Summary of NLRB Decisions for Week of February 3 - 7, 2020
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
DH Long Point Management LLC (31-CA-226377; 369 NLRB No. 18) Rancho Palos Verdes, CA, February 3, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) and (3) by issuing an employee a final written warning and by subsequently terminating him.
Charge filed by UNITE HERE Local 11. Administrative Law Judge Jeffrey D. Wedekind issued his decision on June 21, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Carl R. Bieber, Inc. (04-CA-235770; 369 NLRB No. 24) Kutztown, PA, February 4, 2020.
The Board granted in part and denied in part the General Counsel’s Motion for Default Judgment. The Board granted default judgment with respect to the allegation that the Respondent violated Section 8(a)(5) and (1) by ceasing paying wages and vacation benefits. The Board denied default judgment on the allegation that the Respondent violated the Act by, after the expiration of the contract, failing to remit Union dues deducted pursuant to a valid, unexpired, and unrevoked employee checkoff authorization. The Board based its denial on its recent decision in Valley Hospital Medical Center, d/b/a Valley Hospital Medical Center, Inc., 368 NLRB No. 139 (2019), overruling Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), and reinstating the longstanding rule established in Bethlehem Steel, 136 NLRB 1500 (1962).
Charge filed by the International Brotherhood of Teamsters Local 429. Chairman Ring and Members Kaplan and Emmanuel participated.
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Green Jobworks, LLC (05-CA-168637; 369 NLRB No. 20) Baltimore, MD, February 4, 2020.
In this test-of-certification case, the Board denied the General Counsel’s Motion for Summary Judgment. The Board observed that, prior to the General Counsel filing his motion, the Board issued an Order Granting Review and Remanding for further consideration PCC Structurals, Inc., 365 NLRB No. 160 (2019), overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), and reinstated the traditional community-of-interest standard. Accordingly, in light of PCC Structurals, the Board remanded the representation case to the Regional Director for further appropriate action, including analyzing the appropriateness of the unit under the traditional community-of-interest standard.
Charge filed by Construction and Master Laborers’ Local Union 11, a/w Laborers’ International Union of North America (LIUNA). Chairman Ring and Members Kaplan and Emanuel participated.
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Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center (28-CA-213783; (368 NLRB No. 139) Las Vegas, NV, February 4, 2020. Errata to December 16, 2019 Decision and Order. Errata Amended Decision
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The American Bottling Company d/b/a Keurig Dr Pepper (13-CA-247183; 369 NLRB No. 19) Chicago, IL, February 5, 2020.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.
Charge filed by International Brotherhood of Teamsters Local 727. Chairman Ring and Members Kaplan and Emanuel participated.
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Pruitthealth Veteran Services–North Carolina, Inc. (10-CA-191492; 369 NLRB No. 22) Black Mountain, NC, February 5, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by instructing employees not to discuss their wages and not to express other employees’ complaints about working conditions to management; and by issuing disciplinary notices to an employee, demoting and transferring him to less favorable work assignments, and discharging him because he expressed employee complaints about racial discrimination in the workplace against employees of color to local and corporate management.
Administrative Law Judge Keltner W. Locke issued his decision on May 4, 2018. Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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Argos USA LLC d/b/a Argos Ready Mix, LLC (12-CA-196002 and 12-CA-203177; 369 NLRB No. 26) Naples, FL, February 5, 2020.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining three workplace rules. Applying The Boeing Company, 365 NLRB No. 154 (2017), the Board found that an employee would not reasonably interpret the Employee Confidential Information Agreement or Cell Phone Policy to potentially interfere with NLRA rights. Applying Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), the Board found that the Electronic Communications Policy was a lawful restriction on employee personal use of the Respondent’s email system. Because the Cell Phone Policy was lawful, the Board reversed the judge to find that the Respondent did not violate Section 8(a)(1) by suspending and discharging an employee pursuant to that policy. Finally, the Board severed and retained for further consideration the allegation that the Respondent violated Section 8(a)(5) and (1) by failing to provide notice and an opportunity to bargain to the Union before suspending the employee.
Charges filed by Construction and Craft Workers Local Union No. 1652, Laborers’ International Union of North America, AFL-CIO. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on May 14, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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ADT, LLC (19-CA-216379; 369 NLRB No. 23) Seattle, WA, February 5, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging two employees because they engaged in protected union activity during captive audience meetings and did not lose the protection of the Act.
Charge filed by International Brotherhood of Electrical Workers, Locals 46 and 76. Administrative Law Judge John T. Giannopoulos issued his decision on July 9, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Rhino Northwest, LLC (19-CA-165356, et al.; 369 NLRB No. 25) Fife, WA, February 6, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated: (1) Section 8(a)(5) and (1) by unilaterally beginning to enforce a rule requiring employees to have worked on a Respondent project at least once in the preceding 90 days to retain their active status; and (2) Section 8(a)(3) and (1) by “deactivating” two riggers from its list of active employees (and in the case of one of them Section 8(a)(4) as well). As to a third discriminatee, the Board agreed with the judge that the General Counsel carried his Wright Line burden of showing that the Respondent was motivated by unlawful animus, but found, contrary to the judge, that the Respondent had not carried its rebuttal burden of showing that it would have taken the same action even if the discriminatee had not engaged in Section 7 activity.
Administrative Law Judge John T. Giannopoulos issued his decision on November 3, 2017. Charges filed by Local 15, International Alliance of Theatrical Stage Employees and Moving Picture Technicians and Artists and Allied Crafts of the United States and Canada AFL-CIO, CLC. Chairman Ring and Members Kaplan and Emanuel participated.
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Burrink Commercial Services Inc. (13-CA-246967; 369 NLRB No. 21) South Holland, IL and Cedar Lake, IN, February 6, 2020.
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)(1) by its owner physically assaulting picketers lawfully engaged in area standards picketing at the Respondent’s job site.
Charge filed by Cement Masons Local 502, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
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Novelty Advertising Company (09-CA-239588, 369 NLRB No. 27) Coshocton, OH, February 6, 2020. 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 and refusing to provide the Union with requested information that is necessary and relevant to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit employees and by unlawfully delaying in providing the Union with other such requested information. Charge filed by Graphic Communications Conference of the International Brotherhood of Teamsters, Local 508-M of District Council 3. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Swedish Health Services – Swedish Express Care (19-RD-252346) Seattle, WA, February 4, 2020. The Board denied the Petitioner’s Request for Review of the Regional Director’s determination to hold the decertification petition in abeyance as it raised no substantial issues warranting review. In denying review, the Board explained that, for institutional reasons, it was applying extant law in denying the Petitioner’s Request for Review and noted that the Board recently issued a Notice of Proposed Rulemaking that addresses, among other things, possible changes to the Board’s blocking charge policy. Petitioner—an Individual. Union—Union of American Physicians and Dentists.
NCRNC, LLC d/b/a Northeast Center for Rehabilitation and Brain Injury (03-RM-250927 and 03-RM-250938) Lake Katrine, NY, February 5, 2020. The Board denied the Employers/Petitioners’ Request for Review of the Regional Director’s Decision and Order Dismissing Petitions for an election in a unit of all employees in a long-term care facility, comprising several classifications, including those jointly employed by the Employers. In finding there to be no substantial issues warranting review, the Board relied solely on the Regional Director’s finding that neither petition seeks a unit in which the Union has made a present claim to be recognized as the bargaining representative. Employers/Petitioners—NCRNC, LLC d/b/a Northeast Center for Rehabilitation and Brain Injury and C Fare LLC. Union—1199 SEIU United Healthcare Workers East. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Justice Energy, Inc. (09-CA-231106) McDowell County, WV, February 3, 2020. No exceptions having been filed to the December 12, 2019 decision of Administrative Law Judge Geoffrey Carter’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. Charge filed by International Union, United Mine Workers of America (UMWA).
Amerinox Processing, Inc. (04-CA-223028, et al.) Camden, NJ, February 4, 2020. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. The complaint alleged that the Respondent violated Section 8(a)(1) through various actions and violated Section 8(a)(3) by discharging, disciplining, and otherwise discriminating against employees based on their union activities and to discourage employees from engaging in union activity. Charges filed by International Association of Sheet Metal, Air, Rail & Transportation Workers, Sheet Metal Workers Local 19. Chairman Ring and Members Kaplan and Emanuel participated.
Coca-Cola Beverages Florida, LLC (12-CA-230207, 12-CA-242548, and 12-CA-252012) Miami, FL, February 7, 2020. The Board denied the Respondent’s Motion for Summary Judgment, or, alternatively, Partial 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. The Board further denied the Respondent’s Motion to Stay the Proceeding and for oral argument. Charges filed by International Brotherhood of Teamsters, Local Union 769. Chairman Ring and Members Kaplan and Emanuel participated.
Lutheran Homes of Michigan, Inc. d/b/a Wellspring Lutheran Services and Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc. (07-CA-234444 and 07-CA-234451) Livonia, MI, February 7, 2020. The Board denied the Respondents’ Motions for Summary Judgment, finding that the Respondents have failed to establish that there are no genuine issues of material fact warranting a hearing and that they are entitled to judgment as a matter of law. Charges filed by SEIU Healthcare Michigan. Chairman Ring and Members Kaplan and Emanuel participated.
FDRLST Media, LLC (02-CA-243109) New York, NY, February 7, 2020. The Board denied the Respondent’s Motion to Dismiss the complaint, finding that it had not demonstrated that the complaint fails to state a claim upon which relief can be granted and that it was entitled to judgment as a matter of law. Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino, Board Case No. 28-CA-214925 (reported at 366 NLRB No. 58); and NP Sunset LLC d/b/a Sunset Station Hotel and Casino, No. 28-CA-225263 (reported at 367 NLRB No. 62) (9th Cir. decided February 7, 2020).
In a pair of decisions in two related test-of-certification cases, the Court denied the petitions for review filed by the Employer and the International Union of Operating Engineers, and enforced the Board’s order in full. In doing so, the Court upheld the Board’s findings that slot technicians working at the two casinos in Henderson, Nevada, were not “guards” under Section 9(b)(3) of the Act. On that basis, the Court held that the Union, which represents other employees at the casinos, was not statutorily barred from representing the petitioned-for units and upheld the certifications. In each decision, the Court denied the Union’s Petition for Review on the remedial issues it raised.
In the underlying representation case in Station GVR Acquisition, LLC (No. 28-RC-203653), the Union petitioned to represent the slot technicians at the Employer’s casino. In response, the Employer argued that the slot technicians are “guards” as defined by the Act and must be represented by a guard-only union. After a hearing, the Regional Director issued a decision finding that the slot technicians are not guards and that the unit was appropriate. In August 2017, an election was held, and the slot technicians voted 13-0 in favor of representation. The Employer filed objections, including one asserting that the slot technicians are guards. After a hearing, the Regional Director overruled the objections and certified the Union. The Employer requested review, which the Board (Members McFerran, Kaplan, and Emanuel) denied. Similarly, in the underlying representation case in NP Sunset LLC d/b/a Sunset Station Hotel and Casino (Case 28-RC-222992), the Employer challenged the Union’s petition to represent its slot technicians by claiming they were guards. After a hearing, the Regional Director issued a decision finding instead that they were employees. In July 2018, an election was held in which the slot technicians voted 11-1 in favor of representation. After the Regional Director certified the Union, the Employer requested review, which the same Board panel denied. Thereafter, the Employers refused to bargain in order to seek court review.
In the resulting unfair-labor-practice proceeding in Station GVR Acquisition, LLC (Case 28-CA-214925), the Union argued for the first time in a Motion for Reconsideration that the Board should direct the Employer to provide information. The Board denied that motion. In NP Sunset LLC d/b/a Sunset Station Hotel and Casino (Case 28-CA-225263), the Union requested that the Board issue a special remedy, a “broad” cease-and-desist order, and change various aspects of its standard notice-posting requirements. The Board denied the request.
The Court issued a published opinion in Station GVR Acquisition, LLC (No. 18-71124), upholding the Board’s bargaining order in Case 28-CA-214925. In doing so, the Court agreed with the Board that to determine guard status, the key inquiry is whether the workers alleged to be guards “are charged with guard responsibilities that are not a minor or incidental part of their overall responsibilities,” as set forth in Boeing Co., 328 NLRB 128 (1999). The Court accepted the Board’s characterization that the slot technicians, “as their title implies,” are “technicians who install, maintain, and repair the slot machines,” and whose “duties differ fundamentally from those of guards.” The Court found unavailing the Employer’s reliance on Bellagio, LLC v. NLRB, 863 F.3d 839 (D.C. Cir. 2017), a case in which the D.C. Circuit found a casino’s surveillance technicians to be guards. Rather, the Court held that slot technicians’ duties “differ in fundamental respects from those of the surveillance technicians in Bellagio,” where the technicians were responsible for the “systems relied upon by the surveillance and security departments to carry out their core functions.” The Court also rejected the Employer’s argument that the slot technicians are guards because they enforce the casino’s rules and policies on the casino floor to protect the Employer’s property assets. The Court found “[t]his distended interpretation of guard status would swallow the definition outright,” and declined “to adopt an interpretation of the Act that would characterize virtually all employees working on the casino floor as guards.”
On the Union’s petition challenging the Board’s determination not to order the additional remedies that the Union requested, the Court noted that the Board granted all of the relief that was sought in the charge and complaint. Therefore, the Court held, the Union lacked standing to petition for review because it was not a “person aggrieved” by the Board’s order within the meaning of Section 10(f) of the Act.
In NP Sunset LLC (No. 19-70092), the Court issued an unpublished memorandum enforcing the bargaining order in Board Case 28-CA-225263, stating that it “concluded in a case argued together with this one,” referring to Station GVR Acquisition, LLC (No. 18-71124), that “the Board did not err in determining that the casino slot technicians are not ‘guards’” within the meaning of the Act. The Court also summarily noted that “the Board did not abuse its discretion in declining to grant the [u]nion’s request for enhanced remedies.”
The Court’s opinions are here and here.
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Administrative Law Judge Decisions
Denton County Electric Cooperative, Inc. d/b/a Coserv Electric (16-CA-149330; JD-05-20) Corinth, TX. Administrative Law Judge Robert A. Ringler issued his decision on February 4, 2020. Charge filed by International Brotherhood of Electrical Workers Local 220, a/w International Brotherhood of Electrical Workers.
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