Midwest Terminals of Toledo International, Inc. (08-CA-135971 and 08-CA-136613; 365 NLRB No. 138) Toledo, OH, October 11, 2017.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing the selection process and criteria for adding employees to its contractual skilled employee list, and violated Section 8(a)(3) and (1) by discriminatorily denying an employee placement on the skilled list because of his union support and activities (while concurring in finding the Sec. 8(a)(3) violation, Chairman Miscimarra, unlike his colleagues, did not rely on any evidence of the Respondent’s contemporaneous unfair labor practice charges). Specifically, the Respondent hires from an “Order of Call,” which is divided into a “skilled list” of employees who are generally expected to work on a daily basis and a “regular list” of laborers who work more sporadically. The Board found that the Respondent departed from an established past practice of meeting with the Union to discuss and confer over the selection of employees for skilled list placement before placing them. Further, the Board found that the Respondent improperly disregarded the contractual qualifications and seniority rules for skilled list placement by selecting certain employees over others. Finally, as to one such employee, the Respondent’s denial of placement on the skilled list also violated the Act based on record evidence of antiunion animus.
Charges filed by the International Longshoremen’s Association, Local 1982, AFL-CIO, and an individual employee. Administrative Law Judge Paul Bogas issued his decision on April 19, 2016. Chairman Miscimarra and Members Pearce and McFerran participated.
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The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated the Act by unilaterally modifying the allocation of work between two unions with respect to the handling of aluminum and calcium; threatening an employee with delayed processing of his worker’s compensation claim based on his filing of union contract grievances and unfair labor practice charges; denying that employee pay for unworked hours remaining on his shift after he departed the workplace due to a work-related injury, contrary to the contract and past practice; and discharged the Union president because of his union activities and his participation in the Board’s processes.
Additionally, the Board reversed the judge and found that the Respondent also unlawfully and unilaterally discontinued informal training on Liebherr mobile harbor cranes at the Port of Toledo where the Respondent operates. The Respondent contended that employees must receive formal crane training and certification before being allowed to operate Liebherr cranes at all. However, the majority (Members Pearce and McFerran) agreed with the Union’s position that, under the contract and past practice, the Liebherr cranes must be treated like any other crane and employees must be afforded informal “seat time” training with coworkers without the stipulation that they must receive formal certification first. Disagreeing, Chairman Miscimarra contended that the Union never requested bargaining over the sequence of formal and informal training on the Liebherr cranes after the Respondent made its position clear; that no actual “change” to crane training occurred inasmuch as the Respondent did not move forward with any training for Liebherr cranes after the Union refused to supply employees who would attend the formal training course prior to receiving informal training; and that because the dispute over the sequence of formal and informal Liebherr crane training remains unresolved, the Board cannot find an unlawful refusal to bargain and thereby improperly compel a party’s agreement on a specific contract proposal.
Charges filed by the International Longshoremen’s Association, Local 1982, AFL-CIO, and an individual employee. Administrative Law Judge Paul Bogas issued his decision on January 21, 2016. Chairman Miscimarra and Members Pearce and McFerran participated.
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The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated (1) Section 8(a)(5) and (1) by: (a) unilaterally implementing the terms of its last, best, and final offer without bargaining with the Union to a good-faith impasse; (b) failing and refusing to provide the Union with the relevant and necessary information it requested on two occasions; and (c) failing and refusing to resume bargaining for a new collective-bargaining agreement; and (2) Section 8(a)(3) and (1) by failing and refusing to immediately reinstate bargaining unit employees who had engaged in an unfair labor practice strike and who had made an unconditional offer to return to work. Chairman Miscimarra would find that the Respondent violated Section 8(a)(5) and (1) solely because it unreasonably delayed in its response to the Union’s information requests.
In adopting the judge’s findings, the Board clarified two points in her decision: first, the Respondent’s failure to provide a cost-savings estimate was not alleged as a separate 8(a)(5) violation and the judge erred in finding one; similarly, the judge erred in stating that the Respondent engaged in bad-faith bargaining as that was never alleged in the complaint or litigated by the parties.
Charges filed by Local 164, International Brotherhood of Teamsters (IBT). Administrative Law Judge Donna Dawson issued her decision on May 16, 2014. Chairman Miscimarra and Members Pearce and McFerran participated.
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The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Order Sustaining Challenges, Overruling Objections and Certification of Representative and reversed that decision. The Board found that the Petitioner’s challenges to the ballots of 18 maintenance technicians should be overruled and remanded the case to the Regional Director to open and count these ballots and issue the appropriate certification. Relying on the its decision in Odwalla, Inc., 357 NLRB 1608 (2011), the Board found that the stipulated unit of production employees and janitors was not an appropriate unit and thus the excluded maintenance technicians did not have to meet the “overwhelming community of interest” standard required under the Board’s Specialty Healthcare standard to be included in the unit. Instead, the Board found that the excluded maintenance technicians should be included because they shared a sufficient community of interest with the included production employees and janitors. The Board denied the Employer’s Request for Review as to the Regional Director’s inclusion of the janitors and the facilities maintenance technician, as well as its objections as to the Board agents’ conduct of the election. Chairman Miscimarra, while disagreeing with the Board’s decision in Specialty Healthcare, agreed that the maintenance technicians should be included as sharing a community of interest with the stipulated unit and to otherwise deny the Employer’s Request for Review.
Petitioner – International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 725. Chairman Miscimarra and Members McFerran and Pearce participated.
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The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by laying off bargaining unit employees without giving the Union notice and an opportunity to bargain. The layoffs occurred during a period in which the Respondent was refusing to bargain in order to test the validity of the Union’s certification. In upholding the judge’s decision, the Board adopted his conclusion that the Respondent did not establish an “economic exigency” that would have excused its failure to bargain. The Board did not rely, however, on other conclusions by the judge, and it revised several aspects of the Order. In addition, the panel Members stated individual positions on certain points.
Charge filed by International Union of Painters and Allied Trades, AFL-CIO, District Council 51. Administrative Law Judge Arthur J. Amchan issued his decision on January 31, 2017. Chairman Miscimarra and Members Pearce and McFerran participated.
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R Cases
No Unpublished R Cases Issued
C Cases
United States Postal Service (12-CA-190790, 12-CA-194538 and 12-CA-194598) San Juan, PR, October 10, 2017. The Board denied the Respondent’s Motion to Partially Dismiss. The Board found that the Respondent failed to demonstrate that certain complaint allegations exceed the scope of the amended charges; additionally, the fact that some complaint allegations are also the subject of another ongoing proceeding does not constitute grounds for dismissing the allegations in this proceeding at this time. Charges filed by American Postal Workers Union, Puerto Rico Area Local 1070, AFL-CIO. Chairman Miscimarra and Members Pearce and Kaplan participated.
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No Appellate Court Decisions involving Board Decisions to report.
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Spectrum Juvenile Justice Services (07-CA-155494, et al.; JD-85-17) Highland Park, MI. Administrative Law Judge Thomas M. Randazzo issued his Decision on October 11, 2017. Charges filed by an individual, Council 25, Michigan American Federation of State, County, and Municipal Employees (AFSCME), AFL-CIO, International Union, Security, Police and Fire Professionals of America (SPFPA) and Local 120, International Union, Security, Police and Fire Professionals of America (SPFPA).
Source: NLRB
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