Summary of NLRB Decisions for Week of December 24 - 28, 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

International Brotherhood of Electrical Workers, Local Union 357, AFL-CIO (Desert Sun Enterprises Limited d/b/a Convention Technical Services)  (28-CC-115255; 367 NLRB No. 61)  Las Vegas, NV, December 27, 2018.

The Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(4)(ii)(B) when it notified a neutral employer at a common situs that it intended to picket and it did not qualify that it would comply with the legal limitations on common situs picketing so as to not entangle neutrals.  After acknowledging that this longstanding unqualified-threat rule has not been clearly explained by the Board and that some courts have disapproved of it, the Board majority stood by the rule with a full explanation of its basis in Congress’s deep concern with protecting neutrals from entanglement in labor disputes and the inherent coercion presented by such an unqualified notice.  Dissenting, Member McFerran would have overruled the Board’s unqualified-threat rule and dismissed the present complaint.  She disagrees that an unqualified notice is inherently coercive and, instead, would examine all of the relevant circumstances to determine if a notice is coercive.

Charge filed by Desert Sun Enterprises Limited d/b/a Convention Technical Services.  Administrative Law Judge Gerald A. Wacknov issued his decision on July 28, 2014.  Chairman Ring and Members McFerran and Kaplan participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

No Unpublished C Cases Issued.

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Appellate Court Decisions

Browning-Ferris Industries of California, Inc., Board Case No. 32-CA-160759 (reported at 362 NLRB No. 186) (D.C. Cir. decided Dec. 28, 2018)

In a published opinion, the Court reviewed the Board’s 2015 test for determining joint-employer status.  The Court upheld consideration of reserved right to control and indirect control over terms and conditions of employment in the joint-employer analysis.  It found both factors were grounded in the common-law definition of an employment relationship.

However, the Court remanded for the Board to confine its indirect-control inquiry to evidence of indirect control that bears on essential terms and conditions of employment in applying the joint-employer test to the facts of this case.  The Court also sought clarification and application of the test’s prong asking “whether the putative joint employer possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining” before finding joint-employer status.  In light of its finding that the Board insufficiently explained the scope of the indirect-control element’s operation and how a properly limited test would apply in this case, the Court found that it “would be premature . . . to decide Browning-Ferris’s challenge to the Board’s retroactive application of its test.”

The Court’s decision may be found here.

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Administrative Law Judge Decisions

Florida Power & Light Company  (12-CA-211064; JD-86-18)  Juno Beach, FL.  Administrative Law Judge Charles J. Muhl issued his decision on December 27, 2018.  Charge filed by International Brotherhood of Electrical Workers, AFL-CIO, Local Union 641.

Mike-Sell’s Potato Chip Company  (09-CA-184215; JD-85-18)  Dayton, OH.  Administrative Law Judge Andrew S. Gollin issued his decision on December 27, 2018.  Charge filed by International Brotherhood of Teamsters (IBT), General Truck Drivers, Warehousemen, Helpers, Sales and Service, and Casino Employees, Teamsters Local Union No. 957.

Nevada Yellow Cab Corporation, Nevada Checker Cab Corporation, and Nevada Star Cab Corporation, a single employer  (28-CA-218477; JD-84-18)  Las Vegas, NV.  Administrative Law Judge Arthur J. Amchan issued his decision on December 27, 2018.  Charge filed by Industrial Technical & Professional Employees Union, OPEIU Local 4873, AFL-CIO.

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