Summary of NLRB Decisions for Week of October 13 - 16, 2015

R Cases

Didlake, Inc.  (05-RC-149149)  Arlington, VA, October 16, 2015.  No exceptions having been filed to the Regional Director’s overruling of an objection to an election held May 11, 2015, the Board adopted the Regional Director’s findings and recommendations, and certified that a majority of the valid ballots had not been cast for the Petitioner, Public Service Employees Local Union 572, a/w Laborers’ International Union of North America, and therefore that it is not the exclusive collective-bargaining representative of the unit employees.


C Cases

No Unpublished C Cases Issued.

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Appellate Court Decisions

Allied Medical Transport, Board Case No. 12-CA-072141 (reported at 360 NLRB No. 142) (11^th Cir. decided October 13, 2015)

In a published opinion, the court enforced the Board’s order against this medical transport company that contracts with Broward County, Florida, to provide nonemergency transportation to Americans with Disabilities Act (ADA)-qualified residents.  The Board’s order remedies numerous unfair labor practices committed prior to the December 2011 election in which the drivers elected Transport Workers Union of America, AFL-CIO, as their bargaining representative, as well as after the election by disciplining and discharging two employees for supporting the union in the election.

In agreement with the administrative law judge, the Board (Chairman Pearce and Member Hirozawa; Member Miscimarra, dissenting in part) found that, prior to the election, the employer violated Section 8(a)(1) of the Act by surveilling employees' union activities, telling employees that it would be futile to select the union, interrogating employees about their union activities, soliciting and promising to remedy grievances, promising benefits, soliciting employees to campaign against the union, directing an employee to vote against the union, and threatening to replace employees.  The Board found that the employer, after the election, violated Section 8(a)(5) and (1) by unilaterally changing its disciplinary policies regarding shortages in daily fares submitted by drivers, and by disciplining drivers pursuant to those changes without notifying the union.  Disagreeing with the judge, the Board found that the employer violated Section 8(a)(3) and (1) by suspending and later discharging two union supporters.

In the enforcement proceeding, the employer contested only the suspension and discharge findings, and argued that the Board’s order was moot because it would be impossible to reinstate the two employees and that it had otherwise complied with the Board’s order.  The court held that the Board’s order was not moot because, under settled principles, “[a]n employer’s defense of impossibility based on changes to the business does not prevent courts from enforcing Board orders,” and the courts “have long recognized the Board’s normal policy of modifying its general reinstatement and backpay remedy in subsequent compliance proceedings as [the] means of tailoring the remedy to suit the individual circumstances of each discriminatory discharge.”  Additionally, the court noted that an “employer’s compliance with an order of the Board does not render the cause moot.”  Rather, the court explained, a Board order “imposes a continuing obligation[] and the Board is entitled to have the resumption of the unfair practice barred by an enforcement decree.”
Upholding the suspension and discharge findings as supported by substantial evidence, the court agreed with the Board that the employees’ union activities were a motivating factor for the adverse actions and that the employer failed to prove it would have taken the same actions absent the employees’ protected activities.  Because the employer did not challenge the other unfair labor practices, the court summarily upheld them and enforced the Board’s order in full.

The court’s decision is here (link is external).

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Administrative Law Judge Decisions

Trane Puerto Rico, Inc.  (12-CA-144599; JD-58-15)  San Juan, PR.  Administrative Law Judge Robert A. Giannasi issued his decision on October 15, 2015.  Charge filed by Congreso de Uniones Industriales de Puerto Rico.

Source: NLRB