Summary of NLRB Decisions for Week of January 22 - 25, 2019
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
Michigan Bell Telephone Company (07-CA-150005; 367 NLRB No. 74) Grand Rapids, MI, January 24, 2019.
The Board unanimously reversed the Administrative Law Judge and concluded that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with a description of the information that a unit-employee Informant provided to the Respondent about a possible concerted refusal to work overtime. A Board majority (Chairman Ring and Member Kaplan) affirmed the judge’s dismissal of the allegations that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with the Informant’s identity and a list of people to whom the Respondent disseminated the information provided by the Informant (the distribution list) because that information is not relevant to the Union’s representational duties. Further, the same Board majority reversed the judge and concluded that the Respondent violated Section 8(a)(5) and (1) by failing to respond in a timely manner to the Union’s request for the distribution list. In doing so, the majority reaffirmed the principle that an employer has a duty to respond timely to a union’s request for presumptively relevant information, even if the employer ultimately rebuts the presumption of relevance.
Dissenting in part, Member McFerran would have reversed the judge and found that the distribution list and the Informant’s identity are relevant to the Union’s representational duties but that the Respondent established a legitimate confidentiality interest in the Informant’s identity. Thus, she would have concluded that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with the distribution list and by failing to offer in a timely manner to bargain an accommodation regarding the Informant’s identity. Member McFerran concurred with the majority’s conclusion that the Respondent’s unreasonable delay in responding to the Union’s information request was unlawful but noted that she viewed the requested information as actually (not merely presumptively) relevant. However, she agreed with the majority’s reaffirmation of the principle described above.
Charge filed by Local 4034, Communication Workers of America (CWA), AFL–CIO. Administrative Law Judge Arthur J. Amchan issued his decision on December 3, 2015. Chairman Ring and Members McFerran and Kaplan participated.
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Windsor Redding Care Center, LLC (20-CA-070465, et al.; 366 NLRB No. 127) Redding, CA, January 24, 2019. Errata to July 17, 2018 decision. Errata Amended Decision
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E.W. Howell Co., LLC (29-CA-195626; 367 NLRB No. 69) Plainview, NY, January 24, 2019.
The Board granted the General Counsel’s Motion for Partial 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 additionally remanded the remaining unilateral change allegations to the Regional Director for further appropriate action.
Charge filed by Northwest Regional Council of Carpenters and Joiners America. Chairman Ring and Members McFerran and Emanuel participated.
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East Valley Glendora Hospital, LLC d/b/a Glendora Community Hospital (31-CA-229412; 367 NLRB No. 72) Glendora, CA, January 24, 2019.
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. Specifically, the Board found in the representation case that the charge nurses, who voted under challenge, are not statutory supervisors.
Charge filed by SEIU Local 121RN. Chairman Ring and Members McFerran and Kaplan participated.
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Walt Disney Parks and Resorts U.S. d/b/a Walt Disney World Co. (12-UC-203052; 367 NLRB No. 80) Orlando, FL, January 25, 2019.
The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Order Clarifying Bargaining Unit as it raised substantial issues warranting review. The Board reversed the Regional Director’s clarification of the existing bargaining units to include Ride Service Associations (RSAs), who provide ridesharing or ride-hailing services to guests at the Employer’s parks and resorts. The Board first found that the Regional Director had erred in applying Premcor, Inc., 333 NLRB 1365 (2001), to find that the RSAs performed the “same basic functions” historically performed by unit employees—specifically Bus Drivers and Parking Host/Hostesses (PHHs). Having found that Premcor did not apply, the Board then applied its “restrictive” accretion analysis and found that the differences between RSAs and unit employees showed that that RSAs had a separate group identity and that the evidence did not establish that the RSAs shared an overwhelming community of interest with the unit employees, particularly given that there was no evidence of temporary interchange between, or shared day-to-day supervision among, RSAs and bargaining unit employees. Accordingly, the Board concluded that existing bargaining units could not be clarified to include the RSAs.
Petitioner—International Brotherhood of Teamsters, Local 385. Members McFerran, Kaplan, and Emanuel participated.
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SuperShuttle DFW, Inc. (16-RC-010963; 367 NLRB No. 75) Fort Worth, TX, January 25, 2019.
A full Board majority, consisting of Chairman Ring and Members Kaplan and Emanuel, affirmed the Acting Regional Director’s finding that SuperShuttle’s franchisees, who operate shared-ride vans for SuperShuttle, are excluded from the Act’s coverage as independent contractors, and, accordingly, dismissed the representation petition at issue. In doing so, the majority overruled FedEx Home Delivery, 361 NLRB 610 (2014), to the extent that it revised or altered the Board’s independent-contractor test by holding that entrepreneurial opportunity represents merely “one aspect of a relevant factor that asks whether the evidence tends to show that the putative contractor is, in fact, rendering services as part of an independent business.” Id. at 620 (emphasis in original). The majority here found that the FedEx majority impermissibly diminished the significance of entrepreneurial opportunity in the Board’s independent-contractor analysis and revived an “economic dependency” standard that Congress explicitly rejected with the Taft-Hartley amendments of 1947. The majority returned to the common-law agency test, as required by the United States Supreme Court. See NLRB v. United Insurance Co. of America, 390 U.S. 254 (1968).
In agreement with the D.C. Circuit, see FedEx Home Delivery v. NLRB, 563 F.3d 492 (D.C. Cir. 2009), the majority recognized that the Board has over time subtly shifted the emphasis of its independent-contractor analysis from control to entrepreneurial opportunity as a principal to qualitatively evaluate the significance of the common-law agency factors that form the test. The majority explained that this subtle shift in emphasis did not fundamentally alter the Board’s independent-contractor analysis; control and entrepreneurial opportunity are two sides of the same coin, as more of one means less of the other. The majority further explained that, properly understood, entrepreneurial opportunity is not a separate factor or an aspect of a separate factor, but instead is “a principle by which to evaluate the overall effect of the common-law factors on a putative contractor’s independence to pursue economic gain.” The majority specified that the Board is not required to mechanically apply the entrepreneurial opportunity principle to each common-law factor in every case, but that the Board will likely find independent-contractor status when, in light of the particular factual circumstances of the case, the common-law factors demonstrate that the workers are afforded significant entrepreneurial opportunity. Finally, consistent with the Supreme Court’s decision in United Insurance, the majority reiterated that when making independent-contractor determinations, the Board will consider all of the common-law factors in the total factual context of each case and treat no one factor (or the principle of entrepreneurial opportunity) as decisive.
Applying the common-law test to the specific facts here, the majority found that the franchisees’ ownership of the principal instrumentality of their work, the method of their compensation, and their significant control over their daily work schedules and working conditions provide the franchisees with significant entrepreneurial opportunity. The majority further found that because those factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, outweigh the factors supporting employee status, the franchisees are independent contractors.
Dissenting, Member McFerran disagreed with the majority’s decision to overrule FedEx, supra, 361 NLRB 610, and asserted that the FedEx Board did no more than permissibly refine the way that the Board would apply the common-law agency test, as the Board may consider factors beyond the non-exhaustive list of common-law factors. Further, Member McFerran argued that the majority’s treatment of entrepreneurial opportunity as a “sort of super-factor” is contrary to the common-law agency test and the Supreme Court’s decision in United Insurance because, if the common-law agency test has a core concept, it is demonstrably not entrepreneurial opportunity but rather control. Additionally, she argued that the majority’s treatment of entrepreneurial opportunity cannot be reconciled with the Board’s pre-FedEx precedent because the Board had not shifted its emphasis to entrepreneurial opportunity until the majority’s decision in the present case. Thus, even under the Board’s pre-FedEx precedent, Member McFerran would find that SuperShuttle failed to establish that the franchisees are independent contractors.
Petitioner—Amalgamated Transit Union Local 1338. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Schuff Steel (20-CA-204378; 367 NLRB No. 76) San Francisco, CA, January 25, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not unlawfully lay off an employee. The judge found that the General Counsel failed to prove that a factor motivating the Respondent to lay off the employee was animus based on his protected concerted activities. The judge further found that, even assuming arguendo the General Counsel proved as much, the Respondent demonstrated that it would have laid off the employee in the absence of those activities.
Charge filed by an individual. Administrative Law Judge Amita Baman Tracy issued her decision on September 18, 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
USC Verdugo Hills Hospital (31-RD-228771) Glendale, CA, January 23, 2019. The Board denied as moot the Petitioner and the Employer’s Requests for Review of the Regional Director’s Order Dismissing Petition. Petitioner—an individual. Union—Service Employees International Union-United Healthcare Workers-West. Members McFerran, Kaplan, and Emanuel participated.
Warner Bros. Television (31-RC-226460) Los Angeles, CA, January 23, 2019. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Acting Regional Director found the petitioned-for DOT Administrator/Specialists were not guards under Section 9(b)(3). Petitioner—International Brotherhood of Teamsters, Studio Transportation Drivers, Local 399. Members McFerran, Kaplan, and Emanuel participated.
C Cases
Shamrock Cartage, Inc. (09-CA-219396) Columbus, OH, January 22, 2019. No exceptions having been filed to the December 6, 2018 decision of Administrative Law Judge Andrew S. Gollin’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 Brotherhood of Teamsters, Local Union No. 413.
Windsor Redding Care Center, LLC (20-CA-070465, et al.) Redding, CA, January 24, 2019. Errata to November 2, 2018 Order Denying Motion for Reconsideration. Errata Amended Decision
Nolan Enterprises, Inc. d/b/a Centerfold Club (09-CA-220677) Columbus, OH, January 24, 2019. The Board denied the Respondent’s Motion for Summary Judgment, finding that the Respondent had 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. Charge filed by an individual. Members McFerran, Kaplan, and Emanuel participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
United Government Security Officers of America International and its Local 217 (04-CB-202803; JD-06-19) Philadelphia, PA. Administrative Law Judge Michael A. Rosas issued his decision on January 22, 2019. Charge filed by an individual. January 23, 2019 Errata to January 22, 2019 decision of Administrative Law Judge Michael A. Rosas. Errata Amended Decision
Betteroads Asphalt Corp., a/k/a Betteroads Asphalt, LLC (12-CA-183927 and 12-CA-187042; JD-05-19) St. Thomas, VI. Administrative Law Judge Christine E. Dibble issued her decision on January 22, 2019. Charges filed by Virgin Islands Workers Union.
Stein, Inc. (09-CA-214633 and 09-CB-214595; JD-09-19) Middletown, OH. Administrative Law Judge Andrew S. Gollin issued his decision on January 24, 2019. Charges filed by Truck Drivers, Chauffeurs and Helpers Local Union No. 100, affiliated with the International Brotherhood of Teamsters.
Stein, Inc. (09-CA-215131, 09-CA-219834 and 09-CB-215147; JD-08-19) Middletown, OH. Administrative Law Judge Andrew S. Gollin issued his decision on January 24, 2019. Charges filed by Laborers’ International Union of North America (LIUNA), Local 534.
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC and its Local 53G (06-CB-198329 and 06-CB-199021; JD-07-19) Charleroi, PA. Administrative Law Judge Thomas A. Randazzo issued his decision on January 25, 2019. Charges filed by World Kitchen, LLC.
Dallas Airmotive, Inc. (16-CA-192780; JD-10-19) Dallas, TX. Administrative Law Judge Sharon Levinson Steckler issued her decision on January 25, 2019. Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, Aeronautical Industrial District Lodge 776.
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