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Cases and Decisions

Cases and Decisions

Summary of NLRB Decisions for Week of June 10 - 14, 2019

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

Headlands Contracting & Tunnelling, Inc. and Chardon Concrete, Inc., a single employer and alter egos  (08-CA-212613; 368 NLRB No. 4)  Montville, OH, June 12, 2019.

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 are alter egos and a single employer within the meaning of the Act and that they violated Section 8(a)(5) and (1) by failing to abide by the terms and conditions of their collective-bargaining agreement with the Union and failing to apply the provisions of that agreement to the operations of Respondent Chardon. 

Charge filed by Indiana/Kentucky/Ohio Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America.  Chairman Ring and Members Kaplan and Emanuel participated.

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Cadillac of Naperville, Inc.  (13-CA-207245; 368 NLRB No. 3)  Naperville, IL, June 12, 2019.

The Board unanimously affirmed the Administrative Law Judge’s admission into evidence of a surreptitiously recorded tape and affirmed the judge’s denial of the Respondent’s request to retain witness affidavits throughout the hearing.  The Board unanimously adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening an employee with discharge and stricter enforcement of rules, and by expressing doubt as to an employee’s job longevity.  The Board also unanimously adopted the judge’s findings that the Respondent violated Section 8(a)(5) by unilaterally prohibiting union representatives’ access to unit employees, enacting new attendance policies, and removing free gloves and drinking water because employees engaged in strike or other union activity.  The Board unanimously adopted the judge’s conclusion that the Respondent violated Section 8(a)(3) by discharging an employee, but, contrary to the judge, the Board only relied on an Atlantic Steel analysis.  The Board unanimously found that, although a statement made by the Respondent was not a threat of physical harm, it was nonetheless coercively unlawful.  The Board unanimously reversed the judge’s finding that the Respondent unlawfully placed blame for non-unit job loss on the returning strikers. 

A Board majority (Chairman Ring and Member McFerran) adopted the judge’s findings that the Respondent violated the Act by threatening employees with negative reprisals, and by suggesting that union activity is inimical to employment and that grievances are futile.  A different Board majority (Chairman Ring and Member Emanuel) reversed the judge’s finding that the Respondent violated the Act by encouraging employees to resign from the Union.  The Board unanimously awarded make-whole remedies for five late-recalled strikers.

Charge filed by Automobile Mechanics Local 701, International Association of Machinists & Aerospace Workers, AFL-CIO.  Administrative Law Judge Michael A. Rosas issued his decision on June 19, 2018.  Chairman Ring and Members McFerran and Emanuel participated.

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SBM Site Services, LLC  (20-CA-157693, et al.; 367 NLRB No. 147)  South San Francisco, CA, June 13, 2019.

The Board reversed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging one employee and by discharging another employee.  In reversing the judge and dismissing those allegations, the Board found that the Respondent met its defense burden by demonstrating that it would have suspended and discharged the one employee and that it would have discharged the other employee even in the absence of their union activity.  Conversely, the Board affirmed the judge’s recommended reinstatement of, and backpay remedies for, a third employee.

Charges filed by individuals.  Administrative Law Judge Amita Baman Tracy issued her decision on October 5, 2017.  Chairman Ring and Members McFerran and Emanuel participated.

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First Student  (14-CA-225201; 368 NLRB No. 9)  St. Charles, MO, June 14, 2019.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with the provisions of the parties’ bilateral informal settlement agreement.  The complaint alleged that the Respondent violated Section 8(a)(3) and (1) by unlawfully discharging an employee in response to a request from the Union.  The Board ordered a full remedy for the violation found.

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

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UPMC and its subsidiary, UPMC Presbyterian Shadyside, single employer d/b/a UPMC Presbyterian Hospital and d/b/a UPMC Shadyside Hospital  (06-CA-102465, et al.; 368 NLRB No. 2)  Pittsburgh, PA, June 14, 2019.

The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent, UPMC, violated Section 8(a)(1) by requiring employees who were meeting with Union organizers in the public cafeteria to produce their identification.  The Board also unanimously adopted the judge’s conclusion that the Respondent did not engage in unlawful surveillance of the employees who were meeting with the organizers in the cafeteria.

Regarding the issue of union access to the cafeteria, a Board majority (Chairman Ring and Members Kaplan and Emanuel) overruled Ameron Automotive Centers, 265 NLRB 511 (1982), Montgomery Ward & Co., Inc., 256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir. 1982), and their progeny to the extent those cases held that nonemployee union organizers could not be denied access to cafeterias that are open to the public if the organizers used the facility in a manner consistent with its intended use and are not disruptive.  Instead, the majority found that, absent discrimination, an employer does not have a duty to permit the use of its public cafeteria by nonemployees for promotional or organizational activity.  Applying the new standard, the majority found that UPMC did not discriminate by removing from the cafeteria the Union organizers, who were engaged in blatant promotional activity, because the evidence showed that UPMC had previously prohibited nonemployee third party organizations from soliciting and distributing in its cafeteria.  Thus, the majority found that the Employer did not violate the Act by requiring the organizers to leave the cafeteria.

Dissenting, Member McFerran argued that the Board threw its judicially-approved longstanding precedent against discrimination into doubt by permitting the Employer to expel union representatives from a hospital cafeteria that is open to the public based entirely on their union affiliation.  Member McFerran argued that such action is discrimination in its clearest form.  She also argued that the Board’s holding cannot be reconciled with the understanding of discrimination reflected by Supreme Court precedent.  Finally, Member McFerran argued that, because the Employer did not apply a no-solicitation/no-distribution policy in expelling the union organizers from the cafeteria, the Board erred by using this case to overturn Montgomery Ward, above.

Charges filed by SEIU Healthcare Pennsylvania CTW, CLC.  Administrative Law Judge Mark Carissimi issued his decision on November 14, 2014.  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

MGM Grand Hotel, LLC  (28-RC-225344)  Las Vegas, NV, June 12, 2019.  The Board denied the Employer’s Requests for Review of the Regional Director’s Order Denying Motion to Dismiss, or, in the Alternative, to Require a New Showing of Interest; Decision and Direction of Second Election; and the Acting Regional Director’s Decision and Certification of Representative as they raised no substantial issues warranting review.  In so doing, the Board affirmed that the Regional Director had properly directed a second election after setting aside the first election due to a prounion supervisor’s solicitation of authorization card signatures under Harborside Healthcare, Inc., 343 NLRB 906 (2004), without dismissing the petition or requiring a new showing of interest.  The Board also denied the Employer’s request for extraordinary relief as moot.  Petitioner—International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW.  Chairman Ring and Members Kaplan and Emanuel participated.

RadNet Management, Inc.  (21-RC-226166)  Anaheim, CA, June 12, 2019.  The Board denied the Employer’s Requests for Review of the Regional Director’s October 10, 2018 Decision and Direction of Election; February 19, 2019 Decisions on Objections and Certifications of Representative; February 19, 2019 Decision on Challenged Ballots, Decision on Objections and Certification of Representative; and February 19, 2019 Decision on Objections and Notice of Hearing, as they raised no substantial issues warranting review.  Petitioner—National Union of Healthcare Workers.  Chairman Ring and Members Kaplan and Emanuel participated.

C Cases

Bodega Latina Corporation d/b/a El Super  (28-CA-170463)  Paramount, CA, June 10, 2019.  The Board denied the General Counsel’s Request for Special Permission to Appeal from the  Administrative Law Judge’s Unilateral Consent Order.  On the merits, the Board denied the appeal, finding that the General Counsel failed to establish that the judge abused his discretion in approving the consent order proposed by the Respondent over the objections of the General Counsel and the Charging Party.  The Board applied the four-factor analysis of Independent Stave Co., 287 NLRB 740 (1987), as found appropriate for consent orders in UPMC, 365 NLRB No. 153 (2017), and concluded that the consent order provided a reasonable remedy for the alleged violations.  Member McFerran, dissenting in part, would have found the settlement unreasonable because the consent order’s lack of a default provision provides the General Counsel no means to hold the Respondent immediately accountable for any noncompliance; rather, it requires the issuance of a new complaint based on the unremedied allegations.  Charge filed by United Food and Commercial Workers, Local 99.  Members McFerran, Kaplan, and Emanuel participated.

Remington Lodging & Hospitality, LLC d/b/a Hyatt Regency Wind-Watch  (29-CA-093850 and 29-CA-095876)  Hauppauge, NY, June 14, 2019.  The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s granting of the General Counsel’s Motion to Strike Portions of Respondent’s Answer, and to Preclude Respondent from Questioning Discriminatees Regarding Their Immigration Status.  The Board found that the Respondent failed to establish that the judge abused his discretion in granting the motion or that its arguments could not be presented to the Board later on exceptions.  Charges filed by Local 947, United Service Workers Union, International Union of Journeymen and Allied Trades.  Chairman Ring and Members Kaplan and Emanuel participated.

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Appellate Court Decisions

Pennsylvania Interscholastic Athletic Association, Inc., Board Case No. 06-CA-175817 (reported at 366 NLRB No. 10) (D.C. Cir. decided June 14, 2019).

In a published opinion that issued in this test-of-certification case, the Court granted the Petition for Review filed by this private nonprofit corporation whose primary purpose is to promote uniformity of standards in interscholastic athletic competitions among its over 1,600 member schools at the junior high, intermediate, middle, and high school levels in Pennsylvania.  One of the Association’s functions is to provide its member schools with access to a pool of “registered sports officials” to officiate regular and postseason games.  This case involves a petition filed by the Office and Professional Employees International Union to represent a unit of 140 officials for boys’ and girls’ lacrosse games in two of the Association’s districts in Pittsburgh and surrounding areas.  On the key issue in this case, the Court held that the lacrosse officials are independent contractors excluded from the Act’s coverage.

In the underlying representation case, after the Union filed its petition in May 2015, the Association raised two principal arguments—that the lacrosse officials were independent contractors rather than employees within the meaning of the Act, and that the Association was exempt from the Act’s coverage as a political subdivision of the state of Pennsylvania.  After a hearing, the Regional Director issued a decision rejecting both arguments.  On the independent-contractor issue, the Regional Director relied, in part, on the Board’s discussion of the common-law test for independent-contractor status in FedEx Home Delivery, 361 NLRB 610 (2014) (“FedEx II”); see Restatement (Second) of Agency § 220(2) (1958) (those factors are:  (1) the extent of control over the details, means, and manner of the work; (2) whether the putative contractor is engaged in a distinct occupation or business; (3) whether the work is done under the direction of the principal, or by a specialist without supervision; (4) the skill required; (5) who supplies the tools and place of work; (6) the length of time for which the person is employed/contracted; (7) the method of payment, whether by time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an employment or contract relationship; and (10) whether the principal is in the same business).  In September 2015, the lacrosse officials voted in favor of the Union in a mail-ballot election, and the Regional Director certified the Union.

In March 2016, the Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) granted the Association’s Request for Review on the independent-contractor issue, but not on the political-subdivision issue.  In March 2017, while the case was on review before the Board, the D.C. Circuit denied enforcement in FedEx II, 849 F.3d 1123 (reversing the Board’s determination of the employee status of single-route drivers).  In July 2017, the Board issued its decision affirming the Regional Director’s finding that the Association did not carry its burden of establishing that the lacrosse officials are independent contractors.  The Board examined the traditional common-law factors in light of precedent, including the recent case of Lancaster Symphony Orchestra v. NLRB, 822 F.3d 563 (D.C. Cir. 2016), and concluded that, on balance, the factors favored a finding of employee status.  In doing so, the Board adhered to its discussion of the common-law test in its FedEx II decision, noting that the D.C. Circuit had denied enforcement in FedEx II based on its factually indistinguishable prior holding regarding single-route drivers in FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009) (“FedEx I”).  The Association then refused to bargain in order to seek court review.

On review, the Court recognized that to assess independent-contractor status the Court and the Board look to the ten factors from § 220(2) of the Restatement (Second) of Agency, as well as “whether the workers have a ‘significant entrepreneurial opportunity for gain or loss,’” quoting Lancaster Symphony Orchestra v. NLRB, 822 F.3d 563, 565-66 (D.C. Cir. 2016).  On the standard of review, the Court stated it takes a “middle course” on this issue, between de novo review and substantial-evidence review, because the application of common-law factors is not a matter within the Board’s expertise, but does require “an exercise of judgment about facts.”  Applying that standard, the Court concluded that “the weight of the evidence demonstrates that the officials are independent contractors.”

The Court found that some of the common-law factors supported a finding of employee status, and that some were a “mixed bag,” but that the strength of a few factors dictated that the lacrosse officials were independent contractors.  Among the factors supporting employee status, the Court noted that the Association was a business likely to hire employees (factor 10), and given that it relies on the lacrosse officials “to carry out its purpose and that their work frequently overlaps,” the officials are part of the Association’s business (factor 8).  Also weighing on the side of employee status was the officials’ limited opportunity for entrepreneurial gain, given the Association’s “near-monopoly on junior and high school lacrosse in Pennsylvania,” that the officials have “no control over the length of the games they referee,” and that “they may not hire assistants, assign games to others, or find cheaper replacements and pocket the difference.”

The Court found two factors were a mixed bag that would “slightly favor employee status,” but had little weight on balance.  The first was the Association’s control and supervision over the means and manner of the officials’ work (factor 1), evidenced by its control over how to become and remain an official, regulations on their conduct and uniforms, and its reserved right to suspend or disqualify officials.  But the Court gave that evidence little weight because much of that control was “inherent in the nature of officiating.”  On the second such factor, whether similar refereeing in the area is usually done by supervised employees of independent contractors (factor 3), the Court held that the lack of evidence favored neither result.

Turning to the evidence of independent-contractor status, the Court concluded that the case “turns on the strength of the few times on which [the Association] actually pays the officials” (factor 7), and “the short duration of the officials’ employment” (factor 6).  The Court noted that the Association itself “pays officials for very few games per year,” and that the schools pay them directly for the other games.  After assessing the extensive evidence of how officials are paid for in-season and post-season games, the Court noted that “the Association represented without contradiction that it pays the average official for only 3 games per year.”  Further, the Court stated that the fact that “the lacrosse officials are eligible to earn money . . . for only 11 weeks per year,” is also evidence strongly in favor of independent-contractor status.  Overall, the Court held that, on both of those factors, the Board had not adequately taken that evidence into account.  Lastly, the Court noted that three other factors support its conclusion, “albeit not as strongly”—that officiating lacrosse games requires some degree of skill and expertise (factor 4), that officials must provide their own equipment but nothing of great expense (factor 5), and that numerous Association documents refer to the officials as independent contractors which tends to indicate the parties’ understanding that the officials are not employees (factor 9).

The Court’s opinion is here.

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Administrative Law Judge Decisions

Exxonmobil Research & Engineering Company, Inc.  (22-CA-218903, et al.; JD-49-19)  Annandale, NJ.  Administrative Law Judge Michael A. Rosas issued his decision on June 12, 2019.  Charges filed by Independent Laboratory Employees Union, Inc.

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