NCR Corporation (01-CA-150154; 362 NLRB No. 146) Boston, MA, July 13, 2015.
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 had violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union. Charge filed by International Brotherhood of Electrical Workers Local 2222. Chairman Pearce and Members Hirozawa and McFerran participated.
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Love Culture Inc. (18-CA-132084; 362 NLRB No. 145) St. Louis, Park, MN, July 13, 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 and compliance specification. The Board found that the Respondent violated Section 8(a)(1) by maintaining and enforcing a confidentiality rule prohibiting employees from discussing wage rates with each other, and further found that the Respondent violated Section 8(a)(1) by discharging an employee for violating the rule. The Board ordered the Respondent to offer the unlawfully discharged employee full reinstatement to her former job, to make her whole for any loss of earnings and other benefits suffered as a result of its discrimination against her by paying her the amount set forth in the compliance specification, to compensate the employee for any adverse tax consequences of receiving a lump-sum backpay award, file a report with the Social Security Administration allocating the backpay award to the appropriate calendar quarters, and remove references to the unlawful discipline and discharge from the employee’s file. In addition, the Respondent was ordered to rescind the unlawful rule and to advise its employees in writing of such rescission. Charge filed by an individual. Members Hirozawa, Johnson, and McFerran participated.
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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 Retail Wholesale and Department Store Union. Chairman Pearce and Members Johnson and McFerran participated.
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Wilkes-Barre Hospital Company, LLC d/b/a Wilkes-Barre General Hospital (04-CA-123748; 362 NLRB No. 148) Wilkes-Barre, PA, July 14, 2015.
The Board affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by ceasing to pay longevity-based wage increases after the collective-bargaining agreement expired, without providing the Union with prior notice and an opportunity to bargain. In addition to the rationale set forth by the Judge, Members Hirozawa and McFerran found that Finley Hospital, 362 NLRB No. 102 (2015), supports the Judge’s conclusion. Further, Members Hirozawa and McFerran found it unnecessary to pass on the Judge’s finding that the Respondent did not have a contractual obligation to pay longevity-based wage increases in January 2014. Member Johnson concurred in finding a violation based on the specific facts presented in the instant case. Charge filed by Pennsylvania Association of Staff Nurses and Allied Professionals, AFL-CIO. Administrative Law Judge Susan A. Flynn issued her decision on November 17, 2014. Members Hirozawa, Johnson, and McFerran participated.
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R Cases
OK Foods, Inc. (14-RC-124829) Heavener, OK, July 15, 2015. The Board adopted the hearing officer’s finding that, during an exchange between the Employer’s vice president and a labor consultant at a captive-audience meeting with employees, the Employer implied that employees would receive raises if they voted against the Union, and therefore the Employer interfered with employee free choice. Accordingly, the Board set aside the election held on May 1, 2014, and ordered that a new election be held. Petitioner—United Food and Commercial Workers, Local 1000, AFL-CIO. Members Miscimarra, Hirozawa, and Johnson participated.
C Cases
S.E. Clemons, Inc. (31-CA-127976 and 31-CA-130804) Adelanto, CA, July 14, 2015. Order denying the petition filed by Pacific Empire Builders, Inc., to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the petitioner failed to establish any other legal basis for revoking the subpoena. The Board denied the petitioner’s request to make its petition to revoke a part of the official record, finding that the request was premature, but stated that its ruling was without prejudice to the petitioner’s renewing the request if the investigative proceedings progressed to the stage where an official record would be created. Members Hirozawa, Johnson, and McFerran participated.
Brookdale Senior Living, Inc. d/b/a Emeritus Senior Living (28-CA-134729) Phoenix, AZ, July 15, 2015. No exceptions having been filed to Administrative Law Judge Amita Baman Tracy’s June 2, 2015 decision 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. Charge filed by an individual.
Onyx Management Group LLC (29-CA-132441, et al.) Jericho, NY, July 17, 2015. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions that the Employer must take to comply with the National Labor Relations Act. Charge filed by International Union of Operating Engineers, Local 30, AFL-CIO. Members Hirozawa, Johnson, and McFerran participated.
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Appellate Court Decisions
Northeastern Land Services, Ltd., Board Case No. 01-CA-039447 (unreported Order, dated Sept. 4, 2013) (D.C. Circuit decided under the name Dupuy v. NLRB, July 17, 2015)
In a published opinion, the court granted in part the petition for review filed by a discriminatee who had opposed a post-enforcement settlement agreement. The court found that the backpay calculations were supported by substantial evidence, but vacated and remanded the Board’s rulings concerning certain comparable employment terms and conditions because the Board did not adequately explain or substantiate those aspects of its decision.
Previously, the First Circuit enforced the Board’s order in Northeastern Land Services, Ltd. v. NLRB , 645 F.3d 475 (1st Cir. 2011), against the employer. Among other remedies, the order required the employer to make the discriminatee whole for unlawfully discharging him, by compensating him for lost wages and benefits and offering him full reinstatement to his former job or one with substantially equivalent terms and conditions. During the ensuing compliance stage, the employer complied with all other aspects of the Board’s order and thereafter the Region entered into a settlement agreement with the employer that provided for a reinstatement offer, $201,788.50 in compensation, comprising $124,115.33 in backpay and $77,673.17 in interest, and required monthly installment payments of $1,500 to be mailed to the Region over a period of 11 years, but waiving interest during the payment period unless the employer defaulted.
The discriminatee opposed the settlement arguing, among other things, that the agreement improperly waived $41,906.78 in interest that would accrue during the payment period, and that the terms and conditions accompanying the reinstatement offer would not fully compensate him. After the discriminatee refused to further discuss the settlement terms, the Regional Director adopted the agreement over his objections. Subsequently, the discriminatee filed an appeal with the Acting General Counsel, who denied the appeal. The discriminatee then filed for Board review. In September 2013, the Board (Chairman Pearce and Members Miscimarra and Hirozawa) issued an order denying the appeal, ruling that under the circumstances, the Regional Director did not err in accepting the settlement, and noting that “the waiver of interest during the payment period is expressly conditioned on the timely receipt of every payment, and the settlement does not reduce or compromise the backpay due in any other manner.” The discriminatee filed a motion for reconsideration, which was denied.
On review, the court stated that “[h]owever broad the Board’s discretion may be to settle its cases prior to their embodiment in a court order, once the Board turns to the task of ensuring an employer’s compliance with a final court judgment, the Board’s own precedent has disclaimed any authority to modify the court’s order.” Citing Independent Stave Co., 287 NLRB 740 (1987), the court noted that the Board “has wide latitude to settle cases at that prosecutorial stage,” but, in contrast, when enforcing compliance after a court judgment, the Board must “ground its factual findings in substantial evidence, and give reasoned explanations for any departure” from the court order. The court then held that the Board’s backpay calculations were supported by substantial evidence, but that in upholding the agreement’s waiver of interest during the installment payment period, the Board did not explain “the source of its authority” for altering court-ordered interest. Regarding the terms and conditions related to reinstatement, the court found that the Board “has more work to do,” because “nothing in the record substantiates the assertion that the other terms of employment are consistent with what other similarly situated employees receive.” The court stated that, “on remand, the Board must consider all material terms and conditions of employment, not just compensation, in deciding whether [the employer]’s offer of reinstatement was sufficient.” Given its remand of those issues, the court also remanded to the Board questions concerning the disposition of the installment checks and the default collection procedure for the Board’s determination in the first instance.
The Court’s opinion is here (link is external).
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Eastern Essential Services, Inc. (22-CA-133001; JD(NY)-29-15) Fairfield, NJ. Administrative Law Judge Steven Davis issued his decision on July 13, 2015. Charge filed by Service Employees International Union, Local 32BJ.
Compass Group USA, Inc., d/b/a Chartwells Dining Services (25-CA-134883, et al.; JD-40-15) Anderson, IN. Administrative Law Judge David I. Goldman issued his decision on July 14, 2015. Charges filed by United Food and Commercial Workers Union, Local 700, AFL-CIO.
Taylor Motors, Inc. ( 10-CA-141565, et al.; JD(ATL)-12-15) Fort Campbell, KY. Administrative Law Judge Keltner W. Locke issued his decision on July 14, 2015. Charges filed by American Federation of Government Employees (AFGE), AFL-CIO, Local 2022.
The Boeing Company (19-CA-128941; JD(SF)-26-15) Puget Sound, WA. Administrative Law Judge Dickie Montemayor issued his decision on July 14, 2015. Charge filed by Society of Professional Engineering Employees in Aerospace, affiliated with International Federation of Professional & Technical Engineers, Local 2001.
U.S. Xpress Enterprises, Inc. and U.S. Xpress, Inc., a single employer (10-CA-141407; JD(ATL)-14-15) Chattanooga, TN. Administrative Law Judge Ira Sandron issued his decision on July 16, 2015. Charge filed by an individual.
Source: NLRB
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