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Today’s Labor Updates, June 6, 2018

What is Happening with the New Labour Reality in Alberta?

Borden Ladner Gervais LLP – Laurie M. Robson

The Alberta government passed significant amendments to the Alberta Labour Relations Code, which came into effect on September 1, 2017. Since then, the Alberta Labour Relations Board (“ALRB”) has issued a number of decisions based on the newly passed laws. These decisions have had a significant impact on labour relations and union representation in Alberta. In this article, we summarize two of the more interesting decisions — one concerning a remedial certification order and the second concerning an auto-certification — which could help us assess the new labour landscape in Alberta.

UFCW Local 401 and Widewaters Calgary Hotel Management Company, ULC (April 20, 2018) and (February 7, 2018) (currently unreported)

This is the first case in which a remedial certification order was granted by the ALRB pursuant to the Labour Relations Code (the “Code”) amendments that came into force on September 1, 2017. In this case, the employer was found to have committed an unfair labour practice as a result of terminating the employment of Mr. Doncaster, a volunteer employee organizer. This is also a reverse onus case in which the ALRB had to assess the procedural implications of the now-formalized reverse onus provisions applicable to the employer’s case where the termination was alleged to constitute an unfair labour practice. With the institution of changes to the Code, the employer was required to lead evidence to establish that the reasons given for the discharge were not tainted by anti-union motives. In the result, while the ALRB found no direct evidence that the Employer terminated Mr. Doncaster’s employment because of his union activity, it inferred that the decision was tainted based on its assessment of four factors:

  1. Whether the employer established a reasonable or credible explanation for the termination;
  2. Whether the employer had knowledge of the organizing campaign and the employee’s role in it;
  3. Any pattern of anti-union activity by the employer; and
  4. The credibility of the witnesses.

With respect to a reasonable or credible explanation for the termination, the employer presented evidence that Mr. Doncaster’s habitual tardiness was the reason for his ultimate termination. The Employer argued that Mr. Doncaster was a short service employee with six “lates” in the month of September alone. The ALRB did not accept the employer’s evidence and held there were a number of irregularities, including: inconsistent proof with respect to the dates Mr. Doncaster was alleged to have been late (as well as the dates he was disciplined for); the employer failing to follow its policy of progressive discipline; a finding that there was no cogent evidence in support of the “lates” on two of the six dates; and the fact that the termination letter had significant errors in it. In this regard, the ALRB preferred the evidence of Mr. Doncaster concerning his lateness, the dates he was late and the discipline he was given in response.

The more concerning issue with this decision, however, is the limited evidence presented to support the “chilling effect” that Mr. Doncaster’s termination was said to have had on the union organizing campaign. Very limited evidence seems to have been presented on the union’s organizing efforts and meetings and, in this regard, the ALRB found that important evidence on this issue was not credible. Notwithstanding this finding, the deduction that Mr. Doncaster’s termination “had a profound impact on the union’s campaign” is concerning because the decision references other evidence suggesting that the campaign was in decline, or perhaps simply experiencing a natural down cycle — The union had not achieved the minimum 40 per cent support needed to file an application for certification, and even though one of the union representatives had been provided with contact information for employees (he had originally lead evidence that he had contacted the employees and set up meetings with them), the evidence ultimately established that he had not done so.


In the end, the Widewaters case should be an eye-opener for employers as well as employees. The decision is based on limited direct evidence arising out of a reverse onus, with inference being sufficient to ground the result where critical evidence on the “chilling effect” was found not to be credible. Combine that with the prospect of a remedial certification order where a reasonable level of demonstrated employee choice had not been established, and you have an unsettling picture. This case should give employers and employees pause to consider whether the current legislative regime is being enforced with a view that certification should be a reflection of employee choice. Based on the facts in this case, it is difficult to conclude that the employees wanted to be represented by the union.

International Association of Heat and Frost Insulators and Allied Workers, Local 110 and Arcane Industries (ALRB May 17, 2018) (currently unreported)

This case concerns employee objections to the union’s application for certification based on the new Alberta auto-certification provisions, which provide that the ALRB may certify a trade union where the application for certification is based on evidence of membership support of more than 65% of the employees in the proposed bargaining unit. In this case, there were two employees in the general construction unit: Joe Visser and his daughter, Rose Visser. The union’s application was filed on April 4, 2018. On April 16, 2018, the ALRB received two documents purporting to be evidence from Joe and Rose Visser that they were cancelling their union memberships.

This decision concerns the timing and impact of an employee’s expressions of non-support for the union. On the date of the application, the only two employees in the bargaining unit were Rose and Joe Visser. The unit, being in general construction, is subject to provincial registration collective bargaining (meaning, bargaining takes place at specific times in accordance with the legislation and a single collective agreement applies to all certified employers in the construction industry). The company was owned by Ms. Visser’s fiancé, Charles Passey. Joe Visser was himself a long-standing member of the union (for 45 years), having also been a longtime member of the union’s executive board.

The employees knew nothing of the union’s application for certification. The union filed its application, as it was permitted to do, based on the current membership status of Rose and Joe Visser. As a result of their status, the board officer’s report found that the application was supported by more than 65 per cent of the employees in the unit and the officer recommended certification without a vote.

At the hearing, the employees testified that even though they were members in good standing at the time of the application, they did not wish for the union to represent them with this employer and they weren’t even made aware that the application for certification had been filed by the union. The employees argued that the new auto-certification provisions under s. 34(8) of the Code did not require the ALRB to certify the union, nor did the provisions prohibit a representation vote from being ordered. Given that they both sought to cancel their union memberships on April 16, 2018 (12 days after the application for certification was filed), and both led evidence in their direct testimony that they no longer supported the union, the employees asked the ALRB to find their lack of support as an appropriate basis for ordering a representation vote. As the alternative, the employees asked the ALRB to exercise its discretion under s. 39 of the Code and consider their lack of support as “any other relevant matter,” and on that basis, exercise its discretion to order a representation vote.

In this case, the ALRB rejected the employees’ arguments, finding that “Unions need not conduct informal polls to determine if their members are agreeable to the union application for certification before filing an application.” It held that the legislation is clear: evidence of membership in good standing on the date of the application is sufficient. The ALRB held that it need not consider actions taken after the date of the application that purport to affect the members’ status. As a result, the ALRB granted the certification application based on evidence of support on the date of the application.


With regard to this decision, it is important for employees to know and understand that if they are currently a member of a union, their membership status may be used at any time in support of an application for certification. Unions are not required to, and will not, poll their members before bringing an application for certification in Alberta. Unions are also not required to inform their members that they are bringing an application for certification. The employee’s ongoing membership in the union is evidence of support for any application for the certification of any employer the employee is currently working for. Therefore, the takeaway from this case is if an employee no longer supports their union, the employee must withdraw their support (i.e., cancel their union membership) before the union uses their status to support a certification application, as the ALRB will not necessarily use any of its discretionary powers to otherwise evaluate ongoing support for the union.

NLRB Chairman Sets Timeline for Joint Employment Rule-Making

“Whatever standard the board ultimately adopts at the conclusion of the rule-making process, my hope is that the final rule will bring far greater certainty and stability to this key area of labor law,” NLRB chairman John Ring says.

By Erin Mulvaney | June 05, 2018 at 06:07 PM

National Labor Relations Board chairman John Ring indicated Tuesday he wants to move quickly to craft joint-employment standards and promised a rule-making process would begin as early as this summer.

Ring also announced the NLRB would initiate a “comprehensive internal ethics and recusal review” to ensure the agency has “appropriate policies and procedures” concerning ethical obligations and recusal requirements.

Senate Democrats last month raised concerns about whether the joint-employment rule-making was an attempt to get around an ethics flap at the agency. Central to that dispute was an internal report that found Trump-appointed board member William Emanuel should not have voted in a joint-employment case—Hy-Brand Industrial Contractors—because his former law firm, Littler Mendelson, had ties to the case that the ruling overturned.

The Trump-controlled NLRB moved quickly last year to adopt a business-friendly joint-employment standard, but got tripped up and was forced to return to the Obama-era standard that puts companies on the hook for labor violations by their contractors and franchisees.

Rule-making is rare at the NLRB. The agency more often uses their cases to set standards for companies and labor unions. In their letter to Ring, Democratic senators suggested that the NLRB’s push for rule-making would evade ethical restrictions and allow the Trump-controlled board to craft business-friendly standards.

Ring said internal preparations were underway at the agency to begin the administrative rule-making process and that the agency plans to issue a notice of proposed rule-making “certainly by this summer.” The process, often long and involving thousands of comments, “will permit the board to consider and address the issues in a comprehensive manner and to provide the greatest guidance,” Ring said. Any new rule would apply prospectively, he said.

“Whatever standard the board ultimately adopts at the conclusion of the rule-making process, my hope is that the final rule will bring far greater certainty and stability to this key area of labor law, consistent with congressional intent,” said Ring, a former Morgan, Lewis & Bockius partner in Washington.

Ring and Emanuel each listed dozens of former clients in their financial disclosures, submitted as part of the nomination process. During his confirmation hearing, Ring stressed he did not want the agency to be under any ethical cloud and would ensure he would make an effort to confront any ethical issues as a board member.

Ring vowed to keep an open mind during the process but acknowledged: “I will not pretend that I am devoid of opinions on the subject of the joint-employer standard.” Still, he said, pointing to past rule-making at the NLRB, “holding opinions or embarking on notice-and-comment rule-making does not disqualify an agency administrator from undertaking such rule-making.”

Unions dead? Nearly 300 elections have been held in the region since 2010.

Daniel Moore Pittsburgh Post-Gazette Jun 4, 2018 7:30 AM

The election notices arrived in hundreds of Pittsburgh-area workplaces, setting off internal campaigns lasting weeks and involving thousands of employees. Each election ended with workers dropping by breakrooms and offices to cast their ballots.

Individually, the vote tallies were often relatively small, quietly held affairs. But taken as a whole, they represent the future of labor unions in a region with deep organizing roots, ahead of a U.S. Supreme Court ruling expected this month that could significantly shake up union membership.

About four dozen unions — led by the Service Employees International Union, the United Steelworkers and the International Brotherhood of Teamsters — have petitioned for nearly 300 elections since 2010, according to a Post-Gazette analysis of votes certified by the National Labor Relations Board. In those elections, unions have added more than 8,000 workers in the Pittsburgh region to membership rolls.

A Supreme Court ruling in the Janus vs. AFSCME case is widely expected to allow public sector workers to stop paying membership dues, which would severely crimp unions’ resources if enough members opt out.

Against that backdrop, the efforts to win employee votes take on new significance as labor organizers work differently than they did in the 1930s, even the 1990s. Now it’s all about reaching smaller groups of employees, often in workplaces where unions traditionally didn’t play a role.

“The world sees union membership as antiquated, and that’s the wrong assumption to make,” said Maria Somma, director of organizing for the United Steelworkers, which gets 25 to 30 calls a day from workers across North America who want to join the Downtown-based union.

Labor organizations in this region have already adapted to shifts in the market, Ms. Somma said, as the large industrial facilities that were big prizes during organized labor’s heyday have been replaced by hospitals, schools and casinos.

“They have replaced the US Steels and ATIs,” she said. “When we look at growth and targets for our union, we have to look at where we can make the most impact, where workers actually need us.”

At the same time, the wins and losses — for the most part not trumpeted by unions or companies — show that union elections since 2010 have often been remarkably close decisions.

Unions had the slight edge in ballots cast — 51 percent — and won about 55 percent of regional elections — 161 of 292 — posted by the labor board.

Smaller workplaces, unfamiliar industries

As workplaces have fractured into smaller units, different unions have jostled for members — often in the same building.

Unions run into each other at the same workplace all the time, Ms. Somma said, but the relationship is usually respectful. “We pick up the phone, and we try to sort out issues with each other, and it’s worked really well. We try not to interfere because 90 percent of the workforce is unorganized, and it seems silly to fight over it.”

Take a typical casino, for example.

The International Brotherhood of Teamsters wants valet parking attendants. The International Union of Operating Engineers wants the slot machine technicians and the building maintenance workers. The International Union, Security, Police and Fire Professionals of America wants the security guards. The Service Employees International Union wants the janitors. Unite Here wants the hospitality staff.

And the United Steelworkers wants card dealers.

The USW, which counts 850,000 members across North America, has begun an organizing campaign for about 270 dealers at the Meadows Race Track and Casino in North Strabane. That campaign is nearing an end, with an election petition expected in the coming weeks, said Phil Gitzen, a card dealer at the Washington County casino for about four years.

Before the campaign began, a few of the dealers reached out to the USW amid concerns that recent changes in ownership would result in unfair and arbitrary cuts, Mr. Gitzen said.

“Some people are concerned about pay and benefits, but I’m more concerned about having a say in what goes on,” he said. “Unless you have something in writing, the promises of today can change tomorrow.”

Big prizes

Education and health care organizations are generally still large institutions, and the Service Employees International Union, with divisions to bargain for health care workers and building janitors, has been a central player.

The SEIU has by far the best numbers of any union in the region, notching wins in 21 of 26 elections since 2010 with 67 percent of ballots cast in favor of union representation.

In 2015, the SEIU organized about 1,400 service, technical and office employees in three elections held at Allegheny General Hospital on the North Side. The SEIU has also organized small units with 7, 9, 11 employees — each at health facilities.

“[While] health care giants continue to grow and expand, I think workers continue to see their ability to shape front-line care and experience good jobs and have their own interest advance slips away,” said Matt Yarnell, president of SEIU Healthcare Pennsylvania.

The USW’s biggest wins in the region came in education — organizing hundreds of professors at Robert Morris University, Point Park University and Duquesne University.

Warning signs 

But with the Janus case looming, the work doesn’t stop when a union is elected. Close votes could be warning signs ahead for labor organizations trying to maintain their clout at the bargaining table.

Even in union workplaces, members unhappy with representation can hold a decertification vote — with 30 percent of membership signing a petition — to oust a union.

Last year, nearly 200 workers voted to decertify the USW at UniFirst Corp., a manufacturer and distributor of uniforms, in New Kensington. In January, the SEIU survived a decertification vote at UPMC McKeesport, which last week reached a new contract deal.

Going forward, the winning formula will rely on simple, old-school tests of solidarity, said Keith Thurner, business manager for the International Union of Operating Engineers Local 95.

The small Greenfield-based union, without a permanent organizer on staff, has won the majority of elections and 56 percent of the vote in 17 elections.

Mr. Thurner tells potential members, “You guys have to want it, but we also want to have you,” he said. “We’ll invest time and money, we’ll run the gamut for you, but we need to make sure you guys are all in.”

Daniel Moore:, 412-263-2743 and Twitter @PGdanielmoore.

Local duo prevented from attending ExxonMobil meeting

Alex Ford 5 Jun 2018, 8:30 a.m.

TWO former Longford gas plants maintenance workers were banned from entering an ExxonMobil shareholders meeting in Dallas, Texas.

Australian Manufacturing Workers Union delegate Troy Carter and Electrical Trades Union delegate Dane Coleman were among workers who flew to the United States for the meeting last Wednesday night, intending to act as a proxy for two shareholders. Letters were sent to the shareholders, which were an Ohio-based charity and a Benedictine nun, stating the workers were banned and were not able to act as their proxies. The workers’ questions covered issues including safety, “de-unionising tactics”, tax and PFAS contamination.

During the meeting, the US Steel Workers Union asked about the dispute, to which Exxon global chairman Darren Woods allegedly said he thought the company was “resolving the dispute with the Australians”.

An Esso spokesperson said the men had been banned from all ExxonMobil premises, alleging this was because of past conduct, and so were excluded from attending ExxonMobil’s annual shareholder meeting.

“They are not ExxonMobil shareholders,” he added.

New UGL maintenance workers have approved a new agreement that includes a two per cent annual pay rise, which the Australian Mines and Metals Association said should “send a message” to the unions.

The new agreement includes a two week on two week off roster and base wages ranging from $151,000 to $171,000 for offshore workers, and base wages of $88,500 to $102,000 for onshore workers.

An Esso spokesperson said as a long-time major employer in Gippsland, “we are pleased that we can continue to provide jobs in the region through both direct employment as well as through the many contractors across our operations”. AMMA’s workplace relations director, Amanda Mansini, said the unions were “increasingly trying to link local community industrial negotiations to their broader political campaigns.”

“Working Australians are entitled to have their say on the terms and conditions they want, and in the Bass Strait they just have,” she said.

“We can only hope the unions will now suspend their political campaign and support the views of the majority of these working Australians.

“Further, the overwhelming endorsement of the new agreement by local workers in the Gippsland community should signal an end to the protest at the Longford Gas Plants.

“Certainly it presents a challenge to the ACTU’s ‘change the rules’ campaign.”

A spokesperson from the Electrical Trades Union said the new deal would not change the situation.

The agreement requires the approval of the Fair Work Commission before it comes into effect.

On June 28, hundreds of unionists will converge on Longford to mark one year since workers who did not sign a new agreement with new contractor UGL were sacked. The dispute was sparked when UGL tendered on the basis of an enterprise ‘agreement’ approved by just five casuals in Western Australia, through its shell subsidiary MTCT. None of those who signed the enterprise agreement worked in the area. Earlier this year, Federal Opposition leader Bill Shorten again weighed into the Bass Strait and Longford UGL dispute, telling Esso that Labor planned to put an end to “sham” work agreements.

Mr. Shorten sent a curt letter to ExxonMobil Australia chair Richard Owen, saying Labor would change the law so that workers and their unions could apply to the Fair Work Commission to re-negotiate “sham agreements”. Unions are also considering leading a fresh consumer boycott of Exxon’s 7-Eleven Mobil petrol stations in Australia.

Summary of NLRB Decisions for Week of May 21 – 25, 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

Airgas USA, LLC  (09-CA-189551; 366 NLRB No. 92)  Cincinnati, OH, May 21, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(4) and (1) when it withheld holiday pay from an employee because of his activity in the filing and litigation of unfair labor practice charges.  Charge filed by an individual.  Administrative Law Judge Melissa M. Olivero issued her decision on December 13, 2017.  Members McFerran, Kaplan, and Emanuel participated.


PAE Aviation and Technical Services LLC  (28-CA-170401 and 28-CA-175936; 366 NLRB No. 95)  Tucson, AZ, May 24, 2018.

The Board reversed the Administrative Law Judge and found that the Respondent violated Section 8(a)(1) by denying an employee his Weingarten rights.  The Board found that though the employee had already received discipline from the Respondent for committing an initial infraction, his Weingerten rights were rekindled when his supervisor, in a subsequent one-on-one lengthy meeting with the employee, pressed him concerning whether he had lied during the investigation of the initial infraction.  Because lying was a punishable offense for the Respondent’s employees, the employee reasonably believed he might receive additional discipline for lying, and thus the Respondent unlawfully denied his request for a Weingarten representative at the subsequent meeting.  The Board additionally reversed the judge and found that the Respondent violated Section 8(a)(1) by (1) delaying in providing the Union requested information regarding a grievance filed by that employee; and (2) failing to provide to the Union requested information regarding a grievance filed over the discipline of another employee.  The Board explained that the judge erroneously deemed the requested information irrelevant because it was not dispositive of the employee grievances.  The Board instead applied the settled rule that the requested information, which is presumptively relevant because it pertains to unit employees, need not be dispositive of the central issue raised by the grievances, but rather be of potential or probable relevance, such as the preparation of a defense for the grievant and a determination whether to continue to process the grievances.

Charges filed by International Association of Machinists and Aerospace Workers, Local Lodge 2949, AFL-CIO.  Administrative Law Judge Joel P. Biblowitz issued his decision on October 16, 2016.  Members Pearce, McFerran, and Emanuel participated.


Michael Cetta, Inc. d/b/a Sparks Restaurant  (02-CA-142626 and 02-CA-144852; 366 NLRB No. 97)  New York, NY, May 24, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by failing and refusing to reinstate striking employees after their unconditional offer to return to work and violated Section 8(a)(1) by soliciting employees to withdraw their support for the Union. A Board majority (Members Pearce and McFerran) adopted the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging the striking employees. Member Emanuel found it unnecessary to pass on the discharge allegation because it would not materially affect the remedy. The Board found it unnecessary to pass on whether the Respondent also violated 8(a)(3) and (1) by denying the striking employees their right to be placed on a preferential hiring list.  Charges filed by United Food and Commercial Workers Local 342.  Administrative Law Judge Lauren Esposito issued her decision on November 18, 2016.  Members Pearce, McFerran, and Emanuel participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

University of Chicago  (13-RC-198365)  Chicago, IL, May 21, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision on Remand from the Board and Certification of Representative as it raised no substantial issues warranting review.  The Regional Director found that the Petitioner did not engage in improper electioneering or objectionable surveillance when it stationed some of its representatives outside of the libraries where the elections were taking place.  Petitioner— Teamsters Local 743.  Members Pearce, Kaplan, and Emanuel participated.

C Cases

Consolidated Waste Services, Corp.  (12-CA-192990, et al.)  Toa Baja, PR, May 24, 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.  With respect to subpoenaed text messages, social media messages, and other personal communications generated by supervisors and managers, the Board found that to the extent that those communications were generated by supervisory and managerial personnel using company equipment in the course of conducting company business, those communications are in the Employer’s control, and the Employer is required to conduct a reasonable and diligent search for those communications and to either produce the information or affirmatively represent to the Region that the information does not exist.  As to subpoenaed communications generated by supervisory and managerial personnel using strictly personal equipment or accounts that are not within the Employer’s control, the Board found that the Employer is required to request the information from its supervisors and managers.  If the information does not exist, or if the supervisors and managers decline to provide the information, the Employer must affirmatively represent this fact to the Region.  Charges filed by individuals.  Members Pearce, McFerran, and Emanuel participated.

MGM Resorts Mississippi, Inc., d/b/a Gold Strike Casino Resort  (15-CA-196203)  Robinsonville, MS, May 24, 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.  In response to the Employer’s arguments that it had already provided the Region access to subpoenaed surveillance footage through a web portal and that the Employer should not have to produce a copy of the footage because, if made public, it could compromise the security of its surveillance system, the Board denied the Petition to Revoke, subject to the Region’s entering into an appropriate confidentiality agreement protecting the copy of the surveillance video from disclosure.  Charge filed by an individual.  Members Pearce, McFerran, and Emanuel participated.

M&M Affordable Plumbing  (13-CA-121459)  Rockdale, IL, May 24, 2018.  No exceptions having been filed to the March 9, 2018 supplemental decision of Administrative Law Judge Melissa M. Olivero’s determination of amounts of backpay due and recommendation that the Respondent pay such amounts, the Board adopted the judge’s findings and conclusions in her supplemental decision, and ordered the Respondent to pay the amounts set forth in the judge’s recommended Supplemental Order.  Charge filed by an individual.


Appellate Court Decisions

XPO Logistics Freight, Inc., Board Case No. 13-CA-196637 (reported at 365 NLRB No. 105) (D.C. Cir. decided May 25, 2018)

In an unpublished judgment in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this operator of a trucking terminal in Aurora, Illinois, after its drivers and hostlers voted 38 to 33 in an October 2016 election to be represented by Teamsters Local Union No. 179.  In doing so, the Court held that the Board acted within its discretion in overruling election objections alleging third-party misconduct without holding an evidentiary hearing.

After the election, the Employer filed objections alleging that a number of pro-union employees had created an environment of harassment and coercion that materially affected the election.  In support, it submitted an offer of proof that generally asserted that certain named witnesses would testify to coercive incidents that occurred prior to the election.  Thereafter, the Regional Director issued a decision finding the Employer’s offer of proof was insufficient to sustain its objections or to warrant a hearing, and certified the Union.  The Employer filed a Request for Review, which the Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting in part) denied, finding it raised no substantial issues warranting review.  The Employer then refused to bargain in order to seek court review.

On review, the Court rejected the Employer’s contention that the Board should have granted a hearing on the basis of its offer of proof.  The Court reiterated the settled standard that “[a]n evidentiary hearing is called for only when a party makes a prima facie showing of substantial and material issues of fact that, if true, would warrant setting aside the election,” citing 29 C.F.R. § 102.69(c)(1), and Durham School Services v. NLRB, 821 F.3d 52 (D.C. Cir. 2016).  Here, the Court explained, the offer of proof was instead largely conclusory and generally “devoid of factual specifics about who said or did what to whom that, if credited by a factfinder, could support a determination that the workplace was materially coercive.”

The Court’s unpublished judgment may be found here.

M.D. Miller Trucking and Topsoil, Inc., Board Case No. 13-CA-104166 (reported at 361 NLRB No. 141, and 365 NLRB No. 57) (D.C. Cir. decided May 23, 2018)

In an unpublished judgment, the Court enforced two Board orders issued against this company that hauls construction material and debris for D Construction, a road construction company with a site in Rockdale, Illinois.

In 2014, in the underlying unfair-labor-practice case (361 NLRB No. 141), the Board (then-Chairman Pearce and Members Johnson and Schiffer) found, among other things, that the Employer violated Section 8(a)(1) by threatening one of its drivers with loss of overtime when he objected to cuts in wages or benefits, and threatening that any grievance he filed over his discharge for alleged insubordination would be futile.  The Board found that, after that same employee prevailed in a grievance proceeding and was awarded reinstatement, the Employer violated Section 8(a)(3) and (1) by refusing to accept his then-current medical certification and by requiring him to complete multiple medical certifications as a condition of returning to work.  As a remedy, the Board ordered reinstatement and backpay.  After several procedural stages in the resulting compliance proceeding, in 2017, the Board (then-Chairman Pearce and Members Miscimarra and McFerran) issued an order (365 NLRB No. 57) requiring the Employer to pay the employee specific amounts of backpay.

On review, the Employer did not contest the unfair-labor-practice order, which the Court summarily enforced.  Instead, the Employer challenged the backpay order, arguing that the employee failed to conduct a reasonable job search and thus incurred a willful loss of earnings that relieved the Employer of its backpay liability.  Rejecting that defense, the Court upheld the Board’s finding that the employee conducted a reasonable job search, citing the Administrative Law Judge’s crediting of the employee’s testimony and his receipt of unemployment benefits.

The Court’s unpublished judgment may be found here.

Garda CL Atlantic Inc., Board Case No. 22-CA-196340 (reported at 365 NLRB No. 108) (D.C. Cir. decided May 22, 2018)

In an unpublished judgment in this test-of certification case, the Court enforced the Board’s bargaining order that issued against this provider of security-guard services from a facility in Edison, New Jersey.  In March 2016, a unit of the Employer’s guards, and drivers or messengers who perform guard duties as defined in Section 9(b)(3) of the Act, voted 38-35 to be represented by United Federation of Special Police and Security Officers.  On review of the certification of the Union, the Court upheld the Board’s overruling of the Employer’s two election objections that had alleged misconduct by the Board agent running the election.

Section 9(b)(3) of the Act defines the statutory term “guard,” and prohibits the Board from certifying any unit that includes both guards and non-guards.  As relevant here, while the election was in progress, the Union’s designated election observer challenged the eligibility of two voters on the basis that they were non-guards.  The Board agent informed each prospective voter of the challenge to his eligibility, and briefly asked him one or a few questions concerning his job classification and/or job duties, and explained that non-guards cannot be represented by a guard union.  The Board agent also presented their options:  that they could vote and their ballots would be placed in a challenged-ballot envelope, or that they could choose not to vote.  After the election, the Employer filed objections claiming that the Board agent engaged in misconduct that required the election to be set aside.  After a hearing, the Hearing Officer recommended overruling the objections.  On exceptions, the Regional Director affirmed the Hearing Officer’s conclusions, overruled the objections, and certified the Union.  The Employer filed a Request for Review, which was denied by the Board (Chairman Miscimarra and Members Pearce and McFerran).  Thereafter, the Employer refused to bargain to seek court review.

The Court held that the Board acted within its discretion in overruling the objections and certifying the Union.  Regarding the Board agent’s questions posed to prospective voters, the Court noted, citing precedent, that “the Board has long held that asking a few eligibility-related questions of a challenged voter is an appropriate step . . . that helps to weed out challenges which are frivolous, inadvertent, or interposed solely to obstruct orderly election procedure.”  The Court held that the Board agent’s “innocuous questions” were relevant to voter eligibility and served that legitimate function.  Regarding the Board agent’s statement that non-guards cannot be represented by a guard union, the Court stated that any ambiguity that the statement might have created was insufficient to compromise electoral fairness in light of the fact that the Board agent offered the challenged voters the opportunity to vote.

The Court’s unpublished judgment may be found here.

Thyme Holdings, LLC, d/b/a Westgate Gardens Care Center, Board Case No. 32-CA-190480 (reported at 365 NLRB No. 118) (D.C. Cir. decided May 22, 2018)

In an unpublished judgment in this test-of certification case, the Court enforced the Board’s bargaining order that issued against this operator of a nursing home in Visalia, California, after its licensed vocational nurses (LVNs) voted 20 to 2 in an election in 2016 to be represented by Service Employees International Union Local 2015.  In doing so, the Court upheld the Board’s determination that the Employer failed to carry its burden of proving its claim that the LVNs were supervisors under Section 2(11) of the Act.

In the underlying representation case, the Employer argued that the LVNs were statutory supervisors who had the authority to reward certified nursing assistants (CNAs), effectively recommend their hire, assign them, or discipline them.  After a hearing, the Hearing Officer recommended finding that the Employer failed to carry its burden of proof, and had instead relied largely on the testimony of two managers that consisted primarily of generalized or conclusory statements regarding the scope of the LVNs’ purported authority.  The Regional Director agreed and issued a Decision and Direction of Election.  The Employer filed a Request for Review, which was denied by the Board (Members Pearce and McFerran; Member Miscimarra, dissenting in part).  Thereafter, the Employer refused to bargain in order to seek court review.

The Court assessed each of the Employer’s claims of the LVNs’ purported supervisory status under the applicable standards and held that none was supported on the record.  In sum, the Court explained that because Board and court precedent provide that a party asserting supervisory status “cannot rely on general statements, as [the employer here] attempted to do to meet its burden, [the employer] failed to show that the Board erred in concluding that the LVNs are not statutory supervisors.”

The Court’s unpublished judgment may be found here.

Supreme Court Decisions

Murphy Oil USA, Inc., Board Case No. 12-CA-038808 (reported at 361 NLRB No. 72), enforcement denied, 808 F.3d 1013 (2015), aff’d S.Ct. No. 16-307, 2018 WL 2292444 (May 21, 2018)

In a 5-4 decision in three consolidated cases decided under the name Epic Systems Corp. v. Lewis, the Supreme Court affirmed the court of appeals’ decision denying enforcement of the Board’s order.  The Court relied on the Federal Arbitration Act in rejecting the Board’s position, announced in D.R. Horton, Inc., 357 NLRB 2277 (2012), enforcement denied in relevant part, 737 F.3d 344 (5th Cir. 2013), that an employer violates Section 8(a)(1) by maintaining or enforcing a mandatory-arbitration agreement that does not allow its employees to file joint, class, or collective employment-related claims in any forum, arbitral or judicial.

The Supreme Court’s decision may be found here (link is external).  The Board’s brief to that Court is here (link is external).


Administrative Law Judge Decisions

MV Transportation, Inc.  (28-CA-145067; JD-35-18)  Phoenix, AZ.  Administrative Law Judge Charles J. Muhl issued his decision on May 24, 2018.  Charge filed by an individual.

Sheet Metal Workers Local Union 85 (The Logistics Company, Inc.)  (10-CB-179895; JD-33-18)  Columbus, GA.  Administrative Law Judge Donna N. Dawson issued her decision on May 24, 2018.  Charge filed by an individual.

Part-Time Faculty Association at Columbia College  (13-CB-165873, et al.; JD-34-18)  Chicago, IL.  Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on May 24, 2018.  Charges filed by individuals and Columbia College Chicago.

United States Postal Service  (08-CA-197451; JD-36-18)  Toledo, OH.  Administrative Law Judge Thomas M. Randazzo issued his decision on May 25, 2018.  Charge filed by American Postal Workers Union, Local 170.

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