Today’s Labor Updates:
Judge Issues Nationwide Injunction in DOL Overtime Case
2nd Circuit says NLRB misapplied ‘micro union’ test
Summary of NLRB Decisions for Week of November 7 – 10, 2016
HAPPY THANKSGIVING TO ALL!!!!!!
Judge Issues Nationwide Injunction in DOL Overtime Case
On November 22, 2016, a Texas federal judge issued a nationwide injunction blocking the Department of Labor (DOL) from implementing its new overtime Final Rule. The injunction comes just nine days before the Final Rule was scheduled to take effect on December 1, 2016. As a result of the injunction, any effective date for the DOL’s Final Rule is yet to be determined.
For more details, view the briefing ►
Westlaw News | Mon Nov 21, 2016 | 2:01pm EST
2nd Circuit says NLRB misapplied ‘micro union’ test
A U.S. appeals court on Monday became the latest to approve the National Labor Relations Board’s test for certifying bargaining units that include only certain groups of workers, but said the agency erred in applying it to a so-called micro union of winery employees.
A unanimous three-judge panel of the 2nd U.S. Circuit Court of Appeals agreed with Constellation Brands U.S. Operations Inc, represented by Jones Day, that the NLRB ignored similarities between 46 cellar workers at its Woodbridge Winery in Acampo, California who voted last year to join the International Brotherhood of Teamsters and 18 “barrel department” employees who were excluded despite having similar duties.
To read the full story on Westlaw Practitioner Insights, click here: bit.ly/2gdPTFY
Summary of NLRB Decisions for Week of November 7 – 10, 2016
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
Component Bar Products, Inc. (14-CA-145064; 364 NLRB No. 140) O’Fallon, MO, November 8, 2016.
The Board found that an employee’s actions in calling a coworker to warn him that his job was in jeopardy and to try to help the coworker retain his employment were both “inherently concerted” and concerted under Meyers Industries principles, and that the Respondent violated Section 8(a)(1) by discharging the employee for his protected concerted activity. The Board further found that the Respondent violated Section 8(a)(1) by informing the employee that he was discharged for his protected concerted activity and by so informing another employee. The Board also found that the Respondent violated Section 8(a)(1) by discharging the employee pursuant to an unlawful work rule. Further, in the absence of supporting argument for the Respondent’s exceptions, the Board found that the Respondent violated Section 8(a)(1) by applying two handbook rules to restrict the employee’s Section 7 activity. Finally, the Board found that the Respondent violated Section 8(a)(1) by maintaining unlawful handbook rules prohibiting insubordination or other disrespectful conduct and boisterous or disruptive activity in the workplace.
Member Miscimarra concurred in part and dissented in part. Regarding the allegations related to the discharged employee, Member Miscimarra disagreed with the majority’s finding that the employee engaged in inherently concerted activity. He agreed with the majority, however, that the employee engaged in concerted activity under Meyers Industries and was unlawfully discharged for that activity. Member Miscimarra dissented from the majority’s finding that the Respondent violated Section 8(a)(1) by informing the employee that he was discharged for his protected concerted activity. In addition, Member Miscimarra found it unnecessary to pass on whether the employee was discharged pursuant to an unlawful work rule. Further, citing his dissent in William Beaumont Hospital, Member Miscimarra disagreed with the majority regarding the two work rules and stated that he would find them to be lawful.
Charge filed by an individual. Administrative Law Judge Charles J. Muhl issued his decision on August 7, 2015. Chairman Pearce and Members Miscimarra and McFerran participated.
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Lifeway Foods, Inc. (13-CA-140500, 13-CA-146689, and 13-CA-151341; 364 NLRB No. 145) Niles, IL, November 9, 2016.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(5) and (1) by failing to provide the Union with notice and an opportunity to bargain over the discharge of three employees. While an employer has a duty to bargain over discretionary discharges, the Board majority (Chairman Pearce and Member McFerran) found that the relevant precedent applied prospectively only, and that the complaint allegations should be dismissed. Concurring, Member Miscimarra would not require employers to engage in preimposition discipline bargaining.
Charges filed by Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, AFL-CIO-CLC, Local Union No. 1. Chairman Pearce and Members Miscimarra and McFerran participated.
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The Wang Theatre, Inc. d/b/a Citi Performing Arts Center (01-CA-179293; 364 NLRB No. 146) Boston, MA, November 10, 2016.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board noted the Respondent’s assertion, also raised in the representation proceeding, that it does not employ any employees in the unit and its further assertion that events subsequent to the representation hearing confirmed that the unit’s lack of employees was not a temporary condition. The Board found that, even assuming that the Respondent’s contention regarding postelection events was properly raised in this proceeding, it lacked merit, as the Regional Director directed the election in the representation proceeding applying the eligibility standard set forth in The Juilliard School, 208 NLRB 153, 155 (1974). The Board observed that the Respondent did not argue that, under that standard, the unit lacked employees at the time of the election, at the time it refused the Union’s bargaining request, or currently. Further, the Board found the Respondent’s mere speculation regarding the unit’s future composition insufficient to establish that there are genuine issues of material fact warranting a hearing.
Charge filed by Boston Musicians Association, a/w American Federation of Musicians Local Union No. 9-535, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
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McDonald’s USA, LLC, a joint employer, et al. (02-CA-093893, et al.; 364 NLRB No. 144) New York, NY, November 10, 2016.
The Board granted Respondent McDonald’s USA’s request for special permission to appeal the June 15, 2016 Order of Administrative Law Judge Lauren Esposito granting in part and denying in part the General Counsel’s motion for additional production of documents from McDonald’s USA, LLC, and denied the appeal on the merits. The Board majority (Chairman Pearce and Member McFerran) found that the Respondent had failed to establish that the judge abused her discretion by requiring it to conduct searches of all identified sources for 28 custodians on the initial custodian list, as well as for additional operations consultants and an executive added to the custodian list in the district court proceeding enforcing the subpoena, and to produce any responsive information in unredacted form. Further, the majority found it unnecessary to address McDonald’s argument that an administrative law judge does not have the authority to issue “sanctions” because the judge did not order sanctions here, and in any event, Judge Esposito correctly determined that she has authority to make rulings regarding McDonald’s document production pursuant to the court-enforced subpoena.
Member Miscimarra dissented, stating that questions regarding the scope of the district court’s rulings addressing the extent of McDonald’s production obligations pursuant to the subpoena and whether McDonald’s has failed to comply with those rulings should be addressed by the district court and not the Board. Therefore, in his view, the judge exceeded her authority by issuing the order granting the General Counsel’s motion for additional production.
Charges filed by Fast Food Workers Committee and Service Employees International Union, CTW, CLC et al. Chairman Pearce and Members Miscimarra and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Farmworker Institute of Education and Leadership Development, Inc. (31-RC-164338) locations in California, November 7, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s decision and direction of election holding that the Employer’s charter school is not exempt as a political subdivision under Section 2(2) of the Act. The Board majority (Chairman Pearce and Member McFerran) found that the Regional Director correctly applied the test in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971), and that her reasoning was consistent with the Board’s recent decisions in Pennsylvania Virtual Charter School, 364 NLRB No. 87 (2016) and Hyde Leadership Charter School, 364 NLRB No. 88 (2016). Dissenting, Member Miscimarra would grant the Employer’s Request for Review and dismiss the petition. For the reasons fully explained in his dissenting opinions in Pennsylvania Virtual Charter School, supra, slip op. at 11-18, and Hyde Leadership Charter School, supra, slip op. at 14-16, he believes that the Board should decline to assert jurisdiction over charter schools generally and in this case. Petitioner – International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
XPO Logistics Freight, Inc. (13-RC-177753) Gary, IN, November 9, 2016. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative, in which the Regional Director found that union supporters did not create an atmosphere of fear and reprisal in the critical period before the election and that the Employer’s offer of proof was not sufficient to warrant a hearing. Petitioner – Local Lodge 701, International Association of Machinists & Aerospace Workers, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Newsweb Radio Company, d/b/a Radio Station WCPT (13-UC-171145) Chicago, IL, November 9, 2016. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order, in which the Regional Director dismissed the unit clarification petition because the contested position had not been historically excluded from the unit. Petitioner – Newsweb Radio Company d/b/a Radio Station WCPT. Chairman Pearce and Members Miscimarra and McFerran participated.
C Cases
Shirley Express, LLC and RLS Transportation, LLC, as a single and/or joint employers (22-CA-141644 and 22-CA-149763) Hillside, NJ, November 9, 2016. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charges filed by Building Material Teamsters Local 282. Chairman Pearce and Members Miscimarra and McFerran participated.
Arrowhead Transit (Operated by the Arrowhead Economic Opportunity Agency) (18-CA-173815 and 18-CA-178901) Gilbert, MN, November 9, 2016. The Board denied the Respondent’s Motion to Dismiss the Consolidated Complaint or, in the Alternative, for Partial Summary Judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Member Miscimarra noted that he agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), the General Counsel described, in reasonably concrete terms, why, based on material facts that are genuinely in dispute, a hearing is required. Charges filed by an individual. Chairman Pearce and Members Miscimarra and McFerran 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
Guitar Center Stores, Inc. (02-CA-130443, et al.; JD-106-16) Chicago, IL. Administrative Law Judge Charles J. Muhl issued his decision on November 7, 2016. Charges filed by Retail, Wholesale and Department Store Union, RWDSU, United Food and Commercial Workers.
United States Postal Service (05-CA-140963; JD-107-16) Washington, DC. Administrative Law Judge Paul Bogas issued his decision on November 8, 2016. Charge filed by American Postal Workers Union, AFL-CIO.
Stericycle, Inc. (04-CA-137660, et al.; JD-110-16) Morgantown and Southampton, PA. Administrative Law Judge Michael A. Rosas issued his decision on November 10, 2016. Charges filed by Teamsters Local 628.
Charter Communications, LLC (07-CA-140170, 07-CA-145726, and 07-CA-147521; JD-108-16) Saginaw and Bay City, MI. Administrative Law Judge Arthur J. Amchan issued his decision on November 10, 2016. Charges filed by individuals.