Summary of NLRB Decisions for Week of June 3 - 7, 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
Troutbrook Company, LLC d/b/a Brooklyn 181 Hospitality, LLC (29-CA-232891; 367 NLRB No. 139) Brooklyn, NY, June 3, 3019.
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.
Charge filed by New York Hotel and Motel Trades Council, AFL-CIO. Chairman Ring and Members McFerran and Kaplan participated.
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Local 307, National Postal Mailhandlers Union (NPMHU) AFL-CIO, a division of LIUNA (United States Postal Service) (07-CB-218938; 367 NLRB No. 144) Detroit, MI, June 4, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. Finding no merit in the Respondent’s assertion that it was not properly served with the complaint, the Board found that the Respondent breached the duty of fair representation by unreasonably delaying, for arbitrary reasons, the processing of class action grievance settlements regarding the crossing of crafts at the Employer’s facility.
Charge filed by an individual. Members McFerran, Kaplan, and Emanuel participated.
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United States Postal Service (05-CA-180590; 367 NLRB No. 142) Alexandria, VA, June 4, 2019.
In a Supplemental Decision and Order, following remand to the Administrative Law Judge, the Board adopted the judge’s conclusion, in the absence of exceptions, that the Respondent violated Section 8(a)(3) and (1) by discriminatorily giving an employee a performance evaluation to retaliate for his recent grievance and arbitration against the Respondent. The Board reversed the judge to additionally find that the Respondent violated Section 8(a)(3) and (1) by discharging the employee for his conduct at the evaluation meeting. The Respondent asserted that it discharged the employee because his conduct prevented it from completing its evaluation of his work performance. However, the Respondent initiated the evaluation in retaliation for the employee’s prior grievance and arbitration. Although the employee’s argumentative conduct at the meeting prevented completion of the evaluation, he would not have been at that meeting but for the Respondent’s unlawful actions. The Board concluded that the Respondent could not carry its burden, under Wright Line, to show that it would have discharged the employee even in the absence of his protected activity.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his Decision After Remand on September 14, 2018. Members McFerran, Kaplan, and Emanuel participated.
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G4S Secure Solutions (USA) Inc., a division of G4S Regulated Security Solutions, Inc. f/k/a The Wackenhut Corporation (12-CA-026644 and 12-CA-026811; 368 NLRB No. 1) Turkey Point, FL, June 5, 2019.
The Board adopted the Administrative Law Judge’s finding that the Respondent owes an unlawfully terminated employee backpay, plus interest and excess taxes. The Board revised the amount of net backpay determined by the judge so that the employee’s interim earnings for the first quarter of 2011 were consistent with a State of Florida Department of Revenue report. The Board also revised the amount of net backpay to account for an uncontested $10 calculation error by the judge. Moreover, the Board observed that, after the underlying unfair labor practice decision issued, the Board revised its report-filing remedy to require employers to file with the Regional Director (rather than the Social Security Administration) allocating backpay to the appropriate calendar years (rather than quarters).
Charges filed by individuals. Administrative Law Judge Robert A. Ringler issued his decision on December 20, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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AIM Aerospace Sumner, Inc. (19-CA-203455 and 19-CA-203586; 367 NLRB No. 148) Sumner, WA, June 6, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by promoting an employee to reward her for her participation in the decertification petition process. A Board majority (Chairman Ring and Member Emanuel) further adopted the judge’s finding that the Respondent did not violate Section 8(a)(5) and (1) by withdrawing recognition from the Union subsequent to the successful decertification petition. In so doing, the Board agreed with the judge’s application of Master Slack, 271 NLRB 78 (1984), noting the lack of evidence that the Respondent’s promotion of the employee “directly assisted the decertification effort.”
Dissenting in part, Member McFerran found that the Respondent’s withdrawal of recognition from the Union violated Section 8(a)(5) and (1). Member McFerran disagreed with the majority’s Master Slack analysis, asserting that there was a “straight line” between the Employer’s unlawful promotion of the employee and the successful decertification petition, relying on SFO Good-Nite Inn, LLC, 357 NLRB 79 (2011). In her view, the Respondent tainted the decertification petition by unlawfully rewarding its principal employee backer for gathering signatures of co-workers, which encouraged and propelled the petition. As a result, the Respondent’s withdrawal of recognition from the Union, as well as its subsequent benefit and wage increases, should have been found unlawful.
Charges filed by International Association of Machinists, District 751. Administrative Law Judge Eleanor Laws issued her decision on May 16, 2018. Chairman Ring and Members McFerran and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Davidson Hotel Company, LLC (Chicago Marriott at Medical District/UIC) (13-RC-217485) Chicago, IL, June 5, 2019. The Board denied the Employer’s Requests for Review of the Regional Director’s Decision and Direction of Election and his Supplemental Decision and Certification of Representative as they raised no substantial issues warranting review. Member Emanuel stated that he would grant review, finding that the Employer had raised a substantial issue as to the appropriateness of the petitioned-for separate housekeeping unit. He would find the only appropriate unit, consistent with the Board’s decision in PCC Structurals, Inc., 365 NLRB No. 160 (2017), to be a combined unit of housekeepers, food-and-beverage employees, and front desk employees. Petitioner—UNITE HERE, Local 1. Members McFerran, Kaplan, and Emanuel participated.
Davidson Hotel Company, LLC (Chicago Marriott at Medical District/UIC) (13-RC-217487) Chicago, IL, June 5, 2019. The Board denied the Employer’s Requests for Review of the Regional Director’s Decision and Direction of Election and his Supplemental Decision and Certification of Representative as they raised no substantial issues warranting review. Member Emanuel stated that he would grant review, finding that the Employer had raised a substantial issue as to the appropriateness of the petitioned-for separate food-and-beverage unit. He would find the only appropriate unit, consistent with the Board’s decision in PCC Structurals, Inc., 365 NLRB No. 160 (2017), to be a combined unit of housekeepers, food-and-beverage employees, and front desk employees. Petitioner—UNITE HERE, Local 1. Members McFerran, Kaplan, and Emanuel participated.
C Cases
International Alliance of Theatrical Stage Employees, Local 16 (Various Employers) (20-CB-213058, et al.) Schiller Park, IL and San Francisco, CA, June 4, 2019. The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order. The judge had remanded proceedings to the Regional Director to secure compliance with an informal settlement agreement before he would entertain a motion to dismiss the complaint. The Board explained that the judge acted consistently with the terms of the informal settlement, which the Respondent signed, and the Board’s Casehandling Manual. Charges filed by an individual. Chairman Ring and Members McFerran and Emanuel participated.
Gowanus Staffing, Inc. (29-CA-208094) Brooklyn, NY, June 7, 2019. No exceptions having been filed to the April 26, 2019 supplemental decision of Administrative Law Judge Benjamin W. Green’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 an individual.
Capitol Transportation, Inc. (12-CA-180495, et al.) San Juan, PR, June 7, 2019. The Board authorized the June 6, 2019 withdrawal of exceptions to the April 30, 2019 decision of Administrative Law Judge Michael A. Rosas and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charges filed by individuals and Union de Tronquistas de Puerto Rico, Local 901, International Brotherhood of Teamsters.
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Appellate Court Decisions
DirectSat USA, LLC, Board Case No. 13-CA-176621 (reported at 366 NLRB No. 40) (D.C. Cir. decided June 7, 2019).
In a published opinion, the Court enforced the Board’s order issued against this business in South Holland, Illinois, that installs and services satellite television equipment for DirecTV pursuant to a home service provider subcontracting agreement. In 2014, its technicians voted to be represented by International Brotherhood of Electrical Workers, Local Union 21, AFL-CIO. During negotiations for a first contract, the issue arose whether new services offered by DirectSat would be deemed bargaining-unit work. The Employer proposed that new work not provided for under its subcontracting agreement would be non-unit work. In response, the Union requested a copy of the agreement. The Employer provided only redacted excerpts and repeatedly refused to provide the full agreement.
The General Counsel issued a complaint alleging that the Employer’s refusal to provide the full, unredacted subcontracting agreement to the Union violated Section 8(a)(5) and (1). Before the Administrative Law Judge, the General Counsel proceeded on two theories: first, that DirectSat and DirecTV were joint employers for purposes of collective bargaining, and second, that the Union needed the agreement to verify the nature of the two entities’ relationship. The judge rejected both theories, instead finding that the Union was entitled to the full, unredacted agreement to verify the Employer’s claim that it had produced, in redacted form, all information relevant to the scope-of-work issues. The judge recognized that the General Counsel had not advanced that theory, but found that the issue was presented by the stipulated record and that making the finding would not violate the Employer’s due-process rights.
On review, the Board (Members Pearce, McFerran, and Emanuel) agreed with the judge that the Employer’s due-process rights had not been violated by deciding the case on a legal theory not advanced by the General Counsel. On the merits, the Board found that, by proposing that the subcontracting agreement define the scope of unit work, the Employer rendered the entire document relevant to the parties’ negotiations and was required to produce it. After the Board’s decision issued, DirecTV filed a Motion to Intervene, to reopen the record, and for Reconsideration of the Board’s decision, arguing that it had not previously had a chance to defend its interest in maintaining the confidentiality of the subcontracting agreement. The Board (Chairman Ring and Members Pearce and McFerran) issued an order (366 NLRB No. 141) denying the motion as untimely, and also finding that, even if the motion had been timely, DirecTV had failed to establish that it was a necessary party to the case.
Before the Court, the Employer filed a Petition for Review of the Board’s decision, and DirecTV filed a Petition for Review of the Board’s denial of its Motion to Intervene. Regarding the motion, the Court held that the Board acted well within its discretion in finding it untimely, particularly given that DirecTV filed it “long after it knew or reasonably should have known that an order requiring disclosure of the agreement was a possibility.” On the merits, the Court agreed with the Board and stated that the Union “could not respond to the proposal in a manner consistent with its duty of fair representation without knowing what the agreement said as a whole.” Finally, the Court rejected the Employer’s assertion of a due-process violation. The Court explained that the complaint alleged that the Employer unlawfully refused to provide the Union with the full, unredacted subcontracting agreement, and that the substantive portions of the Employer’s brief to the Administrative Law Judge addressed whether its bargaining proposal rendered the full agreement relevant. Therefore, the Court concluded, the issue “was fully and fairly litigated, and due process requires no more.”
The Court’s opinion is here.
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Administrative Law Judge Decisions
Entergy Nuclear Operations, Inc. (01-CA-153956, et al.; JD-48-19) Plymouth, MA. Administrative Law Judge Paul Bogas issued his decision on June 4, 2019. Charges filed by United Government Security Officers of America, Local 25.
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