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Summary of NLRB Decisions for Week of May 28 - June 1, 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

Kitsap Tenant Support Services, Inc.  (19-CA-074715, et al.; 366 NLRB No. 98)  Bremerton and Port Angeles, WA, May 31, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by refusing to meet and bargain with the Union.  The Board also found that the Respondent violated Section 8(a)(5) and (1) by failing to provide, and unreasonably delaying in providing, the Union with requested relevant information, and by engaging in overall bad-faith bargaining.  The Board granted the General Counsel’s request for a 12-month extension of the certification year and, ordered the Respondent to bargain for a minimum of 15 hours per week and submit written progress reports to the compliance officer.  The Board affirmed and reversed the judge to find that the Respondent violated Section 8(a)(3) and (1) by discharging, demoting, placing on administrative leave, disciplining, and otherwise discriminating against employees because of their support for and activities on behalf of the Union.  The Board further found that the Respondent violated Section 8(a)(3) and (1) by more strictly enforcing its disciplinary rules because its employees supported the Union and engaged in union activities.  Finally, the Board severed complaint allegations that the Respondent violated Section 8(a)(1) by maintaining seven handbook rules, and retained those allegations for further consideration.

Charges filed by Washington Federation of State Employees, American Federation of State, County and Municipal Employees, Council 28, AFL-CIO.  Administrative Law Judge Jay R. Pollack issued his decision on June 4, 2014.  Chairman Ring and Members Pearce and McFerran participated.

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UPS Ground Freight, Inc.  (04-CA-205359; 366 NLRB No. 100)  Kutztown, PA, June 1, 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 either were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

In granting the motion, the Board found although the Respondent argued that Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011), should be overruled, Specialty Healthcare does not apply here, noting that in the proceeding below, the Board did not rely on Specialty Healthcare in denying review of the Acting Regional Director’s finding that the petitioned-for unit was appropriate.

The Board also rejected the Respondent’s arguments that the complaint is barred by Section 10(b) or by the doctrine of laches; that the case should be dismissed or transferred to a different Region because of an appearance of partiality and a conflict of interest in the Region resulting from misconduct by the Regional Director; and that Respondent could not have violated the Act because it is not clear whether dispatchers and certified safety inspectors are part of the unit description.  Accordingly, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union.

Charge filed by International Brotherhood of Teamsters Local 773.  Chairman Ring and Members Pearce and McFerran participated.

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International Brotherhood of Teamsters Local 25  (01-CB-010882; 366 NLRB No. 99)  Charlestown, MA, June 1, 2018.

In the underlying unfair labor practice proceeding, 358 NLRB 54 (2012), the Board found that the Respondent, a Union that operates an exclusive hiring hall, violated Section 8(b)(1)(A) and (2) by refusing to refer the Charging Party from its casual referral list for work with employers contracting with the Respondent.  In this compliance proceeding to determine the amount of backpay owed the Charging Party discriminatee, the Board adopted the Administrative Law Judge’s finding that the Respondent failed to establish the existence of substantially equivalent employment during 2011. The Board reversed the judge’s finding that the Respondent established the existence of substantially equivalent employment during 2008-2010.  Having found that the Respondent failed to meet its burden of establishing the existence of substantially equivalent employment, as set forth in St. George Warehouse, 351 NLRB 961 (2007), during any portion of the backpay period, the Board found that the Charging Party discriminatee is entitled to backpay as set forth in the amended compliance specification.

Charge filed by an individual.  Administrative Law Judge Michael A. Rosas issued his supplemental decision on February 20, 2014.  Members Pearce, McFerran, and Kaplan participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Bemis N.A.  (18-RD-209021)  Centerville, IA, May 29, 2018.  The Board denied the Petitioner’s Requests for Review of the Regional Director’s determination to hold the petition in abeyance and subsequent administrative dismissal as they raised no substantial issues warranting review. Member Emanuel agreed that the Regional Director’s determination to hold the petition in abeyance and the subsequent dismissal are permissible under the current blocking charge policy, but he believes the policy should be reconsidered and that a petition for an election should not generally be dismissed or held in abeyance based on contested and unproven unfair labor practice charges.  Petitioner—an individual.  Union—GCC/IBT Local 727-S.  Members Pearce, McFerran, and Emanuel participated.

The Boeing Company  (10-RC-215878)  North Charleston, SC, May 30, 2018.  The Board denied the Employer’s Request to Stay the election or, alternatively, to impound the ballots.  Members Kaplan and Emanuel expressed no view with respect to whether they agreed or disagreed with revisions made by the Board’s Election Rule, but agreed that it applied and warranted denial of the Employer’s Request to Stay.   Petitioner—International Association of Machinists and Aerospace Workers.  Members Pearce, Kaplan, and Emanuel participated.

American Municipal Power, Inc.  (10-RC-213684)  Smithland, KY, May 31, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and denying its Request to Stay the election as moot.  The Employer sought to modify the unit description to resolve the unit placement of operators temporarily assigned to the Employer’s Smithland facility from other facilities.  In denying review, the Board noted that, contrary to the Employer, it may be able to resolve the unit placement of these future temporary assignees through the unit-clarification process.  The Board also declined to rely on the Regional Director’s citation and discussion of two Board cases and to modify the unit description to exclude “all other employees.”  Petitioner—International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 816.  Members Pearce, Kaplan, and Emanuel participated.

Janus Youth Programs, Inc.  (19-RM-216426)  Portland, OR, May 31, 2018.  The Board denied the Petitioner-Employer’s Request for Review of the Regional Director’s determination to hold the representation petition in abeyance.  The Board found that the Request for Review raised no substantial issues warranting review and was moot because the Petitioner-Employer had not requested review of the Regional Director’s subsequent dismissal of the petition.  Member Kaplan agreed with the decision to deny review, but would consider revisiting the Board’s blocking charge policy in the future.  Member Emanuel would find the determination to hold the petition in abeyance permissible under the Board’s current policy, but believes it should be reconsidered.  Petitioner-Employer—Janus Youth Programs, Inc.  Union—Industrial Workers of the World, Portland Branch.  Members Pearce, Kaplan, and Emanuel participated.

Walt Disney Parks and Resorts U.S. d/b/a Walt Disney World  (12-UC-203052)  Orlando, FL, May 31, 2018.  The Board denied the Employer’s Request to Stay the Regional Director’s Decision and Order Clarifying Bargaining Units.  Members Kaplan and Emanuel expressed no view with respect to whether they agreed or disagreed with revisions made by the Board’s Election Rule, but agreed that it applied and warranted denial of the Employer’s Request to Stay, without prejudice to the Board’s subsequent consideration of the merits of the Employer’s Request for Review.  Petitioner—International Brotherhood of Teamsters, Local 385.  Members Pearce, Kaplan, and Emanuel participated.

C Cases

SL Green Realty Corp., and First Quality Maintenance, as joint employers  (02-CA-171515)  New York, NY, May 29, 2018.  No exceptions having been filed to the February 22, 2018 decision of Administrative Law Judge Mindy E. Landow’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charge filed by Service Employees International Union, Local 32BJ.

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Appellate Court Decisions

Road Sprinkler Fitters Local Union 669 (Firetrol Protection Systems, Inc.), Board Case No. 27-CC-091349 (reported at 365 NLRB No. 83) (D.C. Cir. decided June 1, 2018)

In an unpublished judgment, the Court enforced the Board’s order in full.  This case arose in the context of a labor dispute between the Union and Firetrol Protection Systems, Inc., when, in 2012, Firetrol closed its non-unionized Denver, Colorado facility, after the Union petitioned for an election among its fire-suppression employees.  Thereafter, the Union attempted to pressure Firetrol over its closure decision by filing a grievance and lawsuit to compel arbitration against Firetrol’s parent company (MX Holdings US, Inc.) and two related, but independent companies (Cosco Fire Protection Systems, Inc., and CFP Fire Protection, Inc.), none of which is a party to the labor dispute or has any authority to remedy the Union’s grievance.

On those facts, the Board (Chairman Miscimarra and Members Pearce and McFerran) found that the Union’s attempts to enmesh the three neutral employers in its primary labor dispute with Firetrol constituted unlawful secondary activity in violation of Section 8(b)(4)(ii)(A) and (B).  In so finding, the Board held that the neutral employers did not exercise control over Firetrol’s decision to close its Denver office, and that the Union sought to apply the anti-dual shop provision of its collective-bargaining agreement with Cosco in a manner that would convert that provision into an agreement prohibited by Section 8(e), for the unlawful purpose of forcing neutral employers to cease doing business with Firetrol.  The Board’s order included an award of reasonable expenses and legal fees to compensate the neutral employers for having to defend against the Union’s unlawful grievance and lawsuit to compel arbitration.

Taking the case on submission without oral argument, the Court upheld that Board’s unfair-labor-practice findings as supported by established precedent and substantial evidence, and rejected the Union’s challenges to the Board’s award of reasonable expenses and legal fees.

The Court’s judgment may be found here.

Jacmar Food Service Distribution, Board Case No. 21-CA-193952 (reported at 365 NLRB No. 91) (D.C. Cir. decided May 29, 2018)

In an unpublished judgment, the Court enforced the Board’s bargaining order issued against this distributer of food products from its warehouse in City of Industry, California, after its delivery drivers voted 15 to 9 in a May 2016 election to be represented by Food, Industrial, and Beverage Warehouse, Drivers, and Clerical Employees, Teamsters Local 630.  In doing so, the Court held that the Board acted within its discretion in overruling election objections without holding an evidentiary hearing.

After the election, the Employer filed three objections alleging Union misconduct before and after it had filed the petition for representation, and one objection alleging misconduct by the Board agent conducting the election.  After reviewing the Employer’s offer of proof, the Acting Regional Director issued a decision finding the proffered material, if accepted as true, was insufficient to warrant a hearing, and certified the Union.  Regarding alleged Union misconduct, the Acting Regional Director applied the general rule that pre-petition activities cannot serve as a basis for nullifying an election, and found that the post-petition objections—the placing of a union bumper sticker on an employee’s car and eight union posters in the drivers’ room—involved nothing more than non-objectionable election propaganda.  Regarding alleged Board-agent misconduct, the Acting Regional Director found that the agent did not unreasonably deviate from normal election processes by permitting election observers to check-off voters on the eligibility list, or by mistakenly handing one voter two ballots, one of which she received back blank and destroyed.  The Employer filed a Request for Review, which the Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting in part) denied.  The Employer then refused to bargain in order to seek court review.

On review, the Court (Circuit Judges Henderson and Griffith, and Senior Circuit Judge Sentelle) upheld the Board’s overruling of the Union-misconduct objections on the bases cited by the Acting Regional Director.  Further, the panel majority held that “[w]hatever errors the Board agent made were either alleviated by following proper procedures or were so minimal that they could not have had a material effect on the election.”  Dissenting, Judge Henderson would have required the Board to hold a hearing on the issue.

The Court’s unpublished judgment may be found here.

Tramont Manufacturing, LLC, Board Case No. 18-CA-155608 (reported at 365 NLRB No. 59) (D.C. Cir. decided May 29, 2018)

In a published opinion, the Court remanded the case to the Board for further explanation of the applicable legal standard, but in all other respects denied the Petition for Review.  In 2014, this manufacturer of diesel engines purchased a plant in Milwaukee, Wisconsin, where the production and maintenance employees were represented by United Electrical Workers of America, Local 1103.  Under the terms of the purchase agreement, the Employer agreed to recognize the Union and offer employment to substantially all of the existing employees.  However, it did not agree to assume the current collective-bargaining agreement, but instead stated it would make employment offers on its own terms and conditions.  Thereafter, it hired 60 of its predecessor’s employees and announced that initial terms and conditions would be controlled by its employee handbook, which included a provision stating criteria for selecting employees for layoff.  Months later, the Employer laid off 12 employees and the Union filed a charge alleging it had not been provided notice and an opportunity to bargain.

On those facts, the Board (Acting Chairman Miscimarra and Members Pearce and McFerran) found that the Employer was a Burns successor that could lawfully set initial terms and conditions and select employees for layoff, but that it violated Section 8(a)(5) and (1) by failing to provide the Union with notice and opportunity to bargain over the effects of its layoff decision.  In so finding, the Board rejected the Employer’s argument that the judge erred by applying a clear-and-unmistakable waiver standard, rather than a contract-coverage standard, in determining that the Union retained the right to effects bargaining.  The Board explained that “no provision in a collective-bargaining agreement between [the employer] and the [u]nion covered the subject of layoffs,” that the Union had not agreed to the handbook’s layoff provision, and that no judicial authority supported an argument that the contract-coverage standard “could apply in the absence of a negotiated contract.”

On review, the Court agreed with the Board that there was no basis to apply a contract-coverage standard, explaining that “where, as here, an employer seeks release from its statutory obligations on the basis of initial employment terms it has itself drafted, . . . it would be perfectly reasonable for the Board to decide as a policy matter to construe those terms under a standard other than the one that would apply to the terms of a bargained-for agreement.”  On the other hand, the Court held that the Board neglected to explain the basis for applying the clear-and-unmistakable waiver standard in this Burns successorship context, stating that “we do not see how employment terms unilaterally imposed by an employer could ever effect a waiver of bargaining rights by the union.”  The Court therefore remanded the case for the Board “to explain its decision to apply the waiver standard to the question of whether a Burns successor’s initial terms and conditions of employment relieve the employer of any given bargaining duty,” or, if the Board “finds itself unable to support the use of that standard, it is, of course, free to employ a different one.”

The Court’s opinion is here.

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Administrative Law Judge Decisions

No ALJ Decisions Issued.

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