NLRB Weekly Summary, February 24 – 28, 2014
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The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the
Summarized Board Decisions
The Board adopted the judge's finding that the Respondent violated Section 8(a)(5) and (1) by refusing to furnish to the Union information concerning the Respondent's use of nonunit contractors. The Board agreed with the judge's finding that the information was relevant to a pending grievance arbitration and to the Union's obligation to determine whether the Respondent was complying with the contracting provisions set forth in their collective-bargaining agreements and settlement agreement. Member Johnson found it unnecessary to pass on the on the latter point in finding that the Union established the relevance of the requested information. Charge filed by
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The Board unanimously adopted the judge's finding, in a supplemental decision following the Board's Order Remanding (359 NLRB No. 78 (2013)), that Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging an employee. The Board agreed with the judge that the Respondent discharged the employee for conduct that was not protected by the Act. The Board found that the discharged employee's deliberately deceptive conduct was not protected, even assuming that certain related conduct was protected union activity, because the deceptive conduct was neither an integral nor a necessary part of the putative protected activity. The Board noted that it would reach the same result under the standard set forth in Atlantic Steel, 245 NLRB 814 (1979), and rejected any implication of the judge's decision that Atlantic Steel is inapplicable to premeditated conduct occurring outside the context of grievance-related discussions with management. Member Miscimarra further noted that deliberate falsehoods or other misconduct can be unprotected in some instances even if spoken or committed in the course of providing representation or otherwise as part of the res gestae of protected activities. The Board found it unnecessary to pass on the judge's finding that the General Counsel failed to carry his initial burden under
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The Board adopted the judge's findings that the Respondent violated the Act by failing to supply relevant information to the Union in a timely and complete fashion, and by unilaterally implementing health insurance changes without bargaining to a lawful overall impasse in negotiations. Charge filed by
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Pursuant to the direction of the Fourth Circuit's remand, the Board applied the "sound arguable basis" test and reaffirmed its earlier holding that the Respondent violated Section 8(a)(5) and (1) and Section 8(d) by unilaterally modifying eight employees' wages during the parties' contractual term. Charge filed by Drivers, Chauffeurs, and Helpers Local Union No. 639 a/w
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A Board panel unanimously adopted the judge's findings that the Respondent violated the Act by interrogating employees about their union membership, activities, and sympathies, and announcing and implementing a reduction of healthcare premiums and copays for all employees except those eligible to vote in a union representation election. A panel majority of Members Hirozawa and Schiffer, however, reversed the judge and found that the Respondent also violated Section 8(a)(1) by creating the impression that employees' union activities were under surveillance. Member Johnson dissented from the finding that the employer created an unlawful impression of surveillance. Contrary to the majority, Member Johnson would have found that comments by a supervisor that an employee should tone down his union activities, "watch [his] back, be careful," and "keep it under wraps," would not reasonably cause the employee to believe that his union activities were under surveillance, because the employee was an open and active union supporter whose activities were well known in the workplace, and the supervisor who made the comments did not supervise the employee and the two had a friendly relationship. Member Johnson also found it unnecessary to pass on allegations that the employer unlawfully interrogated two employees because the findings would be cumulative. Charges filed by 1199 SEIU, United Healthcare Workers East. Administrative Law Judge
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The Board adopted the judge's findings that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide relevant information requested by the Union to aid its investigation of a pending grievance. The Board rejected the Respondent's argument that it was not required to provide the requested information because the pending grievance was not permitted under the parties' agreement, finding that it is well established that an employer is required to provide relevant requested information regardless of the potential merits of the grievance. The Board also adopted the judge's finding that the Respondent violated Section 8(a)(5) and (1) by unreasonably delaying for nearly three months in informing the Union that a requested organizational chart did not exist. Member Miscimarra noted that although he thinks that deferral to arbitration may be appropriate in some information request cases, deferral is not appropriate in this case. Charges filed by
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A Board panel unanimously adopted the judge's findings that the Respondent did not unlawfully discharge two employees for their protected activity. In addition, the panel majority of Members Miscimarra and Johnson found that the judge correctly dismissed the allegation that the Respondent's maintenance of a rule prohibiting a "[i]nsubordination to a manager or lack of respect and cooperation with fellow employees or guests," which "includes displaying a negative attitude that is disruptive to other staff or has a negative impact on guests" violated Sec. 8(a)(1). Chairman Pearce dissented in part. He would have reversed the judge and found that the Respondent's rule was unlawful because it would reasonably inhibit employees from discussing terms and conditions of employment. The panel majority disagreed, finding that the rule was limited to unprotected conduct that would interfere with the Respondent's legitimate business concerns. Charges filed by individuals. Administrative Law Judge
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The Board adopted the administrative law judge's finding that the
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The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) by refusing to arbitrate grievances with the
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The Board unanimously adopted the judge's findings that the Respondent violated the Act by: (1) creating an impression that an employee's union activities were under surveillance; (2) threatening an employee because he engaged in union activity; and (3) denying an employee's request for union representation during an interview when he had reasonable cause to believe it would result in discipline. A majority of the Board panel also affirmed the judge's finding that the Respondent violated Section 8(a)(1) by maintaining an overbroad provision in its collective-bargaining agreement that prohibits participation in the Respondent's "internal politics," including "the lobbying of
Further, the Board reversed the judge and dismissed several allegations that the Respondent violated Section 8(a)(1) by orally promulgating and enforcing overbroad and discriminatory work rules based on two supervisors' statements made in separate one-on-one conversations with an employee. The Board reasoned that there was no evidence that these statements were communicated to any other employee, and therefore, would not reasonably be construed as establishing a new rule or policy for all employees. Finally, the Board affirmed the judge's dismissal of several allegations. Charges filed by individuals. Administrative Law Judge
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
C Cases
All
A majority of a Board panel (Chairman Pearce and Member Schiffer) denied the Respondent's request for special permission to appeal from an administrative law judge's ruling regarding a petition to revoke a subpoena. The panel majority found that the Respondent failed to establish that the judge abused his discretion in granting the Union's petition to revoke paragraph 33 of the Respondent's subpoena addressed to the Union. Chairman Pearce and Member Schiffer noted that they reviewed the judge's order under the highly deferential abuse-of-discretion standard, and that abiding by that standard is essential to permit the judge to fulfill his duty under Sec. 102.35 of the Board's Rules and Regulations to "regulate the course of the hearing." See generally
American
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Appellate Court Decisions
No Appellate Court Decisions involving Board decisions to report.
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Administrative Law Judge Decisions
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