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Summary of NLRB Decisions for Week of May 15 - 19, 2017

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

Matrix Equities, Inc.  (29-CA-168345; 365 NLRB No. 69)  Port Jefferson Station, NY, May 15, 2017.

The Board unanimously adopted the Administrative Law Judge’s dismissal of the complaint alleging, pursuant to Parexel International, LLC, 356 NLRB 516 (2011), that the Respondent unlawfully discharged the Charging Party in an attempt to suppress future protected concerted activity, but did not rely on the judge’s rationale.  Initially, although Chairman Miscimarra would have adopted the judge’s finding that the Charging Party was a managerial employee and therefore did not enjoy the protections of the Act, a majority of the Board (Members Pearce and McFerran) found it unnecessary to pass on that issue given the ultimate finding that the discharge was lawful.  In applying Parexel and adopting the dismissal, the Board found that there was insufficient evidence that the Respondent’s decision to discharge the Charging Party was motivated by an intent to suppress protected activity.  Chairman Miscimarra noted his disagreement with the Board’s decision in Parexel, but he agreed with the majority that Parexel is distinguishable and that the General Counsel did not establish that the Respondent acted with the intent to suppress future protected concerted activity.

Charge filed by an individual.  Administrative Law Judge Raymond P. Green issued his decision on July 12, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated. 

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BHC Northwest Psychiatric Hospital, LLC d/b/a Brooke Glen Behavioral Hospital  (04-CA-164465 and 04-CA-174166; 365 NLRB No. 79)  Fort Washington, PA, May 15, 2017.

The Board dismissed the complaint.  In adopting the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(5) and (1) by refusing to bargain in the presence of non-unit employees during one bargaining session, the Board relied solely on the fact that Respondent bargained in the presence of those non-unit employees the very next day.  In adopting the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(3) and (1) by discharging a unit employee, a majority (Members Pearce and McFerran) found that, even assuming that the General Counsel established that the employee’s union activity was a motivating factor in the Respondent’s decision to discharge her, the Respondent established that it would have discharged her even in the absence of that activity.  Concurring, Chairman Miscimarra would have adopted the judge’s finding that the Respondent’s sole motivation for discharging the employee was her misconduct. 

Charges filed by Brooke Glen Nurses Association, Pennsylvania Association of Staff Nurses and Allied Professionals.  Administrative Law Judge Robert A. Giannassi issued his decision on October 5, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Dish Network LLC (27-CA-158916; 365 NLRB No. 47) Englewood, CO, May 15, 2017.  Errata issued for Decision and Order issued on April 13, 2017.  Errata   Amended Decision.

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Jam Productions, Ltd., Event Productions, Inc., Standing Room Only, Inc. and Victoria Operating Co., a single employer  (13-CA-186575; 365 NLRB No. 75)  Chicago, IL, May 16, 2017.

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.  In the underlying representation proceeding, Chairman Miscimarra would have overruled four ballot challenges sustained by the Regional Director, and would have denied the Union’s request for review with respect to five additional ballots challenged by the Board agent.  While he remains of that view, he agreed that the Respondent did not raise any new matters that are properly litigable in this unfair labor practice proceeding and that summary judgment is appropriate.

Charge filed by Theatrical Stage Employees Union Local No. 2, IATSE.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Western Cab Company  (28-CA-131426, et al.; 365 NLRB No. 78)  Las Vegas, NV, May 16, 2017.

The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to bargain over discretionary discipline of employees during first-contract negotiations.  The Board observed that, although the recent Total Security decision (364 NLRB No. 106) imposed such a bargaining obligation, it did so only prospectively and thus did not control this case.  The Board affirmed the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to bargain over its provision of health insurance to recently-hired employees, noting that, while the Affordable Care Act mandated new requirements for employer-provided insurance, the Respondent still possessed discretion as to its compliance with those requirements.  Finally, the Board affirmed the judge’s dismissal of allegations that the Respondent violated Section 8(a)(1) by removing a periodical containing a Union ad from its breakroom, and by unlawfully disparaging the Union or interrogating employees.

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied-Industrial and Service Workers International Union, AFL-CIO/CLC.   Administrative Law Judge Ariel L. Sotolongo issued his decision on September 2, 2015.  Chairman Miscimarra and Members Pearce and McFerran participated.

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MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino/HG Staffing  (32-CA-134057; 365 NLRB No. 76)  Reno, NV, May 16, 2017.

The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by denying a former employee access to a nightclub on its entertainment premises because she had filed a work-related class and collective action lawsuit against the Respondent.  The majority agreed with the judge that, by singling out its former employee contrary to its practice of granting access to former employees as it would to the general public, the Respondent engaged in unlawful retaliation that would deter its employees from participating in a work-related lawsuit or in other protected concerted activity.  Chairman Miscimarra would have found that the Respondent’s actions were not motivated by the filing of the lawsuit; that the Board cannot defend the interest of employees in pursuing rights arising under another statute; and that an employer’s business interests should be balanced against employees’ rights under the Act.

Charge filed by an individual.  Administrative Law Judge Gerald M. Etchingham issued his decision on May 4, 2015.  Chairman Miscimarra and Members Pearce and McFerran participated.

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ADT, LLC, Employer-Petitioner  (16-RM-123509; 365 NLRB No. 77)  Carrollton, TX, May 17, 2017.

The Board  (Members Pearce and McFerran; Chairman Miscimarra, dissenting) vacated the direction of an election and dismissed the petition, finding that the Employer’s petition did not meet the requirements of Section 9(c)(1)(B).  The Employer-Petitioner had filed a petition seeking an election in a unit of all of its technicians at four of its facilities after its reorganization of represented and unrepresented technicians into combined and new locations.  The majority emphasized that to warrant processing a petition under Section 9(c)(1)(B), an employer must demonstrate both that the union has made a claim for recognition and, by objective considerations, that the employer has a reasonable good faith uncertainty as to the union’s continuing majority status in the unit it currently represents.  The majority found that statements attributed to the Union’s representative did not constitute a demand for recognition of the combined group of technicians or of a separate unit excluding the unrepresented technicians.  The majority also found that the Employer failed to demonstrate a reasonable good-faith uncertainty regarding the Union’s majority status as it relied solely on the reorganization of its operations and the fact that the overall number of unrepresented technicians exceeded the number of represented technicians following the reorganization.  In rejecting this evidence, the Board emphasized that the Union had never sought to represent the unrepresented technicians or apply the parties’ contract to them.

Dissenting, Chairman Miscimarra would affirm the Regional Director’s decision to process the petition.  In his view, the preacquisition unit of represented technicians did not exist post-acquisition and restructuring, and those facts call into question the continuing majority status of the Union in the only appropriate unit here—the merged unit in which unrepresented technicians outnumber historically represented technicians.  Moreover, and contrary to the majority, he believes that the Union had taken measures that could only be understood as a claim for recognition in the consolidated unit of technicians.  Thus, in his view, the Board should direct an election, as the preferred means of resolving a question regarding whether a union enjoys majority status in an appropriate bargaining unit.    

Petitioner – ADT, LLC.  Union – Communication Workers of America, Local 6215.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Cristal USA, Inc.  (08-RC-184947; 365 NLRB No. 82)  Ashtabula, OH, May 18, 2017.

The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review of the ARD’s finding that a bargaining unit consisting of the Employer’s Plant 2 North production employees (and excluding Plant 2 South production and warehouse employees) is appropriate.  In dissent, Chairman Miscimarra noted that the Regional Director had applied the Board’s Specialty Healthcare decision, which he believes was wrongly decided for the reasons he stated in Macy’s, Inc., 361 NLRB No. 4 (2014).  He views the functional integration of the plants at issue, as well as the common working conditions shared by the production and warehouse employees, as indicating that the petitioned-for unit of Plant 2 North production employees would create instability because of its status as a fractured or fragmented bargaining unit.

Petitioner – International Chemical Workers Union Council of United Food & Commercial Workers International Union, AFL-CIO, CLC.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Rainbow Medical Transportation, LLC  (28-CA-166617; 365 NLRB No. 80)  Holbrook, AZ, May 18, 2017.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by: (1) promulgating an overly broad and discriminatory rule prohibiting employees from openly discussing terms and conditions of employment; and (2) discharging the Charging Party for violating that rule and for filing complaints with the Hopi Revenue Commission and the Tribal Employment Rights Office.

Charge filed by an individual.  Administrative Law Judge Gerald M. Etchingham issued his decision on December 15, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Audio Visual Services Group, Inc. d/b/a PSAV Presentation Services  (19-CA-167454; 365 NLRB No. 84)  Seattle, WA, May 19, 2017.

The Board granted the General Counsel’s cross-motion for summary judgment and denied the Respondent’s motion for summary judgment, finding that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit while its Request for Review of the Regional Director’s certification of representative was pending with the Board.  The Board explained that the Respondent acted at its peril by relying on its filing of a request for review in refusing to bargain with the certified Union.

Charge filed by International Alliance of Theatrical Stage Employees, Local 15.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Local 876, International Brotherhood of Electrical Workers (IBEW), AFL-CIO (Newkirk Electric Associates, Inc.)  (07-CD-182456; 365 NLRB No. 81)  Muskegon, MI, May 19, 2017.

In this Section 10(k) jurisdictional dispute between Local 876, International Brotherhood of Electrical Workers (IBEW), and Local 324, International Union of Operating Engineers, the Board found that there was no agreed-upon method for the voluntary adjustment of the dispute because Local 876 (IBEW) was not subject to the Building and Construction Trades Department, AFL-CIO’s Plan for the Settlement of Jurisdictional Disputes in the Construction Industry.  The Board awarded the work in dispute (use of equipment in connection with cell towers) to employees represented by Local 876, IBEW, based on the factors of employer preference, current assignment, past practice, and economy and efficiency of operations.

Charge filed by Newkirk Electric Associates, Inc.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

General Grocery Warehouse & Dairy Division  (22-RD-188411)  Carlstadt, NJ, May 17, 2017.  The Board found that the Employer’s Request for Review and the Petitioner’s Request for Review of the Regional Director’s Report on Challenged Ballots and Objections, Revised Tally of Ballots, and Certification of Representative raised substantial and material issues with respect to the resolution of a challenged ballot, which can best be resolved after a hearing.  Accordingly, the Board remanded the case to the Regional Director for a hearing and the issuance of a supplemental decision.  The Requests for Review were denied in all other respects.  Member Pearce stated that he would also grant the Requests for Review regarding the challenged ballot but, unlike his colleagues, he would remand the case to the Regional Director for further investigation and, if necessary, a hearing.  Chairman Miscimarra joined in granting review as to the challenged ballot, and would also grant review with respect to Objection 1, which alleges that the Regional Director improperly counted an irregularly marked ballot as a yes vote.   Petitioner – an individual.  Intervenor – International Brotherhood of Teamsters, Local 11.  Chairman Miscimarra and Members Pearce and McFerran participated.

1650 Broadway Associates, Inc.  (02-RM-184263)  New York, NY, May 17, 2017.  The Board    (Members Pearce and McFerran; Chairman Miscimarra, dissenting) denied the Employer’s Request for Review of the Regional Director’s administrative dismissal of the petition as it raised no substantial issues warranting review.  The majority found that the Employer failed to show that the Union made a present demand for recognition as the employees’ majority representative, as required to support a petition under Section 9(c)(1)(B).  Union – Stardust Family United, a/w Industrial Workers of the World.  Chairman Miscimarra and Members Pearce and McFerran participated.

Euro Motorcars Devon, Inc.  (04-RC-181300)  Devon, PA, May 17, 2017.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections to Election and Certification of Representative as it raised no substantial issues warranting review.  Finding it “harmless error,” a Board majority (Members Pearce and McFerran) found it unnecessary to pass on the Regional Director’s failure to consider a 2010 federal district court opinion regarding the Petitioner’s agent’s involvement with violence during a 2006 union dispute; Chairman Miscimarra, however, found that the Regional Director should have considered the 2010 court opinion, but agreed with the denial of review even considering that opinion.  Petitioner – International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 15, Local Lodge 447. Chairman Miscimarra and Members Pearce and McFerran participated.

Kaiser Foundation Hospitals and The Permanente Medical Group, Inc.  (20-RC-188438)  San Francisco, CA, May 17, 2017.  The Board denied the Employer’s Requests for Review of the Acting Regional Director’s Decision and Direction of Election and the Regional Director’s Supplemental Decision Regarding Challenged Ballots, Objections to Election, and Certification of Representative as they raised no substantial issues warranting review.  The Board noted that the direction of a self-determination election does not require a showing that the petitioned-for voting group shares an “overwhelming community of interest” with the existing unit employees.  Chairman Miscimarra would have granted review as to the Employer’s Objection alleging that the Petitioner used photographs of employees in campaign literature without their consent.  He also restated his disagreement with the Board’s Election Rule and Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011).  Petitioner – California Nurses Association.  Chairman Miscimarra and Members Pearce and McFerran participated.

Latino Express Bus Co.  (13-RD-079228)  Chicago, IL, May 17, 2017.  The Board denied Petitioner’s Request for Review of the Regional Director’s Decision to Dismiss the petition as it raised no substantial issues warranting review.  In denying review, the Board majority (Chairman Miscimarra and Member McFerran) agreed with the Regional Director that the certification year was effectively extended by the remedy in Latino Express, Inc., 360 NLRB 911 (2014), and that the petition, which was filed during the extended certification year, was therefore barred.  Member Pearce, concurring, would find that the remedy in Latino Express, Inc. actually extended the certification year through its affirmative bargaining order.  Petitioner – an individual.  Union – International Brotherhood of Teamsters, Local 777.  Chairman Miscimarra and Members Pearce and McFerran participated.

AFP Specialties, Inc.  (07-RD-187706)  Williamsburg, MI, May 18, 2017.  The Board denied the Union’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Board agreed that the Union’s status with respect to the unit of sprinkler fitters employed by the Employer was governed by Section 8(f), not Section 9(a), and therefore that the Regional Director correctly directed an election in the single-employer unit under John Deklewa & Sons, 282 NLRB 1375 (1987).  Petitioner – an individual.  Union – Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO.  Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Dixon Foods d/b/a McDonald’s & McDonald’s Corp., as joint and single employers  (10-CA-189576)  Greenville, NC, May 17, 2017.  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 Southern Workers Organizing Committee.  Chairman Miscimarra and Members Pearce and McFerran participated.

Starbucks Coffee Co.  (01-CA-177856)  Rocky Hill, CT, May 19, 2017.  The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting in part) 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.  In denying the petition, the majority considered the Region’s clarification that the Employer may redact customers’ personal information; Chairman Miscimarra would have granted the petition, finding that the better practice is to ensure that subpoenas are appropriately tailored in the first instance rather than allow them to be “clarified” only after a petition to revoke is under consideration by the Board.  The majority also found, contrary to the dissent, that the Region’s statements in its cover letter to the subpoena - that the Employer must be prepared to provide certain information regarding the methodology of its electronic search for emails—was a legitimate attempt to determine the comprehensiveness of the Employer’s response to the request for emails, and the fact that the description of the electronic search requirements appeared in the cover letter, rather than in the subpoena, did not provide a compelling reason to revoke.  Chairman Miscimarra would have also granted the petition to revoke as to the requirements for electronically stored information set forth in the Region’s cover letter.  Charge filed by an individual.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

Wilkes-Barre Hospital Company, LLC, Board Case No. 04-CA-123748 (reported at 362 NLRB No. 148) (D.C. Cir. decided May 19, 2017)

In a published opinion, the Court enforced the Board’s order issued against this acute-care medical facility, for violating Section 8(a)(5) and (1) when it unilaterally ceased paying longevity-based wage increases to its graduate and registered nurses after expiration of its collective-bargaining agreement with Pennsylvania Association of Staff Nurses and Allied Professionals.

As a threshold matter, the Court rejected the Employer’s challenge to the Regional Director’s authority to issue the complaint.  Citing a body of precedent, the Court held that, although the Regional Director had been appointed by the Board when it lacked a quorum, the later Board’s ratification of the appointment “remedied any defect arising from the quorum violation.”  Further, the Court held that the Regional Director’s “ratification of his own action remedied the defect in his original issuance of the complaint,” and that the Employer had not shown bias or prejudice from the ratification.  Under those circumstances, the Court stated, requiring the Regional Director to reissue the complaint would likely do nothing more than give the Employer the benefit of delay.

On the merits, the Court upheld the Board’s unilateral change finding, and rejected the Employer’s two principal arguments.  First, the Court found no merit to the Employer’s contention that it had no duty to continue to pay its nurses their longevity-based wage increases after contract expiration because, it claimed, the cessation of all wage increases represented the status quo that it was required to maintain.  The Court explained that such an argument “seeks to define the status quo by taking a snapshot of each individual nurse’s pay rate at the moment the [contract] expired,” rather than recognizing that “the terms of the expired agreement define the post-expiration status quo.”  Second, the Court rejected the Employer’s contentions that it was not required to continue to pay the increases, under either a contract-coverage or a clear-and-unmistakable-waiver analysis.

The Court’s opinion is here.

Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, affiliated with Unite Here (Host Int’l, Inc.), Board Case No. 28-CB-128997 (reported at 363 NLRB No. 33) (D.C. Cir. decided May 16, 2017)

In a published opinion, the Court denied the petition for review filed by two employees who were charging parties before the Board.  The petitioners contested the Board’s dismissal of a complaint allegation that their union, Local Joint Executive Board of Las Vegas, Culinary Workers Union Local 226, and the Bartenders Union, Local 165, unlawfully required them to submit a written request for the dates when they signed their dues-checkoff authorization cards, which they needed in order to revoke their authorizations.

On review, the Court held that the Board’s dismissal of the allegation was rational and rejected the argument that the Union had violated its duty of fair representation by not providing the employees with their anniversary dates over the telephone.  The Court agreed with the Board that the Union’s requirement that such requests be in writing allows the Union to properly verify the request, identify the employee, and authenticate the date before providing it, and also gives the Union the option of releasing the information in writing, thereby preventing disputes from arising over what information was given.  Finding no merit to the remaining contentions, the Court affirmed.

The court’s opinion is here

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Administrative Law Judge Decisions

Goodwill Central Coast, a California Non-Profit Public Benefit Corporation  (32-CA-172761 and 32-CA-172762; JD(SF)-21-17)  Santa Cruz, CA.  Administrative Law Judge Gerald M. Etchingham issued his decision on May 17, 2017.  Charges filed by individuals.

United States Postal Service  (18-CA-142795, et al.; JD-29-17)  Ft. Worth, TX.  Administrative Law Judge Andrew S. Gollin issued his decision on May 19, 2017.  Charges filed by individuals and National Postal Mail Handlers Union, Branch 83, Local 301. 

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