Evenflow Transportation, Inc. (02-CA-040128; 361 NLRB No. 160) Mount Vernon, NY, December 16, 2014.
In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order. The Board agreed with the rationale previously set forth in Evenflow Transportation, Inc., 358 NLRB No. 82 (2012), and affirmed the judge’s rulings, findings, and conclusions and adopted the judge’s recommended Order to the extent and for the reasons stated. The Board Panel agreed with the judge that the Respondent violated Section 8(a)(1) by interrogating employees and threatening employees in the course of a union organizing campaign, and violated Section 8(a)(3) and (1) by laying off five employees during the course of a union organizing campaign. A majority of the panel, consisting of Members Hirozawa and Schiffer, ordered a public reading of the Notice to Employees by the Respondent’s general manager, who personally participated in several of the Respondent’s unlawful actions, on the ground that the Respondent’s violations of the Act were sufficiently serious and widespread. Contrary to his colleagues, Member Johnson would not order a public reading of the Notice, as he did not agree that the violations were sufficiently widespread and serious to warrant that remedy. Charge filed by Local 713, International Brotherhood of Trade Unions. Administrative Law Judge Raymond P. Green issued his decision on August 30, 2011. Members Hirozawa, Johnson, and Schiffer participated.
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R Cases
No unpublished representation cases to report.
C Cases
E-Center (20-CA-124323 and 20-CA-125698) Marysville, CA, December 30, 2014. No exceptions having been filed to the November 10, 2014 decision of Administrative Law Judge John J. McCarrick finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s decision and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charges filed by Service Employees International Union, Local 1021, CLC.
Allied Barton Security Services LLC (07-CA-093970, et al.) Dearborn, MI, December 30, 2014. No exceptions having been filed to the October 24, 2014 decision of Administrative Law Judge Eric M. Fine finding that the Respondents had engaged in certain unfair labor practices, the Board adopted the judge’s findings and ordered the Respondent-Employer, Allied Barton Security Services, LLC, and Respondent-Union, Local No. 1, United Protective Workers of America, to take the action set forth in the judge’s recommended Order. Charges filed by individuals.
Allied Waste Services of Massachusetts, LLC d/b/a Allied Waste Services of Fall River a/k/a The Fall River Hauling Company (01-CA-123082 and 01-CA-126843) Fall River, MA, December 31, 2014.
The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. The Board also held that the Employer failed to establish any other legal basis for revoking the subpoena and that the Employer’s blanket and generalized assertions of confidentiality were insufficient.
In addition, a Board panel majority specifically found that the subpoenaed document – the employer’s “Employee Handbook” – was potentially relevant to the specific alleged violations articulated in the unfair labor practice charge. The majority noted that the standard of relevance applicable to Board subpoenas is extremely broad, and found that although neither of the two pending charges alleged a violation based on language contained in the Employee Handbook, the Regional Director articulated a legitimate position that the Employee Handbook could shed light on the articulated nondiscriminatory reasons for the alleged unlawful discharge or could relate to the disciplinary process generally, which, in turn, could bear on the potential existence of animus. The majority further stated that absent the justification proffered by the Region, there could be merit in Employer’s additional argument that insistence on the entire handbook was a fishing expedition. The majority then addressed two considerations it found relevant.
First, the majority observed that Section 11(1) of the Act limits the Board’s subpoena power to a particular “matter under investigation or in question,” and further observed that the statute does not give the Board authority to initiate its own unfair labor practice proceedings. Specifically, the majority noted that although Section 10(a) states that the Board is empowered “to prevent any person from engaging in any unfair labor practice,” Section 10(b) makes clear that the Board may only issue complaints and hold hearings regarding unfair labor practices“[w]henever it is charged that any person has engaged in or is engaging in any such unfair labor practice” (emphasis added).
Second, the majority observed that the National Labor Relations Act’s legislative history reveals the above limitation on the Board’s authority was no accident. The earliest Wagner Act legislation, as introduced, would have given the Board broad affirmative powers to address matters at the Board’s own initiative. However, the majority noted that by the time the NLRA was enacted, Congress had eliminated the Board’s power to initiate or expand unfair labor practice proceedings, at the Board’s initiative, as reflected in the express limitations set forth in Sections 10(b) and 11(1).
In short, the majority found that the Region’s explanation of relevance here – indicating that the request for the Employee Handbook bears some potential relevance to the pending allegations – warranted denying the Employer’s petition to revoke. However, the majority stated that if the record revealed that the Region invoked its subpoena power to obtain employee handbooks or policy statements for the purpose of initiating or expanding charges or investigations, this would be an “improper purpose” that would warrant revocation of the subpoena, and such action would constitute an exercise of authority that Congress intentionally denied to the Board. The majority concluded that in the instant case, the record did not establish that the Region subpoenaed the Employee Handbook for an improper purpose, and accordingly, denied the Employer’s petition to revoke.
Member Hirozawa concurred in the result. He joined his colleagues in denying the Employer’s petition to revoke, finding that the subpoena clearly met the requirements of Section 11(1) of the Act and Section 102.31(b) of the Board’s Rules, and that it fell well within the long-recognized scope of the Board’s investigatory power. He stated that, therefore, it was not necessary to address his colleagues’ views on the limits of that power or their discussion of whether the subpoena would be proper in the hypothetical situation they described. Members Miscimarra, Hirozawa, and Johnson participated.
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No Appellate Court Decisions involving Board Decisions to report.
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Lily Transportation Corp. (01-CA-118372; JD(NY)-48-14) Needham, MA. Administrative Law Judge Raymond P. Green issued his decision on December 29, 2014. Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 15, Local 447.
Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas (28-CA-120975; JD(SF)-60-14) San Francisco, CA. Administrative Law Judge Mary Miller Cracraft issued her decision on December 30, 2014. Charge filed by an individual.
Graymont PA, Inc. (06-CA-126251; JD-74-14) Pleasant Gap and Bellefonte, PA. Administrative Law Judge David I. Goldman issued his decision on December 30, 2014. Charge filed by Local Lodge D92, United Cement, Lime, Gypsum and Allied Workers, a Division of International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO.
Paratransit Services Inc. (20-CA-110937; JD(SF)-61-14) Lower Lake, CA. Administrative Law Judge Dickie Montemayor issued his decision on December 31, 2014. Charge filed by Teamsters Local 665.
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Source: NLRB
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