Summary of NLRB Decisions for Week of July 23 - 27, 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
Constellium Rolled Products Ravenswood, LLC (09-CA-116410; 366 NLRB No. 131) Ravenswood, WV, July 24, 2018.
The Board unanimously adopted the Administrative Law Judge’s conclusion that deferral to the arbitrator’s award was inappropriate because the arbitrator’s remedy was clearly repugnant to the Act. Contrary to the judge, the Board majority (Members Pearce and McFerran) found that an employee who wrote on the Respondent’s overtime signup sheets to protest the unilateral implementation of a new overtime policy was engaged in a continuing course of protected activity. Additionally, the Board majority found that because the employee did not lose protection of the Act under either the four-factor Atlantic Steel test or the totality-of-the-circumstances test, the Respondent violated Section 8(a)(3) and (1) when it suspended and terminated the employee for writing on the signup sheets. Member Emanuel, dissenting, would have found that the employee’s conduct—defacing the overtime signup sheets—was unprotected by the Act, and would have adopted the judge’s conclusion that the employee’s discharge was lawful.
Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 5668. Administrative Law Judge Keltner W. Locke issued his decision on September 29, 2016. Members Pearce, McFerran, and Emanuel participated.
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Veritas Health Services, Inc. d/b/a Chino Valley Medical Center (31-CA-029713, et al.; 366 NLRB No. 135) Chino, CA, July 24, 2018.
Upon remand from the Ninth Circuit Court, the Board ordered rescission of the Respondent’s media communications policy to the extent that it prohibits employees from speaking to the media “on behalf of … its employees” and requires employees to direct members of the media to management. The Board found that the rescission of the policy more fully remedies a finding in the underlying decision that the Respondent unlawfully prohibited employees from speaking to the media. The Board expressly stated that it did not reach the Respondent’s argument that the written policy is lawful under The Boeing Co., 365 NLRB No. 154 (2017).
Charges filed by United Nurses Associations of California/Union of Healthcare Professionals, NUHHCE, AFSCME, AFL-CIO. Administrative Law Judge John J. McCarrick issued his decision on March 3, 2015. Members Pearce, McFerran, and Kaplan participated.
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Smith’s Food & Drug Centers, Inc. d/b/a Fry’s Food Stores (28-CA-022836, et al.; 366 NLRB No. 138) Phoenix, AZ, July 24, 2018.
Upon remand from the D.C. Circuit Court, the Board reaffirmed its original finding that the Union and Employer Respondents did not violate the Act by refusing to honor employees’ attempted revocations of dues-checkoff authorizations following expiration of the collective-bargaining agreement. The Court remanded this case in the belief that the Administrative Law Judge’s reliance on precedent permitting employees’ checkoff authorizations to automatically renew unless revoked during one of two distinct window periods was inconsistent with his apparent finding that the Union’s authorization agreement allowed certain employees only one of those window periods. The Court imputed this inconsistency to the Board. In answer to the Court’s concern, the Board found that, due to the General Counsel’s explicit concession during the hearing that the authorization agreement was facially valid and did not prevent any employees from revoking during either window period, the judge had no basis to construe it differently. Thus, the Board explicitly disavowed the judge’s interpretation of the agreement. The Board also found that the Union did not otherwise improperly apply the authorization agreement to infringe on employees’ revocation rights.
Charges filed by United Food and Commercial Workers Union Local 99 and individuals. Administrative Law Judge William G. Kocol issued his decision on May 3, 2011. Members Pearce, McFerran, and Kaplan participated.
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Lou’s Transport, Inc. and T.K.M.S., Inc. (07-CA-102517; 366 NLRB No. 140) Pontiac, MI, July 24, 2018.
In this compliance proceeding, the Board adopted the Administrative Law Judge’s supplemental decision directing the Respondent Employer to make whole a discriminatee by paying him $49,817, plus interest. The compliance case arises from an unfair labor practice proceeding where the judge found that the Respondent violated Section 8(a)(1) when it discharged the employee for engaging in protected concerted activity (protesting work safety conditions).
Charge filed by an individual. Administrative Law Judge Kimberly R. Sorg-Graves issued her supplemental decision on January 25, 2018. Chairman Ring and Members McFerran and Emanuel participated.
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Management & Training Corporation (04-CA-095456, et al.; 366 NLRB No. 134) Drums, PA, July 25, 2018.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) by failing to provide the Union with a copy of its Job Corp contract with the Department of Labor during bargaining and Section 8(a)(1) by threatening that bargaining would change because the Union filed unfair labor practice charges. The Board unanimously reversed the judge and found that the Respondent violated Section 8(a)(5) by refusing to provide other requested information, including information about nonunit employees, and by delaying its provision of information. A Board majority (Members McFerran and Emanuel) reversed the judge and found that the Respondent did not engage in unlawful regressive bargaining. Member Pearce would have adopted the judge’s finding that the Respondent carried out its threat that bargaining would change by presenting proposals calculated to frustrate agreement. A different majority (Members Pearce and McFerran) also reversed the judge and found that the Respondent violated Section 8(a)(1) by threatening an employee, who was in the process of grieving disciplinary counseling, with further discipline if she did not either provide a written statement about the incident that gave rise to the counseling or withdraw the grievance. Member Emanuel would have found that the contract entitled the Respondent to compel a statement from the employee.
Charges filed by the Service Employees International Union Local 668. Administrative Law Judge Arthur J. Amchan issued his decision on January 30, 2014. Members Pearce, McFerran, and Emanuel participated.
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Paragon Systems, Inc. (08-CA-184044; 366 NLRB No. 139) Cleveland, OH, July 25, 2018.
The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of an informal settlement agreement. The Board found that the Respondent failed to comply with the terms of the settlement agreement and, accordingly, deemed all of the allegations in the reissued complaint to be true. The Board ordered the Respondent to cease and desist from maintaining the overbroad work rules, to rescind those rules, and to revise the employee handbook to delete the unlawful rules.
Charge filed by an individual. Chairman Ring and Members McFerran and Kaplan participated.
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DirectSat USA, LLC (13-CA-176621; 366 NLRB No. 141) South Holland, IL, July 25, 2018.
The Board denied the Motion to Intervene filed by DirecTV, and dismissed DirecTV’s Motion to Reopen the Record and Motion for Reconsideration as moot. DirecTV had moved to intervene and for reconsideration of the Board’s decision, reported at 366 NLRB No. 40, which ordered the Respondent to furnish an unredacted copy of its subcontracting agreement with DirecTV to the Union. DirecTV argued that it should be allowed to intervene in order to defend its confidentiality interest in the agreement. The Board found the Motion to Intervene untimely because DirecTV had notice of the proceeding months before the case was submitted to the Administrative Law Judge, yet it waited to file its motion until after the Board issued its decision, over 8 months after the judge’s ruling. Alternately, the Board found that DirecTV failed to establish that it was a necessary party to the case because the Respondent’s confidentiality interest in the agreement was commensurate with DirecTV’s, and because the Respondent was fully capable of defending DirecTV’s interests before the Board. Having denied the Motion to Intervene, the Board found that DirecTV’s Motion to Reopen the Record and Motion for Reconsideration were moot.
Charge filed by International Brotherhood of Electrical Workers, Local Union 21, AFL-CIO. Administrative Law Judge Charles J. Muhl issued his decision on July 20, 2017. Chairman Ring, Members Pearce and McFerran participated.
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Rigid Pak Corp. (12-CA-152811; 366 NLRB No. 137) Juncos, PR, July 25, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to bargain with the Union over its decision to transfer the production of its injection-molded products to another company and by not bargaining in good faith over the effects of that decision or the effects of the decision to close its blow-molding division. The Board reversed the judge and found that the Respondent did not violate the Act by failing to bargain with the Union over its decision to close its blow-molding division.
Charge filed by Union de Tronquistas de Puerto Rico, Local 901, International Brotherhood of Teamsters. Administrative Law Judge Ira Sandron issued his decision on June 8, 2016. Members Pearce, McFerran, and Kaplan participated.
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American Eagle Protective Services Corporation and Paragon Systems, Inc. (05-CA-126739; 366 NLRB No. 144) Washington, DC, July 27, 2018.
In this compliance proceeding, the Board (Members Pearce and McFerran; Member Kaplan, dissenting) granted the General Counsel’s Motion for Summary Judgment on the basis that Respondents failed to timely raise affirmative defenses for their failure to comply with the make-whole provision of the Board’s underlying Order. Because the Respondents did not raise these arguments in the underlying unfair labor practice proceeding, the Board found that they were barred from raising them at the compliance stage of the proceeding. Although unnecessary given their untimeliness, the Board also rejected the Respondents’ defenses on the merits. In doing so, the Board noted that the Board has rejected the Respondents’ windfall defense in similar circumstances. Dissenting, Member Kaplan noted that the Board should guard against potential windfalls to employees, it has an obligation to harmonize the Act with other Federal statutes like the Internal Revenue Code, and its remedies should restore employees to the situation that they would have obtained but for the Respondents’ unlawful conduct.
Charge filed by United Government Security Officers of America, Local 034, a/w United Government Security Officers of America International Union. Members Pearce, McFerran, and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
RadNet Management, Inc. d/b/a San Fernando Valley Interventional Radiology and Imaging Center (31-RM-209388) Encino, CA, July 25, 2018. The Board denied the Employer’s Request for Review of the Regional Director’s January 12, 2018 Partial Decision on Objections and March 14, 2018 Decision and Certification of Representative as it raised no substantial issues warranting review. Union—National Union of Healthcare Workers. Chairman Ring and Members Pearce and Kaplan participated.
NP Lake Mead LLC d/b/a Fiesta Henderson Casino Hotel (28-RC-218426) Las Vegas, NV, July 25, 2018. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and Certification as it raised no substantial issues warranting review. The Regional Director found that the technicians who maintained gaming machines were not guards under Section 9(b)(3) and certified the petitioned-for unit. Petitioner — International Union of Operating Engineers Local 501, AFL-CIO. Chairman Ring and Members McFerran and Emanuel participated.
RadNet Management, Inc. d/b/a San Fernando Valley Advanced Imaging Center (31-RM-209424) Ponarama City, CA, July 26, 2018. The Board denied the Employer’s Request for Review of the Regional Director’s January 12, 2018 Partial Decision on Objections and March 14, 2018 Decision and Certification of Representative as it raised no substantial issues warranting review. Union—National Union of Healthcare Workers. Chairman Ring and Members Pearce and Kaplan participated.
C Cases
Gubagoo, Inc. (28-CA-203713) Phoenix, AZ, July 23, 2018. No exceptions having been filed to the June 8, 2018 decision of Administrative Law Judge Eleanor Laws’ finding that the Respondent had engaged in certain unfair labor practices, the Board ordered that the Respondent take the action set forth in the judge’s recommended Order. Charge filed by an individual.
Apex Linen Service Inc. (28-CA-192349, et al.) Las Vegas, NV, July 23, 2018. No exceptions having been filed to the June 6, 2018 decision of Administrative Law Judge Ariel L. Sotolongo’s finding that the Respondent had engaged in certain unfair labor practices, the Board ordered that the Respondent take the action set forth in the judge’s recommended Order. Charges filed by International Union of Operating Engineers Local 501, AFL-CIO, and an individual.
International Association of Theatrical Stage Employees [IATSE], Local 16 (20-CB-213058, et al.) San Francisco, CA, July 25, 2018. The Board denied the Union’s Motion to Quash an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Union failed to establish any other legal basis for revoking the subpoena. The Board evaluated the subpoena in light of the Region’s clarifications and limitations. Charges filed by an individual. Chairman Ring and Members McFerran and Emanuel participated.
United States Postal Service (01-CA-176465) Boston, MA, July 27, 2018. The Board rejected a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel which contained a provision allowing the Respondent to pursue modification or dissolution of any court judgment enforcing the Board’s Order upon establishing substantial compliance with the judgment for five years. The Board remanded the proceeding to the Regional Director for further processing, without prejudice to further settlement negotiations consistent with its Order. The complaint had alleged Section 8(a)(5) and (1) violations based on the Respondent’s refusal to provide and delay in providing relevant information. Charge filed by American Postal Workers Union, AFL-CIO, Boston Metro Area Local 100. Members McFerran, Kaplan, and Emanuel participated.
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Appellate Court Decisions
Tschiggfrie Properties, LTD, Board Case No. 25-CA-161304 (reported at 365 NLRB No. 34) (8th Cir. decided July 24, 2018).
In a published opinion, the Court set aside the Board’s findings of an unlawful discharge and two interrogations, while enforcing the portion of the Board’s order remedying an uncontested finding of an unlawful warning. The Court remanded the discharge violation for reconsideration in light of its opinion, which had applied Nichols Aluminum, LLC v. NLRB, 797 F.3d 548 (8th Cir. 2015). In setting aside the Board’s finding that the Employer had unlawfully questioned an employee without providing the safeguards required by Johnnie’s Poultry Co., 146 NLRB 770 (1964), enforcement denied, 344 F.2d 617 (8th Cir. 1965), the Court noted that it had never endorsed the Board’s Johnnie’s Poultry approach, and here declined “to adopt [its] per se rule” that safeguards must be given. The Court further explained that even under a totality-of-the-circumstances analysis, it would not find the interviews unlawful because the questions asked were mostly about whether the discharged employee’s alleged misconduct and not about union activity.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Rhode Island PBS Foundation (01-CA-204520; JD-47-18) Providence, RI. Administrative Law Judge David I. Goldman issued his decision on July 23, 2018. Charge filed by International Brotherhood of Electrical Workers, Local 1228.
C2G Ltd Co. (19-CA-163444 and 19-CA-169910; JD-(SF)-18-18) Fairbanks, AK. Administrative Law Judge Eleanor Laws issued her decision on July 26, 2018. Charges filed by General Teamsters Local 959, State of Alaska, a/w the International Brotherhood of Teamsters.
Everport Terminal Services, Inc. (32-CA-172286 and 32-CB-172414; JD-48-18) Oakland, CA. Administrative Law Judge Sharon Levinson Steckler issued her decision on July 27, 2018. Charges filed by International Association of Machinists and Aerospace Workers, District Lodge 190, Local Lodge 1546, AFL-CIO, and International Association of Machinists and Aerospace Workers, District Lodge 190, Local Lodge 1414, AFL-CIO.
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