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Summary of NLRB Decisions for Week of February 26 - March 2, 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

Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., as a single employer and/or joint employers  (25-CA-163189, et al.; 366 NLRB No. 26)  Muscatine, IA, February 26, 2018.

The Board granted in part the Charging Parties’ “motion for reconsideration, recusal, and to strike” the Board’s Decision and Order reported at 365 NLRB No. 156 (2017), overruling Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery (Browning-Ferris), 362 NLRB No. 186 (2015), which had established a new legal standard for determining whether two employers are joint employers under the Act.  Because the Agency’s Designated Agency Ethics Official determined that Member Emanuel is, and should have been, disqualified from participating in this case, the Board vacated and set aside the Board’s underlying Decision and Order, leaving the overruling of Browning-Ferris of no force or effect.  The Board retained the case on its docket for further proceedings.

Charges filed by individuals.  Administrative Law Judge Robert A. Ringler issued his decision on November 14, 2016.  Chairman Kaplan and Members Pearce and McFerran participated.

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Omnisource Corporation  (08-CA-167138; 366 NLRB No. 23)  Mansfield, OH, February 27, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging four employees because of their protected concerted activity of giving statements in the grievance process.  In so doing, the Board found that it was unnecessary to pass on the judge’s finding that the Respondent also violated Section 8(a)(3), as it would not materially affect the remedy.  Member Pearce joined with his colleagues in adopting the judge’s finding that the Respondent violated Section 8(a)(1), but would have found that the Respondent also violated Section 8(a)(3).

In adopting the judge’s conclusion, Chairman Kaplan noted that he relied on the judge’s credibility-based findings that the Respondent did not have an honest belief that the employees had made deliberate or maliciously false statements but did not rely on the judge’s articulation of the standard for protected conduct for employees engaged as union officials in processing grievances.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO/CLC, Local 9130-03.  Administrative Law Judge Paul Bogas issued his decision on February 13, 2017.  Chairman Kaplan and Members Pearce and McFerran participated.

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New England Regional Council of Carpenters, Local 33 (New England Finish Systems, LLC and Colonial Systems, Inc.)  (01-CD-183789 and 01-CD-183838; 366 NLRB No. 24)  Boston, MA, February 27, 2018.

In this Section 10(k) jurisdictional dispute proceeding between New England Regional Council of Carpenters, Local 33 (Carpenters) and International Union of Painters and Allied Trades, District Council 35 Carpenters (DC 35), the Board awarded the work in dispute to employees represented by the Carpenters.  The disputed work in Case 01-CD-183789 involves the installation of glass shower doors at a project, and the installation of interior demountable glass walls at another project.  The disputed work in Case 01-CD-183838 involves the installation of interior demountable glass walls at various projects located at five different locations in the Boston area.  The Board awarded the work involving interior demountable glass walls in both disputes to employees represented by the Carpenters based on the factors of employer preference and past practice, area and industry practice, economic and efficiency of operations, and relative skills and training.  The Board also awarded the work involving shower door installation to employees represented by the Carpenters based on employer preference, as well as efficiency.

Charges filed by New England Finish Systems, LLC, and Colonial Systems, Inc.  Chairman Kaplan and Members McFerran and Emanuel participated.

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KHRG Employer, LLC d/b/a Hotel Burnham & Atwood Cafe  (13-CA-162485; 366 NLRB No. 22)  Chicago, IL, February 28, 2018.

The Board adopted the Administrative Law Judge’s recommended dismissal of the complaint, which alleged that the Respondent had unlawfully discharged an employee for engaging in protected concerted activity.  In doing so, the Board rejected the judge’s conclusion that the discharge should be analyzed under Wright Line, and instead stated that the correct analysis was whether the employee’s conduct was so egregious or opprobrious as to lose the protection of the Act.  Applying that standard, the Board found that the employee lost the Act’s protection by entering a security passcode to allow nonemployees into a secured area of the Respondent’s hotel during the delivery of a petition to management.

Charge filed by UNITE HERE, Local 1, AFL-CIO.  Administrative Law Judge Christine E. Dibble issued her decision on January 27, 2017.  Chairman Kaplan and Members Pearce and McFerran participated.

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Duquesne University of the Holy Spirit  (06-CA-197492; 366 NLRB No. 27)  Pittsburgh, PA, February 28, 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 the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO, CLC.  Chairman Kaplan and Members Pearce and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

Hanson Cold Storage Co. of Indiana d/b/a Hanson Logistics  (13-CA-178619)  Hobart, IN, February 26, 2018.  Upon a remand from the Seventh Circuit, the Board further remanded the case to the Regional Director to rule on the voting eligibility of an employee who was on medical leave at the time of the election.  Charge filed by International Brotherhood of Teamsters Local 142.  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

Standard Register, Inc. d/b/a Taylor Communications  (05-CA-194336; JD-14-18)  York, PA.  Administrative Law Judge Arthur J. Amchan issued his decision on February 26, 2018.  Charge filed by Local 594-S, District Council No. 9 of the Graphic Communications Conference of the International Brotherhood of Teamsters.

United Food and Commercial Workers Union, Local 540 (Tyson Foods)  (16-CB-193820; JD-13-18)  Dallas, TX.  Administrative Law Judge Keltner W. Locke issued his decision on February 27, 2018.  Charge filed by an individual.

Queen of the Valley Medical Center  (20-CA-191739, et al.; JD-15-18)  Napa, CA.  Administrative Law Judge Sharon Levinson Steckler issued her decision on February 28, 2018.  Charges filed by National Union of Healthcare Workers (NUHW).

Orient Tally Company, Inc., and California Cartage Company LLC, a single employer  (21-CA-160242 and 21-CA-162991; JD(SF)-04-18)  Wilmington, CA.  Administrative Law Judge Ariel L. Sotolongo issued his decision on February 28, 2018.  Charges filed by Warehouse Worker Resource Center.

Dex Media, Inc.  (27-CA-196726; JD(SF)-05-18)  Denver, CO.  Administrative Law Judge Dickie Montemayor issued his decision on February 28, 2018.  Charge filed by International Brotherhood of Electrical Workers, Local 1269.

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