Summary of NLRB Decisions for Week of April 18 - 22, 2016
Summarized Board Decisions
Airway Cleaners, LLC (29-RC-153440; 363 NLRB No. 166) Queens, NY, April 18, 2016.
Denying an Intervenor’s Request for Review of Decision and Direction of Election, a Board panel majority consisting of Chairman Pearce and Member Hirozawa relied on Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015), and Management Training Corp., 317 NLRB 1355 (1995), to hold that the joint-employer test outlined in Browning-Ferris did not alter the Board’s jurisdiction over the non-exempt Employer.
Member Miscimarra concurred in the exercise of jurisdiction over the Employer to prevent creating a jurisdictional “no-man’s land” between the National Labor Relations Act and the Railway Labor Act and due to his disagreement with Browning-Ferris.
Petitioner ― Local 32BJ, Service Employees International Union. Intervenor ― Local 660, United Workers of America. Chairman Pearce and Members Miscimarra and Hirozawa participated.
L.F.N. Restaurant, Inc. d/b/a Nanni Restaurant (02-CA-152777 and 02-CA-156322; 363 NLRB No. 163) New York, NY, April 19, 2016.
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. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing to continue in effect the terms and conditions of certain provisions of an expired collective bargaining agreement with the Union, and violated Section 8(a)(1) by discharging an employee for engaging in protected concerted activity.
Charges filed by Local 100, Unite Here and by an individual. Chairman Pearce and Members Hirozawa and McFerran participated.
Premier Utility Services, LLC a wholly owned subsidiary of USIC Locating Services, LLC (29-RC-159452 and 29-RC-159545; 363 NLRB No. 159) Hauppauge, NY, April 20, 2016. Errata to April 5, 2016 Board Decision. Errata Amended Decision.
Prime Healthcare Paradise Valley, LLC (21-CA-133871 and 21-CA-133783; 363 NLRB No. 169) National City, CA, April 22, 2016.
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 findings that the Respondent violated Section 8(a)(1) by: (1) maintaining and enforcing two mandatory arbitration policies (the Mediation and Arbitration Agreement and the Mutual Agreement to Arbitrate) that require employees, as a condition of employment, to waive their rights to pursue class and collective actions in all forums, whether arbitral or judicial; and (2) maintaining the Mediation and Arbitration Agreement, which employees reasonably would construe as restricting their access to the Board’s processes.
Member Miscimarra concurred in his colleagues’ finding that the Respondent’s Mediation and Arbitration Agreement violated Section 8(a)(1) because it interferes with Board charge filing. However, consistent with his partial dissenting opinion in Murphy Oil, Member Miscimarra would find that the maintenance of agreements between employers and employees that waive class and collective actions regarding non-NLRA employment claims do not violate Section 8(a)(1). Because he would find that both agreements’ class-waiver provisions are lawful, Member Miscimarra would also find it lawful for the Respondent to file petitions in state court seeking to enforce these policies. In his view, the policies’ unlawful interference with NLRB charge filing is not material to the merits of the Respondent’s petition.
Charges filed by individuals. Administrative Law Judge William Nelson Cates issued his decision on May 8, 2015. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Victory II, LLC d/b/a Victory Casino Cruises II (12-CA-146110; 363 NLRB No. 167) Jacksonville, FL, April 22, 2016.
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 Members Hirozawa and McFerran granted the General Counsel’s motion for summary judgment, finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that requires employees, as a condition of employment, to waive their right to maintain class or collective actions in all forums, whether arbitral or judicial, and that employees would reasonably believe bars or restricts their right to file charges with the Board. For the reasons explained in his partial dissenting opinion in Murphy Oil USA, Inc., Member Miscimarra dissented from the majority’s finding that the arbitration agreement violated the Act because it requires employees to waive their rights to pursue class or collective actions regarding non-NLRA claims. He also dissented from the majority’s finding that the agreement unlawfully restricts access to the Board; he found that issue was not fully and fairly litigated. The panel unanimously found that the Respondent violated Section 8(a)(1) by maintaining a confidentiality/non-disclosure rule in its employee handbook and a mandatory confidentiality agreement, both of which prohibit employees from discussing with nonemployees, or among themselves, wages, hours, and other terms and conditions of employment.
Charge filed by an individual. Members Miscimarra, Hirozawa, and McFerran participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
No Unpublished R Cases Issued.
Century Management LLC d/b/a McDonald’s and McDonald’s USA, LLC, Joint Employers (15-CA-140851 and 15-CA-157077) Memphis, TN, April 21, 2016. The Board denied Employer Century Management LLC’s petition to revoke subpoenas ad testificandum. The Board found that the subpoenas sought information relevant to matters under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revocation. Charges filed by Memphis Workers Organizing Committee. Chairman Pearce and Members Hirozawa and McFerran participated.
Century Management LLC d/b/a McDonald’s and McDonald’s USA, LLC, Joint Employers (15-CA-140851 and 15-CA-157077) Memphis, TN, April 21, 2016. The Board denied Employer Century Management LLC’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to matters under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revocation. Charge filed by Memphis Workers Organizing Committee. Chairman Pearce and Members Hirozawa and McFerran participated.
Michell Enterprises, LLC d/b/a McDonald’s and McDonald’s USA, LLC, as a Joint Employer (03-CA-156992) Colonie, NY, April 21, 2016. The Board denied Employer Michell Enterprises, LLC’s petition to revoke a subpoena duces tecum and subpoenas ad testificandum. The Board found that the subpoenas sought information relevant to matters under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revocation. Charge filed by Citizen Action of NY. Chairman Pearce and Members Hirozawa and McFerran participated.
Sand and Sea Inc. d/b/a Shore Hotel (31-CA-162437, 31-CA-162438, and 31-CA-162440) Santa Monica, CA, April 21, 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 as clarified by the Region in its opposition brief. The Board also clarified the conditions under which the Employer is not required to produce information that it has previously provided. Charge filed by UNITE HERE Local 11. Chairman Pearce and Members Hirozawa and McFerran participated.
Fred Meyers Stores, Inc. (19-CA-032908 and 19-CA-033052) Kirkland, WA, April 22, 2016. The Board granted the joint motion to dismiss the consolidated cases and remanded the case to the Region to dismiss the complaint.
Appellate Court Decisions
Lancaster Symphony Orchestra, Board Case No. 04-CA-082327 (reported at 361 NLRB No. 101) (D.C. Cir. decided April 19, 2016)
In a published opinion, the court enforced the Board’s bargaining order in this test-of-certification case issued against this symphony orchestra located in Lancaster, Pennsylvania, after its musicians voted to be represented by The Greater Lancaster Federation of Musicians, Local 294, American Federation of Musicians, AFL-CIO. In doing so, the court upheld the Board’s finding in the underlying representation case that the musicians were employees covered by the Act, and not independent contractors.
After the Union filed an election petition, the Regional Director held a hearing on the Employer’s claim that its musicians did not have the right to representation because they were independent contractors excluded from the Act’s coverage. Thereafter, he issued a decision finding independent-contractor status and dismissed the petition. The Board granted the Union’s request for review and reversed, finding that the musicians were employees and ordering an election. In its decision, the Board emphasized the Employer’s substantial control over the musicians, their limited entrepreneurial opportunities, and the fact that the musicians’ work is part of the Employer’s regular business. In February 2012, an election was held by mail ballot, which the Union won on a vote of 50 to 34, and the Board certified the Union. The Employer refused to bargain in order to challenge the certification. After the ensuing unfair-labor-practice proceeding resulted in a bargaining order, the Employer petitioned for review.
On review, the court began by articulating its standard of review in cases, such as this one, that require determining independent-contractor status under the factors of Section 220(2) of the Restatement (Second) of Agency. The court stated that because the Board’s application of the agency-law factors does not require the Board’s expertise, its finding is not accorded the “special credence” the court normally would show to “the Board’s considered judgment.” That said, the court explained that its review is not de novo, but rather that it takes a “middle course” and will uphold the Board’s determination if “it can be said to have made a choice between two fairly conflicting views,” because such a choice is “a judgment about the facts.”
On the merits, the court held that “the relevant factors point in different directions.” On the one hand, the court noted that the Employer’s “extensive control over the means and manner of musicians’ performance, the fact that musicians’ work forms part of [its] regular business, the hourly pay [the musicians receive], and the[ir] limited opportunities for entrepreneurial gain suggest” that they are employees. On the other hand, the court noted that “the musicians’ high degree of skill, the limited amount of time they work for the Orchestra, and the parties’ beliefs regarding the nature of the relationship indicate that the musicians are independent contractors.” Presented with that choice between “two fairly conflicting views,” the court deferred to the Board’s conclusion, and enforced.
The court’s decision is here (link is external).
Administrative Law Judge Decisions
CSC Holdings, LLC and Cablevision Systems, New York City Corporation (28-CA-134419, et al.; JD(NY)-9-16) Brooklyn, NY. Administrative Law Judge Raymond P. Green issued his decision on April 19, 2016. Charges filed by Communications Workers of America, AFL-CIO.
Midwest Terminals of Toledo International Inc. (08-CA-135971 and 08-CA-136613; JD-33-16) Toledo, OH. Administrative Law Judge Paul Bogas issued his decision on April 19, 2016. Charges filed by International Longshoremen’s Association, Local 1982, AFL-CIO and an individual.
Anthony & Associates, Inc. (05-CA-153220; JD-31-16ER) Bethesda, MD, April 20, 2016. Errata to April 13, 2016 Decision of Administrative Law Judge Arthur J. Amchan. Errata Amended decision.
Andronaco, Inc. d/b/a Andronaco Industries (07-CA-160286; JD-36-16) Kentwood, MI. Administrative Law Judge Sharon Levinson Steckler issued her decision on April 20, 2016. Charge filed by an individual.
Ko Huts, Inc. (14-CA-164874; JD-35-16) Wichita, KS. Administrative Law Judge Arthur J. Amchan issued his decision on April 20, 2016. Charge filed by an individual.
Bailey Electric Inc., and CB Electric LLC, alter egos (19-CA-146474; JD-37-16) Yakima, WA. Administrative Law Judge Christine E. Dibble issued her decision on April 22, 2016. Charge filed by International Brotherhood of Electrical Workers, Local Union 112, AFL-CIO-CLC.
International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, Communication Workers of America, AFL-CIO, CLC (IUE-CWA, Local 301) (Von Roll, U.S.A., Inc.) (03-CB-146489; JD-34-16) Schenectady, NY. Administrative Law Judge Robert A. Ringler issued his decision on April 22, 2016. Charge filed by Von Roll, U.S.A., Inc.
Stahl Specialty Company (17-CA-088639; JD-38-16) Kingsville, MO. On April 22, 2016, Administrative Law Judge Christine E. Dibble issued her Order Ratifying and Adopting Decision of September 20, 2013. Charge filed by International Brotherhood of Electrical Workers Local #1464 affiliated with the International Brotherhood of Electrical Workers, AFL-CIO.
