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Summary of NLRB Decisions for Week of July 3 - 7, 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

Public Service Company of Colorado  (27-RC-162657; 365 NLRB No. 104)  Denver, CO, July 5, 2017.

On review, the Board affirmed the Acting Regional Director’s finding that the petitioned-for employees share a community of interest with employees in the existing bargaining unit and concluded that she properly directed the Armour-Globe self-determination election.  Acting Regional Director Leticia Peña issued her decision on December 22, 2015.  Petitioner –International Brotherhood of Electrical Workers, Local 111, AFL-CIO.  Chairman Miscimarra and Members Pearce and McFerran participated.

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XPO Logistics Freight, Inc.  (13-CA-196637; 365 NLRB No. 105)  Aurora, IL, July 6, 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.  Although Chairman Miscimarra would have granted review in the representation proceeding, he agreed with his colleagues that the Respondent had not raised any new matters that are properly litigable in this unfair labor practice proceeding.

Charge filed by Teamsters Local Union No. 179.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Jamaica Car Wash d/b/a Sutphin Car Wash  (29-CA-169069; 365 NLRB No. 106)  Jamaica, NY, July 6, 2017.

The Board dismissed the complaint, affirming the Administrative Law Judge’s dismissal of allegations that the Respondent violated the Act by:  (1) threatening and promising benefits to employees to discourage them from supporting an incumbent Union; (2) instructing an employee not to speak to a union steward; (3) interrogating an employee about another employee’s union activity; (4) discharging an employee because it believed he supported the Union, and refusing the Union’s request that he be reinstated; (5) threatening a union steward with unspecified reprisals; and (6) questioning employees in preparation for this matter without offering assurances required under Board law. 

Charge filed by Retail, Wholesale and Department Store Union, RWDSU.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

The New School  (02-RC-143009)  New York, NY, July 6, 2017.  The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s Request for Review of the Regional Director’s Second Supplemental Decision and Direction of Election as it raised no substantial issues warranting review.  Chairman Miscimarra would grant review because substantial issues exist regarding the extent to which the bargaining unit consists of students whose positions are closely related to their education.  To the extent that the students are similar to the unit members in Columbia University, 364 NLRB No. 90 (2016) and Yale University, 365 NLRB No. 40 (2016), he would find that the unit is inappropriate for the reasons expressed in his dissenting opinions in those cases.  The Chairman also would grant review based on substantial issues regarding material differences between the petitioned-for student assistants in this case and the bargaining-unit members in Columbia University and Yale University; specifically, regarding petitioned-for individuals whose student assistant work was temporary or casual to a degree that warrants their exclusion from the unit.  Responding to the dissent, the Board majority agreed with the Regional Director’s finding that the petitioned-for employees, all of whom perform similar duties for the Employer and are employed for a finite period of time, share a community of interest and constitute a stable bargaining unit that is capable of engaging in meaningful collective bargaining.  See Columbia University, above.  Petitioner – Student Employees at the New School–SENS UAW.  Chairman Miscimarra and Members Pearce and McFerran participated.

Loyola University Chicago  (13-RC-189548)  Chicago, IL, July 6, 2017.  The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) 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.  In so doing, the majority affirmed the Regional Director’s finding that he was bound by  Columbia University, 364 NLRB No. 90 (2016), and his conclusion that the graduate students at issue are employees within the meaning of Sec. 2(3).  The majority rejected the Employer’s contention that Loyola’s graduate assistants are distinguishable from those found to be employees in Columbia University.  Even assuming that the Employer timely raised that argument in its Statement of Position and Supplemental Letter, and that the Regional Director should have accepted the Employer’s offer of proof to that effect at hearing, the majority found that the evidence described in the offer of proof was insufficient to sustain the Employer’s positionDissenting, Chairman Miscimarra would grant review of the Regional Director’s decision that the Board has jurisdiction over the petitioned-for unit, as well as whether the graduate assistants in the petitioned-for unit are statutory employees.  Further, Chairman Miscimarra would find that the University has raised substantial issues warranting review of the Regional Director’s decision to preclude the University from presenting an offer of proof, or any evidence, regarding whether the petitioned-for graduate assistants are employees within the meaning of the Act.  Contrary to the dissent, the majority found that the Employer’s offer of proof provided an adequate and appropriate basis for evaluating the sufficiency of the evidence the Employer sought to adduce in support of its claim that the student assistants at issue are distinguishable from those in Columbia University, supra.  Petitioner – Service Employees International Union Local 73, CLC/CTW.  Chairman Miscimarra and Members Pearce and McFerran participated.

Valley Hospital Medical Center, Inc.  (28-RD-192131)  Las Vegas, NV, July 6, 2017.  The Board denied review of the Employer and Petitioner’s Requests for Review of the Regional Director’s determination to hold the petition in abeyance pending the investigation of unfair labor practice charges as the Requests for Review raised no substantial issues warranting review.  Chairman Miscimarra concurred with the denial of review, noting that he favors reconsideration of the Board’s blocking charge doctrine.  Petitioner – an Individual.  Union – Service Employees International Union Local 1107.  Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Voices for International Business and Education, Inc. d/b/a International High School of New Orleans  (15-CA-182632 and 15-CA-187456)  New Orleans, LA, July 5, 2017.  No exceptions having been filed to the May 24, 2017 decision of Administrative Law Judge Arthur J. Amchan’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.  Charges filed by United Teachers of New Orleans Local 527, LFT, AFT.

Albuquerque Health Services, Inc.  (28-CA-192313)  Albuquerque, NM, July 6, 2017.  The Board denied the Respondent’s Motion to Dismiss, finding that the Respondent has not demonstrated that the complaint fails to state a claim upon which relief can be granted.  Further, to the extent that the Respondent’s motion could be viewed as seeking summary judgment, the Board found that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  Chairman Miscimarra agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), it is evident from the parties’ respective positions that disputes exist as to material facts regarding whether the Respondent violated the Act.  Charge filed by an individual.  Chairman Miscimarra and Members Pearce and McFerran participated.

Apex Tool Group, LLC  (09-CA-176346 and 09-CA-177632)  Dayton, OH, July 7, 2017.  The Board granted the General Counsel’s Request for Special Permission to Appeal the Administrative Law Judge’s approval of an informal settlement and supplemental non-Board adjustment.  On the merits, the Board denied the appeal, finding that the General Counsel failed to establish that the judge abused his discretion in approving the settlement.  Charges filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its Local Union No. 1040.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

MikLin Enterprises, Inc. d/b/a Jimmy John's, Board No. 18-CA-019707 (reported at 361 NLRB No. 27) (8th Cir. decided July 3, 2017) (en banc)

In a published opinion, the Court, sitting en banc for rehearing, denied enforcement to a portion of the Board’s order issued against this operator of 10 Jimmy John’s sandwich franchises in Minneapolis and St. Louis Park, Minnesota. 

The Board (then-Chairman Pearce and Member Schiffer; Member Johnson, dissenting) found that the Employer violated Section 8(a)(3) and (1)  by discharging 6 employees, and issuing written warnings to 3 other employees, for their public communications—a poster and a press release—in support of their campaign to obtain paid sick days, and violated Section 8(a)(1) by soliciting employees to remove the posters from public places.  In so finding, the Board majority concluded that the manner in which the employees conveyed the protected message in the poster and press release did not cause them to lose the protection of the Act.  Reversing an earlier panel decision, the en banc Court, with two judges dissenting and two others concurring in the judgment, denied enforcement with respect to that portion of the Board’s order, stating that “the means the disciplined employees used in their poster attack were so disloyal as to exceed their right to engage in concerted activities protected by the NLRA.”  In agreement with the panel decision, the en banc Court upheld the Board’s unanimous finding that the Employer violated Section 8(a)(1) by removing union literature from otherwise unrestricted employee bulletin boards, and by soliciting and encouraging employees and managers on Facebook to contact a key organizer of the campaign about his protected activities and to disparage union supporters. 

The Court’s en banc opinion is here.

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Administrative Law Judge Decisions

Art, LLC; Glen Lake’s Market, LLC; Thomas B. Wartman; Thomas W. Wartman; Victoria’s Market, LLC  (18-CA-168725, et al.; JD-54-17)  Minnetonka and Victoria, MN.  Administrative Law Judge Charles J. Muhl issued his decision on July 3, 2017.  Charges filed by United Food & Commercial Workers, Local 653.

YP Advertising & Publishing, LLC (20-CA-147219, et al.; JD(SF)-28-17) San Francisco, CA, July 5, 2017.  Errata to June 29, 2017 decision of Administrative Law Judge Amita Baman Tracy.  Charges filed by International Brotherhood of Electrical Workers, Local 1269.  Errata   Amended Decision.

Pacific Coast Supply, LLC d/b/a Anderson Lumber  (20-CA-189966; JD(SF)-32-17)  North Highlands, CA.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on July 6, 2017.  Charge filed by Chauffeurs, Teamsters and Helpers, Local 150, International Brotherhood of Teamsters.

Mat-Su Regional Medical Center  (19-CA-180385; JD(SF)-31-17)  Palmer, AK.  Administrative Law Judge Gerald M. Etchingham issued his decision on July 7, 2017.  Charge filed by an individual.

Walden Security, Inc.  (14-CA-170110, 18-CA-170129, 16-CA-170337 and 15-CA-176496; JD-63-17)  Chattanooga, TN.  Administrative Law Judge Melissa M. Olivero issued her decision on July 7, 2017.  Charges filed by United Government Security Officers of America, International Union jointly with its Member Locals 85, 86, 109, 110, 111, 152, 161, 167, 173, 175, 220.

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