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Summary of NLRB Decisions for Week of June 25 - 29, 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

Kalthia Group Hotels, Inc. and Manas Hospitality LLC d/b/a Holiday Inn Express Sacramento, a single and/or joint employer  (20-CA-176428, et al.; 366 NLRB No. 118)  Sacramento, CA, June 25, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by engaging in surface bargaining and by circulating a decertification petition, and violated Section 8(a)(1) by misleading employees about union benefits, interrogating employees about their protected activity, instructing employees to sign a decertification petition under threat of discharge, and telling employees not to associate with, speak to, or sign any documents from the Union.  A Board majority (Members Pearce and McFerran) reversed the judge and ordered a notice reading remedy.

Charges filed by UNITE HERE! Local 49.  Administrative Law Judge John T. Giannopoulos issued his decision on September 8, 2017.  Members Pearce, McFerran, and Emanuel participated.

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Dish Network Corporation  (16-CA-173719, et al.; 366 NLRB No. 119)  Farmers Branch and North Richland Hills, TX, June 28, 2018.

The Board (Members Pearce and Kaplan; Member Emanuel, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by:  (1) implementing its “last, best, and final offer” and unilaterally changing unit employees’ terms and conditions of employment in the absence of a valid impasse; and (2) constructively discharging 17 employees who resigned their positions because of the Respondent’s unlawful unilateral reductions in their wages and health benefits.  Member Emanuel, dissenting, would find that the parties were at a valid impasse when the Respondent implemented its final offer.  Accordingly, he would dismiss that Section 8(a)(5) allegation and the allegation that the Respondent violated Section 8(a)(5) by constructively discharging the employees who resigned because of the changes to their terms and conditions of employment.

Charges filed by Communications Workers of America, AFL-CIO.  Administrative Law Judge Robert A. Ringler issued his decision on January 23, 2017.  Members Pearce, Kaplan, and Emanuel participated.

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Harley-Davidson Motor Company  (05-CA-183791; 366 NLRB No. 121)  York, PA, June 29, 2018.

The Board, reversing the Administrative Law Judge, concluded that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing a voluntary separation incentive plan.  The Board found that the incentive plan was distinct from a planned layoff which the Respondent could unilaterally impose pursuant to the collective-bargaining agreement, and that the Union did not waive bargaining over the incentive because the Respondent presented it as a fait accompli.

Charge filed by International Association of Machinists and Aerospace Workers, Tyson Lodge 175, District 98.  Administrative Law Judge Arthur J. Amchan issued his decision on June 27, 2017.  Members Pearce, Kaplan, and Emanuel participated.

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Arnold Walter Nursing and Rehabilitation Center  (22-CA-180557 and 22-CA-186982; 366 NLRB No. 120)  Hazlet, NY, June 29, 2018.

The Board denied the General Counsel’s Motion for Default Judgment based on the Respondent’s alleged failure to comply with the terms of a settlement agreement.  The Board found that the reissued complaint, on which the General Counsel moved for default judgment, included post-settlement conduct that was not part of the original complaint, and that the settlement agreement did not authorize the General Counsel to seek default judgment on the Respondent’s post-settlement conduct as alleged in the reissued complaint.  The Board remanded the case to the Regional Director for further appropriate action.

Charges filed by 1199 Service Employees International Union, United Healthcare Workers East.  Members Pearce, Kaplan, and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

ARH Mary Breckinridge Health Services, Inc.  (09-RD-217672)  Hyden, KY, June 29, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s determination to hold the petition in abeyance as it raised no substantial issues warranting review.  Petitioner—an individual.  Union—United Steel, Paper and Forestry, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC.  Chairman Ring and Members Pearce and Kaplan participated.

C Cases

Metro Ambulance Services, Inc. d/b/a American Medical Response  (10-CA-207686, et al.)  Stone Mountain, GA, June 28, 2018.  The Board denied the Employer’s Petition to Revoke, in part, the investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and failed to establish any other legal basis for revoking the subpoena.  Charges filed by International Association of EMTs and Paramedics (I.A.E.P.).  Chairman Ring and Members Pearce and Kaplan participated.

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Appellate Court Decisions

Jam Productions, Ltd., Event Productions, Inc., Standing Room Only, Inc., and Victoria Operating Co., a single employer, Board Case No. 13-CA-186575 (reported at 365 NLRB No. 75) (7th Cir. decided June 28, 2018)

In a published opinion in this test-of certification, the Court granted the petition for review and remanded for a hearing on the election objection filed by this producer of concerts, shows, and events at venues in the Chicago area after its stagehands voted in May 2016 to be represented by Theatrical Stage Employees Union Local No. 2, IATSE.  Contrary to the Regional Director’s finding in the underlying representation case, which the Board adopted, the Court held that the Employer in the offer of proof in support of its election objection presented sufficient evidence to warrant a hearing.

The election yielded a tally showing 22 ballots cast in favor of the Union, 10 cast against, and, among a number of challenged ballots, were 4 cast by employees who were hired after the eligibility date specified in the parties’ stipulated election agreement.  After the election, the Employer filed an objection alleging that, in the weeks before the election, the Union provided unit employees with premium-pay work at union venues—which the Employer claimed was an objectionable economic benefit—in order to induce them to support the Union.  Among other things, the Employer’s offer of proof included an affidavit of a production manager stating he knew that at least 13 voting employees worked jobs at union venues during the critical period before the election, that he saw employees’ social media posts about their staffing of union events, and that he overheard employees discussing those jobs.  The Employer also provided an affidavit of another company employee who stated he would testify to seeing at least 6 unit employees working union events, as well as company records indicating that before the critical period its stagehands had not worked union jobs.  Thereafter, the Regional Director issued a report finding the offer of proof insufficient to warrant a hearing, and, among other things, sustaining challenges to the 4 ballots cast by new employees.  After the Regional Director certified the Union, the Employer filed a Request for Review.  The Board (then-Chairman Pearce, and Members Miscimarra and McFerran) denied the petition, finding it raised no substantial issues warranting review.  Thereafter, the Employer refused to bargain to seek court review.

On review, the Court held that the Board had not acted within its discretion in overruling the election objection without holding a hearing.  Citing in-circuit precedent that recognized the Board’s established standards on whether to hold an objections hearing, the Court disagreed with the Board’s conclusion not to hold a hearing in this case.  Here, the Court noted, the Employer’s offer of proof contained “more than vague, unsubstantiated accusations,” and that “[w]ithout subpoena power, [the employer] produced as much evidence as it had available tending to suggest that non-union voting employees received a sudden increase in offers to work union jobs in the period immediately preceding the election.”  The Court then concluded that such circumstantial evidence of a concerted effort to incentivize unit employees to vote for the Union established a substantial and material factual issue sufficient to warrant a hearing.  Finally, the Court upheld that Board’s rulings on the challenged ballots based on the clear and unambiguous terms of the stipulated election agreement.

The Court’s opinion is here.

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Administrative Law Judge Decisions

LA Specialty Produce Company  (32-CA-207919; JD(SF)-17-18)  Hayward, CA.  Administrative Law Judge Amita Baman Tracy issued her decision on June 28, 2018.  Charge filed by Teamsters Local 70, International Brotherhood of Teamsters.

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