A Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s order granting the General Counsel’s request for an extension of time to file a motion to dismiss the Respondent’s application for an award under the Equal Access to Justice Act (EAJA). Having found that the judge did not abuse his discretion in granting the extension of time, the majority also affirmed the judge’s finding that the General Counsel was substantially justified in asserting jurisdiction over the Respondent pursuant to a theory of national defense jurisdiction as articulated in Ready Mixed Concrete & Materials, Inc., 122 NLRB 318 (1958). However, because the judge failed to determine whether the General Counsel’s position on the underlying merits of the case was substantially justified, the majority found it appropriate to remand the case for further proceedings, giving the General Counsel an opportunity to file an answer to the Respondent’s EAJA application.
Member Miscimarra dissented. He found that the General Counsel had neither shown nor attempted to show good cause based on excusable neglect for the late filing of the motion to dismiss, and that the judge erred in granting the General Counsel’s request for an extension of time. Accordingly, Member Miscimarra would strike the General Counsel’s untimely motion to dismiss and would direct the judge to decide the issues presented by the EAJA application on the basis of the existing record.
Charge filed by International Brotherhood of Teamsters Local 2. Administrative Law Judge Michael A. Marcionese issued his supplemental decision on February 28, 2014. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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On remand from the Fourth Circuit, a Board panel majority consisting of Chairman Pearce and Member Hirozawa found that a second election was warranted based solely on the Respondent’s confiscation of union literature from the employees’ break room during the critical period, a violation that the majority found was more than de minimis. Member Miscimarra dissented, finding that it was not possible to conclude that the confiscation violation, standing alone, affected the outcome of the election.
Charge filed by United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC. Administrative Law Judge Robert A. Ringler issued his decision on February 20, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(3) and (1) by disciplining an employee for engaging in a conversation about an upcoming union election. The Board also affirmed the judge’s finding that the Respondent violated Section 8(a)(1) by directing that employee not to discuss with others either the Respondent’s disciplinary investigation or the discipline it issued her for engaging in such activity. The Board reversed the judge’s dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) by threatening that employee with unspecified reprisals. Contrary to the judge, the Board found that such a threat was made when the Respondent suggested “trouble” might result if the employee did not follow its directive not to discuss its investigation and her discipline.
Charge filed by an individual. Administrative Law Judge Ira Sandron issued his decision on March 13, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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The Board denied the Respondent’s motion for reconsideration and to reopen the record. The Board found that the Respondent had waived any argument regarding the authority of former Acting General Counsel Lafe Solomon, and, accordingly, rejected the Respondent’s motion as an untimely effort to file additional exceptions. The Board further stated that it would reject the Respondent’s argument that Solomon’s “appointment” was unlawful or invalid even if the argument were properly before it, because, as the D.C. and Ninth Circuit Courts of Appeal have held, Solomon properly assumed the duties of Acting General Counsel at the time the President directed him to do so. The Board acknowledged that those courts have also held that Solomon lost his authority when the President nominated him to be General Counsel, but noted that that question is in litigation. Finally, the Board found that questions of Solomon’s authority in this case have been rendered moot by the subsequent ratification of the issuance of the complaint by General Counsel Richard F. Griffin, Jr.
Charge filed by an individual. Administrative Law Judge Mindy E. Landow issued her decision on June 10, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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The Board affirmed the Administrative Law Judge’s decision to defer to an arbitral award, and, accordingly, adopted the judge’s recommended Order dismissing complaint allegations that the Respondent had unlawfully transferred work previously performed by bargaining-unit employees to employees outside of the unit.
Charge filed by California Nurses Association. Administrative Law Judge Mary Miller Cracraft issued her decision on November 16, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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Applying D. R. Horton, Inc., 357 NLRB 2277 (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 a New Hire Agreement and a Current Employee Agreement (Agreements) that required employees, as a condition of employment, to waive their right to pursue class or collective actions involving employment related claims in all forums, whether arbitral or judicial. The majority also found that the Respondent violated Section 8(a)(1) by filing a motion in a California state court class action to enforce the Current Employee Agreement by excluding employees covered by the agreement from the class. In addition, the majority affirmed the judge’s finding that the Agreements separately violated Section 8(a)(1) by interfering with employees’ rights to file charges with the Board. The majority relied on SolarCity Corp., 363 NLRB No. 83 (2015), in rejecting the Respondent’s contention that the Agreements were not unlawful because they had an exemption permitting employees to file charges with administrative agencies, including with the Board. The majority concluded that the all-encompassing individual arbitration language and the “vague, unexplained language of the Agreements” could reasonably lead employees to believe that they were barred from filing such charges.
For the reasons stated in his partial dissent in Murphy Oil, Member Miscimarra dissented from the majority’s findings that the Respondent violated Section 8(a)(1) by maintaining and, in the case of the Current Employee Agreement, enforcing the individual arbitration obligations. Based on the analyses in his SolarCity Corp. and ISS Facilities, Inc., 363 NLRB No. 160 (2016) dissents, Member Miscimarra also would find that, because of their explicit exemption for NLRB charges, the Agreements cannot reasonably be read to unlawfully interfere with employees’ rights to file charges with the Board.
Charges filed by individuals. Administrative Law Judge Gerald A. Wacknov issued his decision on November 8, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by discharging an employee for engaging in protected concerted activity, and, on two separate occasions, by unlawfully threatening employees. The Board rejected the Respondent’s argument that a co-employee’s demand letter for unpaid wages was a purely personal claim and, therefore, that the discharged employee’s conduct relating to that letter was not protected concerted activity. Assuming arguendo that the demand letter was a personal claim, the Board noted that it has consistently held that concerted activity to further such a claim is nevertheless protected. Further, the Board noted that its finding that the General Counsel met his burden of proving animus is not dependent on the contemporaneous Section 8(a)(1) threats. In affirming the judge’s finding that the second threat violated Section 8(a)(1), the Board found that the record supports the judge’s inference that a reasonable employee would have linked the Respondent’s threat to protected concerted activity. Finally, the Board rejected the Respondent’s overarching argument that an individual was no longer an “employee” for the purposes of the Act after he voluntarily resigned from the Respondent.
Charges filed by individuals. Administrative Law Judge Donna N. Dawson issued her decision on September 10, 2015. Chairman Pearce and Members Hirozawa and McFerran participated.
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In this decision on review, a Board panel majority consisting of Chairman Pearce and Member Hirozawa reversed the Regional Director and found that the Employer had not established that its road supervisors and lead road supervisors (collectively “road supervisors”) were supervisors within the meaning of Section 2(11). In so doing, the majority reversed the Regional Director’s finding that the road supervisors possessed the authority to discipline. The majority found that the Employer neither established that it consistently applied a progressive disciplinary system nor the role that the road supervisors’ reports (documenting infractions) played within its disciplinary system, nor had the Employer established that the road supervisors exercised independent judgment with respect to whatever discipline resulted from their reports. In addition, the majority rejected the Employer’s arguments that the road supervisors’ ability to remove operators from service, their role in accident investigations, or their submission of incident reports established their authority to discipline. The majority also found that the Employer had not established that the road supervisors have authority to effectively recommend discipline or to reward operators, and affirmed the Regional Director’s finding that the road supervisors do not possess the authority to responsibly direct. In dissent, Member Miscimarra would have found that the Regional Director properly determined that the road supervisors are statutory supervisors because they possess authority to discipline.
Petitioner – Amalgamated Transit Union, Local 689, associated with Amalgamated Transit Union, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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R Cases
Morongo Band of Mission Indians, d/b/a The Morongo Casino Resort & Spa (21-RC-172901) Cabazon, CA, May 11, 2016. The Board denied the Employer’s request to stay the election scheduled for May 12, 2016. Petitioner – International Brotherhood of Electrical Workers Local 47, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
Islamic Saudi Academy (05-RC-080474) Fairfax, VA, May 12, 2016. The Board granted the Employer’s Request for Review as it raises substantial issues solely regarding whether the Board must decline jurisdiction over the Employer’s non-teaching employees because it is a religious school. The Board asked the parties to address whether it should adhere to the Board’s current precedent as set forth in Hanna Boys Center, 284 NLRB 1080 (1987), enfd. 940 F.2d 1295 (9th Cir. 1991), cert. denied 504 U.S. 985 (1992); extend the test articulated in Pacific Lutheran University, 361 NLRB No. 157 (2014), to the non-teaching employees at issue here; or take a different approach. The Board denied the Employer’s Request for Review of the Regional Director’s earlier Decision and Direction of Election in which he found that the Foreign Sovereign Immunities Act did not prevent the Board from asserting jurisdiction over the Employer because it was an instrumentality of a foreign government. In granting review, Member Miscimarra noted his disagreement with Pacific Lutheran University, and requested that the parties also address the potential applicability of the standard articulated in Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002). Petitioner – Islamic Saudi Academy Employee Professional Association (ISAEPA). Chairman Pearce and Members Miscimarra, Hirozawa, and McFerran participated.
C Cases
No Unpublished C Cases Issued.
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Polycon Industries, Inc., Board Case No. 13-CA-104249 (reported at 363 NLRB No. 31) (7th Cir. decided May 9, 2016)
In a published opinion, the court enforced the Board’s order against this Merrillville, Indiana bottle manufacturer that required it to execute the collective-bargaining agreement it reached with the Teamsters Local 142.
In October 2010, the parties began negotiations for a first contract and bargained for more than two years. In January 2013, the Union’s members voted to ratify a draft contract, which included a union-security clause requiring all employees to be union members. In March, the Employer’s counsel emailed the Union requesting that the parties revise the clause in light of Indiana’s right-to-work statute, which had prohibited such requirements three years earlier. After some back and forth, the Employer’s counsel emailed the Union on May 3 to state that the Union’s proposed language was “fine,” and proposed that the contract’s start date be May 1. He also asked the Union to send a final draft incorporating the agreed-upon language. On May 7, the Union forwarded the agreement to the Employer. On May 9, however, the Employer’s counsel emailed the Union stating that it would not sign the contract because the employees were circulating a decertification petition. On those facts, the Board (Chairman Pearce and Members Miscimarra and Hirozawa) found, in agreement with the Administrative Law Judge, that the Employer violated Section 8(a)(5) and (1) by refusing to execute the collective-bargaining agreement.
Writing for the unanimous panel, Circuit Judge Posner agreed, explaining that “once the parties agreed on the terms of the collective bargaining agreement, as they had done on May 3 when [Employer’s counsel] notified the Union that the Union’s addition to the collective bargaining agreement was ‘fine,’ they were obligated to execute” the agreement. The court rejected the Employer’s contention that there was no “meeting of the minds,” as defined by Indiana law, noting that the argument had not been raised to the Board, and would have failed in any event because “state contract law is inapplicable to the interpretation and enforcement of collective bargaining agreements within the Board’s jurisdiction.” The court also dispensed with the Employer’s argument that its counsel did not have the authority to bind the Employer, explaining that there was no record evidence that the Employer informed the Union that statements made by its counsel were not binding. Here, the court commented, the Board’s “order is so clearly correct that [the Employer]’s challenge borders on the frivolous.”
The court’s opinion is here (link is external).
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Local 660, United Workers of America (Alstate Maintenance, Inc.) (29-CB-103994 and 29-CB-126867; JD(NY)-12-16) Brooklyn, NY. Administrative Law Judge Raymond P. Green issued his decision on May 9, 2016. Charges filed by Local 32BJ, Service Employees International Union.
Electronic and Space Technicians Local 1553 (Raytheon Company) (31-CB-152342, 31-CB-158356 and 31-CB-152970; JD(SF)-23-16) El Segundo, CA. Administrative Law Judge Amita Baman Tracy issued her decision on May 10, 2016. Charges filed by individuals.
Local 324, International Union of Operating Engineers (IUOE), AFL-CIO (The Selinsky Force, LLC) (07-CB-105510; JD-42-16) Monroe, MI. Administrative Law Judge Eric M. Fine issued his decision on May 10, 2016. Charge filed by an individual.
The Ruprecht Company (13-CA-155048, et al.; JD(NY)-14-16) Mundelein, IL. Administrative Law Judge Joel P. Biblowitz issued his decision on May 13, 2016. Charges filed by UNITE HERE Local 1.
98 Crystal Palace Restaurant Inc., d/b/a Grand Harmony Restaurant (02-CA-160359; JD(NY)-16-16) New York, NY. Administrative Law Judge Raymond P. Green issued his decision on May 13, 2016. Charge filed by 318 Restaurant Workers Union.
Source: NLRB
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