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Summary of NLRB Decisions for Week of December 26 - 29, 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

No Published Decisions Issued


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued

C Cases

Kapstone Paper and Packaging Corporation  (19-CA-188182)  Longview, WA, December 27, 2017.  No exceptions having been filed to the November 8, 2017 decision of Administrative Law Judge Mara-Louise Anzalone’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 Association of Western Pulp and Paper Workers Local 153, affiliated with the United Brotherhood of Carpenters and Joiners of America.

Baylor University Medical Center  (16-CA-195335)  Dallas, TX, December 27, 2017.  The Board denied the Respondent’s Motion for Summary Judgment, finding that the Respondent had failed to establish there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  While Chairman Kaplan and Member Emanuel agreed that there were genuine issues of material fact warranting a hearing,  they noted their belief that, to the extent not already permitted under Board precedent, the legality of confidential severance agreements for former employees should be reconsidered.  Charge filed by an individual.  Chairman Kaplan and Members McFerran and Emanuel participated.

Benedictine Health Center, Benedictine Sisters Benevolent Association, Benedictine Health Services, and St. Scholastica Monastery, as a single employer  (18-CA-196456)  Duluth, MN, December 27, 2017.  The Board denied the Petition to Revoke an investigative subpoena duces tecum filed by Benedictine Sisters Benevolent Association and the Joint Petition to Revoke and/or Quash investigative subpoenas duces tecum filed by Benedictine Health Center and Benedictine Health Services, as the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Petitioners failed to establish any other legal basis for revoking the subpoenas.  The Board evaluated the subpoenas in light of the Region’s clarifications and limitations, and noted that the order was without prejudice to the Petitioners’ submission of a privilege log regarding documents they believe in good faith to be subject to attorney-client privilege or the attorney work product doctrine.  Charge filed by AFSCME Council 5.  Members Pearce, McFerran, and Emanuel participated.

JKJ Workforce Agency, Inc.  (01-CA-129948, et al.)  Upton, ME, December 28, 2017.  The Board approved a formal settlement stipulation between 34 Respondents, the Charging Party, and the General Counsel, and specified actions the Respondents must take to comply with the Act.  The Respondents admitted that sufficient facts exist to warrant Board findings of specified unfair labor practices, and the parties agreed that the amounts of backpay due, if any, will be determined in a compliance proceeding.  The Board found that approval of the settlement would effectuate the purposes of the Act in the extraordinary circumstances of this case, as well as the fact that earlier informal settlements relating to the issues in the cases settled here contained provisions that would normally be included in, but are absent from, this formal settlement stipulation.  Charges filed by Comite de Apoyo a Los Trabajadores Agricolas.  Members Pearce, McFerran, and Emanuel participated.


Appellate Court Decisions

Rush University Medical Center, Board Case No. 13-CA-152806 (reported at 362 NLRB No. 163) (D.C. Cir. decided December 20, 2017)

In an unpublished judgment, the Court enforced the Board’s technical 8(a)(5) bargaining order.  The Employer, an acute-care hospital, refused to bargain after its previously unrepresented warehouse supply-chain tech employees and operating-room tech employees voted in separate self-determination elections to join an existing unit of nonprofessionals.  The Board found that refusal violated Section 8(a)(5) and (1).  The Court enforced the Board’s order, explaining as follows:

Last year, this court held that the NLRB’s decision in St. Vincent Charity Medical Center, 357 N.L.R.B. No. 79 (August 26, 2011), which allowed nonconforming units to expand via an Armour-Globe election without becoming a standardized unit, was “fully consistent with” the Board’s Health Care Rule. Rush University Medical Center v. National Labor Relations Board, 833 F.3d 202, 207 (D.C. Cir. 2016) (internal quotation marks omitted). Now, the same hospital argues that the NLRB did not adequately respond to its argument that this interpretation of the

Rule improperly allows unions to hold a series of allegedly disruptive elections. But, as the Regional Director explained in his opinion, the Board does not interpret the Health Care Rule to apply to an Armour-Globe election. See Crittenton Hospital, 328 N.L.R.B. No. 120, at 880 (June 30, 1999) (“By its own terms, the Rule applies only to initial organizing attempts or, where there are existing nonconforming units, to a petition for a new unit of previously unrepresented employees, which would be an addition to the existing units at the Employer’s facility.”); St. Vincent, 357 N.L.R.B. No. 79, at 855 (explaining that the Health Care Rule was promulgated “to avoid undue proliferation of bargaining units,” and that “[a]n Armour-Globe self-determination election . . . undeniably avoids any proliferation of units, much less undue proliferation, because it does not result in the creation of an election in a separate, additional unit”). Having permissibly held that the Health Care Rule is concerned only with disruption caused by unit proliferation, the Board may follow that precedent without elaborate explanation of why some other sort of disruption does not implicate the Rule. See WLOS TV, Inc. v. Federal Communications Commission, 932 F.2d 993, 995 (D.C. Cir. 1991) (Where “an agency merely implements prior policy, an explanation that allows this court to discern the agency’s path will suffice.” (internal quotation marks omitted)).

The Circuit Court’s judgment may be found here.

IATSE Local 720, Board Case No. 28-CB-131044 (reported at 362 NLRB No. 148) (9th Cir. decided December 18, 2017)

In an unpublished memorandum decision, the Court enforced the Board’s order requiring the Respondent Union, which operates an exclusive hiring hall, to provide two members with referral information they had requested based on a reasonable belief that the Union was discriminating against them in operating the hall.  The Court found that substantial evidence supported the Board’s finding that the Union operated an exclusive hiring hall, and agreed with the Board’s rejection of the Union’s various defenses, including its contention that the charge was time-barred and its assertion that disclosure would infringe the associational or privacy rights of the Union or its members.

The Court’s decision may be found here.

Remington Lodging & Hospitality, LLC, d/b/a The Sheraton Anchorage, Board Case No. 19-CA-032735 (reported at 363 NLRB No. 6) (9th Cir. decided December 28, 2017)

In an unpublished memorandum, the Court enforced the Board’s order in full.  The Board found that the Hotel-Employer committed numerous unfair labor practices, only a few of which the Hotel challenged on appeal.  The Court summarily enforced the Board’s order with respect to the uncontested violations, and found that substantial evidence supported the Board’s disputed findings that the Hotel unlawfully discharged two employees for engaging in union activity and/or participation in Board proceedings, and that it violated § 8(a)(5) by scheduling employees in the engineering and maintenance departments without regard to seniority.

The Court’s decision may be found here.

Remington Lodging & Hospitality, LLC, d/b/a The Sheraton Anchorage, Board Case No. 19-CA-032148 (reported at 362 NLRB No. 123) (9th Cir. decided under the name Unite Here! Local 878 v. NLRB)

In an unpublished memorandum, the Court enforced the Board’s order in full and denied the Petition for Review filed by the Charging-Party Union.  The Hotel contested only a few of the numerous unfair labor practices found by the Board, and the Court enforced the order with respect to both the uncontested and contested findings.  Specifically, the Court upheld the Board’s findings that the Hotel’s unilateral changes in working conditions were unlawful, notwithstanding an impasse in negotiations, because the Hotel had failed to give the Federal Mediation and Conciliation Service timely notice of its intent to modify the parties’ collective bargaining agreement; that later unilateral changes to health benefits were unlawful because the impasse had been broken at the time of the changes; that the Hotel unlawfully discharged four employees for distributing literature in exterior areas found by the Board and the Court to be non-working areas, despite some incidental work performed there by bellmen, valets, and security personnel; and that the Hotel unlawfully withdrew recognition from the Union based on a decertification petition that was tainted by Hotel coercion in obtaining signatures.  Denying the Union’s Petition for Review, the Court found that it could not consider the Union’s challenge to the Board’s modification of the Administrative Law Judge’s proposed remedy because the Union had not made its arguments to the Board in the first instance.

The Court’s decision may be found here.


Administrative Law Judge Decisions

International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, AFL-CIO, CLC, Local 99 (various employers)  (27-CB-193546; JD(SF)-56-17)  Salt Lake City, UT.  Administrative Law Judge John T. Giannopoulos issued his decision on December 26, 2017.  Charge filed by an individual.

Hard Hat Services, LLC  (04-CA-196783; JD-93-17)  Norristown, PA.  Administrative Law Judge Robert A. Giannasi issued his decision on December 27, 2017.  Charge filed by International Brotherhood of Electrical Workers, Local Union No. 98.

Bodega Latina Corporation d/b/a El Super  (21-CA-183276; JD(SF)-55-17)  Anaheim, CA.  Administrative Law Judge Gerald M. Etchingham issued his decision on December 29, 2017.  Charge filed by United Food and Commercial Workers Union, Local 324.


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