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Summary of NLRB Decisions for Week of September 17 - 21, 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

No Published Decisions Issued.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

Globe Industries LLC  (25-CA-209034, et al.)  Pekin, IN, September 18, 2018.  No exceptions having been filed to the August 1, 2018 decision of Administrative Law Judge Charles J. Muhl’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.  Charges filed by Indiana State Pipe Trades Association and U.A. Local 502, AFL-CIO.

Service Employees International Union, United Service Workers West (ABM)  (31-CB-218750)  Los Angeles, CA, September 20, 2018.  The Board denied the Union’s Petition to Revoke/Quash an investigative subpoenas duces tecum as untimely filed.  In addition, the Board found that, even assuming it was timely, the petition would be denied as the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Union failed to establish any other legal basis for revoking the subpoenas.  Charge filed by an individual.  Members McFerran, Kaplan, and Emanuel participated.

New Concepts for Living, Inc.  (22-CA-187407, et al.)  New Rochelle, NJ, September 20, 2018.  The Board denied the Respondent’s Motion for Summary Judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  Charges filed by Communications Workers Local 1040.  Members McFerran, Kaplan, and Emanuel participated.

Telsa, Inc.  (32-CA-197020, et al.)  Palo Alto, CA, September 21, 2018.  The Board granted the Respondent’s Request for Special Permission to Appeal from the Administrative Law Judge’s order denying the Respondent’s Motion to Dismiss the General Counsel’s amendment to the second consolidated complaint.  On the merits, the Board denied the appeal, finding that the Respondent failed to establish that the judge abused her discretion.  Charges filed by International Union, United Automobile, Aerospace and Agricultural Workers of America, AFL-CIO and individuals.  Chairman Ring and Members McFerran and Kaplan participated.

International Brotherhood of Teamsters, Local 251 (DHL Express (USA), Inc.)  (01-CB-219768, et al.)  Westborough, MA, September 21, 2018.  The Board granted the Charging Party’s Request for Special Permission to Appeal from the Administrative Law Judge’s July 31, 2018 oral ruling on the record denying the Charging Party’s petition to revoke a subpoena duces tecum.  On the merits, the Board denied the appeal finding that the Charging Party failed to establish that the judge abused her discretion in denying the petition to revoke the subpoena.  In addition, the Board granted the Charging Party’s and General Counsel’s Requests for Special Permission to Appeal the judge’s July 31, 2018 oral ruling on the record and August 13, 2018 written order denying the Charging Party’s and General Counsel’s Motions for Summary Judgment on the Respondent’s affirmative defenses, and it denied the appeals on the merits.  The Board found that the Charging Party and the General Counsel failed to establish that the judge abused her discretion in denying the motions.  Charges filed by DHL Express (USA), Inc.  Members McFerran, Kaplan, and Emanuel participated.

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Appellate Court Decisions

Dawn Trucking Inc., Board Case No. 29-CA-171337 (reported at 365 NLRB No. 121) (2d Cir. decided September 21, 2018)

In an unpublished summary order, the Court enforced the Board’s order issued against this Rosedale, New York business that hauls dirt and other fill material to and from construction sites in dump trucks.  Immediately after its six employees voted unanimously in a 2015 election to be represented by Building Material Teamsters Local 282, International Brotherhood of Teamsters, the Employer stopped dispatching work to employees, thereby effectively discharging them, and later extended offers of reinstatement conditioned on receiving “no union rates.”

The Board (Chairman Miscimarra and Members Pearce and McFerran) found that the Employer violated Section 8(a)(3) and (1) by discharging the employees because of their union support, offering them reinstatement conditioned on their rejection of the Union, and bypassing the Union and dealing directly with employees on terms and conditions of their employment.  The Board rejected the Employer’s contentions that it lawfully closed its business, and, alternatively, that it merely locked out employees in support of its bargaining position, finding those assertions contrary to the record evidence.  On review, the Court held that the Board’s findings were supported by substantial evidence.

The Court’s summary order may be found here.

Retro Environmental, Inc. / Green JobWorks, LLC, Board Case No. 05-CA-195809 (reported at 365 NLRB No. 133) (4th Cir. decided September 19, 2018)

In an unpublished per curiam opinion, the Court enforced the Board’s bargaining order.  The Board’s order issued against Retro Environmental, Inc., a demolition and asbestos-abatement contractor based in Sykesville, Maryland, and Green JobWorks, a Baltimore-based temporary staffing agency.  After Construction and Master Laborers’ Local Union 11 petitioned to represent a unit of laborers provided to Retro by Green JobWorks under the terms of a lease-of-services agreement, the Board (Chairman Pearce and Member Hirozawa; Member Miscimarra, dissenting) found, on review in the representation case, that the two entities were joint employers and remanded for an election to be conducted.  In a mail-ballot election in Fall 2016, the employees voted for representation and the Board certified the Union.  Thereafter, the Employers refused to bargain to seek court review.  On appeal, the Court dispensed with oral argument and, with little elucidation, held that the Board’s factual findings were supported by substantial evidence and that its legal interpretations were rational and consistent with the Act.

The Court’s opinion may be found here.

Voices for Int'l Business and Education, Inc. d/b/a International High School of New Orleans, Board Case No. 15-CA-182627 (reported at 365 NLRB No. 66) (5th Cir. decided September 21, 2018)

In a published opinion, the Court enforced the Board’s bargaining order issued against this private, non-profit corporation that operates the International High School of New Orleans under a charter with the Louisiana Board of Elementary and Secondary Education created pursuant to Louisiana’s Charter Law.  In doing so, the Court agreed with the Board that Voices is not a “political subdivision” of the State of Louisiana, and thus not exempt from the Act’s coverage.

In 2016, United Teachers of New Orleans, Local 527, LFT, AFT, petitioned to represent a unit of teachers and other employees at the high school.  In response, Voices argued that it is expressly excluded from the Act’s definition of “employer” in Section 2(2) because it is a “political subdivision” of Louisiana.  The Regional Director applied the Board’s political subdivision test, endorsed by the Supreme Court, which requires the entity seeking the exemption to establish that it was “(1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.”  NLRB v. Natural Gas Util. Distr. of Hawkins Cty., 402 U.S. 600 (1971).  The Regional Director concluded that Voices failed to show that it was a political subdivision under either prong of the test.

Voices filed a request for review, which was denied by the Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting).  In doing so, the Board held that the Regional Director’s analysis was consistent with two recent Board decisions applying the Hawkins County test to similar charter schools that “operat[ed] pursuant to a state statute, whose creation by individual applicants and governance by its board,” and “exhibit only minor, non-substantive differences from the instant case.”  See The Pennsylvania Virtual Charter School, 364 NLRB No. 87 (2016); Hyde Leadership Charter School, 364 NLRB No. 88 (2016).  The Board rejected Voices’ arguments, noting that they were similar to those previously rejected in those earlier decisions.  Thereafter, the Regional Director conducted an election in which the employees voted 26 to 18 for union representation.  After the Union was certified, Voices refused to bargain in order to seek court review.

The Court agreed with the Board that Voices is not a political subdivision of the state of Louisiana and thus not exempt from the Act’s coverage.  The Court noted that “the Board’s definition is consistent with the common meaning of ‘political subdivision’ of a state,” and that “for both of the Board’s definitions of political subdivision, ultimate authority over policymaking remains with the public.”  Here, the Court stated, “Voices lacks that political accountability.”  Among other considerations, the Court noted that the high school’s operators “are not controlled by the state,” nor are they put in place or removed by state actors, and “there is no public mechanism for changing the [school’s] policies.”  The Court therefore agreed with the Board that Voices is not administered by individuals responsible to public officials or to the general electorate.  Voices argued that nonetheless the result here should be different under the state charter law and because its operations have some degree of political character.  The Court rejected those contentions, explaining that the reason for the state law was to provide for private control of Louisiana charter schools and that the legislature chose to insulate its charter schools from the political process.  Therefore, the Court concluded, “Voices like most other privately controlled employers is subject to the National Labor Relations Act.”

The Court’s opinion is here.

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Administrative Law Judge Decisions

General Motors LLC  (14-CA-197985 and 14-CA-208242; JD-59-18)  Kansas City, KS.  Administrative Law Judge Donna N. Dawson issued her decision on September 18, 2018.  Charges filed by an individual.

Comprehensive Post-Acute Network, Ltd.  (09-CA-213162; JD-60-18)  West Chester, OH.  Administrative Law Judge Andrew S. Gollin issued his decision on September 18, 2018.  Charge filed by an individual.

Schuff Steel  (20-CA-204378; JD(SF)-29-18)  San Francisco, CA.  Administrative Law Judge Amita Baman Tracy issued her decision on September 18, 2018.  Charge filed by an individual.

Valley Hospital Medical Center, Inc., d/b/a Valley Hospital Medical Center  (28-CA-213783; JD(SF)-30-18)  Las Vegas, NV.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on September 19, 2018.  Charge filed by Local Joint Executive Board of Las Vegas.

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