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Summary of NLRB Decisions for Week of April 9 - 13, 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

Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino  (28-CA-214925; 365 NLRB No. 58)  Henderson, NV, April 12, 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 International Union of Operating Engineers Local 501, AFL-CIO.  Chairman Kaplan and Members McFerran and Emanuel participated.

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Advanced Masonry Associates, LLC d/b/a Advanced Masonry Systems  (12-CA-176715 and 12-RC-171579; 366 NLRB No. 57)  Sarasota, FL, April 13, 2018.

The Board, in a consolidated unfair labor practice and representation case, adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) and engaged in objectionable conduct by suspending and discharging two employees 8 days before election ballots were mailed.  Contrary to the judge, the Board found that the Respondent also violated Section 8(a)(3) and (1) and engaged in objectionable conduct by more strictly enforcing its fall protection policy against the same two employees.  The Board further affirmed the judge’s recommended dismissal of an alleged Section 8(a)(1) violation and election objection for Respondent’s alleged interrogation of an employee, and the judge’s conclusion that Respondent violated Section 8(a)(1) and engaged in objectionable conduct by its Safety Director threatening that wages would decrease if the Union won the election.  The Board found it unnecessary to pass on: first, whether the Respondent additionally violated Section 8(a)(1) and engaged in objectionable conduct when its Foreman stated that it would probably not be good for wages if the Union won the election; and second, whether the Respondent failed to substantially comply with the Board’s voter list requirements.  Finally, the Board affirmed the judge’s overruling of challenges to nine employees’ ballots because they had either been unlawfully discharged or laid off with a reasonable expectation of recall, and reversed the judge’s overruling of a challenge to one employee’s ballot because the employee was terminated for cause.

Charge and petition filed by Bricklayers and Allied Craftsworkers, Local 8 Southeast.  Administrative Law Judge Michael A. Rosas issued his decision on May 10, 2017.  Chairman Kaplan and Members Pearce and McFerran participated.

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Colorado Symphony Association  (27-CA-195026; 366 NLRB No. 60)  Denver, CO, April 13, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by refusing the Union’s request to furnish overscale contracts between the Respondent and individual unit members.  The Union sought the overscale contracts to investigate potential gender-based wage inequities and to assist an employee in her upcoming overscale negotiations.  The Board adopted the judge’s conclusions that the overscale contracts are presumptively relevant to the Union’s performance of its statutory duties and that the Respondent had not rebutted the presumption of relevance or otherwise established a legitimate justification for refusing to furnish the contracts to the Union.  Chairman Kaplan and Member Emanuel found it unnecessary to decide whether, in the absence of the alleged gender discrimination in pay, the Union would have been entitled to the overscale contracts solely for the purpose of helping an employee in her individual overscale negotiations.

Charge filed by Denver Musicians Association, Local 20-623, American Federation of Musicians.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on November 20, 2017.  Chairman Kaplan and Members Pearce and Emanuel participated.

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W.R. Transport, LLC  (15-CA-185397; 366 NLRB No. 59)  Westwego, LA, April 13, 2018.

The Board denied the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file a timely answer to the complaint.  The complaint alleged that the Respondent violated Section 8(a)(1) by misclassifying its employees as independent contractors.  This unfair labor practice theory is currently under consideration in Velox Express, Inc., 15-CA-184006, and the Board has invited briefing on the issue.  Therefore, the Board denied the Motion, and the complaint is dismissed without prejudice pending the Board’s disposition of Velox Express, Inc.

Charge filed by an individual.  Chairman Kaplan and Members McFerran and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

NP Palace LLC  (28-RC-211644)  Las Vegas, NV, April 12, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it did not raise any substantial issues warranting review.  The Regional Director had found that the technicians tasked with installing, maintaining, and repairing the Employer’s gaming machines were not excluded from the petitioned-for unit as guards under Section 9(b)(3).   In denying review, the Board agreed with the Regional Director that the D.C. Circuit’s decision in Bellagio, LLC v. NLRB, 863 F.3d 839 (D.C. Cir. 2017), is distinguishable.  Unlike the slot technicians found to be guards by the circuit court, the Board found that the technicians in this case play no special role in enforcing the Employer’s rules against their coworkers and other persons beyond that of any other employee, do not control access to the Employer’s surveillance technology or play a key role in its use, and do not otherwise enforce the Employer’s rules in a security context.  Petitioner — International Union of Operating Engineers Local 501, AFL-CIO.  Members Pearce, McFerran, and Emanuel participated.

C Cases

Microsoft Corporation  (19-CA-189865 and 19-CA-189881)  Redmond, WA, April 9, 2018.  The Board denied the Employer’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 Temporary Workers of America.  Chairman Kaplan and Members Pearce and McFerran participated.

Standard Register, Inc. d/b/a Taylor Communications  (05-CA-194336)  York, PA, April 10, 2018.  No exceptions having been filed to the February 26, 2018 decision of Administrative Law Judge Arthur L. Amchan’s 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 Local 594-S, District Council No. 9 of the Graphic Communications Conference of the International Brotherhood of Teamsters.

Velox Express, Inc.  (15-CA-184006)  Little Rock, AR, April 11, 2018.  The Board granted an extension of time to file briefs, inviting the parties and interested amici to file briefs on the issue of under what circumstances, if any, the Board should deem an employer’s act of misclassifying statutory employees as independent contractors a violation of Section 8(a)(1).  The parties and amici may file briefs with the Board by April 30, 2018; parties may file responsive briefs by May 14, 2018.  Charge filed by an individual. 

Dex Media, Inc.  (27-CA-196726)  Greenwood Village, CO, April 11, 2018.  No exceptions having been filed to the February 28, 2018 decision of Administrative Law Judge Dickie Montemayor’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order.  Charge filed by International Brotherhood of Electrical Workers, Local 1269.

Supreme Building Messengers, Inc.  (02-CA-192265)  New York, NY, April 12, 2018.  The Board denied the Employer’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.  In response to a request by the Regional Director, the Board directed the Employer to produce the responsive documents within 5 business days of the issuance of the Order.  Charge filed by Consolidated Commercial Workers of America, Local 528.  Chairman Kaplan and Members McFerran and Emanuel participated.

Conference Services International etc., LLC d/b/a CSI etc.  (28-CA-172233, et al.)  Tucson, AZ, April 12, 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 the following Section 8(a)(1), (3), and/or (5) violations:  threats to stop doing work and file a lawsuit against the Union; recording of negotiation sessions; refusal to hire or consider applicants; locking out employees; refusal to bargain; withdrawal of recognition; refusal to meet at reasonable times; surface bargaining; conditioning execution of a collective-bargaining agreement on the Union’s withdrawal of unfair labor practice charges; and unilateral changes.  Charges filed by International Alliance of Theatrical Stage Employees, Local 415.  Chairman Kaplan and Members McFerran and Emanuel participated.

SW General, Inc. d/b/a American Medical Response  (28-CA-192959)  Sun City, AZ , April 12, 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) refusal-to-bargain/refusal-to-provide relevant information/direct dealing/unilateral change/contract modification violations.  Charge filed by International Association of Fire Fighters, Local I-60.  Chairman Kaplan and Members McFerran and Emanuel participated.

Lionbridge Technologies  (19-CA-189868 and 19-CA-189895)  Bellevue, WA, April 13, 2018.  The Board denied the Employer’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 Temporary Workers of America.  Chairman Kaplan and Members Pearce and McFerran participated.

Constellation Brands, U.S. Operations, Inc., d/b/a Woodbridge Winery  (32-CA-148431 and 32-RC-135779)  Acampo, CA, April 13, 2018.  Upon remand from the United States Court of Appeals for the Second Circuit, the Board remanded this case to the Regional Director for further analysis in light of the Court’s opinion and the subsequent issuance of PCC Structurals, Inc., 365 NLRB No. 160 (2017), including reopening the record in Case 32-RC-135779 and for the issuance of a Supplemental Decision.  The Court instructed the Board to explain whether, under step one of Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), the excluded employees have “meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members” (Constellation Brands, U.S. Operations, Inc. v. NLRB, 842 F.3d 784 (2016)), but while the remand was pending at the Board, the Board issued PCC Structurals, which overruled Specialty Healthcare.  In remanding the case to the Regional Director, the Board noted that 1) both parties agreed that PCC Structurals is the correct standard to apply in this case; 2) the Petitioner had requested that the Board remand the case to the Regional Director to reopen the record in order to best evaluate the case under PCC Structurals; 3) although the Employer had filed a Motion to Dismiss, it also agreed that the unit determination must be revisited in some form; and 4) the Employer’s original position in its statement of position, prior to its filing of the Motion to Dismiss, was that the case should be remanded.  Under these circumstances, the Board found that remand is warranted in order to give the parties an opportunity to supplement the evidence in the record so that this case can be better evaluated under PCC Structurals.  As such, the Board denied the Employer’s Motion to Dismiss. Member McFerran concurred in the decision to remand to the Regional Director, observing that both parties agreed that a remand is appropriate, and neither party contended that Specialty Healthcare should apply, either as the law of the case or because PCC Structurals was wrongly decided. Petitioner —  Cannery, Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 601, International Brotherhood of Teamsters.  Chairman Kaplan and Members McFerran and Emanuel participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Aryzta, LLC  (31-CA-178826; JD(SF)-09-18)  Los Angeles, CA.  Administrative Law Judge Eleanor Laws issued her decision on April 9, 2018.  Charge filed by an individual.

Universal Security, Inc. (13-CA-178494 and 13-CA-182708; JD-23-18) Chicago, IL, April 11, 2018.  Errata to April 2, 2018 decision of Administrative Law Judge Christine E. Dibble.  Errata   Amended Decision.

Gardner Trucking, Inc.  (31-CA-191361, et al.; JD-25-18)  Ontario, CA.  Administrative Law Judge Andrew S. Gollin issued his decision on April 11, 2018.  Charges filed by Teamsters Local No. 63.

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