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Summary of NLRB Decisions for Week of June 11 - 15, 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

United Food and Commercial Workers Union, Local 540 (Tyson Foods)  (16-CB-193820; 366 NLRB No. 105)  Richland Hills, TX, June 11, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(1)(A) by telling an employee that it would not file a grievance on his behalf because he was not a union member.

Charge filed by an individual.  Administrative Law Judge Keltner W. Locke issued his decision on February 27, 2018.  Members Pearce, McFerran, and Kaplan participated.

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Hard Hat Services, LLC  (04-CA-196783; 366 NLRB No. 106)  Norristown, PA, June 12, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1)  by discriminatorily refusing to hire two employee-applicants because of their union affiliation, and violated Section 8(a)(1) by coercively interrogating another employee-applicant regarding his union support and activities.

Charge filed by International Brotherhood of Electrical Workers, Local Union No. 98.  Administrative Law Judge Robert A. Giannasi issued his decision on December 27, 2017.  Members Pearce, Kaplan, and Emanuel participated.

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Denton County Electric Cooperative, Inc. d/b/a Co-Serv Electric  (16-CA-149330; 366 NLRB No. 103)  Corinth, TX, June 12, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union, by unilaterally increasing the unit employees’ wages, and by failing and refusing to provide the Union with requested information regarding the unit employees’ current wages.  The Board also severed and retained for further consideration the complaint allegations that the Respondent unlawfully maintained overbroad handbook rules.  The panel majority consisting of Members Pearce and McFerran ordered the Board’s notice be read aloud to the Respondent’s employees by the Respondent’s chief executive officer or senior vice president of employee relations or, at the Respondent’s option, by a Board agent in either officer’s presence and, if the Union so desires, a Union agent’s presence.  Chairman Ring disagreed with the majority that a notice-reading remedy is warranted in this case.

Charge filed by International Brotherhood of Electrical Workers Local 220, affiliated with International Brotherhood of Electrical Workers.  Administrative Law Judge Robert A. Ringler issued his decision on June 28, 2016.  Chairman Ring and Members Pearce and McFerran participated.

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Airgas USA, LLC  (09-CA-158662; 366 NLRB No. 104)  Cincinnati, OH, June 13, 2018.

The Board (Members  Pearce and McFerran; Member Kaplan, dissenting) adopted the Administrative Law Judge’s rulings, findings and conclusions that the Respondent violated Section 8(a)(4) and (1) by disciplining an employee for filing charges with the Board and participating in Board processes.  The majority agreed with the judge’s finding that the Respondent’s espoused reason for issuing a written warning to the employee, a safety violation, was simply pretext for unlawful animus towards his charge-filing activity.  This animus was evidenced by the suspicious timing of the  discipline, as well as the Respondent’s seeming disregard for rectifying the safety violation, instead focusing on collecting evidence with which to punish the employee.  Further, the majority found that the Respondent issued the employee a disproportionate punishment in comparison to other employees who had engaged in comparable safety violations.

Dissenting, Member Kaplan would have found that the Respondent acted lawfully in issuing the written warning to the employee.  In his view, the Respondent acted in an objectively reasonable manner in addressing the employee’s safety violation, and did not issue disproportionate discipline to the employee when this violation was compared to similar infractions.

Charge filed by an individual.  Administrative Law Judge Donna N. Dawson issued her decision on July 7, 2016.  Members Pearce, McFerran, and Kaplan participated.

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Labor Plus, LLC, and its Successor Wynn Las Vegas, LLC and Wynn Las Vegas, LLC  (28-CA-161779 and 28-CA-166890; 366 NLRB No. 109)  Las Vegas, NV, June 14, 2018.

The Board (Members Pearce and Kaplan; Member McFerran, dissenting) adopted the Administrative Law Judge’s dismissal of the complaint, which alleged that Respondent Wynn Las Vegas violated Section 8(a)(5) and (1) by failing to (1) recognize and bargain with the Union, (2) furnish the Union requested relevant information, and (3) provide the Union notice and opportunity to bargain over a decision to subcontract unit work, and its effects.  The majority found that no successorship bargaining obligation attached to the Respondent because at the time it employed a substantial and representative complement of employees, a majority of its work force was not comprised of former predecessor bargaining-unit employees.  Member McFerran would have reversed the judge and found that the Respondent was a legal successor because, in her view, an employee whose hire date was dispositive should have been counted toward the predecessor-majority in the Respondent’s work force.

Charges filed by International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada Local Union 720 (IATSE).  Administrative Law Judge John T. Giannopolous issued his decision February 16, 2017.  Members Pearce, McFerran, and Kaplan participated.

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Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas  (28-CA-120975; 366 NLRB No. 110)  Las Vegas, NV, June 15, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by threatening an employee with discharge and by suspending and discharging him because of his protected concerted complaints about work conditions.

A Board majority (Members Pearce and McFerran) also adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by refusing to grant the employee’s request for a union representative at an investigatory meeting with Respondent officials concerning his suspension.  Chairman Ring dissented from that ruling because, in his view, the employee had not made a legally sufficient request for a union representative.

Charge  filed by an individual.  Administrative Law Judge Mary Miller Cracraft issued her decision on December 30, 2014.  Chairman Ring and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

San Francisco Zoological Society  (20-UC-210602)  San Francisco, CA, June 12, 2018.  The Board denied the Employer’s Request to Stay the Regional Director’s Decision and Order Clarifying Bargaining Unit to Include Dietician.  Chairman Ring and Member Kaplan expressed no view with respect to whether they agreed or disagreed with revisions made by the Board’s Election Rule, but they agreed that it applied and warranted denial of the Employer’s Request to Stay the unit clarification determination, without prejudice to the Board’s subsequent consideration of the merits of the Employer’s Request for Review.  Petitioner—International Brotherhood of Teamsters, Local 856.  Chairman Ring and Members Pearce and Kaplan participated.

ADT Security Services  (19-RD-206496)  Bothell, WA, June 14, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objection and Certification of Representative as it raised no substantial issues warranting review.  Petitioner—an individual.  Union—IBEW Locals 46 and 76.  Chairman Ring and Members Pearce and Kaplan 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, June 12, 2018.  The Board denied the Respondent’s Motion for Special Permission to Appeal from the Administrative Law Judge’s April 23, 2018 Order reprimanding the Respondent’s counsel, her April 26, 2018 Order excluding one of the Respondent’s counsel to the extent that he was not permitted to question witnesses, and her April 30 and May 4, 2018 Orders denying the Respondent’s request for a copy of the audio recording and/or preservation of the audio tape of the April 26, 2018 session of the hearing.  The Board found that the Respondent failed to show that the judge abused her discretion in denying its request for a copy of the audio recording and/or preservation of the audio tape, and that because the hearing had concluded, the exclusion of the Respondent’s counsel could be considered on exceptions before the Board, if appropriate.  In addition, the Board found that the Respondent failed to establish that the judge’s remaining rulings could not be appropriately addressed at a later stage of the proceeding.  Charge filed by UNITE HERE — Local 11.  Members McFerran, Kaplan, and Emanuel participated.

Securitas Security Services USA, Inc.  (20-CA-215028 and 20-CA-215743)  Honolulu, HI, June 13, 2018.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum because the petition was filed untimely.  Even assuming that the petition was timely filed, the Board found that it sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought.  The Board also found that the Employer failed to establish any other legal basis for revoking the subpoena.  Charges filed by International Union, Security, Police and Fire Professionals of America, Local 650.  Members Pearce, McFerran, and Emanuel participated.

Savera Industries Inc., Superior Building Services, Inc., d/b/a Savera Industries, Inc., Superior Cleaning Services d/b/a Savera Industries, Inc., a single employer, and Industrial Steam Cleaning of Long Island, a joint employer  (29-CA-1930680)  Brooklyn, NY, June 14, 2018.  No exceptions having been filed to the May 1, 2018 decision of Administrative Law Judge Benjamin W. Green’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondents to take the action set forth in the recommended Order.  Charge filed by an individual.

Preferred Home Care of New York  (29-CA-208111, et al.)  Brooklyn, NY, June 14, 2018.  In this case alleging Section 8(a)(3), (2), and (1), and Section 8(b)(1)(A) and (2), violations, the Board approved a formal settlement stipulation between the Respondents, the Charging Party, and the General Counsel, and specified actions the Respondents must take to comply with the Act.  Charges filed by 1199 SEIU United Healthcare Workers East.  Chairman Ring and Members Pearce and Kaplan participated.

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Appellate Court Decisions

EYM King of Missouri, LLC d/b/a Burger King, Board Case No. 14-CA-150321 (reported at 365 NLRB No. 16) (8th Cir. decided June 12, 2018)

In an unpublished per curiam opinion, the Court enforced the Board’s order issued against this franchisee of several Burger King restaurants in the Kansas City, Missouri area.  The Board (Acting Chairman Miscimarra and Members Pearce and McFerran) found that the Employer violated Section 8(a)(1) when it disciplined 6 employees for engaging in a one-day strike from their jobs at the 47th Street Restaurant in Kansas City to participate in a rally and related activities organized by the Workers’ Organizing Committee – Kansas City as part of the “Fight for $15” campaign.  In doing so, the Board agreed with the Administrative Law Judge’s conclusion that the employees’ one-day strike did not constitute unprotected intermittent-strike activity as the Employer had argued.  On review, the Court agreed with the Board’s reasoning and enforced the Board’s order in full.

The Court’s opinion is here.

Island Architectural Woodwork, Inc. and Verde Demountable Partitions, Inc., Alter Egos, Board Case No. 29-CA-124027 (reported at 364 NLRB No. 73) (D.C. Cir. decided June 15, 2018)

In a published opinion, the Court enforced the Board’s order issued against these two manufacturers of custom wood office products located in Ronkonkoma, New York, as alter egos.  In doing so, the Court undertook a comprehensive review of the alter ego doctrine and upheld the Board’s finding of alter ego status as supported by substantial evidence.

For 20 years, the Northeast Regional Council of Carpenters, Local 252, has represented Island’s production employees and installers under a series of collective-bargaining agreements.  In 2013, Island created Verde as a non-union shop to specialize in producing one of Island’s products (a moveable office partition) for the express purpose of lowering its production costs.  Verde set up shop in the back building on Island’s property and was under the leadership of the daughter of Island’s president and CEO.  Thereafter, Island’s managers insisted to Island employees that no union members were allowed to enter the back building.  To get the new business up and running, Island conferred substantial, uncompensated economic benefits on Verde through a set of informal agreements that were not memorialized in writing until months later when the companies were subject to the General Counsel’s investigatory subpoena.  From the start, Verde’s employees largely did the same work, on the same equipment, and on the same property as Island’s unionized workers.  Later, when Island and the Union were negotiating a successor contract, Island conditioned its signing of any agreement on the Union waiving any claim to represent Verde’s employees.

After an investigation, the General Counsel issued a complaint alleging that Verde was the alter ego of Island, and that Island and Verde together violated Section 8(a)(5) and (1) by refusing to bargain with the Union as the representative of their employees.  After a hearing, the Administrative Law Judge issued a decision dismissing the complaint.

On exceptions, the Board (then-Chairman Pearce and Members Hirozawa and McFerran) disagreed with the judge and found that Island and Verde were alter egos that had violated the Act as alleged.  Specifically, the Board found that the two entities share numerous indicia of alter egos, including substantially identical business purposes, operations, premises, and equipment, and that the transfer of the partition work from Island to Verde was less than an arm’s-length transaction.  On the basis of uncontroverted testimony, the Board found that Verde was created to evade Island’s bargaining obligations to the Union.  The Board further found that Island exercised substantial financial control over Verde, and that the delay in memorializing their business agreements, and the agreements’ highly favorable terms, allowed Verde to save and defer half a million dollars in costs and operating expenses.  Thus, the Board concluded that the two companies were alter egos, that their refusal to bargain was unlawful, and that Island impermissibly conditioned the successor contract on the Union waiving any claim to represent Verde’s employees.

On review, the Court (Circuit Judges Srinivasan and Pillard; Circuit Judge Kavanaugh, dissenting) upheld the Board’s finding of alter ego status.  As the Court noted, the “alter ego test is contextual and requires the Board to consider the circumstances of each case,” which include factors such as “‘substantial identity of management, business purpose, operation, equipment, customers, supervision, and ownership’ between the two entities,” quoting Fugazy Cont’l Corp. v. NLRB, 725 F.2d 1416 (D.C. Cir. 1984).  Further citing its own precedent, the Court reiterated that the Board will give substantial weight to evidence of a company’s motive to evade its obligations under the Act, but that no single factor is dispositive, and not every factor need be present in a particular case to establish alter ego status.  On the basis of those principles, the Court held that the Board’s findings were “supported by substantial evidence and comport with the alter ego doctrine under our case law.”  Finally, the Court upheld the Board’s finding that Island impermissibly insisted, as a condition of reaching an overall successor contract, that the Union agree to waive any claim to represent Verde’s employees.

The Court’s opinion is here.

Unite Here Local 5 (Hyatt Regency Waikiki Resort & Spa), Board Case No. 20-CB-127565 (reported at 364 NLRB No. 94) (D.C. Cir. decided under the name Tamosiunas v. NLRB June 15, 2018)

In a published opinion, the Court granted the petition filed by four employees, who were Beck objectors and charging parties before the Board, for review of the Board’s order dismissing the complaint issued against Unite Here! Local 5.  The complaint alleged that the Union violated Section 8(b)(1)(A) when it sent the employees, and similarly situated nonmember objectors, a letter demanding payment of full-membership dues and stating that, unless paid, their wages would be garnished.  The Board (then-Chairman Pearce and Member Hirozawa; Member McFerran, dissenting) found, in agreement with the Administrative Law Judge, that the employees objectively would have understood that the Union had sent the letters to them by mistake.  On review, the Court disagreed, stating that “[t]he Board has provided no rational basis for concluding that the Dues Letter’s garnishment threat and the garnishment process it triggered did not ‘reasonably tend[] to restrain or coerce employees’ in the exercise of their Section 7 right not to pay full union membership dues.”  Accordingly, the Court vacated the Board’s decision, and remanded for further proceedings on the allegation that the Union engaged in unfair labor practices.

The Court’s opinion is here.

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Administrative Law Judge Decisions

No Administrative Law Judge Decisions Issued.

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