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Summary of NLRB Decisions for Week of August 20 - 24, 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

Mercy Hospital  (18-CA-155443 and 18-CA-163045; 366 NLRB No. 165)  Coon Rapids, MN, August 20, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) when it discouraged an employee from raising questions in meetings, along with the judge’s decision to defer certain Section 8(a)(5) allegations to arbitration and not to defer certain independent 8(a)(1) allegations.

A Board majority (Members McFerran and Kaplan) reversed the judge’s conclusion that the Respondent violated Section 8(a)(1) when it commented negatively on the employee’s conduct during an interview for a transfer, instead finding that the comments would not have been ascribed to her protected activities.  The majority also reversed the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by constructively denying the employee’s transfer.  The majority determined that the Respondent neither clearly conditioned the transfer on the relinquishment of Section 7 rights nor imposed conditions that forced the employee to decline it.  Dissenting, Member Pearce would have found both violations based on his view that the Respondent’s comments on the employee’s conduct, in context, would be understood to refer to her protected activities and, with respect to the constructive denial of transfer, that the Respondent forced the employee to decline the new job by imposing harsh conditions because of her protected conduct.

Charges filed by Service Employees International Union Healthcare Minnesota and by an individual.  Administrative Law Judge Geoffrey Carter issued his decision on May 6, 2016.  Members Pearce, McFerran, and Kaplan participated.

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Hyundai Motor Manufacturing Alabama, LLC  (15-CA-173419; 366 NLRB No. 166)  Montgomery, AL, August 20, 2018.

A Board majority (Members Pearce and Emanuel) adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(1) by terminating three employees for their protected concerted activity of leaving work at the time on a posted work schedule instead of following a supervisor’s oral instruction given to them 2 days earlier to leave work an hour later.  A separate Board majority (Members Pearce and McFerran) found that the Respondent alternatively violated Section 8(a)(1) by terminating the three employees because the Respondent believed they had engaged in protected concerted activity, regardless of whether they actually did so.  In addition, the Board unanimously adopted the judge’s finding that the Respondent violated Section 8(a)(1) by interrogating employees about whether they talked with each other before they left work at the same time.  The Board also unanimously found that the judge abused his discretion in narrowing the scope of the General Counsel’s subpoena duces tecum relating to documents of the Respondent’s management officials that pertain to their alleged knowledge of the three employees’ suspected union activity, but found that it was unnecessary to pass on the allegations for which the subpoenaed documents were relevant because finding those additional violations would not materially affect the remedy.

Charge filed by an individual.  Administrative Law Judge Arthur J. Amchan issued his decision on March 6, 2017.  Members Pearce, McFerran, and Emanuel participated.

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3232 Central Ave, LLC d/b/a Central Market of Indiana, Inc.  (13-CA-172779, et al.; 366 NLRB No. 167)  Lake Station, IN, August 21, 2018.

The Board granted in part and denied in part the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the amended complaint.  Noting that the Respondent, acting pro se, filed an answer to the original complaint denying certain allegations, the Board denied default judgment as to those identical allegations appearing in the amended complaint.  The Board also denied default judgment as to one allegation not in the original complaint (that the Respondent unlawfully made $100 payments directly to employees) because the Respondent’s answer to the original complaint contained an adequate denial of this allegation.  The Board granted default judgment as to all other allegations in the amended complaint because the Respondent failed to answer these allegations, and, accordingly, found that the Respondent violated Section 8(a)(5), (3), and (1) by reducing the work hours of, and laying off/constructively discharging bargaining unit employees, and by instituting a policy prohibiting employees from taking vacation days.  The Board further found, in accordance with its grant of default judgment, that the Respondent violated Section 8(a)(5) and (1) by failing to furnish the Union with requested information.

Charges filed by Local 881, United Food and Commercial Workers.  Members Pearce, McFerran, and Kaplan participated.

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A.S.V., Inc. a/k/a Terex  (18-CA-131987, et al.; 366 NLRB No. 162)  Grand Rapids, MN, August 21, 2018.

The Board adopted the Administrative Law Judge’s conclusions that Respondent A.S.V. Terex violated Section 8(a)(1) by making numerous plantwide threats prior to an election in its assembly unit, and violated Section 8(a)(3) by terminating a painter and a welder immediately after the election.  A majority (Members Pearce and McFerran) also adopted the judge’s conclusion that the Respondent unlawfully terminated 11 additional painters and welders/fabricators at the same time.  The majority found that those additional employees did not effectively settle or waive their termination-related claims under the Act by signing severance agreements that the Respondent offered them at the time of their terminations.  Member Kaplan, dissenting in part, would have enforced the severance agreements against those employees, and, accordingly, would have found their terminations lawful.  The Board unanimously adopted the judge’s finding that a Gissel bargaining order was justified for the assembly unit.  The Board denied the Respondent’s motion to supplement the record with a collective-bargaining agreement it subsequently reached with the Union for its painters unit, and with subsequent assurances it gave employees that it would comply with the Act.  The Board found that this evidence was not relevant to the Gissel order, but noted that, given the entire record, it would have issued the Gissel order even if it had admitted and considered that evidence.

Charges filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL–CIO.  Administrative Law Judge David I. Goldman issued his decision on June 9, 2015.  Members Pearce, McFerran, and Kaplan participated.

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Weyerhaeuser NR Company  (19-CA-122853, et al.; 366 NLRB No. 169)  Longview, WA, August 22, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) by unilaterally changing its training evaluations.  The Board adopted the judge’s reasoning that the Union did not forfeit its bargaining rights by inaction and further found that language from the parties’ collective-bargaining agreement did not clearly and unmistakably waive the Union’s right to bargain.  Concurring in this ruling, Member Emanuel expressed doubt concerning the clear-and-unmistakable standard for waiver, but agreed with the result in the absence of a party’s challenge to the standard.  A majority (Members Pearce and McFerran) similarly upheld the judge’s conclusion that the Respondent’s changes to food safety rules violated Section 8(a)(5), agreeing with the judge that there was no waiver by inaction and finding that language in the parties’ agreement did not satisfy the high burden to establish a waiver.  Dissenting on this issue, Member Emanuel would have found that the agreement clearly and unmistakably authorized the Respondent’s unilateral changes to its food safety rules.

Charges filed by Association of Western Pulp and Paper Workers, a/w the United Brotherhood of Carpenters and Joiners of America, and its Locals 580 and 633.  Administrative Law Judge John J. McCarrick issued his decision on March 25, 2015.  Members Pearce, McFerran, and Emanuel participated.

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United States Postal Service  (08-CA-197451; 366 NLRB No. 168)  Toledo, OH, August 23, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally reducing the duration of paid break periods without providing the Union notice and an opportunity to bargain over the change or the effects of that change.  The Board also adopted the judge’s award of backpay as the appropriate remedy for the violation.

Charge filed by the American Postal Workers Union, Local 170.  Administrative Law Judge Thomas M. Randazzo issued his decision on May 25, 2018.  Members Pearce, Kaplan, and Emanuel participated.

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IGT d/b/a International Game Technology  (28-CA-166915, et al.; 366 NLRB No. 170)  Las Vegas, NV, August 24, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain over the subcontracting of unit work.  The Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with a requested list of all of its locations.  In reversing the information request conclusion, the Board found, contrary to the judge, that the relevance of the requested information would not have been apparent to the Respondent without some explanation of relevance by the Union.  The Respondent requested such an explanation but none was provided.  In addition, a Board majority (Chairman Pearce and Member McFerran) found that the Respondent violated Section 8(a)(1) by threatening employees with a loss of overtime after a bargaining session.  Member Kaplan, dissenting, would have found that the employees would have understood from the context of the conversation that the Respondent’s statements were not a threat.

The Board also severed for further consideration the judge’s conclusion that the Respondent’s non-disparagement provision in its Separation Agreement was unlawful.

Charges filed by International Union of Operating Engineers Local Union 501, AFL-CIO.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on November 15, 2016.  Members Pearce, McFerran, and Kaplan participated.

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Ozburn-Hessey Logistics, LLC  (15-CA-165554; 366 NLRB No. 173)  Memphis, TN, August 24, 2018.

In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing its attendance policy for employees who leave work early.  In addition, the Board found that an additional unilateral change not separately alleged in the complaint was also unlawful.  Applying the analytical framework set out in Pergament United Sales, 296 NLRB 333 (1989), the Board found that the additional violation was closely connected to the subject matter of the complaint and was fully and fairly litigated, and consequently there was no infringement of due process rights in finding the additional violation.  Also, the Board reversed the judge’s dismissal of the allegation that the Respondent unlawfully discharged an employee pursuant to the latter change, which the Respondent had implemented without informing employees.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers a/k/a United Steel Workers Union.  Administrative Law Judge Ira Sandron issued his decision September 22, 2016.  Members Pearce, Kaplan, and Emanuel participated.

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Highway Road and Street Construction Laborers Local 1010, Laborers International Union of North America (LIUNA), AFL-CIO (New York Paving, Inc.)  (29-CD-203385; 366 NLRB No. 174)  New York, NY, August 24, 2018.

In this Section 10(k) jurisdictional dispute proceeding, the Board awarded the work in dispute to employees represented by Laborers’ Local 1010, except for cleanup work, which it awarded to employees represented by the union that performed the underlying work.  The Board based its award on the factors of collective-bargaining agreements, employer preference and past practice, area and industry practice, and economy and efficiency of operations.  The Board declined to grant an area-wide award of the work in dispute.

Charge filed by New York Paving, Inc.  Members Pearce, Kaplan, and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

West Virginia American Water Company  (09-RC-219179)  Huntington, WV, August 20, 2018.  The Board (Chairman Ring and Member Kaplan; Member Pearce, dissenting) denied the Employer’s and Intervenor’s Requests for Review of the Regional Director’s Decision and Direction of Election as they raised no substantial issues warranting review.  The Board majority (Chairman Ring and Member Kaplan) rejected the parties’ primary contention that the Regional Director’s direction of an election interferes with the adjudication of the federal district court action brought by the Intervenor against its Local 537 and five former officers of Local 537 seeking to enforce the Intervenor’s trusteeship imposed on Local 537 under Title III of the Labor-Management Reporting and Disclosure Act.  Dissenting, Member Pearce would have found that the case should be held in abeyance pending resolution of the trusteeship issue by the district court.  Petitioner—Utility Workers United Association, Local 537.  Intervenor—Utility Workers Union of America, AFL-CIO, CLC, and its Local 537.  Chairman Ring and Members Pearce and Kaplan participated.

Garda CL Southwest  (14-RC-209886)  St. Louis, MO, August 21, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Third Election as it raised no substantial issues warranting review.  Petitioner—International Union, Security, Police and Fire Professionals of America (SPFPA).  Chairman Ring and Members McFerran and Kaplan participated.

Michael Stapleton Associates, Ltd d/b/a MSA Security  (29-RC-216339)  New York, NY, August 21, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Report on Objections and Certification of Representative as it raised no substantial issues warranting review.  The Regional Director overruled the Employer’s various objections, without a hearing, and certified the Petitioner as the exclusive collective-bargaining representative. Petitioner—United Federation of K9 Handlers.  Chairman Ring and Members McFerran and Kaplan participated.

King Soopers, Inc.  (27-RC-215705)  Broomfield, CO, August 21, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  In denying review, the Board declined to pass on the Regional Director’s finding that the Employer stipulated at the hearing that the deli employees were an identifiable, distinct segment of the Employer’s employees.  The Board also denied the Employer’s request for oral argument.  Petitioner—United Food and Commercial Workers, Local No. 7.  Chairman Ring and Members McFerran and Kaplan participated.

Douglas Emmett Management, LLC  (31-RC-217994)  Encino, CA, August 24, 2018.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Regional Director found that the Preventative Maintenance Engineers and Chief Engineers must be included in the unit.  Petitioner—International Union of Operating Engineers Local 501, AFL-CIO.  Chairman Ring and Members McFerran and Kaplan participated.

C Cases

No Unpublished C Cases Issued

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Appellate Court Decisions

HealthBridge Management, LLC, et al., Board Case No. 34-CA-012715 (reported at 365 NLRB No. 37) (2d Cir. decided August 23, 2018)

In a published opinion, the Court enforced the Board’s order issued to remedy numerous violations of Section 8(a)(5) and (1) committed by this centralized health-management company that jointly operates six Connecticut skilled-nursing centers.  Since the 1990s, the New England Health Care Employees Union, District 1199, SEIU, has represented bargaining units of service and maintenance employees at the centers, including employees in the housekeeping and laundry departments, under identical collective-bargaining agreements.

Among the violations found by the Board (Members Pearce and McFerran; Acting Chairman Miscimarra, concurring in part and dissenting in part), the Court upheld the Board’s conclusion that HealthBridge and three of its centers violated the Act when, after the cessation of a temporary subcontract covering their housekeeping and laundry departments, they reclassified their workforce as new hires to eliminate employees’ accrued contractual seniority and seniority-based benefits.  Holding that the Board’s finding was reasonably based in the NLRA and supported by substantial evidence, the Court emphasized that “the record supports the conclusion that the dominant (if not sole) purpose of HealthBridge’s use of the subcontractor was to disguise what amounts to a quasi alter-ego scheme,” to “avoid the obligations of a collective-bargaining agreement through a sham transaction or technical change in operations.”  In turn, finding that “[i]t follows directly from that ruling,” the Court upheld the Board’s findings that the failure to reemploy two senior employees, and a threat to summon the police after the employees protested the denial of contractual seniority and benefits, were in further violation of the Act.

Additionally, the Court held that substantial evidence supported the Board’s findings that unilateral changes were made to two contractual policies concerning holiday pay and lunch-period work, and summarily enforced those portions of the Board’s order corresponding to the uncontested findings of two additional unilateral policy changes.

The Court’s decision is here.

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Administrative Law Judge Decisions

ABF Freight System, Inc.  (09-CA-208379 and 09-CA-210267; JD-53-18)  Dayton, OH.  Administrative Law Judge Keltner W. Locke issued his decision on August 20, 2018.  Charges filed by General Truck Drivers, Warehousemen, Helpers, Sales and Service, and Casino Employees and International Brotherhood of Teamsters (IBT), Local 957.

Juice Press, LLC  (29-CA-191213, et al.; JD(NY)-12-18)  Brooklyn, NY.  Administrative Law Judge Benjamin W. Green issued his decision on August 22, 2018.  Charges filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO, and individuals.

Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, and the Permanente Medical Group, Inc.  (32-CA-169979; JD(SF)-24-18)  Oakland, CA.  Administrative Law Judge Lisa D. Thompson issued her decision on August 24, 2018.  Charge filed by Engineers and Scientists of California, IFPTE Local 20, AFL-CIO & CLC.

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