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Summary of NLRB Decisions for Week of August 13 - 17, 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

American Municipal Power, Inc.  (10-CA-221403; 366 NLRB No. 160)  Smithland, KY, August 14, 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 Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 816.  Members Pearce, Kaplan, and Emanuel participated.

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EYM King of Michigan, LLC d/b/a Burger King  (07-CA-118835; 366 NLRB No. 156)  Ferndale, MI, August 15, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by maintaining its Loitering and Soliciting policy and violated Section 8(a)(3) and (1) by issuing an employee a warning and then suspending her for violating that policy.  Member Emanuel agreed that, under Tri-County Medical Center, 222 NLRB 1089 (1976), the Respondent’s Loitering and Soliciting policy was unlawful but stated his belief that the Board should revisit Tri-County Medical Center to the extent that it allows off-duty employees to engage in Section 7 activities on an employer’s parking lot and other exterior areas of the employer’s property.  In addition, the Board severed and retained for further consideration several allegations that the Respondent unlawfully maintained overly broad employee handbook rules.

Charge filed by Michigan Workers Organizing Committee.  Administrative Law Judge Arthur J. Amchan issued his decision on September 29, 2014.  Members Pearce, McFerran, and Emanuel participated.

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Windsor Redding Care Center, LLC (20-CA-070465, et al.; 366 NLRB No. 127) Redding, CA, August 15, 2018.  Errata to the July 17, 2018 Decision and Order.  Errata   Amended Decision.

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Arise Virtual Solutions, Inc.  (12-CA-144223; 366 NLRB No. 163)  Miramar, FL, August 16, 2018.

The Board found that in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint must be dismissed.  The Administrative Law Judge had found that Respondent’s maintenance and enforcement of its dispute resolution program, which requires the Charging Party and other client support professionals, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, violated the Act under the Board’s decisions in Murphy Oil and D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013).

Charge filed by an individual.  Administrative Law Judge Charles J. Muhl issued his decision on August 12, 2016.  Members Pearce, McFerran, and Kaplan participated.

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Washington and Northern Idaho District Council of Laborers (Skanska USA Building, Inc.)  (19-CD-211263; 366 NLRB No. 161)  Seattle, WA, August 16, 2018.

In this Section 10(k) jurisdictional dispute proceeding, the Board awarded the work in dispute to employees represented by Washington and Northern Idaho District Council of Laborers, based on the factors of employer preference, current assignment, and past practice; relative skills; industry and area practice; and economy and efficiency of operations.

Charge filed by Skanska USA Building, Inc.  Chairman Ring and Members Pearce and Kaplan participated.

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Advanced Masonry Associates, LLC d/b/a Advanced Masonry Systems  (12-CA-221114; 366 NLRB No. 164)  Sarasota, FL, August 17, 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 Bricklayers and Allied Craftworkers, Local 8 Southeast.  Members Pearce, McFerran, and Kaplan participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

The Arc of South Norfolk  (01-RC-213174)  Westwood, MA, August 15, 2018.  The Board (Chairman Ring and Member Kaplan; Member Pearce, dissenting in part) granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised substantial issues warranting review of whether the Employer’s Program Coordinators possess the supervisory authority to assign or responsibly direct employees.  Member Pearce would have denied review.  Petitioner—American Federation of State, County & Municipal Employees, Council 93.  Chairman Ring and Members Pearce and Kaplan participated.

FP Holdings, L.P., d/b/a Palms Casino Resort  (28-RC-217964)  Las Vegas, NV, August 16, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and Certification of Representative as it raised no substantial issues warranting review.  The Regional Director found that the petitioned-for unit currently employed a substantial and representative complement of employees.  Petitioner—Local Joint Executive Board of Las Vegas a/w UNITE HERE International Union.  Chairman Ring and Members McFerran and Kaplan participated.

C Cases

Cordua Restaurants, Inc.  (16-CA-160901, et al.)  Houston, TX, August 15, 2018.  The Board (Chairman Ring and Members Kaplan and Emanuel; Members Pearce and McFerran, dissenting) sua sponte vacated its April 26, 2018 Decision and Order reported at 366 NLRB No. 72, in which it found certain unfair labor practices and severed and held in abeyance other unfair labor practice allegations.  A petition for review was filed in the United States Court of Appeals for the Fifth Circuit, but the administrative record had not been filed with the court.  In view of the Supreme Court’s intervening decision in Epic Systems Corp. v. Lewis,  138 S. Ct. 1612 (2018), the Board decided to vacate its prior decision, reconsolidate those allegations with the severed allegations, and reconsider the entire proceeding.  Dissenting, Members Pearce and McFerran, found that Epic Systems does not warrant reopening the previously decided issues in this proceeding.  They found that Epic Systems pertained to the employer’s maintenance of an arbitration agreement barring employees from bringing a collective action, whereas in this case the Board found that the Respondent unlawfully discharged an employee in response to his filing of a collective wage-and-hour lawsuit against it, which is protected concerted activity.  Charges filed by individuals.  Chairman Ring and Members Pearce, McFerran, Kaplan, and Emanuel participated.

Ingredion, Inc. d/b/a Penford Products Co.  (18-CA-160654 and 18-CA-170682)  Cedar Rapids, IA, August 16, 2018.  The Board denied Respondent’s Motion to Reopen the Record as Respondent did not show extraordinary circumstances that would justify admitting the evidence or that the evidence, if admitted, would require a different result.  The evidence is potentially relevant only to the remedial order and the Board defers such issues to compliance.  Member Emanuel agreed to deny the Respondent’s motion but again noted his view that a notice-reading requirement was not warranted.  Charges filed by BCTGM Local 100G, a/w Bakery, Confectionery, Tobacco Workers, and Grain Millers International Union, AFL-CIO.  Members Pearce, McFerran, and Emanuel participated.

Oncor Electric Delivery, LLC  (16-CA-212174)  Dallas, TX, August 16, 2018.  The Board denied the Respondent’s Motion for Summary Judgment, finding 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 International Brotherhood of Electrical Workers, Local No. 69.  Chairman Ring and Members McFerran and Kaplan participated.

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Appellate Court Decisions

CC 1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers, Board Case No. 24-CA-011035 et al. (reported at 362 NLRB No. 125) (D.C. Cir. decided August 3, 2018)

In a published opinion, the Court (Circuit Judge Griffith, joined by Circuit Judges Rogers and Srinivasan) upheld the Board’s finding that the Employer violated Section 8(a)(3) and (1) by discharging a shop steward, purportedly for encouraging an unlawful work stoppage.  Relying heavily on the Administrative Law Judge’s Board-adopted credibility findings, the Court found substantial evidence to support the Board’s finding that the steward had not encouraged anyone to stop working.  Nor, the Court found, did the Employer establish that it had a reasonable belief that the steward had done so.

The Court, however, remanded with respect to the Board’s finding that the Employer unlawfully discharged several other employees for participating in a wildcat strike that the Board had found to be protected by Section 7.  The Court stated that it could not “determine if the Board based its decision on a reasonably defensible interpretation of the NLRA,” because it did not know how the Board reached its conclusion that the strike was protected.  The Court demanded further Board explanation as to whether the strike undermined the Union’s position and was therefore unprotected.  More specifically, the Court required the Board to further address the import of a Union letter—sent to the Employer and then distributed by the Employer to the strikers—that disavowed the strike as a move by “false leaders.”

The Court rejected the Employer’s attempt to challenge the portion of the Board’s order compensating unlawfully discharged employees for the tax consequences of the backpay award.  The Court explained that the Employer had failed to raise that argument before the Board, and Section 10(e) provides that “[n]o objection that has not been urged before the Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”  The Court found that nothing in the case’s long and unusual procedural history established extraordinary circumstances that would permit the Board to consider its challenge, and further emphasized that the Employer did not offer an excuse for failing to move for Board reconsideration.

The Court’s decision is here.

Capital Medical Center, Board Case No. 19-CA-105724 (reported at 364 NLRB No. 69) (D.C. Cir. decided August 10, 2018)

In a published opinion, the Court enforced the Board’s order issued against this acute care hospital located in Olympia, Washington, for violating Section 8(a)(1) by attempting to prevent its off-duty technical employees from picketing near the hospital entrance, threatening them with discipline and arrest for engaging in such picketing, and summoning the police to the scene.

At the time, the hospital and the employees’ representative, United Food & Commercial Workers Local 21, were negotiating for a successor contract, and the Union had provided notice that it planned to hold an informational picket.  That day, two off-duty employees distributed handbills at two non-emergency entrances, while 50 to 60 employees picketed on the public sidewalk adjacent to the hospital driveway.  Later, two picketers moved over to the main lobby entrance and stood there holding picket signs that read “Respect Our Care” and “Fair Contract Now.”  Shortly thereafter, the hospital security personnel arrived and told them that they could not stand on hospital property with picket signs.  After several requests that the picketers leave, which the picketers declined, they were told they would be disciplined if they didn’t leave.  Later, hospital management decided against discipline and instead told the picketers that the police would be called.  When the picketers again declined to leave, the hospital summoned the police.

The Board (Chairman Pearce and Member Hirozawa; Member Miscimarra, dissenting) found the hospital’s threats and summoning of the police were unlawful.  In doing so, the Board balanced the off-duty employees’ right to engage in protected activity against the hospital’s property and business rights, as set forth in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), and its progeny.  Specifically, the Board applied a modified version of Republic Aviation given the hospital setting, as called for by NLRB v. Baptist Hospital, 442 U.S. 773 (1979), and Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978).  Under that framework, the Board determined that the hospital could prohibit its off-duty employees from picketing on its property only if it demonstrated that the prohibition was necessary to prevent patient disturbance or disruption of health care operations.  The Board concluded that the hospital had not made that showing.

On review, the Court held that the Board’s interpretation of Section 7 in this context was reasonable and worthy of deference because “the Board’s approach permissibly balances employees’ rights to organize against an employer’s interests in controlling its property.”  The Court rejected the hospital’s arguments, including its contention that Republic Aviation was inapplicable because picketing on employer property was inherently more disruptive than handbilling.  The Court explained that “the Board was not compelled to adopt a categorical rule that picketing of any kind—including the stationary, nonobstructive holding of a picket sign at issue here—is necessarily more disruptive, and less entitled to the NLRA’s protections, than distribution of union literature.”  The Court then upheld the Board’s rejection of the Employer’s defense on this record, holding there was no evidence of likely disruption or disturbance.

The Court’s opinion is here.

Samsung Electronics America, Inc. Samsung Telecommunications America, LLC, Board Case No. 12-CA-145083 (reported at 363 NLRB No. 105) (11th Cir. decided July 31, 2018)

In an unpublished opinion, the Court denied enforcement of the Board’s order issued against this nationwide distributor and seller of electronic devices.  Since 2013, the Employer has required new employees, as a condition of employment, to sign an agreement that requires that all work-related claims be arbitrated and states that “there will be no right or authority for any dispute to be brought, heard or arbitrated as a class action … or in a representative capacity on behalf of a class of persons or the general public.”  In 2014, a field sales manager spoke to coworkers about whether they were adequately being paid overtime and whether they would join a lawsuit to that effect.  Subsequently, a human resources official telephoned that individual, saying that a coworker felt uncomfortable about the conversation and stating that she should contact her directly with concerns.  After a second coworker contacted human resources with a similar complaint, the official sent the individual an email asking whether anything had changed since their conversation and reiterating that she should contact her directly with concerns.  A month later, the individual filed a class-action FLSA lawsuit alleging that the Employer failed to properly pay overtime wages, which several employees joined. The Employer then filed a motion to dismiss and compel arbitration.

The Board (then-Chairman Pearce and Members Hirozawa and McFerran), applying its decisions in D.R. Horton, Inc., 357 NLRB 2277 (2012), enforcement denied in relevant part, 737 F.3d 344 (5th Cir. 2013), and Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), enforcement denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), affirmed sub nom. Epic Systems Corp., 138 S. Ct. 1612 (2018), found that the Employer violated Section 8(a)(1) by maintaining and enforcing the arbitration agreement.  Further, the Board found that the Employer unlawfully interrogated the individual about her protected concerted activity on two occasions, but dismissed an allegation that the Employer had unlawfully instructed her to refrain from discussing her lawsuit with other employees.

Both the hospital and the individual filed petitions for review.  After briefing and oral argument, in May 2018, the Supreme Court issued Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which affirmed the Fifth Circuit’s Murphy Oil decision.  The Court then instructed the parties to file supplemental letter briefs regarding the effect of Epic Systems.  The Board filed a response which, among other things, asked the Court, in light of Epic Systems, to summarily grant the Employer’s petition for review regarding the Section 8(a)(1) violation for maintaining and enforcing the arbitration agreement.

The Court granted the Employer’s petition for review and reversed the Board’s findings that the Employer’s maintenance and enforcement of the arbitration agreement was unlawful, as the Board had requested.  The Court also reversed the Board’s unlawful-interrogation finding, holding that it “rests on the legal premise that the interrogation interfered with [the individual’s] exercise of a § 7 right,” which the Court held forfeited under Epic Systems because she signed the arbitration agreement.  Finally, the Court denied the employee’s petition for review on the basis that substantial evidence supported the Board’s dismissal of the allegation that she had been instructed not to talk with coworkers about the lawsuit.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Legacy Charter, LLC d/b/a Legacy Traditional School  (28-CA-201248; JD(SF)-22-18)  Gilbert, AZ.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on August 16, 2018.  Charge filed by an individual.

Sysco Columbia, LLC  (10-CA-197586, et al.; JD-51-18)  Columbia, SC.  Administrative Law Judge Ira Sandron issued his decision on August 16, 2018.  Charges filed by International Brotherhood of Teamsters Local Union 509.

Sears, Roebuck and Co.  (13-CA-191829; JD-52-18)  Chicago Ridge, IL.  Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on August 17, 2018.  Charge filed by Local 881 United Food and Commercial Workers.

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