Waffle House, Inc. (10-CA-121178; 363 NLRB No. 104) Norcross,
GA, February 1, 2016.
Applying its decisions in D. R. Horton, Inc., 357
NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013)
and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf.
denied in relevant part 808 F.3d 1013 (5th Cir. 2015), a Board panel
majority consisting of Chairman Pearce and Member Hirozawa found that the
Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration
agreement that requires employees, as a condition of employment, to waive their
right to maintain class or collective actions in all forums, whether arbitral
or judicial. Relying on SolarCity Corp., 363 NLRB No. 83
(2015), the Board panel majority rejected the Respondent’s argument that its
agreement was lawful because it permitted employees to file charges with administrative
agencies, including with the Board. The Board panel majority also
rejected the Respondent’s argument that its arbitration agreement was voluntary
because employees could decline employment with Waffle House and seek
employment with an employer that does not mandate individual arbitration as a
condition of employment. The Board panel majority ordered the
Respondent to post remedial notices at all locations where the agreement was in
effect.
In dissent, Member Miscimarra would have dismissed the
complaint. Consistent with his dissent in Murphy Oil, Member
Miscimarra concluded that the agreement did not violate the Act. As such,
he found it unnecessary to reach whether agreements containing an exemption
permitting filings with administrative agencies should independently be deemed
lawful to the extent that they “leave[] open a judicial forum for class
and collective claims.” Charge filed by an individual. Chairman
Pearce and Members Miscimarra and Hirozawa participated.
***
Missouri Red Quarries, Inc. (14-CA-165057; 363 NLRB No. 102) Ironton,
MO, February 1, 2016.
The Board granted the General Counsel’s motion for
summary judgment in this test-of-certification case on the ground that the
Respondent failed to 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 bargaining representative. Accordingly, the Board found
that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize
and bargain with the Union. Charge filed by Eastern Missouri Laborers’
District Council. Chairman Pearce and Members Hirozawa and McFerran
participated.
***
Samsung Electronics America, Inc. f/k/a Samsung
Telecommunications America, LLC (12-CA-145083; 363 NLRB No. 105) Tampa, FL,
February 3, 2016.
Applying its decisions in D. R. Horton, Inc., 357
NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013)
and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in
relevant part 808 F.3d 1013 (5th Cir. 2015), the Board affirmed the
Administrative Law Judge’s findings that the Respondent violated Section
8(a)(1) by maintaining and enforcing an arbitration agreement that requires
employees, as a condition of employment, to waive their rights to pursue class
or collective actions involving employment-related claims in all forums,
whether arbitral or judicial. Finding that the General Counsel did not
meet his burden of proving the allegation, the Board reversed the judge’s
finding that the Respondent unlawfully instructed one employee not to discuss
her lawsuit with other employees. The Board also reversed the judge to
find that, on two occasions, the Respondent unlawfully interrogated an employee
about her protected, concerted activity. Charge filed by an
individual. Administrative Law Judge Joel P. Biblowitz issued his
decision on August 18, 2015. Chairman Pearce and Members Hirozawa and
McFerran participated.
***
Flyte Tyme Worldwide (04-CA-115437; 363 NLRB No. 107) Mahwah, NJ,
February 4, 2016.
Applying its decisions in D. R. Horton, Inc., 357
NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013)
and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in
relevant part 808 F.3d 1013 (5th Cir. 2015), a Board panel majority consisting
of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s
finding that the Respondent violated Section 8(a)(1) by maintaining an
arbitration agreement that required employees, as a condition of employment, to
waive their rights to pursue class or collective actions involving
employment-related claims in all forums, whether arbitral or judicial.
Relying on SolarCity Corp., 363 NLRB No. 83 (2015), the Board
panel majority rejected the Respondent’s argument that its agreement was lawful
because it permitted employees to file charges with administrative agencies,
including with the Board. Further, citing Beyoglu, 362 NLRB No.
152 (2015), the Board panel majority rejected the Respondent’s argument that an
employee was not engaged in concerted activity by filing a Fair Labor Standards
Act lawsuit in federal district court. Consistent with Murphy Oil,
the Board panel majority ordered the Respondent to reimburse the employee and
any other plaintiffs for all reasonable expenses and legal fees, with interest,
that they incurred in opposing the Respondent’s unlawful motion to compel
arbitration of their class or collective claims.
Dissenting in part, Member Miscimarra would have
dismissed the complaint. Consistent with his dissents in Murphy Oil
and Pama Management, 363 NLRB No. 38 (2015), Member Miscimarra concluded
that the agreement did not violate the Act and that its enforcement was
warranted by the Federal Arbitration Act. Moreover, because he would find
that the Respondent’s agreement was lawful under the NLRA, Member Miscimarra
would also find it lawful for the Respondent to file a motion in federal court
seeking to enforce the agreement. Finally, under the circumstances
presented here, Member Miscimarra would find that the Board cannot properly
require the Respondent to reimburse the employee and other plaintiffs for their
attorneys’ fees. Charge filed by an individual. Administrative Law
Judge Robert A. Giannasi issued his decision on June 3, 2014. Chairman
Pearce and Members Miscimarra and Hirozawa participated.
***
Veritas Health Services, Inc., d/b/a Chino Valley
Medical Center (31-CA-107321; 363 NLRB No. 108) Chino, CA,
February 4, 2016.
The Board adopted the Administrative Law Judge’s finding
that the Respondent violated Section 8(a)(5) and (1) by unlawfully withdrawing
recognition from the Union because: (1) the Union’s loss of majority support
was tainted by the Respondent’s unremedied, unfair labor practices, (2) the
withdrawal of recognition occurred during the extended certification year, and
(3) the Respondent failed to introduce evidence of a loss of majority
support. The Board noted that any one of these findings alone was sufficient
to justify the conclusion that the withdrawal of recognition was unlawful, and
adopted the judge’s finding of the violation on all three independent
grounds. The Board also amended the remedy to include a general
bargaining order, a broad cease-and-desist order, and a limited notice-mailing
remedy. In adopting the judge’s recommendation that the Respondent be
required to reimburse the General Counsel and the Union for their litigation
expenses, the Board did not rely solely on the judge’s finding that the
Respondent mounted a frivolous defense, but also relied on the Board’s inherent
authority to control its own proceedings including the authority to award
litigation expenses through the application of the “bad-faith” exception to the
American Rule. Charge filed by United Nurses Associations of
California/Union of Health Care Professionals, NUHHCE, AFSCME, AFL-CIO.
Administrative Law Judge John J. McCarrick issued his decision on March 3,
2015. Chairman
Pearce and Members Hirozawa and McFerran participated.
***
Cargill, Inc. (21-CA-164025; 363 NLRB No. 110) Fullerton,
CA, February 4, 2016.
The Board granted the General Counsel’s motion for
summary judgment in this test-of-certification case on the ground that the
Respondent failed to 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 bargaining representative. Member Miscimarra noted that
he would have granted review in the underlying representation case to decide
whether the petitioned-for bargaining unit is appropriate under traditional
community-of-interest standards. However, Member Miscimarra agreed that
the Respondent did not present any new matters that are properly litigable in
this unfair labor practice case. Accordingly, the Board found that the
Respondent had violated Section 8(a)(5) and (1) by refusing to recognize and
bargain with the Union. Charge filed by United Food and Commercial
Workers International Union, Local No. 324. Chairman Pearce and Members
Miscimarra and Hirozawa participated.
***
Unpublished Board Decisions in Representation and
Unfair Labor Practice Cases
R Cases
Tyson Fresh Meats, Inc., a Wholly-Owned Subsidiary
of Tyson Foods, Inc. (19-RD-135795) Wallula, WA, February 2,
2016. The Board denied the Union’s Request for Review of the Regional
Director’s Decision and Direction of Election on the ground that it raised no
substantial issues warranting review. Petitioner—an individual.
Union—United Food and Commercial Workers, Local 1439, affiliated with United
Food and Commercial Workers International Union. Chairman Pearce and Members
Hirozawa and McFerran participated.
The Cement League (02-RC-154016) New York, NY, February 3,
2016. A Board panel majority consisting of Chairman Pearce and Member
Hirozawa denied the Employer’s Request for Review of the Regional Director’s
Decision and Direction of Election on the ground that it raised no substantial
issues warranting review. In dissent, Member Miscimarra would have
granted review to consider whether, under these circumstances, the League’s
employer-members had the requisite intent to engage in multiemployer
bargaining. Petitioner—New York and Vicinity District Council of
Carpenters. Chairman Pearce and Members Miscimarra and Hirozawa participated.
C Cases
Elite Ambulance, Inc. (31-CA-122353, et al.) Los Angeles, CA,
February 4, 2016. No exceptions having been filed to the December 23,
2015 decision of Administrative Law Judge Dickie Montemayor finding that the
Respondent had engaged in certain unfair labor practices, the Board adopted the
judge’s findings and ordered the Respondent to take the action set forth in the
judge’s recommended Order. Charges filed by International Association of
EMTS and Paramedics (IAEP)/NAGE/SEIU Local 5000.
Red Rock Riding Stables, Inc. (28-CA-149983) Las Vegas, NV, February 4,
2016. No exceptions having been filed to the December 23, 2015 decision
of Administrative Law Judge Dickie Montemayor finding that the Respondent had
not engaged in certain unfair labor practices, the Board adopted the judge’s
findings and dismissed the complaint. Charge filed by an individual.
***
Appellate Court Decisions
Crew One Productions, Inc., Board Case No.
10-CA-138169 (reported at 362 NLRB No. 8)
(11th Cir. decided February 3, 2016)
In a published opinion, the court in this
test-of-certification case granted the petition for review and vacated the
Board’s Order issued against this employment referral service. The
Board’s Order had required the service to bargain with the International
Alliance of Theatrical Stage Employees after stagehands who had referral
contracts to work at various concert venues in the Atlanta, Georgia area voted
116 to 60 in August 2014 to be represented by the Union. In doing so, the
court reversed the Board’s finding that the stagehands were employees rather
than independent contractors.
After a hearing was held in the underlying representation
case, the Regional Director applied the multi-factored, common-law test for
independent-contractor status, and concluded, contrary to the service’s
contention, that the stagehands were employees covered by the Act’s protections.
Specifically, the Regional Director found that the stagehands perform essential
work that is at the core of the service’s regular business as a labor provider,
that the service unilaterally dictates the stagehands’ pay rates and method of
compensation, and that the stagehands have little control over their hours or
over the means and manner of their work. The Regional Director noted
that, although some factors weigh in favor of independent-contractor status,
such as stagehands’ ability to reject job offers or work for the service’s
competitors, those factors were insufficient to outweigh the factors in support
of the stagehands’ employee status. The service requested review, which
the Board denied. After the Union was certified, the service refused to
bargain, a complaint was issued, and ultimately the Board issued its decision
finding that refusal to bargain unlawful.
On review, the court engaged in a de novo application of
the common-law test to the evidence taken at hearing and concluded that the
stagehands are independent contractors. The court noted that, under its
circuit precedent, control was the most important factor, and that here “any
control of the stagehands’ work is exercised by the clients,” not the service,
which “lacks the expertise to direct stagehands in their work for any
particular client.” The court also relied on the fact that the service
does not withhold taxes from stagehands’ pay, which the court explained is a
factor given more weight under its circuit precedent. As further evidence
of independent-contractor status, the court held that the agreements that the
stagehands were required to sign evidenced the parties’ intent to establish
independent-contractor relationships, and that the stagehands’ work is not part
of the service’s own business. The court held that the only factor
weighing in support of employee status was that stagehands receive hourly
payments, but that “this factor is outweighed by the totality of the other
factors, especially the lack of control.”
The court’s opinion is here (link is external).
Raymond Interior Systems, Inc., Board
Case No. 21-CA-037649 (reported at 355 NLRB No. 209) (D.C. Cir. decided
February 5, 2016)
In a published opinion, the court granted in part the
Board’s cross-application for enforcement, and remanded one issue to the Board
for further consideration. In doing so, the court granted in part the
separate petitions for review filed by the Employer, a construction-industry
contractor operating in California, and the Southwest Regional Council of
Carpenters. The court found it unnecessary to reach the question raised
by the Painters Union in a third petition for review.
For many years, the Employer was a party to
collective-bargaining agreements with the Painters Union, the most recent of
which was a pre-hire agreement under Section 8(f) of the Act that covered
drywall employees. In September 2006, the Employer lawfully terminated
that agreement and instead signed a confidential settlement agreement with the
Carpenters Union providing that it would apply the Carpenters’ 2006 master
agreement to drywall employees. That agreement took effect on October
1. On October 2, the Employer told its drywall employees that they needed
to join the Carpenters Union “that day” if they wanted to continue
working. Later that day, after the Carpenters Union secured signed
authorization cards from employees, the Employer signed an agreement
recognizing the Carpenters Union as the majority representative of the
employees under Section 9(a) of the Act. The Painters Union filed a
charge challenging that recognition.
Regarding the October 2 events, the Board found the
Employer unlawfully conditioned continued employment on membership in the
Carpenters Union, and unlawfully assisted the Union in obtaining signed
authorization cards. The Board also found that the Employer unlawfully
recognized the Carpenters Union and applied its 2006 master agreement to the
employees, and, in turn, that the Union unlawfully accepted recognition and
applied the master agreement, all at a time when the Union did not represent an
uncoerced employee majority. Further, the Board found that the Carpenters
Union unlawfully failed to properly inform employees of their Beck
rights to decline union membership and pay agency fees.
The Employer filed a motion for reconsideration, which
the Carpenters Union joined. Among other rulings, the Board rejected the
contention that it needed to decide whether the confidential settlement
agreement the parties reached in September had constituted a valid Section 8(f)
agreement that would not have been invalidated by the subsequent unlawful
conduct. The Board explained that such a finding “would not affect our
determination that [the Employer], on October 2, 2006, unlawfully recognized
the Carpenters as the [Section] 9(a) representative of its drywall finishing
employees.”
On review, the court upheld the Board’s findings that, on
October 2, the Employer and the Carpenters Union violated the Act, holding that
those findings were supported by settled law and the credited evidence.
The court, however, held that the Board’s refusal to address the legality of
the September confidential settlement agreement and its potential status as a
Section 8(f) agreement was error. Discussing cases concerning the general
principle that “when a collective bargaining agreement is not a byproduct of
unfair labor practices and does not otherwise hinder the policies of the Act,
the Board [is] without authority to require [the parties] to desist from giving
effect to the [agreement],” the court determined the issue should be remanded
to the Board for further consideration. Regarding the Painters Union’s
petition for review, the court stated it would not pass on it because its
principal claim—that the Board’s remedy should include alternate benefits
coverage equivalent to that specified in 2006 master agreement that was
incorporated into the September confidential settlement agreement—could be
rendered moot on remand.
The court’s decision is here (link is external).
Alden Leeds, Inc., Board Case No. 22-CA-029188
(reported at 357 NLRB No. 20) (D.C. Cir. decided February 5, 2016)
In a published opinion, the court enforced the Board’s
order against this manufacturer of swimming pool cleaning supplies and
chemicals located in South Kearny, New Jersey, for violating Section 8(a)(3)
and (1) of the Act by locking out its production and delivery employees who are
represented by United Food and Commercial Workers Local 1245.
During three short negotiating sessions for a successor
agreement in 2009, the parties spent much of the time discussing whether to
extend the expiring agreement. Regarding the Union’s health care
proposal, the Employer stated that the contribution increases would be too
high, and provided summaries of a number of plans, but did not propose any
specific plan. In a phone call between lead negotiators, the Employer
stated that the Union was supposed to have employees vote on its health care
offer or be locked out. The Union stated that it did not know what the
employees were supposed to be voting on. Then, in an email on Friday,
October 30, the Employer stated that it had “tried [its] best to come up with
an alternative medical plan that would cost the same or less than the proposed
increase for the Union’s existing plan,” and that the best healthcare plan that
it could come up with would require employees to submit to a medical interview
to obtain coverage; would not include dental or optical coverage; and would
still cost more than the existing plan. But, the Employer explained, if
the parties agreed to eliminate family coverage, the plan would cost less than
the existing plan and it would agree to pay $400 towards the deductible of each
employee. The Employer concluded the email by stating that if no
agreement was in place by Monday, November 2, it would lock out the employees,
which it did.
In July 2011, the Board (Members Becker and Pearce;
Member Hayes dissenting in part) found that the Employer unlawfully locked out
the employees by failing to provide the Union with clear and timely notice of
the conditions of its bargaining offer so that the Union and the employees
could evaluate whether to accept the offer and avert the lockout.
Specifically, the Board found that the October 30 email purporting to
detail the terms of the offer “was confusing, incomplete, and internally
inconsistent.” The Board further noted that the offer was untimely,
coming one business day before the threatened lockout. Finally, the Board
stated that further litigation over whether the Employer limited its backpay
liability, by providing the Union with a complete contract proposal on November
9, was unwarranted given that the Employer failed to raise the issue with the
Board.
On review, the court held that substantial evidence
supported the Board’s decision. The court stated that a reasonable
factfinder could conclude that the October 30 email was unclear because it was
the final communication sent before the lockout and “fails to illuminate
whether the [Employer] was proposing any or all of its various alternative
health care plans, which differed from the existing health care plan under the
2005 collective bargaining agreement.” The court also pointed to the
administrative law judge’s crediting of the testimony of two Union negotiators
that they were confused about which health care plan, if any, the Employer was
proposing in its email. Assessing the Employer’s argument, the court
advised that, “the question before us is not whether substantial evidence
supports the [Employer’s] view, but whether it supports the Board’s,” and that
the “Board’s judgment in this case easily commands the deference of this court
under the controlling standards of review.”
Finally, the court held the Employer’s remaining
contention that its backpay should be limited was jurisdictionally barred from
review by Section 10(e) of the Act. In doing so, the court rejected the
Employer’s contentions that not raising the issue to the Board could be excused
because, among other things, that Board was apprised of the argument and
independently discussed it. Citing cases, the court explained that,
“[S]ection 10(e) bars review of any issue not presented to the Board,
even where the Board has discussed and decided the issue.”
The court’s decision is here (link is external).
***
Administrative Law Judge Decisions
Midland Electrical Contracting Corp.
(29-CA-144562 and 29-CA-144584; JD(NY)-4-16)
Brooklyn, NY. Administrative Law Judge Mindy E. Landow issued her
decision on February 1, 2016. Charges filed by United Electrical Workers
of America, IUJAT, Local 363.
WRS Environmental Services, Inc. (29-CA-144985 and 29-CA-150191; JD(NY)-5-16)
Yaphank, NY. Administrative Law Judge Raymond P. Green issued his
decision on February 1, 2016. Charges filed by International Brotherhood
of Electrical Workers, Local Union 1049.
Alaris Health at Castle Hill (22-CA-125034, 22-CA-125866 and 22-CA-140619; JD-09-16)
Union City, NJ. Administrative Law Judge Michael A. Rosas issued
his decision on February 3, 2016. Charges filed by 1199, SEIU United
Healthcare Workers East.
Red Devil Auto & Fleet Repair, LLC
(28-CA-146421 and 28-CA-152886; JD(SF)-04-16)
Surprise, AZ. Administrative Law Judge Gerald M. Etchingham issued
his decision on February 3, 2016. Charged filed by an individual.
Source: NLRB
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