Summarized Board Decisions
Pro Works Contracting, Inc. (21-CA-120477 and 21-CA-121946; 362 NLRB No. 2) Santee, CA, January 27, 2015.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the consolidated complaint. The Board found that the Respondent violated Section 8(a)(1) by implicitly threatening employees with job loss and unspecified reprisals if they engaged in union and concerted activities; threatening its employees with job loss if they engaged in union and concerted activities; attributing an employee’s termination to that employee’s union and concerted activities; and interrogating its employees about the extent of their union activities. The Board also found that the Respondent violated Section 8(a)(3) and (1) by terminating three employees because the employees joined or assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities. The Board ordered that the Respondent cease and desist from engaging in this conduct, and that it offer the terminated employees full reinstatement to their former jobs and to make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them.
The Union requested that the Board order the Respondent to post the appropriate Board notice for the time period between the filing of the unfair labor practice charges and the date the notices are actually posted; mail the notices to the last known address of all employees employed by the Respondent from December 23, 2013 until the notices are posted or mailed; and mail the Board’s Decision and Order along with the notice to all of the Respondent’s employees. The Board denied these requests because the Union did not show that these additional measures were needed to remedy the effects of the Respondent’s unfair labor practices. However, the Board granted the General Counsel’s request that the notice be mailed to the three unlawfully discharged employees in light of the nature of construction-industry employment, where jobs are of limited duration, and employees frequently work for various employers. Member Miscimarra, in the absence of any opposition, similarly approved the General Counsel’s requested remedy that the Respondent mail the notice to the discriminatees at their last known addresses. However, he noted that the General Counsel did not articulate a justification for this nonstandard remedy, and he did not pass on the appropriateness of such a remedy in future cases. Charges filed by Iron Workers Local 229, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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The Board issued a Decision and Direction of Second Election. The Board adopted the hearing officer’s recommendation to set aside the election because five eligible voters, a determinative number, were prevented from casting ballots by their work assignments. The Board declined to remand for a second hearing on four non-determinative challenged ballots, rejecting the Employer’s contention that the challenges should first be resolved because that could potentially determine whether the five disenfranchised voters affected the election result.
Member Johnson agreed that the election must be set aside, but he would find that an employee’s failure to vote would not be grounds for setting aside an election if it were shown, as it was not shown in this case, that the employee had consciously chosen not to participate in the election by accepting a truly voluntary work assignment. Petitioner—International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman Pearce and Members Johnson and McFerran participated.
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The Board previously had granted the Union’s request for review of the Acting Regional Director’s decision to exclude drywall hangers and finishers from the petitioned-for unit. Applying the rationale in its recently issued decision in FedEx Home Delivery, 361 NLRB No. 55 (2014), the Board panel majority consisting of Chairman Pearce and Member Hirozawa agreed with the Acting Regional Director that the crew leaders who hired crews of drywall hangers and finishers were independent contractors. In finding independent contractor status the Board relied on several factors, including that crew leaders operated their own drywall installation businesses, accepted work on a project basis, and their work was not controlled by the Employer or performed under its direction. Additionally, crew leaders practiced a skilled trade using their own tools and supplies, paid their own crews, and carried their own insurance. Further, crew leaders had opportunities for gain by, among other things, turning down work that did not pay enough, setting crew sizes on jobs, splitting crews among jobs, and determining pay for their crews. The Board therefore found that they render services as part of an independent business.
The Board further agreed with the Acting Regional Director that the crews were employees of the crew leaders, and not the Employer. Among other things, the crew leaders hired their crews, set all of their crews’ terms and conditions of employment, exclusively directed crew work, and carried liability insurance for their work. Member Johnson, in concurrence, adhered to his criticism of the majority decision in FedEx, but agreed that under his dissent in that case the result would be the same. Petitioner—International Union of Painters and Allied Trades Local Union 1275. Chairman Pearce and Members Hirozawa and Johnson participated.
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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 affirmed the judge’s rulings, findings, and conclusions, and adopted the judge’s recommended Order to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 359 NLRB No. 155, which was incorporated by reference. In that Decision, the Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with prior notice and an opportunity to bargain over the effects of its decision to reduce the scheduled hours of unit employees, found that deferral to a related arbitral award was not appropriate, and modified the judge’s recommended remedy. Charge filed by SEIU Healthcare Michigan. Administrative Law Judge Ira Sandron issued his decision on March 12, 2013. Chairman Pearce and Members Hirozawa and McFerran participated.
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The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case, finding that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation proceeding, in which the Union was certified as the exclusive collective-bargaining representative of unit employees. Therefore, the Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union since about October 7, 2014. The Board found no merit in the Respondent’s contentions, which were rejected in the representation proceeding, that four individuals included in the bargaining unit are supervisors and that they engaged in conduct that was objectionable even if they are not supervisors. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7898. Chairman Pearce and Members Hirozawa and Johnson participated.
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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. For the reasons stated in the Board’s vacated Decision and Order reported at 358 NLRB No. 90 (2012), Chairman Pearce and Member Johnson affirmed the judge’s findings that the Respondent unlawfully refused to permit the Union’s designated representative to attend a grievance hearing in violation of Section 8(a)(5) and (1). They also adopted the judge’s findings that the Respondent violated Section 8(a)(5) and (1) when it failed to furnish requested information. Member Miscimarra, writing separately, concurred in the decision and, like Member Johnson, found that since mid-July 2011, the Respondent refused to permit the Union’s designated representative to attend grievance hearings. Charge filed by Local 174, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO.
Administrative Law Judge Arthur J. Amchan issued his decision on January 9, 2012. Chairman Pearce and Members Miscimarra and Johnson participated.
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In a Decision on Review, the Board reversed the Regional Director and dismissed the petition for unit clarification. The Petitioner, which represents a unit of employees at certain power plants in the Employer’s southern district, argued that employees performing similar work at a power plant the Employer had recently acquired were an accretion to the existing unit. The Board found that under the Board’s traditional accretion analysis, the Petitioner had not shown that the employees in the existing unit and the employees it sought to add to the unit shared the required overwhelming community of interest, particularly because the record did not show any common day-to-day supervision or interchange between the two groups. The Board noted that these two factors have been described as “critical,” and that their absence ordinarily defeats a claim of accretion. The Board observed that the Regional Director had acknowledged the absence of the “critical” factors, but that he had nevertheless found an accretion based on the Board’s preference for systemwide units in the public utility industry. Contrary to the Regional Director, the Board held that in cases where the accretion analysis and the systemwide preference are in tension, the systemwide preference is not dispositive. The Board explained that the accretion doctrine carefully balances industrial stability and employee free choice, and that applying the systemwide preference in the manner the Regional Director did disrupts that careful balance. The Board therefore stated that the systemwide preference cannot ipso facto establish the overwhelming community of interest necessary for an accretion finding, but that it is only one more factor in the accretion analysis, and a factor that cannot dictate a different result where the two “critical” accretion factors are lacking. In view of this analysis, the Board declined the Employer’s invitation to overrule the systemwide preference. Petitioner—International Brotherhood of Electrical Workers, Local 396, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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The Board granted the General Counsel’s motion for summary judgment in this refusal-to-bargain, test-of-certification case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the Charging Party Union was certified as the bargaining representative. The Board rejected the Respondent’s argument that it should consider new evidence in support of arguments it made in the representation proceeding. The Board found that the proffered evidence is not newly discovered and previously unavailable, nor would such evidence, if adduced, establish special circumstances. Charge filed by International Alliance of Theatrical Stage Employees. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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The Board adopted the Administrative Law Judge’s findings and conclusions that the Respondent violated Section 8(a)(5) and (1) when it failed to make benefit and vacation payments it was required to make under the collective-bargaining agreement and repudiated the collective-bargaining agreement by subcontracting unit work. The Board further found that the Respondent adopted the collective-bargaining agreement of its predecessor, and the collective-bargaining agreement that succeeded it. The Board amended the remedy to provide make-whole relief for unit employees hired by alter-ego BBQL, Inc., and ordered the Respondent to make delinquent fund contributions that have not been made since July 2012 on behalf of all unit employees, including those hired by BBQL, Inc. Charge filed by International Union of Elevator Constructors, Local 19. Administrative Law Judge Gerald M. Etchingham issued his decision on September 25, 2014. Chairman Pearce and Members Johnson and McFerran participated.
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The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(5) and (1) by reneging on its agreement with the Union to reinstate payroll dues deduction, and Section 8(a)(1) by distributing to employees letters encouraging and soliciting them to resign from the Union and by polling employees by tracking their responses to the letters. The Board also adopted the judge’s finding that the Respondent did not violate Section 8(a)(5) and (1) by unilaterally changing its recall procedures, rejecting the Union’s exception concerning this violation because it did not pertain to the theory alleged by the General Counsel. The Board, however, reversed the judge’s dismissal of an alleged unlawful interrogation, finding that regardless of whether the supervisor’s statements to the employee amounted to an interrogation, they were coercive regarding the employee’s exercise of his Section 7 rights. Charge filed by UNITE HERE! Local 8 and an individual. Administrative Law Judge Mary Miller Cracraft issued her decision on March 5, 2014. Chairman Pearce and Members Hirozawa and Johnson participated.
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R Cases
Fry’s Electronics, Inc. (32-RC-135431) Hanford, CA, January 27, 2015. Order denying the Employer’s request for review of the Regional Director’s decision and direction of election. The Regional Director found that ten disputed hourly supervisors are not statutory supervisors under Section 2(11) of the Act and therefore should be included in the unit of all hourly employees located at the Employer’s facility. Petitioner—Teamsters Local 517, International Brotherhood of Teamsters. Members Miscimarra, Hirozawa, and Johnson participated.
Parkview Community Hospital Medical Center (21-RC-121299) Riverside, CA, January 30, 2015. The Board adopted the hearing officer’s recommendation to overrule the Employer’s objections to an election held March 13, 2014. The objections alleged that the Union kept track of who had voted, engaged in surveillance or created the impression of surveillance, misrepresented an employee’s support for the Union, and intimidated voters on election day. The objections also alleged that the Board agents engaged in various acts of misconduct during the election. Regarding an objection that a Union representative surveilled or intimidated employees on their way to the polls, the Board noted that, even assuming the Union representative was stationed closer to the polling area than the hearing officer found, his presence was insufficient to warrant setting aside the election. Member Johnson included a footnote agreeing with his colleagues that the Union did not engage in objectionable conduct by distributing a flyer containing employees’ pictures without their consent, but added that he has concerns about the potential of such conduct to interfere with the electoral process. Member Johnson additionally noted in a footnote, regarding an objection alleging that the Board agents failed to properly supervise and control the voting list, that although voter fraud is a significant issue, the Employer failed to meet its burden of proof. Petitioner—Service Employees International Union, United Healthcare Workers-West (SEIU-UHW). Chairman Pearce and Members Johnson and McFerran participated.
C Cases
Globe Wholesale Tobacco Distributors Inc., d/b/a Globe Wholesale Co. (29-CA-093481) Brooklyn, NY, January 26, 2015. The Board denied the General Counsel’s motion to reopen or supplement the record.
Costco Wholesale Corporation (05-CA-122612) Gaithersburg, MD, January 27, 2015. No exceptions having been filed to the December 16, 2014 decision of Administrative Law Judge Eric M. Fine finding 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.
MPE, Inc. (09-CA-084228 and 09-CA-084595) Lancaster, KY, January 29, 2015. The Board granted the General Counsel’s request for special permission to appeal a ruling of the Administrative Law Judge denying the General Counsel’s Motion to Allow Video Testimony. The Board found that the judge erred in denying the motion to allow video testimony, as the General Counsel has demonstrated that a key witness in this matter is unavailable to testify in person because he is incarcerated in federal prison. The Board was persuaded by the General Counsel that the GLOWPOINT video conference technology used by the Board and by the Federal Bureau of Prisons is acceptable for video testimony, subject to appropriate procedural safeguards to preserve the due process rights of the parties. The Board remanded the matter to the Administrative Law Judge for a hearing. The Board stated that its order is without prejudice to the judge striking the video testimony if the judge subsequently determines that the actual circumstances of the video testimony do not provide the parties with a meaningful opportunity to examine and cross-examine the witness, or give the judge the appropriate ability to assess the witness’s demeanor for the purposes of assessing his credibility. Charges filed by individuals. Members Miscimarra, Hirozawa, and Johnson participated.
MPE, Inc. (09-CA-084228 and 09-CA-084595) Lancaster, KY, January 29, 2015. The Board denied the Respondent’s Renewed and Amended Motion for Summary Judgment or alternatively Motion to Dismiss and compel arbitration. The Board found that the Respondent failed to establish that there are no material issues of fact warranting a hearing and that it is entitled to summary judgment as a matter of law, or that that the allegations are barred by the equitable doctrine of laches. While the Board agreed with the General Counsel that references to the Charging Parties’ criminal records were not relevant to the disposition of the motion, in light of the General Counsel’s pleadings, which referenced the Charging Parties’ incarceration, the Board denied the General Counsel’s request that the Board strike from the Respondent’s motion all references to the Charging Parties’ criminal records. Further, the Board declined to defer the complaint allegations to arbitration in this matter, where the Respondent had not agreed to waive the procedural issue of timeliness.
Member Johnson expressed no opinion on the merits of the Respondent’s laches defense, but noted that he agrees with the Respondent that “at some point laches [will] apply against the Board for inordinate delay in bringing an action.” Pleasantview Nursing Home v. NLRB, 351 F.3d 747, 765 (6th Cir. 2003) (quoting NLRB v. Mich. Rubber Prods., 738 F.2d 111, 113 (6th Cir.1984)). However, Member Johnson found that although counsel for the General Counsel did not specifically argue in his opposition that there is a factual dispute preventing summary judgment on the basis of laches, he generally argued facts that would undermine the defense, e.g., that no prejudice existed to the Respondent. In this circumstance, Member Johnson found that the laches defense was inappropriate for disposition on summary judgment. Charges filed by individuals. Members Miscimarra, Hirozawa, and Johnson participated.
Professional Security Officers and Investigators of America and Professional Security Officers and Investigators of America, Local 101 (Deco, Inc.) (14-CB-126322) Oklahoma City, OK, January 29, 2015. No exceptions having been filed to the December 15, 2014 decision of Administrative Law Judge Arthur J. Amchan finding that 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 an individual.
The Hillshire Brands Company (16-CA-115125) Haltom City, TX, January 30, 2015. No exceptions having been filed to the December 17, 2014 decision of Administrative Law Judge Robert A. Ringler finding 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. Charges filed by United Food and Commercial Workers, Local 540, affiliated with United Food and Commercial Workers, AFL-CIO.
Building Laborers’ Local Union No. 310 (KMU Trucking & Excavating, Inc.) (08-CD-109665) Westlake, OH, Warrensville Hts., OH, Middleburg Hts., OH, Beachwood, OH, and Cleveland, OH, January 30, 2015. Order denying Operating Engineers Local 18’s Motion for Reconsideration of the Board’s September 3, 2014 Decision and Determination of Dispute reported at 361 NLRB No. 37. Charges filed by KMU Trucking and Excavating, Schirmer Construction Co., Platform Cement, Inc., 21st Century Concrete Construction, Inc., Independent Excavating, Inc., and Donley’s, Inc. Chairman Pearce and Members Hirozawa and Johnson participated.
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No Appellate Court Decisions involving Board Decisions to report.
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Tarlton and Son, Inc. (32-CA-119054 and 32-CA-126896; JD(SF)-01-15) Fresno, CA. Administrative Law Judge Amita Baman Tracy issued her decision on January 27, 2015. Charges filed by an individual.
South Lexington Management Corp. (02-CA-126454 and 02-CA-133274; JD(ATL)-02-15) Astoria, NY. Administrative Law Judge William Nelson Cates issued his decision on January 29, 2015. Charges filed by Local 32BJ Service Employees International Union.
Novelis Corporation (03-CA-121293; JD-05-15) Oswego, NY. Administrative Law Judge Michael A. Rosas issued his decision on January 30, 2015. Charges filed by United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers, International Union, AFL-CIO.
Source: NLRB
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