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Summary of NLRB Decisions for Week of December 18 - 22, 2017

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

The Trustees of Columbia University in the City of New York  (02-RC-143012; 365 NLRB No. 136)  New York, NY, December 16, 2017.

The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting), adopted the Hearing Officer’s findings and recommendations to overrule the Employer’s objections to the results of the election in their entirety and to issue a certification of representative.  The election, held over two days at multiple campus locations, resulted in 1602 votes for and 623 votes against the Petitioner, with 647 challenged ballots, an insufficient number to affect the results.  Regarding the Employer’s voter identification objection, the majority concluded that the election results should not be set aside.  Although the voter identification procedures that the Region employed during polling were not optimal, any irregularities affected just four ballots at most.  In these circumstances, where the election covered a unit of over 4,000 eligible voters and the Petitioner won by a 979-vote margin, there was no reasonable doubt as to the fairness and validity of the election.

In dissent, Chairman Miscimarra concluded that, while most of the Employer’s objections should be overruled, its objection to the Region’s handling of voter identification before and during the election warranted setting aside the election results and ordering a new election.  Specifically, he noted that on the day before the election, the Region informed the parties that voter identification would not be required during the election because “the presentation of identification was not included in either the Supplemental Decision or Notice of Election.”  The parties had previously agreed to require identification during polling.  Further, during the voting, different Board agents and polling sites handled voter identification procedures inconsistently, sometimes permitting election observers to request but not require identification, and sometimes prohibiting observers from even requesting proof of identification from voters.  Chairman Miscimarra concluded that the foregoing procedural irregularities created a “reasonable doubt as to the fairness and validity of the election.”

Petitioner – Graduate Workers of Columbia-GWU, UAW.  Chairman Miscimarra and Members Pearce and McFerran participated.

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General Drivers, Warehousemen & Helpers Local Union No. 89 (Affiliated with the International Brotherhood of Teamsters)(Jack Cooper Holdings d/b/a Jack Cooper Transport Co.)  (09-CB-157269; 365 NLRB No. 115)  Kansas City, MO and Louisville, KY, December 15, 2017.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(b)(3) by refusing to provide relevant information and delaying in providing responses to the Employer’s information requests.

Charge filed by Jack Cooper Holdings d/b/a Jack Cooper Transport Co.  Administrative Law Judge Donna N. Dawson issued her decision on February 6, 2017.  Chairman Miscimarra and Members Pearce and McFerran participated.

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AM Property Holding Corp., Maiden 80/90 NY LLC, and Media Technology Centers, LLC, a single employer, a joint employer with Planned Building Services, Inc.  (02-CA-033146, et al.; 365 NLRB No. 162)  New York, NY, December 15, 2017.

The Board, on remand from the U. S. Court of Appeals for the Second Circuit, found that the issue of whether Respondent Planned Building Services (PBS) was an individual successor employer and consequently violated Section 8(a)(5) and (1) by failing to bargain with the Charging Party Union for the unit of PBS employees at 80-90 Maiden Lane, New York, could be decided on the Board’s present record consistent with due process, without remanding the case to the Administrative Law Judge for further fact-finding.  Members Pearce and McFerran, with Chairman Miscimarra dissenting, found that the issue of individual successorship was closely connected to the subject matter of the complaint and was fully and fairly litigated at the underlying hearing.  The majority found that, although the General Counsel had alleged that PBS and the other Respondent Employer were joint successors, the issue of PBS’s single successorship was “in all practical terms identical,” requiring a determination of whether there was “substantial continuity” between the predecessor and successor businesses from the perspective of the employees; and that all the evidence necessary to make that determination was, and should have been, presented at that hearing.  The same majority, applying these criteria, found that PBS was a single successor, that the unit of PBS employees at 80-90 Maiden Lane remained an appropriate bargaining unit, and that PBS violated Section 8(a)(5) and (1) by failing to recognize and bargain with the Union.  The Board’s remedial order included a corporatewide posting requirement of its remedial notice in view of PBS’s “clear pattern and practice of unlawful conduct and the likelihood that PBS would commit unlawful actions at its other facilities against other employees,” established in previous Board cases.  Chairman Miscimarra, in dissent, would have found that PBS was entitled to a remand of the case, as a matter of due process, for further fact-finding on its status as a successor.

Charges filed by Local 32BJ, Service Employees International Union.  Administrative Law Judge Steven Davis issued his decision on May 13, 2003.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Jack Cooper Holdings Corp. d/b/a Jack Cooper Transport Company, Inc.  (09-CA-150482, et al.; 365 NLRB No. 163)  Louisville, KY, December 15, 2017.

This request-for-information case involved two sets of allegations:  (1) Case 09-CA-150482, in which the Administrative Law Judge found that the Employer unlawfully failed to provide information requested by the Union in February and March of 2015, and (2) Cases 09-CA-100184 and 09-CA-101258, which involved allegations that the Employer delayed and failed to provide information in 2013.  The 2013 cases were initially resolved when the parties entered into an informal settlement agreement.  In February 2016, after issuance of the judge’s decision in Case 09-CA-150482, the Regional Director set aside the settlement agreement and issued a consolidated complaint reviving the 2013 allegations.  The Board majority (Members Pearce and McFerran; Chairman Miscimarra dissenting) granted the General Counsel’s Motion to Consolidate, rejected the Employer’s request to defer the case to arbitration, and adopted the judge’s findings in the 2015 case.  Regarding the 2013 allegations, the majority granted default judgment for the General Counsel against two of the named Employers in that case, but not against the third because the third was not named in the 2015 complaint.

In dissent, Chairman Miscimarra disagreed with the Board’s longstanding policy of not deferring information request cases, and, therefore, he would have remanded the case to the judge to determine whether deferral is appropriate.  Because he would remand as to whether deferral is appropriate, he did not reach the issue of whether the 2013 settlement agreement should be set aside.

Charges filed by the International Brotherhood of Teamsters, General Drivers, Warehousemen & Helpers Local Union No. 89 (IBT).  Administrative Law Judge Melissa M. Olivero issued her decision on January 27, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Kaiser Foundation Hospitals and The Permanente Medical Group, Inc.  (20-CA-202742; 365 NLRB No. 167)  Northern CA, December 16, 2017.

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.  Although Chairman Miscimarra dissented in the underlying representation proceeding, he agreed with his colleagues that granting summary judgment was appropriate, because the Respondent had not raised any new matters that were properly litigable in this unfair labor practice proceeding.

Charge filed by California Nurses Association.  Chairman Miscimarra and Members Pearce and McFerran participated.

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UNITE HERE! Local 5 (Aqua-Aston Hospitality, LLC d/b/a Waikiki Beach Hotel and Hotel Renew)  (20-CB-163657, et al.; 365 NLRB 169)  Honolulu, HI, December 16, 2017.

The Board (Chairman Miscimarra and Member McFerran; Member Pearce, dissenting) adopted the Administrative Law Judges’ conclusions that the Respondent Union violated Section 8(b)(1)(A) by picketing in the front driveway of the Employer’s hotel, effectively blocking the ingress and egress both of the Employer’s valet employees and of others while in their presence. In dissent, Member Pearce would have found that the Respondent’s conduct was not sufficiently coercive to violate the Act.

Charges filed by Aqua-Aston Hospitality, LLC d/b/a Waikiki Beach Hotel and Hotel Renew.  Administrative Law Judges Lisa D. Thompson and Jeffrey D. Wedekind issued their decisions on January 18, 2017, and January 27, 2017, respectively.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Smoke House Restaurant, Inc.  (31-CA-026240, et al.; 365 NLRB No. 166)  Burbank, CA, December 15, 2017.

In this compliance proceeding, the Board (Chairman Miscimarra and Member Kaplan; Member McFerran, dissenting) adopted, with modifications, the Administrative Law Judge's supplemental decision setting forth the amounts the Respondent owed its employees as a result of its failure to maintain the health benefits provided for in the collective-bargaining agreement between its predecessor and the Union, which the Board found the Respondent unlawfully failed to maintain in the underlying unfair labor practice proceeding (347 NLRB 192 (2006), enfd. mem. 325 Fed. Appx. 577 (9th Cir. 2009)).  Contrary to the dissent, the majority found that the Board was without jurisdiction to require the Respondent to reimburse the Union’s health and welfare fund because the underlying order, which did not provide for reimbursements to the fund, had been enforced by the Court of Appeals.  Dissenting, Member McFerran found that the underlying order to retroactively restore the terms and conditions of employment provided for under the collective-bargaining agreement and make the employees whole included the obligation to reimburse the fund.

Charges filed by Hotel Employees and Restaurant Employees Union, Local 11, AFL–CIO. Administrative Law Judge John J. McCarrick issued his supplemental decision on February 26, 2013.  Chairman Miscimarra and Members McFerran and Kaplan participated.

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Taylor Ridge Paving and Construction Co.  (25-CA-135372; 365 NLRB No. 168)  Taylor Ridge, IL, December 16, 2017.

The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) when it repudiated its Section 8(f) contracts with Local Union No. 309, Laborers’ International Union of North America.  The majority found that by signing a contract with the Union and a Memorandum of Agreement with the Great Plains District Council, the Respondent was bound to the Successor Agreement between the Union and the Associated Contractors of the Quad Cities.  Subsequent repudiation was therefore unlawful.  The majority also found that the charge was timely filed.

Dissenting, Chairman Miscimarra found that the Memorandum of Agreement failed to bind the Respondent to the Successor Agreement and that the repudiation of the Section 8(f) contracts was lawful.  Further, Chairman Miscimarra found that the charge was untimely because clear notice of repudiation was received more than six months prior to the filing of the charge.

Charge filed by Local Union No. 309, Laborers’ International Union of North America.  Administrative Law Judge Melissa M. Olivero issued her decision on September 21, 2015.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Cayuga Medical Center at Ithaca, Inc.  (03-CA-156375, et al.; 365 NLRB No. 170)  Ithaca, NY, December 16, 2017.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by discriminatorily directing employees to stop distributing and posting union literature; removing and confiscating posted or distributed union literature; informing employees not to discuss their salaries or wages; interrogating employees about their union activities; threatening employees with reprisals if they did not cease their union activities; threatening employees with reprisals, including job loss, in retaliation for their participation in protected concerted activities; disciplining employees for engaging in protected concerted activities; and disciplining, demoting, and issuing employees adverse performance evaluations in retaliation for their union and other protected concerted activities. The Board also found that the Respondent violated Section 8(a)(1) by applying its work rules to restrict Section 7 activity.  The Board severed allegations that the Respondent unlawfully maintained certain facially neutral work rules for further consideration.

The Board majority (Members Pearce and McFerran) adopted the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by soliciting employees to report coworkers if they felt harassed by the union organizing campaign.  The majority also found that a notice-reading was appropriate in this case.

Member Pearce found the Respondent’s disciplinary actions towards one discriminatee were in retaliation for engaging in protected concerted activity, in addition to union activity.

Chairman Miscimarra dissented from the finding that the Respondent violated Section 8(a)(3) and (1) by soliciting employees to report if they felt harassed.  He also disagreed with the majority’s decision to order rescission of the unlawfully applied rules and to order notice reading.

Charges filed by 1199 SEIU United Healthcare Workers East.  Administrative Law Judge David I. Goldman issued his decision on October 28, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

ADT Security Services  (18-RD-206831)  Shoreview, MN, December 20, 2017.  The Board denied the Petitioner’s Request for Review of the Regional Director’s determination to hold the decertification petition in abeyance as it raised no substantial issues warranting review.  Members Kaplan and Emanuel agreed with the decision to deny review here, but noted that they would consider revisiting the Board’s blocking charge policy in a future appropriate case.  Petitioner – an individual.  Union – IBEW Local 110.  Members McFerran, Kaplan, and Emanuel participated.

C Cases

Local 150, International Union of Operating Engineers (IUOE), AFL-CIO (MacAllister Machinery Co., Inc.)  (07-CB-177422)  Niles, MI, December 19, 2017.  No exceptions having been filed to the November 3, 2017 decision of Administrative Law Judge Robert A. Ringler’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 an individual.

E.W. Howell Co., LLC  (29-CA-195626)  Plainview, NY, December 20, 2017.  The Board unanimously denied the Employer’s Petition to Revoke an investigative subpoena duces tecum and subpoena ad testificandum as the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoenas.  The Board, in considering the petition, evaluated the subpoena duces tecum in light of the Region’s subsequent narrowing of the scope of the subpoena.  Charge filed by the United Brotherhood of Carpenters and Joiners of America, Northeast Regional Council of Carpenters.  Members Pearce, McFerran, and Emanuel participated.

KMAC, Inc.  (18-CA-185912)  Hutchinson, MN, December 22, 2017.  The Board denied KMAC, 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 KMAC failed to establish any other legal basis for revoking the subpoena.  The Board evaluated the subpoena in light of the Region’s clarifications and limitations, and held that with respect to requested information not in the Petitioner’s possession, the subpoena compels the Petitioner to seek such information from its subcontractors, if necessary.  Charge filed by Construction and General Laborers Local 563.  Members Pearce, McFerran, and Emanuel participated.

Teamsters Local 456, International Brotherhood of Teamsters  (02-CP-189159, 02-CP-190239, and 02-CC-190242)  Bronx, NY, December 22, 2017.  In this case alleging Section 8(b)(7)(A) and (C), and 8(b)(4)(i and ii)(B) violations, the Board, over the Charging Party Employer’s objections, approved a formal settlement stipulation between the Respondent Union and the General Counsel, and specified actions the Respondent must take to comply with the Act.  In concluding that approval of the stipulation would effectuate the purposes and policies of the Act, the Board considered that the stipulation fully remedies all of the substantive complaint allegations and provides for the entry of Board and court orders.  The stipulation also provides an enhanced remedy—a 15-day hiatus from engaging in lawful activity related to the labor dispute—that goes beyond the standard Board remedy.  Charges filed by Titan Concrete, Inc.  Members Pearce, 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

James Mulligan Printing Company (14-CA-201194 and 14-CA-204833; JD-101-17) St. Louis, MO.  Errata issued on December 18, 2017 to the December 15, 2017 decision of Administrative Law Judge Melissa M. Olivero.  Charges filed by Graphic Communications Conference International Brotherhood of Teamsters, Local 6-505M.  Errata   Amended Decision.

St. Paul Park Refining Co., LLC, d/b/a Western Refining  (18-CA-187896 and 18-CA-192436; JD-102-17)  St. Paul Park, MN.  Administrative Law Judge Charles J. Muhl issued his decision on December 20, 2017.  Charges filed by an individual.

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