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Summary of NLRB Decisions for Week of April 23 - 27, 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

Woodcrest Health Care Center  (22-CA-083628; 366 NLRB No. 70)  New Milford, NJ, April 26, 2018.

Following a partial remand from the United States Court of Appeals for the Third Circuit of the Board’s decision reported at 360 NLRB 415 (2014), the Board reaffirmed its finding that Respondent violated Section 8(a)(1) and (3) by announcing and implementing improvements in healthcare benefits and a reduction in coinsurance, copay, and contribution rates for all employees except those eligible to vote in a pending representation election.  Applying the analytical framework established by the Supreme Court in NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967) as the law of the case, the Board found that the foreseeable effect of the Respondent’s conduct was to discourage the future exercise of Section 7 rights by sending an unmistakable message to employees eligible to vote in the pending election that they were being punished for their support of the Union and to warn them and others - including those who received the benefit improvements - that they cannot engage in organizational activity without risking detriment to their terms and conditions of employment.  The Board therefore found that the Respondent had engaged in “discriminatory conduct which could have adversely affected employee rights to some extent,” and it further found that the Respondent failed to meet its burden under Great Dane to come forward with evidence that its conduct was motivated by a “substantial and legitimate business justification.”  Concurring, Member Pearce stated that, in finding the violation, he would additionally rely on independent evidence that the Respondent’s motive for withholding the benefits from eligible voters was to influence the outcome of the election, to punish the employees who supported the Union, and to serve as a warning to others.

Charge filed by 1199 SEIU, United Healthcare Workers East.  Administrative Law Judge William Nelson Cates issued his decision on April 2, 2013.  Members Pearce, McFerran, and Kaplan participated.

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Parkview Lounge, LLC d/b/a Ascent Lounge  (02-CA-178531; 366 NLRB No. 71)  New York, NY, April 26, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by terminating an employee for engaging in protected concerted activity for voicing group complaints about employee wages, benefits, and working conditions at an all-hands staff meeting.  The Board agreed with the judge’s finding that the Respondent’s espoused reason for terminating the employee, her supposed inability and unwillingness to work with management, was simply pretext for unlawful animus towards her protected concerted activity, evidenced by the suspicious timing of the employee’s termination and the Respondent’s shifting and inconsistent reasons for her discharge.

Charge filed by an individual.  Administrative Law Judge Michael A. Rosas issued his decision on September 22, 2017.  Members Pearce, McFerran, and Emanuel participated.

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Cordúa Restaurants, Inc.  (16-CA-160901, et al.; 366 NLRB No. 72)  Houston, TX, April 26, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee because he engaged in protected concerted activity.  The Board also adopted the judge’s conclusion that the Respondent did not violate Section 8(a)(1) by discharging another employee.  The Board reversed the judge’s finding that the Respondent discharged a third employee in violation of Section 8(a)(1) and dismissed that complaint allegation.  Finally, the Board severed and retained for future resolution the allegations pertaining to (1) the Respondent’s promulgation and maintenance of its arbitration agreement and threat of lost employment if employees refused to sign the agreement, and (2) the Respondent’s maintenance of allegedly overbroad handbook rules.

Charges filed by individuals.   Administrative Law Judge Sharon Levinson Steckler issued her decision on December 9, 2016.  Members Pearce, McFerran, and Kaplan participated.

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Manhattan College  (02-CA-201623; 366 NLRB No. 73)  New York, NY, April 27, 2018.

The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

Charge filed by Manhattan College Adjunct Faculty Union, New York State United Teachers (NYSUT), AFT/NEA/AFL-CIO.  Members Pearce, McFerran, and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Pactiv LLC  (13-RC-217688)  Romeoville, IL, April 23, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s denial of special permission to file a post-hearing brief, as it raised no substantial issues warranting review.  Petitioner —United Electrical Radio and Machine Workers of America.  Members Pearce, McFerran, and Emanuel participated.

Baker DC, LLC  (05-RC-135621)  Washington, DC, April 24, 2018. The Board denied the Employer’s Motion to Reopen the Record or Alternatively for Reconsideration of Certification of Representative as the Employer did not demonstrate extraordinary circumstances warranting reconsideration, nor did it timely file its Motion for Reconsideration under Section 102.65(e) of the Board’s Rules and Regulations. Member Kaplan, without deciding whether the Motion for Reconsideration is timely or that the Board’s issuance of PCC Structurals, Inc. constitutes an extraordinary circumstance, found that the Board had already considered the applicable evidence and found the unit to be appropriate under the traditional community-of-interest factors. Member McFerran concurred with Member Kaplan that the unit is appropriate under the traditional community-of-interest standard. Petitioner — Operative Plasterers and Cement Masons International Association, Local 891.  Members Pearce, McFerran, and Kaplan participated.

IGT Global Solutions  (01-RC-176909)  West Greenwich, RI, April 25, 2018.  The Board reversed the Regional Director’s dismissal of the petition, reinstated the petition, and remanded the case to the Regional Director for further consideration in light of PCC Structurals, Inc., 365 NLRB No. 160 (2017).  The Board found that because PCC is to be applied to pending cases like this one where the issue is the appropriateness of the petitioned-for unit, the unit determination in this case must be made in accordance with the principles set forth therein, and that the proper course is thus to remand to the Regional Director for consideration of this case under the PCC standard and to reopen the record for evidence and argument relevant under the PCC standard as necessary.  It further found that given the applicability of new law and the circumstances of this pending case, the Employer here is permitted to file a new Statement of Position and/or to otherwise make arguments reflecting the issues it wishes to raise under PCC, and this renders moot the Petitioner’s argument that the Employer’s Statement of Position at the original hearing was untimely and thus the Employer should have been precluded from litigating the issues therein.  Similarly, the Board found that the Petitioner should be permitted to newly raise and litigate issues relevant under the PCC standard.  The Board limited its holding to the particular circumstances of this case.  Petitioner — International Brotherhood of Teamsters, Local 251.  Members Pearce, McFerran, and Kaplan participated.

Bilfinger Industrial Services, Inc.  (14-UD-194983)  Cape Girardeau, MO, April 26, 2018.  The Board denied the Union’s Request for Review of the Regional Director’s Decision and Certification of Results of Election in which the Regional Director adopted the Hearing Officer’s recommendation to overrule an objection alleging that the Employer improperly coerced and induced eligible voters to vote in favor of the deauthorization proposition.  In denying review, the Board agreed with the Regional Director (and Hearing Officer) that the Union had not met its heavy burden to show that two letters, disseminated to the voting unit, had the tendency to interfere with the employees’ freedom of choice.  The Board accordingly found it unnecessary to pass on the question of whether the Employer was afforded sufficient notice of the Union’s theory underlying the objection.  Member Kaplan also would have found (in agreement with the Regional Director and the Hearing Officer) that the arguments the Union advanced based on the objection did not afford the Employer procedural due process.  Petitioner—an individual.  Union—Craftsman Independent Union.  Members Pearce, McFerran, and Kaplan participated.

Easter Seals New York  (03-RC-212875)  Rochester, NY, April 27, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision Regarding Objections to Election and Certification of Representative, as the Employer has not raised any substantial issues warranting review. Member Emanuel noted in a footnote that he expresses no view regarding the Board’s Election Rule, but agrees that it applies here and warrants denial of the Employer’s Request for Review.  Petitioner— International Brotherhood of Electrical Workers Local 86.  Members Pearce, McFerran, and Emanuel participated.

Paragon Systems, Inc.  (05-RC-205598)  Washington, DC, April 27, 2018.  The Board denied the Intervenor-Union’s Request for Review of the Acting Regional Director’s  Decision on Challenged Ballots and Order Directing Challenged Ballots [To] Be Opened, finding that it raised no substantial issues warranting review of the decision.  The Employer Paragon Systems was the security contractor for two Department of Education locations in Washington, D.C.  The Intervenor requested that the challenged mail ballots of 21 employees –and the entire election--be invalidated as the Employer had been replaced as the security contractor at one of the locations after the mail ballot election, but before the vote count (which had been delayed by a subsequently-dismissed blocking charge).   The Acting Regional Director found that the contested ballots had been cast by voters eligible under the Board’s test for mail ballot elections because they were employees of the Employer as of the payroll eligibility date and when they mailed in their ballots.  Dredge Operators, Inc., 306 NLRB 924 (1992).  Petitioner— Fraternity of American Protective Officers (FAPO).  Intervenor—National League of Justice and Security Professionals (NLJSP).  Members Pearce, Kaplan, and Emanuel participated.

C Cases

United American Industries, Inc. d/b/a Wisdom Natural Brands  (28-CA-208953 and 28-CA-209046)  Gilbert, AZ, April 23, 2018.  The Board denied the Respondent’s Motion to Dismiss on the ground that the Respondent failed to demonstrate that one of the charging parties was not a proper party to the proceeding.  Charges filed by individuals.  Members Pearce, McFerran, and Emanuel participated.

La Jomac Group Inc., JAG Premier, Inc., Data Processing Specialists, Inc., Guro Enterprises, LLC, and Bollinger Shipyards, Inc.  (15-CA-137333 and 15-CA-137337)  Houma, LA, April 23, 2018.  The Board denied Employer Bollinger Shipyards, Inc.’s Petition to Revoke an investigative 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.  Charges filed by an individual.  Members Pearce, McFerran, and Emanuel participated.

Senior Philanthropy of Cheshire, LLC d/b/a Cheshire Regional Rehab Center  (01-CA-184184)  Cheshire, CT, April 23, 2018.  No exceptions having been filed to the March 9, 2018 decision of Administrative Law Judge Paul Bogas’ finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charge filed by an individual.

Legacy Charter, LLC d/b/a Legacy Traditional School  (28-CA-201248)  Gilbert, AZ, April 25, 2018.  The Board denied the Respondent’s Motion to Dismiss for lack of jurisdiction on the ground that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  Charge filed by an individual.  Members Pearce, McFerran, and Emanuel participated.

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Appellate Court Decisions

Oncor Electric Delivery Company, LLC, Board Case 16-CA-103387 (reported at 364 NLRB No. 58) (D.C. Cir. decided April 13, 2018)

In a published opinion, the Court enforced those portions of the Board’s order issued against this electric-utility company based in the Dallas, Texas area that remedied the Board’s finding that the Employer violated Section 8(a)(5) and (1) by refusing to furnish information to International Brotherhood of Electrical Workers, Local 69, the employees’ collective-bargaining representative.  However, the Court remanded for further consideration the issue whether the Employer unlawfully discharged an employee in violation of Section 8(a)(3) and (1) after he testified as a union official before a Texas state committee.

The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that the employee’s testimony before the committee was concerted in nature because he explicitly testified on behalf of the Union, and was protected by Section 7 because he testified to gain leverage in the parties’ ongoing collective-bargaining negotiations and because his testimony related to employee safety and job duties.  Specifically, the employee testified that the Employer’s installation of new smart meters at residential properties was the subject of customer complaints about the meters burning up and causing damage to their homes.  The Board further concluded that the Employer failed to show that the testimony was either maliciously untrue or so disloyal as to cause the employee to lose the Act’s protection under NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953) (to retain protection, the prejudicial third-party communication must be (1) “related to an ongoing labor dispute,” and (2) not “so disloyal, reckless or maliciously untrue as to lose the Act’s protection”).

On review, the Court affirmed the Board’s findings under the second requirement of the Jefferson Standard test that the employee’s testimony was not reckless, maliciously false, or disloyally disparaging.  The Court explained, however, that it was necessary to remand to the Board for further consideration because “the Board’s decision essentially skipped discussion of the first requirement” that the third-party communication “indicate that it is related to an ongoing labor dispute.”  Additionally, the Court noted that its cases had not explicitly addressed whether the Board’s General Counsel bears the burden to show that a third-party communication has “indicated” a connection to an ongoing labor dispute, or whether the absence of any such indication serves as a defense for an employer where an appeal to third parties would otherwise be protected under Section 7.  Accordingly, the Court remanded that portion of the case with instructions for the Board to address “the burden of proof on Jefferson Standard’s first condition for protection of a disparaging statement, its conclusion on the merits of that issue, and of course its grounds for both conclusions.”

In reaching the merits of the Board’s decision, the Court rejected the Employer’s argument that the complaint was invalid because Acting General Counsel Solomon had lacked authority to issue it under the Federal Vacancies Reform Act, holding it untimely raised and thus jurisdictionally barred from review under Section 10(e) of the Act.

The Court’s opinion is here.

Casino Pauma, Board Case 21-CA-125450 (reported at 363 NLRB No. 50) (9th Cir. decided April 26, 2018)

In a published opinion, the Court enforced the Board’s order issued against this 236-member federally-recognized Indian Tribe with a reservation in Pauma Valley, California, where it owns and operates a casino employing 462 employees, five of whom are tribal members.  In doing so, the Court, in agreement with the two other circuits that have considered the issue, reviewed its own precedent, the NLRA, and federal Indian law principles, and upheld the Board’s determination that tribe-owned casinos can be NLRA-covered employers.  See San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007); NLRB v. Little River Band of Ottawa Indians Tribal Gov’t, 788 F.3d 537 (6th Cir. 2015).  The Court also affirmed the Board’s assertion of jurisdiction in this case.

In 2013, Unite HERE International began its campaign to organize the casino’s employees.  In an earlier unfair-labor-practice decision, Casino Pauma, 362 NLRB No. 52 (Mar. 31, 2015) (Casino Pauma I)—a decision that was not judicially reviewed—the Board rejected the casino’s argument that it was a government entity not subject to the Act, and among other findings, provided a full analysis of its assertion of jurisdiction in that case.  Thereafter, under a subsequent complaint, the Board decided Casino Pauma, 363 NLRB No. 60 (Dec. 3, 2015) (Casino Pauma II), the case that was currently on court review.  Specifically, the Board (Members Miscimarra, Hirozawa, and McFerran) asserted jurisdiction over the casino by relying on its jurisdictional finding in Casino Pauma I, which was rendered under the test the Board announced in San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), and followed in Little River Band of Ottawa Indians Tribal Government, 361 NLRB No. 45 (2014), adopting and incorporating 359 NLRB No. 84 (2013), and Soaring Eagle Casino & Resort, 361 NLRB No. 73 (2014), adopting and incorporating 359 NLRB No. 92 (2013).  Reaching the merits, the Board found that the casino violated Section 8(a)(1) by maintaining and enforcing an unlawful no-distribution rule, interfering with employees’ distribution of union literature, threatening employees with discipline for such distribution, and photographing employees distributing union literature.

Before proceeding to the merits, the Court first dispensed with the Union’s argument that the Employer was issue-precluded from challenging Board jurisdiction because it did not seek judicial review of Casino Pauma I.  The Court determined that it need not resolve the preclusive effect of unenforced Board determinations, given that the Board in this case chose to waive any such claim and to put the issue before the Court for decision.

On the jurisdictional determination, the Court concluded that “[a]lthough the NLRA is ambiguous as to its application to tribal employers, the Board’s determination that such employers are covered by the Act is a ‘reasonably defensible’ interpretation of the NLRA.”  Looking to Section 2(2), which sets forth the definition of employer, the Court noted that it exempts federal and state governments from coverage, “but is silent as to Indian tribes.”  The Court also considered its prior precedent in which it held “plausible—but did not have occasion definitively to rule upon—this same understanding of the NLRA.”  See NLRB v. Chapa-De Indian Health Program, Inc., 316 F.3d 995 (9th Cir. 2003) (affirming the district court’s enforcement of a Board subpoena against a tribal organization).  Finding this case required it to directly address the issue, the Court concluded that, under the requirements of the Chevron doctrine, “San Manuel’s holding that tribal employers are within the NLRA’s coverage meets that standard, as it is a ‘reasonably defensible’ interpretation of the statute’s definition of ‘employer.’”  In rejecting the Employer’s contentions that other readings of Section 2(2) were reasonable and should be adopted by the Court, the Court explained that such arguments, even if reasonable, fail to render the Board’s interpretation unreasonable.

Next, the Court held that the Board’s interpretation was acceptable as well under federal Indian law, an area governed by the three-part test stated in Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985), and its progeny, for determining when a federal law of “general applicability” applies to tribes.  Under Coeur d’Alene, a federal statute of general applicability that is silent on the issue of applicability to Indian tribes “will not apply to them if: (1) the law touches ‘exclusive rights of self-governance in purely intramural matters’; (2) the application of the law to the tribe would ‘abrogate rights guaranteed by Indian treaties’; or (3) there is proof ‘by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations. . . .’”  In any of these three situations, the Court here reiterated, “Congress must expressly apply a statute to Indians before we will hold that it reaches them.”  Turning to the application of that test, the Court held that the NLRA is a statute of general applicability, and that none of the Coeur d’Alene exceptions are pertinent here.  The Court explained that, in addition to the fact that there is no indication that Congress meant to preclude the NLRA’s application to tribes, its application to the casino does not affect purely intramural matters or the Tribe’s self-government.  Rather, the Court explained, the casino is acting here as “a business entity that happens to be run by a tribe or its members,” and that the labor dispute that gave rise to this case is “one between a tribe-owned business and its employees,” the vast majority of whom are not members of the Tribe.

On the merits, the Court held that the Board’s findings are supported by substantial evidence and consistent with law, and summarily enforced the uncontested finding that the casino unlawfully photographed employees distributing union literature.  Rejecting the Employer’s contention that the Board misapplied precedent in finding that the employees had a Section 7 right to distribute union literature to patrons on the front driveway of the casino, the Court concluded that “the Board properly interpreted Republic Aviation’s holding concerning [S]ection 7 to reach employees’ customer-directed union literature distribution on non-work time in non-work areas of the employer’s property.”

The Court’s opinion is here.

International Union of Operating Engineers, Local 18 (Nerone & Sons Inc.), Board Case No. 08-CD-135243 (reported at 365 NLRB No. 18) (D.C. Cir. decided April 24, 2018)

In an unpublished judgment, the Court enforced the Board’s order that issued against International Union of Operating Engineers Local 18 for violating Section 8(b)(4)(ii)(D) by maintaining and filing pay-in-lieu grievances against a number of charging-party employers.  This case involves a lengthy dispute between Local 18 and Laborers Local 310, associated with Laborers International Union of North America, AFL-CIO, over which union’s members would operate forklifts and skid steers for particular employers in northeastern Ohio.  Local 18’s efforts to take over that work have prompted extensive litigation in which the Board has awarded the disputed work to the Laborers in four separate proceedings brought pursuant to Section 10(k) of the Act.  Here, the Board (Acting Chairman Miscimarra and Members Pearce and McFerran) found Local 18’s grievances unlawful because they were inconsistent with the Board’s prior Section 10(k) determinations awarding the disputed work to employees represented by the Laborers.

On review, the Court held that the Board properly ordered Local 18 to withdraw all of its pending pay-in-lieu grievances.  In doing so, the Court commented that the appeal “raises no question that has not been decided against Local 18 nearly a half dozen times.”  Finding no basis to overturn the Board’s decision, the Court enforced the Board’s order in full.

The Circuit Court’s judgment may be found here.

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Administrative Law Judge Decisions

CSC Holdings, LLC (29-CA-190108; JD(NY)-10-18) Brooklyn, NY.  Administrative Law Judge Kenneth W. Chu issued his decision on April 27, 2018.  Charge filed by Communications Workers of America.

Kauai Veterans Express Co. (20-CA-193339, et al.; JD(SF)-11-18) Kauai, HI.  Administrative Law Judge Dickie Montemayor issued his decision on April 27, 2018.  Charges filed by Operating Engineers Local Union No. 3.

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