United Site Services of California, Inc.

National Labor Relations Board - Board Decisions

Nov 3, 2016

20-CA-139280 (N.L.R.B. Nov. 3, 2016)

PMMc
Benicia, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
UNITED SITE SERVICES OF
CALIFORNIA, INC.
and Case 20-CA-139280
20-CA-149509
TEAMSTERS LOCAL 315, IBT
ORDER REMANDING
On March 17, 2016, Administrative Law Judge Dickie Montemayor issued a
decision in this proceeding. Thereafter, exceptions and briefs were filed by the
Respondent, the General Counsel, and the Charging Party.
The National Labor Relations Board has decided to remand this case to the
judge for further findings, analysis, and conclusions consistent with this Order
Remanding.
This case concerns the Respondent’s purported permanent replacement of 21
employees who engaged in an economic strike in October 2014, and the Respondent’s
withdrawal of recognition from the Union on March 27, 2015. The complaint, inter alia,
alleges that the Respondent’s refusal to reinstate striking employees upon their
unconditional offer to return to work violated Section 8(a)(3) and (1) of the Act because
the Respondent had an “independent unlawful purpose” (within the meaning of Hot
Shoppes, Inc., 146 NLRB 802 (1964)) motivating its decision to hire permanent
replacements. The complaint further alleges that the Respondent violated Section
2
8(a)(5) and (1) by withdrawing recognition from the Union. The complaint also contains
four allegations that the Respondent violated Section 8(a)(3) and (1) by: (1) refusing to
reinstate at least six unit employees because at least six employees claimed by the
Respondent to be permanent replacements were not in fact permanent; (2) effectively
terminating at least seven unit employees by informing the Union that it had hired
permanent replacements for all employees on October 16, 2014, when the Respondent
had not in fact permanently replaced all striking employees; (3) removing Walter
Buckner, Daniel Ruiz, Jorge Rodriguez, Robert Harris, and Ernesto Pantoja from
consideration for preferential recall to former or substantially equivalent positions; and
(4) permanently transferring an employee from another facility into a unit service
technician position.
The judge agreed with the General Counsel that the Respondent had an
“independent unlawful purpose” motivating its decision to hire permanent replacements
and, as a result, the judge found that the Respondent unlawfully replaced all striking
employees.1 The judge found it unnecessary to reach the additional Section 8(a)(3) and
(1) allegations in the complaint and did not make any findings related to these
allegations.
After the judge issued his decision, the Board issued American Baptist Homes of
the West d/b/a Piedmont Gardens, 364 NLRB No. 13 (2016),2 a case that analyzed and
applied Hot Shoppes to the permanent replacement of economic strikers. We have
decided to remand this case to the judge for further consideration in light of Piedmont
Gardens, including permitting the parties to file supplemental briefs to the judge.

1 The judge also found that the Respondent unlawfully withdrew recognition from the
Union.
2 Motion for reconsideration denied 364 NLRB No. 95 (2016).
3
In addition, we find that the additional Section 8(a)(3) and (1) allegations in the
complaint, set forth above, are relevant to the analysis of whether the Respondent’s
decision to permanently replace striking employees was unlawful, and we instruct the
judge to make credibility determinations, findings of fact, and conclusions of law as to
each of these allegations.
We also instruct the judge to evaluate, in light of his findings on all of the
allegations, whether the Respondent violated Section 8(a)(5) and (1) by withdrawing
recognition of the Union after receiving a decertification petition.3
We shall not order the taking of new evidence, and we instruct the judge to base
his findings and conclusions on evidence that has already been adduced.
Having duly considered the matter,
IT IS ORDERED that this proceeding is remanded to Administrative Law Judge
Dickie Montemayor for further appropriate action as set forth above.

3 Member Miscimarra dissented in relevant part from the Board’s decision in Piedmont
Gardens. See 364 NLRB No. 13, slip op. at 9-19. As more fully explained there in his
partial dissent, Member Miscimarra disagrees with the Piedmont Gardens majority’s
expansion of the phrase “independent unlawful purpose” which, according to the Board
in Hot Shoppes, was intended to be a limited exception to the Hot Shoppes general rule
that, when an employer hires permanent replacements, “the motive for such
replacements is immaterial.” Hot Shoppes, 146 NLRB at 805 (citations omitted;
emphasis added). In Member Miscimarra’s view, consistent with the judge’s opinion in
Piedmont Gardens, an employer that hires permanent replacements has acted with an
“independent unlawful purpose” only when the General Counsel proves that the
employer’s actions resulted from an antiunion motive that was extrinsic or unrelated to
the union’s strike activity and to the labor dispute giving rise to the strike. Id., slip op at
15-16. Accordingly, Member Miscimarra would not remand this case for the judge to
apply Piedmont Gardens, which he believes announced an incorrect legal standard.
Member Miscimarra joins his colleagues, however, in remanding this case for the judge
to make findings on the complaint allegations the judge did not reach and to consider
the withdrawal-of-recognition allegation in light of the judge’s findings on all the
allegations.
4
IT IS FURTHER ORDERED that the judge shall prepare a supplemental decision
setting forth credibility resolutions, findings of fact, conclusions of law, and a
recommended Order. Copies of the supplemental decision shall be served on all the
parties, after which the provisions of Section 102.46 of the Board’s Rules and
Regulations shall be applicable.
Dated, Washington, D.C., November 3, 2016.
________________________________
Mark Gaston Pearce, Chairman
________________________________
Philip A. Miscimarra, Member
________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD