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Summary of NLRB Decisions for Week of May 21 - 25, 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

Airgas USA, LLC  (09-CA-189551; 366 NLRB No. 92)  Cincinnati, OH, May 21, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(4) and (1) when it withheld holiday pay from an employee because of his activity in the filing and litigation of unfair labor practice charges.  Charge filed by an individual.  Administrative Law Judge Melissa M. Olivero issued her decision on December 13, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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PAE Aviation and Technical Services LLC  (28-CA-170401 and 28-CA-175936; 366 NLRB No. 95)  Tucson, AZ, May 24, 2018.

The Board reversed the Administrative Law Judge and found that the Respondent violated Section 8(a)(1) by denying an employee his Weingarten rights.  The Board found that though the employee had already received discipline from the Respondent for committing an initial infraction, his Weingerten rights were rekindled when his supervisor, in a subsequent one-on-one lengthy meeting with the employee, pressed him concerning whether he had lied during the investigation of the initial infraction.  Because lying was a punishable offense for the Respondent’s employees, the employee reasonably believed he might receive additional discipline for lying, and thus the Respondent unlawfully denied his request for a Weingarten representative at the subsequent meeting.  The Board additionally reversed the judge and found that the Respondent violated Section 8(a)(1) by (1) delaying in providing the Union requested information regarding a grievance filed by that employee; and (2) failing to provide to the Union requested information regarding a grievance filed over the discipline of another employee.  The Board explained that the judge erroneously deemed the requested information irrelevant because it was not dispositive of the employee grievances.  The Board instead applied the settled rule that the requested information, which is presumptively relevant because it pertains to unit employees, need not be dispositive of the central issue raised by the grievances, but rather be of potential or probable relevance, such as the preparation of a defense for the grievant and a determination whether to continue to process the grievances.

Charges filed by International Association of Machinists and Aerospace Workers, Local Lodge 2949, AFL-CIO.  Administrative Law Judge Joel P. Biblowitz issued his decision on October 16, 2016.  Members Pearce, McFerran, and Emanuel participated.

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Michael Cetta, Inc. d/b/a Sparks Restaurant  (02-CA-142626 and 02-CA-144852; 366 NLRB No. 97)  New York, NY, May 24, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by failing and refusing to reinstate striking employees after their unconditional offer to return to work and violated Section 8(a)(1) by soliciting employees to withdraw their support for the Union. A Board majority (Members Pearce and McFerran) adopted the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging the striking employees. Member Emanuel found it unnecessary to pass on the discharge allegation because it would not materially affect the remedy. The Board found it unnecessary to pass on whether the Respondent also violated 8(a)(3) and (1) by denying the striking employees their right to be placed on a preferential hiring list.  Charges filed by United Food and Commercial Workers Local 342.  Administrative Law Judge Lauren Esposito issued her decision on November 18, 2016.  Members Pearce, McFerran, and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

University of Chicago  (13-RC-198365)  Chicago, IL, May 21, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision on Remand from the Board and Certification of Representative as it raised no substantial issues warranting review.  The Regional Director found that the Petitioner did not engage in improper electioneering or objectionable surveillance when it stationed some of its representatives outside of the libraries where the elections were taking place.  Petitioner— Teamsters Local 743.  Members Pearce, Kaplan, and Emanuel participated.

C Cases

Consolidated Waste Services, Corp.  (12-CA-192990, et al.)  Toa Baja, PR, May 24, 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.  With respect to subpoenaed text messages, social media messages, and other personal communications generated by supervisors and managers, the Board found that to the extent that those communications were generated by supervisory and managerial personnel using company equipment in the course of conducting company business, those communications are in the Employer’s control, and the Employer is required to conduct a reasonable and diligent search for those communications and to either produce the information or affirmatively represent to the Region that the information does not exist.  As to subpoenaed communications generated by supervisory and managerial personnel using strictly personal equipment or accounts that are not within the Employer’s control, the Board found that the Employer is required to request the information from its supervisors and managers.  If the information does not exist, or if the supervisors and managers decline to provide the information, the Employer must affirmatively represent this fact to the Region.  Charges filed by individuals.  Members Pearce, McFerran, and Emanuel participated.

MGM Resorts Mississippi, Inc., d/b/a Gold Strike Casino Resort  (15-CA-196203)  Robinsonville, MS, May 24, 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.  In response to the Employer’s arguments that it had already provided the Region access to subpoenaed surveillance footage through a web portal and that the Employer should not have to produce a copy of the footage because, if made public, it could compromise the security of its surveillance system, the Board denied the Petition to Revoke, subject to the Region’s entering into an appropriate confidentiality agreement protecting the copy of the surveillance video from disclosure.  Charge filed by an individual.  Members Pearce, McFerran, and Emanuel participated.

M&M Affordable Plumbing  (13-CA-121459)  Rockdale, IL, May 24, 2018.  No exceptions having been filed to the March 9, 2018 supplemental decision of Administrative Law Judge Melissa M. Olivero’s determination of amounts of backpay due and recommendation that the Respondent pay such amounts, the Board adopted the judge’s findings and conclusions in her supplemental decision, and ordered the Respondent to pay the amounts set forth in the judge’s recommended Supplemental Order.  Charge filed by an individual.

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Appellate Court Decisions

XPO Logistics Freight, Inc., Board Case No. 13-CA-196637 (reported at 365 NLRB No. 105) (D.C. Cir. decided May 25, 2018)

In an unpublished judgment in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this operator of a trucking terminal in Aurora, Illinois, after its drivers and hostlers voted 38 to 33 in an October 2016 election to be represented by Teamsters Local Union No. 179.  In doing so, the Court held that the Board acted within its discretion in overruling election objections alleging third-party misconduct without holding an evidentiary hearing.

After the election, the Employer filed objections alleging that a number of pro-union employees had created an environment of harassment and coercion that materially affected the election.  In support, it submitted an offer of proof that generally asserted that certain named witnesses would testify to coercive incidents that occurred prior to the election.  Thereafter, the Regional Director issued a decision finding the Employer’s offer of proof was insufficient to sustain its objections or to warrant a hearing, and certified the Union.  The Employer filed a Request for Review, which the Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting in part) denied, finding it raised no substantial issues warranting review.  The Employer then refused to bargain in order to seek court review.

On review, the Court rejected the Employer’s contention that the Board should have granted a hearing on the basis of its offer of proof.  The Court reiterated the settled standard that “[a]n evidentiary hearing is called for only when a party makes a prima facie showing of substantial and material issues of fact that, if true, would warrant setting aside the election,” citing 29 C.F.R. § 102.69(c)(1), and Durham School Services v. NLRB, 821 F.3d 52 (D.C. Cir. 2016).  Here, the Court explained, the offer of proof was instead largely conclusory and generally “devoid of factual specifics about who said or did what to whom that, if credited by a factfinder, could support a determination that the workplace was materially coercive.”

The Court’s unpublished judgment may be found here.

M.D. Miller Trucking and Topsoil, Inc., Board Case No. 13-CA-104166 (reported at 361 NLRB No. 141, and 365 NLRB No. 57) (D.C. Cir. decided May 23, 2018)

In an unpublished judgment, the Court enforced two Board orders issued against this company that hauls construction material and debris for D Construction, a road construction company with a site in Rockdale, Illinois.

In 2014, in the underlying unfair-labor-practice case (361 NLRB No. 141), the Board (then-Chairman Pearce and Members Johnson and Schiffer) found, among other things, that the Employer violated Section 8(a)(1) by threatening one of its drivers with loss of overtime when he objected to cuts in wages or benefits, and threatening that any grievance he filed over his discharge for alleged insubordination would be futile.  The Board found that, after that same employee prevailed in a grievance proceeding and was awarded reinstatement, the Employer violated Section 8(a)(3) and (1) by refusing to accept his then-current medical certification and by requiring him to complete multiple medical certifications as a condition of returning to work.  As a remedy, the Board ordered reinstatement and backpay.  After several procedural stages in the resulting compliance proceeding, in 2017, the Board (then-Chairman Pearce and Members Miscimarra and McFerran) issued an order (365 NLRB No. 57) requiring the Employer to pay the employee specific amounts of backpay.

On review, the Employer did not contest the unfair-labor-practice order, which the Court summarily enforced.  Instead, the Employer challenged the backpay order, arguing that the employee failed to conduct a reasonable job search and thus incurred a willful loss of earnings that relieved the Employer of its backpay liability.  Rejecting that defense, the Court upheld the Board’s finding that the employee conducted a reasonable job search, citing the Administrative Law Judge’s crediting of the employee’s testimony and his receipt of unemployment benefits.

The Court’s unpublished judgment may be found here.

Garda CL Atlantic Inc., Board Case No. 22-CA-196340 (reported at 365 NLRB No. 108) (D.C. Cir. decided May 22, 2018)

In an unpublished judgment in this test-of certification case, the Court enforced the Board’s bargaining order that issued against this provider of security-guard services from a facility in Edison, New Jersey.  In March 2016, a unit of the Employer’s guards, and drivers or messengers who perform guard duties as defined in Section 9(b)(3) of the Act, voted 38-35 to be represented by United Federation of Special Police and Security Officers.  On review of the certification of the Union, the Court upheld the Board’s overruling of the Employer’s two election objections that had alleged misconduct by the Board agent running the election.

Section 9(b)(3) of the Act defines the statutory term “guard,” and prohibits the Board from certifying any unit that includes both guards and non-guards.  As relevant here, while the election was in progress, the Union’s designated election observer challenged the eligibility of two voters on the basis that they were non-guards.  The Board agent informed each prospective voter of the challenge to his eligibility, and briefly asked him one or a few questions concerning his job classification and/or job duties, and explained that non-guards cannot be represented by a guard union.  The Board agent also presented their options:  that they could vote and their ballots would be placed in a challenged-ballot envelope, or that they could choose not to vote.  After the election, the Employer filed objections claiming that the Board agent engaged in misconduct that required the election to be set aside.  After a hearing, the Hearing Officer recommended overruling the objections.  On exceptions, the Regional Director affirmed the Hearing Officer’s conclusions, overruled the objections, and certified the Union.  The Employer filed a Request for Review, which was denied by the Board (Chairman Miscimarra and Members Pearce and McFerran).  Thereafter, the Employer refused to bargain to seek court review.

The Court held that the Board acted within its discretion in overruling the objections and certifying the Union.  Regarding the Board agent’s questions posed to prospective voters, the Court noted, citing precedent, that “the Board has long held that asking a few eligibility-related questions of a challenged voter is an appropriate step . . . that helps to weed out challenges which are frivolous, inadvertent, or interposed solely to obstruct orderly election procedure.”  The Court held that the Board agent’s “innocuous questions” were relevant to voter eligibility and served that legitimate function.  Regarding the Board agent’s statement that non-guards cannot be represented by a guard union, the Court stated that any ambiguity that the statement might have created was insufficient to compromise electoral fairness in light of the fact that the Board agent offered the challenged voters the opportunity to vote.

The Court’s unpublished judgment may be found here.

Thyme Holdings, LLC, d/b/a Westgate Gardens Care Center, Board Case No. 32-CA-190480 (reported at 365 NLRB No. 118) (D.C. Cir. decided May 22, 2018)

In an unpublished judgment in this test-of certification case, the Court enforced the Board’s bargaining order that issued against this operator of a nursing home in Visalia, California, after its licensed vocational nurses (LVNs) voted 20 to 2 in an election in 2016 to be represented by Service Employees International Union Local 2015.  In doing so, the Court upheld the Board’s determination that the Employer failed to carry its burden of proving its claim that the LVNs were supervisors under Section 2(11) of the Act.

In the underlying representation case, the Employer argued that the LVNs were statutory supervisors who had the authority to reward certified nursing assistants (CNAs), effectively recommend their hire, assign them, or discipline them.  After a hearing, the Hearing Officer recommended finding that the Employer failed to carry its burden of proof, and had instead relied largely on the testimony of two managers that consisted primarily of generalized or conclusory statements regarding the scope of the LVNs’ purported authority.  The Regional Director agreed and issued a Decision and Direction of Election.  The Employer filed a Request for Review, which was denied by the Board (Members Pearce and McFerran; Member Miscimarra, dissenting in part).  Thereafter, the Employer refused to bargain in order to seek court review.

The Court assessed each of the Employer’s claims of the LVNs’ purported supervisory status under the applicable standards and held that none was supported on the record.  In sum, the Court explained that because Board and court precedent provide that a party asserting supervisory status “cannot rely on general statements, as [the employer here] attempted to do to meet its burden, [the employer] failed to show that the Board erred in concluding that the LVNs are not statutory supervisors.”

The Court’s unpublished judgment may be found here.

Supreme Court Decisions

Murphy Oil USA, Inc., Board Case No. 12-CA-038808 (reported at 361 NLRB No. 72), enforcement denied, 808 F.3d 1013 (2015), aff’d S.Ct. No. 16-307, 2018 WL 2292444 (May 21, 2018)

In a 5-4 decision in three consolidated cases decided under the name Epic Systems Corp. v. Lewis, the Supreme Court affirmed the court of appeals’ decision denying enforcement of the Board’s order.  The Court relied on the Federal Arbitration Act in rejecting the Board’s position, announced in D.R. Horton, Inc., 357 NLRB 2277 (2012), enforcement denied in relevant part, 737 F.3d 344 (5th Cir. 2013), that an employer violates Section 8(a)(1) by maintaining or enforcing a mandatory-arbitration agreement that does not allow its employees to file joint, class, or collective employment-related claims in any forum, arbitral or judicial.

The Supreme Court’s decision may be found here.  The Board’s brief to that Court is here.

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Administrative Law Judge Decisions

MV Transportation, Inc.  (28-CA-145067; JD-35-18)  Phoenix, AZ.  Administrative Law Judge Charles J. Muhl issued his decision on May 24, 2018.  Charge filed by an individual.

Sheet Metal Workers Local Union 85 (The Logistics Company, Inc.)  (10-CB-179895; JD-33-18)  Columbus, GA.  Administrative Law Judge Donna N. Dawson issued her decision on May 24, 2018.  Charge filed by an individual.

Part-Time Faculty Association at Columbia College  (13-CB-165873, et al.; JD-34-18)  Chicago, IL.  Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on May 24, 2018.  Charges filed by individuals and Columbia College Chicago.

United States Postal Service  (08-CA-197451; JD-36-18)  Toledo, OH.  Administrative Law Judge Thomas M. Randazzo issued his decision on May 25, 2018.  Charge filed by American Postal Workers Union, Local 170.

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