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Summary of NLRB Decisions for Week of May 7 - 11, 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

Murray American Energy, Inc. and the Harrison County Coal Company, and the Marion County Coal Company, and the Monongalia County Coal Company and the Marshall County Coal Company, a single employer  (06-CA-169736, et al.; 366 NLRB No. 80)  St. Clairsville, OH, May 7, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated:  (1) Section 8(a)(1) by threatening employees with reprisal for filing grievances, with closure of their work facility if they filed complaints with Federal and State authorities, and with discipline for discussing safety issues, and by engaging in surveillance of union activity;  (2) Section 8(a)(3), (4), and (1) by disciplining an employee because he filed a grievance and was the subject of an unfair labor practice charge; and (3) Section 8(a)(5) and (1) by failing to furnish and unreasonably delaying in furnishing information requested by the Union, and by unilaterally changing the location of step-three grievance meetings without first notifying the Union and giving it an opportunity to bargain.  A Board majority (Members Pearce and McFerran) adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening an employee with discharge for requesting union representation.  Dissenting, Member Emanuel found that a reasonable employee would not have interpreted the statement as a threat.  

Charges filed by United Mine Workers of America, AFL–CIO, CLC (UMW); UMW, District 31; UMW, District 31, Local 1501; and UMW, District 31, Local 9909.  Administrative Law Judge David I. Goldman issued his decision on May 8, 2017.  Members Pearce, McFerran, and Emanuel participated.

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Brasfield & Gorrie, LLC  (09-CA-199567; 366 NLRB No. 82)  Louisville, KY, May 8, 2018.

The Board adopted the Administrative Law Judge’s dismissal of the complaint alleging that the Respondent violated Section 8(a)(1) by engaging in surveillance and creating the impression of surveillance by taking photographs of and videotaping the employees’ union activities involving their picketing of Employer’s construction site.  The Board found that the judge was correct in applying the standard for employer photographing and videotaping of employee misconduct as it is occurring rather than the standard for “anticipatory misconduct,” which the Union asserted was the proper standard.  The Board further ruled that the judge had properly found that the Respondent had a “legitimate justification” for taking the photographs and videotaping the picketing employees given their blocking of both human and vehicle traffic.

Charge filed by United Brotherhood of Carpenters and Joiners of America (UBC), Indiana/Kentucky/Ohio Regional Council of Carpenters.  Administrative Law Judge Andrew S. Gollin issued his decision on December 8, 2017.  Members Pearce, Kaplan, and Emanuel  participated.

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St. Paul Park Refining Co., LLC d/b/a Western Refining  (18-CA-187896 and 18-CA-192436; 366 NLRB No. 83)  St. Paul Park, MN, May 8, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening employees with termination, surveillance, and stricter enforcement of work rules due to their union activities and by taking several adverse actions against an employee because he engaged in protected concerted activity.  In adopting the judge’s finding that the Respondent unlawfully disciplined an employee, the Board found it unnecessary to pass on the judge’s analysis of  the employee’s conduct as protected under NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984), and Interboro Contractors, Inc., 157 NLRB 1295 (1966).  Member McFerran noted that no party excepted to the judge’s application of Wright Line, 251 NLRB 1083 (1980).  The Board also denied the Respondent’s Motion to Reopen the Record to enter an arbitration award in which an arbitrator ruled that the Respondent justifiably disciplined the employee.

Charges filed by an individual.  Administrative Law Judge Charles J. Muhl issued his decision on December 20, 2017.  Members Pearce, McFerran, and Kaplan participated.

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Gross Electric, Inc.  (03-CA-187577; 366 NLRB No. 81)  Queensbury, NY, May 9, 2018.

The Board reversed the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(3) and (1) by  refusing to hire an individual because of his activity while serving as local president of the union during a grievance hearing.  The judge concluded that the individual was not engaged in protected concerted activity at a grievance hearing when he criticized the Respondent’s hiring process. Instead, the Board found that the individual’s statements were protected not simply because they were made during a grievance proceeding, but rather because they occurred in the context of his performing his union duties.

Charge filed by International Brotherhood of Electric Workers, Local 236.  Administrative Law Judge Ira Sandron issued his decision on May 22, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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Excalibur Charter School, Inc. (28-CA-023039; 366 NLRB No. 49) Apache Junction, AZ, May 9, 2018.  Errata to March 29, 2018 Decision and Order.  Errata   Amended Decision

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Coastal International Security, Inc.  (05-CA-193920; 366 NLRB No. 85)  Washington, DC, May 10, 2018.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provision of a settlement agreement.  The Board found that the Respondent had failed to comply with the terms of the settlement agreement by failing to post official Board notices and return the certification of posting.  The Board ordered the Respondent to cease and desist from failing and refusing to bargain with the Union and to bargain on request with the Union concerning terms and conditions of employment, and to post official Board notices and return the certification of posting.

Charge filed by National Association of Special Police and Security Officers.  Members Pearce, Kaplan, and Emanuel participated.

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Coastal International Security, Inc.  (05-CA-193900; 366 NLRB No. 84)  Silver Spring, MD, May 10, 2018.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provision of a settlement agreement.  The Board found that the Respondent had failed to comply with the terms of the settlement agreement by failing to furnish certain parts of information requested by the Union and by failing to post official Board notices and return the certification of posting.  The Board ordered the Respondent to comply with the unmet terms of the settlement agreement by furnishing the information not yet provided to the Union and by posting official Board notices and returning the certification of posting.

Charge filed by National Association of Special Police and Security Officers.  Members Pearce, Kaplan, and Emanuel participated.

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Alaris Health at Rochelle Park  (22-CA194401; 366 NLRB No. 86)  Rochelle Park, NJ, May 10, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally eliminating a holiday-payout option.  The Board amended the judge’s remedy to permit greater flexibility in calculating backpay during the compliance phase of the proceedings.

Charge filed by 1199 SEIU United Health Care Workers East.  Administrative Law Judge Benjamin W. Green issued his decision on November 8, 2017.  Members Pearce, McFerran, and Kaplan participated.

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Temple University Hospital, Inc.  (04-CA-174336; 366 NLRB No. 88)  Philadelphia, PA, May 11, 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 of the Respondent’s professional medical interpreters and transplant financial coordinators as part of the existing unit of professional and technical employees.

Charge filed by Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP).  Members Pearce, McFerran, and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Inwood Material Terminal, LLC  (29-RD-206581)  Inwood, NY, May 7, 2018. The Board granted the Intervenor’s Request for Review of the Regional Director’s Decision and Direction of Election to determine whether the parties’ emails are sufficient to constitute a signed agreement that would establish a contract bar. Petitioner – an individual. Union – United Plant & Production Workers Local 175 P.  Members Pearce, Kaplan, and Emanuel participated.

Apple Bus Company  (19-RD-216636)  Soldotna, AK, May 9, 2018.  The Board denied the Petitioner’s Request for Review of the Regional Director’s determination to hold the petition in abeyance as it raised no substantial issues warranting review.  Petitioner – an individual.  Union – General Teamsters Local 959.  Members Pearce, Kaplan, and Emanuel participated.

King Soopers, Inc.  (27-RC-215705)  Broomfield, CO, May 10, 2018.  The Board denied the Employer’s Request to Stay the election, or, alternatively, to impound the ballots.  In denying the request, Chairman Ring and Member Kaplan 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 dismissal of the Employer’s request, without prejudice to the Board’s subsequent consideration of the merits of the Employer’s Request for Review.  Petitioner – United Food and Commercial Workers International Union, Local 7.  Chairman Ring and Members Pearce and Kaplan participated.

C Cases

New York Metro American Postal Union affiliated with American Postal Workers Union, AFL-CIO  (22-CB-208563)  Newark, NJ, May 8, 2018.  The Board denied the Union’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 Union failed to establish any other legal basis for revoking the subpoena.  The Board found no merit to the Union’s argument that the subpoena should be revoked because the amended charge is barred by the 6-month limitations period in Section 10(b) of the Act, since issues regarding Section 10(b) are generally not considered in an investigative subpoena context.  The Board evaluated the subpoena in light of the Region’s clarifications and withdrawal of certain subpoena paragraphs.  Charge filed by an individual.  Members Pearce, Kaplan, and Emanuel participated.

New York Party Shuttle, LLC, d/b/a Onboard Tours, Washington DC Party Shuttle, LLC, d/b/a Onboard Tours, Onboard Las Vegas Tours, LLC d/b/a Onboard Tours, NYC Guided Tours, LLC, and Party Shuttle Tours, LLC, a single employer  (02-CA-073340)  New York, NY, May 8, 2018.  The Board denied the Respondents’ Motion to Dismiss the consolidated complaint, finding that the Respondents failed to establish that there are no genuine issues of material fact warranting a hearing and that they are entitled to judgment as a matter of law.  The Board noted that the Respondents are precluded from relitigating at the compliance hearing their contention that the Charging Party was an independent contractor and not a statutory employee, because that contention was rejected by the Board in the underlying unfair labor practice proceeding.  Charge filed by an individual.  Members Pearce, Kaplan, and Emanuel participated.

Tops Markets, LLC  (03-CA-192010 and 03-CA-196668)  LeGrangeville, NY, May 9, 2018.   No exceptions having been filed to the March 26, 2018 decision of Administrative Law Judge Elizabeth M. Tafe’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order.  Charges filed by United Food and Commercial workers, Local 464A.

Universal Security, Inc.  (13-CA-178494 and 13-CA-182708)  Chicago, IL, May 9, 2018.  No exceptions having been filed to the April 2, 2018 decision of Administrative Law Judge Christine E. Dibble’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order.  Charges filed by Service Employees International Union, Local 1.

Cytec Process Materials (CA), Inc.  (21-CA-187639, et al.)  Los Angeles, CA, May 10, 2018.  No exceptions having been filed to the March 27, 2018 decision of Administrative Law Judge John T. Giannopoulos’ finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order.  Charges filed by International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 725.

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Appellate Court Decisions

Local 58, International Brotherhood of Electrical Workers (IBEW), AFL-CIO (Paramount Industries, Inc.), Board Case 07-CB-149555 (reported at 365 NLRB No. 30) (D.C. Cir. decided May 8, 2018)

In a published opinion, the Court enforced the Board’s order issued against this Union that operates a hiring hall in Detroit, Michigan, and represents 4,000 employees who work under several collective-bargaining agreements across southeastern Michigan. This case involved the Union’s institution of a new written policy that members who wish to resign from the Union or revoke their dues-deduction authorizations must appear in person at the union hall and present picture identification.  The Board (Acting Chairman Miscimarra and Member McFerran; Member Pearce, dissenting) found that the Union violated Section 8(b)(1)(A) by maintaining a policy that, on its face, restrained its members’ exercise of their Section 7 rights.  In doing so, the Board applied well-established Board precedent, approved by the Supreme Court, while also reaffirming that a union may require its members “to take minimal affirmative steps to effectively communicate [their] intention to the union,” such as putting a resignation in writing and sending it to a designated union officer. 

On review, the Court held that the Board’s determination was supported by substantial evidence and consistent with extant law.  “Here,” the Court explained, “the Board concluded simply that, on the record before it, requiring physical presence with photo identification was unduly burdensome.”  Further, the Court noted that its decision “rests in part on the Board’s reaffirmation of its precedent that not every procedural requirement will unlawfully burden members’ Section 7 rights.” 

The Court’s opinion is here.

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Administrative Law Judge Decisions

Central KY Branch 361, National Association of Letter Carriers, AFL-CIO (NALC) (United States Postal Service) (09-CB-202214; JD-29-18) Lexington, KY, May 11, 2018.  Errata to Decision of Administrative Law Judge Andrew S. Gollin issued on May 4, 2018.  Errata   Amended Decision

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