Summary of NLRB Decisions for Week of March 27 - 31, 2017

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

No Board Decisions Issued

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Thyme Holdings, LLC, d/b/a Westgate Gardens Care Center  (32-RC-183272)  Visalia, CA, March 31, 2017.  The Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting) 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.  Acting Chairman Miscimarra, relying on his dissent in Buchanan Marine, L.P., 363 NLRB No. 58 (2015), would grant the Employer’s Request for Review because there is a substantial question about whether the licensed vocational nurses possess authority to assign employees under Section 2(11).  Petitioner – Service Employees International Union, Local 2015.  Acting Chairman Miscimarra and Members Pearce and McFerran participated. 

C Cases

Greenway Desert Car Wash, LLC  (28-CA-171662)  Phoenix, AZ, March 27, 2017.  No exceptions having been filed to the February 10, 2017 decision of Administrative Law Judge Mara-Louise Anzalone’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 recommended Order.  Charge filed by an individual.

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Appellate Court Decisions

Lily Transportation Corp., Board Case No. 01-CA-118372 (reported at 363 NLRB No. 15) (1st Cir. decided March 31, 2017)

In a published opinion, the Court enforced the Board’s order issued against this transportation company.  The Board (then-Chairman Pearce and Member McFerran; Member Miscimarra, concurring) found that the Employer was a successor employer and violated Section 8(a)(5) and (1) by refusing to bargain with Machinists District Lodge 15, Local 477, as the representative of the drivers at the facility under the collective-bargaining agreement with the Employer’s predecessor.

Before the Court, the Employer did not contest its successorship status.  Instead, the Employer contended that it should have been permitted to challenge the Union’s majority status based on signed employee statements expressing their disaffection from the Union.  In so arguing, the Employer questioned the reasonableness of the Board’s successor-bar doctrine as set forth in UGL-UNICCO Service Co., 357 NLRB 801 (2011), which provides for an irrebuttable presumption of majority support for a reasonable period of time.  Specifically, the Employer argued that the Court owed no deference to the Board’s current articulation of the successor-bar doctrine because, over time, it switched back and forth between rebuttable and irrebuttable presumptions, as evidenced by UGL-UNICCO’s express overruling of MV Transportation, 337 NLRB 770 (2002), which had discarded the prior bar established in St. Elizabeth’s Manor, Inc., 329 NLRB 341 (1999).

The Court, in an opinion authored by Associate Justice Souter, sitting by designation, concluded that UGL-UNICCO’s successor-bar doctrine was “an adequately explained interpretive change reflecting the Board’s judgment of a reasonable balance between the Section 7 right of employee choice and the need for some period of stability to give the new relationships a chance to settle down.”  The Court noted that the Board in UGL-UNICCO explained the reasons for changing course from the prior rule, “brought up to date the commercial reality ignored by the MV Transportation majority,” and changed “the factual consequences of the successor bar by modifying the terms on which the bar was previously imposed.”  Accordingly, the Court held that the Board’s current doctrine was within the scope of an agency’s reasoned interpretation, and thus subject to judicial deference under Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).  After readily dispensing with the Employer’s remaining challenges to UGL-UNICCO, the Court enforced the Board’s order.

The Court’s opinion is here.

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Administrative Law Judge Decisions

No Administrative Law Judge Decisions Issued

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