Summary of NLRB Decisions for Week of June 17 - 21, 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
Oberthur Technologies of America Corporation (04-CA-128098, et al.; 368 NLRB No. 5) Exton, PA, June 17, 2019.
The Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting in part) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to bargain over the discharge of four employees where it exercised some discretion relative to the discharges but applied its established disciplinary standards. The majority held that the Respondent had no obligation to provide notice and an opportunity to bargain before discharging the employees, and rejected the contention that it had an obligation to provide notice and an opportunity to bargain after the discharges. While the Respondent would have an obligation to engage in after-the-fact bargaining over the discharges if the Union so requested, the majority found no valid request by the Union and rejected the contention that the failure to make such a request was excused because it would have been futile.
Dissenting in part, Member McFerran found that the Union did make a valid demand for bargaining over discipline, and that, even if it had not, the lack of a demand would have been excusable as a futile act because the Respondent was refusing to bargain with the Union at the time. Member McFerran further concluded that the Respondent was required to notify the Union of the discharges to give the Union an opportunity to bargain and unlawfully failed to do so.
Charges filed by Local 14M, District Council 9, Graphic Communications Conference/International Brotherhood of Teamsters. Administrative Law Judge Arthur J. Amchan issued his decision on June 16, 2016. Chairman Ring and Members McFerran and Kaplan participated.
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Hawaiian Dredging Construction Company, Inc. (37-CA-008316; 368 NLRB No. 7) Honolulu, HI, June 17, 2019.
On remand from the D. C. Circuit Court, the Board (Chairman Ring and Member Emanuel; Member McFerran, dissenting) dismissed the complaint allegation that the Respondent violated Section 8(a)(3) and (1) by discharging all welders represented by the Charging Party upon the expiration of its Section 8(f) agreement with the Charging Party. The majority found that the discharges were consistent with the Respondent’s longstanding practice of only performing craft work under a collective-bargaining agreement. The majority therefore concluded that the Respondent established a legitimate and substantial business justification for the discharges under Great Dane, and, alternatively, proved under Wright Line that it would have discharged the employees in any event based on its longstanding practice. Dissenting, Member McFerran would have found that the Respondent’s discharge of its incumbent employees, upon the expiration of the Section 8(f) agreement, was “inherently destructive” of the employees’ statutory rights and thus unlawful.
Charge filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 627. Administrative Law Judge Eleanor Laws issued her decision on February 4, 2013. Chairman Ring and Members McFerran and Emanuel participated.
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Schwarz Partners Packaging, LLC d/b/a MaxPak (12-CA-109207 and 12-RC-073852; 368 NLRB No. 8) Lakeland, FL, June 17, 2019.
On remand from the D.C. Circuit Court at the Board’s request pursuant to NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board considered de novo the decision of the constitutionally infirm Board finding that the Respondent engaged in objectionable conduct in the first election and directing a second election if, as occurred, the first tally did not show a majority for the Union. The Board found merit in one of the Union’s objections, but because the second election resulted from a decision of the infirm Board, the Board also set aside that election and ordered a third election. Furthermore, the Board vacated the Decision and Order in the related test-of-certification proceeding, reported at 362 NLRB 1131 (2015), which granted the General Counsel’s Motion for Summary Judgment and found, based on the Union’s certification, that the Respondent unlawfully withdrew recognition from and failed and refused to bargain with the Union. Finally, in view of the invalidity of the certification, the Board dismissed the unfair labor practice complaint.
Charge and Petition filed by United Steelworkers International Union. Members McFerran, Kaplan, and Emanuel participated.
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Fred Meyer Stores, Inc. ( 36-CA-010555; 368 NLRB No. 6) Portland, OR, June 18, 2019.
On remand from the D.C. Circuit Court, the Board found that the Respondent did not violate Section 8(a)(5) and (1) by limiting union representatives’ contractual right to visit with employees on the store floor and telling them they must limit their conversations to the breakroom. The Board reasoned that the Union departed from the contract dramatically and unreasonably by sending eight representatives to the store, rather than the customary one or two, and in doing so lost the protection of the Act.
Charge filed by United Food and Commercial Workers Union, Local No. 555, affiliated with United Food and Commercial Workers International Union. Administrative Law Judge Clifford H. Anderson issued his decision on December 8, 2010. Chairman Ring and Members Kaplan and Emanuel participated.
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International Brotherhood of Electrical Workers Local 47 (Titan Services, Inc.) (31-CD-223008 and 31-CD-222858; 368 NLRB No. 11) Los Angeles, CA, June 18, 2019.
In this Section 10(k) jurisdictional dispute proceeding, the Board found that International Brotherhood of Electrical Workers, Local 47, and International Union of Operating Engineers, Local 12, AFL-CIO, claimed the operation of the hydraulic boom truck by the Employers when it is hoisting steel, hollow electrical poles in the Crenshaw/LAX Transit Corridor Project in Los Angeles, California; that there was reasonable cause to believe that Section 8(b)(4)(D) had been violated by the Electrical Workers’ threat to take immediate economic action; and that there was no voluntary method for adjusting the dispute. The Board awarded the work in dispute to employees represented by the International Brotherhood of Electrical Workers Local 47, based on the factors of collective-bargaining agreements, employer preference, current assignment and past practice, area and industry practice, and economy and efficiency of operations.
Charges filed by Titan Services, Inc. and L.K. Comstock National Transit, Inc. Chairman Ring and Members Kaplan and Emanuel participated.
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Prime Healthcare Paradise Valley, LLC (21-CA-133781 and 21-CA-133783; 368 NLRB No. 10) National City, CA, June 18, 2019.
On remand from the D.C. Circuit Court, the Board found that the Respondent’s Mediation and Arbitration Agreement restricts access to the Board and its processes and violates Section 8(a)(1) under the analytical framework set forth in The Boeing Company, 365 NLRB No. 154 (2017). The Board held that agreements that restrict employees’ access to the Board and its processes violate Section 8(a)(1) and set forth a rationale for that holding based in the Act and Supreme Court precedent. The Board then applied the Boeing balancing standard to the Respondent’s Agreement and found the nature and extent of its interference with Section 7 rights to be profound and that no legitimate employer interests justified or could justify a restriction on Board charge filing. Thus, the Board placed provisions that make arbitration the exclusive forum for the resolution of all claims in Boeing Category 3. The Board also addressed and disposed of certain arguments advanced by the Respondent, including its contention that the case was mooted by its non-Board settlement with one of the charging parties and that an order requiring the Respondent to rescind the Agreement is “grossly overbroad.”
Charges filed by individuals. Administrative Law Judge William Nelson Cates issued his decision on May 8, 2015. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Transdev Services, Inc. (05-CA-195364; 368 NLRB No. 12) Hyattsville, MD, June 19, 2019.
In this test-of-certification case, the Board granted the General Counsel’s Motion for Summary Judgment regarding all representation issues, which were or could have been, litigated in the previous representation proceeding. However, the Board found that the Respondent’s denial that it received any of the Union’s requests for bargaining, which were sent by certified mail and by email, raised a genuine issue of material fact requiring a hearing limited to that issue. Charge filed by Amalgamated Transit Union Local 689, associated with Amalgamated Transit Union, AFL-CIO. Members McFerran, Kaplan, and Emanuel participated.
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Hobby Lobby Stores, Inc. (20-CA-139745; 367 NLRB No. 78) Sacramento, CA, June 19, 2019. Errata to January 2, 2019 Supplemental Decision, Order, and Notice to Show Cause. Errata. Amended Supplemental Decision.
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E. I. Dupont de Nemours and Company (05-CA-033461; 367 NLRB No. 145) Richmond, VA, June 21, 2019.
A Board majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by making certain unilateral changes to companywide dental and medical retirement benefit plans (the changes limited these retirement benefit plan coverages to employees hired before January 1, 2007 and their covered dependents). In so doing, the majority, applying an “amalgam” of factors analysis, as reflected in Omaha World-Herald, 357 NLRB 1870 (2011) and related cases, found that the parties’ agreements, bargaining history, and past practice, taken together, made clear that the Respondent was not obligated to bargain with the Union prior to making these changes because the Union had clearly and unmistakably waived its right to bargain over them. The majority therefore dismissed the complaint.
Dissenting, Member McFerran argued that the majority’s finding is not supported by substantial evidence, at least applying the stringent clear and unmistakable waiver standard as the Board has traditionally understood it. In her view, although the Omaha World-Herald Board endorsed the notion that an amalgam of factors may establish waiver in a particular case, the Omaha World-Herald Board also emphasized that it was not adopting or endorsing either a dilution or abandonment of the stringent clear and unmistakable waiver standard. Member McFerran further argued that the sort of amalgam of factors cited in Omaha World-Herald does not support a waiver finding here.
Charge filed by Ampthill Rayon Workers, Inc., Local 992, International Brotherhood of DuPont Workers. Administrative Law Judge Michael A. Rosas issued his decision on August 22, 2011. Chairman Ring and Members McFerran and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Dycora Transitional Health-Clovis LLC (32-RD-213115) Clovis, CA, June 19, 2019. The Board denied the Employer’s Request for Review of the Regional Director’s dismissal of the petition as it raised no substantial issues warranting review. Petitioner—an Individual. Union—Service Employees International Union. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Spectrum Juvenile Justice Services (07-CA-199731 and 07-CA-208944) Highland Park, MI, June 18, 2019. 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 International Union, Security, Police and Fire Professionals of America (SPFPA) and Local 120, SPFPA. Members McFerran, Kaplan, and Emanuel participated.
KLB Industries, Inc., d/b/a National Extrusion & Manufacturing Company (08-CA-037672 and 08-CA-037835) Bellefontaine, OH, June 19, 2019. In this case alleging Section 8(a)(5), (3), and (1) violations, the Board approved a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charges filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. Chairman Ring and Members 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
ADT, LLC, d/b/a ADT Security Services (03-CA-230714 and 03-CA-234585; JD-51-19) Orem, UT. Administrative Law Judge Arthur J. Amchan issued his decision on June 17, 2019. Charges filed by International Brotherhood of Electrical Workers, Local Union 43.
International Alliance of Theatrical Stage Employees (IATSE), Local 127 (The Texas Ballet Theatre) (16-CB-219221 and 16-CB-226852; JD-50-19) Dallas, TX. Administrative Law Judge Keltner W. Locke issued his decision on June 18, 2019. Charges filed by an individual.
Alle Processing Corp. d/b/a Meal Mart (29-CA-213963; JD(NY)-10-19) Brooklyn, NY. Administrative Law Judge Lauren Esposito issued her decision on June 19, 2019. Charge filed by an individual.
DH Long Point Management LLC (31-CA-226377; JD(SF)-18-19) Rancho Palos Verdes, CA. Administrative Law Judge Jeffrey D. Wedekind issued his decision on June 21, 2019. Charge filed by UNITE HERE Local 11.
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