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

Primestar Construction Corporation  (28-CA-211009; 367 NLRB No. 25)  Dallas, TX, October 23, 2018.

The Board granted, in part, the General Counsel’s Motion for Partial Default Judgment based on the Respondent’s failure to file a sufficient answer to the complaint.  The Board found that, even considering the Respondent’s pro se status, the Respondent’s letter could not reasonably be read to deny the substance of allegations that Respondent is an employer engaged in commerce; the Union is a labor organization; and that a specified individual, as Respondent’s president, is a supervisor and agent within the meaning of the Act.  The Board denied the General Counsel’s motion with respect to the complaint paragraph concerning whether a copy of the charge was served on the Respondent and remanded that portion of the proceeding to the Region.

Charge filed by International Union of Operating Engineers, Local 351.  Chairman Ring and Members McFerran and Kaplan participated.

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VT Hackney, Inc.  (06-CA-199799, et al.; 367 NLRB No. 15)  Montgomery, PA, October 24, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by removing Union materials from its employees’ tool cabinets; interrogating an employee about his Union activities; and soliciting grievances from employees while making an implied promise to remedy the grievances, to discourage Union support.  Based on the Respondent’s unlawful removal of Union materials and unlawful solicitation of grievances, the Board adopted the judge’s finding that the Respondent prevented employees from participating in a fair election, set aside the election, and remanded the representation case to the Regional Director to direct a second election.

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO, CLC.  Administrative Law Judge Robert A. Ringler issued his decision on April 19, 2018.  Chairman Ring and Members Kaplan and Emanuel participated.

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Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel  (20-CA-167132, et al.; 367 NLRB No. 27)  Honolulu, HI, October 24, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by directing off-duty employees not to distribute leaflets in the lower lobby of its hotel, and Section 8(a)(3) and (1) by placing an employee on a Performance Management Plan to discourage union activity.

Charges filed by UNITE HERE! Local 5.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on April 12, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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ETS Oilfield Services, L.P.  (16-CA-172847; 367 NLRB No. 26)  Robstown, TX, October 25, 2018.

The Board found that, in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint must be dismissed.  The Administrative Law Judge had found that the Respondent’s maintenance of its Mutual Agreement to Arbitrate, that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, violated the Act under the Board’s decisions in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil.

Charge filed by individual.  Administrative Law Judge Sharon Levinson Steckler issued her decision on December 23, 2016.  Chairman Ring and Members Kaplan and Emanuel participated.

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DeNovo Legal LLC d/b/a Epiq Document Review Solutions  (02-CA-182019; 367 NLRB No. 13)  New York, NY, October 26, 2018.

The Board found that, in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint allegation that the Respondent’s maintenance of its Employment, Confidential Information and Arbitration Agreement and Release violated Section 8(a)(1) must be dismissed.  The Board remanded to the Regional Director the separate issues, before the Board on the General Counsel’s motion for summary judgment and the Respondent’s cross-motion for summary judgment, whether other challenged rules in the Respondent’s agreement independently violate Section 8(a)(1).  The Board observed that, when the parties filed their pending motions, the issue of whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would be resolved based on the “reasonably construe” prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).  The Board noted that it subsequently issued its decision in The Boeing Company, 365 NLRB No. 154, in which it overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases.  The Board found that, under the standard announced in Boeing, the parties’ motions do not establish that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law as to these complaint allegations.

Charge filed by an individual.  Chairman Ring and Members Kaplan and Emanuel participated.

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Silvan Industries, a Division of SPVG, Employer/Petitioner  (18-RM-186941; 367 NLRB No. 28)  Marinette, WI, October 26, 2018.

A full Board majority (Chairman Ring, and Members Kaplan and Emanuel) reversed the Regional Director’s application of the contract bar doctrine to bar the Employer-Petitioner’s petition.  The Employer and the Union had reached a tentative collective-bargaining agreement on October 13, 2016; the Union informed the Employer that it had been ratified on October 15; and the parties met on October 25 to execute the agreement, which by its terms was effective beginning on November 7.  On October 25, the Employer was also presented with an employee petition expressing opposition to continued representation by the Union.  The Employer believed this raised a good-faith reasonable doubt as to the Union’s continuing majority status, and accordingly filed the instant RM petition, after which it signed the collective-bargaining agreement.  On these facts, the Regional Director concluded that the Employer was precluded from challenging the Union’s majority status under Auciello Iron Works, 317 NLRB 364 (1995), enfd. 60 F.3d 24 (1st Cir. 1995), affd. 517 U.S. 781 (1996).  The Board, however, held that, under the contract-bar doctrine, a petition is not barred when it is filed after an agreement’s execution but before its effective date.  The Board noted that the petition was filed at a time that the Employer could not have lawfully withdrawn recognition, but observed that the Employer did not in fact withdraw recognition here and accordingly withdrawal-of-recognition cases (such as Auciello Iron Works) were inapplicable.  The Board further commented that barring the petition under these circumstances would be too high a cost to employee free choice, and suggested that the holding of this case was unlikely to result in employers seeking delayed effective dates.  The Board accordingly remanded the case for the Regional Director to determine whether the Employer had in fact established a good-faith reasonable uncertainty as to the Union’s continued majority status among the unit employees.

Dissenting, Member McFerran would have affirmed the Regional Director, given that the Employer had entered into the agreement before filing its petition, and careful analysis of policy and precedent (including Auciello Iron Works) supported the Regional Director’s dismissal of the petition.

Union—United Association of Plumbers, Steamfitters, and Pipefitters of the United States and Canada, Local 400.  Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

The Boeing Company  (19-CA-090932, et al.)  Seattle, WA, October 23, 2018.  The Board denied the Motion for Reconsideration of the Board’s Order Denying Motion, reported at 366 NLRB No. 128 (2018), filed by the International Union of Painters and Allied Trades, District Council 15, Local 159, AFL-CIO (Local 159), because Local 159 did not demonstrate extraordinary circumstances warranting reconsideration.  Member McFerran stated that she adheres to the views expressed in the joint dissent from the Board’s Order Denying Motion, but nevertheless concurs in the denial of the present motion under the standard in Section 102.48(c)(1) of the Board’s Rules.  Charges filed by Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001.  Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.

National Rural Letter Carriers’ Association (United States Postal Service)  (15-CB-220889)  Gonzales, LA, October 23, 2018.  The Board denied the Union’s Petition to Revoke investigative subpoenas ad testificandum, as the subpoenas 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 subpoenas.  Charge filed by an individual.  Members McFerran, Kaplan, and Emanuel participated.

IIG Wireless, Inc. f/k/a Unlimited PCS, Inc.; and UPCS CA Resources, Inc.  (21-CA-152170)  Garden Grove and Irvine, CA, October 25, 2018.  The Board found that, in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint allegation that the Respondent’s maintenance of its Mutual Arbitration Agreement violated Section 8(a)(1) must be dismissed.  Additionally, the Board issued a Notice to Show Cause as to why the allegation that the Mutual Arbitration Agreement was unlawful because it would reasonably be construed by employees to restrict their ability to file Board charges should not be remanded to the Administrative Law Judge.  Charge filed by an individual.  Members McFerran, Kaplan, and Emanuel participated.

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Appellate Court Decisions

Deep Distributors of Greater NY d/b/a The Imperial Sales, Inc., Board Case No. 29-CA-147909 (reported at 365 NLRB No. 95) (2d Cir. decided October 24, 2018)

In an unpublished summary order, the Court enforced the Board’s order issued against this wholesale distributor of beauty products, appliances, and electronics with a warehouse in Bethpage, New York.  The order remedies a sweeping variety of unfair labor practices committed both before and after the election in March 2015, in which its warehouse employees voted 9 to 5 to be represented by United Workers of America, Local 660.

The Board (Chairman Miscimarra and Members Pearce and McFerran) found that the Employer violated Section 8(a)(1) by creating the impression of surveillance, threatening employees with discharge if they voted for the union, telling employees that selecting a union would be futile, interrogating employees about their participation in the wage-and-hour lawsuit and threatening them for doing so, implementing work rules in retaliation for union activity, discharging five employees for declining to sign those rules, and threatening to report employees to immigration authorities and with legal action because of their union activity and participation in a Board hearing.  The Board also found that the Employer violated Section 8(a)(3) and (1) by discharging three employees for engaging in union activity.

Before the Court, the Employer did not contest the substance of the Board’s findings.  Instead, it argued that enforcement was improper because it was substantially complying with the Board’s order.  It also contended that, as to the backpay or reinstatement remedies, it had no obligation because the discharged employees, it claimed, were either ineligible for relief because of their immigration-status or had waived their right to relief.

The Court rejected the Employer’s arguments and granted enforcement.  Citing NLRB v. Mexia Textile Mills, 339 U.S. 563 (1950), and its own circuit law, the Court noted that it is settled that the Board’s entitlement to enforcement is not affected by compliance.  The Court then stated that, to the extent the Employer believes that employees are not entitled to reinstatement or backpay, it may seek to adduce evidence of that in a subsequent compliance proceeding.

The Court’s decision may be found here.

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Administrative Law Judge Decisions

Motor City Pawn Brokers Inc., The Aubrey Group Inc., and Aubrey Brothers, LLC, a single employer  (07-CA-179458 and 07-CA-179461; JD-66-18)  Detroit, MI.  Administrative Law Judge Elizabeth M. Tafe issued her decision on October 22, 2018.  Charges filed by individuals.

International Longshoremen’s Association, Local 28 (Ceres Gulf, Inc.)  (16-CB-181716 and 16-CB-194603; JD-70-18)  Houston, TX.  Administrative Law Judge Sharon Levinson Steckler issued her decision on October 23, 2018.  Charges filed by an individual.

Fred Meyer Stores, Inc. (19-CA-206136; JD(SF)-18-18) Portland, OR, October 23, 2018.  Errata issued to July 2, 2018 decision of Administrative Law Judge Jeffrey D. Wedekind.  Errata   Amended Decision.

Matsu Corp. d/b/a Matsu Sushi Restaurant  (01-CA-214272; JD(NY)-14-18)  Brooklyn, NY.  Kenneth W. Chu issued his decision on October 26, 2018.  Charge filed by Flushing Workers Center.

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