingly, the Board certified Petitioner International Brotherhood of Electrical Workers Local 2222 as the exclusive collective-bargaining representative of the employees in the appropriate unit. Chairman Pearce and Members Hirozawa and McFerran participated.
Aramark Educational Services, LLC at Morehead State University (09-RC-142590) Morehead, KY, April 3, 2015. No exceptions having been filed to the hearing officer’s recommendation to overrule the Petitioner’s objections to an election held January 21, 2015, the Board certified that a majority of the ballots had not been cast for the Petitioner, Service Employees International Union, National Conference of Firemen & Oilers District of 32BJ and that it is not the exclusive collective-bargaining representative of the bargaining unit employees.
C Cases
Weyerhaeuser NR Company (19-CA-033069 and 19-CA-033095) Longview, WA, March 30, 2015. The Board granted the General Counsel’s motion to remand the cases to the Regional Director for further appropriate action.
Crozer Chester Medical Center (04-CA-130177, et al.) Upland, PA, April 2, 2015. The Board denied the Respondent’s request for special permission to appeal the administrative law judge’s ruling not to admit the Respondent’s video evidence in its entirety or testimonial evidence to describe the rejected portion of the video. The Board found that the judge did not abuse his discretion by admitting the portion of the video that pertained to the complaint allegation and rejecting the remainder, which depicted other events on the same day and which the Respondent argued were necessary to provide context for the employee’s union activity and the Respondent’s alleged unlawful conduct. Charge filed by Pennsylvania Association of Staff Nurses and Allied Professionals. Chairman Pearce and Members Johnson and McFerran participated.
Milveen Environmental Services (22-CA-096873 and 22-CA-105863) Bronx, NY, April 3, 2015. No exceptions having been filed to the February 19, 2015 decision of Administrative Law Judge Steven Fish finding that the Respondent had 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 judge’s recommended Order. Charges filed by Local 32BJ, Service Employees International Union.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Sutter Central Valley Hospitals, d/b/a Memorial Medical Center (32-CA-098873 and 32-RC-128843; JD(SF)-11-15) Modesto, CA. Administrative Law Judge Ariel L. Sotolongo issued his decision on March 31, 2015. Charge and Petition filed by California Nurses Association/National Nurses United (CAN/NNU).
S. Freedman & Sons, Inc. (05-CA-121221, et al.; JD-21-15) Landover, MD. Administrative Law Judge Michael A. Rosas issued his decision on March 31, 2015. Charges filed by Drivers, Chauffeurs and Helpers Local Union No. 639, a/w International Brotherhood of Teamsters.
Solarcity Corporation (32-CA-128085; JD(NY)-13-15) San Mateo, CA. Administrative Law Judge Kenneth W. Chu issued his decision on March 31, 2015. Charge filed by an individual.
Dish Network, LLC (27-CA-131084; JD(ATL)-06-15) Englewood, CO. Erratum to the decision of Administrative Law Judge Robert A. Ringler issued on March 26, 2015. Charge filed by an individual. Erratum Amended Decision.
Chipotle Services, LLC, a wholly owned subsidiary of Chipotle Mexican Grill, Inc. (14-CA-128253; JD-19-15) St. Louis, MO. Administrative Law Judge Melissa M. Olivero issued her decision on April 2, 2015. Charge filed by Mid-South Organizing Committee.
Twenty-Seven Day Elections (Or Less) Likely Under NLRB’s New Quickie Election Rules
Tuesday, April 14, 2015
The NLRB’s “quickie election” rule goes into effect today. And while the National Labor Relations Board (NLRB) has avoided a clearly mandated time frame for processing union representation petitions, employers can expect elections to be held just 27-days (or less) after petition filing under the NLRB’s new representation election rule.
In speaking to interested stakeholders during an informational training session held on April 7th, Peter Sung Ohr (“Ohr”), Regional Director of the NLRB’s Region 13, described a timeline whereby union petitions will be processed and served electronically on employers the same or next day after filing. Pre-election hearings will be scheduled eight days later, but absent significant questions concerning representation or jurisdiction, issues of individual employee eligibility will not be litigated or resolved pre-election. Assuming consecutive-day hearings, elimination of rights to file post-hearing briefs, and a three-day period for the receipt of hearing transcripts, it is likely that Regional Director hearing decisions and directions of election will issue within four-days of scheduled hearing dates.
The NLRB’s new election rule directs Regional Directors to schedule elections for the “earliest date practicable.” While an employer has two-days post-decision to provide the petitioning union a final voter eligibility list (containing employee names, work locations, shifts, job classifications, available home addresses, personal email address and home/personal cellphone numbers), the Regional Director could order an election held a few days afterwards, assuming the union is willing to waive a 10-day voter list review period.
The Board’s new election procedures are expected to shorten the average election period in contested cases from 42- to 27-days, with unions driving election timelines in individual cases. The NLRB will start applying its new election procedures to all petitions filed on and after April 14th. New representation case forms are now available on the NLRB’s website. Noncompliant employers risk waiver of rights to challenge petitioned-for bargaining units and overturned elections under the NLRB’s new election rule.