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Summary of NLRB Decisions for Week of January 28 - February 1, 2019

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

Hobby Lobby Stores Inc.  (20-CA-139745; 367 NLRB No. 78)  Sacramento, CA, January 2, 2019.

On remand from the Seventh Circuit Court, 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 allegation that the Respondent’s maintenance of its mandatory individual arbitration policy violated Section 8(a)(1) must be dismissed.

The Board severed and retained the other allegation—whether the Respondent’s mandatory arbitration agreement independently violates Section 8(a)(1) because it interferes with employees’ ability to access the Board.  The Board observed that, when Administrative Law Judge Eleanor Laws issued her decision, the issue of whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would have been resolved based on the “reasonably construe” prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).  The Board noted that it subsequently issued its decision in The Boeing Company, 365 NLRB No. 154, in which it overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases.  The Board issued a Notice to Show Cause why this allegation should not be remanded to the judge for further proceedings in light of Boeing.

Charge filed by The Committee to Preserve the Religious Right to Organize.  Administrative Law Judge Eleanor Laws issued her decision on September 8, 2015.  Chairman Ring and Members Kaplan and Emanuel participated.

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WF Coal Sales Inc., a Successor to Cobalt Coal Ltd. and its Subsidiaries  (09-CA-157523; 367 NLRB No. 77)  Premier, WV, January 29, 2019.

The Board granted the General Counsel’s Motion for Default Judgement based on the Respondent’s failure to file an answer to the complaint.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain collectively and in good faith with the Union as the exclusive collective bargaining representative of its unit employees.

Charge filed by United Mine Workers of America, District 17.  Chairman Ring and Members McFerran and Emanuel participated.

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PrimeFlight Aviation Services, Inc.  (02-RC-186447; 367 NLRB No. 81)  White Plains, NY, January 29, 2019.

The Board (Chairman Ring and Member Emanuel; Member McFerran, dissenting) found, in agreement with an advisory opinion from the National Mediation Board (NMB), that the Employer’s operations are subject to the Railway Labor Act.  Member McFerran, dissenting, would have referred the case back to the NMB so that it could explain why it had chosen to diverge from its prior legal standard in finding that the Employer’s operations were subject to the Railway Labor Act.  Petitioner—International Brotherhood of Electrical Workers, Local 1430.  Chairman Ring and Members McFerran and Emanuel participated.

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PrimeFlight Aviation Services, Inc.  (29-RC-198504; 367 NLRB No. 83)  Queens, NY, January 31, 2019.

The Board (Chairman Ring and Member Emanuel; Member McFerran, dissenting) found, in agreement with an advisory opinion from the National Mediation Board (NMB), that the Employer’s operations are subject to the Railway Labor Act.  Member McFerran, dissenting, would have referred the case back to the NMB so that it could explain why it had chosen to diverge from its prior legal standard in finding that the Employer’s operations were subject to the Railway Labor Act.  Petitioner—Service Employees International Union, Local 32BJ.  Chairman Ring and Members McFerran and Emanuel participated.

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Constellation Brands, U.S. Operations, Inc. d/b/a Woodbridge Winery  (32-CA-186238 and 32-CA-186265; 367 NLRB No. 79)  Acampo, CA, January 31, 2019.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by directing an employee to remove a safety vest with the slogan “Cellar Lives Matter” written on the back, and by maintaining a provision in its employee handbook that suggests to employees that those who choose to be represented by a union are not eligible for its Incentive (Bonus) Plan.

Charges filed by Cannery, Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 601, International Brotherhood of Teamsters.  Administrative Law Judge Ariel L. Sotolongo issued his decision on August 10, 2018.  Chairman Ring and Members Kaplan and Emanuel participated.

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International Longshore and Warehouse Union and International Longshore and Warehouse Union, Local 4  (19-CC-092816, et al.; 367 NLRB No. 64)  Vancouver, WA, January 31, 2019.

The Board reversed the Administrative Law Judge’s conclusions and found that the Respondents violated Section 8(b)(4)(ii)(D) and (B) by continuing to pursue its grievances after the Board issued its Section 10(k) award and by physically preventing IBEW-represented employees from performing work.  The Board found that the judge improperly revisited findings made by the Board in an earlier 10(k) proceeding involving the same work and the same Unions.  The Board further found that, even assuming the Respondents properly reasserted arguments made in the Section 10(k) proceeding, the evidence presented by the Respondents does not warrant reversing the Board’s Section 10(k) findings.  Therefore, the Board found the Respondents did not have a lawful work preservation objective.  Turning to the merits, the Board found the Respondents violated Section 8(b)(4)(ii)(D) by continuing to pursue its grievances after the Board issued its Section 10(k) awards and by physically preventing IBEW-represented employees from performing electrical work because an object of these actions was to force Kinder Morgan to assign the disputed work to its employees, rather than employees represented by IBEW.  The Board found these actions also violated Section 8(b)(4)(ii)(B) because an object of these actions was to force Kinder Morgan to cease doing business with Accurate Electric.  The Board denied the Respondents’ Motion to Reopen the Record.

Charges filed by International Brotherhood of Electrical Workers, Local 48, AFL-CIO.  Administrative Law Judge William L. Schmidt issued his decision on August 13, 2014.  Members McFerran, Kaplan, and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Universal Television Productions LLC  (31-RC-226424)  Universal City, CA, January 30, 2019.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Acting Regional Director found the petitioned-for DOT Administrator/Specialists not to be guards under Section 9(b)(3).  Petitioner—International Brotherhood of Teamsters, Studio Transportation Drivers, Local 399.  Members McFerran, Kaplan, and Emanuel participated.

Inwood Material Terminal, LLC  (29-RD-206581)  Glendale, NY, January 30, 2019.  The Board denied the Intervenor’s Request for Review of the Regional Director’s Decision and Direction of Election and affirmed the Regional Director’s conclusion that the email exchange between the parties did not suffice to execute the parties’ agreed-upon collective-bargaining agreement, and, therefore, did not trigger the contract bar.  The Board also denied the Intervenor’s Request for Review of the Regional Director’s Decision on Objections and Certification of Results as it raised no substantial issues warranting review.  Petitioner—an individual.  Intervenor—United Plant & Production Workers Local 175 P.  Chairman Ring and Members Kaplan and Emanuel participated.

STP Nuclear Operating Company  (16-RC-220802)  Wadsworth, TX, January 31, 2019.  

The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Employer had argued that the plant’s maintenance supervisors possessed supervisory authority under Section 2(11) and therefore the Petitioner could not seek to include them in an existing unit through a self-determination election.  Petitioner—International Brotherhood of Electrical Workers, Local 66, AFL-CIO.  Members McFerran, Kaplan, and Emanuel participated.

Pennsylvania American Water Co.  (06-RC-218209)  Pittsburgh, PA, February 1, 2019.  The Board denied the Employer’s and Intervenor’s Requests for Review of the Regional Director’s Amended Decision and Direction of Election as they raised no substantial issues warranting review.  The Employer had argued that the petition was barred under the Board’s contract-bar doctrine.  Petitioner—Utility Workers United Association, Local 537.  Intervenor—Utility Workers Union of America, AFL-CIO, CLC, and its Local 537.  Chairman Ring and Members McFerran and Kaplan participated.

Pennsylvania American Water Co.  (06-RC-218527)  Pittsburgh, PA, February 1, 2019.  The Board denied the Employer’s and Intervenor’s Requests for Review of the Regional Director’s Decision and Direction of Election as they raised no substantial issues warranting review.  The Employer had argued that the petition was barred under the Board’s contract-bar doctrine. Petitioner—Utility Workers United Association, Local 537.  Intervenor—Utility Workers Union of America, AFL-CIO, CLC, and its Local 537.  Chairman Ring and Members McFerran and Kaplan participated.

C Cases

International Union of Operating Engineers Local 39 (Kaiser Foundation Hospitals)  (20-CB-212943)  San Leandro, CA, January 31, 2019.  No exceptions having been filed to the December 13, 2018 decision of Administrative Law Judge Amita Baman Tracy’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.

National Union of Protective Services Associations, and its successor Federation of Police and Security (ALUTIIQ Diversified Services, LLC)  (06-CB-105424)  Pittsburgh, PA, February 1, 2019.  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 violations of Section 8(b)(1)(A).   Charge filed by an individual.  Members McFerran, Kaplan, and Emanuel participated.

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Appellate Court Decisions

Wolf Creek Nuclear Operating Corporation, Board Case No. 14-CA-181053 (reported at 366 NLRB No. 30) (10th Cir. decided January 29, 2019)

In an unpublished judgment in this test-of-certification case, the Court enforced the Board’s order issued against this operator of the Wolf Creek Generating Station, a nuclear power station in Kansas.  In doing so, the Court upheld the Board’s finding that four buyers who work in the purchasing department and are responsible for completing requests for bids and purchase orders for goods and services are not “managerial employees” excluded from the Act’s coverage.

Previously, in a unit-clarification proceeding in 2000, the Board issued a decision classifying the buyers as managerial employees because they exercised independent discretion in locating vendors without reliance upon pre-approved lists, and selected vendors without supervisory approval.  In 2016, the International Brotherhood of Electrical Workers, Local 225, filed an election petition seeking to represent the buyers.  The Employer objected, arguing that the 2000 unit-clarification decision barred the 2016 petition under the doctrine of preclusion or, alternatively, that the buyers are managerial employees.  The Regional Director found that the 2000 decision was not final for purposes of preclusion and concluded that the buyers were not managerial employees.  Thereafter, an election was directed, which the Union won on a vote of 3-1.  The Employer requested review, which the Board (Acting Chairman Miscimarra and Member McFerran; Member Pearce, dissenting) granted in part, finding that the Regional Director had not considered in sufficient detail whether there were changed circumstances since 2000 with respect to the buyers’ managerial status.  365 NLRB No. 55 (2017).

On remand, a hearing was held, and the Regional Director issued a supplemental decision determining that material changed circumstances warranted reconsideration of the buyers’ managerial status and that the record demonstrated that they are not managerial employees.  Back before the Board, the same panel unanimously denied the Employer’s Request for Review of the supplemental decision.  The Board agreed with the Regional Director’s determination not to give preclusive effect to the 2000 decision, noting that the Employer’s “progressive changes to its own operating procedures, including increasing the amount of single-source and preferred suppliers, has led to a reduction in competitive bidding,” which the Board held was a “material[ly] differentiating fact . . . more than sufficient to meet the [union’s] burden and warrant relitigation.”  The Employer then refused to bargain in order to seek court review.

On review, the Court undertook a comprehensive analysis of the record evidence and applicable principles, and upheld the Board’s findings as supported by substantial evidence and consistent with law.  Regarding the 2000 decision, the Court agreed with the Board that to overcome its preclusive effect “circumstances [must] have changed in a way that would materially alter the analysis of the buyers’ managerial status,” and went on to find that two changes had occurred that were material to the buyers’ status:  (1) a significant decrease in the use of competitive bids, which had the effect of diminishing the buyers’ discretion, and (2) the use of procedures that left the buyers less involved in evaluating requests for bids and in selecting suppliers.  Having found the preclusive effect of the 2000 decision overcome, the Court moved to the merits of the Employer’s claim of managerial status.  After a thorough review of the evidence, the Court, with an emphasis on the principle that “employees are managerial if they exercise discretion in performing their job, but not ‘if th[at] discretion must conform to an employer’s established policy,’” quoting NLRB v. Bell Aerospace Co., Div. of Textron, Inc., 416 U.S. 267, 288 n.16 (1974), upheld the Board’s finding that the buyers are not managerial employees.

The Court’s judgment is here.

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Administrative Law Judge Decisions

International Association of Sheet Metal, Air, Rail and Transportation Workers Local No. 28  (29-CB-214675; JD(NY)-02-19)  Brooklyn, NY.  Administrative Law Judge Kenneth W. Chu issued his decision on January 29, 2019.  Charge filed by an individual.

International Union of Operating Engineers, Local 627  (17-CB-072671; JD-11-19)  Oklahoma City and Tulsa, OK.  Administrative Law Judge Charles J. Muhl issued his supplemental decision on January 29, 2019.  Charge filed by an individual.

Community Health Services, Inc.  (01-CA-191633; JD-12-19)  Hartford, CT.  Administrative Law Judge Elizabeth M. Tafe issued her decision on January 31, 2019.  Charge filed by American Federation of Teachers, AFT Connecticut, AFL-CIO.

Nob Hill General Stores, Inc.  (20-CA-209431; JD(SF)-02-19)  Santa Clara, CA.  Administrative Law Judge Amita Baman Tracy issued her decision on January 31, 2019.  Charge filed by United Food and Commercial Workers Union, Local 5.

HBC Management Services, Inc.  (05-CA-219166; JD-15-19)  Washington, D.C.  Administrative Law Judge Michael A. Rosas issued his decision on February 1, 2019.  Charge filed by National Union, United Security & Police Officers of America.

United States Postal Service  (16-CA-189702 and 16-CA-191290; JD-13-19)  Katy, TX.  Administrative Law Judge Robert A. Ringler issued his decision on February 1, 2019.  Charges filed by an individual.

Graphic Communications Conference/International Brotherhood of Teamsters Local Union No. 735-S  (04-CB-215127; JD-14-19)  West Hazelton, PA.  Administrative Law Judge David I. Goldman issued his decision on February 1, 2019.  Charge filed by Bemis Company, Inc.

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