Summary of NLRB Decisions for Week of March 11 - 15, 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
Stericycle, Inc. (04-CA-186804 and 04-CA-196831; 367 NLRB No. 106) Southampton and Morgantown, PA, March 11, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by: refusing to provide the Union with requested information related to two employment policies; unilaterally changing working conditions by requiring incumbent unit employees to sign a form authorizing investigative background checks; and refusing to bargain over that change.
Charges filed by Teamsters Local 628. Administrative Law Judge Jeffrey P. Gardner issued his decision on April 2, 2018. Chairman Ring and Members McFerran, and Emanuel participated.
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Audio Visual Services Group, Inc., d/b/a PSAV Presentation Services (19-CA-186007 and 19-CA-192068; 367 NLRB No. 103) Kent, WA, March 12, 2019.
The Board unanimously reversed the Administrative Law Judge and dismissed the allegation that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide general financial information requested by the Union because the Respondent effectively retracted its claim of inability to pay the Union’s wage proposal. However, the Board unanimously affirmed the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide specific financial information requested by the Union because the Union needed that information to assess claims made by the Respondent during bargaining. The majority (Chairman Ring and Member Emanuel; Member McFerran, dissenting) reversed the judge and dismissed the allegation that the Respondent violated Section 8(a)(5) and (1) by failing to bargain in good faith.
Charges filed by International Alliance of Theatrical Stage Employees, Local 15. Administrative Law Judge Gerald M. Etchingham issued his decision on April 6, 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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases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
Pets’ RX, Inc. d/b/a VCA Northwest Veterinary Specialists (19-RC-221706) Clackamas, OR, March 14, 2019. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order Resolving Challenged Ballots as it raised no substantial issues warranting review. Petitioner—International Longshore and Warehouse Union, Local 5. Chairman Ring and Members McFerran and Kaplan participated.
C Cases
Charles Schwab & Co., Inc. (27-CA-184730) Lone Tree, CO, March 14, 2019. In response to the Board’s Notice to Show Cause why this case should not be remanded for further consideration under The Boeing Co., 365 NLRB No. 154 (2017), the General Counsel filed a response requesting that the Board dismiss the case rather than remand it to the Administrative Law Judge. The Respondent joined the General Counsel’s request. Accordingly, the Board dismissed the proceedings in this case. Charge filed by an individual.
HBC Management Services, Inc. (05-CA-219166) Washington, DC, March 15, 2019. No exceptions having been filed to the February 1, 2019 decision of Administrative Law Judge Michael A. Rosas’ 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 National Union, United Security & Police Officers of America.
United States Postal Service (16-CA-189702 and 16-CA-191290) Houston, TX, March 15, 2019. No exceptions having been filed to the February 1, 2019 decision of Administrative Law Judge Robert A. Ringler’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. Charges filed by an individual.
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC and its Local 53G (World Kitchen, LLC) (06-CB-198329 and 06-CB-199021) Charleroi, PA, March 15, 2019. No exceptions having been filed to the January 25, 2019 decision of Administrative Law Judge Thomas M. Randazzo’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. Charges filed by World Kitchen, LLC.
United Parcel Service, Inc. (06-CA-143062) North Apollo, PA, March 15, 2019. The Board issued a Notice and Invitation to File Briefs, which invited the parties to file briefs on the issue of whether the Board should continue to adhere to, modify, or abandon the Board’s standard for post-arbitral deferral as set forth in Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014). Member McFerran dissented. Briefs are due to be filed with the Board by April 29, 2019, with the parties permitted to file responsive briefs by May 14, 2019. Charge filed by an individual.
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Appellate Court Decisions
Murray American Energy, Inc., and The Monongalia County Coal Company, a Single Employer, Board Case No. 06-CA-169736 (reported at 366 NLRB No. 80) (D.C. Cir. decided March 12, 2019)
In an unpublished judgment, the Court enforced the Board’s order issued against this company that mines and sells coal through its subsidiaries that operate underground coal mines at various locations in West Virginia. The Employer’s hourly production-and-maintenance employees who work at the mines are represented by various locals of the United Mine Workers of America, and the parties are subject to a collective-bargaining agreement between the Union and a multi-employer association.
The Board (Members Pearce and McFerran; Member Emanuel, dissenting in part) found that the Employer committed myriad violations of Section 8(a)(1), (3), (4), and (5) between 2015 to 2017. Those violations included discouraging employees from making safety complaints to government authorities; threatening employees with discharge, discipline, or other reprisals if they filed grievances, requested union representation, or discussed safety issues; placing employees’ union activities under surveillance; suspending employees because they filed grievances, requested union representation, or refused to promise not to file grievances; and refusing to provide and unreasonably delaying provision of requested information and unilaterally changing the grievance process.
Without hearing oral argument, the Court upheld the Board’s findings as “supported by substantial evidence, sound credibility determinations, reasoned decision-making, and proper application of the law.” Finding no merit to the Employer’s contentions, the Court enforced the Board’s order in full.
The Court’s unpublished judgment may be found here.
American Municipal Power, Inc., Board Case No. 10-CA-221403 (reported at 366 NLRB No. 160) (6th Cir. decided March 11, 2019)
In a published opinion in this test-of-certification case, the Court enforced the Board’s bargaining order that issued against this operator of hydroelectric power-generation plants with a facility in Smithland, Kentucky. Like the Employer’s other power plants, the Smithland facility has its own dedicated staff of electrical workers called “operators.” In January 2018, the International Brotherhood of Electrical Workers, AFL-CIO, Local 816, filed a petition seeking to represent the Smithland operators.
In the underlying representation case, the Employer argued that the unit description should expressly exclude permanent operators from other facilities who might possibly, at some future date, be temporarily assigned to the Smithland facility. After a hearing, the Regional Director issued a decision finding a unit of all operators employed at the Smithland facility appropriate and unambiguous. The Regional Director found it unnecessary for the description to address the status of operators who might be temporarily assigned to Smithland at some future time because there were currently no such operators and the Employer had no scheduled plans to use operators from other facilities to perform temporary assignments at the Smithland facility. The Employer filed a Request for Review, which the Board denied. An election was conducted in March 2018, and the operators voted 8 to 0 in favor of union representation. Thereafter, the Employer refused to bargain in order to seek court review.
The Court held that the Board did not abuse its discretion in finding it unnecessary for the unit description to specifically note the exclusion of hypothetical temporary employees from other facilities. The Court explained that “the definition of the bargaining unit by its terms doesn’t include temporary assignees,” and “a future temporary assignee who covers for a staff shortage is not employed at Smithland.” Therefore, the Court stated, “we can understand the Board’s desire not to say more.”
The Court’s opinion is here.
Mike-Sell’s Potato Chip Company, Board Case No. 09-CA-094143 (reported at 366 NLRB No. 29) (D.C. Cir. decided March 14, 2019)
In an unpublished judgment, the Court enforced the Board’s backpay order issued against this snack food manufacturer and distributor located in Dayton, Ohio. The order awards 53 individually named employees specific amounts of backpay totaling approximately $240,000, plus interest.
Previously, the same Court enforced the Board’s unfair-labor-practice order in Mike-Sell’s Potato Chip Co. v. NLRB, 807 F.3d 318 (D.C. Cir. 2015), enforcing 360 NLRB 131 (2014). In that opinion, the Court upheld the Board’s finding that, in November 2012, the Employer violated Section 8(a)(5) and (1) by unilaterally implementing its collective-bargaining offers without first reaching agreement or a good-faith impasse in bargaining with the Union that represents its drivers, General Truck Drivers, Warehousemen, Helpers, Sales and Service, and Casino Employees, Teamsters Local Union No. 957. The enforced order required the Employer to restore the employment terms it unlawfully changed in November 2012, to maintain those terms until it reached an agreement or subsequent good-faith impasse, and to make the employees whole for their resulting losses.
At the compliance phase of the case, the Employer argued that its backpay obligation should be tolled as of June 2013, claiming that a later impasse in bargaining had been reached at that time. It also argued that certain payments it made since its unlawful November 2012 implementation should offset the backpay it owed. At the conclusion of the compliance proceeding, the Board explained that it was too late for the Employer, in a compliance proceeding four years later, to ask the Board to eliminate the restoration requirement from the Court-enforced, unfair-labor-practice order, which the Board had no jurisdiction to change. Further, the Board rejected the Employer’s offset arguments as a matter of law and thus precluded it from adducing evidence in support of those claims.
On review, the Court held that the Board was correct that “it lacked jurisdiction to modify the imposed remedy because the Court had already reviewed the case and enforced the Board’s original order.” The Court also commented that because the Employer “never complied with the restoration requirement, it cannot toll backpay liability with an alleged intervening impasse.” The Court also found no merit to the Employer’s offset claims.
Finally, the Court granted the Board’s Motion to Strike portions of the Employer’s briefs that improperly disclosed communications made in the course of the parties’ participation in the Court’s appellate mediation program.
The Court’s judgment may be found here.
University of Southern California, Board Case No. 31-CA-178831 (reported at 365 NLRB No. 89) (D.C. Cir. decided March 12, 2019)
In a published opinion, the Court denied enforcement and granted, in part, the petition for review filed by this private university in Los Angeles, California, which encompasses 22 separate schools offering undergraduate and graduate degrees. In doing so, the Court held that one aspect of the Board’s test for determining whether college faculty members are “managerial employees” exempt from the Act’s coverage, as stated in Pacific Lutheran University, 361 NLRB 1404 (2014), conflicts with NLRB v. Yeshiva University, 444 U.S. 672 (1980). Accordingly, the Court held that the Board’s test, and its application to the non-tenure-track faculty at the university’s Roski School of Art and Design, needed to be revisited on remand consistent with its opinion.
In November 2015, Service Employees International Union, Local 721, petitioned to represent a unit consisting of all non-tenure track faculty at the Roski School. After a hearing, the Regional Director issued a decision rejecting the Employer’s argument that the faculty in the sought-after unit were managerial employees. The Regional Director applied the principles of Pacific Lutheran, under which the Board considers whether faculty exercise “actual control or make effective recommendations” over five areas of academic decision-making. See 361 NLRB at 1417 (the five areas being: (1) academic programs, including degree and course offerings, curricula, and the university’s structure and organization; (2) enrollment management, which deals with the size, scope, and make-up of the student body; (3) finances, which covers both income and expenditures; (4) academic policy, including teaching or research methods and grading, syllabus, and academic-integrity policies; and (5) personnel policy and decisions). For their recommendations to be effective, they must “almost always” be adopted by the university’s administration without independent review. The Board’s Pacific Lutheran test also set out a “majority status rule,” under which a university committee’s actual control or effective recommendation authority over a particular decision-making area may be ascribed to faculty only if they constitute a majority of that committee. Id. at 1421 n.36. Here, among other findings, the Regional Director held that, under Pacific Lutheran, the faculty subgroup seeking representation must hold a majority of committee seats in order to meet the requisite level of control of decision-making. After an extensive review of a dozen or so university committees, the Regional Director concluded that the committees did not exercise the level of control over university policies required for a finding of managerial status and that the faculty at issue held a minority of seats on almost all of those committees.
In January 2016, an election was held by mail ballot, with a tally of ballots showing that the faculty members chose union representation by a vote of 31 to 6. The Regional Director then certified the Union, and the Employer filed a Request for Review, which the Board (Chairman Pearce and Member McFerran; Member Miscimarra, dissenting) denied. Thereafter, the Employer refused to bargain in order to seek court review.
The Court (Circuit Judges Tatel and Pillard, Senior Circuit Judge Sentelle) began by acknowledging that “Pacific Lutheran represents an ‘admirable effort’ by the Board to tame a thicket of case law that touches on numerous interrelated features of the faculty experience at universities,” but with one “major problem”: that its “subgroup majority status rule,” as the Court called it, “rests on a fundamental misunderstanding of Yeshiva.” The Court explained that the Supreme Court’s analysis in Yeshiva “turned not on an aggregation of the power delegated to a series of individuals or a mosaic of subgroups—the focus of the Board’s subgroup majority status rule—but rather on the role played by the faculty as a body.” That emphasis, as well as Yeshiva’s focus on collegiality, the Court stated, “demonstrate that the question the Board must ask is not whether a particular subgroup can force policies through based on crude headcounts, but rather whether that subgroup is structurally included within a collegial faculty body to which the university has delegated managerial authority.” The question, the Court continued, requires the Board to “examine how the faculty is ‘structured’ and ‘operates,’ as well as the duties employees have been ‘assigned,’” citing Yeshiva, 444 U.S. at 690 & n.31.
Taking all of that into account, the Court concluded that the Board should “think of this analysis as having two distinct inquiries: whether a faculty body exercises effective control and, if so, whether, based on the faculty’s structure and operations, the petitioning subgroup is included in that managerial faculty body.” Only under that second inquiry, the Court held, should the Board consider whether a subgroup’s actual interests diverge so substantially from those of the rest of the faculty that holding a minority of seats on the relevant committees is akin to having no managerial role at all, or whether a subgroup’s low participation rates stem from “a tenuous employment relationship that vitiates any managerial role the university expects the subgroup to perform.” Rejecting all remaining arguments presented by the university, the Court remanded the case to the Board for further proceedings, expressly stating no opinion on whether the different standard applied on remand would lead to the same or different result.
The Court’s opinion is here.
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Administrative Law Judge Decisions
County Agency Inc., and Esplanade Partners Ltd. d/b/a Esplanade Venture Partnership d/b/a The Esplanade Hotel, Joint Employers (02-CA-188405, et al.; JD(NY)-03-19) New York, NY, March 11, 2019. Errata to the February 7, 2019 decision of Administrative Law Judge Benjamin W. Green. Errata Amended Decision
International Alliance of Theatrical Stage Employees, Local 8 (Elliott Lewis Convention Services, LLC) (04-CB-216541 and 04-CB-221871; JD-27-19) Philadelphia, PA. Administrative Law Judge Arthur J. Amchan issued his decision on March 11, 2019. Charges filed by an individual.
Prospect Charter Care, LLC (01-CA-200126 and 01-CA-214788; JD-26-19) North Providence, RI. Administrative Law Judge Donna N. Dawson issued her decision on March 11, 2019. Charges filed by United Nurses & Allied Professionals, Local 5110.
Baystate Franklin Medical Center (01-CA-198949, et al.; JD-25-19) Greenfield, MA. Administrative Law Judge Paul Bogas issued his decision on March 11, 2019. Charges filed by Baystate Franklin Security Officers Union a/w Law Enforcement Officers Security Union; International Union of Operating Engineers, Local 877; and individuals.
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