Nexeo Solutions, LLC (20-CA-035519; 364 NLRB No. 44) Fairfield, California, July 18, 2016.
A Board panel majority consisting of Chairman Pearce and Member Hirozawa, reversing the Administrative Law Judge, found that the Respondent is a “perfectly clear” successor to Ashland Distribution Services, Inc. at its Fairfield, California facility, and that the Respondent therefore violated Section 8(a)(5) and (1) by failing to bargain with the Union to agreement or impasse prior to establishing initial terms and conditions of employment for the unit employees. The Board found that it was perfectly clear from the outset that the Respondent intended to retain the unit employees and that the Union’s majority status would therefore continue in the new workforce, because the Respondent committed itself in the Purchase Agreement to offer employment to all of Ashland Distribution’s employees; it repeatedly authorized, approved, and ratified communications assuring the employees that they would be retained; and it waited more than 3 months to notify the employees that employment would be conditioned on the acceptance of new terms. The Board explained that, under Spruce Up Corp., 209 NLRB 194 (1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975) and its progeny, “[t]o avoid ‘perfectly clear’ successor status, a new employer must clearly announce its intent to establish a new set of conditions prior to, or simultaneously with, its expression of intent to retain the predecessor’s employees.”
Member Miscimarra, dissenting in part, would have affirmed the judge’s finding that the Respondent was not a “perfectly clear” successor and, accordingly, did not violate the Act by unilaterally establishing initial employment terms. Member Miscimarra would find the majority’s reliance on the Purchase Agreement misplaced, because the Purchase Agreement left the Respondent free to implement different initial terms and, in any event, the employees did not obtain a copy of the Purchase Agreement until after they had already received written offers from the Respondent describing the initial terms of employment. Member Miscimarra would also find misplaced the majority’s reliance on communications informing the employees that they would all be retained, because the communications were made by Ashland Distribution, not by the Respondent, and they are not attributable to the Respondent under any of the theories espoused by the majority. Finally, Member Miscimarra would find that the Respondent’s first communication to the unit employees clearly portended employment under different terms.
However, the panel unanimously upheld the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing certain employment practices after it began operations, because the changes were not part of the initial terms that were announced and implemented by the Respondent.
Charge filed by Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70 of Alameda County, affiliated with the International Brotherhood of Teamsters. Administrative Law Judge William G. Kocol issued his decision on August 30, 2012. Chairman Pearce and Members Miscimarra and Hirozawa participated.
***
A Board panel majority consisting of Chairman Pearce and Member Hirozawa adopted the hearing officer’s recommendation to sustain the Petitioner’s objection to an election, which alleged that the Board agent conducting the election improperly refused to allow the Petitioner its designated observer. When the employee whom the Petitioner had initially designated as its observer was unable to serve in that capacity because he was scheduled to work, the Petitioner’s East Coast Regional Director asked the Board agent conducting the election to allow him to substitute as the Petitioner’s observer. The Board agent refused, citing the individual’s status as a nonemployee union official. The election proceeded with an observer present for the Employer, but none for the Petitioner. The majority agreed with the hearing officer that the Board agent’s conduct created a reasonable doubt as to the fairness and validity of the election. The majority observed that the Board has articulated a procedure for Board agents to follow when they become aware that a party intends to use a potentially objectionable observer. Under this procedure, the Board agent must advise the parties that the election might be set aside if an objection is filed and it is later determined that the use of the observer was not reasonable under the circumstances. The Board agent should then allow the election to proceed with the observers chosen by the parties, leaving to the objections process the resolution of any issues that might be raised as to the reasonableness of the use of the questionable observer. The majority explained that the Board agent’s failure to follow this procedure resulted in a numerical imbalance in the number of observers, in breach of the Stipulated Election Agreement’s provision that each party “may station an equal number of nonsupervisory-employee observers at the polling places . . . .” The majority further explained that, under well-established precedent, the breach of a provision in an election agreement providing for an equal number of observers is a material breach that warrants setting aside the election without the need for a further showing of prejudice. The majority rejected the dissent’s argument that it is per se objectionable for a nonemployee union official to serve as an observer, noting that the Board has long held, with judicial approval, that absent evidence of misconduct, service by a union official as an observer is not grounds to set aside a representation election. The majority also rejected the Employer’s and the dissent’s argument that the Stipulated Election Agreement’s provision for “nonsupervisory-employee observers” required observers who were both nonsupervisors and current employees of the Employer, noting that the Board has found that this standard clause is aimed at preventing the employer’s supervisors from serving as election observers; it is not intended to preclude nonemployees from serving as observers. Accordingly, the majority adopted the hearing officer’s recommendation to set aside the election and direct a second election.
Member Miscimarra, dissenting, would have rejected the hearing officer’s recommendation to sustain the Petitioner’s objection. Contrary to the majority, Member Miscimarra would find that the Board agent was not required to let the Petitioner’s East Coast Regional Director serve as an observer and leave any arguments about his eligibility to the postelection objections stage of the proceeding. Member Miscimarra would further find that, by preventing a high-ranking union official from serving as an observer, the Board agent furthered the important goal of protecting employees’ freedom of choice, while avoiding a substantive problem that could cause the entire election to be set aside.
Petitioner – United Government Security Officers of America International Union and its Local 365.
Chairman Pearce and Members Miscimarra and Hirozawa participated.
***
A Board majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s finding that the Respondent Employer violated Section 8(a)(1) by discharging an employee because of his protected concerted activity. The Board majority agreed with the judge that, by asserting what he honestly and reasonably believed were his rights under the applicable collective-bargaining agreement, the employee engaged in protected conduct under NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984). Further, although the judge additionally found that the Respondent Union violated Section 8(b)(1)(A) by failing and refusing to represent the employee in the processing of his grievance over the discharge (and there were no exceptions to that finding), the Board majority agreed with the judge that the Respondent Employer was solely liable for the backpay owed to the employee, as the evidence did not show any connection between the Respondent Union’s conduct and the employee’s discharge.
Member Miscimarra, dissenting, would dismiss the complaint against the Respondent Employer and find that the employee’s activity fell outside the scope of City Disposal Systems. In his view, the employee’s assertion of rights was not protected because it did not implicate the collective-bargaining agreement that the Respondent Employer and the Respondent Union actually executed. Because he would find that the Respondent Employer did not violate the Act, he would not reach the issue of whether the Respondents should share backpay liability. Instead, he would remedy the Respondent Union’s 8(b)(1)(A) violation in the manner set forth in Iron Workers Local 377 (Alamillo Steel Corp.), 326 NLRB 375 (1998).
Charges filed by an individual. Administrative Law Judge Donna N. Dawson issued her decision on May 8, 2015. Chairman Pearce and Members Miscimarra and Hirozawa participated.
***
The Board affirmed the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by: (1) engaging in unlawful surveillance of union handbilling; (2) threatening employees with plant closure if they selected the Union; (3) interrogating an employee about his union activities and sympathies and those of other employees; and (4) posting a sign threatening employees with permanent job loss if they were replaced by new hires during a strike. The Board also affirmed the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for his union activity.
Charge filed by International Brotherhood of Electrical Workers Local #1464 affiliated with the International Brotherhood of Electrical Workers, AFL-CIO. Administrative Law Judge Christine E. Dibble issued her decision on September 30, 2013. Chairman Pearce and Members Hirozawa and McFerran participated.
***
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. In addition, the Board rejected the Respondent’s argument that the complaint in this case constituted improper piecemeal litigation under Jefferson Chemical Co., 200 NLRB 992 (1972), in view of the amended complaint in Case 05-CA-167137, finding that there is no evidence that the General Counsel here seeks to litigate the same conduct in two proceedings. In addition, the Board found the Respondent’s assertions that the complaint is not substantially justified within the meaning of the Equal Access to Justice Act and that the Respondent is entitled to an award of attorney’s fees were without merit.
Charge filed by International Union of Painters and Allied Trades, AFL-CIO, District Council 51. Chairman Pearce and Members Hirozawa and McFerran participated.
***
A unanimous Board panel affirmed the Administrative Law Judge’s dismissal of the Section 8(b)(1)(A) allegation. A Board panel majority consisting of Chairman Pearce and Member Hirozawa relied on the judge’s findings that the Union president’s text message was not objectively threatening in the original context and that the employee who forwarded the text to the Charging Parties was not a Union agent. Member McFerran relied only on the judge’s finding that the employee who forwarded the text was not a Union agent.
Charges filed by individuals. Administrative Law Judge John T. Giannopoulos issued his decision on March 2, 2016. Chairman Pearce and Members Hirozawa and McFerran participated.
***
The Board adopted the Administrative Law Judge’s finding that the parties had established a bargaining relationship under Section 9(a) of the Act based solely on the language in their 2005 contract, contrary to the Respondent’s argument that their relationship was governed by Section 8(f). In so doing, the Board relied strongly on its decision in King’s Fire Protection, Inc., 362 NLRB No. 129 (2015), which involved identical contract language. As it did in King’s Fire, the Board declined to revisit its decision in Central Illinois Construction (Staunton Fuel), 335 NLRB 717 (2001), which held that clear and unequivocal contract language can establish a 9(a) relationship in the construction industry, and found it unnecessary to address the applicability of Casale Industries, 311 NLRB 951 (1993). The Board reversed the judge’s finding that the General Counsel’s allegation regarding a unilateral cessation of payments into the Union’s benefit funds following expiration of the parties’ contract was barred by Section 10(b). Therefore, it found that this conduct was an unlawful unilateral change under Section 8(a)(5) and (1), as was an additional post-expiration unilateral change in which Section 10(b) was not at issue. Member Miscimarra dissented, essentially on the same grounds as he had in his extensive dissent in King’s Fire.
Charges filed by Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO. Administrative Law Judge Charles J. Muhl issued his decision on March 23, 2015. Members Miscimarra, Hirozawa, and McFerran participated.
***
R Cases
Jetstream Ground Services, Inc. (28-RC-172590) Phoenix, AZ, July 19, 2016. The Board 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. Petitioner – International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 142. Chairman Pearce and Members Hirozawa and McFerran participated.
Minnesota Timberwolves Basketball, LP (18-RC-169231) Minneapolis, MN, July 19, 2016. The Board granted the Petitioner’s Request for Review of the Regional Director’s Decision and Order, in which the Regional Director found that the individuals in the petitioned-for unit are independent contractors and not employees, on the ground that it raised substantial issues warranting review. Petitioner – International Alliance of Theatrical Stage Employees. Chairman Pearce and Members Hirozawa and McFerran participated.
Loyola University Chicago (13-RC-168082) Chicago, IL, July 20, 2016. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election on the ground that it raised no substantial issues warranting review. In denying review, Members Hirozawa and McFerran agreed that the Acting Regional Director properly found that the Board has jurisdiction under Pacific Lutheran University, 361 NLRB No. 157 (2014). Member Miscimarra, citing his dissent in Pacific Lutheran University, would grant the Employer’s Request for Review because, in his view, substantial questions exist regarding whether the Board lacks jurisdiction over the University as a religiously affiliated educational institution and whether the Pacific Lutheran standard is unconstitutional under the First Amendment. However, even applying Pacific Lutheran, Member Miscimarra would grant review because he, contrary to the majority, would find that the Employer raised a substantial question regarding the specific role played by faculty and team members in providing students exposure to diverse viewpoints, which is an important aspect of a Jesuit education. Petitioner – Service Employees International Union Local 73, CLC/CTW. Members Miscimarra, Hirozawa, and McFerran participating.
C Cases
SBM (20-CA-157693, 20-CA-157705, and 20-CA-157765) San Francisco, CA, July 18, 2016. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. In considering the petition to revoke, the Board evaluated the subpoena in light of the Region’s clarifications to the Employer that the subpoena only seeks information regarding unit employees and that the Employer may redact sensitive personal information, such as Social Security Numbers. Charges filed by individuals. Members Miscimarra, Hirozawa, and McFerran participated.
SeniorLife Greensburg, Inc. and Pace Healthcare Transportation, Inc., single employer (06-CA-166885, 06-CA-170081, and 06-CA-173151) Greensburg, PA, July 18, 2016. The Board denied the Respondent’s motion to dismiss the complaint in part, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charges filed by Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 30 a/w International Brotherhood of Teamsters. Chairman Pearce and Members Hirozawa and McFerran participated.
Microsoft Corporation (19-CA-162985) Redmond, WA, July 19, 2016. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. In denying the petition, the Board evaluated the subpoena as clarified by the Region’s opposition, in which the Region stated that the term “supplier” is not intended to include outside counsel. Member Miscimarra, dissenting in part, stated that, in his view, a subpoena seeking documents pertaining to an alleged joint-employer and/or single-employer status requires the General Counsel to articulate an objective factual basis supporting the inquiry, which the General Counsel failed to do here. Charge filed by Temporary Workers of America. Members Miscimarra, Hirozawa, and McFerran participated.
United States Postal Service (01-CA-144694) Boston, MA, July 20, 2016. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charge filed by American Postal Workers Union, AFL-CIO, Boston Metro Area Local 100. Chairman Pearce and Members Hirozawa and McFerran participated.
Brookhaven Medical, Inc. and Future Matrix, Inc., as Joint and/or Single Employers (15-CA-170531) Atlanta, GA, July 20, 2016. The Board denied the Employers’ petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employers failed to establish any other legal basis for revoking the subpoena. The Board indicated that, to the extent that the subpoena encompasses documents that the Petitioners believe in good faith are subject to the attorney-client privilege or the attorney work-product doctrine, the Order is without prejudice to the Employers’ prompt submission of a privilege log to the Region identifying and describing each such document, and providing sufficient detail to permit an assessment of the claim of privilege or protection. Finally, the Board directed the Employers to produce all responsive documents in their possession not subject to any good-faith claim of privilege or protection. Charge filed by an individual. Chairman Pearce and Members Hirozawa and McFerran participated.
Communication Workers of America Local 1109, AFL-CIO (Cablevision Systems New York City Corporation) (29-CB-134066) Brooklyn, NY, July 21, 2016. No exceptions having been filed to the June 9, 2016 decision of Administrative Law Judge Mindy E. Landow 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 Cablevision Systems New York City Corporation.
Con-Way Freight, Inc. (21-CA-135683, 21-CA-140545, and 21-RC-136546) Los Angeles, CA, July 22, 2016. The Board granted the Joint Motion to sever allegations and partially remand to the Region
.
***
UnitedHealth Group, Inc., and UnitedHealth Care Services, Inc., Board Case No. 02-CA-118724 (reported at 363 NLRB No. 134) (5th Cir. decided July 21, 2016)
In an unpublished per curiam order, the court granted the Employer’s motion for summary reversal of the Board’s decision that found that the Employer violated Section 8(a)(1) by maintaining an arbitration agreement, as a condition of employment, that waived employees’ right to pursue class or collective actions in employment-related claims in all forums, whether arbitral or judicial. The order issued two and a half months after the Fifth Circuit denied the Board’s petition for rehearing en banc in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), in which the court held it was bound by its prior decision in D. R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013), denying enforcement in relevant part 357 NLRB No. 184 (Jan. 3, 2012), petition for reh’g en banc denied, 5th Cir. No. 12-60031 (April 16, 2014).
The court’s July 21, 2016 order may be found here (listed as “Circuit Court decision”)
Caterpillar Logistics, Inc., Board Case No. 09-CA-110687 (reported at 362 NLRB No. 49) (6th Cir. decided July 19, 2016)
In a published opinion, the court enforced the Board’s order issued against this operator of a logistics facility in Clayton, Ohio, which receives, stores, and ships machinery and parts. The Board found the Employer committed unfair labor practices in the weeks leading up to an election in September 2013, in which its warehouse employees voted 229-188 against representation by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America.
The Board (Chairman Pearce and Member McFerran; Member Johnson dissenting in part) found that the Employer violated Section 8(a)(1) by coercively interrogating employees regarding their union sympathies, by creating the impression that employees’ union activities were under surveillance, by announcing and granting a $400 safety bonus in an effort to influence them to vote against the Union, and by announcing it would construct smoking shelters to address a subject of grievance among the employees.
The Board also found that the Employer violated Sections 8(a)(3) and (1) by discharging an employee who openly stated his union support in an outburst after an employee meeting in which the general manager had ridiculed a question he had asked. Immediately after the meeting, the employee loudly announced to two coworkers that he supported the Union because he was “sick of the way they treat us here,” and added some salty language to the effect that “the gloves are fucking off now.” Those statements were overheard by a supervisor and team leader, and the employee was discharged four days later. On those facts, the Board found that the Employer discharged the employee for protected union activity, and that, under the factors of Atlantic Steel, 245 NLRB 814 (1979), the Employer failed to meet its burden of showing that the employee’s conduct was so egregious as to forfeit the Act’s protection.
On review, the court upheld the Board’s unfair labor practice findings on the basis of substantial evidence, and rejected the Employer’s contentions, finding them contrary to the credited record evidence.
Accordingly, the court enforced the Board’s order in full.
The court’s opinion is here (link is external).
***
Casino Pauma (21-CA-161832; JD-70-16) Pauma Valley, CA. Administrative Law Judge Robert A. Giannasi issued his decision on July 18, 2016. Charge filed by UNITE HERE International Union.
Roy Spa, LLC (19-CA-083329; JD-66-16) Great Falls, MT. Errata to July 12, 2016 decision of Administrative Law Judge Robert A. Giannasi. Errata Amended Decision.
Trump Ruffin Commercial, LLC, d/b/a Trump International Hotel Las Vegas (28-CA-149979, et al.; JD(SF)-31-16) Las Vegas, NV. Administrative Law Judge Lisa D. Thompson issued her decision on July 22, 2016. Charges filed by Local Joint Executive Board of Las Vegas, affiliated with UNITE HERE International Union.
Source: NLRB
No comments:
Post a Comment