Attached is the latest addition of the USW Oilworker:
Summary of NLRB Decisions for Week of January 22 – 26, 2018
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
International Union of Operating Engineers, Local 501 (Brady Linen Services, LLC) (28-CB-170340; 366 NLRB No. 3) Las Vegas, NV, January 23, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(3) by failing and refusing to execute the collective-bargaining agreements it negotiated with the Employer after the parties reached a meeting of the minds and the Respondent ratified the Employer’s final offer.
Charge filed by Brady Linen Services, LLC. Administrative Law Judge Dickie Montemayor issued his decision on July 20, 2017. Chairman Kaplan and Members Pearce and McFerran participated.
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L.I.F. Industries a/k/a Long Island Fire Proof Door (29-CA-181174; 366 NLRB No. 4) Port Washington, NY, January 24, 2018.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish, and by unreasonably delaying in furnishing, the Union with information relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s unit employees. In agreeing with the judge and his colleagues that deferral to the arbitrator’s ruling was unwarranted in this case, Chairman Kaplan relied solely on the fact that the Union requested the information at issue here to police the parties’ collective-bargaining agreement.
Charge filed by New York City and Vicinity District Council of Carpenters. Administrative Law Judge Jeffrey P. Carter issued his decision on May 12, 2017. Chairman Kaplan and Members Pearce and McFerran participated.
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Premier Environmental Solutions, LLC (14-CA-198879; 366 NLRB No. 8) Kansas City, MO, January 25, 2018.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint, compliance specification, and notice of hearing. The Board found that the Respondent violated Section 8(a)(5) and (1) by, without the Union’s consent, failing to continue in effect the terms and conditions of the extant collective-bargaining agreement by (1) failing to pay unit employees’ wages under the terms of the agreement, (2) deducting union dues from unit employees’ pay in excess of the amounts provided for in the agreement, and (3) failing to remit to the Union, as provided for in the agreement, unit employees’ dues and/or initiation fees that were properly deducted from their paycheck.
Charge filed by Teamsters Local Union No. 838, affiliated with International Brotherhood of Teamsters. Chairman Kaplan and Members McFerran and Emanuel participated.
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Hendrickson USA, LLC (09-CA-159641; 366 NLRB No. 7) Lebanon, KY, January 25, 2018.
The Board (Members Pearce, McFerran, and Emanuel) unanimously adopted the Administrative Law Judge’s conclusion that the Employer violated Section 8(a)(1) during a union organizing drive by informing employees that the Employer and the Union “would begin the negotiating process from scratch.” Applying Tri-Cast, Inc., 274 NLRB 377 (1985), the Board also unanimously adopted the judge’s dismissal of allegations that the Employer violated Section 8(a)(1) by informing employees that, if they signed authorization cards, they would no longer have a voice, would forfeit their right to represent themselves, and would lose their direct employer-employee relationship. A majority (Members Pearce and McFerran) also adopted the judge’s finding that the Employer unlawfully informed employees that, if they elected the Union, the culture would definitely change, relationships would suffer, and flexibility would be replaced by inefficiency. The majority reasoned that those statements reasonably conveyed a threat to adversely change the work culture if employees selected union representation. Contrary to his colleagues, Member Emanuel found that those particular statements were non-threatening.
Charge filed by an individual. Administrative Law Judge Donna N. Dawson issued her decision on October 31, 2016. Members Pearce, McFerran, and Emanuel participated.
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Pennsylvania Interscholastic Athletic Association, Inc. (06-CA-175817; 366 NLRB No. 10) Mechanicsburg, PA, January 26, 2018. 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. Although Chairman Kaplan did not participate in the underlying representation proceeding, he agreed with his colleagues that granting summary judgment was appropriate, because the Respondent had not raised any new matters that were properly litigable in this unfair labor practice proceeding.
Charge filed by Office and Professional Employees International Union, AFL-CIO. Chairman Kaplan and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Classic Industrial Services, Inc. (28-RC-201988) Fruitland, MN, January 24, 2018. The Board unanimously granted the Employer’s Request for Review of the Regional Director’s Decision (finding certain employees to be statutory supervisors) and Certification of Representative as it raised substantial issues warranting review. Petitioner – International Association of Heat & Frost Insulators and Asbestos Workers, Local Union 76. Chairman Kaplan and Members Pearce and Emanuel participated.
CalPortland Company, d/b/a CalPortland Arizona Materials Division (28-RD-206696) Phoenix, AZ, January 24, 2018. The Board denied the Petitioner’s Request for Review of the Regional Director’s determination to hold the petition in abeyance as it raised no substantial issues warranting review. Chairman Kaplan and Member Emanuel noted that they would consider revising Board’s blocking charge policy in a future appropriate case. Petitioner – an individual. Union – General Teamsters (Excluding Mailers), State of Arizona, Local No. 104, an Affiliate of the International Brotherhood of Teamsters. Chairman Kaplan and Members Pearce and Emanuel participated.
Schuylkill Medical Center South Jackson Street d/b/a Lehigh Valley Hospital – Schuylkill South Jackson Street (04-UC-200537 and 04-UC-200541) Pottsville, PA, January 25, 2018. A Board majority (Chairman Kaplan and Member McFerran; Member Pearce concurring in part and dissenting in part) granted review of the Regional Director’s Decision, Order, and Clarification of Bargaining Unit solely with respect to whether the Regional Director’s finding that the East employees constitute an appropriate accretion to the unit is consistent with the standard articulated in Safeway Stores, Inc., 256 NLRB 918 (1981). Member Pearce would have denied review with respect to this issue. The Board unanimously denied the Employee-Intervenors’ Motion to Intervene. Chairman Kaplan and Members Pearce and McFerran participated.
C Cases
Nestle Dreyer’s Ice Cream Company (31-CA-190625) Bakersfield, CA, January 23, 2018. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. The Board evaluated the subpoena in light of the Region’s clarifications and limitations. Charge filed by International Brotherhood of Teamsters, Local 87. Members Pearce, McFerran, and Emanuel participated.
Leggett & Platt, Inc. (09-CA-194057, et al.) Winchester, KY, January 23, 2018. The Board treated the Proposed-Intervenor’s exceptions as a timely appeal from a ruling of the Administrative Law Judge under Section 102.26 of the Board’s Rules and Regulations, and denied the appeal on the merits. The Board found that the judge did not act arbitrarily or capriciously in denying the Proposed-Intervenor’s motion to intervene in the case. Proposed-Intervenor – National Right to Work Legal Defense Foundation, Inc., on behalf of Keith Purvis and other employees. Charges filed by International Association of Machinists and Aerospace Workers (IAM), AFL-CIO. Chairman Kaplan and Members Pearce and McFerran participated.
United States Postal Service (10-CA-181705, et al.) Raleigh, Wake Forest, Greensboro, Carrboro, Winston-Salem, and Mebane, NC, January 24, 2018. 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. The complaint had alleged Section 8(a)(5) refusal to provide/delay in providing relevant information violations. Member Emanuel noted that he would not approve the parts of the Order that require the Respondent to take action with respect to “other union[s],” because no violations against other unions were alleged as part of this case. Charges filed by American Postal Workers Union, AFL-CIO, Local 1078; National Association of Letter Carriers, AFL-CIO, Branch 2613; National Postal Mailhandlers Union, AFL-CIO, Local 305; American Postal Workers Union, AFL-CIO, Local 7035; National Rural Letter Carriers Association; and North Carolina Council of American Postal Workers Union, AFL-CIO. Chairman Kaplan and Members Pearce and Emanuel participated.
United States Postal Service (10-CA-185960, et al.) Charlotte and Fayetteville, NC, January 24, 2018. 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. The complaint had alleged Section 8(a)(5) refusal to provide/delay in providing relevant information violations. Member Emanuel noted that he would not approve the parts of the Order that require the Respondent to take action with respect to “other union[s],” because no violations against other unions were alleged as part of this case. Charges filed by National Association of Letter Carriers, AFL-CIO, Branch 545; and National Postal Mail Handlers Union, AFL-CIO, Local 305, a Division of Laborers’ International Union of North America. Chairman Kaplan and Members Pearce and Emanuel participated.
Silverstar Delivery Ltd (07-CA-199193 and 07-CA-200543) Brownstown, MI, January 24, 2018. The Board denied the Employer’s Petition to Revoke an investigative subpoena ad testificandum, as the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. The Board evaluated the subpoenas in light of the Region’s willingness, set forth in its opposition brief, to take the affidavit testimony by video conference on a mutually agreeable date in order to alleviate any asserted burdens on the Employer’s operations. Charges filed by Local 337, International Brotherhood of Teamsters, AFL-CIO, and an individual employee. Chairman Kaplan and Members Pearce and Emanuel participated.
Comcast Cable Communications Management, LLC (06-CA-198724 and 06-CA-199538) Beaver Falls, PA, January 25, 2018. The Board denied the Respondent’s Motion to Dismiss the allegations set forth in paragraphs 7 through 12 of the Consolidated Complaint on the ground that the Respondent failed to demonstrate that these factual allegations have no factual nexus to the underlying charge in Case 06-CA-199538. Charges filed by International Brotherhood of Electrical Workers, Local 712, AFL-CIO. Chairman Kaplan and Members Pearce and Emanuel participated.
The Pasha Group; Pasha Hawaii Holdings, LLC; SR Holdings LLC; and Sunrise Operations LLC, a single employer (20-CA-202809) San Rafael, CA, January 26, 2018. The Board denied the Respondent’s Motion for Summary Judgment, finding that the Respondent has 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 Emanuel noted his view that Board precedent involving the supervisory status of tugboat captains and mates should be reconsidered, and Chairman Kaplan noted that he finds it unnecessary to address the merits of the Board’s precedent on this issue at this stage of the proceedings. Charge filed by International Organization of Masters, Mates & Pilots ILA/AFL-CIO. Chairman Kaplan and Members Pearce and Emanuel participated.
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Appellate Court Decisions
Mid-Atlantic Restaurant Group-Kelly’s Taproom, Board Case No. 04-CA-162385 (reported at 364 NLRB No. 153) (3d Cir. Decided January 25, 2018)
In an unpublished opinion, the Court enforced the Board’s order that issued against this operator of a restaurant and bar in Bryn Mawr, Pennsylvania. The Board (then-Chairman Pearce and Members Miscimarra and McFerran) found, in agreement with the Administrative Law Judge, that a bartender at the restaurant engaged in protected, concerted activity when she discussed scheduling complaints with co-workers and presented those complaints to managers, and that the Employer discharged her for that activity in violation of Section 8(a)(1).
On review, the Court held that substantial evidence supported the Board’s finding that the bartender was discharged for concerted activity. The Court held that the Employer failed to prove its contention that she instead was discharged for refusing to serve a customer, holding that it was contrary to the credited testimony, not a reason given at the time of her discharge, and inconsistent with its discipline of other employees. Rejecting the Employer’s additional claims, the Court held that the complaint allegations were sufficient, that no bill of particulars was required under the Board’s Rules and Regulations, and that the Employer was not entitled to prehearing discovery in an unfair-labor-practice case.
The Court’s decision is here (link is external).
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Administrative Law Judge Decisions
Lou’s Transport, Inc. and T.K.S., Inc. (07-CA-102517; JD-05-18) Pontiac, MI. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on January 25, 2018. Charge filed by an individual.
PrimeFlight Aviation Services, Inc. (29-CA-191801 and 29-CA-196327; JD(NY)-01-18) Brooklyn, NY. Errata to January 9, 2018 decision of Administrative Law Judge Kenneth W. Chu. Errata Amended Decision.
Employers Beware: Potential Rise in Union Corporate Campaigns
Blog Employer Labor Relations Blog
USA February 1 2018
Seyfarth Synopsis: Although many employers may think they can let their guard down a little bit when it comes to the NLRB under the Trump Administration, history suggests otherwise. During the last Republican Administration, labor unions often decided to wage their battles outside the NLRB, using tactics like the “corporate campaign.” Although corporate campaigns have been around for a long time and continued even during the Obama Administration, union corporate campaign activity during the Bush Administration suggests that employers would be well advised to implement strategies aimed at reducing their vulnerability to such campaigns and effectively responding to such campaigns in the event they become a target.
When the NLRB shifts from Democrat control to Republican control, as it has under the Trump Administration, many employers rejoice, believing that a Republican-controlled NLRB will take a more employer-friendly approach. This is almost certainly true, but employers should keep in mind that appeals to NLRB intervention are not the only ways for unions to create incredible headaches for employers.
Background on Corporate Campaigns
A corporate campaign is an attack by a union on a company or an industry with the goal of putting so much pressure on the target that it will give in to the union’s demands. Such attacks are multi-pronged and often long-running. Indeed, unions have devoted millions of dollars and multiple years to individual corporate campaigns, and such campaigns have become more sophisticated and coordinated over the years. The typical union philosophy in launching such a campaign is to cost an employer so much time and money and cause it so much disruption that it ultimately gives in to what the union wants.
A corporate campaign’s most common objective is to facilitate union organizing, often by coercing an employer into accepting a card-check agreement along with neutrality commitments (in other words, to agree to recognize the union without a formal election and to stay silent on its views regarding the unionization of its workforce). Corporate campaigns are widely known as a means of organizing workers by disorganizing companies.
In launching a corporate campaign, a union identifies and then exploits a company’s perceived vulnerabilities. Common tactics unions employ in corporate campaigns include:
- Filing a stream of unfair labor practice charges against the company
- Encouraging investigations of potential OSHA, wage and hour, environmental, and/or antitrust violations by the company (see our recent management alert regarding antitrust enforcement against employers here)
- Causing union-paid organizers to get jobs within the company (known as “salting”)
- Placing print, digital, radio, and/or TV ads attacking the company, establishing anti-company websites, and distributing anti-company materials (including emails and social media messages) to customers, shareholders, and employees
- Introducing shareholder resolutions aimed at reducing management’s independence
- Challenging the zoning or permitting of new company facilities
- Alleging or implying sexual misconduct by company executives or claiming that the company does not pay its employees fairly (the #metoo and #timesup movements are likely to add more fuel to any such fire)
- Recruiting celebrities, politicians, clergy, and other community leaders to put pressure on the company
A variety of unions have launched a multitude of corporate campaigns over the years, and they often team up with each other and pool their resources against a single company. Collectively, unions employ hundreds of professional corporate campaigners, with job titles such as “online advocacy organizer” and “strategic communications specialist.” The typical position postings for such jobs list responsibilities that include developing campaign strategies and messages, conducting online research, and executing effective media plans. Given the growing presence of Millennials in the workforce, a group that (broadly speaking) considers itself both technologically savvy and socially conscious, unions are likely to have no shortage of candidates for such positions.
What Employers Can Do
Companies of all sizes, in all locations, and in all industries are potentially vulnerable to corporate campaigns. Of course, the larger the company, the more attractive that company may be as a target, as more employees equals more potential revenue from union dues. In reality, however, almost no relatively large company is safe from such an attack.
Given the power of the internet and the ubiquity of social media platforms such as Facebook, Snapchat, Twitter, and Instagram, the speed with which unions can launch and carry out sophisticated and well-coordinated corporate campaigns is nothing short of astounding. Employers would be well-advised to proactively develop strategies aimed at reducing their vulnerability to such campaigns and quickly and effectively responding to such campaigns. Such strategies could include:
- Conducting OSHA, wage and hour, and antitrust compliance audits
- Engaging in positive employee relations training and messaging
- Conducting up-to-date anti-harassment training
- Evaluating pay equity within the company
- Creating an effective internal and external communication system in relation to potential and actual union activity
- Assembling a dedicated team of inside or outside counsel to respond to filings at the NLRB, such as unfair labor practice charges and representation petitions