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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of July 16 - 20, 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

Windsor Redding Care Center, LLC  (20-CA-070465, et al.; 366 NLRB No. 127)  Redding CA, July 17, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not unlawfully refuse to engage in pre-disciplinary or post-disciplinary bargaining with the Union.  A Board majority (Members Kaplan and Emanuel; Member McFerran, dissenting) further agreed with the judge that the Respondent did not unlawfully terminate a housekeeping employee; Member McFerran would have found that the Respondent failed to establish that it would have taken the same action absent the employee’s union activity.  Contrary to the judge, the Board unanimously found that the Respondent unlawfully changed its practice of granting merit raises.  A Board majority (Members McFerran and Kaplan; Member Emanuel, dissenting) additionally found that the Respondent unlawfully terminated a restorative nursing assistant; Member Emanuel would have found that the Respondent established that it would have discharged the employee even absent the employee’s union activity.

Charges filed by SEIU United Service Workers-West.  Administrative Law Judge Gregory Z. Meyerson issued his decision on December 31, 2012.  Members McFerran, Kaplan, and Emanuel participated.

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The Boeing Company  (19-CA-090932, et al.; 366 NLRB No. 128)  Seattle, WA, July 17, 2018.

The Board (Chairman Ring, and Members Kaplan and Emanuel; Members Pearce and McFerran, dissenting) denied the Motion to Intervene filed by the International Union of Painters and Allied Trades, District Council 15, Local 159, AFL-CIO (Local 159), and dismissed Local 159’s Motion for Reconsideration as moot.  Local 159 had moved to intervene and for reconsideration of the Board’s decision, reported at 365 NLRB No. 154, on the basis that Boeing was issued without due process to Local 159 because it did not have prior notice that the Board would issue a decision in Boeing that affects Local 159’s rights.  The Board denied the Motion to Intervene on four bases: (1) the Board’s Rules and Regulations do not permit intervention after the close of the hearing, “let alone after the Board has issued its decision, as Local 159 seeks here;” (2) whenever the Board issues a decision that overrules precedent and applies that decision retroactively, it is virtually certain that live cases will be affected; (3) even if Local 159 would otherwise have a right to be heard on Boeing’s overruling of Rio All-Suites, Local 159 sacrificed that right when it opposed the Board’s motion in the Ninth Circuit to remand Rio All-Suites to the Board; and (4) the Ninth Circuit’s granting of the Board’s motion to remand gives Local 159 the very opportunity that it seeks in this case by its Motion to Intervene—the opportunity to make whatever arguments regarding Boeing it wishes to make.

Dissenting, Members Pearce and McFerran found that the due process violation is clear, and that Local 159’s intervention is warranted.  “It is obvious that the Painters Union has an interest implicated in this case that it cannot protect unless intervention is granted.”  Additionally, Members Pearce and McFerran asserted that “the rush to judgment reflected in Boeing…made a mockery of due process rights,” and that the Board majority’s present decision only “compounds that grievous error.”

Charges filed by Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001.  Administrative Law Judge Gerald M. Etchingham issued his decision on May 15, 2014.  Chairman Ring and Members Pearce, McFerran, Kaplan, and Emanuel participated.

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Marathon Petroleum Co. d/b/a Catlettsburg Refining, LLC  (09-CA-162710; 366 NLRB No. 125)  Catlettsburg, KY, July 18, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with information requested which was necessary and relevant to the Union’s performance of its duties as the collective-bargaining representative of the unit employees.  Although Chairman Ring adopted the judge’s finding regarding the Section 8(a)(5), he noted that the Respondent’s duty to furnish information may not be so clear because the parties’ collective bargaining agreement waived the Union’s right to bargain over the subcontracting of maintenance work; the side agreement called for discussions, not bargaining; and the side agreement reiterated the contractual bargaining waiver of the subcontracted maintenance work.  However, Chairman Ring did not reach or address that argument because it was not raised to the judge.  Contrary to the Chairman, Members Pearce and McFerran would not find that the facts described by the Chairman, even if raised to the judge, would constitute a waiver.  They also found no merit to the Chairman’s suggestion that the side agreement’s requirement to meet and discuss may not give rise to a bargaining obligation.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO and its Local 8-719.  Administrative Law Judge Thomas M. Randazzo issued his decision on September 1, 2016.  Chairman Ring and Members Pearce and McFerran participated.

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North West Rural Electric Cooperative  (18-CA-150605; 366 NLRB No. 132)  Orange City, IA, July 19, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee because he engaged in protected concerted activities.  Agreeing with the judge’s finding that the Respondent enforced two work policies by citing them as a basis for the employee’s discharge, the Board found that the Respondent violated Section 8(a)(1) by applying the policies to restrict Section 7 activity.  In addition, a Board majority (Members Pearce and McFerran; Member Emanuel, dissenting) adopted the judge’s finding that the Respondent violated Section 8(a)(1) by informing the employee that he was discharged for engaging in protected concerted activities.

Charge filed by an individual.  Administrative Law Judge Thomas M. Randazzo issued his decision on September 28, 2016.  Members Pearce, McFerran, and Emanuel participated.

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AdvancePierre Foods, Inc.  (09-CA-153966, et al.; 366 NLRB No. 133)  Cincinnati, OH, July 19, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) during the course of the Union’s organizing campaign by, inter alia, maintaining an unlawful no-solicitation/no-distribution policy, interrogating, surveilling (including an unlawful search of union sympathizers’ Facebook pages), and disciplining four employees for engaging in protected union activity.  Additionally, the Board found that the Respondent violated Section 8(a)(1) by interrogating an employee about engaging in the distribution of union authorization cards.  Further, a Board majority (Members Pearce and McFerran) reversed the judge and found that the Respondent violated Section 8(a)(1) by soliciting employees to revoke their union cards in the context of serious unfair labor practices, including the confiscation of union cards found during an unlawful search of employees’ clipboards.  The majority reasoned that such serious violations during the solicitation period struck at the heart of the card-signing process and the Union’s organizing efforts and created an atmosphere where employees would feel imperiled if they did not revoke their support for the Union.  Finally, the Board majority granted the General Counsel’s request for a notice-reading remedy based on the sufficiently serious and plant-wide nature of the violations.

Charges filed by United Food and Commercial Workers Union, Local 75 a/w United Food and Commercial Workers International Union.  Administrative Law Judge David I. Goldman issued his decision on June 27, 2016.  Members Pearce, McFerran, and Emanuel participated.

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Perkins Management Services Company  (13-CA-210664; 366 NLRB No. 130)  Chicago, IL, July 19, 2018.

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)(5) and (1) by failing to provide the Union with relevant, requested information, with the exception of employee social security numbers.  In the absence of a showing of their potential or probable relevance, the Board denied the General Counsel’s motion with respect to the Respondent’s failure to provide social security numbers, and remanded that issue to the Region for further appropriate action.

Charge filed by UNITE HERE Local 1.  Members Pearce, McFerran, and Kaplan participated.

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Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., as a single employer and/or joint employers (25-CA-163189, et al.; 366 NLRB No. 94) Muscatine, IA, July 20, 2018.  Errata to June 6, 2018 decision.  Errata   Amended Decision.

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Starbright Corporation and Andertainment Group, LLC, as joint employers  (15-CA-204467; 366 NLRB No. 136)  Saint Francisville, LA, July 20, 2018.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondents’ failure to file an answer to the complaint.  The Board found that the Respondents violated Section 8(a)(5) and (1) by unreasonably delaying in furnishing the Union with certain requested information and by failing and refusing to furnish the Union with the requested time sheets.

Charge filed by International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists, and Allied Crafts of the United States, its Territories and Canada, AFL–CIO.  Chairman Ring and Members McFerran and Kaplan participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Metro Ambulance Services, Inc. d/b/a American Medical Response  (10-RC-208221)  Stone Mountain, GA, July 17, 2018.  The Board  denied the Employer’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—International Association of EMT’s and Paramedics (IAEP).  Chairman Ring and Members McFerran and Emanuel participated.

Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino  (28-RC-208266)  Henderson, NV, July 18, 2018.  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.  The Regional Director had overruled the Employer’s objection alleging that Union agents engaged in objectionable list-keeping.  In denying review, the Board found that the Employer failed to prove that any employees knew or would have reasonably inferred that the Petitioner had made a list of employees who had not yet voted in the election, and that, absent such proof, the Petitioner’s conduct could not have reasonably tended to interfere with the employees’ free choice in the election.  Further, the Board found that, because all of the Petitioner’s actions were in response to information that employees voluntarily provided to it, this conduct could not reasonably give rise to an impression of surveillance.  Petitioner—Local Joint Executive Board of Las Vegas, a/w UNITE HERE International Union.  Chairman Ring and Members McFerran and Emanuel participated.

C Cases

Tesla, Inc.  (32-CA-197020, et al.)  Fremont, CA, July 16, 2018.  The Board granted the General Counsel’s Request for Special Permission to Appeal the Administrative Law Judge’s amended order denying the General Counsel’s motion to allow a witness to testify by videoconferencing.  On the merits, the Board denied the appeal, finding that the General Counsel failed to establish that the judge abused her discretion in denying the motion.  Charges filed by individuals and International Union, United Automobile, Aerospace and Agricultural Workers of America, AFL-CIO.  Chairman Ring and Members Pearce and Kaplan participated.

J&J Farms Creamery Co. and Gowanus Staffing, Inc., a single or joint employer  (29-CA-208094)  Maspeth, NY, July 16, 2018.  The Board denied the Employers’ Petitions to Revoke an investigative subpoena duces tecum, as the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employers failed to establish any other legal basis for revoking the subpoenas.  Charge filed by an individual.  Chairman Ring and Members Pearce and Kaplan participated.

United States Postal Service  (28-CA-175106)  Las Vegas, NV, July 17, 2018.  No exceptions having been filed to the March 9, 2018 decision of Administrative Law Judge Mara-Louis Anzalone’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.  Charge filed by an individual.

Fuyao Glass America, Inc.  (09-CA-201391)  Dayton, OH, July 18, 2018.  The Board denied the Employer’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 Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW).  Chairman Ring and Members Pearce and Kaplan participated.

Mobis Alabama, LLC  (15-CA-210913, et al.)  Montgomery, AL, July 19, 2018.  The Board denied the Employer’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 Employer failed to establish any other legal basis for revoking the subpoena.  Charges filed by individuals.  Chairman Ring and Members McFerran and Emanuel participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

United States Postal Service  (12-CA-207188; JD-46-18)  Tampa, FL.  Administrative Law Judge Michael A. Rosas issued his decision on July 16, 2018.  Charge filed by an individual.

MTIL, Inc.  (13-CA-189867; JD-45-18)  Bolingbrook, IL.  Administrative Law Judge Melissa M. Olivero issued her decision on July 16, 2018.  Charge filed by United Electrical, Radio and Machine Workers of America, Local 1103.

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