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Summary of NLRB Decisions for Week of October 15 - 19, 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

TBC Corporation and TBC Retail Group, Inc., a wholly-owned subsidiary of TBC Corporation  (12-CA-157478 and 12-CA-170543; 367 NLRB No. 18)  Palm Beach Gardens, FL, October 15, 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 Respondents’ maintenance and enforcement of a 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.  The Board further reversed the judge’s finding and dismissed the allegation that the Respondents had violated the Act by maintaining, in their 2010 employee handbook, an overly broad no-solicitation rule, as the Board found that the Respondents had successfully repudiated the unlawful rule.

Charges filed by an individual.  Administrative Law Judge Michael A. Rosas issued his decision on October 14, 2016.  Chairman Ring and Members McFerran and Kaplan participated.

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D2 Abatement, Inc. and Premier Environmental Solutions LLC, alter egos  (07-CA-133250; 367 NLRB No. 9)  Sterling Heights, MI, October 15, 2018.

The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of an informal settlement agreement.  The Board found that the Respondents failed to comply with the terms of the settlement agreement, and, accordingly, deemed all of the allegations in the reissued complaint to be true.  The Board ordered the Respondents to comply with the unmet terms of the settlement agreement approved by the Regional Director.  The Board, though mindful that the General Counsel is empowered under the default provision of the settlement agreement to seek “a full remedy for the violations found,” limited the affirmative remedies to those that the General Counsel had specifically requested in his Motion for Default Judgment.

Charge filed by District Council 1M, International Union of Painters and Allied Trades, AFL-CIO.  Members McFerran, Kaplan, and Emanuel participated.

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Delta Sandblasting Company, Inc.  (20-CA-176434 and 32-CA-180490; 367 NLRB No. 17)  Petaluma, CA, October 16, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by ceasing to make contributions in accordance with the parties’ collective-bargaining agreement after its expiration.  The Board also adopted the judge’s dismissal of an allegation that the Respondent had unlawfully refused to execute a completed successor collective-bargaining agreement.

Charges filed by International Union of Painters and Allied Trades, District Council 16.  Administrative Law Judge Mara-Louise Anzalone issued her decision on September 15, 2017.  Chairman Ring and Members McFerran and Kaplan participated.

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Central KY Branch 361, National Association of Letter Carriers, AFL-CIO (NALC) (United States Postal Service)  (09-CB-202214; 367 NLRB No. 19)  Lexington, KY, October 16, 2018.

The Board dismissed the complaint, adopting the Administrative Law Judge’s dismissal of allegations that the Respondent Union had breached its duty of fair representation and violated the Act by failing to file grievances over the Employer working an employee-member beyond her medical restrictions and later deciding to remove that employee-member from her reduced workload/schedule.

Charge filed by an individual.  Administrative Law Judge Andrew S. Gollin issued his decision on May 4, 2018.  Members McFerran, Kaplan, and Emanuel participated.

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Matson Terminals, Inc.  (20-CA-178312; 367 NLRB No. 20)  Hilo, HI, October 17, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent, which conducts stevedore and terminal operations in Hawaii, violated Section 8(a)(5) and (1) by transferring barge menu work to non-unit employees represented by a different union without offering the unit’s Union notice and an opportunity to bargain.  The Board found that the General Counsel met his burden by showing that the Respondent transferred barge menu work––which had been performed exclusively by unit employees––to non-unit employees.

The Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting) denied the General Counsel’s request for a notice-reading remedy.  Member McFerran would have ordered notice reading to dispel any lingering effects of the Respondent’s unfair labor practice because the transfer of work affected the entire unit with regard to a key element of employees’ duties and because the unlawful act occurred immediately after the Union’s certification as the unit’s representative, which would undermine the Union’s position and call into question its ability to represent the unit employees’ interests.

Charge filed by Hawaii Teamsters & Allied Workers Union, Local 996.  Administrative Law Judge Amita Baman Tracy issued her decision on February 20, 2018.  Chairman Ring and Members McFerran and Kaplan participated.

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Dycora Transitional Health & Living d/b/a Kaweah Manor  (32-CA-206624 and 32-CA-210419; 367 NLRB No. 22)  Visalia, CA, October 18, 2018.

On a stipulated record, the Board concluded that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.  The Board found that the Respondent, who stipulated to being a successor under NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), was precluded from relitigating, in the instant unfair labor practice proceeding, issues that were or could have been litigated in the underlying representation proceeding by its predecessor and that the Respondent had not presented special circumstances warranting relitigation.  In addition, having reviewed the facts and arguments presented by the Respondent, the Board declined to, in its discretion, reconsider the representation case.  The Board also found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information that was relevant and necessary to the Union’s performance of its duties as the exclusive collective bargaining representative of the unit, with the exception of employee Social Security numbers and handbooks and policy manuals (if any) that did not pertain to bargaining-unit employees.

Charges filed by Service Employees International Union, Local 2015.  Chairman Ring and Members McFerran and Kaplan participated.

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Pfizer, Inc.  (07-CA-176035 and 10-CA-175850; 367 NLRB No. 12)  Kalamazoo, MI and Birmingham, AL, October 18, 2018.

The Board found that, in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 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 a “Mutual Arbitration and Class Waiver Agreement” (the Agreement) that requires job applicants to waive, as a condition of being hired, and employees to waive, as a condition of continued employment, 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.  The Board remanded to the judge the separate issue, whether the Agreement’s confidentiality provision is unlawful, for further proceedings consistent with The Boeing Co., 365 NLRB No. 154 (2017).  Prior to the issuance of Boeing, the judge had found, applying the “reasonably construe” prong of the Board’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), that the Respondent violated Section 8(a)(1) by promulgating and maintaining the confidentiality provision.

Charges filed by individuals.  Administrative Law Judge Keltner W. Locke issued his decision on January 10, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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Fry’s Electronics, Inc.  (32-CA-156938; 367 NLRB No. 24)  Concord, CA, October 18, 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 and enforcement of its mandatory arbitration agreement violated Section 8(a)(1) must be dismissed.  The Board remanded to the Regional Director the separate issue, before the Board on the parties’ motions for summary judgment, whether the Respondent’s mandatory arbitration agreement independently violates Section 8(a)(1) because it interferes with employees’ ability to access the Board.  The Board observed that, when the parties filed their pending motions, the issue 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 this complaint allegation.

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

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Allied Power Services, LLC  (25-RC-219264)  Braidwood, IL, October 18, 2018.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision on Challenges and Objections and Revised Tally of Ballots as it raised no substantial issues warranting review.  The Regional Director had found that, based upon the parties stipulated unit description, an individual was not eligible to vote.  Petitioner—International Brotherhood of Electrical Workers Local Unions 145, 146, 364, and 601 (Joint Petitioners).  Chairman Ring and Members McFerran and Kaplan participated.

C Cases

Loshaw Thermal Technology, LLC  (05-CA-158650)  Spring Grove, PA, October 15, 2018.  The Board suspended its Notice and Invitation to File Briefs in this case pending the Board’s action on the Union’s request to withdraw the underlying charge.  Charge filed by International Association of Heat & Frost Insulators & Allied Workers, Local 23.

Constellium Rolled Products Ravenswood, LLC  (09-CA-116410)  Ravenswood, WV, October 17, 2018.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 366 NLRB No. 131 (2018).  The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 5668.  Administrative Law Judge Keltner W. Locke issued his decision on September 29, 2016.  Members McFerran, Kaplan, and Emanuel participated.

Midwest Terminals of Toledo International, Inc.  (08-CA-204544, et al.)  Toledo, OH, October 17, 2018.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum and two subpoenas ad testificandum, as the subpoenas 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 subpoenas.  The Board evaluated the subpoenas in light of the Region’s clarifications and limitations.  Charges filed by International Longshoremen’s Association, Local 1982.  Chairman Ring and Members Kaplan and Emanuel participated.

SW General, Inc. d/b/a American Medical Response  (28-CA-215552)  Mesa, AZ, October 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.  The Board evaluated the subpoena in light of the Region’s clarifications and limitations.  Charge filed by International Association of Fire Fighters, Local I-60.  Chairman Ring and Members Kaplan and Emanuel participated.

United States Postal Service  (28-CA-200369, et al.)  Albuquerque, NM, October 19, 2018.  The Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  The complaint had alleged Section 8(a)(5) and (1) refusal-to-provide/delay-in-providing relevant information violations and unilateral change violations.  Charges filed by American Postal Workers Union, Local 380, AFL-CIO, and American Postal Workers Union, New Mexico State APWU, AFL-CIO.  Members McFerran, Kaplan, and Emanuel participated.

Cantor Fitzgerald, LP  (28-CA-195506)  New York, NY, October 19, 2018.  No exceptions having been filed to the September 7, 2018 decision of Administrative Law Judge Jeffrey P. Wedekind’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charge filed by an individual.

BGC Partners, Inc.  (28-CA-195500)  New York, NY, October 19, 2018.  No exceptions having been filed to the September 7, 2018 decision of Administrative Law Judge Jeffrey P. Wedekind’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charge filed by an individual.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

PG Publishing Co., Inc. d/b/a Pittsburgh Post-Gazette  (06-CA-212627, et al.; JD-67-18)  Pittsburgh, PA.  Administrative Law Judge David I. Goldman issued his decision on October 16, 2018.  Charges filed by The Newspaper Guild of Pittsburgh a/w Communications Workers of America, AFL-CIO, CLC, and its Local 38061; Pittsburgh Mailers Union No. M-22, a/w the Printing, Publishing, and Media Workers Sector of the Communications Workers of America, AFL-CIO, and its Local 14842; Pittsburgh Typographical Union No. 7, a/w the Communications Workers of America, AFL-CIO, and its Local 14827; Newspaper, Newsprint, Magazine and Film Delivery Drivers, Helpers and Handlers, a/w the International Brotherhood of Teamsters and its Local Union No. 211 of Allegheny County; Pittsburgh Newspaper Printing Pressmen’s/Paper Handlers Local Union No. 9N, a/w the Graphic Communications Conference/International Brotherhood of Teamsters and its Local 24M/9N; and International Union of Operating Engineers, AFL-CIO, Local 95.

Matson Terminals, Inc.  (20-CA-188087; JD(SF)-28-18)  Honolulu, HI.  Administrative Law Judge Gerald M. Etchingham issued his decision on October 16, 2018.  Charge filed by Hawaii Teamsters & Allied Workers Union, Local 996.

St. Louis Cardinals, LLC  (14-CA-213219; JD-68-18)  St. Louis, MO.  Administrative Law Judge Arthur J. Amchan issued his decision on October 17, 2018.  Charge filed by an individual.

Glass Fabricators, Inc. and Glass and Metal Solutions, Inc., alter egos  (08-CA-174567; JD-69-18)  Lakewood, OH.  Administrative Law Judge Thomas M. Randazzo issued his decision on October 19, 2018.  Charge filed by International Union of Painters & Allied Trades District Council 6.

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