Summarized Board Decisions
Brink’s Inc. (29-CA-097556; 360 NLRB No. 136) Brooklyn, NY, June 25, 2014.
The Board affirmed the Administrative Law Judge’s finding that the Respondent did not violate Section 8(a)(3) and (1) when it suspended and discharged an employee who engaged in union activity around the same time the suspension and discharge occurred. The Board affirmed the Administrative Law Judge’s finding that the Respondent was not aware of the employee’s union activity. Charge filed by Federation of Armored Car Workers. Administrative Law Judge Margaret G. Brakebusch issued her decision on November 25, 2013. Members Miscimarra, Hirozawa, and Schiffer participated.
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Standard Parking, Imperial Parking, Ampco System Parking d/b/a ABM Parking Services, Laz Parking, Interpark, individually and on behalf of Chicago Parking Association (13-CA-071259; 360 NLRB No. 132) Chicago, IL, June 25, 2014.
The Board adopted the Administrative Law Judge’s finding that the Respondent did not violate Section 8(a)(5) and (1) by refusing to sign the October 28, 2011 draft agreement circulated by the Union. The Board found that the General Counsel had failed to establish that the parties had reached a meeting of the minds. Charge filed by Teamsters Local No. 727. Administrative Law Judge Geoffrey Carter issued his decision on October 25, 2013. Chairman Pearce and Members Johnson and Schiffer participated.
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Austin Fire Equipment LLC (15-CA-019697; 360 NLRB No. 131) Prairieville, LA, June 25, 2014.
A Board panel majority consisting of Chairman Pearce and Member Schiffer adopted the Administrative Law Judge’s finding that the Respondent’s application for an award under the Equal Access to Justice Act (EAJA) should be denied. The majority found that the General Counsel’s position—that the Respondent and the Union had formed a Section 9(a) relationship based on contract language alone—was substantially justified because the Board had never before examined the precise contractual language at issue. Member Miscimarra dissented, arguing that the Board’s decision in Staunton Fuel & Material, 335 NLRB 717 (2001), was controlling and the General Counsel did not have a reasonable basis for his theory of the case. Charge filed by Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO. Administrative Law Judge Margaret G. Brakebusch issued her supplemental decision on May 6, 2013. Chairman Pearce and Members Miscimarra and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Carlisle Interconnect Technologies, Inc. (19-RC-127475) Kent, WA, June 24, 2014. Order granting Employer’s request for special permission to appeal the Regional Director’s direction of a mail ballot election and letter setting forth the election arrangements, and denying the appeal on the merits inasmuch as the Employer failed to establish that the Regional Director abused his discretion. Petitioner—Teamsters Local Union No. 174, affiliated with The International Brotherhood of Teamsters. Chairman Pearce and Members Miscimarra and Schiffer participated.
Associated Materials d/b/a Alside Supply (13-RC-122175) Aurora, IL, June 24, 2014. No exceptions having been filed to the hearing officer’s report overrruling objections to an election held March 19, 2014, the Board certified the Petitioner, International Brotherhood of Teamsters Local Union No. 705, as the exclusive collective-bargaining representative of the employees in the appropriate unit.
Gordon Trucking, Inc. (14-RC-111693) Pontoon Beach, IL, June 25, 2014. Order denying the Employer’s request for review of the Regional Director’s approval of the Petitioner’s withdrawal of its petition without prejudice, on the ground that it raised no substantial issues warranting review. The Board found that it was within the Regional Director’s discretion under NLRB Casehandling Manual (Part Two) Sec. 11116.4 to approve the withdrawal of the petition without prejudice after the Petitioner filed objections and after the parties entered into a settlement of the objections, agreeing to a new election. Petitioner—Teamsters, Automotive, Petroleum and Allied Trades Local 50. Chairman Pearce and Members Miscimarra and Schiffer participated.
Paramedics Plus, LLC (32-RC-119917) San Leandro, CA, June 25, 2014. Order denying the Petitioner’s request for review of the Regional Director’s administrative dismissal of its petition. The Regional Director found the petition to be barred by the current contract in place between the Intervenor, National Emergency Medical Services Association, and the Employer, despite the Petitioner’s contention that the contract should not act as a bar because it was an extension of a prior contract and had not been ratified by membership. Petitioner—National Association of Government Employees Affiliated with Service Employees International Union, SEIU Local 5000. Intervenor—National Emergency Medical Services Association. Chairman Pearce and Members Miscimarra and Schiffer participated.
Hall Chevrolet, LLC (05-RC-126386) Chesapeake, VA, June 26, 2014. Order denying the Employer’s request for review of the Regional Director’s decision and direction of election. The Board panel majority consisting of Chairman Pearce and Member Schiffer agreed with the Regional Director, given his fact findings, that the body shop unit sought by the Petitioner is appropriate for bargaining under Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), enfd. sub. nom. Kindred Nursing Centers East v. NLRB, 727 F.3d 552 (6th Cir. 2013). The majority found that the body shop employees are readily identifiable as a group and share a community of interest. They work in a physically separate department, share some common terms and conditions of employment, and are separately supervised by their department manager. They are not interchanged with the employees in the Employer’s service or parts departments, and they also possess skills, training, and job functions distinct from the other two departments. The majority found that, while there is significant functional integration, contact, and some common terms and conditions of employment among the three departments, the work of one department is not dependent on the others and these features do not create an “overwhelming community of interest” whose factors “overlap almost completely,” such that there is “no legitimate basis” for excluding the other two departments from the unit. Id., slip op. at 11-13 and fn. 28; and also citing Courtesy Honda, 12-RC-083701, review denied November 1, 2012 (unit limited to service and lube technicians in employer’s service and parts department was appropriate under Specialty Healthcare, notwithstanding some functional integration, daily contact, and permanent interchange with excluded employees in the same department). Dissenting, Member Miscimarra would grant review regarding the appropriateness of the petitioned-for unit because in his view – whether or not one applies Specialty Healthcare (and without passing on the standard articulated in that case) – the Employer has identified similarities and distinctions between unit and non-unit employees, respectively, that resemble similarities and distinctions existing among employees within the petitioned-for unit, which in part prompted the Board to grant review in Macy’s, Inc., 01-RC-091163 (review granted Dec. 4, 2012) and The Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 02-RC-076954 (review granted May 30, 2012). Petitioner—International Association of Machinists & Aerospace Workers, AFL-CIO. Chairman Pearce and Members Miscimarra and Schiffer participated.
C Cases
Durham School Services, L.P. (05-CA-106483) Spring Grove, PA, June 24, 2014. No exceptions having been filed to the Administrative Law Judge’s findings that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by Teamsters Local Union No. 776. Administrative Law Judge David I. Goldman issued his decision on May 9, 2014.
The Columbus Show Case Company d/b/a CSC Worldwide and CSC Specialty Retail Group, LLC, a single employer (09-CA-112725) Columbus, OH, June 24, 2014. The Board denied Custom Retail Group LLC’s request for special permission to appeal from the Regional Director’s ruling denying its motion to intervene in this proceeding. The Board found that Custom failed to establish that the Regional Director abused his discretion in denying the motion. Chairman Pearce and Members Johnson and Schiffer participated.
H&M Plumbing and Mechanical Contracting, Inc. (03-CA-107687, et al.) Buffalo, NY, June 25, 2014. Board Decision and Order approving a formal settlement stipulation reached by the Respondent, the Charging Party Union and the General Counsel, and specifying the actions the Respondent must take to comply with the National Labor Relations Act. Charges filed by Laborers International Union of North America, Local Union No. 210. Chairman Pearce and Members Miscimarra and Schiffer participated.
Chesapeake Energy Corporation and its wholly owned subsidiary Chesapeake Operating, Inc. (14-CA-100530) Oklahoma City, OK, June 26, 2014. The Board denied the individual Charging Party’s request to withdraw the charge. Charge filed by an individual.
A&B Sheet Metal, Inc. (10-CA-108107 and 108115) Atlanta, GA, June 26, 2014. No exceptions having been filed to the Administrative Law Judge May 14, 2014 finding that Respondent had not engaged in certain unfair labor practices, the Board adopted the findings and conclusions of her Decision and dismissed the complaint. Charges filed by Sheet Metal Workers Local Union 85.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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United States Supreme Court Decision
On June 26, 2014, the Supreme Court issued its opinion in NLRB v. Noel Canning, holding that the President’s January 2012 recess appointments of Members Block, Flynn, and Griffin were not authorized by the Recess Appointments Clause. See Art. II, § 2, C1. 3 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”). The majority opinion was authored by Justice Breyer, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. An opinion concurring in the judgment was authored by Justice Scalia and was joined by Chief Justice Roberts and Justices Thomas and Alito.
The Court addressed the three questions on which it granted certiorari: (1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate; (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and (3) whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro-forma sessions.
Addressing the first question, the Supreme Court held that the phrase “the recess of the Senate” was ambiguous and that the scope of the phrase must be interpreted broadly to include both inter-session and intra-session recesses to not frustrate the Clause’s purpose of allowing Presidents to make appointments to ensure the continued functioning of government while the Senate is away. The Court placed weight on historical practice and the compromises and working arrangements that the elected branches of government had reached over the centuries. Regarding the issue of how long an adjournment must last to constitute a recess for purposes of the President’s recess appointment power, the Court held, primarily on the basis of historical practice and the 3-day period in the Adjournment Clause, that a break of 3 days or less is too short to fall within the scope of the Recess Appointments Clause and that a recess of more than 3 days but less than 10 days is presumptively too short.
On the second question, the Supreme Court held that the Clause’s ambiguous phase “vacancies that may happen during the recess of the Senate” applies to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. Again, the Court determined a broad interpretation of the phrase was necessary to serve the Clause’s purpose of ensuring that government offices needing to be filled can be filled, and again cited historical practices favoring that broad interpretation. The Court also noted its reluctance to upset traditional practice where doing so would seriously shrink the constitutional authority that Presidents believed existed and regularly exercised, and the Senate did not protest in any meaningful way.
Regarding the third question, the Supreme Court stated that for purposes of the Recess Appointments Clause, the Senate is in session when it says that it is in session, provided that, under its own rules, it retains the capacity to transact Senate business. That principle, the Court explained, is based largely on the deference the Court owes to the Senate’s determination because the Constitution gives the Senate broad authority over how to conduct its own business. The Court then held that here the Senate was in session during the pro forma sessions because the Senate said it was in session and had retained the power to conduct business. The Court noted that the Senate did in fact conduct business during a pro forma session in late December when it passed a bill by unanimous consent. The President, the Court therefore concluded, lacked the authority to make the January 2012 recess appointments during the 3-day periods between the pro forma sessions because those 3-day periods were too short to constitute a recess.
The concurring opinion concurred only in the Court’s judgment of affirmance. On the first question, Justice Scalia would have held that “the Recess” is only the gap between sessions (i.e., inter-session recesses) based on his reading of the unambiguous plain meaning of the Constitution’s text. But even if he agreed that the text was ambiguous and that historical practice was properly relied upon, he would have held that historical practice does not support the majority’s interpretation. On the second question, again assessing what he regarded as the plain meaning of the text, and alternatively the historical practice, Justice Scalia would have held that the President’s recess-appointment power is limited to vacancies that arise during the recess in which they are filled, and that the appointments at issue were invalid for that reason as well as for the reason that they were made during the session. The concurring opinion did not reach the third question having already determined that intra-session recess appointments would, in its view, be invalid.
The Court’s opinion is available here.
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Administrative Law Judge Decisions
Casino Pauma (21-CA-103026 and 114433; JD(SF)-30-14) Pauma Valley, CA. Administrative Law Judge Jeffrey D. Wedekind issued his decision on June 25, 2014. Charges filed by UNITE HERE International Union.
International Union of Operating Engineers Local 18 (Precision Pipeline, LLC) (09-CB-109639 and 118659; JD-39-14) Cincinnati, OH. Administrative Law Judge David I. Goldman issued his decision on June 25, 2014. Charges filed by individuals.
Landry’s Inc. and its wholly owned subsidiary Bubba Gump Shrimp Co. Restaurants, Inc. (32-CA-118213; JD(SF)-31-14) Houston, TX. Administrative Law Judge Gerald A. Wacknov issued his decision on June 26, 2014. Charge filed by an individual.
Source: NLRB.gov
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