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Summary of NLRB Decisions for Week of April 2 - 6, 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

East End Bus Lines, Inc. and Floyd Bus Company, Inc., a single employer  (29-CA-188517 and 29-CA-194097; 366 NLRB No. 54)  Medford, NY, April 3, 2018.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provision of a settlement agreement.  The Board found that the Respondent had failed to comply with the terms of the settlement agreement by failing to transfer employees from the Brookhaven/Yaphank yard to the Medford yard after the Respondent had unilaterally transferred employees and bargaining unit work from the Medford yard to the Brookhaven/Yaphank yard.  The Board ordered the Respondent to comply with the unmet terms of the settlement agreement by transferring back the bargaining unit work to the Medford yard and fill the remaining Medford yard positions by requiring the employees at the Brookhaven/Yaphank yard to transfer to the Medford yard in order of reverse seniority and without reducing the wages of any transferred employees, in accordance with the settlement agreement.  In addition, the Board ordered the Respondent, on request, to rescind any and all changes to employees’ terms and conditions of employment that were made without bargaining with the Union to a good faith, valid impasse, and to bargain with the Union over employees’ terms and conditions of employment.  In limiting the affirmative remedies, the Board was mindful that the General Counsel is empowered under the default provision of the settlement agreement to seek “a full remedy for the violations found as is appropriate to remedy such violations.”  The Board noted, however, that the General Counsel did not seek such additional remedies in his Motion for Default Judgment and the Board would not sua sponte include them.

Charges filed by International Brotherhood of Teamsters Local 1205.  Chairman Kaplan and Members Pearce and McFerran participated.

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SSA Pacific, Inc.  (20-CA-151433, et al.; 366 NLRB No. 51)  Port of West Sacramento, CA, April 3, 2018.

The Board adopted the Administrative Law Judge’s dismissal of the complaint allegations that the Respondents violated Section 8(a)(1) by:  refusing to provide an employee with access to dispatch hall records; suspending the same employee for engaging in protected concerted activity; and suspending the same employee based on the application of an overbroad work rule, which provides that “[c]asuals causing a disturbance at the Dispatch Hall or at any other job-related area shall have their dispatch privileges permanently revoked.”  The Board severed and retained for further consideration the complaint allegations that the Respondents unlawfully maintained the allegedly overbroad rule.

Charges filed by individuals.  Administrative Law Judge Mara-Louise Anzalone issued her decision on September 13, 2016.  Members Pearce, McFerran, and Emanuel participated.

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Lucky Cab Company  (28-CA-023508; 366 NLRB No. 56)  Las Vegas, NV, April 4, 2018.

The Board adopted the Administrative Law Judge’s finding that the Respondent owes five unlawfully terminated employees a specified amount in net backpay, plus interest and excess taxes.  The Board explained that the judge correctly rejected the Respondent’s contention that its due-process rights were violated when the judge corrected an error in the calculation of an employee’s backpay award.  The Board also explained that, although one of those employees took lengthy vacations during the backpay period, he was nonetheless entitled to backpay during those vacations in the absence of any evidence establishing that his vacations during the backpay period exceeded his customary absences and use of paid vacation time during the base period; Member McFerran observed that Respondent’s vacation and personal leave policies, together, would have enabled him to accumulate enough paid time off to take month-long vacations. 

Charge filed by Industrial, Technical and Professional Employees Union, Local 4873, a/w Office and Professional Employees International Union.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on September 18, 2017.  Chairman Kaplan and Members Pearce and McFerran participated.

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C.W. Wright Construction Company, LLC  (05-CA-180732; 366 NLRB No. 55)  Forestville, MD, April 5, 2018.  The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s withdrawal of its answer to the complaint.  The Board found that the Respondent violated Section 8(a)(1) by threatening employees with unspecified reprisals; creating the impression of, and engaging in, surveillance of employees’ union activities; telling employees that the Respondent would never go union; promising employees increased wages and expanded eligibility for per diem payments if they refrained from organizing activity; and soliciting employee complaints and grievances.  The Board also found that the Respondent violated Section 8(a)(3) and (1) by granting a wage increase and expanding the eligibility criteria for per diem payments.

Charge filed by International Brotherhood of Electrical Workers, Local Union 70.  Chairman Kaplan and Members McFerran and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

Universal Protection Service, LLC d/b/a Allied Universal Security Services  (25-CA-201680)  Burns Harbor, IN, April 3, 2018.  The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  The complaint had alleged Section 8(a)(5) violations by suspending and discharging one employee and discharging another without prior notice to the Union and without affording the Union an opportunity to bargain with respect to this conduct and the effects of this conduct; unreasonably delaying in furnishing the Union with certain relevant and necessary information; and failing and refusing to furnish the Union with other requested information.  Charge filed by International Union, Security, Police and Fire Professionals of America (SPFPA).  Chairman Kaplan and Members McFerran and Emanuel participated.

9th Avenue Hotel Property Holding LLC d/b/a Cassa Hotel Times Square, VIP Concierge Inc. and A&R Building Solution Inc., as joint employers  (02-CA-201747, et al.)  New York, NY, April 4, 2018.  The Board approved a formal settlement stipulation between the Respondents, the Charging Party, and the General Counsel, and specified actions the Respondents must take to comply with the Act.  The complaint had alleged Section 8(a)(3), (2), and (1) violations by the Respondent Employers terminating an employee because of her union activity, offering unlawful assistance to the Respondent Union during an organizing campaign, and subsequently recognizing and entering into collective-bargaining agreements containing union-security and dues-checkoff clauses with the Respondent Union when it did not represent an uncoerced majority of employees.  The complaint had also alleged Section 8(b)(1)(A) and (2) violations by the Respondent Union’s accepting unlawful assistance and recognition from and entering into collective-bargaining agreements containing union-security and dues-checkoff clauses with the Respondent Employers when it did not represent an uncoerced majority of employees.  Charges filed by New York Hotel and Motel Trades Council, AFL-CIO.  Members Pearce, McFerran, and Emanuel participated.

ADT, LLC  (16-CA-144548, et al.)  Carrollton, TX, April 4, 2018.  The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s Order denying the Respondent’s Motion for a Bill of Particulars.  In the proposed Bill of Particulars, the Respondent requested specific information concerning the legal and factual basis for the complaint allegations that the Respondent refused to apply the collective-bargaining agreement covering the historical unit to new hires; refused to recognize the Union as the representative of the new hires; withdrew its recognition of the Union as the bargaining representative of the unit; and failed and refused to bargain with the Union.  The Board found that the Respondent failed to establish that the judge abused his discretion in denying the motion.  Charges filed by Communications Workers of America, AFL-CIO.  Chairman Kaplan and Members McFerran and Emanuel participated.

Southwest Florida Retirement Center Inc. d/b/a Village on the Isle  (12-CA-196935 and 12-CA-198395)  Venice, FL, April 5, 2018.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum as untimely.  The Board also found that, even assuming the petition was timely, it lacked merit. The subpoena sought information relevant to the matter under investigation, described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Charges filed by an individual.  Chairman Kaplan and Members McFerran and Emanuel participated.

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Appellate Court Decisions

XPO Logistics Freight, Inc., Board Case No. 13-CA-189647 (reported at 365 NLRB No. 42) (D.C. Cir. decided April 3, 2018)

In an unpublished judgment in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this operator of a truck storage facility in Gary, Indiana, after its mechanics and custodians voted 8 to 3 in a June 2017 election to be represented by Local Lodge 701, International Association of Machinists & Aerospace Workers, AFL-CIO.  In doing so, the Court held that the Board acted within its wide discretion in overruling election objections alleging two instances of third-party misconduct without holding an evidentiary hearing.

After the election, the Employer filed objections alleging a pre-election threat and the sabotage of another employee’s work equipment and, in support, submitted declarations and an offer of proof.  First, the Employer alleged that pro-union Employee A asked anti-union Employee B if, as rumored, Employee C planned to leave the facility, and said that if he did leave, then Employee B would be “alone doing most of the work” because Employee C was his only ally.  Employee B passed that comment to Employee C, who felt it was a threat to induce him to vote for the Union.  Second, before voting on election day, Employee C found two bolts to the grille of his forklift missing, and the remaining bolts loosened, which he believed had been done by a pro-Union employee to get him disciplined in retaliation for not supporting the Union.

Thereafter, the Regional Director issued a decision finding the Employer’s offer of proof insufficient to sustain its objections or to warrant a hearing, and certified the Union.  The Employer filed a Request for Review, which the Board (then-Chairman Pearce and Members Miscimarra and McFerran) denied, finding it raised no substantial issues warranting review.  The Employer then refused to bargain in order to seek court review of the certification.

On review, the Court reiterated the standard for third-party misconduct, stating that the Board will set aside an election only if the alleged “misconduct is ‘so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible,’” quoting Overnite Transp. Co. v. NLRB, 140 F.3d 259, 265 (D.C. Cir. 1998) (in turn, quoting Westwood Horizons Hotel, 270 NLRB 802, 803 (1984)).  As to the alleged threat, the Court held that, even if it were to accept the Employer’s view that the comment was a threat of job loss, it would not have intimidated a prospective voter from casting a ballot in a particular manner.  Regarding the alleged equipment sabotage, the Court held that such a minor instance of anonymous property damage that was not plainly related to the election would not warrant a new election.  Further, the Court agreed with the Board that the cumulative effect of the two instances would not render a free election impossible, and that the evidence proffered was insufficient to warrant a hearing.

The Court’s unpublished judgment may be found here.

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Administrative Law Judge Decisions

Stericycle, Inc.  (04-CA-186804 and 04-CA-196831; JD(NY)-03-18)  Philadelphia, PA.  Administrative Law Judge Jeffrey P. Gardner issued his decision on April 2, 2018.  Charges filed by Teamsters Local 628.

Universal Security, Inc.  (13-CA-178494 and 13-CA-182708; JD-23-18)  Chicago, IL.  Administrative Law Judge Christine E. Dibble issued her decision on April 2, 2018.  Charges filed by Service Employees International Union, Local 1.

Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville  (13-CA-187272, et al.; JD-24-18)  Libertyville, IL.  Administrative Law Judge David I. Goldman issued his decision on April 4, 2018.  Charges filed by Local Lodge 701, International Association of Machinists & Aerospace Workers, AFL-CIO, and an individual.

Audio Visual Services Group, Inc. d/b/a PSAV Presentation Services  (19-CA-186007 and 19-CA-192068; JD(SF)-06-18)  Seattle, WA.  Administrative Law Judge Gerald M. Etchingham issued his decision on April 6, 2018.  Charges filed by International Alliance of Theatrical Stage Employees, Local 15.

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