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Summary of NLRB Decisions for Week of November 14 - 18, 2016

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

Personnel Staffing Group, LLC d/b/a Most Valuable Personnel and MVP Workforce, LLC, a single employer  (13-CA-149591, et al.; 364 NLRB No. 147)  Northbrook, IL, November 16, 2016.

The Board denied the Respondent’s motion for summary judgment, finding 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.  Member Miscimarra concurred, noting his separate position regarding the General Counsel’s burden in responding to such motions, articulated in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110, slip op. at 3 (2015).

Charges filed by Chicago Workers’ Collaborative, Westside Health Authority, and several individuals.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Dayton Heidelberg Distributing Co. d/b/a Heidelberg Distributing Co.  (09-CA-156105, 364 NLRB No. 148)  Columbus, OH, November 18, 2016

The Board adopted the Administrative Law Judge’s dismissal of the complaint, which alleged that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to execute a complete bargaining agreement.

Charge filed by International Brotherhood of Teamsters, Local Union No. 284.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Agora Cyber Charter School  (04-RC-170767)  King of Prussia, PA, November 16, 2016.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Direction of Election concerning a petitioned-for unit of teachers, holding that the Employer’s charter school is not exempt as a political subdivision under Sec. 2(2) of the Act.  The Board majority (Chairman Pearce and Member McFerran) found that the Acting Regional Director correctly applied the test in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971)(“Hawkins County”) and that his reasoning was consistent with the Board’s recent decision in The Pennsylvania Virtual Charter School, 364 NLRB No. 87 (2016).  The majority also found no merit in the Employer’s argument that the Board should, pursuant to Sec. 14(c)(1), discretionarily decline to assert jurisdiction over the Employer based on the cyber charter school’s intrastate character and the state’s interest in regulating the labor relations of these schools as it does with public schools.  Member Miscimarra, dissenting, would grant the Employer’s Request for Review and dismiss the petition.  For the reasons discussed in his dissenting opinions in The Pennsylvania Virtual Charter School, supra, slip op. at 11-18 (2016) and Hyde Leadership Charter School, 364 NLRB No. 88, slip op. at 14-15 (2016), Member Miscimarra believes the Board should decline jurisdiction over charter schools generally and in this case.  (A second case involving this Employer, Case 04-RC-179402, issued the same day—see below).  Petitioner – Agora Cyber Professionals Association, PSEA/NEA.  Chairman Pearce and Members Miscimarra and McFerran participated.

Agora Cyber Charter School  (04-RC-179402)  King of Prussia, PA, November 16, 2016.  In a second case involving the same charter school, the Board issued an Order denying the Employer’s Request for Review of the Acting Regional Director’s Direction of Election regarding the petitioned-for unit of professional employees (coaches, counselors, social workers and others), holding that the Employer’s charter school is not exempt as a political subdivision under Sec. 2(2) of the Act.  Noting the reasons stated in its order concerning Case 04-RC-170767, the Board majority (Chairman Pearce and Member McFerran) found that the Acting Regional Director correctly found that the Employer is not an exempt political subdivision for the same reasons stated in that case.  The majority also relied on the reasons stated in Case 04-RC-170767 in finding no merit in the Employer’s argument that the Board should, pursuant to Sec. 14(c)(1) of the Act, discretionarily decline to assert jurisdiction over the Employer.  Member Miscimarra, dissenting, would grant the Employer’s Request for Review and dismiss the petition.  For the reasons discussed in his dissenting opinions in The Pennsylvania Virtual Charter School, 364 NLRB No. 87, slip op. at 11-18 (2016) and Hyde Leadership Charter School, 364 NLRB No. 88, slip op. at 14-15 (2016), Member Miscimarra believes the Board should decline jurisdiction over charter schools generally and in this case.  Petitioner – Agora Cyber Professionals Association, PSEA/NEA.  Chairman Pearce and Members Miscimarra and McFerran participated.

National Oilwell Varco, L.P.  (08-RC-174497)  Youngstown, OH, November 17, 2016.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review.  Petitioner – International Union of Operating Engineers, Local 95.  Chairman Pearce and Members Miscimarra and McFerran participated.

Duke University  (10-RC-187957)  Durham, NC, November 17, 2016.  The Board granted the Employer’s appeal of the Acting Regional Director’s Order Denying Request for Postponement of Hearing and Statement of Position.  Petitioner – Service Employees International Union, CLC/CTW.  Chairman Pearce and Members Miscimarra and McFerran participated.

C Cases

T-Mobile USA, Inc.  (14-CA-170229)  Wichita, KS, November 16, 2016.  The Board denied Respondent’s request for special permission to appeal the Administrative Law Judge’s order granting in part and denying in part the petitions to revoke the subpoenas duces tecum served on Charging Party Communications Workers of America and T-Mobile Workers United, finding that the Respondent failed to establish that the judge abused her discretion.  In addition, the Board stated that the denial is without prejudice to the Respondent’s right to renew its arguments before the Board on any exceptions that may be filed to the judge’s decision, if appropriate.  Charge filed by Communications Workers of America, AFL-CIO.  Chairman Pearce and Members Miscimarra and McFerran participated.

Ports America Outer Harbor, LLC, currently known as Outer Harbor Terminal, LLC  (32-CA-110280 and 32-CB-118735)  Oakland, CA, November 18, 2016.  The Board granted International Longshore and Warehouse Union’s (ILWU) motion for permission to appeal the Administrative Law Judge’s Order approving a non-Board settlement agreement in Case 32-CA-110280, to which it was not a party.  For purposes of the appeal, the Board assumed, without deciding, that ILWU had standing to file the motion.  On the merits, the Board denied the appeal, finding that the ILWU failed to demonstrate that the judge abused her discretion in approving the settlement.  Charges filed by International Association of Machinists and Aerospace Workers, District Lodge 190, East Bay Automotive Machinists Lodge No. 1546, International Association of Machinists and Aerospace Workers, AFL-CIO/CLC.  Chairman Pearce and Members Miscimarra and McFerran participated.

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Appellate Court Decisions

Manhattan Beer Distributors LLC, Board Case No. 29-CA-115694 (reported at 362 NLRB No. 192) (2d Cir. decided November 16, 2016)

In an unpublished summary order, the court enforced the Board’s order issued against this beer-delivery operation that services retail establishments from its Wyandanch, Long Island location where its truck drivers and helpers are represented by the Laundry Distribution and Food Service Joint Board, SEIU.  The Board (Members Hirozawa and McFerran; Member Johnson, dissenting) found that the Employer violated Section 8(a)(1) of the Act by continuing an investigatory interview of a represented employee after he requested union representation.  The Board also found that the Employer violated Section 8(a)(1) by directing the employee to immediately submit to a drug test as part of the investigation, and later discharging him for his refusal to submit to the test without a union representative being present.

On review, the court held that “the Board reasonably construed the NLRA, in light of relevant judicial and administrative precedent, in determining that [the Employer] had the right to the physical presence of a union representative before consenting to take a drug test in the context of an investigation that he reasonably believed would result in discipline,” citing NLRB v. J. Weingarten, Inc., 420 U.S. 251, 260, 262 (1975).  Finding that the Employer’s remaining contentions provided no basis to alter the Board’s decision, the court enforced the Board’s order for reinstatement and backpay.

The court’s decision may be found here.

Parkview Community Hospital Medical Center, Board Case No. 21-CA-147256 (reported at 362 NLRB No. 97) (D.C. Cir. decided November 16, 2016)

In an unpublished judgment, the court enforced the Board’s bargaining order issued against this acute-care hospital in Riverside, California, after its service, maintenance, and technical employees voted in a January 2014 election to be represented by SEIU United Health Care Workers-West.

In the underlying representation case, after a seven-day hearing, the Regional Director issued a decision recommending that the Board overrule the Employer’s four election objections.  First, the Regional Director found that the Union’s campaign flyers were not objectionable because they were identifiable as campaign propaganda and did not constitute a forgery, pervasive misrepresentation, or artful deception.  Second, the Regional Director found that the Employer’s claim that the Union improperly switched observers during a polling session was speculative and unsupported by precedent.  Third, the Regional Director found that no credible evidence supported the claim that any double voting or voter fraud had occurred.  Fourth, the Regional Director rejected, as contrary to witness testimony, the claim that the Board agent conducting the election had not properly checked voter identification.

On review, the court held that the Board’s overruling of the Employer’s election objections was reasonable and supported by substantial evidence for the reasons given by the Regional Director, upheld the Board’s certification of the Union, and enforced the bargaining order.

The court’s decision may be found here

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Administrative Law Judge Decisions

Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., as a single employer and/or joint employers  (25-CA-163189, et al.; JD-109-16)  Muscatine, IA.  Administrative Law Judge Robert A. Ringler issued his decision on November 14, 2016.  Charges filed by individuals.

IGT d/b/a International Game Technology  (28-CA-166915, et al.; JD(SF)-43-16)  Las Vegas, NV.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on November 15, 2016.  Charges filed by International Union of Operating Engineers Local Union 501, AFL-CIO.

Kapstone Paper and Packaging Corporation  (19-CA-160107, et al.; JD(SF)-44-16)  Longview, WA.  Administrative Law Judge Lisa D. Thompson issued her decision on November 17, 2016.  Charges filed by Association of Western Pulp and Paper Workers Local 153, affiliated with the United Brotherhood of Carpenters and Joiners of America.

Michael Cetta, Inc. d/b/a Sparks Restaurant  (02-CA-142626 and 02-CA-144852; JD(NY)-43-16)  New York, NY.  Administrative Law Judge Lauren Esposito issued her decision on November 18, 2016.  Charges filed by United Food and Commercial Workers Local 342.

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