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Today’s Labor Updates, July 14, 2017

Summary of NLRB Decisions for Week of June 26 – 30, 2017.

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

Southcoast Hospitals Group, Inc.  (01-CA-150261; 365 NLRB No. 100)  Wareham, MA, June 28, 2017.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with requested information.  The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing its final offer without having reached a valid impasse.  In so doing, the majority (Members Pearce and McFerran) relied on the Respondent’s inability to demonstrate that impasse existed as to any particular issue and, assuming impasse was reached on a particular issue, the Respondent’s inability to show that the impasse led to a breakdown in overall negotiations.  Chairman Miscimarra, concurring, relied solely on the Respondent’s inability to show that there was a breakdown in overall negotiations.  The same majority found it unnecessary to pass on whether the Respondent violated Section 8(a)(5) by introducing a new and regressive proposal in violation of the parties’ ground rules; Chairman Miscimarra would affirm the judge’s finding that the Respondent did not violate Section 8(a)(5) in this regard.

Charge filed by the Massachusetts Nurses Association.  Administrative Law Judge David I. Goldman issued his decision on March 7, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Inverted Healthcare Staffing, LLC d/b/a United Medsource  (08-CA-174289; 365 NLRB No. 103)  Youngstown, OH, June 29, 2017.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of the informal settlement agreement.  The Board ordered a full remedy including, among other things, ordering the Respondent to offer an employee full reinstatement and to make her whole for any loss of earnings and other benefits suffered as a result of the unlawful action against her.  The Board further ordered the Respondent to rescind certain unlawful rules and revise its handbook accordingly.  Chairman Miscimarra noted that the complaint allegations were deemed to be true pursuant to the settlement terms, and he expressed no view regarding whether he would have otherwise found the rules unlawful.

Charge filed by an individual.   Chairman Miscimarra and Members Pearce and McFerran participated.

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The Academy of Magical Arts, Inc.  (31-CA-166705; 365 NLRB No. 101)  Hollywood, CA, June 29, 2017.

In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to pay unit employees premium pay for their work on the evening of December 31, 2015.  In addition, the Board adopted the judge’s finding that the Respondent did not violate Section 8(a)(5) and (1) by implementing changes to unit-employee shifts, noting that the Respondent’s conduct conformed to the terms of the parties’ Master Agreement, which authorizes the Respondent “to schedule and change working hours, shifts and days off.”

Charge filed by American Federation of Musicians, Local 47.  Administrative Law Judge Joel P. Biblowitz issued his decision on January 10, 2017.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Arizona Public Service Company  (28-RD-194724)  Tonopah, AZ, June 27, 2017.  The Board denied as moot the Petitioner’s Request for Review of the Regional Director’s Order Postponing Hearing Indefinitely pending the investigation of unfair labor practice charges. The unfair labor practice charge that had blocked the petition had been withdrawn and the Regional Director had resumed processing of the petition following the withdrawal.  Chairman Miscimarra concurred in denying review because the Region had resumed processing the petition, but noted that he favors reconsideration of the Board’s blocking charge doctrine for the reasons expressed in his dissenting views in the Board’s representation election rule.  Petitioner – an Individual.  Union – United Security Professionals of America, International Union (USPA) and its Local #08.  Chairman Miscimarra and Members Pearce and McFerran participated.

Cristal USA, Inc.  (08-RC-188482)  Ashtabula, OH, June 27, 2017.  The Board denied the Employer’s Motion for Reconsideration of the Order reported at 365 NLRB No. 74 (2017), denying its Request for Review of the Regional Director’s Decision and Direction of Election regarding the petitioned-for unit of warehouse employees (and excluding production employees at the Employer’s two plants).  The Board found that the Employer had not demonstrated extraordinary circumstances warranting reconsideration.  In agreeing that the Employer’s motion should be denied, Chairman Miscimarra adhered to his dissent in the underlying Order that review should have been granted because substantial questions exist regarding the appropriateness of the petitioned-for unit.  Petitioner – International Chemical Workers Union Council of the United Food & Commercial Workers International Union, AFL-CIO, CLC.  Chairman Miscimarra and Members Pearce and McFerran participated.

Cristal USA, Inc.  (08-RC-184947)  Ashtabula, OH, June 27, 2017.  The Board denied the Employer’s Motion for Reconsideration of the Order reported at 365 NLRB No. 82 (2017), denying its request for review of the Acting Regional Director’s Decision and Direction of Election regarding the petitioned-for unit of its Plant 2 North production employees (and excluding production employees from its other plant and its warehouse employees).  The Board found that the Employer had not demonstrated extraordinary circumstances warranting reconsideration.  In agreeing that the Employer’s motion should be denied, Chairman Miscimarra adhered to his dissent in the underlying Order that review should have been granted because substantial questions exist regarding the appropriateness of the petitioned-for unit.  Petitioner – International Chemical Workers Union Council of the United Food & Commercial Workers International Union, AFL-CIO, CLC.  Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Kiss Electric, LLC  (04-CA-164351, et al.)  Levittown, PA, June 27, 2017.  The Board granted the General Counsel’s Request for Special Permission to Appeal the Administrative Law Judge’s approval of an informal settlement agreement entered into by the Respondent and the Charging Party over the General Counsel’s objections.  On the merits, the Board denied the appeal, finding that the General Counsel failed to establish that the judge abused his discretion.  Significantly, the Board noted that the correct standard for evaluating settlements between two or more parties is the standard set forth in Independent Stave, 287 NLRB 740, 743 (1987), rather than United States Postal Service (Postal Service), 364 NLRB No. 116 (2016), cited by the General Counsel.  The Board stated that Postal Service applies only to situations involving a resolution of a case by consent order, where the only party that agrees to the resolution is the respondent.  Charges filed by International Brotherhood of Electrical Workers, Local Union #98.  Administrative Law Chairman Miscimarra and Members Pearce and McFerran participated.

Welded Construction L.P.  (08-CA-190649 and 08-CB-190652)  Smithfield, OH, June 28, 2017.  The Board denied the Union’s Petition to Revoke an investigative subpoena ad testificandum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Union failed to establish any other legal basis for revoking the subpoena. The Board found that the disposition of the petition is consistent with existing Board law, which finds subpoenas ad testificandum identifying the case name and number to be sufficiently particular. Chairman Miscimarra agreed that the Region described with sufficient particularity the evidence sought, based on record evidence demonstrating the Region attached to the subpoena a copy of the charges and a statement identifying the allegations that will be the focus of the testimony it seeks. However, in his view, the subpoena itself should describe with reasonable particularity the general topics that would be explored. Charges filed by an individual.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

Ace Masonry, Inc., and Bella Masonry, LLC, a single employer and alter egos, et al., Board Case No. 03-CA-073540 (reported at 363 NLRB No. 181) (2d Cir. decided June 30, 2017)

In an unpublished summary order, the Second Circuit enforced the second supplemental order establishing the backpay liability of Ace Masonry (Ace), a general contractor, Bella Masonry (Bella), a masonry subcontractor, Bella Furniture Solutions, Inc., a related family business, and four individuals connected to those corporate entities.

Previously, the Board found that Ace and Bella were alter egos and were jointly and severally liable for the failure to pay contractual wages and benefits under collective-bargaining agreements held with three unions.  See Ace Masonry, unpublished Board order (Jan. 23, 2013), summarily enforced, No. 13-585 (2d Cir. Mar. 26, 2013) (unreported).  After enforcement, the companies disputed the amount of monies owed and the General Counsel issued a compliance specification which also included allegations of personal liability for four individual family members based on their corporate roles and conduct, such as commingling of funds and asset diversion, as well as an allegation of liability for Bella Furniture, based on its receipt of a fraudulent transfer of funds.  After answers were filed, the General Counsel filed a motion for partial summary judgment, and the Board issued an order establishing the backpay period and the formulas for calculating the amounts owed.  Ace Masonry, 360 NLRB No. 32 (Jan. 31, 2014).

On remand, the Administrative Law Judge determined the amounts of backpay owed to eight named employees and six named union funds, pierced the corporate veil as to three named individuals, and recommended dismissing the remaining liability allegations.  On review, the Board (then-Chairman Pearce and Members Miscimarra and McFerran) adopted the specified amounts of backpay and the judge’s findings that three of the individuals were personally liable, and found (Member Miscimarra, dissenting) that the fourth individual and Bella Furniture, were also jointly and severally liable.

Before the Court, three of the individuals contested their personal liability.  One argued that the withdrawals she made were not a “diversion of funds” because they were required by Section 71 of New York’s Lien Law, which mandates prioritization of payments to subcontractors. Rejecting that contention, the Court agreed with the Board that she had failed to provide any evidence that she used the withdrawn funds to pay subcontractors, and, nevertheless, that she had cited no authority indicating that a state law obligation to pay contractors would relieve her of an independent federal obligation to pay the monies owed.  Contrary to the assertion of the second individual, the Court held that substantial evidence supported the Board’s finding that he was personally involved in the operation of the companies and their misconduct.  Finally, with regard to the third individual, the Court held that his argument, which he had not raised before the Board, was jurisdictionally barred by Section 10(e).  Accordingly, the Court enforced the Board’s order in full.

The Court’s decision may be found here.

ARC Bridges, Board No. 13-CA-044627 (reported at 362 NLRB No. 56) (D.C. Cir. decided June 30, 2017)

In a published opinion, the Court granted the petition for review, denied enforcement, and vacated the Board’s order that issued against this organization that provides services for developmentally disabled adults at facilities in Indiana.  In doing so, the Court reversed the Board’s finding that the Employer violated Section 8(a)(3) and (1)  by discriminatorily withholding a wage increase from union-represented employees while negotiating with the American Federation of Professionals after the Union’s success in elections held in two employee units in late 2006 and early 2007.

The Board (then-Chairman Pearce and Member Hirozawa; then-Member Miscimarra, dissenting) concluded that, under Wright Line, the Employer’s withholding from unionized employees a 3-percent, cost-of-living wage increase was unlawfully motivated by union animus and that the Employer failed to meet its burden of showing that it would have done so in the absence of the employees’ voting for union representation in the elections.  For the animus finding, the Board relied on two statements of managers that the employees would have received the increase but for the Union and blaming the Union for the lack of increase.  The Board also found animus based on the pretextual nature of two of the Employer’s justifications for withholding the increase—that the 3-percent increase would make unit employees “very unhappy” at a time the Union was pressing for a greater increase, and that it needed to grant the increase for non-unit employees to stem the high turnover rate among those employees.  The Board further cited the Employer’s delay in giving a retroactive raise to one unit just before the certification year ended.

The Court (Circuit Judge Kavanaugh and Senior Circuit Judge Ginsburg; Circuit Judge Tatel, dissenting) held that the four key findings that the Board made with regard to animus did not support its conclusion of unlawful motivation.  Rather, the Court viewed the two managers’ statements to be neutral statements of bargaining strategy and financial constraint, and that the reason for the delayed increase to one unit, without more, was similarly not suggestive of animus.  With regard to the two justifications that the Board found pretextual, the Court stated that the Board had “failed adequately to explain why these two justifications, which are respectively a facially reasonable bargaining strategy and a rational business decision, are indicative of antiunion animus.”  In dissent, Judge Tatel wrote to state his view that the panel majority had not adhered to the highly deferential standard of review, and that in holding that the Board’s conclusion was not supported by substantial evidence, “the court micromanages the Board, second guessing its factual findings and evidentiary inferences.”  As emphasis he stated, “it is important that reviewing courts refrain from resolving labor issues that Congress reserved for the Board.”

The Court’s opinion is here (link is external).

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Administrative Law Judge Decisions

Charles Schwab & Co., Inc.  (27-CA-184730; JD(SF)-26-17)  Lone Tree, CO.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on June 26, 2017.  Charge filed by an individual.

Harley Davidson Motor Company  (05-CA-183791; JD-50-17)  York, PA.  Administrative Law Judge Arthur J. Amchan issued his decision on June 27, 2017.  Charge filed by International Association of Machinists and Aerospace Workers, Tyson Lodge 175, District 98.

ASARCO LLC  (28-CA-154886, et al.; JD(SF)-30-17)  Phoenix, AZ.  Administrative Law Judge John T. Giannopoulos issued his decision on June 28, 2017.  Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, and an individual.

YP Advertising & Publishing LLC  (20-CA-147219, et al.; JD(SF)-28-17)  San Francisco, CA.  Administrative Law Judge Amita Baman Tracy issued her decision on June 29, 2017.  Charges filed by International Brotherhood of Electrical Workers, Local 1269.

International Brotherhood of Teamsters, Local No. 251 (Rhode Island Hospital)  (01-CB-172600; JD-51-17)  Providence, RI.  Administrative Law Judge Paul Bogas issued his decision on June 30, 2017.  Charge filed by an individual.

McCarthy Law PLC  (28-CA-175313 and 28-CA-181381; JD(SF)-29-17)  Scottsdale, AZ.  Administrative Law Judge Mary Miller Cracraft issued her decision on June 30, 2017.  Charges filed by individuals.

Trey Harlin, P.C.  (16-CA-171972; JD-52-17)  Fort Worth, TX.  Administrative Law Judge Sharon Levinson Steckler issued her Bench Decision and Certification on June 30, 2017.  Charge filed by an individual.

 

Telecommuting May Not Be A Reasonable Accommodation
Jackson Lewis PCStephania C. Sanon

USA July 13 2017

The Fifth Circuit recently upheld the dismissal of a lawsuit against an employer who denied an employee’s request to telecommute on the grounds that regular attendance at work is an essential function of her job as a litigation attorney. Credeur v State of Louisiana, 16-CV-30658 (5th Cir. 2017). The employer did provide unpaid leave as an alternate and reasonable accommodation.

Given the proliferation of digital workspaces and telecommuting, well written job descriptions identifying whether attendance is an essential function are increasingly important.

 

If At First You Don’t Succeed, Try, Try, Try Again: UAW Files Petition for Union Vote at Nissan
Barnes & Thornburg LLPDavid Pryzbylski USA July 11 2017

For years the United Autoworkers Union (UAW) has attempted to organize foreign auto manufacturers in the U.S., but its efforts have largely failed. Indeed, while the UAW continues to represent most production and maintenance workers at the big American car companies’ sites in this country, the union has failed to gain any strongholds within its Japanese counterparts, despite constant efforts over the years.

Now, the UAW is trying again. It was recently announced that the union has filed a petition to represent more than 6,000 employees at Nissan’s Jackson, Mississippi, plant, which has been under siege by the union for years. It now has secured enough interest to at least have the issue put to a vote. Under the National Labor Relations Board’s “quickie election rules,” a vote likely will be scheduled within the next three to four weeks. The UAW lost prior union votes at Nissan in 1989 and 2001. We’ll see if the UAW breaks through this time. Stay tuned.

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