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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of January 27 - 31, 2020

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

Stein, Inc.  (09-CA-215131, et al.; 369 NLRB No. 10)  Middletown, OH, January 28, 2020.

The Board adopted the Administrative Law Judge’s conclusions that Respondent Stein, as a successor employer under NLRB v. Burns Security Services, 406 U.S. 272 (1972), had a duty to recognize and bargain with Laborers’ International Union of North America (LIUNA), Local 534 (Laborers Local 534).  For that reason, the Board found that Respondent Stein violated Section 8(a)(2) and (1) by recognizing Respondent International Union of Operating Engineers, Local 18 (IUOE Local 18) as the exclusive collective-bargaining representative of the Laborers Local 534 bargaining unit employees, entering into a collective-bargaining agreement with Respondent IUOE Local 18, and maintaining and enforcing the terms of that agreement as to Laborers Local 534 unit members, as well as violated Section 8(a)(3) and (1) by maintaining and enforcing the union-security and dues-checkoff provisions of that agreement to the employees in the Laborers Local 534 bargaining unit.  The Board also found that Respondent Stein violated Section 8(a)(1) when it informed all potential applicants in the Laborers Local 534 bargaining unit that all jobs related to the performance of the slag/scrap processing would be under Respondent IUOE Local 18 and threatened Laborers Local 534 unit employees that they would be removed from the work schedule if they did not submit a membership application and dues check-off authorization to Respondent IUOE Local 18, as well as violated Section 8(a)(2) and (1) by granting Respondent IUOE Local 18 access to the jobsite and assistance in distributing Respondent IUOE Local 18 membership applications and dues-checkoff authorizations to Laborers Local 534 unit employees.  Moreover, the Board found that Respondent Stein violated Section 8(a)(5) and (1) by unlawfully discharging a Laborers Local 534 unit employee pursuant to the probationary period in the IUOE Local 18 collective-bargaining agreement, but only because that probationary period was longer than what Respondent Stein had established as part of its initial terms and conditions of employment for the Laborers Local 534 unit employees.  However, the Board reversed the judge’s conclusion that, even though it was a Burns successor, Respondent Stein was not free to set the initial terms and conditions of employment upon which it hired the Laborers Local 534 unit employees.

Additionally, the Board found that Respondent IUOE Local 18 violated Section 8(b)(1)(A) and (2) by accepting recognition from Respondent Stein as the exclusive collective-bargaining representative of the employees in the Laborers Local 534 unit; entering into, maintaining, and enforcing the terms of the collective-bargaining agreement with Respondent Stein; and receiving dues and fees from the employees in the Laborers Local 534 unit.  The Board also found that Respondent IUOE Local 18 violated Section 8(b)(1)(A) by threatening Laborers Local 534 unit employees that they would be taken off the work schedule if they did not join and pay fees and dues to Respondent IUOE Local 18 and by receiving assistance and support from Respondent Stein in being allowed on the jobsite to distribute membership applications and dues-checkoff authorization to Laborers Local 534 unit employees.

Charges filed by Laborers’ International Union of North America (LIUNA), Local 534.  Administrative Law Judge Andrew S. Gollin issued his decision on January 24, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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Stein, Inc.  (09-CA-214633 and 09-CB-214595; 369 NLR No. 11)  Middletown, OH, January 28, 2020.

The Board adopted the Administrative Law Judge’s conclusions that Respondent Stein, as a successor employer under NLRB v. Burns Security Services, 406 U.S. 272 (1972), had a duty to recognize and bargain with Truck Drivers, Chauffeurs, and Helpers, Local Union No. 100 (Teamsters Local 100).  For that reason, the Board found that Respondent Stein violated Section 8(a)(2) and (1) by recognizing Respondent International Union of Operating Engineers, Local 18 (IUOE Local 18) as the exclusive collective-bargaining representative of the Teamsters Local 100 bargaining unit employees, entering into a collective-bargaining agreement with Respondent IUOE Local 18, and maintaining and enforcing the terms of that agreement as to Teamsters Local 100 unit members, as well as violated Section 8(a)(3) and (1) by maintaining and enforcing the union-security and dues-checkoff provisions of that agreement to the employees in the Teamsters Local 100 bargaining unit.  The Board also found that Respondent Stein violated Section 8(a)(1) when it informed all potential applicants in the Teamsters Local 100 bargaining unit that all jobs related to the performance of the slag/scrap processing would be under Respondent IUOE Local 18 and threatened Teamsters Local 100 unit employees that they would be removed from the work schedule if they did not submit a membership application and dues check-off authorization to Respondent IUOE Local 18, as well as violated Section 8(a)(2) and (1) by granting Respondent IUOE Local 18 access to the jobsite and assistance in distributing Respondent IUOE Local 18 membership applications and dues-checkoff authorizations to Teamsters Local 100 unit employees.  However, the Board reversed the judge’s conclusion that, even though it was a Burns successor, Respondent Stein was not free to set the initial terms and conditions of employment upon which it hired the Teamsters Local 100 unit employees.

Additionally, the Board found that Respondent IUOE Local 18 violated Section 8(b)(1)(A) and (2) by accepting recognition from Respondent Stein as the exclusive collective-bargaining representative of the employees in the Teamsters Local 100 unit; entering into, maintaining, and enforcing the terms of the collective-bargaining agreement with Respondent Stein; and receiving dues and fees from the employees in the Teamsters Local 100 unit.  The Board also  found that Respondent IUOE Local 18 violated Section 8(b)(1)(A) by threatening Teamsters Local 100 unit employees that they would be taken off the work schedule if they did not join and pay fees and dues to Respondent IUOE Local 18 and by receiving assistance and support from Respondent Stein in being allowed on the jobsite to distribute membership applications and dues-checkoff authorization to Teamsters Local 100 unit employees.

Charges filed by Truck Drivers, Chauffeurs and Helpers, Local Union No. 100, a/w the International Brotherhood of Teamsters.  Administrative Law Judge Andrew S. Gollin issued his decision on January 24, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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Seldat, Inc.  (21-CA-240526, et al.; 369 NLRB No. 14)  Compton, CA, January 29, 2020.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(1), (3) and (5) by interfering with, restraining, and coercing employees in the exercise of their Section 7 rights; discriminating in regard to the hire or tenure or terms and conditions of employment of its employees; and failing and refusing to bargain collectively and in good faith with the exclusive collective-bargaining representative of its employees.

Charges filed by Teamsters Local 63 and four individuals.  Chairman Ring and Members Kaplan and Emanuel participated.

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Transportation Services of St. John, Inc.  (12-CA-202248; 369 NLRB No. 15)  St. John, USVI, January 30, 2020.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by modifying the terms of its collective-bargaining agreement with the Union.  The judge found that, by imposing arbitration requirements that the contract did not provide for and the Union did not agree to, with no sound, arguable basis for doing so, the Respondent violated the Act.  In adopting the judge’s conclusion, the Board clarified the “sound arguable basis” standard for determining whether a contract has been unlawfully modified.

Charge filed by United, Industrial, Service, Transportation, Professional and Government Workers of North America, of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District/NMU, AFL-CIO.  Chairman Ring and Members Kaplan and Emanuel participated.

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Valley Health System, LLC d/b/a Desert Springs Hospital Medical Center, and Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center  (28-CA-184993, et al.; 369 NLRB No. 16)  Las Vegas, NV, January 30, 2020.

The Board adopted the Administrative Law Judge’s conclusion that Respondents Desert Springs Hospital Medical Center (Desert Springs Hospital) and Valley Hospital Medical Center (Valley Hospital) violated Section 8(a)(5) and (1) by withdrawing recognition from Service Employees International Union, Local 1107 (the Union) as the bargaining representative of separate bargaining units of registered nurses at Desert Springs Hospital and Valley Hospital, as well as a third bargaining unit of the technicians and licensed practical nurses at Desert Springs Hospital.  The Board found that the Respondents failed to prove an actual loss of majority support for the Union in any of the three bargaining units as required by Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), by relying in part on unauthenticated email submissions for which they could not show that the purported email submitters actually supported decertifying the Union.  Because the withdrawals of recognition were unlawful, the Board adopted the judge’s finding that the Respondents also violated Section 8(a)(5) and (1) by granting wage increases to the employees in all three bargaining units immediately after withdrawing recognition.  Moreover, the Board adopted the judge’s findings that Respondent Desert Springs Hospital violated Section 8(a)(1) by confiscating union literature from breakroom tables, soliciting bargaining unit employees to support decertification of the Union, and surveilling bargaining unit employees’ union activity, as well as Section 8(a)(5) and (1) by implementing a unilateral change to union representatives’ access to bargaining unit employees by prohibiting them from meeting with bargaining unit employees in an employee breakroom while non-bargaining unit employees were present.  The Board also adopted the judge’s findings that Respondent Valley Hospital violated Section 8(a)(1) by promising bargaining unit employees wage increases if they decertified the Union and conveying to employees the futility of union representation, as well as Section 8(a)(5) and (1) by implementing unilateral changes to union representatives’ access to bargaining unit employees by (i) prohibiting them from meeting with more than two bargaining unit employees at a time and (ii) preventing them from speaking at new employee orientations; and failing and refusing to provide the Union with requested information regarding bargaining unit employees.  The Board also adopted the judge’s dismissal of the 8(a)(1) allegation that Desert Springs Hospital, through a security guard, created an impression of surveillance of employees’ union activity.

Further, the Board reversed the judge’s conclusions that the Respondents violated Section 8(a)(5) and (1) by ceasing to deduct union dues from bargaining unit employees’ wages after the collective-bargaining agreements expired; (2) Respondent Desert Springs Hospital violated Section 8(a)(5) and (1) by removing union flyers from its bulletin boards in employee breakrooms; and (3) Respondent Valley Hospital violated Section 8(a)(1) by promising bargaining unit employees better working conditions if they decertified the Union.  As a part of the remedy, a Board majority (Chairman Ring and Member Kaplan) ordered the Respondents to hold a meeting or meetings during working hours and have the notice to employees read to unit employees.  Member Emanuel disagreed with the majority that a notice-reading remedy was warranted in this case.

Charges filed by Service Employees International Union, Local 1107.  Administrative Law Judge Dickie Montemayor issued his decision on September 28, 2018.  Chairman Ring and Members Kaplan and Emanuel participated.

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Alaska Communications Systems Holdings, Inc.  (19-CA-241609; 369 NLRB No. 17)  Hillsboro, OR, January 30, 2020.

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.

Charge filed by International Brotherhood of Electrical Workers, Local 1547, AFL–CIO.  Chairman Ring and Members Kaplan and Emanuel participated.

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Phillips 66  (31-CA-085243 and 31-CA-096709; 369 NLRB No. 13)  Santa Maria, CA, January 31, 2020.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening employees with adverse changes to their jobs if they voted for union representation.  The Board reversed the judge’s findings that the Respondent further violated the Act by implicitly promising benefits to employees if they voted against union representation, bargaining in bad faith, unilaterally implementing its final bargaining proposal in the absence of a valid impasse, and by implementing its final offer in retaliation for employees pursuing union representation.

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO-CLC.  Chairman Ring and Members 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

United States Postal Service  (28-CA-236666)  Albuquerque, NM, January 27, 2020.  No exceptions having been filed to the December 10, 2019 decision of Administrative Law Judge Michael A. Rosas’ finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the complaint dismissed.  Charge filed by National Association of Letter Carriers, Sunshine Branch 504, AFL-CIO.

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Appellate Court Decisions

Duquesne University of the Holy Spirit, Board Case No. 06-CA-197492 (reported at 366 NLRB No. 27) (D.C. Cir. decided January 28, 2020).

In a published opinion in this test-of-certification case, the Court granted the petition for review filed by this private, non-profit university in Pittsburgh, Pennsylvania, which, in its mission statement, is self-described as a Catholic university.  The Board found that the University violated Section 8(a)(5) and (1) by refusing to bargain after its part-time, adjunct faculty members employed at the University’s McAnulty College and Graduate School of Liberal Arts voted 50-9 in an election in 2012 to be represented by the United Steel, Paper & Forestry, Rubber, Manufacturing, Allied Industrial & Service Workers International Union, AFL-CIO/CLC.

In this first judicial review of the Board’s standard announced in Pacific Lutheran University, 361 NLRB 1404 (2014), for determining when to decline jurisdiction over faculty members at self-identified religious colleges and universities, the Court held that the standard was inconsistent with the D.C. Circuit’s test set forth in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), and later applied in Carroll College v. NLRB, 558 F.3d 568 (D.C. Cir. 2009).  In Pacific Lutheran, the Board had determined that it would exercise jurisdiction over self-identified religious colleges and universities, unless the school demonstrated that: (1) it held itself out to the public as providing a religious educational environment, and (2) it held the petitioned-for faculty members out to the public as performing a specific role in creating or maintaining the school’s religious educational environment.

In the underlying representation proceeding in this case, the Board (Acting Chairman Miscimarra, and Members Pearce and McFerran), granted review only to exclude from the petitioned-for unit those adjuncts who taught in the Department of Theology.  Otherwise, the Board (Acting Chairman Miscimarra, dissenting) let stand the Regional Director’s application of the Pacific Lutheran standard, which found that while the University held itself out as providing a religious educational environment, it did not hold out its part-time adjuncts as creating or maintaining a religious environment.  After the election was held and the Union was certified, the University refused to bargain in order to seek court review.

The Court (Circuit Judges Rogers and Griffith; Circuit Judge Pillard, dissenting) concluded that the Board lacked jurisdiction under the Court’s Great Falls and Carroll College decisions, which, the Court stated, “continue to govern the reach of the Board’s jurisdiction under the NLRA in cases involving religious schools and their faculty members or teachers.”  In Great Falls, the Court stated that to avoid intrusive inquiries into religious matters and other constitutional concerns expressed in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the Board, in assessing such jurisdictional questions, “should consider whether the institution: (a) holds itself out to the public as a religious institution; (b) is non-profit; and (c) is religiously affiliated.”  278 F.3d at 1347.  As the Court here explained, later in Carroll College, it stressed that this is a “bright-line test” to “determine whether an entity is altogether exempt from the NLRA,” and that the test “allow[s] the Board to determine whether it has jurisdiction without delving into matters of religious doctrine or motive.”  Applying that test, under a de novo standard of review, the Court held that the University met the Great Falls standard, and therefore was exempt from the Act’s coverage.  In doing so, the Court rejected the Board’s statement that Pacific Lutheran was consistent with Great Falls because it reasonably extended the rationale of Great Falls to consider the specifics of how a university holds its faculty members out to the public.

In a dissenting opinion, Judge Pillard wrote to emphasize that this case involves “adjunct faculty, an issue no court has yet decided.”  She stated that “[i]t is not at all apparent that temporary, part-time adjuncts whom the school does not even hold out as agents of its religious mission necessarily fall within an exemption from the [Act], that was drawn to account for the ‘critical and unique role’ of faculty in ‘fulfilling the mission of a church-operated school,’” quoting Catholic Bishop, 440 U.S. at 501.  She then proceeded to attempt to answer that question and to describe how, in her view, “the Board’s approach” in Pacific Lutheran held “several advantages” in addressing the issue.

The Court’s opinion is here.

American Sales and Management Organization, LLC d/b/a Eulen America, Board No. 12-CA-163435 (reported at 367 NLRB No. 42) (D.C. Cir. decided January 27, 2020).

In an unpublished judgment, the D.C. Circuit enforced the Board’s order issued against this company that provides ground services for six airlines at the Fort Lauderdale-Hollywood International Airport for violating Section 8(a)(3) and (1) when it discharged and refused to rehire an employee who supported the organizing campaign conducted by the Service Employees International Union, Local 32BJ.  In doing so, the Court upheld the determination by the Board (Chairman Ring and Member Kaplan; Member McFerran, concurring) that the company is covered by the National Labor Relations Act (NLRA), rather than the Railway Labor Act (RLA).

Before the Administrative Law Judge, the company argued that it was not an employer subject to the Board’s jurisdiction, but rather a “derivative carrier” covered by the RLA, because it operates under the control of air carriers, pursuant to the NMB’s six-factor jurisdictional test.  See Air Serv Corp., 33 NMB 272, 285 (2006) (to determine control by an air carrier, the agency assesses:  (1) the extent of the carrier’s control over the manner in which the company conducts its business; (2) the carrier’s access to the company’s operations and records; (3) the carrier’s role in the company’s personnel decisions; (4) the degree of carrier supervision of the company’s employees; (5) whether company employees are held out to the public as carrier employees; and (6) the extent of the carrier’s control over employee training).  Applying that test, the judge concluded that the company failed to establish that it was meaningfully controlled by the six air carriers it services at the airport.  After establishing NLRA jurisdiction, the judge found that the company committed the alleged unfair labor practices.

Before the Board, the company raised only the issue of jurisdiction.  Applying the NMB’s test for determining carrier control, the Board concluded that all but one of six carrier-control factors (factor 2) favored a finding of NLRA jurisdiction.  Concerning the five supporting factors, the Board found that there was no carrier control over the manner in which the company conducts its business on a day-to-day basis (factor 1); that the company did not reflexively adopt carrier recommendations on personnel matters (factor 3); that the company’s own on-site supervisors and managers assign and direct work and determine all disciplinary matters (factor 4); that the company controls the training of employees using an exhaustive 900-page manual (factor 5); and that uniforms and badges worn by the vast majority of employees visibly identify them as company, and not carrier, employees (factor 6).  In the absence of exceptions, the Board adopted the judge’s unfair-labor-practice findings.

On review, the Court held that substantial evidence supported the Board’s assessment of each of the six carrier-control factors, and that the Board’s overall finding of jurisdiction was neither erroneous nor inconsistent with its prior decisions.  Accordingly, the Court enforced the Board’s order in full.

The Court’s judgment may be found here.

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Administrative Law Judge Decisions

New York Paving, Inc.  (29-CA-234894 and 29-CA-233990; JD(NY)-01-20)  Brooklyn, NY.  Administrative Law Judge Lauren Esposito issued her decision on January 27, 2020.  Charges filed by Construction Council Local 175, Utility Workers Union of America, AFL-CIO.

IGT d/b/a International Game Technology  (28-CA-166915; JD(SF)-04-20)  Las Vegas, NV.  Administrative Law Judge Jeffrey D. Wedekind issued his supplemental decision on January 29, 2020.  Charge filed by International Union of Operating Engineers Local Union 501, AFL-CIO.

American Medical Response of Southern California (21-CA-231607, et al.; JD(SF)-05-20) Riverside, CA.  Administrative Law Judge Dickie Montemayor issued his decision on January 31, 2020.  Charges filed by United EMS Workers, AFSCME Local 4911.

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