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Summary of NLRB Decisions for Week of October 29 - November 2, 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

Kodo Construction, Inc.  (19-CA-159674; 367 NLRB No. 29)  Auburn, WA, October 29, 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 furnish the Union with requested information; ceasing to assign work to unit employees; failing and/or refusing to continue in effect the terms and conditions of employment of unit employees contained in the collective-bargaining agreement to which it was signatory by failing and/or refusing to making required pension fund contribution payments; changing unit employees’ terms and conditions of employment without providing the Union with notice and an opportunity to bargain; and repudiating its collective-bargaining relationship with the Union and other agreements to which it was bound.  The Board found that, although a copy of the complaint and Notice to Show Cause sent to the Respondent by certified mail were returned as unclaimed, the Respondent’s failure or refusal to accept certified mail or to provide for receiving appropriate service cannot serve to defeat the purposes of the Act and that copies of the charge, amended charge, and Motion for Default Judgment sent to the Respondent by regular mail and not returned indicated actual receipt of those documents by the Respondent.

Charge filed by Washington and Northern Idaho District Council of Laborers.  Chairman Ring and Members Kaplan and Emanuel participated.

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Jam Productions, LTD and Event Productions, Inc., a single employer  (13-CA-177838; 367 NLRB No. 30)  Chicago, IL, October 29, 2018.

The Board (Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the Administrative Law Judge and dismissed the complaint alleging that the Respondents violated Section 8(a)(3), (4), and (1) by failing to offer and assign work on a non-discriminatory basis to 55 stagehand employees because they were named discriminatees in the Settlement Agreement in Case 13-CA-160319.  Contrary to the judge, the Board found that the Settlement Agreement was not ambiguous and that the plain language of the Settlement Agreement did not require the Respondents to offer work to the discriminatees based on seniority.  Accordingly, the Board found that the Respondents’ recall of the discriminatees to the on-call list was made pursuant to the Settlement Agreement and did not violate the Act.  Dissenting, Member McFerran would have remanded the case to the judge with instructions to address whether the Respondents’ “equal-share” rule violated the Act.

Charge filed by Theatrical Stage Employees Union Local No. 2, IATSE.  Administrative Law Judge Michael A. Rosas issued his decision on May 26, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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International Harvest, Inc.  (02-CA-138000, et al.; 367 NLRB No. 31)  Mt. Vernon, NY, November 2, 2018.

The Board adopted the Administrative Law Judge’s dismissal of the allegations that the Respondent discriminatorily discharged two employees.  The judge found that, although the General Counsel proved that a factor motivating the Respondent to discharge these employees was animus based on their union and protected concerted activities, the Respondent proved that it would have discharged them in the absence of those activities.  In the absence of exceptions, the Board adopted the judge’s findings that the Respondent violated Section 8(a)(1) by promising to compensate two employees if they abandoned their support of the Union, and violated Section 8(a)(3) and (1) by discharging one of these employees.

Charges filed by individuals.  Administrative Law Judge Steven Davis issued his decision on January 7, 2016.  Members McFerran, Kaplan, and Emanuel participated.

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Cayuga Medical Center at Ithaca, Inc.  (03-CA-185233 and 03-CA-186047; 367 NLRB No. 21)  Ithaca, NY, November 2, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging an employee for engaging in union activities and by suspending and discharging a second employee to cover its unlawful motives in disciplining the first employee.  The Board also found that the Respondent violated Section 8(a)(1) by discriminatorily removing union materials from its bulletin boards.

Charges filed by 1199 SEIU United Healthcare Workers East.  Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on January 8, 2018.  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

International Union of Journeymen & Allied Trades, Local 726 (Alle Processing Corp. d/b/a Meal Mart)  (29-CB-216248)  Maspeth, NY, October 29, 2018.  The Board denied the Employer’s Petition to Revoke an investigative subpoena 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 an individual.  Chairman Ring and Members Kaplan and Emanuel participated.

Alle Processing Corp. d/b/a Meal Mart  (29-CA-213963) Maspeth, NY, October 30, 2018.  The Board denied the Employer’s Petition to Revoke an investigative subpoena 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 an individual.  Chairman Ring and Members Kaplan and Emanuel participated.

Walnut Creek Associates 2, Inc. d/b/a Walnut Creek Honda  (32-CA-176353)  Oakland, CA, October 31, 2018.  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 Board dismissed the complaint allegation, which was before the Board on the parties’ motions for summary judgment, that the Respondent violated Section 8(a)(1) by maintaining and enforcing a mandatory arbitration agreement.  The Board remanded to the Regional Director the separate allegations of whether the agreement independently violates Section 8(a)(1) because it prohibits or restricts employees’ access to the Board, and prohibits employees from disclosing anything about an arbitration without the consent of all parties.  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 these complaint allegations.  Charge filed by an individual.  Chairman Ring and Members McFerran and Kaplan participated.

Preferred Building Services, Inc. and Rafael Ortiz d/b/a Ortiz Janitorial Services, joint employers  (20-CA-149353)  San Francisco Bay Area, CA, October 31, 2018.  The Board denied the Charging Party’s Motion for Reconsideration of the Board’s Decision and Order reported at 366 NLRB No. 159 (2018), on the basis that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  In the underlying case, the Board had dismissed the complaint in its entirety.  Charge filed by Service Employees International Union Local 87.  Chairman Ring and Members Kaplan and Emanuel participated.

Cowabunga, Inc.  (10-CA-151454)  Alpharetta, GA, October 31, 2018.  On remand from the Eleventh Circuit Court, the Board remanded to the Regional Director the issue—before the Board on the General Counsel’s Motion 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 General Counsel filed the pending motion, 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 General Counsel’s motion does not establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law as to this complaint allegation.  Accordingly, the Board denied without prejudice the General Counsel’s Motion for Summary Judgment and remanded the issue to the Regional Director for further action as he deems appropriate.  Charge filed by an individual.  Chairman Ring and Members Kaplan and Emanuel participated.

Windsor Redding Care Center, LLC  (20-CA-070465, et al.)  Redding, CA, November 2, 2018.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 366 NLRB No. 127 (2018).  The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  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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Appellate Court Decisions

Cranesville Block Co., Inc., Board Case No. 03-CA-209124 (reported at 366 NLRB No. 18) (D.C. Cir. decided October 30, 2018)

In an unpublished judgment in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this manufacturer of ready-mix concrete after the mechanics at its maintenance yard in Amsterdam, New York, voted in a February 2017 election to be represented by International Brotherhood of Teamsters, Local 294.  Without hearing oral argument, the Court upheld the Board’s finding that the Employer failed to carry its burden of proving its claim that the determinative ballot cast by the senior mechanic should not be opened and counted because he was a statutory supervisor.

In the underlying representation case, the tally of ballots showed 2 ballots cast for the Union, 1 against, with 1 ballot challenged by the Employer on its claim of supervisory status.  Thereafter, the Employer filed election objections claiming that the mechanic exercised supervisory authority on the bases that he: (1) assigns work to other mechanics, (2) responsibly directs their work, and (3) disciplines them or effectively recommends their discipline.  After a hearing, the hearing officer concluded that the Employer failed to carry its burden of proof on the issue, and the Employer filed exceptions.  On review, the Regional Director adopted the hearing officer’s findings and overruled the election objections.  The Employer filed a Request for Review, which the Board denied.  Agreeing with the Regional Director, the Board held that the mechanic “does not assign work using independent judgment, is not held accountable for the performance of the employees he directs, and does not effectively recommend discipline.”  After the ballot was opened and counted, the revised tally of ballots showed a vote of 3 to 1 in the Union’s favor, and the Board certified the Union.  Thereafter, the Employer refused to bargain in order to seek court review.

The Court concluded that substantial evidence supported the Board’s finding that the mechanic did not have supervisory authority on any of the three claimed bases.  First, citing circuit law, the Court held that the mechanic did not exercise independent judgment when assigning work, noting that managers dictated what repairs were needed, and that the mechanic then assigned work to the other mechanics based solely on their “known skill or experience.”  Second, the Court held that the mechanic could not be found to responsibly direct other employees because he was never held “accountable for the performance of the task by the other,” quoting Oakwood Healthcare, Inc., 348 NLRB 686 (2006).  Third, the Court held that there was no evidence that the mechanic effectively recommended discipline because, in the only example advanced by the Employer, the general manager independently investigated the matter and did not follow the mechanic’s recommendation.

The Court’s unpublished judgment may be found here.

2850 Grand Island Boulevard Operating Company, LLC d/b/a Elderwood at Grand Island, Board Case No. 03-CA-193859 (reported at 365 NLRB No. 110) (2d Cir. decided October 31, 2018)

In an unpublished summary order in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this operator of several nursing homes in New York State, including a skilled nursing facility in Grand Island, New York.  In doing so, the Court upheld the Board’s finding that the Employer failed to carry its burden of proving its claim that its licensed practical nurses (LPNs) were the statutory supervisors of its certified nursing assistants (CNAs) at the nursing facility, and that the Board did not abuse its discretion in overruling the Employer’s election objections.

In the underlying representation case, 1199 SEIU United Healthcare Workers East petitioned to represent a unit of service and maintenance employees at the nursing facility, which included LPNs and CNAs.  The parties entered into a stipulated-election agreement, with the Employer reserving its right to challenge the voting eligibility of 15 LPNs based on a claim of supervisory status.  After the October 2016 election, the Employer filed objections and a hearing was held on both the objections and the status of the 15 challenged ballots cast by LPNs.  The hearing officer recommended denying the ballot challenges and overruling the election objections.

After the Employer filed exceptions, the Regional Director issued a decision finding that the 15 LPNs exercised none of the six supervisory functions that the Employer alleged.  On the issue of assignment, the Regional Director found that the LPNs’ considerations in assigning CNAs to residents were routine factors that required no expertise or independent judgment, and that the CNAs’ patient-care duties were dictated by personalized care plans established by management officials.  Regarding the authority to responsibly direct, the Regional Director found no evidence that LPNs were evaluated based on their independent direction of CNAs, or that LPNs face any adverse consequences as a result.  Regarding discipline, the Regional Director found that the three write-ups in the record indicated only that the LPNs were engaged in a reportorial function, and not recommending the discipline of CNAs.  The Regional Director also found that the weight of the evidence failed to show that LPNs award, transfer, or adjust the grievances of CNAs.  Lastly, the Regional Director overruled the Employer’s election objections, which were primarily based on the LPNs’ pro-union activities that were allegedly improper based on their supervisory status.  The Employer filed a Request for Review, which the Board denied.  After the ballots were opened and counted, the final vote in the Union’s favor was 58 to 46, and the Board certified the Union.  Thereafter, the Employer refused to bargain to seek court review.

With little comment, the Court upheld the Board’s finding that the LPNs are not statutory supervisors.  The Court also concluded that the Board did not abuse its discretion in overruling the election objections and certifying the Union.

The Court’s unpublished summary order may be found here.

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Administrative Law Judge Decisions

Rosenburg Forest Products Co.  (19-CA-213306; JD(SF)-33-18)  Riddle, OR.  Administrative Law Judge Eleanor Laws issued her decision on October 31, 2018.  Charge filed by Carpenters Industrial Council (CIC), Local Union No. 2949.

Bethany College  (14-CA-201546 and 14-CA-201584; JD-72-18)  Lindsborg, KS.  Administrative Law Judge Christine E. Dibble issued her decision on October 31, 2018.  Charges filed by individuals.

Maine Coast Regional Health Facilities, d/b/a Maine Coast Memorial Hospital, the sole member of which is Eastern Maine Healthcare Systems  (01-CA-209105 and 01-CA-212276; JD-71-18)  Ellsworth, ME.  Administrative Law Judge Paul Bogas issued his decision on November 2, 2018.  Charges filed by an individual.

Nico Asphalt Paving, Inc. and its Successor in Interest and Alter Ego, City Wide Paving, Inc.  (29-CA-186692; JD(NY)-11-18)  Brooklyn, NY.  Administrative Law Judge Jeffrey P. Gardner issued his decision on November 2, 2018.  Charge filed by United Plant & Production Workers, CC Local Union 175, IAM.

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