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Summary of NLRB Decisions for Week of November 23-27, 2015

Today’s Labor Updates:

Will Unions Force Employers to Recognize Card Checks?

Steelworkers’ union may cut strike pay for 2,200 locked-out workers

Summary of NLRB Decisions for Week of November 23-27, 2015


Will Unions Force Employers to Recognize Card Checks?

Submitted by Carl Horowitz on Wed, 12/02/2015 – 16:27

“Card Check:  The Sequel” has arrived.  No, it’s not a movie.  It’s a congressional bill.  And labor unions are counting on a happy ending this time.  On October 6, Sen. Bernie Sanders, I-Vt., and Rep. Mark Pocan, D-Wisc., unveiled the Workplace Democracy Act (S.2142, H.R. 3690).  The measure would force nonunion private-sector employers to recognize a union as a bargaining agent if it obtains signed pledge cards from over half of all potentially affected workers.  This organizing tactic, known as a “card check,” is legal.  And unions often use it as a prelude to, or a substitute for, a secret ballot representation election.  The bill’s name is misleading.  It’s no more about democracy than its almost identical forerunner, the Employee Free Choice Act, was about freedom of choice.  And its economic effects are not likely to be salutary.

Union Corruption Update covered this issue extensively in 2007 and 2009, when “card check” were the two biggest words in the world of labor policymaking.  In each of those years, Congress was close to delivering to labor officials the Employee Free Choice Act (EFCA).  If ever a case could be made for subjecting federal legislation to Truth in Advertising laws, this was it.  Originally sponsored by Sen. Ted Kennedy, D-Mass., and Rep. George Miller, D-Calif., EFCA would have forced a private-sector employer targeted by a union in an organizing campaign to recognize that union as the sole bargaining representative if organizers convinced more than 50 percent of the workers to sign cards indicating a desire to join.  It also would have forced employers into quick negotiations following initial certification and forced them into mediation in the event collective bargaining yielded no agreement.  EFCA had extensive support in the Democratic-majority House of Representatives – it actually passed the full House in March 2007 by a 241-185 margin – but each time faltered in the face of an imminent Republican-led Senate filibuster.

Card check campaigns are legal under the National Labor Relations Act.  And unions have found them useful in organizing nonunion work sites.  For one thing, a card check that snags a commitment to join from at least 30 percent of workers triggers a National Labor Relations Board-supervised secret ballot election.  Moreover, unions often prefer to go well beyond that point as a show of strength.  If a card check produces signatures from a large majority of workers – typically around 75 percent – it’s a sure sign the union can win an election.  In such cases, the employer may decide to accept the union as a bargaining agent rather than deal with the irritants that inevitably accompany the election process.  A 1999 study by the AFL-CIO’s George Meany Center for Labor Studies, after examining the results of more than 100 card check campaigns, concluded that in nearly 80 percent of all cases the union won sole collective bargaining agent status.  The success rate in standard secret ballot elections, by contrast, was slightly under 50 percent.  While the latter figure at times has been around the 60 percent mark, card checks remain a more effective method of winning representation.  Union organizers know that each signature may function as a vote for representation.

Though unions have a potent organizing tool in the card check, they are frustrated.  Under current law, employers are not obligated to recognize the results of a card check, however successful.  Legislation that unions and their allies in Congress have been pushing these last several years would change that.  Their goal is to force employers into recognizing the results of card checks that generate pledges to join from a majority of affected workers.  This provision was at the heart of the Employee Free Choice Act several years ago; it is at the heart of the Workplace Democracy Act today.  The Sanders-Pocan bill is nothing more than old wine poured into a new bottle, right down to its disingenuous language.  The legislation is not about “democracy” any more than it is about “free choice.”  It is about union institution-building, so that potentially non-joining workers will join.  Unions see mandatory card check recognition as a way to restore clout.  By forcing a nonunion employer to recognize a card-check majority as a de facto union election victory, it would tell that employer it no longer has any right to remain nonunion.  Unions now represent less than 7 percent of the private-sector work force in the U.S., way down from over 30 percent back during the late Fifties and early Sixties.  Their leaders want to get that figure back to something resembling those halcyon days.

Supporters in Congress, realizing that unions are not terribly popular with the general public, promote forced card check recognition as an affirmation of liberty, fair play, democracy and other all-American virtues.  In their morality play of economic decline, employers are the villains and unions are the unsung heroes.  The driving force behind the Workplace Democracy Act, Vermont Senator Bernie Sanders, now a Democratic presidential candidate, justifies his bill as protecting the “millions of Americans who want to join unions and are unable to do so because of the coercive and often illegal behavior of their employers.”  The bill would:

Make it easier for workers to form unions through a majority sign-up (i.e., card check) process.  This section would allow the National Labor Relations Board (NLRB) to certify a union as the collective bargaining representative if a majority of eligible workers sign valid authorization cards and the NLRB verifies that majority.  Workers will get to elect which process to use to form unions, rather than allowing employers to dictate the course of action.

And should a union win recognition this way, the bill would:

Ensure companies can’t prevent a union from forming by denying a first contract.  This section would require an employer to begin negotiating within 10 days after certification.  If no agreement is reached after 90 days of negotiation, either party can request compulsory mediation.  If no first contract is reached after 30 more days of mediation, the parties would submit the remaining issues to binding arbitration.

The summary of the Sanders-Pocan bill, couched in the language of radical populism, views unions as guarantors of prosperity:

Today, corporate profits are at an all-time high, while wages as a percentage of the economy are near an all-time low.  The middle class is disappearing; nearly 47 million Americans are living in poverty; and the gap between the very rich and everyone else is growing wider and wider.

There are many reasons for the growing inequality in our economy, but perhaps the most significant reason for the disappearing middle class is that the rights of workers to join together and bargain for better wages, benefits, and working conditions have been severely undermined.

In this narrative, the American middle class is collapsing, and the best way to reverse this trend is to grant unions new organizing and bargaining powers.  The reality is far different.  Forcing majority card checks and contract arbitration upon reluctant employers – and, by extension, workers who prefer not to sign – is a bad idea based on flawed premises and misleading facts.

First, the National Labor Relations Act of 1935 (i.e., the Wagner Act) from the start has safeguarded the basic right of private-sector workers to form or join a union.  Under NLRA, it always has been illegal for employers to interfere with these rights.  Court rulings repeatedly have affirmed this principle.  The tools for enforcement are firmly in place.  The Workplace Democracy Act would not restore worker rights that were never taken away in the first place.  What it would do is:  1) give unions the ability to expand their turf; and 2) give the Federal Mediation and Conciliation Service (FMCS), an agency created by the Taft-Hartley Act of 1947, unprecedented and arguably unconstitutional authority to create union-favorable contracts at workplaces across the nation.

Second, the empirical evidence that unions muster to demonstrate systematic denial of workers rights doesn’t hold up.  Labor officials for several years have been citing one study in particular, sponsored by a Washington, D.C.-based, union-funded nonprofit group, American Rights at Work, concluding that every 23 minutes an employee somewhere in this country is fired or otherwise punished for attempting to organize or join a union.  Yet this report, based on NLRB data, leaves a lot more out than it includes.  It assumes that the 31,358 workers who received back pay in 2005 were victims of illegal employer discrimination.  In point of fact, back pay claims usually occur when a worker, often himself a union member, sues an employer for failing to negotiate in good faith.  Such complaints may invite numerous others at that place of employment.  Such complaints may be well-founded, but the larger point is that they usually have nothing to do with employer suppression of union organizing.

Third, the card check process in practice can be highly coercive.  Like obnoxious telemarketers looking to close a sale, union organizers often go the extra mile to convince skeptical workers to sign a membership pledge card.  They are not above paying surprise visits to an employee’s home or known tavern hangout if they cannot acquire a signature at the workplace.  And the union style of persuasion is not of the “pretty please” school.  A little over a decade ago, the Washington, D.C.-based HR Policy Association concluded that union card check drives have “resulted in deceptions, coercion, and other abuses.”  In one NLRB case, HCF Inc. d/b/a Shawnee Manor, an employee testified that a co-worker warned her “the union would come and get her children and it would slash her tires” if she didn’t sign a card.  Making mandatory the recognition of a union in the event of a majority card check would give organizers all the more incentive to apply high-pressure and possibly criminal tactics.

Fourth, far from spurring job creation, mandatory card check and arbitration would inhibit it.  A study released in March 2009, authored by economist Anne Layne-Farrar, “An Empirical Assessment of the Employee Free Choice Act:  The Economic Implications,” concluded:  “Passing EFCA would likely increase the U.S. unemployment rate and decrease U.S. job creation substantially.”  Layne-Farrar projected that a three percentage point increase in union membership attributable to card checks and mandatory arbitration would result the following year in a rise in the unemployment rate of 1 percent and a drop in new jobs of 1.5 million.  As the Workplace Democracy Act amounts to a carbon copy of EFCA, why would anyone expect the consequences to be that different?

No committee action yet has been taken.  And the short-run prospects for passage aren’t good.  Unions and their backers in Congress failed in 2007 and 2009 to enact this organizing boon; it’s not likely they can pull it off given current Republican majorities in the House and Senate.  But majorities can dissipate.  And Hillary Clinton, the Democratic presidential frontrunner, speaks virtually the same language as Bernie Sanders on domestic issues.  It is inconceivable she would oppose forced card check legislation, especially in the wake of last month’s endorsement of her by the Service Employees International Union.  Executive action under the current administration can’t be ruled out either.  President Obama, always impatient with legislative process, may circumvent the will of Congress in a manner not unlike his grant of “temporary” amnesty for up to two million illegal immigrants under cover of Deferred Action for Childhood Arrivals (DACA).  Whatever the outcome, the salient fact remains:  the Workplace Democracy Act is an attempt by unions to gain members, money and power.  And if they can’t win this round, they will be back for another.


Steelworkers’ union may cut strike pay for 2,200 locked-out workers

By Evan Winters
11 November 2015

Two locked-out Allegheny Technologies Inc. (ATI) workers independently report that the United Steelworkers union (USW) is considering a plan to cut their already grossly inadequate strike pay, supposedly to prepare for a “real struggle” at US Steel and ArcelorMittal.

The USW is deliberately isolating and betraying the 2,200 ATI specialty steelworkers, who have been locked out for more than 12 weeks on lockout. Far from shifting resources to defend the 30,000 steelworkers at ArcelorMittal and US Steel, the USW wants to starve the ATI workers into submission and use them as an example of what will happen to any section of workers who resist the steel bosses and the USW.

One ATI Vandergrift worker told the WSWS, “We ran into a couple of international representatives. They were talking about our strike and defense fund, and they were saying they wanted to lower that to save for US Steel and ArcelorMittal. That made me really angry. I’ve paid the USW International for 21 years, and I’ve never been paid a dime out for anything. Why are they worried about this? Is there not enough money there? If not, why?”

Another Vandergrift worker, interviewed separately, confirmed this. “I heard that too, through word of mouth.” He went on to explain that the current strike pay is inadequate. “Right now we only get $100 a week. That covers your grocery bill if you’re lucky. We’re told we’re allotted $200, and we only get $100.”

The USW is sitting on a $350 million international strike and defense fund. It is paying half the weekly allotment, with locals supposedly holding the other $100 for “emergencies.” At present, workers are relying on unemployment checks of about $500 a week. Both unemployment and strike pay did not become available until nearly one month into the lockout. Unemployment benefits are scheduled to expire in mid-February. As temperatures drop and the holidays approach, workers will face increasing financial hardships.

ATI has threatened to terminate workers’ health care on November 30. Alternative health care options are either exorbitantly expensive, or of inferior quality. Workers report that COBRA plans, which provide coverage comparable to present levels, cost as much as $1,800 per month for a family, almost an entire month’s unemployment check. The USW offers a low-cost “major medical” plan that covers emergency care, but little else, leaving workers to pay out of pocket for medication and routine medical care.

Since ATI announced the lockout on August 14, it has intransigently stuck to the demands contained in its “last, best, and final offer.” This includes sharp increases in out-of-pocket health care costs, amounting to thousands or tens or thousands of dollars per year per family. New hires face steep cuts in benefits, including the elimination of defined-benefit pensions. Proposed scheduling and contract rules allow up to 40 percent of jobs to be contracted out, while remaining full-time workers face both 12-hour shifts with no overtime pay, and no guarantee of at least eight hours of work per workday.

The USW has worked systematically to isolate locked-out ATI workers. Even though the ATI is closely coordinating its attacks with the major steel producers, the USW has ordered US Steel and ArcelorMittal workers to labor without contracts since their agreements expired September 1.

The USW is isolating ATI workers, as well as 450 workers at Sherwin Alumina in Gregory, Texas, who have been locked out for more than a year, in order to prevent any unified struggle against the steel companies. Such a struggle would disrupt the lucrative relations between the USW and the steel companies and raise the possibility of linking up 140,000 autoworkers who are also involved in a battle against stagnating wages and attacks on their health care and pension benefits.

The USW, like the United Auto Workers (UAW), is closely allied with the Obama administration, which has made the slashing of wages and the shifting of health care and pension costs onto the backs of workers the centerpiece of its economic policy.

The USW’s strategy of waiting “one day longer” has proven to be a disaster for workers, giving the companies free rein to build up product stockpiles or lock workers out at their convenience.

The day ATI initiated the lockout, it brought in strikebreaking contractor Strom Engineering and a small army of security guards. ATI reports limited production at its facilities, but continues its efforts to operate with a scab workforce. Despite posting a $150 million third-quarter loss, $50 million of which ATI attributed to the lockout, ATI remains intransigent in negotiations. The company sees these expenses as a down payment on its aim to establish a cheaper, more exploitable labor force.

The USW is attempting to prove to the companies that relying on the USW is the best way to lower labor costs. With every action, from virulent economic nationalism and trade lawsuits against imported steel to betrayed labor struggles, the USW aims to ensure that US companies remain “competitive” with their international rivals.

The WSWS spoke with locked-out workers from the ATI Vandergrift plant in western Pennsylvania. Carl spoke of the toll the lockout has taken: “The morale of the guys seems to be getting worse. The workers are getting more uptight, more stressed out. I can’t foresee what’s going to happen. They’re tired of dealing with ATI.

“There’s nothing going on anywhere. We have CAT [communication and action] teams that are supposed to report back from the union to the membership, but there’s nothing to report.

“The biggest fear is we’ve been out all this time. We don’t want the International to turn around and hand us the same proposal and say we should settle with it.”

Carl noted the changed role of the unions: “The unions have changed. The USW and the UAW, things have changed from the way they were in the past. A lot of it is globalization.

“They do have a direct interest in working with the company. ICD [Institute for Career Development], that’s directly funded by ATI for the union. The International ICD is based in Gary, Indiana, with ATI management people who were in charge of running it. It’s still in line with the company.”

Speaking about the autoworkers’ struggle, Carl continued, “My brother is at a Chrysler plant in Indiana. The one thing that bothered him more than anything was that the new hires never reach the wage rate that their grandfathers did.”

Charles, with 41 years, expressed the frustration workers are feeling. “Our unemployment is good until the end of February. There may be extensions, we don’t know. We have some insurance through the union but it that’s not good enough. We’re frustrated. We’re all ready for this to be over.”

Charles continued: “They brought replacement workers in. They’ve got management working 12-hour shifts. This company was always based on safety first. When Allegheny Ludlum became ATI, it seems like a new group of people came in. It’s not the same company it used to be.”

After a WSWS reporter pointed out that the USW was isolating and betraying ATI workers as a warning to US Steel and ArcelorMittal workers, Charles remarked, “We always felt like US Steel was a few weeks behind us. We always thought that US Steel has got their eyes on ATI’s contract. Now that you’ve said that, it’s probably both sides [the USW and the companies] making an example of us. We hope that us staying out here has an effect.”

Keith has worked nine years as a splitter at ATI’s Bagdad mill. He spoke to the WSWS while picketing at ATI’s mill in Vandergrift, Pennsylvania. “We are getting a lot of support from the community. I expect that ATI is waiting for the medical and unemployment to run out, and then people will be hurting.

“I have two kids, and my wife has another. We are lucky that the state is paying their health insurance. There are other guys who will have to go on CORBA, which is very expensive. I have little kids. Christmas is a big thing. I saw this coming, so I saved up, and I am very lucky that my parents can help as well.

“There are bosses here, they come rolling in with their windows down and music playing, like they don’t have a care. They are just trying to rub this in our faces. The whole town is hurting. There are a lot of business that depend upon our paychecks.

“I worked at the Bagdad mill, they did not have a lot of customers. This is already not a thriving time for our steel, and if the quality goes down, those customers are going to go elsewhere. How long will it be before those customers just walk away?

“I think behind this is corporate greed. They want to destroy middle class jobs. Look at the minimum wage. You can’t live on that. There are just a few good jobs anymore, and they want to destroy that. If you go online, you are lucky if you find a job paying $15 an hour and insurance. Pensions are a thing of the past. It is the whole system.”


Summary of NLRB Decisions for Week of November 23-27, 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 (link sends e-mail) or 202‑273‑1991.

Summarized Board Decisions

Professional Janitorial Service of Houston, Inc.  (16-CA-112850; 363 NLRB No. 35)  Houston, TX, November 24, 2015.

Applying Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in part, Murphy Oil USA, Inc., v. NLRB, No. 14-60800 (5th Cir. Oct. 26, 2015), the Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) of the Act by maintaining a Dispute Resolution and Arbitration Policy (Arbitration Policy) that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial.  The Board also affirmed the judge’s finding that a confidentiality provision in the Arbitration Policy independently violated Section 8(a)(1) by prohibiting employees from discussing terms and conditions of employment.  Finally, the Board found that employees would reasonably construe the Arbitration Policy to limit or restrict their access to the Board and its processes and that the Respondent’s maintenance of the policy violated Section 8(a)(1) for this reason as well, reversing the judge’s dismissal of that allegation.

Member Miscimarra dissented from the finding that the Arbitration Policy violated the Act because it required employees to waive their rights to pursue class or collective actions regarding non-NLRA claims, for the reasons explained in his dissenting opinion in Murphy Oil USA, Inc.

Charge filed by Service Employees International Union.  Administrative Law Judge Joel P. Biblowitz issued his decision on June 16, 2014.  Chairman Pearce and Members Miscimarra and McFerran participated.


Laborers’ International Union of North America Local 110 (U.S. Silica Company)  (14-CD-153807; 363 NLRB No. 42)  Pacific, MO, November 24, 2015.

In this jurisdictional dispute arising under Section 10(k) of the Act, the Board found that unions Laborers Local 110 and Operating Engineers Local 513 both claimed the work of Track Mobile operator.  Specifically, the Board rejected the Operating Engineers’ argument that it disclaimed the work at issue, finding that the Operating Engineers specifically sought reassignment of the work by filing a grievance, sought to apply its collective-bargaining agreement to employees performing the Track Mobile work, which contained a union security clause requiring membership in Operating Engineers, and only expressly disclaimed the work after the hearing closed in the instant case.  The Board further found reasonable cause to believe that Section 8(b)(4)(D) had been violated by Laborers’ threat to picket if the work was reassigned and that there is no voluntary method for adjusting the dispute. The Board then evaluated the dispute under its established 10(k) factors and awarded the disputed work to employees represented by the Laborers based on the factors of employer preference and practice, relative skills and training, and economy and efficiency of operations.

Charges filed by U.S. Silica Company.  Chairman Pearce and Members Hirozawa and McFerran participated.


Prime Healthcare Centinela, LLC d/b/a Centinela Hospital Medical Center  (31-CA-030055, et al.; 363 NLRB No. 44)  Inglewood, CA, November 24, 2015.

The Board affirmed the administrative law judge’s findings that the Respondent unlawfully failed to provide information requested by the Union.  A Board panel majority consisting of Chairman Pearce and Member Hirozawa found that much of the information was presumptively relevant, and even assuming it was not, the Union established the relevance.  Member Miscimarra found that the information was not presumptively relevant, but he agreed that the Union established the relevance.

The Board also affirmed the judge’s finding that the Respondent unlawfully implemented changes to its healthcare plan in the absence of a valid impasse.  In finding no valid impasse, the panel members expressed differing rationales.  Chairman Pearce and Member Hirozawa relied on the totality of the circumstances and the failure to provide information.  Member Miscimarra relied only on the former.  All three Members found it unnecessary to decide whether the Respondent engaged in overall bad-faith bargaining.

A panel majority consisting of Chairman Pearce and Member Hirozawa also found that the Respondent unlawfully announced the implementation of its new healthcare plan and unlawfully conditioned bargaining on the acceptance of its last, best, and final offer.  Member Miscimarra, dissenting, would not find those additional violations.

Charge filed by SEIU—United Healthcare Workers-West.  Administrative Law Judge Gerald M. Etchingham issued his decision on April 12, 2013.  Chairman Pearce and Members Miscimarra and Hirozawa participated.


Bristol Farms  (21-CA-103030; 363 NLRB No. 45)  Los Angeles, CA, November 25, 2015.

In this Murphy Oil/D. R. Horton case, a Board panel majority consisting of Chairman Pearce and Member McFerran denied the Respondent’s motion seeking a Board Order approving its proposed unilateral Settlement Agreement, Notice, and revised Arbitration Agreement because approval would not effectuate the purposes of the Act.  The majority rejected the Respondent’s argument that its revised Arbitration Agreement did not fall within the proscriptions of Murphy Oil and D.R. Horton because it was truly “optional.”  In so doing, the majority cited On Assignment Staffing Services, 62 NLRB No. 189 (2015), where, deciding an issue left open by D. R. Horton, the Board held that an arbitration agreement that precludes collective action in all forums is unlawful even if entered into voluntarily, because it requires employees to prospectively waive their Section 7 right to engage in concerted activity.  The majority disagreed with the dissent’s view that Section 9(a) of the Act requires the Board to permit individual employees to prospectively waive their Section 7 right to engage in concerted legal activity.  Accordingly, the majority set a due date for the filing of exceptions to the Administrative Law Judge’s decision issued in this case, which found that the Respondent’s maintenance and enforcement of the Arbitration Agreement violated Section 8(a)(1).

Member Miscimarra, dissenting, would have granted the Respondent’s motion.  Adhering to his partial dissent in Murphy Oil, Member Miscimarra reiterated his view that Section 8(a)(1) does not vest the Board with authority to dictate any particular procedures pertaining to the litigation of non-NLRA claims, nor does the Act entitle employees to class-type treatment of such claims.  Moreover, in his view, not only does the Board lack jurisdiction over procedural issues pertaining to non-NLRA claims, but several other considerations made it particularly inappropriate for the Board to declare unlawful the Respondent’s revised Arbitration Agreement in this case.  He stated that, even if employees were deemed to have an NLRA-protected right to insist on the class-type treatment of non-NLRA claims, the Respondent’s revised Agreement is lawful because (1) Section 7 gives every employee the right “to refrain” from NLRA-protected activity; (2) Section 9(a) gives every employee the right “at any time” to adjust his or her non-NLRA disputes on an individual basis and thus the right to agree to waive class-type dispute-adjustment procedures; and (3) the Respondent’s revised Agreement has no effect unless an employee voluntarily chooses to sign it.

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


M.D. Miller Trucking & Topsoil, Inc.  (13-CA-104166; 363 NLRB No. 49)  Rockdale, IL, November 25, 2015

The Board granted in part and denied in part the General Counsel’s motion for summary judgment on a compliance specification issued by the Regional Director.  The Board granted summary judgment with respect to the backpay period, gross backpay calculations, pension fund contributions, and excess tax because it found that the Respondent’s answer to these allegations did not meet the specificity requirements of the Board’s Rules and Regulations, and did not adequately explain its failure to do so. The Board denied summary judgment with respect to interim earnings and expenses because it found that the Respondent’s general denial was sufficient to warrant a hearing. The Board remanded the case to the Regional Director for the purpose of arranging a hearing limited to the issues of interim earnings and expenses.

Charge filed by General Teamsters Local Union No. 179, affiliated with International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and McFerran participated.


Con-way Freight Inc.  (16-CA-159605; 363 NLR No. 53)  Laredo, TX, November 27, 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.  In its answer to the complaint, the Respondent admitted the filing of the charge, but denied service of the charge.  The Board noted that the complaint was timely served and that the Respondent filed a timely answer to the complaint.  Thus, the Board found that even assuming the Respondent was not properly served with a copy of the charge, the Respondent’s denial of service did not create a genuine issue of material fact warranting a hearing or constitute grounds for dismissal of the complaint.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union.

Charge filed by Teamsters Local 657, affiliated with International Brotherhood of Teamsters.  Chairman Pearce and Members Hirozawa and McFerran participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Lift Truck Sales and Services, Inc.  (14-RD-137434)  Kansas City, MO, November 23, 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 basis that there were pending Section 8(a)(5) charges alleging bad faith bargaining and unilateral changes in wages.  Petitioner—an individual.  Union involved—Building Materials, Excavating, Heavy Haulers, Drivers, Warehousemen and Helpers, Local Union No. 541, affiliated with the International Brotherhood of Teamsters.  Chairman Pearce and Members Miscimarra and McFerran participated.

Quality Investigation, Inc. d/b/a QI Security  (05-RC-144753)  Washington, DC, November 26, 2015.  A unanimous Board panel consisting of Chairman Pearce and Members Hirozawa and McFerran adopted the Regional Director’s findings and recommendations to overrule Intervenor United Security and Police Officers of America (USPOA)’s objections to an election, and certified the Petitioner, National Alliance of Law Enforcement Officers (NALEO), as the exclusive collective-bargaining representative of the employees in the appropriate unit.  The Board found that consideration of USPOA’s purported new evidence in support of one of its objections was not warranted, as USPOA did not dispute the Regional Director’s finding that it previously failed to submit any evidence in support of this objection, and it did not provide any explanation for the untimely submission of this evidence.  In the absence of exceptions, the Board adopted pro forma the Regional Director’s decision to overrule USPOA’s remaining two objections.  Petitioner—National Alliance of Law Enforcement Officers (NALEO).  Intervenor—International Union, Security, Police and Fire Professionals of America (SPFPA).  Intervenor—United Security and Police Officers of America (USPOA).

C Cases

La Jomac Group, Inc., Jag Premier, Inc., Data Processing Specialists, Inc., Pangea Industries, LLC, Barrio Street Realty, LLC, and Pangea Enterprises, Inc.  (15-CA-137333 and 15-CA-137337)  Huoma, Morgan City, New Orleans, and Lockport, LA; and Brownsville, TX, November 23, 2015.  The Board an individual’s petition to revoke an investigative subpoena ad testificandum.  The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  Further, the Board held that the subpoenaed individual failed to establish any other legal basis for revoking the subpoena.  The Board also rejected the individual’s argument that the subpoena should be revoked because the unfair labor practice charge is barred by Section 10(b) of the Act, on the basis that issues regarding Section 10(b) are generally not considered in an investigative subpoena context.   Member Miscimarra agreed that the petition to revoke should be denied because the subpoenaed individual had failed to raise any meritorious grounds for revocation.  He further stated that, in his view, the instant subpoena ad testificandum, which only identifies the case name and number, is deficient because it fails to state with sufficient particularity the evidence being sought.  He concurred, however, in the denial of the petition to revoke in the absence of any objection to the subpoena on this basis.  Charge filed by an individual.  Members Miscimarra, Hirozawa, and McFerran participated.

International Alliance of Theatrical Stage Employees Local Union No. 363 (Total Crew Services, Inc.)  (32-CB-154562 and 32-CB-155304)  Reno, NV, November 23, 2015.  Order denying the Union’s petitions to revoke an investigative subpoena duces tecum and two investigative subpoenas ad testificandum.  The Board found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Union failed to establish any other legal basis for revoking the subpoena. Charges filed by two individuals.  Members Miscimarra, Hirozawa, and McFerran participated.

United States Postal Service  (28-CA-143749 and 28-CA-147765)  Albuquerque and Santa Fe, NM, November 24, 2015.  No exceptions having been filed to the October 9, 2015 decision of Administrative Law Judge Mary Miller Cracraft finding that Respondent had engaged in certain unfair labor practices, the Board adopted her findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order.

Preyde One, LLC  (07-CA-154061)  Lansing, MI, November 24, 2015.  Order denying the Employer’s petition to revoke subpoenas duces tecum and ad testificandum.  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 revocation.  Charge filed by Michigan Regional Council of Carpenters.  Members Miscimarra, Hirozawa and McFerran participated.


Appellate Court Decisions

Mike-Sell’s Potato Chip Co., Board Case No. 09-CA-072637 (reported at 361 NLRB No. 23) (D.C. Cir. decided November 24, 2015)

In an unpublished per curiam judgment, the court enforced the Board’s order in full.

This snack food manufacturer and distributor employs a unit of maintenance and production employees at its Dayton, Ohio facility who have been represented by the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 57, AFL-CIO-CLC, for five decades under a series of collective-bargaining agreements.  In late 2011, the employer decided that increases in health insurance deductibles and decreases in reimbursement rates and health savings account contributions were needed to help save costs.  It sent the union a reopener letter before the time period specified for such reopeners under the current contract, and met with the union over the proposed changes but implemented them without the union’s consent.  On those facts, the Board found, in agreement with the administrative law judge, that the employer violated Section 8(a)(5) and (1) of the Act by implementing changes to the health care benefits during the term of the contract without obtaining the union’s consent and without following the procedures set forth in the contractual reopening clause.

The employer petitioned for review in the D.C. Circuit and the Board cross-applied for enforcement.  After briefing, but without holding oral argument, the court issued its opinion summarily dispensing with the employer’s factual assertion that the union had agreed to the changes, as well as its various challenges to the judge’s credibility determinations.

The court’s per curiam opinion is here


Administrative Law Judge Decisions

Diamond Trucking, Inc.  (25-CA-144424; JD-65-15)  Peru, IN.  Administrative Law Judge Susan A. Flynn issued her decision on November 24, 2015.   Charge filed by Teamsters Joint Council No. 69, a/w International Brotherhood of Teamsters.

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