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Summary of NLRB Decisions for Week of May 22 - 26, 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

Road Sprinkler Fitters Local Union 669 (Firetrol Protection Systems Inc. and Cosco Fire Protection, Inc., MX Holdings US, Inc. and CFP Fire Protection, Inc.)  (27-CC-091349; 365 NLRB No. 83)  Denver, CO, May 23, 2017.

The Board adopted the Administrative Law Judge’s conclusion that the Union violated Section 8(b)(4)(ii)(A) by filing a grievance and a lawsuit against several neutral employers with the object of enmeshing them in a labor dispute with one of their nonunion corporate affiliates and also violated Section 8(b)(4)(ii)(B) by filing the grievance and lawsuit with the purpose of forcing the nonunion corporate affiliate to recognize and bargain with the Union as the representative of its employees. 

Charge filed by Firetrol Protection Systems, Inc.  Administrative Law Judge Mary Miller Cracraft issued her decision on August 22, 2013.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Food Services of America, Inc., a subsidiary of Services Group of America, Inc.  (28-CA-063052; 365 NLRB No. 85)  Scottsdale, AZ, May 26, 2017.

The Board (Chairman Miscimarra and Member Pearce; Member McFerran, dissenting) granted the General Counsel’s motion to remand the case to the Regional Director for the purpose of having the Regional Director approve the withdrawal of the charge in light of the non-Board settlement agreement reached by the Charging Parties and the Respondent nearly 3 months prior to the Board’s decision on the merits in 2014.  The non-Board settlement agreement resolved not only the unfair labor practice charges, but other claims relating to a lawsuit filed by the Respondent in federal district court.  Citing the Independent Stave Co., 287 NLRB 740 (1987), principle that the Board considers “all of the surrounding circumstances,” the Board majority found that the remand request was appropriate given the “unique circumstances” presented. 

In dissent, Member McFerran noted that the General Counsel won this Board case “in important part,” yet now seeks to abandon it based on a private settlement that was reached months prior to the issuance of the Board’s decision.  The settlement itself, according to Member McFerran, fails to provide remedies for all of the violations that the Board found in its decision.  Member McFerran expressed concern regarding what could be a “possible abuse of the Board’s processes – a course of conduct that required the Board to devote significant resources to deciding a case that apparently was moot, as far as the parties were concerned.”  Unless the General Counsel or Respondent could provide a persuasive explanation on how the settlement effectuates the policies of the Act, Member McFerran would deny the motion to remand.

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

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Alaska Communications Systems Holding, Inc.  (19-UC-183065)  Anchorage, AK, May 24, 2017.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order as it raised no issues warranting review.  The Regional Director had found insufficient evidence to support accreting historically excluded employees into a preexisting unit.  In denying review, the Board noted that, if the Petitioner was also seeking a self-determination election for some employees it currently represents pursuant to voluntary recognition, then such an election would not be warranted as it does not raise a question concerning representation.  Petitioner – International Brotherhood of Electrical Workers, Local Union 1547, AFL-CIO.  Chairman Miscimarra and Members Pearce and McFerran participated.

C Cases

Cott Beverages Inc.  (16-CA-181144)  San Antonio, TX, May 24, 2017.  The Board denied the Respondent’s Motion for Partial Summary Judgment seeking dismissal of the complaint allegations regarding the Respondent’s policy prohibiting employees from having personal cell phones on the manufacturing floor or at employee work stations.  The Board found that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  Chairman Miscimarra agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), the General Counsel explained, in reasonably concrete terms, why, based on material facts that are genuinely in dispute, a hearing is required.  Charge filed by an individual.  Chairman Miscimarra and Members Pearce and McFerran participated.

XPO Logistics Freight, Inc.  (12-CA-179859)  Hialeah, FL, May 25, 2017.  The Board denied the Respondent’s Motion to Dismiss the Complaint, finding that the Respondent had not demonstrated that the complaint failed to state a claim upon which relief can be granted and failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  The Board noted that the Respondent’s alternative request for a bill of particulars is not before the Board, as Deputy Chief Administrative Law Judge Arthur J. Amchan ordered the General Counsel to clarify certain aspects of the complaint, and the Board has not received a request for special permission to appeal the judge’s order.  Chairman Miscimarra agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), the General Counsel explained, in reasonably concrete terms, why, based on material facts that are genuinely in dispute, a hearing is required.  Charge filed by International Brotherhood of Teamsters, Local Union No. 769.  Chairman Miscimarra and Members Pearce and McFerran participated.

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Appellate Court Decisions

Alternative Entertainment, Inc., Board Case No. 07-CA-144404 (reported at 363 NLRB No. 131) (6th Cir. decided May 26, 2017)

In a published opinion, the Court, with one judge dissenting, enforced in full the Board’s order issued against this provider of satellite-television installation and services to residential customers in Michigan and Wisconsin.  The Court upheld the Board’s finding that the Employer, by requiring employees to sign an agreement to resolve all employment-related disputes through individual arbitration, violated Section 8(a)(1), because such an agreement restrained employees from exercising their Section 7 right to concertedly enforce employment laws.  In doing so, the Court joined the Seventh and Ninth Circuits in holding such arbitration agreements unlawful under the Act, and declined to join the Fifth, Eighth, and Second Circuits in upholding such agreements.  The Supreme Court has granted the Board’s petition for a writ of certiorari to review the Fifth Circuit’s Murphy Oil decision, along with several private-party cases that turn on the Board’s Murphy Oil rule.

The Sixth Circuit held that substantial evidence supported the Board’s additional findings that the Employer violated Section 8(a)(1) by prohibiting an employee from discussing compensation with other employees and firing him for doing so.  As to the uncontested finding that the Employer unlawfully maintained an overly broad confidentiality rule, the Court summarily enforced.

The Court’s opinion is here.

Hawaiian Dredging Construction Company, Inc., Board Case No. 37-CA-008316 (reported at 362 NLRB No. 10) (D.C. Cir. decided May 26, 2017)

In a published opinion, the Court granted the petition for review and remanded the case to the Board.  In its decision and order issued against this general contractor that employs 375 craft employees, the Board (then-Chairman Pearce and Member Hirozawa; then-Member Miscimarra, dissenting) found, contrary to the Administrative Law Judge, that the Employer violated Section 8(a)(3) and (1) by discharging 13 employees based on their union affiliation.  The Court held that the Board had not adequately taken into account certain record evidence credited by the judge, and remanded the case to the Board for further consideration.

The Employer is a member of the Association of Boilermakers Employers of Hawaii and has performed its craft work pursuant to Section 8(f) pre-hire collective-bargaining agreements.  For over 20 years, the Employer has held such agreements with the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, Local 627.  Under the terms of the most recent agreement, the Union provided the Employer with welders, riggers, equipment setters, pipefitters, and PVC workers.  After their most recent agreement expired in October 2010, negotiations for a next agreement ensued and the parties agreed to extend the terms of the expired agreement.  After negotiations broke down, the Employer terminated its relationship with the Union in February 2011, discharged the 13 employees represented by the Union, and temporarily discontinued the welding operations where they were working.  Within a week, the Employer entered into a Section 8(f) agreement with another union, Local 675 of the Plumbers and Pipefitters Union, made clear that the 13 employees could return to work once they became Pipefitter members, as required by the agreement, and assisted them by providing equipment needed to pass the requisite tests.  In total, 8 of the 13 employees returned to work.

The Administrative Law Judge dismissed the allegation that the Employer violated Section 8(a)(3) and (1) by discharging the 13 employees because they were union members.   The judge distinguished this Section 8(f) construction industry context from the usual circumstances in which the “inherently destructive” theory of NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), has been applied, such as strikes, lockouts, and other actions where the parties have some sort of continuing obligation to each other.  Based on record evidence, the judge found that the Employer acted consistently with its longstanding practice of only employing craft workers who were affiliated with a union and were operating under a collective bargaining agreement, regardless of any particular union affiliation.  The judge concluded that the employees were laid off because they were no longer working under a contract, not because they were members of the Boilermakers, and that the Employer’s actions taken consistently with its longstanding practice amounted to a legitimate interest that also would satisfy its defensive burden under Wright Line.

The Board majority reversed, finding that the discharges were unlawful under both Wright Line and Great Dane.  In finding animus in support of its Wright Line analysis, the Board relied on the Employer’s summary discharge of all Boilermakers-represented employees, and only those employees, explaining that, although an employer may terminate its Section 8(f) agreement with a union, it may not discriminatorily discharge its employees because of their affiliation with that union.  And under Great Dane, the Board found that the discharges were “inherently destructive” of represented employees’ Section 7 rights because they would discourage employees from exercising their right to join a labor organization.

On review, the Court agreed in large part with the reasoning of the Administrative Law Judge and held, among other things, that the Board had not adequately considered the credited evidence of the Employer’s 20-year practice of only employing workers covered by a Section 8(f) agreement.  Accordingly, the Court held that in light of that credited evidence relevant to the Employer’s motive, the Board had not adequately explained its Wright Line conclusion.  Regarding Great Dane, the Court stated that the Board’s finding appeared to be based principally on the notion that the employees “were separated because of their union membership, rather than — as the ALJ found — because of the expiration of their contract,” which the Court noted was a finding undermined by the credited evidence the Board has not taken into account.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Gross Electric, Inc.  (03-CA-187577; JD-37-17)  Queensbury, NY.  Administrative Law Judge Ira Sandron issued his decision on May 22, 2017.  Charge filed by International Brotherhood of Electric Workers, Local 236.

Kelly Services, Inc.  (04-CA-171036; JD-36-17)  East Brunswick, NJ.  Administrative Law Judge Robert A. Giannasi issued his decision on May 23, 2017.  Charge filed by an individual.

Voices for International Business and Education, Inc. d/b/a International High School of New Orleans  (15-CA-182632 and 15-CA-187456; JD-39-17)  New Orleans, LA.  Administrative Law Judge Arthur J. Amchan issued his decision on May 24, 2017.  Charges filed by United Teachers of New Orleans Local 527, LFT, AFT.

Liberty Bakery Kitchen, Inc.  (01-CA-181081 and 01-CA-191349; JD-38-17)  Brockton, MA.  Administrative Law Judge Elizabeth M. Tafe issued her decision on May 25, 2017.  Charges filed by International Brotherhood of Teamsters, Local 653.

International Longshore and Warehouse Union (Pacific Maritime Association)  (19-CB-169296; JD(SF)-22-17)  Seattle, WA.  Administrative Law Judge Ariel L. Sotolongo issued his decision on May 25, 2017.  Charge filed by an individual.

Trinity Health – Michigan d/b/a St. Joseph Mercy Oakland Hospital  (07-CA-161375; JD-41-17)  Pontiac, MI.  Administrative Law Judge Christine E. Dibble issued her decision on May 25, 2017.  Charge filed by Council 25, Michigan American Federation of State County and Municipal Employees, AFL-CIO.

International Union of Operating Engineers, Local 501 (GNLV Corp. d/b/a Golden Nugget Las Vegas)  (28-CB-182296; JD(SF)-23-17)  Las Vegas, NV.  Administrative Law Judge Mara-Louise Anzalone issued her decision on May 25, 2017.  Charge filed by GNLV Corp. d/b/a Golden Nugget Las Vegas.

Verizon Wireless  (02-CA-157403, et al.; JD-40-17)  Philadelphia, PA.  Administrative Law Judge Donna N. Dawson issued her decision on May 25, 2017.  Charges filed by Communications Workers of America, AFL-CIO.

Jam Productions, Ltd. and Event Productions, Inc., a single employer  (13-CA-177838; JD-42-17)  Chicago, IL.  Administrative Law Judge Michael A. Rosas issued his decision on May 26, 2017.  Charge filed by Theatrical Stage Employees Union Local No. 2, IATSE.

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