NLRB Decisions Week of August 22-26, 2016: Christine K. D. Belcaid

Public Service Company of New Mexico, 364 NLRB No. 86 (August 22, 2016)

The employer violated Section 8(a)(5) and (1) by unilaterally implementing a policy limiting the union's access to its facility and announcing a change to its respiratory fit-test rule and by failing to provide requested information, but did not violate Section 8(a)(5) and (1) by taking certain other unilateral actions and by not providing other information (finding some unrequested).  The Board applied the long-established Acme "relevant and necessary" standard regarding information requests.  The employer did not violate Section 8(a)(3) and (1) by removing and investigating a union steward for his interruptive conduct at a training meeting.  The Board applied the Atlantic Steel test to determine that the employee's conduct was so egregious as to lose the Act's protection.  However, the employer violated Section 8(a)(5) by refusing to provide information the union requested related to this investigation.  In addition, a supervisor's removal and disposal of a union flyer from a bulletin board in front of employees violated Section 8(a)(1).

Seattle University, 364 NLRB No. 84 (August 23, 2016)

Applying Pacific Lutheran University, 361 NLRB No. 157 (2014), which contains the test the Board applies in determining, consistent with the First Amendment, when contingent (non-tenure eligible) faculty are covered by the Act at religious universities, the Board found that the employer's contingent faculty are covered by the Act and that a unit comprising those faculty is appropriate for bargaining.  However, the Board found that faculty who teach in the University's Department of Theology and Religious Studies and in its School of Theology and Ministry should not be included in the bargaining unit because the University holds them out "as performing a specific role in creating and maintaining the school's religious educational environment."   

Saint Xavier University, 364 NLRB No. 85 (August 23, 2016)

Applying Pacific Lutheran University, the board found that the employer's part-time faculty are generally covered by the Act and that a unit comprising those faculty is appropriate for bargaining.  However, as in Seattle University, the Board found that faculty who teach in the University's Department of Religious Studies should not be included in the unit because the University holds them out "as performing a specific role in creating and maintaining the school's religious educational environment."

The Trustees of Columbia University in the City of New York, 364 NLRB No. 90 (August 23, 2016)

The Board reversed its 2004 decision in Brown University, which excluded student teaching and research assistants from the Act's coverage.  The current Board held that student teaching and research assistants are employees under the Act if they meet the definition of an employee.  The Board found that Columbia's student assistants were employees, as they performed services under the direction of their university in exchange for compensation.  The Board determined that, in view of their substantial community of interest, a unit of undergraduate, Master's, and Ph.D. assistants is an appropriate unit, and that none of those categories should be excluded as temporary employees.

International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of The United States, its Territories and Canada, AFL-CIO, CLC, Local 838 (Freeman Decorating), 364 NLRB No. 81 (August 23, 2016)

The union did not violate Section 8(b)(1)(A) by maintaining an attendance rule that conditions hiring hall users' eligibility for job referral upon the payment of assessments to the union for noncompliance with that rule because the rule (1) did not violate the union's duty of fair representation; and (2) is necessary to the union's effective performance of its function of representing its constituency.

Aliante Gaming, LLC d/b/a Aliante Casino and Hotel, 364 NLRB No. 80 (August 23, 2016)

Under Wright Line, 251 NLRB 1083 (1980), the employer violated Section 8(a)(3) and (1) by disciplining and discharging an employee because she was a union officer and engaged in union activity.  The employer also violated Section 8(a)(1) by telling that employee not to discuss her discipline with other employees because the employer failed to present any business justification for the restriction.

King Soopers, Inc., 364 NLRB No. 93 (August 24, 2016)

The employer violated Section 8(a)(1) by interrogating an employee about her protected concerted activity and by twice suspending and discharging that employee for engaging in protected concerted activity.  The Board adopted a new policy of awarding search-for-work and interim employment expenses regardless of the discriminatees' interim earnings and separately from backpay.  Previously, the Board treated discriminatees' search-for-work and interim employment expenses as an offset against interim earnings.

The Pennsylvania Virtual Charter School, 364 NLRB No. 87 (August 24, 2016)

The Board applied its Hawkins County, 402 U.S. 600 (1971), test and found that the employer is not exempt from the Board's jurisdiction as a "political subdivision" of the Commonwealth of Pennsylvania within the meaning of Section 2(2) of the Act.  However, the Board stated that it was not announcing a bright-line rule asserting jurisdiction over charter schools by its decision.

Hyde Leadership Charter School - Brooklyn, 364 NLRB No. 88 (August 24, 2016)

This is a companion case to the full-Board decision in Pennsylvania Virtual Charter School, above.  The Board found that the School is not exempt from the Board's jurisdiction as a "political subdivision" of the State of New York under Section 2(2) of the Act.  Nor did the majority find any compelling reason to discretionarily decline to assert jurisdiction over New York charter schools or all charter schools under Section 14(c)(1).

Aliante Gaming, LLC d/b/a Aliante Casino and Hotel, 364 NLRB No. 78 (August 25, 2016)

Under Wright Line, the employer violated Section 8(a)(3) and (1) by unlawfully suspending and discharging an employee for her union activity (primarily handing out union authorization cards).  The Board found that the General Counsel showed animus because of the employer's disparate treatment of another employee who had engaged in the same misconduct as the discriminatee, its failure to apply progressive discipline, and its failure to follow its own internal procedures in the course of its investigation.

UNITE HERE! Local 5 (Hyatt Corporation d/b/a Hyatt Regency Waikiki), 364 NLRB No. 94 (August 25, 2016)

The Board found that the union did not violate Section 8(b)(1)(A) because a letter the union sent to both members and nonmembers requesting payment of dues arrearages (not core representational fees) for a time when no union-security clause was in effect did not restrain or coerce nonmembers in the exercise of their statutory rights.  The letter, which did not invoke a union-security clause but its own internal bylaws, stated the consequence for nonpayment of dues was suspension from the union, which nonmembers would not reasonably find to be coercive.  Because the letter refers only to the union's internal processes, the Board found the only reasonable understanding nonmembers could have had of this letter was that it was sent to them by mistake.

S. Freedman & Sons, Inc., 364 NLRB No. 82  (August 25, 2016)

Under Wright Line, the employer violated Section 8(a)(4) and (1) by terminating an employee for participating in Board proceedings and subsequently converting the termination into a suspension.  The employer also violated Section 8(a)(1) by terminating the same employee a couple of months later for invoking his contractual right to refuse overtime work.  The employer did not violate Section 8(a)(1) by conditioning the employee's reinstatement on signing a settlement agreement that included a confidentiality clause because the settlement agreement contained a narrowly tailored waiver, and the employee received the benefit of reinstatement for that waiver.

Equinox Holdings, Inc., 364 NLRB No. 103 (August 26, 2016)

The Board refused to overturn an election, even though the employer's manager testified that a union election observer brandished a gun in the presence of other employees and was escorted out of the facility by the police, because the union observer did not engage in any misconduct during his service as an election observer.

IMI South, LLC, d/b/a Irving Materials, 364 NLRB No. 97 (August 26, 2016)

The employer violated Section 8(a)(5) and (1) by unilaterally transferring a portion of bargaining unit work from union-represented mechanics at the employer's Kentucky facility to unrepresented employees at its Indiana facility.  Neither the collective-bargaining agreement nor extrinsic evidence, including bargaining history, established that the union clearly and unmistakably waived its right to bargain over the relocation of work.  The employer also violated Section 8(a)(3) and (1) by failing to reinstate mechanics who engaged in an economic strike.

Paragon Systems, Inc., 364 NLRB No. 75 (August 26, 2016)

The employer was not a "perfectly clear" successor and thus did not violate Section 8(a)(5) and (1) by changing certain terms and conditions of employment when it began operations without giving the union notice or the opportunity to bargain.

David Saxe Productions, LLC and Vegas! The Show, LLC, Joint/Single Employers and Fab Four Live, LLC, Joint/Single Employers, 364 NLRB No. 100 (August 26, 2016)

The employers violated Section 8(a)(1) by: (1) prohibiting employees from engaging in protected concerted activity and by a CEO and owner telling employees he didn't want "all this bitching" about topics involving pay, hours, and other working conditions; (2) impliedly threatening employees with discharge; and (3) threatening employees with unspecified reprisals because they engaged in protected concerted activity.

The employers violated Section 8(a)(1) by threatening in an email that failure to cease engaging in protected activity would result in discharge and by maintaining the "non-union" provision in their employment agreements, which requires employees to acknowledge that their employment is not under the jurisdiction of any union, with penalties for breaching this provision.  The employers violated Section 8(a)(1) by discharging an employee from Vegas! The Show and The BeatleShow for engaging in protected concerted activity.

G4S Secure Solutions (USA) Inc.364 NLRB No. 92 (August 26, 2016)

The employer violated Section 8(a)(1) by:  (1) instructing and threatening employees not to talk to other employees or supervisors about the union at work; (2) creating an impression of surveillance; and (3) threatening not to rehire employees who were in favor of the union.  The employer violated Section 8(a)(3) and (1) by discharging an employee, but did not violate Section 8(a)(1) by promulgating or reinforcing an overbroad confidentiality rule during the employee's unemployment compensation hearing.  The employer did not violate Section 8(a)(1) by:  (1) maintaining the portion of its confidentiality rule that restricts the use or disclosure of "G4S or client information"; or (2) telling an employee that it had a problem with her because she called in sick multiple times.

The employer violated Section 8(a)(1) by:  (1) maintaining a confidentiality policy that prohibited employees from discussing "wages and salary information" and "giv[ing] or mak[ing] public statements about the activities or policies of the company" without written permission; (2) maintaining a rule prohibiting employees from wearing "insignias, emblems, buttons, or items other than those issued by the company" without permission; and (3) maintaining a social networking policy that prohibits employees from commenting on "work-related matters without express permission of the Legal Department" and posting on any social networking site "photographs, images, and videos of G4S employees in uniform or at a G4S place of work."

Creative Vision Resources, LLC, 364 NLRB No. 91 (August 26, 2016)

The employer was a "perfectly clear" successor and violated Section 8(a)(5) and (1) by failing, to provide the union with notice or an opportunity to bargain before imposing initial terms and conditions of employment for the unit employees.

Novelis Corporation, 364 NLRB 101 (August 26, 2016)

The employer violated Section 8(a)(1) by:  (1) restoring Sunday premium pay and unscheduled overtime pay to thwart the organizing campaign; (2) threatening employees that, if they selected the union: (a) the employer would lose business; (b) employees would lose jobs; (c) wages would be reduced; and (d) more onerous working conditions would be imposed; (3) maintaining an overly broad work rule that interferes with employees' use of the employer's email system for Section 7 purposes; (4) selectively and disparately enforcing the employer's posting and distribution rules; (5) prohibiting employees from wearing union insignia on their uniforms while permitting employees to wear antiunion and other insignia; (6) interrogating employees; (7) threatening employees by telling them that they did not have to work for the employer if they were unhappy with their terms and conditions of employment; (8) impliedly threatening an employee with layoff if employees selected the union; (9) soliciting employees' complaints and grievances and promising employees improved terms and conditions of employment if they did not select the union; and (10) maintaining and giving effect to its overly broad unlawful social media policy.

The employer violated Section 8(a)(1) by falsely representing to employees that the union filed charges seeking the rescission of Sunday premium pay and unscheduled overtime, as this conduct constituted interference, restraint and coercion that unlawfully tended to undermine the union.  The employer violated Section 8(a)(1) by removing union literature from break areas, which were mixed use areas.  The employer violated Section 8(a)(3) and (1) by demoting an employee because of his protected concerted and union activities in posting comments on Facebook reflecting continuing support of the union and discontent with existing conditions of employment.  Under Triple Play Sports Bar & Grille, 361 NLRB No. 31 (2014), affd. 629 Fed. Appx. 33 (2d Cir. 2015), the employee's Facebook posting did not lose its protection under the Act.

Significantly, the Board agreed with the judge's issuance of a a Gissel bargaining order, reasoning that the employer committed numerous unfair labor practices, including three particularly serious violations, and emphasizing that: (1) the employer granted a substantial benefit to employees by restoring Sunday premium pay and unscheduled overtime pay to thwart the organizing campaign; (2) during captive audience meetings, the employer threatened employees with job loss; and (3) the employer demoted the leader of the organizing effort shortly after the election because of his protected social media posting.  The majority of employees had earlier expressed support for the union by signing authorization cards.  The Board denied the employer's motions to reopen the record to proffer evidence of alleged substantial employee and management turnover since the judge recommended the Gissel order.

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