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Summary of NLRB Decisions for Week of June 4 - 8, 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

Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., as a single employer and/or joint employer  (25-CA-163189, et al.; 366 NLRB No. 93)  Muscatine, IA, June 6, 2018.

The Board denied the Respondents’ Motion for Reconsideration of the Board’s Order Vacating Decision and Order and Granting Reconsideration in Part reported at 366 NLRB No. 26 (2018), which vacated the Board’s Decision and Order reported at 365 NLRB No. 156 (2017).  The Board found that the order granting reconsideration was properly issued based on the determination made by the Agency’s Designated Agency Ethics Official (DAEO).  Chairman Ring and Member Kaplan, concurring, noted that while the DAEO’s determination was unprecedented, the Board had “no room in the context of this case to question the DAEO’s determination or her authority to make it.”  They also noted that, “[t]o ensure clarity going forward for all concerned, we believe the Board should undertake a thorough internal review of its recusal practices and procedures.”  Members Pearce and McFerran, concurring, stated that the Board’s reliance on the DAEO’s action did not violate due process, and that the DAEO’s determination, in any event, “is not a matter to be litigated by the General Counsel and adjudicated by the Board.”

Charges filed by individuals.  Administrative Law Judge Robert A. Ringler issued his decision on November 14, 2016.  Chairman Ring and Members Pearce, McFerran, and Kaplan participated.

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Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., as a single employer and/or joint employers  (25-CA-163189, et al.; 366 NLRB No. 94)  Muscatine, IA, June 6, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondents violated Section 8(a)(1) by discharging five Hy-Brand employees and two Brandt employees because of the employees’ protected concerted work stoppages.  The Board affirmed the judge’s finding that the Respondents were jointly and severally liable for the violations found as a single employer and found it unnecessary to pass on the judge’s finding that the Respondents were joint employers.

Charges filed by individuals.  Administrative Law Judge Robert A. Ringler issued this decision on November 14, 2016.  Chairman Ring and Members Pearce and McFerran participated.

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Bristol Industrial Corporation and C.O. Sabino Corporation (single and joint employers)  (04-CA-148573 and 04-CA-153165; 366 NLRB No. 101)  New Castle, DE, June 7, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondents were a single employer and violated Section 8(a)(3) and (1) by discharging two employees in response to their union activity.  A Board majority (Members Pearce and McFerran) adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by summoning police in response to employees’ union activity.  The Board reversed the judge and found that the Respondents also violated Section 8(a)(1) by interrogating an employee about his union activity.

Charges filed by Metropolitan Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, Southeastern Pennsylvania, State of Delaware and Eastern Shore of Maryland.  Administrative Law Judge Susan A. Flynn issued her decision on December 2, 2016. Members Pearce, McFerran, and Emanuel participated.

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J.H. Reid General Contractor  (22-CA-199736; 366 NLRB No. 102)  South Plainfield, NJ, June 7, 2018.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(5) and (1) by failing to: (1) remit dues to the Union collected from employees; (2) make contributions to benefit funds owed on behalf of the employees pursuant to the collective bargaining agreement between the parties; and (3) provide the Union with relevant, requested information.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International (USW), AFL-CIO, CLC and its Local 15024. Members Pearce, Kaplan, and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

West Virginia American Water Co.  (09-RC-219179)  Huntington, WV, June 4, 2018.  The Board denied the Employer’s Request to Stay the election pending the resolution of litigation in the United States District Court for the Western District of Pennsylvania regarding the Intervenor’s action imposing a trusteeship on the Petitioner.  The Board instead found that the circumstances of this case warrant impounding the ballots, in order to permit additional time for the Board to determine the impact, if any, of the pending federal court litigation on the processing of the instant petition.  Chairman Ring and Member Kaplan stated that they express no view regarding whether they agree or disagree with revisions made by the Board’s Election Rule, but agree that it applies here and warrants denial of the Employer’s Request to Stay the election, without prejudice to the Board’s subsequent consideration of the merits of the Employer’s Request for Review.  Petitioner— Utility Workers United Association, Local 537.  Intervenor— Utility Workers Union of America, AFL-CIO, CLC, and its Local 537.  Chairman Ring and Members Pearce and Kaplan participated.

Inwood Material Terminal LLC  (29-RD-206581)  Inwood, NY, June 4, 2018.  The Board granted the Motion of the National Right to Work Legal Defense Foundation to file a brief amicus curiae.  Petitioner— an individual.

Pacific Gas and Electric Company  (32-RC-213182)  Northern California, CA, June 7, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and Certification of Representative as it raised no substantial issues warranting review.  Petitioner— Engineers and Scientists of California, Local 20, IFPTE, AFL-CIO/CLC.  Chairman Ring and Members Pearce and Kaplan participated.

C Cases

Charter Communications, LLC  (07-CA-140170, et al.)  Saginaw and Bay City, MI, June 7, 2018.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision reported at 366 NLRB No. 46 (2018).  Charges filed by individuals.  Members Pearce, McFerran, and Emanuel participated.

United States Postal Service  (10-CA-200615, et al.)  Raleigh, Greensboro, and Rocky Mount, NC, June 8, 2018.  The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified the action the Respondent must take to comply with the Act.  The complaints alleged that the Respondent violated Section 8(a)(5) and (1)  by unreasonably delaying in providing relevant and necessary information.  Charges filed by the American Postal Workers Union, AFL-CIO, Local 1078; National Postal Mail Handlers Union, AFL-CIO, Local 305; and American Postal Workers Union, AFL-CIO, Local 591.  Members Pearce, Kaplan, and Emanuel participated.

FCA US, LLC  (08-CA-203727)  Toledo, OH, June 8, 2018.  The Board denied the Employer’s Petition to Revoke the investigative subpoenas ad testificandum, as the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought.  Further, the Board found that the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Members Pearce, Kaplan, and Emanuel participated.

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Appellate Court Decisions

PCMC/Pacific Crane Maintenance Company, Inc. and International Longshore & Warehouse Union, Board Case Nos. 32-CA-021925, et al., and 32-CB-005932 (reported at 362 NLRB No. 120) (D.C. Cir. decided May 29, 2018)

In a published opinion, the Court denied the Petition for Review filed by the International Longshore & Warehouse Union, and granted the Board’s cross-application for enforcement.  In 1990, the Employer began performing marine terminal maintenance and repair work at shipping terminals on the West Coast, and recognized ILWU as the representative of its employees under a multiemployer, coastwide bargaining unit.  By 2000, PCMC was performing maintenance and repair work for various companies at terminals in ports up and down the West Coast.  In 2002, to obtain additional work at terminals in Long Beach and Oakland, California, and Tacoma, Washington, PCMC formed a new company called Pacific Marine Maintenance Company (PMMC), which employed an existing unit of mechanics represented by the International Association of Machinists and Aerospace Workers.  In 2005, after PMMC lost a contract at the Oakland and Tacoma terminals, PMMC ceased doing business at those ports, and PCMC took over that work, which included the unit of mechanics.  Thereafter, PCMC recognized ILWU as the mechanics’ representative, and the Machinists filed unfair-labor-practice charges.

The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that PCMC and PMMC, as a stipulated single employer, unlawfully withdrew recognition from the Machinists and recognized ILWU in violation of Section 8(a)(5) and (2).  In turn, the Board found that ILWU violated Section 8(b)(1)(A) and (2) by accepting recognition at a time when it did not represent a majority of unit mechanics, and by enforcing the terms of its pre-existing collective-bargaining agreement to cover the transferred mechanics.  After the ILWU and Employer each filed a petition for review in the D.C. Circuit, the Employer reached a settlement with the Machinists and dismissed its petition, leaving only ILWU’s petition before the Court.

On review, the Court first concluded that the Employer had an obligation to bargain with the Machinists before it shut down PMMC’s operations.  The Court based that conclusion largely on PCMC and PMMC’s stipulation of their single-employer status, explaining that they “effectively conceded that they (together) were required to bargain with [Machinists] about the ‘terms and conditions’ of its members’ employment at the Oakland and Tacoma terminals.”  In so holding, the Court rejected ILWU’s contention that PMMC had properly terminated its relationship with the Mechanics and that thus PCMC could hire the mechanics without regard to their former union membership.  The Court also rejected ILWU’s argument that the mechanics merged by accretion into the existing coastwide bargaining unit.  Accordingly, the Court explained, because the Machinists “continued as the appropriate bargaining representative for the mechanics at the Oakland and Tacoma terminals after March 31, 2005, ILWU violated [S]ections 8(b)(1)(A) and (2) of the NLRA when it accepted recognition from the [e]mployer.”  Finally, the Court held that ILWU’s challenge to the Board’s remedy was not properly before it, but commented that the issue could be later raised in a compliance proceeding.

The Court’s opinion is here.

Philips Electronics North America Corporation, Board Case No. 26-CA-085613 (reported at 361 NLRB No. 16) (6th Cir. decided under the name Craft v. NLRB, June 5, 2018)

In an unpublished per curiam order, the Court denied the petition filed by the charging party for review of the Board’s dismissal of the complaint allegation that he had been unlawfully discharged in violation of Section 8(a)(1).  On that issue, the Board (Members Miscimarra, Johnson, and Schiffer) adopted, in the absence of exceptions, the Administrative Law Judge’s findings that he engaged in protected activity by discussing and showing his final warning to other employees, that such activity was a motivating factor in his discharge, but found that the Employer would have discharged him for legitimate reasons even in the absence of his protected activities.  Taking the case on submission without oral argument, the Court held that substantial evidence supported the Board’s determination that the Employer would have discharged him for legitimate reasons even in the absence of his protected activities.

The court’s unpublished order may be found here.

Matson Terminals, Inc., Board Case No. 20-CA-187970 (reported at 365 NLRB No. 56) (D.C. Cir. decided June 8, 2018)

In an unpublished judgment in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this operator of stevedoring facilities on the Big Island of Hawaii after its employees who oversee laborers’ loading and unloading of barges voted 6 to 0 to be represented by Hawaii Teamsters & Allied Workers Union, Local 996.

In the underlying representation case, the Employer argued that the employees were supervisors under Section 2(11) of the Act because they had authority to assign, reward, discipline, and responsibly direct laborers, and to adjust their grievances.  After a hearing, the Regional Director issued a decision finding that the Employer had not met its burden of establishing supervisory status.  The Employer filed a Request for Review, which was denied by the Board (then-Chairman Pearce and Member McFerran; Member Miscimarra, dissenting in part).  The Employer then refused to bargain to seek court review.

Before the Court, the Employer reasserted the same five indicia of supervisory status, all of which the court rejected.  First, regarding the authority to assign, the Court agreed with the Board that the employees do not assign laborers when they create plans for the movement of containers that do not specify what any individual laborer will do, and that they do not exercise independent judgment when scheduling laborers based solely on collectively bargained criteria.  Second, as to rewarding, the Court noted that the record contained conflicting testimony on the issue, but citing Avante at Wilson, Inc., 348 NLRB 1056 (2006), it concluded that the Board reasonably “prioritize[d] the testimony of those witnesses who occup[ied] the alleged supervisory role at the time of the hearing,” who denied having that authority.  The Court also noted that the employees’ granting of laborers’ requests to leave early or during the workday was a routine matter not requiring independent judgment.

Third, regarding the claimed authority to discipline, the Court agreed with the Board that the Employer failed to produce evidence that the employees exercised independent judgment in reporting laborers’ obvious policy violations, such as unauthorized absences.  Fourth, the Court explained that the Employer failed to establish responsible direction because, while the Employer contended that the employees “face adverse consequences for the laborers’ failures,” it ignored its burden under Oakwood Healthcare, Inc., 348 NLRB 686 (2006), to also “show that the [e]mployees have authority to take corrective action.”  Fifth, the Court agreed with the Board that the employees did not exercise independent judgment in adjusting laborers’ grievances by simply correcting their hours in accordance with the collective-bargaining agreement.

The Court’s unpublished judgment may be found here.

Colorado Fire Sprinkler Inc., Board Case No. 27-CA-115977 (reported at 364 NLRB No. 55) (D.C. Cir. decided June 8, 2018)

In a published opinion, the Court granted the Petition for Review, vacated the Board’s order, and remanded.  In the decision and order that issued against this construction-industry Employer that installs, services, and inspects fire sprinkler systems in Pueblo, Colorado, the Board (Members Hirozawa and McFerran; Member Miscimarra, dissenting) found that the Employer’s relationship with Road Sprinkler Fitters Local Union No. 669 was governed by Section 9(a), rather than Section 8(f), and that the Employer therefore violated Section 8(a)(5) and (1) by no longer recognizing the Union or paying benefit funds contributions after the parties’ contract expired in 2013.

In 1991, prior to hiring employees, the Employer executed an assent agreement that provided that the Union would represent its journeymen sprinkler fitters and apprentices.  The assent agreement bound the parties to the associated national collective-bargaining agreement between the National Fire Safety Association, Inc., on behalf of contractor members, and the Union, which represents fire safety employees nationwide.  Thereafter, the parties executed a series of assent agreements, the language of which, over time, was modified on the national level.  The specific language of the assent agreement that the parties executed in 2005 stated that the Employer “hereby freely and unequivocally acknowledges that it has verified the Union’s status as the exclusive bargaining representative of its employees pursuant to Section 9(a),” and that “the Union has offered to provide the [employer] with confirmation of its support by a majority of such employees.”  In turn, the 2005 national agreement stated that the Association, on behalf of its contractor-members “recognize[s] the Union as the sole and exclusive bargaining representative” of covered employees.  That language continued in subsequent agreements executed by the parties.

In finding a Section 9(a) relationship, the Board determined that the language of the 2005 agreements met the three-part test of Staunton Fuel & Material, Inc., d/b/a Central Illinois Construction, 335 NLRB 717 (2001).  Under that test, a written agreement between an employer and union in the construction industry will establish a 9(a) relationship if the language unequivocally shows that:  (1) the union requested recognition as the employees’ 9(a) representative; (2) the employer recognized the union as such; and (3) the employer’s recognition was based on the union’s showing, or offer to show, evidence that a majority of employees support the union.  Id. at 719.  Noting that the record contained no evidence that the Union lacked majority support, the Board concluded that the language of the 2005 agreements was sufficient to establish that the parties had a 9(a) relationship, and thus that the Employer had a statutory duty to continue the terms and conditions of the expired contract and negotiate a successor agreement.

On review, the Court disagreed.  Noting the settled presumption that construction-industry contracts are governed by Section 8(f), the Court held that presumption attached here with the parties’ first agreement which was executed before any employees were hired.  The Court then stated that, given that starting point, “the General Counsel bore the burden of proof to overcome the presumption of continued Section 8(f) status with ‘clear’ evidence that both the Union and the Company intended to transition to a Section 9(a) relationship,” quoting Nova Plumbing, Inc. v. NLRB, 330 F.3d 531(D.C. Cir. 2003).  After reviewing its in-circuit precedent that provides “goalposts” for what evidence might meet that burden of proof, the Court concluded that here the record “is bereft of evidence either confirming or controverting majority support,” and that the Board’s holding that contract language was sufficient to establish the 9(a) relationship could not stand.  The Court explained that “[a]lthough actual employee support for the Union was the dispositive issue in the case, the record lacks any affirmative evidence—let alone substantial evidence—of the employees’ views.”

The Court’s opinion is here.

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Administrative Law Judge Decisions

E Source Companies, LLC  (27-CA-202883; JD(SF)-14-18)  Denver, CO.  Administrative Law Judge Dickie Montemayor issued his decision on June 4, 2018.  Charge filed by an individual.

Rockwell Mining LLC  (09-CA-206434; JD-37-18)  Wharton, WV.  Administrative Law Judge Paul Bogas issued his decision on June 4, 2018.  Charge filed by United Mine Workers of America International Union, AFL-CIO.

United Government Security Officers of America International and its Local 129  (04-CB-192246, et al.; JD-22-18)  Scranton, PA.  Administrative Law Judge Robert A. Giannasi issued his decision on June 4, 2018.  Charges filed by individuals.  Errata issued June 7, 2018.  Errata   Amended Decision

Strongsteel of Alabama, LLC  (15-CA-189655, et al.; JD-38-18)  Andalusia, AL.  Administrative Law Judge Robert A. Ringler issued his decision on June 4, 2018.  Charges filed by individuals.

Apex Linen Service Inc.  (28-CA-192349, et al.; JD(SF)-15-18)  Las Vegas, NV.  Administrative Law Judge Ariel L. Sotolongo issued his decision on June 6, 2018.  Charges filed by International Union of Operating Engineers Local 501, AFL-CIO and an individual.

Teamsters “General” Local Union No. 200, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America  (18-CB-202802; JD-39-18)  Oconomowoc, WI.  Administrative Law Judge Charles J. Muhl issued his decision on June 6, 2018.  Charge filed by an individual.

Gubagoo, Inc.  (28-CA-203713; JD(SF)-16-18)  Phoenix, AZ.  Administrative Law Judge Eleanor Laws issued her decision on June 8, 2018.  Charge filed by an individual.

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