Data Monitor Systems, Inc. (09-CA-145040; 364 NLRB No. 4) Dayton, OH, May 31, 2016.
The Board affirmed the Administrative Law Judge’s dismissal of the complaint, finding that the Respondent was not a “perfectly clear” successor under NLRB v. Burns Intl. Security Services, 406 U.S. 272, 294–295 (1972), and Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975). The Board found that the Respondent had not yet made its hiring decisions and did not express an intent to retain a majority of the predecessor’s employees at the time job applications were distributed and the predecessor’s employees were told to sign up for interviews with the Respondent. Because the Respondent was not a “perfectly clear successor,” the Board found that it did not violate Section 8(a)(5) and (1) by refusing to use seniority in determining which of the predecessor’s employees to employ.
Charge filed by Teamsters Local Union No. 957, General Truck Drivers, Warehousemen, Helpers, Sales and Service and Casino Employees. Administrative Law Judge Joel P. Biblowitz issued his decision on January 19, 2016. Chairman Pearce and Members Hirozawa and McFerran participated.
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The Board granted a joint motion filed by the Respondent, the Charging Party, and the General Counsel to waive a hearing and a decision by an administrative law judge, and to transfer the case to the Board to issue a decision based on a stipulated record. 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 Member Hirozawa and Member McFerran found that Respondent Lincoln Eastern Management Corporation violated Section 8(a)(1) by maintaining an arbitration policy that requires employees, as a condition of employment, to waive the right to maintain class or collective actions in all forums, whether arbitral or judicial. Relying on Ralph’s Grocery Co., 363 NLRB No. 128 (2016), the majority rejected the Respondent’s argument that its policy was lawful because it contained a provision stating that “nothing in this policy is intended to prevent you from filing any claims for relief under the National Labor Relations Act with the National Labor Relations Board or any other appropriate administrative agency related to your employment claims.” The majority found that the policy, considered as a whole, was not written in a manner reasonably calculated to assure employees that their statutory right of access to the Board’s processes remains unaffected.
Member Miscimarra dissented for the reasons explained in his partial dissent in Murphy Oil. Because of the policy’s express exclusion for NLRA claims, Member Miscimarra also disagreed that the arbitration policy unlawfully interferes with the right of employees to file Board charges.
Charge filed by an individual. Case decided by the Board based on a stipulated record pursuant to a joint motion filed by the Respondent, the Charging Party, and the General Counsel. Members Miscimarra, Hirozawa, and McFerran participated.
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The panel majority (Chairman Pearce and Member Hirozawa) reversed, the judge’s finding that the Employer did not violate Section 8(a)(3) and (1) by permanently replacing striking employees. In finding the violation, the Board applied Hot Shoppes, 146 NLRB 802, 805 (1964), and held that the General Counsel is not required to show that an employer was motived by an unlawful purpose extrinsic to the strike, but only that the hiring of permanent replacements was motivated by a purpose prohibited by the Act. The Board then determined that the Employer’s stated reasons for permanently replacing workers: to punish the strikers and the Union and to avoid future strikes, both constituted evidence of an “independent unlawful purpose.”
In dissent Member Miscimarra argued that the Board interpreted “independent unlawful purpose” too broadly. In his view, an independent unlawful purpose exists only if the Employer’s unlawful objective is extrinsic to the strike itself and the parties’ bargaining relationship.
Administrative Law Judge Burton Litvack issued his decision on December 9, 2011. Charges were filed by the Service Employees International Union, United Healthcare Workers-West. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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The Board found that the Respondents violated Section 8(a)(1) by enforcing an arbitration agreement that requires employees to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. The Board additionally found that maintaining the arbitration policy violated Section 8(a)(1) because employees reasonably would believe that it bars or restricts their right to file unfair labor practice charges with the Board. The Board in making its findings applied its decision in D. R. Horton, 357 NLRB No. 184 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), which the Board reaffirmed in Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015). Member Miscimarra concurred with the finding that the arbitration policy violated Section 8(a)(1) because employees reasonably would believe that it bars or restricts their right to file unfair labor practice charges with the Board. Member Miscimarra dissented from the remainder of the majority opinion based on his dissenting opinions in D. R. Horton and Murphy Oil USA.
Administrative Law Judge Mary Miller Cracraft issued a decision in this proceeding on April 7, 2015. Members Miscimarra, Hirozawa, and McFerran participated.
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The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) in rescinding a teacher’s employment contract. The Board agreed that the teacher’s participation in an email conversation with his theater department colleagues about a joint letter of protest to be sent to the school’s administrators was protected concerted activity under the Act. It further found that his accusations in the email that the administration had “lied” and had not been “honest, forthright, upstanding, moral, considerate, much less intelligent or wise” was not so egregious as to forfeit the protection of the Act. In so doing, the Board rejected the Respondent’s argument that it was judging the teacher’s conduct under standards more appropriate to the factory floor. It acknowledged the importance of context, but rejected the notion that professional colleagues, discussing collective action among themselves, can be disciplined or discharged merely for criticizing management in sharp and unequivocal terms. The Board did, however, reject the judge’s finding that the Respondent unlawfully interrogated the employee, because this allegation, which was not contained in either the charge or the complaint, was not fully litigated at the hearing.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on June 1, 2015. Members Miscimarra, Hirozawa and McFerran participated.
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R Cases
Blommer Chocolate Company of California, LLC (32-RC-131048) Union City, CA, May 31, 2016. The Union filed a motion for reconsideration requesting that the Board modify its previous direction of a second election in the above-titled proceeding to include a Lufkin notice, which informs employees that the first election was set aside because the Employer engaged in certain conduct interfering with employee free choice. Since the motion was unopposed and only requested that the Board supplement rather than reconsider the motion, the Board treated it as a motion to amend the decision and granted the motion. Member Miscimarra dissented from the original decision directing a second election, but agreed with his colleagues to grant the motion for clarification.
Spectrum Juvenile Justice Services (07-RC-169521) Highland Park, MI, June 1, 2016. Order denying the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative. The Board found that the request for review raised no substantial issues warranting review. Petitioner- International Union, Security, Police and Fire Professionals of America (SPFPA). Members Miscimarra, Hirozawa, and McFerran participated.
Pennsylvania Interscholastic Athletic Association, Inc. (06-RC-152861) Mechanicsburg, PA, June 1, 2016. The Board granted the motion of the National Federation of State High School Associations to file an amicus curiae brief.
The Wang Theatre, Inc. d/b/a Citi Performing Arts Center (01-RC-166997) Boston, MA, June 3, 2016. Order denying the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raises no substantial issues warranting review. The Board also denied the Employer’s Motion to Strike and request to stay the election. Petitioner- Boston Musicians Association, a/w American Federation of Musicians Local Union No. 9-535, AFL-CIO. Chairman Pearce and Members Hirozawa and McFerran participated.
C Cases
The Detroit News, Inc., and Detroit Newspaper Partnership, L.P., a limited partnership, a/k/a Detroit Media Partnership and Detroit Free Press, incorporated, general Partner (07-CA-132726 and 07-CA-132729) Detroit, MI, May 31, 2016. The Board granted request to remand case to the Regional Director.
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EDRO Corporation d/b/a Dynawash, Board Case No. 01-CA-116211 (reported at 362 NLRB No. 53) (2d Cir. decided May 31, 2016)
In an unpublished summary order, the court enforced the Board’s order issued against this manufacturer of industrial washing machines and dryers in East Berlin, Connecticut, for violating Section 8(a)(3) and (1) by discharging an employee for his union activity. In doing so, the court rejected the employer’s two challenges to the Board’s backpay and reinstatement remedy.
In August 2013, the employee began work as a quality inspector after being selected for the position through a staffing agency. The agency had screened and referred candidates whom the employer then interviewed and selected for work. Soon thereafter, he started advocating for holiday pay for the upcoming holidays and, in October, specifically made the request to a manager, who denied it. In that meeting, the employee stated that the employer would have a better chance of retaining employees if it treated them better, and said “you get what you give.” Later that day, the employee contacted International Association of Machinists and Aerospace Workers, AFL-CIO, and began actively campaigning for the union. A week later, after a co-worker reported that he was leading the effort, managers met and decided to discharge him for his involvement in the organizing campaign. The administrative law judge found the violation and issued a recommended order that included reinstatement and backpay. Before the Board, the employer did not except to the discharge violation, but instead filed exceptions to the remedy, which the Board rejected.
Before the court, the employer renewed its challenges to the remedy, arguing that reinstatement was inappropriate because the employee was a temporary worker, and that both reinstatement and backpay were improperly ordered because it would have fired him anyway given that it later discovered that he had a criminal record. First, the court held that the Board had reasonably relied on its own precedent in rejecting the employer’s temporary-status claim. Second, regarding the employer’s discovery of his criminal record, the court noted: “An employer seeking to limit the remedy owed to an unlawfully discharged employee based on after‐acquired evidence must prove that the employee engaged in misconduct for which it would have discharged any employee.” The court then rejected the employer’s claim that the employee’s remark, “you get what you give,” was a threat that rose to the level of such misconduct, explaining that the employer’s version of events was founded on discredited evidence. Finding the employer’s remaining arguments unpersuasive, and summarily upholding the uncontested discharge finding, the court enforced the Board’s order in full.
The court’s decision may be found here (link is external).
DirecTV U.S. DirecTV Holdings LLC, Board Case No. 21-CA-039546 (reported at 362 NLRB No. 48) (5th Cir. decided May 31, 2016)
In an unpublished opinion, the court denied enforcement of the Board’s order issued against this installer of TV satellite dishes for violating Section 8(a)(3) and (1) by discharging an employee for his union activity at its facility in Riverside, California. The court concluded that substantial evidence on the record as a whole did not support the Board’s decision.
The court (Judges Haynes and Southwick; Judge King dissenting) held that the Board erred in not considering certain record evidence. Specifically, the court found that the Board failed to take into account the employee’s extensive disciplinary history and the final warning that he had previously received that qualified him for immediate discharge upon further misconduct. The court also noted that his conduct here—directing profanity to his supervisor in front of a warehouse of employees—was conduct that the employer would have fired him for anyway, particularly in light of the evidence that six other employees had been fired for using profanity, some of whom were fired for less flagrant conduct. In dissent, Judge King would have held that substantial evidence supports the Board’s decision.
The court’s decision is here (link is external).
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Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew (20-CA-154749, 20-CA-157769, 20-CA-160516 and 20-CA-160517; JD(SF)-24-16) Honolulu, HI. Administrative Law Judge Mara-Louise Anzalone issued her decision on May 31, 2016. Charges filed by UNITE HERE! Local 5.
Mek Arden, LLC d/b/a Arden Post Acute Rehab (20-CA-156352, et al.; JD(SF)-26-16) Sacramento, CA. Errata to May 27, 2016 Decision and Recommended Order on Objections to the Election of Administrative Law Judge Ariel L. Sotolongo. Errata Amended Decision.
Source: NLRB
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