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Summary of NLRB Decisions for Week of March 26 - 30, 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

Retro Environmental Inc./Green JobWorks, LLC  (05-CA-199590; 366 NLRB No. 45)  Baltimore and Sykesville, MD, March 26, 2018.

The Board granted the General Counsel’s Motion for Summary Judgment on the basis that there were no material issues of fact regarding the complaint’s allegations warranting a hearing. The Board found that the Respondents violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information that was relevant and necessary to the performance of its duties as the exclusive collective-bargaining representative of the unit.

Charge filed by Construction and Master Laborers’ Local 11, a/w Laborers’ International Union of North America (LIUNA). Chairman Kaplan and Members Pearce and McFerran participated.

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Charter Communications, LLC  (07-CA-140170, et al.; 366 NLRB No. 46)  Bay City, MI, March 27, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by creating the impression that an employee’s union activities were under surveillance on two separate occasions, coercively interrogating an employee about his union activities, closely monitoring an employee because of his union activities, and threatening an employee with discharge for his union activities, and violated Section 8(a)(3) by reassigning three employees to rural areas and discharging an employee.  Contrary to the judge, the Board also found that the Respondent violated Section 8(a)(1) by surveilling employees’ union activities, threatening an employee with closer supervision because of his union activities, and soliciting grievances from an employee, and violated Section 8(a)(3) by discharging two employees.  As a preliminary matter, the Board found that a number of allegations that were predicated on charges that were filed more than 6 months after the allegedly unlawful conduct occurred were closely related to allegations in the timely-filed charges under Redd-I, Inc., 290 NLRB 1115 (1988).  However, the Board dismissed on Section 10(b) grounds the untimely allegation that the Respondent violated Section 8(a)(1) by directing employees to not discuss an investigation with anyone else because that allegation was not closely related to any of the allegations in the timely-filed charges.  Finally, the Board reversed the judge’s dismissal on Section 10(b) grounds of the allegation that Respondent violated Section 8(a)(1) by maintaining several provisions in its “Professional Conduct” policy  because the Respondent stipulated at the hearing that it had continuously maintained the “Professional Conduct” policy since 2014.  The Board severed that allegation and retained it for further consideration.

Charges filed by individuals.  Administrative Law Judge Arthur J. Amchan issued his decision on November 10, 2016.  Members Pearce, McFerran, and Emanuel participated.

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AT&T Services, Inc.  (13-CA-185708; 366 NLRB No. 48)  Chicago, IL, March 27, 2018.

On a stipulated record, the Board concluded that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with the information it requested as to bargaining unit employees’ results on a Respondent-administered test, which affected their contractual entitlement to layoff protection.  The Board found that the requested information is presumptively relevant and that the Respondent failed to show that it had a legitimate and substantial confidentiality interest in the test’s integrity that would genuinely be placed at risk by providing the information.

Charge filed by Communications Workers of America, AFL-CIO, CLC, District 4.  Chairman Kaplan and Members Pearce and McFerran participated.

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Prompt Medical Transportation, Inc. d/b/a Prompt Ambulance Service, Prompt Central, Inc. and GSM Group  (13-CA-202127; 366 NLRB No. 50)  Highland, IN, March 29, 2018.

The Board denied the General Counsel’s Motion for Default Judgment, finding that, given the Respondent’s pro se status, the Respondent’s letter can reasonably be construed as an answer to the complaint as it sufficiently denies the operative facts of the alleged unfair labor practices.  Accordingly, the Board remanded the case to the Regional Director for further appropriate action.

Charge filed by International Association of EMTS and Paramedics (IAEP), SEIU Local 5000.  Chairman Kaplan and Members McFerran and Emanuel participated.

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Excalibur Charter School, Inc.  (28-CA-023039; 366 NLRB No. 49)  Apache Junction, AZ, March 29, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent, a charter school, is not exempt from the Board’s jurisdiction as a “political subdivision” under Section 2(2) of the Act.   Concurring in this finding, Chairman Kaplan suggested that the Board’s precedent refusing to decline jurisdiction over charter schools under Section 14(c)(1) might warrant review by the full Board in a future case.  The Board further adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee.  The Board also agreed with the judge that the Respondent did not promulgate an unlawful rule and/or make an unlawful threat of unspecified reprisals.  Finally, the Board severed and retained for further consideration the judge’s findings pertaining to two handbook rules.

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

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Tito Contractors, Inc.  (05-CA-119008, et al.; 366 NLRB No. 47)  Washington, DC, March 29, 2018.

The Board unanimously affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by promulgating and discriminatorily enforcing an overtime policy requiring employees to obtain advance management approval for overtime because employees engaged in union and other protected concerted activities; discharging six employees because they engaged in union and other protected concerted activities; and encouraging Maryland Environmental Services to request the removal of employees from a jobsite because they engaged in union and other protected concerted activities.  The Board also unanimously adopted the judge’s finding that the Respondent violated Section 8(a)(1) by disciplining an employee pursuant to its discriminatory overtime policy.  Furthermore, the Board unanimously found that the Respondent violated Section 8(a)(1) by equating an employee’s protected concerted activities with disloyalty towards the Respondent; telling an employee that, under an overtime policy memo distributed by the Respondent, those who joined an overtime lawsuit against the Respondent cannot work overtime; interrogating employees individually about their union activities and support; threatening employees with immigration-related consequences and discharges for engaging in union activities; soliciting employees’ grievances and promising to no longer disregard them; and disparaging an employee during a meeting for his support of the Union.  A Board majority (Members Pearce and McFerran) found that the Respondent violated Section 8(a)(3) and (1) by discharging two additional employees because they engaged in union and other protected concerted activities.  Member Emanuel only found that the Respondent violated Section 8(a)(1) by discharging the two employees because they engaged in protected concerted activities and that it was unnecessary to pass on whether the discharges also violated Section 8(a)(3).  The same Board majority (Members Pearce and McFerran) also found that the Respondent violated Section 8(a)(1) by creating an impression of surveillance of employees’ union activities, Member Emanuel did not pass on that allegation because he found the judge’s credibility resolutions with respect to that allegation insufficient.  Lastly, in the absence of exceptions, the Board adopted certain other Section 8(a)(1) violations found by the judge.

Charges filed by International Union of Painters and Allied Trades, District Council 51, AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on November 4, 2014.  Members Pearce, McFerran, and Emanuel participated.

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Neises Construction Corp.  (13-CA-210180; 366 NLRB No. 52)  Crown Point, IN, March 29, 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 recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit employees.

Charge filed by Indiana/Kentucky/Ohio Regional Council of Carpenters.  Chairman Kaplan and Members McFerran and Emanuel participated.

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Natural Life, Inc. d/b/a Heart and Weight Institute  (28-CA-181573; 366 NLRB No. 53)  Las Vegas, NV, March 30, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging its entire sales department for engaging in protected, concerted activity. The Board reversed the judge’s adverse inference against the Respondent for failing to call a former sales manager to testify. Chairman Kaplan and Member Emanuel found it unnecessary to pass on the judge’s conclusion that the Respondent violated Section 8(a)(1) by failing to recall all of the discharged employees, as this would not materially affect the remedy. Member McFerran would have found this violation in the absence of the Respondent’s argument on exceptions. Member McFerran also would have reversed the judge’s dismissal of the allegation that the Respondent promulgated an unlawful rule during the discharge meeting.

Charge filed by an individual. Administrative Law Judge Ira Sandron issued his decision on April 5, 2017. Chairman Kaplan and Members McFerran and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

GNLV Corp. d/b/a Golden Nugget Las Vegas  (28-RC-216070)  Las Vegas, NV, March 29, 2018.  The Board 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.  The Board noted that the Request for Review failed to comply with Section 102.67(e) of the Board’s Rules and Regulations, which requires that the Request for Review be a self-contained document enabling the Board to rule on the issues on the basis of its contents.  The Board also denied as moot the Employer’s Request for extraordinary relief.  Chairman Kaplan and Member Emanuel agreed with the denial of review and request for extraordinary relief but expressed no view with respect to whether they agree or disagree with revisions made by the Board’s Election Rule.  Petitioner –International Brotherhood of Teamsters, Local 986.  Chairman Kaplan and Members McFerran and Emanuel participated.

C Cases

XPO Logistics Freight, Inc.  (13-CA-197878)  Aurora, IL, March 26, 2018.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by Teamsters Local 179.  Chairman Kaplan and Members Pearce and McFerran participated.

Nurse On Call, Inc.  (12-CA-204924)  Orlando, FL, March 26, 2018.  The Board denied the Petition to Revoke an investigative subpoena ad testificandum filed by an individual, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the individual failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman Kaplan and Members Pearce and McFerran participated.

Mastec, Inc.  (31-CA-205653)  Chino, CA, March 28, 2018.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by Communication Workers of America, Local 9510.  Chairman Kaplan and Members Pearce and McFerran participated.

Mercedes-Benz U.S. International, Inc. (MBUSI)  (10-CA-112406)  Vance, AL, March 29, 2018.  The Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  The settlement involved the outstanding complaint allegation, remanded by the Court of Appeals for the Eleventh Circuit, that the Respondent violated Section 8(a)(1) by prohibiting union solicitation and distribution in the Respondent’s team centers.  Charge filed by an individual and by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America.  Chairman Kaplan and Members McFerran and Emanuel participated.

First Student Inc., a Division of First Group America  (07-CA-092212)  Saginaw, MI, March 29, 2018.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 366 NLRB No. 13 (2018).  Chairman Kaplan joined in denying the motion, but he noted that he adheres to his partial dissent in the underlying decision.  Charge filed by Local 9036, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (USW) AFL-CIO.  Chairman Kaplan and Members Pearce and McFerran participated.

Taylor Ridge Paving and Construction Co.  (25-CA-135372)  Taylor Ridge, IL, March 30, 2018.  The Board denied Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 365 NLRB No. 168 (2017).  Charge filed by Local Union No. 309, Laborers’ International Union of North America.  Chairman Kaplan and Members Pearce and McFerran participated.

International Longshore and Warehouse Union, Local 23  (19-CB-175084 and 19-CB-198689)  San Francisco, CA, March 30, 2018.  No exceptions having been filed to the February 9, 2018 decision of Administrative Law Judge Eleanor Laws’ 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 recommended Order.  Charges filed by individuals.

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Appellate Court Decisions

T-Mobile USA, Inc., Board Case No. 01-CA-123183 (reported at 365 NLRB No. 23) (D.C. Cir. decided March 27, 2018)

In an unpublished judgment, the Court enforced the Board’s order issued against this nationwide cell phone service provider for its refusal to bargain for a successor collective-bargaining agreement with the Communication Workers of America, Local 1298, which represents its field technicians, switch technicians, and material handlers in Connecticut.

In 2012, the parties entered into a bargaining agreement.  In August 2013, and again in January 2014, the Employer posted changes to its employee handbook that included adding language that employment was on an “at will” basis.  In February, the Union filed a charge alleging that the “at will” language discouraged employees from engaging in protected activity.  In March, an employee filed a decertification petition supported by a 30-percent showing of interest.  Soon thereafter, employees gave the Employer a separate petition signed by 13 of the 20 unit employees which stated they did “not want to be represented” by the Union.  Pursuant to the blocking-charge rule, the Regional Director held the decertification petition in abeyance while the charge was processed.  That summer, after the contract expired and nascent negotiations had begun, the Employer suspended bargaining over a successor agreement until the representation issue was resolved, but thereafter continued to recognize the Union, abide by the terms of the expired contract, and bargain on interim matters.

The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) found that the Employer violated Section 8(a)(5) and (1) by refusing to bargain for a successor agreement, while continuing to bargain on interim matters of its own choosing.  The Board explained that, under Levitz Furniture Co., 333 NLRB 717 (2001), an employer has two options after it receives evidence of loss of majority support—it can withdraw recognition from the union “at its peril,” or continue to bargain while the Board processes a decertification petition.  Instead, the Board stated, the Employer here “unilaterally chose which parts of the bargaining relationship it would honor, thereby refusing to fulfill all of its normal bargaining obligations.”  The Board found that the Employer’s selective refusal to bargain was contrary to Levitz, “wholly inconsistent with the Act’s policy to foster stable collective bargaining relationships,” and inconsistent with its policy disfavoring “piecemeal bargaining” during contract negotiations.

On review, the Court (Circuit Judges Rogers and Tatel, Senior Circuit Judge Sentelle filing a dissenting statement) stated that the “balancing of interests reflected in Levitz represents the type of policy decision Congress intended for the Board.”  The Court then reviewed the Board’s analysis here, and upheld it as being consistent with Levitz and the policies of the Act.  The Court also held that, contrary to the Employer’s argument, the Board had not departed from its own precedent.  The dissenting statement expressed the view that, although the Board approved two options in Levitz, “it did not conclude that a lesser path between the two extreme options was impermissible.”

The circuit court’s judgment may be found here.

Publi-Inversiones de Puerto Rico, Inc. d/b/a El Vocero de Puerto Rico, Board Case No. 12-CA-120344 (reported at 365 NLRB No. 29) (D.C. Cir. decided March 30, 2018)

In a published opinion, the Court enforced the Board’s Order issued against this newspaper publisher for violating Section 8(a)(5) and (1) by failing, as the successor employer after the bankruptcy of Caribbean International News Corporation, to recognize and bargain with the employees’ bargaining representative, Union De Periodistas, Artes Graficas Yramas Anexas, Local 33225, at a facility in Puerto Rico.

The Board (Acting Chairman Miscimarra and Members Pearce and McFerran) found that the Employer continued Caribbean’s operations in substantially unchanged form, hired a bargaining-unit workforce consisting primarily of the predecessor’s bargaining-unit employees, and refused the Union’s demands for recognition, bargaining, and information.  Applying the successorship doctrine of Fall River Dyeing and Finishing Corp., 482 U.S. 27 (1987), and NLRB v. Burns International Security Services, 406 U.S. 272 (1972), the Board held that the Employer was a successor employer obligated to recognize, bargain with, and provide information to the Union that represented the predecessor’s unit employees.  The Board also found that the Employer failed to meet its burden of showing that the historical unit was no longer appropriate.  Specifically, the Board rejected the Employer’s contention that its magazine inserters, who were not members of the historical unit, shared a community of interest with unit employees and thus should have been included in the unit, an outcome that would have resulted in the Union’s loss of majority status.  The Board explained that the Employer failed to show “compelling circumstances to overcome the appropriateness of the historical bargaining unit.”

On review, the Court recognized the well-settled principles of successorship, and held that the Burns successorship requirements were met in this case.  In rejecting the Employer’s defense that the magazine inserters should have been included in the bargaining unit, the Court expressed its view that “in any case—whether involving a successor or not—if a unit sought by a union has a prior bargaining history the Board can, legitimately, weigh that factor heavily.”  In other words, the Court explained, “in a successorship case, as in any representation case, a historical unit can be rejected only if ‘truly inappropriate,’” quoting Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421 (D.C. Cir. 2008).

The court’s opinion is here.

International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada Local No. 151 (SMG and the Freeman Companies d/b/a Freeman Decorating Services), Board Case No. 14-CB-101524 (reported at 364 NLRB No. 89) (8th Cir. decided March 26, 2018)

In a published opinion, the Court enforced the Board’s order that issued against this Union for multiple violations of Section 8(b)(1)(A) and (2).  The case arose from the Union’s operation of a hiring hall, and its referral of members and nonmember employees who work as stagehands and lighting and rigging technicians to jobs run by two Employers that produce shows in the Lincoln, Nebraska area, namely, SMG and Freeman Decorating Services, Inc.

The Board (then-Chairman Pearce and Members Miscimarra and Hirozawa) found that that SMG and Freeman met the Board’s discretionary jurisdictional standard for non-retail businesses, and therefore that the Board had jurisdiction over them.  With regard to the Union’s conduct, the Board found that it operated exclusive hiring halls with respect to both Employers; that it unlawfully granted priority to its members over nonmembers in referring them to jobs at both Employers; and that it refused to refer two employees to jobs at Freeman, and suspended them and five other members from its exclusive hiring hall, all for discriminatory and arbitrary reasons.  The Board further found that the Union unlawfully refused to pay bonuses from its vacation fund to five members and all nonmembers, and unlawfully maintained rules that authorized it to refuse to refer employees to jobs unless they first paid Union fines and assessments.

On review, the Court held that substantial evidence supported the Board’s findings in all aspects.  The Court noted that the Union provided no legal authority in support of its argument that the Board lacked jurisdiction over the Employers.  Moreover, the Court determined that the Union’s arguments that it did not operate an exclusive hiring hall, as well as the Union’s contentions in defense against the unfair-labor-practice findings, were flawed because they relied substantially on discredited witness testimony or were otherwise contrary to settled law.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Arbor Recycling/Arbor Lite Logistics, a single employer  (02-CA-180470, et al.; JD(NY)-07-18)  New York, NY.  Administrative Law Judge Kenneth W. Chu issued his decision on March 26, 2018.  Charges filed by Amalgamated Local 1931.

Tops Markets, LLC  (03-CA-192010 and 03-CA-196668; JD-20-18)  LaGrangeville, NY.  Administrative Law Judge Elizabeth M. Tafe issued her decision on March 26, 2018.  Charges filed by United Food and Commercial Workers, Local 464A.

Montauk Student Transport, LLC (02-CA-174131, et al.; JD(NY)-21-17) New York, NY.  Errata to November 30, 2017 decision of Administrative Law Judge Benjamin W. Green.  Errata   Amended Decision.

Cytec Process Materials (CA), Inc.  (21-CA-187639, et al.; JD(SF)-08-18)  Los Angeles, CA.  Administrative Law Judge John T. Giannopoulos issued his decision on March 27, 2018.  Charges filed by International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 725.

Consolidated Communications Holdings, Inc. d/b/a Consolidated Communications of Texas Company  (16-CA-196201; JD-21-18)  Conroe, TX.  Administrative Law Judge Robert A. Ringler issued his decision on March 27, 2018.  Charge filed by Communication Workers of America, AFL-CIO.

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