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Summary of NLRB Decisions for Week of July 30 - August 3, 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

Falcon Trucking, LLC and Ragle, Inc., a single employer and/or joint employers  (25-CA-132518, et al.; 366 NLRB No. 148)  Newburgh, IN, July 30, 2018.

The Board denied the General Counsel’s Motion for a Default Judgment based on the Respondents’ alleged breach of a settlement agreement.  The Board found that the General Counsel had failed to establish that there were no genuine issues of material fact regarding whether the Respondents had breached a provision of the settlement agreement that required them to restore bargaining unit work.  The Board remanded the case to the Regional Director for a hearing limited to the disputed unit work restoration issue.

Charges filed by Chauffeurs, Teamsters and Helpers, Local Union No. 215 a/w International Brotherhood of Teamsters.  Chairman Ring and Members Kaplan and Emanuel participated.

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Newark Electric Corp., Newark Electric 2.0, Inc., and Colacino Industries, Inc.  (03-CA-088127; 366 NLRB No. 145)  Newark, NY, July 31, 2018.

Upon remand from the D.C. Circuit Court, which vacated the Board’s previous decision (362 NLRB No. 44 (2015)) for further proceedings consistent with NLRB v. SW General, Inc., 580 U.S.__, 137 S. Ct. 929 (2017), the Board affirmed the Administrative Law Judge’s rulings, findings, and conclusions, to the extent and for the reasons stated in 362 NLRB No. 44.  The Board held that although under NLRB v. SW General former Acting General Counsel Lafe E. Solomon was deemed without authority at the time he issued the complaint in this case, subsequently-appointed General Counsel Richard F. Griffin Jr. ratified the issuance and continued prosecution of the complaint, bringing the case properly before the Board.  The Board considered de novo the judge’s decision, and found that the Respondents, as a single employer and alter egos, had violated the Act by failing to recognize the Union, by repudiating the collective-bargaining agreement, and by discharging a Union supporter.

Charge filed by International Brotherhood of Electrical Workers, Local 840.  Administrative Law Judge Kenneth W. Chu issued his decision on January 6, 2014.  Chairman Ring and Members McFerran and Kaplan participated.

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American Medical Response West  (32-CA-147259 and 32-CA-149437; 366 NLRB No. 146)  Stockton, CA, July 31, 2018.

The Board found that the Administrative Law Judge erred by failing to consider whether the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union with the names of witnesses interviewed in connection with the discharge of an employee for sexual harassment.  The Board found that the Union had requested the witness names pursuant to its grievance and the General Counsel had included the allegation in the complaint and argument before the judge.  Thus, the Board rejected the Respondent’s argument that the issue was not properly before the Board.

On the merits of the case, the Board found that the request for witness names was relevant and necessary information, and the Respondent was obligated to disclose the names unless it could establish a valid defense for not doing so.  Regarding defenses, the Board found that the Respondent did not argue that the witness names were confidential and thus waived the defense.  Furthermore, applying the Detroit Edison balancing test, the Board found that the confidentiality interest in the witness names did not outweigh the Union’s need for the information in the circumstances presented in this case.

Charges filed by United Emergency Medical Service Workers, AFSCME Local 4911, AFL-CIO.  Administrative Law Judge Eleanor Laws issued her decision on December 17, 2015.  Chairman Ring and Members Pearce and McFerran participated.

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KO Huts, Inc.  (14-CA-164874; 366 NLRB No. 150)  Wichita, KS, July 31, 2018.

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 must be dismissed.  The Administrative Law Judge had found that Respondent’s maintenance of its dispute resolution program, which requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, violated the Act under the Board’s decisions in Murphy Oil and D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013).

Charge filed by an individual.  Administrative Law Judge Arthur J. Amchan issued his decision on April 20, 2016.  Members Pearce, McFerran, and Kaplan participated.

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Kellogg Brown & Root LLC and Molycorp, Inc.  (31-CA-140948 and 31-CA-145896; 366 NLRB No. 153)  Mountain Pass, CA, August 2, 2018.

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 must be dismissed.  The Administrative Law Judge had found that the Respondent’s maintenance of its dispute resolution program, which requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, violated the Act under the Board’s decisions in Murphy Oil and D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013).

Charges filed by an individual.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on April 4, 2016.  Chairman Ring and Members McFerran and Kaplan participated.

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Mike-Sell’s Potato Chip Company  (09-CA-184215; 366 NLRB No. 143)  Dayton, OH, August 2, 2018.

The Board remanded the case to the Administrative Law Judge for further consideration of his finding that the Respondent violated the Act by failing to give the Union notice and an opportunity to bargain about its decision to sell four company sales routes to independent distributors in light of Raytheon Network Centric Systems, 365 NLRB No. 161 (2017). 

Charge filed by International Brotherhood of Teamsters (IBT), General Truck Drivers, Warehousemen, Helpers, Sales and Service, and Casino Employees, Teamsters Local Union No. 957.  Administrative Law Judge Andrew S. Gollin issued his decision on July 25, 2017.  Chairman Ring and Members Kaplan and Emanuel participated.

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Exeter Finance Corp.  (03-CA-158382; 366 NLRB No. 151)  Buffalo, NY, August 2, 2018.

The Board denied the General Counsel’s Motion for Summary Judgment and dismissed the complaint alleging that the Respondent violated Section 8(a)(1) by maintaining and enforcing a mandatory arbitration agreement that prohibits its employees from engaging in class or collective litigation in all forums.  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 must be dismissed.

Charge filed by an individual.  Chairman Ring and Members McFerran and Kaplan participated.

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Northrop Grumman Systems Corporation  (31-CA-167294; 366 NLRB No. 147)  Redondo Beach, CA, August 2, 2018.

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 must be dismissed.  The Administrative Law Judge had found that the Respondent’s maintenance of its dispute resolution program, formally titled the “Employee Mediation/Binding Arbitration Program,” that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, violated the Act under the Board’s decisions in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013), and Murphy Oil.

Charge filed by an individual.  Administrative Law Judge Eleanor Laws issued her decision on November 2, 2016.  Members Pearce, McFerran, and Kaplan participated.

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Consolidated Communications Holdings, Inc. d/b/a Consolidated Communications of Texas Company  (16-CA-196201; 366 NLRB No. 152)  Conroe, TX, August 3, 2018.

The Board dismissed the complaint, adopting the Administrative Law Judge’s dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) by maintaining the status quo ante and retaining its health care premiums for employees in the unit while bargaining continued.  The judge found that the General Counsel failed to establish that the Respondent had a past practice of adjusting employees’ health insurance premiums each January based on the total actual claims for the previous year and therefore concluded that the Respondent appropriately maintained the status quo ante for healthcare premiums during bargaining.

Charge filed by Communications Workers of America, AFL–CIO.  Administrative Law Judge Robert A. Ringler issued his decision on March 27, 2018.  Members Pearce, Kaplan, and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Ohio College Preparatory School  (08-RC-199371)  Maple Heights, OH, July 30, 2018.  The Board (Members Kaplan and Emanuel; Member Pearce, dissenting) granted the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative.  The Board majority found that two professional voters were disenfranchised after being given and voting with non-professional ballots in a Sonotone election, remanding the case for a new election.  Member Pearce would have denied review.  Petitioner—Cleveland Alliance of Charter Teachers and Staff Local 6570 a/w Ohio Federation of Teachers, AFL-CIO.  Members Pearce, Kaplan, and Emanuel participated.

Apple Bus Company  (19-RD-216636)  Soldotna, AK, August 2, 2018.  The Board denied the Petitioner’s Second and Third Requests for Review of the Regional Director’s determinations to hold the petition in abeyance as they raised no substantial issues warranting review.  Petitioner— an individual.  Union—General Teamsters Local 959.  Chairman Ring and Members McFerran and Kaplan participated.

Grill Concepts Services, Inc. d/b/a The Daily Grill  (31-RC-209589)  Los Angeles, CA, August 3, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Partial Decision on Objections and Notice of Hearing on the ground that it raised no substantial issues warranting review.  In discussing the Regional Director’s decision to direct a mail ballot election, Member McFerran stated that the Regional Director reasonably found that a manual election would disenfranchise a substantial percentage of the workforce.  Member Emanuel agreed that the Regional Director did not abuse her discretion in directing a mail ballot election under current Board precedent and noted that the Board should revise its policy to restrict mail ballot elections to cases where a manual election is not feasible.  Petitioner—Unite Here Local 11.  Chairman Ring and Members McFerran and Emanuel participated.

C Cases

Kava Holdings, LLC, a Delaware limited liability company, f/k/a Kava Holdings, Inc., a Delaware Corporation d/b/a Hotel Bel-Air  (31-CA-074675)  Los Angeles, CA, July 30, 2018.  The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s denial of the Respondent’s second request to admit certain exhibits into evidence.  The Board found that the Respondent failed to establish that the judge’s ruling could not be appropriately addressed at a later stage of the proceeding or that the judge abused her discretion.  Charge filed by UNITE HERE – Local 11.  Members McFerran, Kaplan, and Emanuel participated.

Waterstone Mortgage Corporation  (30-CA-073190)  Pewaukee, WI, July 31, 2018.  The Board rescinded its prior Order granting the parties’ joint motion to transfer this proceeding directly to the Board for a decision based on the stipulated record.  The amended complaint alleged violations based on Board precedent finding unlawful the maintenance and enforcement of arbitration agreements requiring employees to waive the right to file or participate in class or collective actions in all forums.  In light of the recent Supreme Court decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612 (2018), which held that such arbitration agreements do not violate the Act, the Board denied the parties’ joint motion without prejudice.  Charge filed by an individual.

Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino  (28-CA-060841)  Las Vegas, NV, August 1, 2018.  The Board (Chairman Ring and Members Kaplan and Emanuel; Members Pearce and McFerran, dissenting)  issued a Notice and Invitation to File Briefs, which invited the parties and interested amici to file briefs addressing the following questions: (1) whether to adhere to, modify, or overrule Purple Communications, Inc., 361 NLRB 1050 (2014); (2) if the Board were to overrule Purple Communications;  whether to return to the holding of Register Guard, 351 NLRB 1110 (2007), or adopt some other standard; (3) if the Board were to return to Register Guard, whether it should carve out exceptions for circumstances that limit employees’ ability to communicate with each other through means other than their employer’s email system; (4) and the appropriate standard to apply in evaluating policies governing the use of employer-owned computer resources other than email.  Briefs are due to be filed with the Board by September 5, 2018; with parties permitted to file responsive briefs by September 20, 2018.  Charge filed by International Union of Painters and Allied Trades, District Council 15, Local 159, AFL-CIO.  Chairman  Ring and Members Pearce, McFerran, Kaplan, and Emanuel participating.

VXI Global Solutions, LLC  (08-CA-133514)  Canton and Youngstown, OH, August 3, 2018.  The Board rescinded its prior Order granting the parties’ joint motion to transfer this proceeding directly to the Board for a decision based on the stipulated record.  The complaint alleged violations based on Board precedent finding unlawful the maintenance and enforcement of arbitration agreements requiring employees to waive the right to file or participate in class or collective actions in all forums.  In light of the recent Supreme Court decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612 (2018), which held that such arbitration agreements do not violate the Act, the Board denied the parties’ joint motion without prejudice.  The Board expressed no opinion with respect to the complaint’s separate allegation that the Respondent’s arbitration agreement unlawfully restricts employee access to the Board.  Charge filed by an individual.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Globe Industries LLC  (25-CA-209034, et al.; JD-49-18)  Pekin, IN.  Administrative Law Judge Charles J. Muhl issued his decision on August 1, 2018.  Charges filed by Indiana State Pipe Trades Association and U.A. Local 502, AFL-CIO.

C2G Ltd. Co. (19-CA-163444 and 19-CA-169910; JD-(SF)-21-18) Fairbanks, AK, August 2, 2018.  Errata to Administrative Law Judge Eleanor Laws’ decision of July 26, 2018.  Errata   Amended Decision

Purple Communications, Inc. and its successor and joint employer CSDVRS, LLC d/b/a ZVRS  (21-CA-149635, et al.; JD(SF)-20-18)  Tempe, AZ, Denver, CO, Oakland and San Diego, CA.  Administrative Law Judge Mara-Louise Anzalone issued her decision on August 3, 2018  Charges filed by Pacific Media Workers Guild, Local 39521, The Newspaper Guild, Communications Workers of America, AFL-CIO.

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