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Summary of NLRB Decisions for Week of February 20 - 23, 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

Poudre Valley Rural Electric Association, Inc.  (27-CA-167119; 366 NLRB No. 21)  Fort Collins, CO, February 20, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with bargaining unit employees’ names, home addresses, and home telephone numbers.

Charge filed by International Brotherhood of Electrical Workers, Local 111, AFL–CIO. Administrative Law Judge Gerald M. Etchingham issued his decision on February 27, 2017.  Chairman Kaplan and Members Pearce and Emanuel participated.


International Longshoremen’s Association, Local 28 (Ceres Gulf, Inc.)  (16-CB-181716 and 16-CB-194603; 366 NLRB No. 20)  Houston, TX, February 20, 2018.

The Board vacated the Administrative Law Judge’s decision and remanded to the Chief Administrative Law Judge for reassignment to a different judge for a hearing de novo.  An individual Charging Party had alleged that the Respondent Union violated its duty of fair representation by taking adverse action against her on the basis of her sex.  The judge dismissed the case, primarily because he discredited the individual’s testimony.  The Board found that the judge erred by relying in part on improper bases in making his credibility determinations and had so intertwined those bases with other legitimate considerations that a new hearing with a different judge was warranted.

Charges filed by an individual.  Administrative Law Judge Robert A. Ringler issued his decision on June 13, 2017.  Chairman Kaplan and Members Pearce and Emanuel participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued

C Cases

Pittsburgh Athletic Association  (06-CA-192273)  Pittsburgh, PA, February 22, 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) and (1) violations by failing to remit to the Union dues and fees deducted from unit employees’ wages and failing and refusing to bargain with the Union over this conduct and/or the effects of this conduct.  Charge filed by UNITE HERE Local 57, AFL-CIO, CLC.  Chairman Kaplan and Members Pearce and McFerran participated.


Appellate Court Decisions

Aerotek, Inc., Board Case No.17-CA-071193 (reported at 365 NLRB No. 2) (8th Cir. decided February 21, 2017)

In a published opinion, the Court upheld the Board’s unfair labor practice findings, but remanded in part to the Board for reconsideration of the remedy.  The Board’s order issued against this staffing agency with an office in Omaha, Nebraska, where it recruits and hires employees for other companies in a variety of trades, including electricians, for both temporary and direct-placement positions.  In August 2011, as part of a salting campaign, four members of IBEW Local 22 applied for employment and stated their intent to organize the workplace if hired.  The staffing agency bypassed the four union members and did not refer them to electrician jobs while hiring others who had not listed their status as union organizers on their resumes or applications or otherwise reveal their union affiliation.  Additionally, several hired employees asked for raises after learning others were paid more, and the staffing agency responded by telling them to keep their wages confidential and not discuss them with other employees.

The Board (then-Chairman Pearce and Members Miscimarra and McFerran), applying Toering Electric Co., 351 NLRB 225 (2007), and FES, 331 NLRB 9 (2000), enforced, 301 F.3d 83 (3d Cir. 2002), found that the staffing agency violated Section 8(a)(3) and (1) by refusing to hire or consider the four applicants based on their stated intention to organize the workplace.  The Board also found that the staffing agency violated Section 8(a)(1) by telling employees that their wages were confidential and not to be discussed with others.  In ordering the remedy, the Board panel unanimously agreed that the staffing agency was required to offer employment to three applicants.  Based on the views of the panel majority (Member Miscimarra, dissenting), the Board ordered that the fourth applicant be offered employment, rejecting the contention that he was “unfit for service” after engaging in competitive misconduct when he contacted another employer about hiring directly from the union.  Further, with Member Miscimarra dissenting, the order required that remedial language be added on all job applications and advertisements for relevant positions in the Omaha region for a period of six months.

On review, the Court upheld the Board’s finding that the staffing agency unlawfully refused to hire or consider the four applicants.  In so doing, the Court rejected challenges to the genuineness of the union members’ applications, and noted that the staffing agency, despite a novel argument to the contrary, had conceded that it was in fact hiring, and that union animus was a motivating factor in its decisions not to hire.  Further, the Court rejected the argument that the staffing agency had, instead, passed over one of the four applicants for making salary demands.  Given that the staffing agency did not contest the Board’s unlawful-rule finding, the Court summarily enforced that portion of the order.

Finally, in addressing the staffing agency’s challenges to the Board’s remedy for the fourth applicant, the Court held that “full backpay and instatement for [him] is unwarranted under the Board’s ‘unfit for further service standard,’” because the case did not fit squarely into that or any other remedial precedent.  Thus, the Court enforced the Board’s order in all but one respect, “remand[ing] narrowly for reconsideration of that portion of the remedy.”

The Court’s opinion is here.


Administrative Law Judge Decisions

Matson Terminals, Inc.  (20-CA-178312; JD(SF)-03-18)  Honolulu, HI.  Administrative Law Judge Amita Baman Tracy issued her decision on February 20, 2018.  Charge filed by Hawaii Teamsters & Allied Workers Union, Local 996.

SL Green Realty Corp. and First Quality Maintenance, as Joint Employers  (02-CA-171515; JD(NY)-05-18)  New York, NY.  Administrative Law Judge Mindy E. Landow issued her decision on February 22, 2018.  Charge filed by Service Employees International Union, Local 32BJ.


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