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Summary of NLRB Decisions for Week of March 5 - 9, 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

Daviola Productions, LLC d/b/a Imaginarium  (28-CA-204315; 366 NLRB No. 25)  Las Vegas, NV, March 5, 2018.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file a timely answer to the complaint.  Accordingly, the Board found the Respondent violated Section 8(a)(1) and (3) by causing an employee to be moved from full-time to on-call status because he engaged in protected concerted activities and because of his support for, and activities on behalf, of a union.

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

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Delaware County Memorial Hospital, a Division of Crozer Keystone Health System and Crozer-Chester Medical Center, a Division of Crozer-Keystone Health System  (04-CA-172296 and 04-CA-172313; 366 NLRB No. 28)  Philadelphia, PA, March 7, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondents violated Section 8(a)(5) and (1) by refusing the Union’s request for production of the Asset Purchase Agreement governing the Respondents’ sale to a third party based on the Respondents’ unsupported claim of confidentiality.  In reliance on United States Postal Service, 364 NLRB No. 27 (2016), a panel majority, consisting of Members Pearce and McFerran, adopted the judge’s remedy, which directs the Respondents to provide the Union with the Asset Purchase Agreement in its entirety.  Contrary to his colleagues, Member Emanuel, dissenting in part, would order the Respondents to engage in accommodative bargaining with the Union.

Charges filed by Pennsylvania Association of Staff Nurses and Allied Professionals. Administrative Law Judge Benjamin W. Green issued his decision on February 21, 2017.  Members Pearce, McFerran, and Emanuel participated.

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Mike-Sell’s Potato Chip Co.  (09-CA-094143; 366 NLRB No. 29)  Dayton, OH, March 7, 2018.

In this compliance proceeding, the Board adopted the Administrative Law Judge’s backpay conclusion and evidentiary determinations that precluded the Respondent from introducing evidence of an alleged impasse to toll the backpay award, precluded the Respondent from introducing evidence of an overpayment of benefits to offset its backpay liability, and precluded the Union from introducing evidence of a backpay liability theory that is contrary to the General Counsel’s theory in the compliance specification.  The compliance case arises from an unfair labor practice proceeding where the judge found that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing its bargaining offer in the absence of a valid impasse.

Charge filed by General Truck Drivers, Warehousemen, Helpers, Sales and Service, and Casino Employees, Teamsters Local Union No. 957.  Administrative Law Judge David I. Goldman issued his decision on October 6, 2017.  Chairman Kaplan and Members Pearce and McFerran participated.

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Meyer Tool, Inc.  (09-CA-185410; 366 NLRB No. 32)  Cincinnati, OH, March 9, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by summoning the police for, suspending, and later discharging an employee.  The Board clarified that, pursuant to Atlantic Steel, 245 NLRB 814 (1979), when an employee is disciplined or discharged for conduct that is part of the res gestae of protected concerted activity, the proper inquiry is whether the conduct is sufficiently egregious or opprobrious to remove it from the Act’s protection.  A panel majority, consisting of Chairman Kaplan and Member Emanuel, affirmed the judge’s finding that all four Atlantic Steel factors weighed in favor of finding that the employee’s conduct remained protected.  Contrary to his colleagues, Member Emanuel found that the third factor—nature of the outburst—weighed against protection, but, on balance, he found that the employee’s conduct did not lose the Act’s protection.

Charge filed by an individual.  Administrative Law Judge Andrew S. Gollin issued his decision on June 12, 2017.  Chairman Kaplan and Members Pearce and Emanuel participated.

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Saint Xavier University  (13-CA-204564; 366 NLRB No. 31)  Chicago and Orland Park, IL, March 9, 2018.

The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

Charge filed by Saint Xavier University Adjunct Faculty Organization, IEA-NEA.  Chairman Kaplan and Members Pearce and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Case Decisions.

C Cases

Nevada Property 1, LLC d/b/a The Cosmopolitan of Las Vegas  (28-CA-199763, et al.)  Las Vegas, NV, March 5, 2018.  The Board denied the Respondent’s Motion for Summary Judgment on the ground that the Respondent failed to establish that there were no genuine issues of material fact warranting a hearing and that it was entitled to judgment as a matter of law.  Charges filed by International Union of Operating Engineers, Local 501.  Chairman Kaplan and Members Pearce and McFerran participated.

AM Property Holding Corp., Maiden 80/90 NY LLC, and Media Technology Centers, LLC, a single employer, a joint employer with Planned Building Services, Inc.  (02-CA-033146-1, et al.)  New York, NY, March 6, 2018.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 365 NLRB No. 162 (2017), on the basis that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  In the underlying case, the Board found that Respondent, as an individual successor employer, violated Section 8(a)(5) and (1) by failing and refusing to bargain with the Union.  Member Emanuel did not participate in the underlying decision and expressed no view whether it was correctly decided, but agreed that the Motion for Reconsideration should be denied.  Charges filed by Local 32BJ, Service Employees International Union.  Members Pearce, McFerran, and Emanuel participated.

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Appellate Court Decisions

Hacienda Hotel, Inc. Gaming Corp. d/b/a Hacienda Resort Hotel and Casino and Sahara Nevada Corp. d/b/a Sahara Hotel and Casino, Board Case No. 28-CA-013274 (reported at 363 NLRB No. 7) (9th Cir. decided February 27, 2018)

In a published opinion, the Court granted the Petition for Review filed by Local Joint Executive Board of Las Vegas, Culinary Workers Union Local 226, and Bartenders Union Local 165, vacated the Board’s decision, and remanded the case to the Board with the express instruction that the Board award standard make-whole relief.

This case has a lengthy procedural history dating back to 1995, when these operators of hotels and gambling casinos in Las Vegas, Nevada, ceased checking off dues and remitting them to the Union after the parties’ collective-bargaining agreements expired.  The General Counsel issued a complaint alleging that the cessation of dues checkoff was unlawful.  In 2000, the Board issued its first decision, affirming the Administrative Law Judge’s dismissal of the complaint.  Hacienda Resort Hotel & Casino, 331 NLRB 665.  The Board relied on the settled law that a dues-checkoff obligation expires with the agreement that created it, even absent a contractual union-security clause, citing Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), aff’d in relevant part sub nom. Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir. 1963); Tampa Sheet Metal, 288 NLRB 322, 326 n.15 (1988).  On review, the Ninth Circuit held that it could not discern the Board’s rationale for excluding dues checkoff from the usual rule against unilateral changes in the absence of a union-security clause and remanded the case to the Board so that it could articulate a reasoned explanation for the rule or adopt a different rule and present a reasoned explanation to support it.  Local Joint Executive Board of Las Vegas v. NLRB, 309 F.3d 578, 580, 586 (9th Cir. 2002).  In 2007, the Board issued a supplemental decision reaffirming the complaint dismissal based on language in the dues-checkoff clauses of the parties’ agreements explicitly limiting the checkoff obligation to the duration of those agreements.  Hacienda Resort Hotel & Casino, 351 NLRB 504.  Back on review, the Ninth Circuit rejected the Board’s finding that this contractual language amounted to a clear and unmistakable waiver of the Union’s right to bargain over the cessation of dues checkoff, and again remanded the case for further proceedings.  Local Joint Executive Board of Las Vegas v. NLRB, 540 F.3d 1072, 1082 (9th Cir. 2008).

In 2010, the Board issued a second supplemental decision, but with the four participating Board members equally divided on the remanded issue, which required the Board to offer a new explanation for its existing rule or overrule that precedent, the Board unanimously agreed that its decision-making practices required it to apply existing precedent, namely, Bethlehem Steel and Tampa Sheet, and again dismissed the complaint.  Hacienda Resort Hotel & Casino, 355 NLRB 742.  On review, the Ninth Circuit again remanded the case, finding that while the Board’s traditions may require three votes to reverse or establish precedent, the Board had not provided a reasoned explanation for its rule excluding dues checkoff from the unilateral-change doctrine in right-to-work states.  Turning to the merits, the Court held that “in a right-to-work state, where dues checkoff does not exist to implement union security, dues checkoff is akin to any other term of employment that is a mandatory subject of bargaining,” and may not be unilaterally terminated after contract expiration.  The Court thus concluded that the Employers violated Section 8(a)(5) and (1) by ceasing dues deduction without bargaining to impasse.  Id.  To the remedy the violation, the Court remanded the case for the Board “to determine what relief is warranted.”  Local Joint Executive Board of Las Vegas v. NLRB, 657 F.3d 865, 876 (9th Cir. 2011).

Then, in its third supplemental decision, which was currently under review in the Ninth Circuit, the Board (Members Miscimarra, Hirozawa, and McFerran) accepted as the law of the case the Court’s finding that the Employers unlawfully unilaterally ceased dues check-off.  For the remedy, the Board ordered the Employers to bargain with the Union before making unilateral changes to employees’ terms and conditions of employment, to rescind the unlawful cessation of dues checkoff, and to post a notice.  The Board (Member Hirozawa dissenting) found, however, that make-whole relief, namely, reimbursement to the Union of dues the Employers failed to check off, was not warranted in the unusual circumstances in this case.  The Board explained that, properly rationalized or not, the rule in Bethlehem Steel had been in place for decades, and the Employers had relied on it in ceasing dues checkoff after contract expiration in 1995.  The Board concluded that, in these circumstances, it “would not be appropriate to order make-whole relief, which would carry with it a requirement that compound interest be paid on all amounts due.”  In addition, the Board found such relief was not necessary to effectuate the Act’s purposes because the Employers “correctly believed they were following settled Board law” when they acted in 1995, and there was “no reason to believe that they w[ould] not continue to abide by Board law.”  The Union filed a Motion for Reconsideration, which was denied.

Now on review, the Court concluded for two reasons that the Board abused its discretion in declining to award make-whole relief.  First, the Court held that the Board did not provide a valid explanation for departing from its standard remedy in dues-checkoff cases.  In particular, the Court found the Board’s reliance-based explanation was improper, because “it was unreasonable for the [E]mployers to rely on Board precedent that had never been applied in a reasoned manner in the absence of a union security clause,” and found the Board’s other explanations similarly unavailing.  Second, the Court stated that by ordering prospective-only relief against these now defunct entities, the Board effectively ordered no relief at all and therefore the remedy did not effectuate the policies of the Act, as required by Section 10(c).  Accordingly, the Court remanded for the Board to award standard make-whole relief.

The Court’s opinion is here.

Equinox Holdings, Inc., Board Case No. 20-CA-167342 (reported at 365 NLRB No. 3) (D.C. Cir. decided March 6, 2018)

In a published opinion, the Court enforced the Board’s bargaining order issued against this operator of three fitness facilities in San Francisco, California, after its maintenance and building operations employees voted 41-33 in a June 2015 election to be represented by Service Employees International Union, Local 87.

In the underlying representation case, a hearing was held on the Employer’s election objections.  The Hearing Officer found that the credited testimony established that, in the critical period before the election, an employee had brought an airsoft gun to work in his backpack and the Employer responded by summoning the police, who briefly handcuffed the employee before determining that the gun was not a real firearm.  The Employer suspended and later discharged the employee.  Thereafter, the Union designated the employee as an election observer and did not learn of the fake-gun incident until shortly before the election—too late to select and train a substitute.  The Hearing Officer recommended overruling the Employer’s objection that alleged that the employee’s service as an observer coerced employees into voting for the Union, finding that the Employer failed to connect the fake-gun incident to the Union or the election.

The Hearing Officer also determined that the evidence indicated, at most, that some employees circulated unsubstantiated rumors about the Immigration and Customs Enforcement (ICE), but that the rumors did not reference any threat, as the Employer had claimed, that the Union would call ICE if it lost the election.  Lastly, at hearing, the Employer requested enforcement of a subpoena to compel an employee to testify, which the Hearing Officer denied after determining that no offer of proof had been made and that the harm caused by the delay in seeking enforcement of the subpoena would override any potential benefit, if any, of the testimony.  The Regional Director issued a decision adopting the Hearing Officer’s recommendations, and certified the Union.  The Employer then requested review, which was denied by the Board (then-Chairman Pearce and Member Hirozawa; Member Miscimarra dissenting in part).  The Employer refused to bargain to challenge the certification.

On review, the Court upheld the Board’s overruling of the Employer’s election objections.  The Court explained that there was no credited evidence in support of the allegation that the Union had threatened to call ICE, and no evidentiary connection established between the fake-gun incident and that employee’s service as an election observer.  On the issue of the Board’s denial of the request for subpoena enforcement, the Court noted that the Employer never made a proffer that the testimony might have been crucial to its asserted objection.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Shirley Express, LLC and RLS Transportation, LLC as a single and/or joint employers  (22-CA-141644 and 22-CA-149763; JD(NY)-06-18)  Newark, NJ.  Administrative Law Judge Lauren Esposito issued her decision on March 6, 2018.  Charges filed by Building Material Teamsters Local 282.

Matson Terminals, Inc.  (20-CA-178312; JD(SF)-03-18)  Honolulu, HI, March 6, 2018.  Errata to February 20, 2018 decision of Administrative Law Judge Amita Baman Tracy.  Errata   Amended Decision.

United States Postal Service  (28-CA-175106; JD(SF)-07-18)  Las Vegas, NV.  Administrative Law Judge Mara-Louise Anzalone issued her decision on March 9, 2018.  Charge filed by an individual.

Senior Philanthropy of Cheshire, LLC d/b/a Cheshire Regional Rehab Center  (01-CA-184184; JD-17-18)  Cheshire, CT.  Administrative Law Judge Paul Bogas issued his decision on March 9, 2018.  Charge filed by an individual.

M&M Affordable Plumbing  (13-CA-121459; JD-16-18)  Rockdale, IL.  Administrative Law Judge Melissa M. Olivero issued her decision on March 9, 2018.  Charge filed by an individual.

Sysco Grand Rapids, LLC  (07-CA-146820, et al.; JD-15-17)  Grand Rapids, MI, March 9, 2018.  Erratum to March 2, 2017 decision of Administrative Law Judge Michael A. Rosas.  Errata   Amended Decision.

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