02 May 2018 | National Labor Relations Board | David Pryzbylski.

Don’t Pick and Choose: Company’s Inconsistent Rules Enforcement Results in Employee Terminations Being Overturned

Employee discharge decisions often form the basis for disputes – whether they arise in court or before administrative agencies. Such decisions routinely are challenged by unions before the National Labor Relations Board (NLRB), and the agency has overturned terminations and reinstated workers in situations even where egregious misconduct was at issue. The board recently issued a decision where it overturned two employee terminations as a result of selective rules enforcement, which demonstrates yet again the importance of consistency by management when administering discipline.

 In Advanced Masonry Associates, LLC, a company discharged two workers who violated the company’s “fall-protection policy.” That policy required employees working at certain heights to wear specified safety equipment to minimize risks from falling. Over the years, employees generally were issued warnings and /or suspensions for violations of the policy. After a union filed a petition to represent the company’s workforce, however, two know union-supporters were discharged for their first violations of the policy. The NLRB ultimately found the two terminations violated labor law because, among other things, the employer had not consistently discharged employees under the policy on prior occasions (which can give rise to an inference that the true reason for the termination was retaliation for union activities).

 Another recent decision from the agency shows there are limits and that the NLRB will uphold terminations where employers build a solid record – including by showing consistent rules enforcement – but this case serves as yet another reminder that consistency in discipline administration remains key.

May 1, 2018

Executive Labor Summary – March / April 2018

News & Analysis

• New NLRB Chairman is John Ring
• NLRB gets “out of joint” over joint employer dispute
• NLRB’s extended period for comment on so-called “quickie election” rule ended on April 19, and General Counsel weighs in
• The NLRB now has “friend of the court” briefs on whether employee misclassification is an independent labor law violation
• NLRB and EEOC get back in sync to support employer efforts to increase civility and stop harassment and bullying in the workplace
• NLRB budget busting?
• Advice Memorandum concludes Section 7 activity includes political issues outside the workplace and outside of employer influence and control – but for how long?

The Good, the Bad and the Ugly

• A debate we can live with!
• Recuse, recuse, recuse, recuse!
• Will the Fiat Chrysler-UAW corruption investigation ever end?

NEWS & ANALYSIS
New NLRB Chairman is John Ring. President Trump’s most recent Republican nominee to the National Labor Relations Board became a Member and was named Chairman on April 20. John Ring fills the fifth and last open seat on the Board, giving Republicans a 3-2 majority, for the first time since December 2017. Chairman Ring’s term ends December 16, 2022.  He is a former management-side labor and employment attorney who was in private practice with the Washington, D.C. Office of Morgan Lewis, the same law firm for which his immediate predecessor as Chairman, Philip Miscimarra, was a partner. Chairman Ring is already facing politically-motivated calls for recusal due to his and his former firm’s representation of employers in the wide array of labor and employment law matters. Practitioners from the management side are hoping that he steers a steady course for a more balanced interpretation of the National Labor Relations Act than was the case under the Obama-era Board, of which Democrat Mark Gaston Pearce was Chairman. Mr. Pearce continues to serve on the NLRB as a Member, and his term will expireAugust 27 of this year.

NLRB gets “out of joint” over joint employer dispute.

As we last reported, recently seated Republican Member William Emanuel, who joined the Board in 2017, was under attack from Democratic senators, who asserted that he committed an ethical violation by participating in an important joint employment case that we reported on in December. In that case, Hy-Brand, the Board overruled, 3-2, the standard for joint employment in the 2015 Browning-Ferris decision, which was then awaiting review by the U.S. Court of Appeals for the District of Columbia Circuit. After the Hy-Brand standard effectively made Browning-Ferris “dead law,” the D.C. Circuit remanded Browning-Ferris to the Board at the Board’s request.

Browning-Ferris was a controversial decision that expanded the basis for a finding of joint employment. The decision was widely criticized by employers, in part because of the threat that the new standard posed to franchise relationships. Thus, the Hy-Brand decision, which vacated Browning-Ferris, was welcomed by employers.

Since we last reported on the Emanuel recusal controversy, Hy-Brand has fought back. In a motion for reconsideration filed with the Board, Hy-Brand contends that the Board violated Hy-Brand’s due process rights by excluding Member Emanuel from the case and the decision to vacate. Hy-Brand also contends that the decision to vacate was tainted by Member Pearce’s comments at an American Bar Association meeting on February 25 that an important decision was coming the next day. According to Hy-Brand, the Pearce comments were “an egregious breach of confidentiality and the Board’s deliberative process” and justified reconsideration of the decision to vacate. There apparently has been no ruling yet on Hy-Brand’s motion.

Meanwhile, NLRB General Counsel Peter Robb filed a response in the Hy-Brand case that is a scathing indictment of the Board’s action in vacating Hy-Brand and seeks reconsideration of that decision. According to the General Counsel, the decision to vacate violated the due process rights of the General Counsel and Hy-Brand. He also contends that the panel improperly relied on a document from the Board’s Designated Agency Ethics Official that was not part of the formal record in the case, and that the panel’s action violated Board policy by not allowing Emanuel himself to consider and decide the issue of recusal. In a footnote, the General Counsel notes that he disagrees with the NLRB Inspector General’s report that concluded that Member Emanuel violated ethical standards.

And in a March 22 letter to the Board’s Inspector General, counsel for Member Emanuel reportedly maintains, arguably correctly, that Member Emanuel had no conflict of interest and did not violate Board rules when he participated in the Hy-Brand decision. (The actual letter is not available publicly.)

But wait. There’s more. Member Pearce’s comments at the February ABA meeting are now the basis for a complaint that the Competitive Enterprise Institute has lodged with the Inspector General. And the Inspector General himself is the subject of a complaint filed by the National Right to Work Foundation over his ethics report on Member Emanuel. In that complaint, Right to Work argues that the Inspector General improperly disclosed deliberative communications of the Board. The Right to Work complaint is summarized below, quoting from the Washington Examiner:

The OIG issued a report finding that an NLRB official violated the Standards of Ethical Conduct for Employees of the executive branch because he improperly disclosed nonpublic deliberative information. We believe that, by disclosing privileged deliberative, pre-decisional communications in his two reports on Member Emanuel, IG Berry has committed the same violation,” Raymond J. LaJeunesse, the foundation’s legal director, said in a letter Thursday to the Council of the Inspectors General on Integrity and Efficiency, the independent federal office that oversees the inspectors general.

As for the Browning-Ferris case, on March 1, the NLRB asked the D.C. Circuit to re-consider review of the cross petitions in Browning-Ferris Industries. On April 6, the D.C. Circuit granted the Board’s motion to reopen the review in Browning-Ferris and placed the matter in abeyance until after the NLRB rules again in Hy-Brand.

Now that the Board has a full complement, including three Republican Members who can vote as a majority on the issue, and assuming Member Emanuel or one of the other two other Republicans are not recused, the Board can again consider the appropriate joint employment standard in Hy-Brand and possibly overrule Browning-Ferris. And even if the Hy-Brand case is littered with the residue of incorrect ethical opinions and actions of an Inspector General driven by political pressure, recent press reports indicate that NLRB General Counsel Robb has several other cases in the pipeline that could be the basis for overruling Browning-Ferris and resurrecting a Hy-Brand-like standard for determining joint employment. Stay tuned, please, we know it is a lot!

NLRB’s extended period for comment on so-called “quickie election” rule ended on April 19, and General Counsel weighs in. As previously reported, the NLRB, in a 3-2 vote last year along party lines, appeared to move toward revising or rescinding the Obama-era regulations governing Board representation elections (the so-called “new,” “quickie,” or “ambush” election rule). As a result of that vote, the Board issued a Request for Information seeking public comment as to whether the Board should revise the regulations or rescind them.

Beating the comment deadline by a day, on April 18 NLRB General Counsel Peter Robb announced his views on the subject. He suggested changes to the “blocking” charge policy adopted by the Democratic majority on the Obama-era Board in 2014. Under the “blocking” charge policy, if an unfair labor practice charge is filed in the course of an organizing campaign, the election is delayed pending resolution of the charge unless the charging party agrees to proceed. The General Counsel suggests that this policy unduly delays elections. Instead, he suggests that elections should go forward even if ULP charges are pending, but that the ballots should be impounded until the charges are resolved. He also suggests that pre-election hearings should be scheduled for 12 days after a petition is filed, instead of the current eight days, in order for position statements having preclusive effect to be filed by petitioning parties (typically unions) in response to employer position statements. This would give more balance to the pre-election hearing process. He suggested that voter lists should not be required, as currently, to include cell phone information of employees because this negatively affects employees. Finally, he suggested that in-person voting should be the norm, contending that mail balloting potentially compromises confidentiality and leaves employees subject to potential campaign pressures in their homes and the uncertainties of the U.S. Mail.

The NLRB now has “friend of the court” briefs on whether employee misclassification is an independent labor law violation. Acting on a novel theory advanced by former NLRB General Counsel Richard Griffin, an administrative law judge of the Board in Velox Express found last September that an employer violated Section 8(a)(1) of the NLRA by misclassifying medical laboratory drivers as “independent contractors.” Section 8(a)(1) makes it unlawful to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. In February, the Board invited the parties in the case and interested amici to file briefs on the issue. The deadline to submit a brief was April 16. Now the parties in the case and other interested observers await a decision from the Board.

NLRB and EEOC get back in sync to support employer efforts to increase civility and stop harassment and bullying in the workplace. On March 6, NLRB General Counsel Peter Robb announced that the Board will try to collaborate with the Equal Employment Opportunity Commission on civility rules in the workplace. The EEOC issued proposed guidance on harassment in the workplace and advocated civility rules and training, although the EEOC acknowledged that this could be problematic under the interpretations of Section 7 that had been issued by the NLRB during the Obama Administration. (The final EEOC guidance has yet to be issued.)

Before General Counsel Robb was confirmed, Acting EEOC Chair Victoria Lipnic was working on joint guidance with then-NLRB Deputy General Counsel Jennifer Abruzzo, but they faced significant obstacles. The outlook is brighter now that General Counsel Robb is confirmed, and in late December the Board suggested in Boeing Co. that it might look more favorably on workplace rules against bullying and in favor of civility.  In short, there is hope that the NLRB and EEOC can align themselves to produce clear, comprehensive, and rational guidelines that will make the workplace better for the vast majority of employees.

NLRB budget busting? The NLRB received $274 million in the Fiscal Year 2018 budget that passed the U.S. Senate and House of Representatives on March 19, matching the funding it received in 2017. But Trump Administration officials have proposed a decrease for 2019. Whether the budget cuts come to fruition or not, the Board is already taking steps to cut costs. We have anecdotal reports of Board regional office personnel curtailing travel and witness interviews in connection with unfair labor practice investigations. Recent press reports indicate that the Office of Management and Budget is withholding some funds from the Board that are due under the budget, which may be authorized by law as long as the withholding does not last for more than 45 days. The Administration continues to push for spending cuts and job freezes at the Board. Not surprisingly, the union representing Board employees opposes staff reductions.

Advice Memorandum concludes Section 7 activity includes political issues outside the workplace and outside of employer influence and control – but for how long? In an Advice Memorandum released to the public in March 2018 (which had been issued internally in August 2017 before the current General Counsel took the reins for management of that office), the NLRB Office of the General Counsel, Division of Advice, opined that an employer violated Section 8(a)(1) of the NLRA by discharging employees who willfully chose to be absent from work without permission to participate in “Day Without Immigrants” demonstrations. The employees had chosen to miss scheduled work and “strike” to protest President Trump’s positions on immigration. The Division of Advice, then still operating on the principles espoused by General Counsel Richard Griffin, came to an unsurprising opinion that the strike was protected concerted activity and therefore that the discharges violated the NLRA. Underpinning the opinion was the somewhat shaky determination that the strike had a direct relationship to terms and conditions of work. The Division determined that the strike, in part, was in response to sudden increased immigration raids in workplaces, and thus a workplace issue. But the Division of Advice apparently missed what many would consider to be the determinative fact — that the employer had no direct power to influence the immigration raiding policies of the federal government and thus the activity was not directed at terms and conditions of employment within the bargaining obligations of the NLRA, but instead was directed at national immigration law policy. The opinion was consistent with the views of former General Counsel Griffin, who, in a well-publicized guidance regarding employer workplace rules and policies, essentially asserted that concerted political activities are inherently related to working conditions and therefore protected concerted activities. It is not at all clear that current General Counsel Robb will agree.

THE GOOD, THE BAD AND THE UGLY
A debate we can live with! A Bloomberg BNA report on April 20 (paid subscription required for access) covered a debate we’re happy to have: whether the economy is at “full employment” or only “almost-full employment” after the tax and regulatory reform and more employer-friendly administrators have had time to work. According to the Federal Reserve, the current unemployment rate of approximately 4.5 percent means the economy is now finally at full employment. The Chair of the President’s Council of Economic Advisors is not entirely convinced. That naysayer is apparently asserting that “full employment” requires unemployment levels of 4 percent or less. In any event, the good news keeps on coming. According to the Federal Reserve, the unemployment rate is likely to fall even further, to 3.8 percent by the end of 2018 and 3.6 by the end of 2019, as businesses consider hiring more workers and doing more business in the still-improving economy.

Meanwhile, Marketplace, heard on National Public Radio, cites a report from the National Association for Business Economics indicating that more than one-third of U.S. companies have increased pay in the past quarter to try to attract workers, and that other employers have increased internal training or lowered qualification requirements to get workers.

Union-represented employees are reportedly benefitting from the stronger economy, too. According to Bloomberg BNA, pay raises in recently signed collective bargaining agreements are rising in 2018 compared with the corresponding period in 2017. First-year wage increases in labor agreements through January 28 averaged 2.9 percent, up from 2.8 percent in 2017.

Recuse, recuse, recuse, recuse! The “Committee to Preserve the Religious Right to Organize” filed a motion with the NLRB to request the recusal of all three Republican Board Members. The Committee argues that all have conflicts preventing them from fairly hearing and deciding any case because they represented employers in labor and employment their past careers. The Committee probably is aware that historically many Board members have come from careers at law firms representing employers, unions, or employees, or some of each, in labor and employment legal matters. And if only the two Democratic members were left at the Board, it could decide no cases because it would lack a quorum. That may be exactly what the Committee seeks.

The same Committee has also filed separate unfair labor practice charges against the Trump presidential campaign, alleging that the campaign’s employee guidelines, as well as confidentiality agreements with employees (including former employee Steve Bannon) contained unlawful confidentiality provisions. The Office of the NLRB General Counsel recommended in October that the charges be dismissed because (1) the “non-public information” which the confidentiality agreements covered did not restrict employees from disclosure of terms and conditions of employment, and (2) the charges were moot because the Campaign no longer had any employees. The Committee has appealed, and it also alleges that NLRB General Counsel Robb, who would ordinarily decide such an appeal as a matter of discretion, should be – guess what – recused! because he was nominated by President Trump. The Committee has also alleged that the Trump Vineyard in Virginia violated the NLRA by maintaining a curfew for certain vineyard workers living in company housing. That charge has also been dismissed.

We were unable to find a website for the Committee, but according to the Washington Free Beacon, the Committee is “a coalition of California unions and labor activists that sees union activities as a religious freedom issue.” What religion(s) that would be is not clear.

Will the Fiat Chrysler-UAW corruption investigation ever end? We have reported on ongoing events in the corruption investigation involving former officials of the UAW and the labor relations staff at Fiat Chrysler and a UAW training center in Michigan. At last report, we expected more indictments. Now “in the docks” is former senior UAW official Keith Mickens, the fifth person to be indicted. According to the Detroit News, Mr. Mickens is accused of buying luggage, electronics, designer clothes, and golf equipment with training center funds in excess of $7,500, and also with facilitating unlawful payments for the personal expenses of others who were involved in the corrupt scheme. Mr. Mickens was the president of a charity set up by a now-deceased UAW vice-president, which allegedly funneled payments from Fiat-Chrysler to the vice president. Mr. Mickens is expected to plead guilty. The UAW, for its part, has continued to assert that the corruption scheme was confined to a few bad actors and that no collective bargaining agreements were compromised as a result of the corruption. There is surely more to come on this.

Summary of NLRB Decisions for Week of April 16 – 20, 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

Kapstone Paper and Packaging Corporation  (19-CA-160107, et al.; 366 NLRB No. 63)  Longview, WA, April 20, 2018.

The Board adopted the Administrative Law Judge’s dismissal of the compliant, which alleged that the Respondent violated Section 8(a)(3) and (1) by discharging four employees because of their alleged strike misconduct.

Charges filed by Association of Western Pulp and Paper Workers, Local 153, affiliated with the United Brotherhood of Carpenters and Joiners of America. Administrative Law Judge Lisa D. Thompson issued her decision on November 17, 2016. Members McFerran, Kaplan,  and Emanuel participated.

***

Franklinton Preparatory Academy  (09-RC-144924; 366 NLRB No. 67)  Columbus, OH, April 20, 2018.

The Board adopted the Hearing Officer’s recommendation to overrule the Petitioner’s challenge to the ballot of an individual and adopted pro forma the Hearing Officer’s recommendation to sustain the Petitioner’s challenge to the ballot of another individual.  In addition, in the absence of exceptions, the Board adopted pro forma the Hearing Officer’s recommendations to overrule Petitioner’s Objection 4 alleging that the Employer interrogated unit employees about their union support and activities, and the portion of Objection 5 alleging that the Employer granted benefits to employees.  A Board majority (Members Pearce and McFerran) agreed with the Hearing Officer’s recommendation to sustain Petitioner’s Objection 3, finding that the Employer made statements threatening employees with the loss of existing benefits and terms and conditions of employment if they voted for the Union and that these objectionable statements warranted setting aside the election.  Dissenting, Member Kaplan stated his view that, in context, employees would reasonably understand the Employer to have made lawful statements about the collective-bargaining process.  Contrary to the Hearing Officer’s recommendation, the Board overruled the portion of Petitioner’s Objection 5, alleging that the Employer promised benefits to unit employees if they voted against union representation.  In light of the findings, the Board directed the Regional Director to open and count the ballot of one individual, and to prepare a revised tally of ballots.  The Board further directed that, if the revised tally of ballots shows that the Petitioner has not received a majority of the ballots cast, the Regional Director shall set aside the election and conduct a new election.

Petition filed by Franklinton Preparatory Academy Educators Association.  Members Pearce, McFerran, and Kaplan participated.

***

County Concrete Corporation  (22-CA-171328; 366 NLRB No. 64)  East Orange, Kenvil, Landi, Morristown, Oxford, and Sussex, NJ, April 20, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by modifying the dues-checkoff provisions of its collective-bargaining agreements with the Union and by refusing to deduct and remit dues to the Union in accordance with those agreements.  The Board noted that once the parties reached a meeting of the minds on the substantive terms of the collective-bargaining agreements, they were bound by the terms of the agreements, even before the agreements were signed.  In finding that the Respondent unlawfully refused to deduct and remit dues, the Board, unlike the judge, considered the merits of the Respondent’s affirmative defense (that its failure to deduct dues was justified because the Union had not advised employees of their rights under NLRB v. General Motors Corp., 373 U.S. 734 (1963) and Communications Workers of America v. Beck, 487 US. 735 (1988)).  However, the Board rejected that affirmative defense, explaining that while the Union’s failure to provide General Motors and Beck notice may affect the amount of dues it was entitled to receive, it did not justify the Respondent’s failure to honor its contractual obligation to check off dues.

Charge filed by Local 863, International Brotherhood of Teamsters.  Administrative Law Judge Mindy E. Landow issued her decision on April 18, 2017.  Members Pearce, Kaplan, and Emanuel participated.

***

International Union of Operating Engineers, Local 501 (GNVL Corp. d/b/a Golden Nugget Las Vegas)  (28-CB-182296; 366 NLRB No. 62)  Las Vegas, NV, April 20, 2018.

The Board adopted the Administrative Law Judge’s dismissal of the complaint, which alleged that the Respondent violated Section 8(b)(3) of the Act, because the Charging Party failed to establish the relevance of the requested extra-unit information. Member Pearce would additionally adopt the judge’s dismissal on vagueness grounds, relying on the Charging Party’s failure to respond to the Respondent’s request that it specify which of the Respondent’s bargaining proposals it sought extra-unit information about.

Charge filed by GNLV Corp. d/b/a Golden Nugget Las Vegas. Administrative Law Judge Mara-Louise Anzalone issued her decision on May 25, 2017. Members Pearce, McFerran, and Emanuel participated.

***

Mexican Radio Corp.  (02-CA-168989; 366 NLRB No. 65)  New York, NY, April 20, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by reprimanding and discharging four employees based on their protected concerted activity.  The Board also found that the Respondent violated Section 8(a)(1) by retroactively issuing a reprimand to an employee.

Charge filed by an individual.  Administrative Law Judge Kenneth W. Chu issued his decision on April 26, 2017.  Members McFerran, Kaplan, and Emanuel participated.

***

Student Transportation of America, Inc.  (12-CA-181426; 366 NLRB No. 61)  Jacksonville, FL, April 20, 2018.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of a bilateral informal settlement agreement.  The Board found that the Respondent failed to comply with the terms of the settlement agreement, and accordingly deemed all of the allegations in the reissued complaint to be true and ordered appropriate remedies.  Finding that the Respondent violated Section 8(a)(5) and (1) by creating a bus washer position covering work that was already being performed by unit employees, and establishing a wage rate for the bus washer position, the Board ordered the Respondent to rescind the bus washer position, restore all bus washers to their former positions, and bargain in good faith with the Union with respect to the terms and conditions of employees in the unit.

Charge filed by International Brotherhood of Teamsters, Local Union No. 512.  Members Pearce, Kaplan, and Emanuel participated.

***

Taylor Motors, Inc.  (10-CA-141565; 366 NLRB No. 69)  Fort Campbell, KY, April 20, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) when it suspended and discharged an employee for protected conduct he engaged in on the day of the first election.  The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by coercively interrogating an employee regarding his union activity.  The Board severed and retained for further consideration the complaint allegations that the Respondent unlawfully maintained and required employees to sign a confidentiality/nondisclosure agreement.

The first election was set aside by agreement of the parties, and a second election was held two months later, which the Union lost by five votes.  Based on the Respondent’s unlawful suspension and discharge, which took place in the aftermath of the first election, the Board set aside the second election and remanded a representation case to the Regional Director for further appropriate action.

Charge filed by American Federation of Government Employees (AFGE), AFL-CIO, Local 2022.  Administrative Law Judge Keltner W. Locke issued his decision on July 14, 2015 and his supplemental decision on September 29, 2017.  Members Pearce, McFerran, and Kaplan participated.

***

Able Building Maintenance  (27-CA-168632; 366 NLRB No. 68)  Denver, CO, April 20, 2018.

The Board granted, in part, the General Counsel’s Motion for Default Judgment pursuant to the terms of an informal settlement agreement.  The Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to furnish the Union with full payroll reports that include, for all employees, name, unique identifier, job title, union membership status, wage rate, hours worked, location(s) worked, overtime rate, overtime worked, hire date, and dues paid.  However, the Board found that the Respondent complied with the settlement’s requirement to provide building lists of all union and nonunion buildings in the Denver metropolitan area, as designated by the parties’ collective-bargaining agreement, with reports of additions and losses of buildings within the same period, and addresses for all buildings.

Charge filed by Service Employees International Union, Local 105.  Members Pearce, McFerran, and Emanuel participated.

***

Long Beach Memorial Medical Center Inc. d/b/a Long Beach Memorial Medical Center & Miller Children’s and Women’s Hospital Long Beach  (21-CA-157007; 366 NLRB No. 66)  Long Beach, CA, April 20, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining an overly broad workplace policy that only Respondent-approved pins, badges, and professional certifications may be worn.  A Board majority (Members Pearce and McFerran) reversed the judge to find that the Respondent also violated Section 8(a)(1) by maintaining an overly broad workplace policy that requires badge reels only be branded with the Respondent’s approved logos or text.  Dissenting in part, Member Emanuel found that the Respondent did not violate Section 8(a)(1) by maintaining the badge reel provision because the rule should be read in its entirety to apply only in immediate patient care areas and, even if applicable in non-patient care areas, because the Respondent has proven special circumstances justifying the restriction: a uniform policy.

Charge filed by California Nurses Association/National Nurses United (CNA/NNU).  Administrative Law Judge Jeffrey D. Wedekind issued his decision on August 31, 2016.  Members Pearce, McFerran, and Emanuel participated.

***

Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

New-Mac Electrical Cooperative  (14-UD-214395)  Neosho, MO, April 16, 2018.  The Board denied as moot the Employer’s Request for Review of the Regional Director’s determination to hold the petition in abeyance because the Regional Director had subsequently resumed processing the petition. Petitioner—an Individual. Union—  International Brotherhood of Electrical Workers Local No. 53.  Members Pearce, McFerran, and Emanuel participated.

National Hot Rod Association (NHRA)  (22-RC-186622)  Glendora, CA, April 16, 2018.  The  Board denied the Employer’s Request for Review of the Regional Director’s Order Denying Employer’s Motion for Reconsideration of and Withdrawal from Stipulated Election Agreement. Petitioner—International Alliance of Theatrical Stage Employees (IATSE).  Members Pearce, McFerran, and Emanuel participated.

Rocky Mountain Planned Parenthood, Inc. d/b/a PPRM  (27-RC-205940)  Denver, CO, April 16, 2018.  The Board (Members Kaplan and Emanuel; Member McFerran, dissenting) granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election regarding the Regional Director’s finding that the petitioned-for unit is appropriate as consistent with Board precedent concerning petitioned-for multi-facility units, but denying review as to all other issues.  The Petitioner had sought a multi-facility unit consisting of all of the Employer’s Colorado locations except three Southern Colorado locations.  The Employer has taken the position that the only appropriate bargaining unit is employer-wide, including its locations in all three states.  Applying the community of interest factors for multi-facility unit, the Regional Director found the petitioned-for unit to be appropriate, but with the exclusion of the Employer’s location at Salida, Colorado.  See Exemplar, Inc., 363 NLRB No. 157 (2016) (listing community-of-interest factors).   She directed a mail ballot election in this unit, with the employees voting separately in professionals and non-professional groups so that the professionals could determine whether they wished to be included in a single unit with the non-professionals.  Sonotone Corp., 90 NLRB 1236 (1950).  The Board panel (Members Kaplan and Emanuel) granted review only to determine whether the Regional Director’s finding is consistent with Board precedent concerning petitioned-for multi-facility units.  Member McFerran dissented, stating that she would find the unit found by the Regional Director to be reasonable, especially given the extensive distances (over 700 miles) between some of the included and excluded locations.  Petitioner—Service Employees International Union, Local 105.  Members McFerran, Kaplan, and Emanuel participated.

Domino’s Pizza, LLC  (29-RC-214227)  Howard Beach, NY, April 18, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Notice of Hearing, in which the Regional Director overruled, in whole in or in part, 13 of the Employer’s objections without a hearing based on deficiencies in the Employer’s offer of proof (while directing a hearing on 27 of the Employer’s objections).  The Board noted that the Request for Review, which was prepared by the Employer’s counsel, failed to provide any meaningful supporting explanation for the Employer’s contention that the offer of proof was sufficient to warrant a hearing on the overruled objections.  The Board observed that the Request for Review at no point summarized the evidence proffered in the offer of proof or explained why the Regional Director’s assessment of that evidence as erroneous.  The Board accordingly found that Request for Review failed to comply with the requirement that such a request be a self-contained document enabling the Board to rule on the issues on the basis of its contents.  The Board also denied the Employer’s request for extraordinary relief as moot.  Member Emanuel expressed no view with respect to whether he agreed or disagreed with the revisions to the Board’s Election Rule, but agreed that it applied and warranted denial of the Employer’s Request for Review and extraordinary relief.  Petitioner—Local 91 United Crafts & LLC Industrial Workers.  Members Pearce, McFerran, and Emanuel participated.

C Cases

United States Postal Service  (15-CA-150925, et al.)  New Orleans, LA, April 17, 2018.  In this case alleging independent Section 8(a)(5) and (1) allegations, the Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charges filed by American Postal Workers Union, AFL-CIO, New Orleans Local 83, and National Association of Letter Carriers, Branch 2730.  Members Pearce, McFerran, and Emanuel participated.

Kava Holdings, LLC, a Delaware Limited Liability Company, a/k/a Kava Holdings, Inc., a Delaware Corporation d/b/a Hotel Bel-Air  (31-CA-074675)  Los Angeles, CA, April 18, 2018.  The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge Lisa D. Thompson’s order precluding testimony by the Respondent’s proposed expert witnesses and barring the Respondent from reasserting its argument that delays in the case violated its due-process rights.  The Board found that the Respondent failed to establish that the judge’s ruling cannot be appropriately addressed at a later stage of the proceeding.  In addition, the Board found that the Respondent’s supporting argument fails to show that the judge abused her discretion in finding that the proposed expert testimony would not assist her in understanding the evidence or in determining any fact in issue.  Charge filed by UNITE HERE – Local 11.  Members McFerran, Kaplan, and Emanuel participated.

Hospital Metropolitano Rio Piedras  (12-CA-206254)  Tampa, FL, April 20, 2018.  The Board denied Employer’s Petition to Revoke the 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.  Additionally, the Board denied the Employer’s unsupported request for attorney’s fees.  Charge filed by Unidad Laboral de Enfermeras(os) y Empleados(as) de la Salud (ULEES).  Members Pearce, McFerran, and Emanuel participated.

Sunningdale Management Group, Ltd.  (28-CA-198874)  Scottsdale, AZ, April 20, 2018.  The Board denied Employer’s  Petition to Revoke the 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.  Charge filed by an individual.  Members McFerran,  Kaplan, and Emanuel participated.

***

Appellate Court Decisions

Transit Connection Inc., Board Case No. 01-CA-183197 (reported at 365 NLRB No. 9) (11th Cir. decided April 13, 2018)

In a published opinion, the Court enforced the Board’s bargaining order issued against this provider of public transit services on Martha’s Vineyard, an island off the coast of Cape Cod, Massachusetts, after its bus drivers voted in a second election to be represented by Amalgamated Transit Union Local 1548.  In doing so, the Court held that the Board did not abuse its discretion in setting aside a first election and validating the results of the second.

In the underlying representation case, the parties signed a stipulated election agreement that included the regular provision that the Employer provide the Union with a list of eligible voters consistent with Excelsior Underwear, Inc., 156 NLRB 1236 (1966), and its progeny.  In March 2015, the Union lost the election on a vote of 21 to 18 and filed an objection alleging that theExcelsior list did not comply with Board requirements.  For 37 of the 39 eligible employees on the list, the Employer provided only residential addresses and did not include the post-office box numbers it had on file.  Given the unique mail-delivery system on the island, most mailing addresses are post-office boxes.  Prior to the election, the Union sent a campaign mailer and an invitation to attend a Union meeting to the 39 employees relying primarily on the addresses provided.  Only 7 employees attended the meeting.  After the election, the Postal Service returned 22 of the 39 envelopes the Union had mailed as undeliverable.  After a hearing, the Hearing Officer issued a decision that recommended finding that the list did not substantially comply with the requirements of Excelsior and had prevented a substantial number of employees from making a free and reasoned decision regarding representation.  After the Employer filed exceptions, the Board (then-Chairman Pearce and Members Miscimarra and Hirozawa) adopted the Hearing Officer’s recommendations and issued a Decision and Direction of Second Election.

In September 2015, the Union won the second election on a vote of 17 to 14.  The Employer filed an objection alleging that two pro-union employees threatened a coworker with violence if he did not vote for the Union.  That objection was based on video footage of a conversation between three drivers at a bus stop who were long-term co-workers and friends.  Two of them were teasing the third about his driving when the first driver pointed his finger at the second driver and said, “Now’s your time to tell him that if he doesn’t vote for the Union I’m going to kill him,” and the second driver replied, “That’s right, that’s right, we’re all going to kill him.”  During the exchange, neither raised his voice nor changed his jocular tone, and afterward the three continued to discuss the upcoming election.  After a hearing, the Hearing Officer recommended overruling the objection, finding the statements were made in jest during a conversation among friends.  In March 2016, on exceptions, the Board (then-Chairman Pearce and Members Miscimarra and Hirozawa) adopted the Hearing Officer’s recommendation and certified the Union.  Thereafter, the Employer refused to bargain in order to seek court review.

On review, the Court recognized that the Board’s Excelsior rule “is designed to ensure an accurate and informed vote on the question of union representation,” and that an employer that provides addresses which it “knows are not likely to allow the union to reach the employees by mail violates that rule.”  Under those principles, the Court concluded that the Employer’s failure to provide a proper and accurate list was in contravention of the Excelsior and upheld the Board’s ordering of the second election.  In doing so, the Court rejected the Employer’s contentions that it was up to the Union to verify the addresses, and that the Union could have used the residential addresses to visit employees at home.  On the alleged threat, the Court stated that “[a]fter review of the video of the incident which is part of the record, we conclude that the hearing officer did not abuse her discretion when she concluded that the statements were made in jest among friends.”  Accordingly, the Court upheld the results of the second election and the Board’s certification of the Union.

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

***

Administrative Law Judge Decisions

Lowe’s Home Centers, LLC  (19-CA-191665; JD(SF)-10-18)  Mill Creek, WA.  Administrative Law Jude Amita Baman Tracy issued her decision on April 17, 2018.  Charge filed by an individual.

Valmet, Inc.  (15-CA-206655 and 15-RC-204708; JD-26-18)  Columbus, MS.  Administrative Law Judge Arthur J. Amchan issued his decision on April 17, 2018.  Charge filed by United Steel, Paper and Forestry Rubber, Manufacturing, Energy, Allied and Industrial Service Workers International Union, AFL-CIO, CLC.

VT Hackney, Inc.  (06-CA-199799, et al.; JD-27-18)  Montgomery, PA.  Administrative Law Judge Robert A. Ringler issued his decision on April 19, 2018.  Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.