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Summary of NLRB Decisions for Week of April 16 - 20, 2018

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 Office of the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

Kapstone Paper and Packaging Corporation  (19-CA-160107, et al.; 366 NLRB No. 63)  Longview, WA, April 20, 2018.

The Board adopted the Administrative Law Judge’s dismissal of the compliant, which alleged that the Respondent violated Section 8(a)(3) and (1) by discharging four employees because of their alleged strike misconduct.

Charges filed by Association of Western Pulp and Paper Workers, Local 153, affiliated with the United Brotherhood of Carpenters and Joiners of America. Administrative Law Judge Lisa D. Thompson issued her decision on November 17, 2016. Members McFerran, Kaplan,  and Emanuel participated.

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Franklinton Preparatory Academy  (09-RC-144924; 366 NLRB No. 67)  Columbus, OH, April 20, 2018.

The Board adopted the Hearing Officer’s recommendation to overrule the Petitioner’s challenge to the ballot of an individual and adopted pro forma the Hearing Officer’s recommendation to sustain the Petitioner’s challenge to the ballot of another individual.  In addition, in the absence of exceptions, the Board adopted pro forma the Hearing Officer’s recommendations to overrule Petitioner’s Objection 4 alleging that the Employer interrogated unit employees about their union support and activities, and the portion of Objection 5 alleging that the Employer granted benefits to employees.  A Board majority (Members Pearce and McFerran) agreed with the Hearing Officer’s recommendation to sustain Petitioner’s Objection 3, finding that the Employer made statements threatening employees with the loss of existing benefits and terms and conditions of employment if they voted for the Union and that these objectionable statements warranted setting aside the election.  Dissenting, Member Kaplan stated his view that, in context, employees would reasonably understand the Employer to have made lawful statements about the collective-bargaining process.  Contrary to the Hearing Officer’s recommendation, the Board overruled the portion of Petitioner’s Objection 5, alleging that the Employer promised benefits to unit employees if they voted against union representation.  In light of the findings, the Board directed the Regional Director to open and count the ballot of one individual, and to prepare a revised tally of ballots.  The Board further directed that, if the revised tally of ballots shows that the Petitioner has not received a majority of the ballots cast, the Regional Director shall set aside the election and conduct a new election.

Petition filed by Franklinton Preparatory Academy Educators Association.  Members Pearce, McFerran, and Kaplan participated.

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County Concrete Corporation  (22-CA-171328; 366 NLRB No. 64)  East Orange, Kenvil, Landi, Morristown, Oxford, and Sussex, NJ, April 20, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by modifying the dues-checkoff provisions of its collective-bargaining agreements with the Union and by refusing to deduct and remit dues to the Union in accordance with those agreements.  The Board noted that once the parties reached a meeting of the minds on the substantive terms of the collective-bargaining agreements, they were bound by the terms of the agreements, even before the agreements were signed.  In finding that the Respondent unlawfully refused to deduct and remit dues, the Board, unlike the judge, considered the merits of the Respondent’s affirmative defense (that its failure to deduct dues was justified because the Union had not advised employees of their rights under NLRB v. General Motors Corp., 373 U.S. 734 (1963) and Communications Workers of America v. Beck, 487 US. 735 (1988)).  However, the Board rejected that affirmative defense, explaining that while the Union’s failure to provide General Motors and Beck notice may affect the amount of dues it was entitled to receive, it did not justify the Respondent’s failure to honor its contractual obligation to check off dues.

Charge filed by Local 863, International Brotherhood of Teamsters.  Administrative Law Judge Mindy E. Landow issued her decision on April 18, 2017.  Members Pearce, Kaplan, and Emanuel participated.

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International Union of Operating Engineers, Local 501 (GNVL Corp. d/b/a Golden Nugget Las Vegas)  (28-CB-182296; 366 NLRB No. 62)  Las Vegas, NV, April 20, 2018.

The Board adopted the Administrative Law Judge’s dismissal of the complaint, which alleged that the Respondent violated Section 8(b)(3) of the Act, because the Charging Party failed to establish the relevance of the requested extra-unit information. Member Pearce would additionally adopt the judge’s dismissal on vagueness grounds, relying on the Charging Party’s failure to respond to the Respondent’s request that it specify which of the Respondent’s bargaining proposals it sought extra-unit information about.

Charge filed by GNLV Corp. d/b/a Golden Nugget Las Vegas. Administrative Law Judge Mara-Louise Anzalone issued her decision on May 25, 2017. Members Pearce, McFerran, and Emanuel participated.

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Mexican Radio Corp.  (02-CA-168989; 366 NLRB No. 65)  New York, NY, April 20, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by reprimanding and discharging four employees based on their protected concerted activity.  The Board also found that the Respondent violated Section 8(a)(1) by retroactively issuing a reprimand to an employee.

Charge filed by an individual.  Administrative Law Judge Kenneth W. Chu issued his decision on April 26, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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Student Transportation of America, Inc.  (12-CA-181426; 366 NLRB No. 61)  Jacksonville, FL, April 20, 2018.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of a bilateral informal settlement agreement.  The Board found that the Respondent failed to comply with the terms of the settlement agreement, and accordingly deemed all of the allegations in the reissued complaint to be true and ordered appropriate remedies.  Finding that the Respondent violated Section 8(a)(5) and (1) by creating a bus washer position covering work that was already being performed by unit employees, and establishing a wage rate for the bus washer position, the Board ordered the Respondent to rescind the bus washer position, restore all bus washers to their former positions, and bargain in good faith with the Union with respect to the terms and conditions of employees in the unit.

Charge filed by International Brotherhood of Teamsters, Local Union No. 512.  Members Pearce, Kaplan, and Emanuel participated.

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Taylor Motors, Inc.  (10-CA-141565; 366 NLRB No. 69)  Fort Campbell, KY, April 20, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) when it suspended and discharged an employee for protected conduct he engaged in on the day of the first election.  The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by coercively interrogating an employee regarding his union activity.  The Board severed and retained for further consideration the complaint allegations that the Respondent unlawfully maintained and required employees to sign a confidentiality/nondisclosure agreement.

The first election was set aside by agreement of the parties, and a second election was held two months later, which the Union lost by five votes.  Based on the Respondent’s unlawful suspension and discharge, which took place in the aftermath of the first election, the Board set aside the second election and remanded a representation case to the Regional Director for further appropriate action.

Charge filed by American Federation of Government Employees (AFGE), AFL-CIO, Local 2022.  Administrative Law Judge Keltner W. Locke issued his decision on July 14, 2015 and his supplemental decision on September 29, 2017.  Members Pearce, McFerran, and Kaplan participated.

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Able Building Maintenance  (27-CA-168632; 366 NLRB No. 68)  Denver, CO, April 20, 2018.

The Board granted, in part, the General Counsel’s Motion for Default Judgment pursuant to the terms of an informal settlement agreement.  The Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to furnish the Union with full payroll reports that include, for all employees, name, unique identifier, job title, union membership status, wage rate, hours worked, location(s) worked, overtime rate, overtime worked, hire date, and dues paid.  However, the Board found that the Respondent complied with the settlement’s requirement to provide building lists of all union and nonunion buildings in the Denver metropolitan area, as designated by the parties’ collective-bargaining agreement, with reports of additions and losses of buildings within the same period, and addresses for all buildings.

Charge filed by Service Employees International Union, Local 105.  Members Pearce, McFerran, and Emanuel participated.

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Long Beach Memorial Medical Center Inc. d/b/a Long Beach Memorial Medical Center & Miller Children’s and Women’s Hospital Long Beach  (21-CA-157007; 366 NLRB No. 66)  Long Beach, CA, April 20, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining an overly broad workplace policy that only Respondent-approved pins, badges, and professional certifications may be worn.  A Board majority (Members Pearce and McFerran) reversed the judge to find that the Respondent also violated Section 8(a)(1) by maintaining an overly broad workplace policy that requires badge reels only be branded with the Respondent’s approved logos or text.  Dissenting in part, Member Emanuel found that the Respondent did not violate Section 8(a)(1) by maintaining the badge reel provision because the rule should be read in its entirety to apply only in immediate patient care areas and, even if applicable in non-patient care areas, because the Respondent has proven special circumstances justifying the restriction: a uniform policy.

Charge filed by California Nurses Association/National Nurses United (CNA/NNU).  Administrative Law Judge Jeffrey D. Wedekind issued his decision on August 31, 2016.  Members Pearce, McFerran, and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

New-Mac Electrical Cooperative  (14-UD-214395)  Neosho, MO, April 16, 2018.  The Board denied as moot the Employer’s Request for Review of the Regional Director’s determination to hold the petition in abeyance because the Regional Director had subsequently resumed processing the petition. Petitioner—an Individual. Union—  International Brotherhood of Electrical Workers Local No. 53.  Members Pearce, McFerran, and Emanuel participated.

National Hot Rod Association (NHRA)  (22-RC-186622)  Glendora, CA, April 16, 2018.  The  Board denied the Employer’s Request for Review of the Regional Director’s Order Denying Employer’s Motion for Reconsideration of and Withdrawal from Stipulated Election Agreement. Petitioner—International Alliance of Theatrical Stage Employees (IATSE).  Members Pearce, McFerran, and Emanuel participated.

Rocky Mountain Planned Parenthood, Inc. d/b/a PPRM  (27-RC-205940)  Denver, CO, April 16, 2018.  The Board (Members Kaplan and Emanuel; Member McFerran, dissenting) granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election regarding the Regional Director’s finding that the petitioned-for unit is appropriate as consistent with Board precedent concerning petitioned-for multi-facility units, but denying review as to all other issues.  The Petitioner had sought a multi-facility unit consisting of all of the Employer’s Colorado locations except three Southern Colorado locations.  The Employer has taken the position that the only appropriate bargaining unit is employer-wide, including its locations in all three states.  Applying the community of interest factors for multi-facility unit, the Regional Director found the petitioned-for unit to be appropriate, but with the exclusion of the Employer’s location at Salida, Colorado.  See Exemplar, Inc., 363 NLRB No. 157 (2016) (listing community-of-interest factors).   She directed a mail ballot election in this unit, with the employees voting separately in professionals and non-professional groups so that the professionals could determine whether they wished to be included in a single unit with the non-professionals.  Sonotone Corp., 90 NLRB 1236 (1950).  The Board panel (Members Kaplan and Emanuel) granted review only to determine whether the Regional Director’s finding is consistent with Board precedent concerning petitioned-for multi-facility units.  Member McFerran dissented, stating that she would find the unit found by the Regional Director to be reasonable, especially given the extensive distances (over 700 miles) between some of the included and excluded locations.  Petitioner—Service Employees International Union, Local 105.  Members McFerran, Kaplan, and Emanuel participated.

Domino’s Pizza, LLC  (29-RC-214227)  Howard Beach, NY, April 18, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Notice of Hearing, in which the Regional Director overruled, in whole in or in part, 13 of the Employer’s objections without a hearing based on deficiencies in the Employer’s offer of proof (while directing a hearing on 27 of the Employer’s objections).  The Board noted that the Request for Review, which was prepared by the Employer’s counsel, failed to provide any meaningful supporting explanation for the Employer’s contention that the offer of proof was sufficient to warrant a hearing on the overruled objections.  The Board observed that the Request for Review at no point summarized the evidence proffered in the offer of proof or explained why the Regional Director’s assessment of that evidence as erroneous.  The Board accordingly found that Request for Review failed to comply with the requirement that such a request be a self-contained document enabling the Board to rule on the issues on the basis of its contents.  The Board also denied the Employer’s request for extraordinary relief as moot.  Member Emanuel expressed no view with respect to whether he agreed or disagreed with the revisions to the Board’s Election Rule, but agreed that it applied and warranted denial of the Employer’s Request for Review and extraordinary relief.  Petitioner—Local 91 United Crafts & LLC Industrial Workers.  Members Pearce, McFerran, and Emanuel participated.

C Cases

United States Postal Service  (15-CA-150925, et al.)  New Orleans, LA, April 17, 2018.  In this case alleging independent Section 8(a)(5) and (1) allegations, the Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charges filed by American Postal Workers Union, AFL-CIO, New Orleans Local 83, and National Association of Letter Carriers, Branch 2730.  Members Pearce, McFerran, and Emanuel participated.

Kava Holdings, LLC, a Delaware Limited Liability Company, a/k/a Kava Holdings, Inc., a Delaware Corporation d/b/a Hotel Bel-Air  (31-CA-074675)  Los Angeles, CA, April 18, 2018.  The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge Lisa D. Thompson’s order precluding testimony by the Respondent’s proposed expert witnesses and barring the Respondent from reasserting its argument that delays in the case violated its due-process rights.  The Board found that the Respondent failed to establish that the judge’s ruling cannot be appropriately addressed at a later stage of the proceeding.  In addition, the Board found that the Respondent’s supporting argument fails to show that the judge abused her discretion in finding that the proposed expert testimony would not assist her in understanding the evidence or in determining any fact in issue.  Charge filed by UNITE HERE – Local 11.  Members McFerran, Kaplan, and Emanuel participated.

Hospital Metropolitano Rio Piedras  (12-CA-206254)  Tampa, FL, April 20, 2018.  The Board denied Employer’s Petition to Revoke the subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Additionally, the Board denied the Employer’s unsupported request for attorney’s fees.  Charge filed by Unidad Laboral de Enfermeras(os) y Empleados(as) de la Salud (ULEES).  Members Pearce, McFerran, and Emanuel participated.

Sunningdale Management Group, Ltd.  (28-CA-198874)  Scottsdale, AZ, April 20, 2018.  The Board denied Employer’s  Petition to Revoke the subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer  failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Members McFerran,  Kaplan, and Emanuel participated.

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Appellate Court Decisions

Transit Connection Inc., Board Case No. 01-CA-183197 (reported at 365 NLRB No. 9) (11th Cir. decided April 13, 2018)

In a published opinion, the Court enforced the Board’s bargaining order issued against this provider of public transit services on Martha’s Vineyard, an island off the coast of Cape Cod, Massachusetts, after its bus drivers voted in a second election to be represented by Amalgamated Transit Union Local 1548.  In doing so, the Court held that the Board did not abuse its discretion in setting aside a first election and validating the results of the second.

In the underlying representation case, the parties signed a stipulated election agreement that included the regular provision that the Employer provide the Union with a list of eligible voters consistent with Excelsior Underwear, Inc., 156 NLRB 1236 (1966), and its progeny.  In March 2015, the Union lost the election on a vote of 21 to 18 and filed an objection alleging that the Excelsior list did not comply with Board requirements.  For 37 of the 39 eligible employees on the list, the Employer provided only residential addresses and did not include the post-office box numbers it had on file.  Given the unique mail-delivery system on the island, most mailing addresses are post-office boxes.  Prior to the election, the Union sent a campaign mailer and an invitation to attend a Union meeting to the 39 employees relying primarily on the addresses provided.  Only 7 employees attended the meeting.  After the election, the Postal Service returned 22 of the 39 envelopes the Union had mailed as undeliverable.  After a hearing, the Hearing Officer issued a decision that recommended finding that the list did not substantially comply with the requirements of Excelsior and had prevented a substantial number of employees from making a free and reasoned decision regarding representation.  After the Employer filed exceptions, the Board (then-Chairman Pearce and Members Miscimarra and Hirozawa) adopted the Hearing Officer’s recommendations and issued a Decision and Direction of Second Election.

In September 2015, the Union won the second election on a vote of 17 to 14.  The Employer filed an objection alleging that two pro-union employees threatened a coworker with violence if he did not vote for the Union.  That objection was based on video footage of a conversation between three drivers at a bus stop who were long-term co-workers and friends.  Two of them were teasing the third about his driving when the first driver pointed his finger at the second driver and said, “Now’s your time to tell him that if he doesn’t vote for the Union I’m going to kill him,” and the second driver replied, “That’s right, that’s right, we’re all going to kill him.”  During the exchange, neither raised his voice nor changed his jocular tone, and afterward the three continued to discuss the upcoming election.  After a hearing, the Hearing Officer recommended overruling the objection, finding the statements were made in jest during a conversation among friends.  In March 2016, on exceptions, the Board (then-Chairman Pearce and Members Miscimarra and Hirozawa) adopted the Hearing Officer’s recommendation and certified the Union.  Thereafter, the Employer refused to bargain in order to seek court review.

On review, the Court recognized that the Board’s Excelsior rule “is designed to ensure an accurate and informed vote on the question of union representation,” and that an employer that provides addresses which it “knows are not likely to allow the union to reach the employees by mail violates that rule.”  Under those principles, the Court concluded that the Employer’s failure to provide a proper and accurate list was in contravention of the Excelsior and upheld the Board’s ordering of the second election.  In doing so, the Court rejected the Employer’s contentions that it was up to the Union to verify the addresses, and that the Union could have used the residential addresses to visit employees at home.  On the alleged threat, the Court stated that “[a]fter review of the video of the incident which is part of the record, we conclude that the hearing officer did not abuse her discretion when she concluded that the statements were made in jest among friends.”  Accordingly, the Court upheld the results of the second election and the Board’s certification of the Union.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Lowe’s Home Centers, LLC  (19-CA-191665; JD(SF)-10-18)  Mill Creek, WA.  Administrative Law Jude Amita Baman Tracy issued her decision on April 17, 2018.  Charge filed by an individual.

Valmet, Inc.  (15-CA-206655 and 15-RC-204708; JD-26-18)  Columbus, MS.  Administrative Law Judge Arthur J. Amchan issued his decision on April 17, 2018.  Charge filed by United Steel, Paper and Forestry Rubber, Manufacturing, Energy, Allied and Industrial Service Workers International Union, AFL-CIO, CLC.

VT Hackney, Inc.  (06-CA-199799, et al.; JD-27-18)  Montgomery, PA.  Administrative Law Judge Robert A. Ringler issued his decision on April 19, 2018.  Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.

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