Grand Canyon Education, Inc. d/b/a Grand Canyon University (28-CA-022938, et al.; 362 NLRB No. 13) Phoenix, AZ, February 2, 2015.
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 decision and the record. The Board adopted the judge’s rulings, findings, and recommendations to the extent and for the reasons stated in the vacated Decision and Order reported at 359 NLRB No. 164 (2013). In that case, the Board adopted the administrative law judge’s findings that the Respondent lawfully discharged two employees, based on its showing that it would have discharged them even in the absence of their protected activity, and that the Respondent violated Section 8(a)(1) by discharging a third employee for her protected concerted activity. The Board also found that the Respondent violated Section 8(a)(1) by orally affirming an unlawful written rule prohibiting employees from discussing counseling meetings with anyone. Additionally, the Board found that a supervisor’s statements that a particular group of enrollment counselors were “opinionated” and “a hard case,” and that an employee’s remarks in a meeting were disrespectful did not constitute an implied threat. Contrary to the judge, the Board further concluded that the Respondent coercively interrogated an employee, in a conversation about the performance of the employee’s supervisor, by asking for the names of employees who had complained about the supervisor.
Member Miscimarra concurred in finding that one employee’s discharge violated Section 8(a)(1) and that the remaining two discharges were lawful. He further concurred in finding that the Respondent violated Section 8(a)(1) by orally affirming the unlawful written confidentiality rule. Member Miscimarra dissented with respect to the alleged interrogation, finding that the Respondent’s questions involved the performance of a supervisor rather than employees’ protected activities and that there could be no reasonable belief that the Respondent threatened or intended to take adverse action against the employees whose names were requested.
Charges filed by four individual employees. Administrative Law Judge Gregory Z. Meyerson issued his decision on October 21, 2011. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Second Supplemental Decision and Order reversing the Administrative Law Judge’s finding that Lederach Electric, Inc. (LEI) and Morris Road Partners, LLC (MRP) do not constitute a single employer. The panel adopted the judge’s finding that LEI and MRP shared common management, ownership, and financial control. The panel also agreed with the judge that the record contains no evidence of centralized control of labor relations, but noted that the absence of such evidence is less significant in this case because MRP never had employees. Contrary to the judge, the panel found that the absence of a common business purpose is not fatal to finding an interrelationship of operations and single-employer status. With respect to the interrelation of the companies’ operations, Chairman Pearce and Member Hirozawa found it significant that MRP allowed LEI to forego contractual rent payments to MRP and did not attempt to recover the amount due. Member Johnson did not rely on MRP’s assistance to LEI in finding that the entities constitute a single employer. Having found that LEI and MRP constitute a single employer, the panel ordered the companies to jointly and severally make whole the discriminatees in the amounts set forth in Lederach Electric, Inc., 361 NLRB No. 21 (2014).
Charge filed by International Brotherhood of Electrical Workers, Local 380. Administrative Law Judge Arthur J. Amchan issued his decision on April 30, 2014. Chairman Pearce and Members Hirozawa and Johnson participated.
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The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by twice threatening employees with termination because of their protected concerted activity and by discharging an employee for conduct that occurred during the course of her protected concerted activity. The majority noted, contrary to the judge, that the fourth factor of the Atlantic Steel Co., 245 NLRB 814 (1979), test—whether the employee’s outburst was provoked by the employer’s unfair labor practice—weighed in favor of protection because the employee’s outburst was provoked by the Respondent’s unlawful threats of termination. Member Johnson agreed with his colleagues’ adoption of the judge’s findings of violations. He added that he would have solely relied on a particular statement made by the Respondent in finding the unlawful threat of termination. Member Johnson also clarified which conduct he regarded as constituting the employee outburst in the judge’s Atlantic Steel analysis, noted that he would find that the nature of the employee’s outburst weighed weakly toward a loss of protection, and stated that he would not disturb the judge’s finding that the provocation factor of the Atlantic Steel test did not weigh in favor of protection. Charge filed by an individual. Administrative Law Judge Melissa M. Olivero issued her decision on July 17, 2014. Chairman Pearce and Members Hirozawa and Johnson participated.
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The National Labor Relations Board issued a Decision, Certification of Representative, and Notice to Show Cause in this consolidated representation and unfair labor practice proceeding. On June 14, 2013, the then-Acting General Counsel issued a complaint in this matter, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 10-RC-095843. The Respondent filed an answer admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On July 3, 2013, the Acting General Counsel filed a Motion for Summary Judgment with the Board.
In its answer to the complaint, the Respondent admitted its refusal to bargain, but contested the validity of the certification on the ground that the Board lacked a quorum at the time the certification issued. At the time of the Decision and Certification of Representative in Case 10-RC-095843, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appointments to the Board were not valid. In its February 5, 2015 Decision, the Board stated that under these circumstances, it would not give the prior Decision and Certification of Representative preclusive effect, and would consider anew the matters raised in the underlying representation proceeding.
In its objection to the election, the Respondent argued for the first time that the processing of the petition was barred because the Board lacked a quorum. The Board noted that the Respondent offered no justification for its failure to make this argument in a timely fashion in the representation proceeding. The Board further observed that the Respondent not only failed to raise a timely challenge to the authority of the Regional Director, it entered into a Stipulated Election Agreement in which it waived the right to a hearing and expressly agreed to the conducting of a secret ballot election. Therefore, the Board rejected the Respondent’s arguments as untimely, and found that the Respondent is estopped from attacking the propriety of an election to which it has expressly agreed, citing ManorCare of Kingston, PA, LLC, 361 NLRB No. 17, slip op. at 1 fn. 1 (2014).
The Board further found that even assuming that the Respondent’s challenge to the Regional Director’s authority was not otherwise barred, the Respondent’s argument was without merit. In so finding, the Board stated that: the delegation to Regional Directors of the authority to enter into stipulated election agreements and conduct elections pursuant thereto is longstanding, citing e.g., Douglas Aircraft Co., 56 NLRB 281 (1944); Congress expressly indicated its approval of this practice in Section 9(c)(4) of the Act; and further, in 1961, the Board delegated decisional authority in representation cases to Regional Directors pursuant to the 1959 amendment of Sec. 3(b) of the National Labor Relations Act expressly authorizing such a delegation. Pub. L. 86-257, 86th Cong., 1st Sess., §701(b), 73 Stat. 519, 542; 26 Fed. Reg. 3911 (1961), citing also Magnesium Casting Co. v. NLRB, 401 U.S. 137, 142 (1971) (by Sec. 3(b) Congress allowed the Board to make a delegation of its authority over representation elections to the regional director). The Board additionally noted that this delegation occurred when the Board had a quorum and has never been revoked. Finally, the Board observed that Section 102.178 of the Board’s Rules and Regulations provides that “during any period when the Board lacks a quorum normal Agency operations should continue to the greatest extent permitted by law.” See also Sec. 102.182 (representation cases should be processed to certification “[t]o the extent practicable”); The Avenue Care and Rehabilitation Center, 361 NLRB No. 151, slip op. at 1 fn. 1 (2014); Durham School Services, LP, 361 NLRB No. 66 (2014). In a personal footnote, Member Miscimarra stated that, in view of the Board’s disposition of the merits of Respondent’s contentions, he did not reach or rely on the discussion of waiver.
The Board then considered anew the objection to the election held in Case 10-RC-095843 and the Regional Director’s report recommending disposition of it. The Board reviewed the record in the representation proceeding in light of the exception and brief, adopted the Regional Director’s findings and recommendations to the extent and for the reasons stated, and found that a certification of representative should issue. The Board then issued a certification of representative, certifying that the Union is the exclusive collective-bargaining representative of the unit employees.
Finally, the Board noted that the Respondent had refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals. The Board stated that although the Respondent’s legal position may remain unchanged, it was possible that the Respondent had or intended to commence bargaining at this time, or that other events may have occurred during the pendency of this litigation that the parties may wish to bring to the Board’s attention. Therefore, the Board issued a Notice to Show Cause as to why it should not grant the General Counsel’s motion for summary judgment.
Charge and Petition filed by Retail, Wholesale, and Department Store Union, Southeast Council/ UFCW. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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R Cases
Seattle University (19-RC-122863) Seattle, WA, February 3, 2015. Order remanding the proceeding to the Regional Director for further action consistent with the Board’s decision in Pacific Lutheran University, 361 NLRB No. 157 (2014), including reopening the record, if necessary. In his Decision and Direction of Election, the Regional Director had asserted jurisdiction over the Employer, a private university, finding that it had not demonstrated that: (1) it was a religious educational institution under the Supreme Court’s decision in NLRB v (link is external). (link is external)Catholic Bishop of Chicago, (link is external) 440 U.S. 490 (1979) (link is external) or (2) that the petitioned-for full-time, non-tenure eligible, contingent faculty were managerial employees under the Supreme Court’s decision in NLRB v. Yeshiva (link is external), 444 U.S. 672, 682 (1980) (link is external). The Employer requested review. Members Miscimarra and Johnson stated that they adhere to their dissenting view in Pacific Lutheran University, but nevertheless agree that a remand is appropriate in this case. Petitioner—Service Employees International Union, Local 925. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.
Manhattan College (02-RC-023543) New York, NY, February 3, 2015. Order remanding proceeding to the Regional Director for further appropriate action consistent with Pacific Lutheran University, 361 NLRB No. 157 (2014), including reopening the record, if necessary. The Board previously had granted the Employer’s Request for Review of the Acting Regional Director’s assertion of jurisdiction over the Employer under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). Members Miscimarra and Johnson stated that they adhere to their dissenting views in Pacific Lutheran University, but nevertheless agree that a remand is appropriate. Petitioner—Manhattan College Adjunct Faculty Union, New York State United Teachers, AFT/NEA/AFL-CIO. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.
Saint Xavier University (13-RC-022025) Chicago, IL, February 3, 2015. Order remanding proceeding to the Regional Director for further appropriate action consistent with Pacific Lutheran University, 361 NLRB No. 157 (2014), including reopening the record, if necessary. The Board previously had granted the Employer’s Request for Review of the Acting Regional Director’s assertion of jurisdiction over the Employer under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). Members Miscimarra and Johnson stated that they adhere to their dissenting views in Pacific Lutheran University, but nevertheless agree that a remand is appropriate. Petitioner— St. Xavier University Adjunct Faculty Organization, IEA-NEA. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.
Laborers’ International Union of North America, Local 169 (32-RC-137989) Reno, NV, February 4, 2015. Order denying the Petitioner’s request for review of the Regional Director’s decision and direction of election. The Regional Director found that the office manager is a statutory supervisor under Section 2(11) of the Act because she possesses the authority to effectively recommend the hiring of employees using independent judgment, and therefore excluded her from the unit of office clerical employees. Petitioner—Office & Professional Employees International Union, Local 29. Members Hirozawa, Johnson, and McFerran participated.
Lerner New York d/b/a New York & Company (01-RM-142091) Peabody, MA, February 4, 2015. Order denying the Union’s request for review as not raising substantial issues regarding whether the Regional Director erred in directing an election based on a petition filed by the Employer during the Christmas season and including alleged season employees on the eligibility list. The Board also denied the Union’s appeal of the Regional Director’s direction of a mail ballot election. Union—New England Joint Board, Local 173, affiliated with RWDSU/UFCW. Chairman Pearce and Members Hirozawa and McFerran participated.
Paramedics Plus, LLC (32-RC-132094) San Leandro, CA, February 5, 2015. The Board considered 15 objections to an election conducted by mail ballot between August 4 and August 18, 2014. The Board adopted the Regional Director’s recommendations, except that it found that Intervenor NEMSA’s Objections 2-4 raised substantial and material issues warranting further investigation. Accordingly, the Board remanded this case to the Regional Director for further investigation and a hearing, if necessary, with respect to the Objections 2, 3, and 4. Petitioner – National Association of Government Employees/SEIU Local 5000. Intervenor – National Emergency Medical Services Association (NEMSA). Intervenor – United Emergency Medical Services Workers, AFSCME Local 4911, AFL-CIO. Chairman Pearce and Members Miscimarra and Johnson participated.
C Cases
MPE, Inc. (09-CA-084228 and 09-CA-084595) Lancaster, KY, February 3, 2015. Correction to January 29, 2015 Order. Errata Amended Order.
North Memorial Health Care (18-CA-132107, et al.) Robbinsdale, MN, February 3, 2015. The Board denied the General Counsel’s request for special permission to appeal the Administrative Law Judge’s order granting the Respondent’s motion to sever complaint allegations for deferral to arbitration. The Board found that the General Counsel failed to establish that the judge abused his discretion, in light of the anti-discrimination provision related to union membership set forth in the parties’ collective-bargaining agreement. Charges filed by SEIU Healthcare Minnesota and Minnesota Nurses Association. Members Miscimarra, Hirozawa, and Johnson participated.
United States Postal Service (09-CA-093652, et al.) Columbus, OH, February 4, 2015. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Respondent must take to comply with the National Labor Relations Act. Charges filed by National Association of Letter Carriers, Branch 78, AFL-CIO. Members Miscimarra, Hirozawa, and Johnson participated.
Ironworkers, Local 433 (21-CB-129959) City of Industry, CA, February 4, 2015. Order denying the Charged Union’s petition to revoke a 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. Further, the Board held that the Union failed to establish any other legal basis for revoking the subpoena. In addition, the Board found that if the evidence sought by the subpoena does not exist, as contended by the Union, the subpoena requires the custodian of records to testify to that effect, including by describing the Union’s efforts to identify and locate responsive evidence. Charge filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.
KLIM, Inc. (01-CA-135643) Killingworth, CT, February 4, 2015. Order denying the Employer’s petition to revoke a 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. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Chairman Pearce and Members Miscimarra and Hirozawa participated.
ABCO Steel Door, LLC (02-CA-136635) Bronx, NY, February 4, 2015. Order denying the Employer’s petition to revoke a 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. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. The Board also denied the General Counsel’s request “that the Employer be directed to produce all the materials sought in the Subpoena no later than five (5) days after the Board issues its order in this matter,” finding that the General Counsel has failed to offer any argument in support of this request. Finally, the Board evaluated the subpoena as modified by the General Counsel’s indication in his opposition brief that he is willing to limit the requested time period in paragraph 1 to April 1, 2014 through the present and his statement that he “will agree to not release the information sought in the Subpoena to other parties and to return any documents to the Charged Party upon the completion of the investigation.” Chairman Pearce and Members Miscimarra and Hirozawa participated.
Premier Meat Company (21-CA-133318) Vernon, CA, February 4, 2015. Order denying the Employer’s petition to revoke a 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. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. The Board noted that, to the extent that the Employer has provided some of the requested material, it is not required to produce that information again, provided that the Employer accurately describes which documents under subpoena it has already provided, states whether those previously-supplied documents constitute all of the requested documents, and provides all of the information that was subpoenaed. Chairman Pearce and Members Miscimarra and Hirozawa participated.
International Union of Operating Engineers, Local 18 (Nerone & Sons, Inc.) (08-CD-135243, et al.) Warrensville Heights, OH, February 6, 2015. The Board granted International Union of Operating Engineers, Local 18’s request for special permission to appeal from the Regional Director’s Order denying its motion to postpone the hearing. However, the Board denied the appeal on the merits, finding that the Union had failed to establish that the Regional Director abused his discretion in denying the motion. Charges filed by Nerone & Sons, Inc. and R.G. Smith Company, Inc. Chairman Pearce and Members Hirozawa and McFerran participated.
Eastern Essential Services, Inc. (22-CA-133001) Fairfield, NJ, February 6, 2015. Order denying the Respondent’s motion for summary judgment on the grounds that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charge filed by Service Employees International Union, Local 32BJ. Members Miscimarra, Hirozawa, and Johnson participated.
Hoffmaster Group, Inc. (18-CA-132923) Oshkosh, WI, February 6, 2015. Order denying the Respondent’s motion for summary judgment on the grounds that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charge filed by United Steelworkers Local 2-169. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Taylor Farms Pacific, Inc./Slingshot Connections, LLC/Abel Mendoza, Inc. (32-CA-116854) Tracy, CA, February 6, 2015.
The Board denied three petitions to revoke three subpoenas duces tecum, separately filed by Employers Taylor Farms Pacific, Inc., SlingShot Connections, LLC, and Abel Mendoza, Inc. The Board found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employers failed to establish any other legal basis for revoking the subpoenas. With respect to SlingShot’s argument that some of the requested information is not in its possession, but rather is in the possession of SlingShot's vendor, Quality Farm Labor (QFL), the Board observed that although the subpoena cannot compel SlingShot to produce information it does not possess, it does compel SlingShot to seek that information from QFL. If QFL does not comply with a request for the information from SlingShot, the Board noted that nothing would prevent the Region from seeking that information directly from QFL.
Member Johnson stated that with respect to privacy argument raised by SlingShot, he would find in accordance with his stated views in other subpoena cases that, to the extent that a state law privacy interest is implicated by a petitioner’s privacy claim, that such privacy interest would be generally cognizable in the context of objections to Board subpoenas. See Taylor Farms Pacific, Inc./Slingshot Connections, LLC/Abel Mendoza, Inc., 32-CA-116854 (order denying petition issued 05/23/2014). However, he found that here, SlingShot had failed to establish that the asserted state employee privacy rights would prevail when balanced against the government’s need for the sought-after information. Member Johnson noted that to aid in its evaluation of the Union’s contentions of majority support in this case, the Region requested that the Employers provide the Region with the payroll records and signature samples of the unit employees at those facilities in order to authenticate union authorization cards, and that SlingShot failed to establish that there is a privacy interest in sample signatures, much less payroll records required to be kept by law, or that such interest would outweigh the Region’s need to determine whether the Union actually obtained majority support for potential remedial purposes.
Charge filed by Teamsters, Local 601, International Brotherhood of Teamsters. Members Miscimarra, Hirozawa and Johnson participated.
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No Appellate Court Decisions involving Board Decisions to report.
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Strategic Resources, Inc. (19-CA-070217, et al.; JD(SF)-02-15) Joint Base Lewis McChord, WA. Administrative Law Judge John J. McCarrick issued his decision on February 4, 2015. Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge W-24.
Novelis Corporation (03-CA-121293, et al.; JD-05-15) Oswego, NY. Errata to the January 30, 2015 decision of Administrative Law Judge Michael A. Rosas. Errata Amended decision.
Source: NLRB
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