Summary of NLRB Decisions for Week of March 4 - 8, 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
Hacienda Hotel, Inc. Gaming Corp. d/b/a Hacienda Resort Hotel and Casino and Sahara Nevada Corp. d/b/a Sahara Hotel and Casino (28-CA-013274 and 28-CA-013275; 367 NLRB No. 101) Las Vegas, NV, March 5, 2019.
Upon remand from the Ninth Circuit, in a Fourth Supplemental Decision and Order, the Board adopted, as the law of the case, the Court’s remedial award and ordered make-whole relief to remedy the Respondents’ unfair labor practice. Specifically, having found that the Respondents acted unlawfully by unilaterally ceasing dues checkoff after the expiration of the parties’ collective-bargaining agreement, the Board ordered the Respondents to make the Union whole for any dues it would have received but for the Respondents’ failure to comply with the collective-bargaining agreement.
Charges filed by Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226 and Bartenders Union, Local 165. Administrative Law Judge James M. Kennedy issued his decision on August 8, 1996. Members McFerran, Kaplan, and Emanuel participated.
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STP Nuclear Operating Company (16-CA-223678; 367 NLRB No. 102) Wadsworth, TX, March 5, 2019.
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 of certain employees as part of the existing unit, pursuant to a self-determination election.
Charge filed by International Brotherhood of Electrical Workers, Local Union 66. Members McFerran, Kaplan, and Emanuel participated.
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FAA Concord H, Inc. d/b/a Concord Honda (32-CA-066979, et al.; 367 NLRB No. 104) Concord, CA, March 7, 2019.
Upon remand from the Ninth Circuit, the Board reconsidered its prior decision (363 NLRB No. 136 (2016), which was vacated by the court. In light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Board reversed itself and dismissed the complaint allegation that the mandatory arbitration agreement was unlawful. The Board affirmed and incorporated by reference the findings in its prior decision that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing a bonus plan, changing the employees’ work schedules, and bypassing the Union and directly dealing with employees, as these findings are unaffected by the decision in Epic Systems and the court did not otherwise instruct it to review these findings de novo.
Charges filed by Automotive Machinists Lodge No. 1173, International Association of Machinists and Aerospace Workers. Chairman Ring and Members McFerran and Kaplan participated.
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PAE Applied Technologies, LLC (28-CA-170331; 367 NLRB No. 105) North Las Vegas, NV, March 8, 2019.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by refusing to allow the Union’s attorney to act as a Weingarten representative in a disciplinary meeting and by issuing a rule prohibiting officers of the Union from discussing union issues with representatives of the Respondent’s customer, and that the Respondent violated Section 8(a)(5) and (1) by failing to bargain over an accommodation in response to the Union’s request to furnish a complaint filed by a representative of the Respondent’s customer. The Board also unanimously reversed the judge’s conclusion that the Respondent violated Section 8(a)(2) and (1) by unlawfully interrogating the Union president during an investigatory interview.
A Board majority (Chairman Ring and Member Emanuel) reversed the judge’s conclusions that the Respondent violated Section 8(a)(1) by improperly limiting the participation of Weingarten representatives in an investigatory interview and that the Respondent violated Section 8(a)(3) and (1) by issuing the Union president a Final Written Warning for his interaction with a customer representative which the representative claimed was insubordinate and rude. Dissenting in part, Member McFerran would have upheld the judge’s conclusions that the Respondent violated Section 8(a)(1) by limiting the Weingarten representatives’ participation and violated Section 8(a)(3) and (1) by issuing the Final Written Warning because the Union president was engaged in protected activity.
Charge filed by Security Police Association of Nevada. Chairman Ring and Members McFerran and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Dycora Transitional Health – Community Care LLC (32-RD-226186) Fresno, CA, March 7, 2019. The Board denied the Employer’s Request for Review of the Regional Director’s determination to indefinitely postpone the post-election hearing as it raised no substantial issues warranting review. Petitioner—an individual. Union—Service Employees International Union, Local 2015. Chairman Ring and Members McFerran and Kaplan participated.
C Cases
Hobby Lobby Stores, Inc. (20-CA-139745) Sacramento, CA, March 4, 2019. The Board denied the Charging Party’s Motion for Reconsideration of the Board’s Supplemental Decision, Order, and Notice to Show Cause, reported at 367 NLRB No. 78 (2019). The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by The Committee to Preserve the Religious Right to Organize. Chairman Ring and Members Kaplan and Emanuel participated.
Demza Masonry, LLC (22-CA-208778 and 22-CA-220318) Newark, NJ, March 4, 2019. No exceptions having been filed to the January 18, 2019 decision of Administrative Law Judge Robert A. Giannasi’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 Local 4, Bricklayers and Allied Craftworkers’ Administrative District Council of New Jersey.
Betteroads Asphalt Corp., a/k/a Betteroads Asphalt, LLC (12-CA-183927 and 12-CA-187042) St. Thomas, VI, March 5, 2019. No exceptions having been filed to the January 22, 2019 decision of Administrative Law Judge Christine E. Dibble’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 Virgin Island Workers Union.
Coastal Marine Services, Inc. (21-CA-139031) San Diego, CA, March 6, 2019. The Board denied the Charging Party’s Motion for Reconsideration of the Board’s Decision and Order, reported at 367 NLRB No. 58 (2019). The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by International Association of Heat & Frost Insulators and Allied Workers, Local 5. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Novato Healthcare Center, Board Case No. 20-CA-168351 (reported at 365 NLRB No. 137) (D.C. Cir. decided March 5, 2019)
In a published opinion, the Court enforced the Board’s order issued against this operator of a skilled-nursing facility in Novato, California, for unfair labor practices committed just prior to an election in October 2015 in which 160 service and technical employees, which included certified nursing assistants and licensed vocational nurses, voted to be represented by the National Union of Healthcare Workers. The Board (Members Pearce and McFerran; Chairman Miscimarra, concurring) found that the Employer violated Section 8(a)(1) and (3) when it suspended and discharged four employees for engaging in protected union activity and a fifth employee for the purpose of concealing its unlawful motive. The Board also found (Chairman Miscimarra, dissenting) that the Employer violated Section 8(a)(1) by coercively interrogating an employee about how he intended to vote in the election.
In response to the Union campaign, the Employer mounted its own campaign, which included hiring six labor consultants and increasing supervision of the night shift, a time when several known Union supporters were working. A week before the election, a supervisor arrived at the facility during the night shift as part of the increased management presence and reported that she discovered five employees asleep on duty, four of whom were known union activists. The Employer permitted employees to nap during meal and rest breaks, but forbid them from sleeping on duty. Thereafter, the Employer suspended the five employees, and two days before the election, discharged them. At the hearing, the Administrative Law Judge credited the employees’ testimony that they were on break at the time and thus allowed to rest, and discredited the supervisor’s account of when she observed them.
Before the Court, the Employer did not contest the Board’s finding that it had an unlawful motive in discharging the four known Union supporters, instead arguing only that it would have discharged them even in the absence of their protected activity because they were sleeping on duty. The Court noted that the issue turned entirely on whether the supervisor’s testimony of when she observed them sleeping should be credited. Specifically, the supervisor testified that the only time she saw a clock was when she stopped at a stop light three blocks from the facility, which showed it was 3:50 a.m., and that 5 to 10 minutes later, she was at the nursing station observing the sleeping employees at or before at 4:00 a.m., prior to the start of their break period. The Court, however, stated that “[t]he problem with this timeline is the sheer number of tasks [the supervisor] claimed to have completed between stopping at the stop sign at 3:50 a.m. and arriving at [the nursing station] just 5 to 10 minutes later.” Citing the numerous tasks the General Counsel elicited from the witness during cross-examination that were supposedly accomplished in 10 minutes or less, the Court held that the Administrative Law Judge reasonably concluded that her time estimate was “simply . . . implausible.” Regarding the Employer’s discharge of the fifth sleeping employee whose union sentiments were unknown, the Court upheld the Board’s finding that she was fired alongside with the four Union supporters “to provide cover for” the Employer’s discriminatory conduct toward the others. Finally, the Court upheld as reasonable the Board’s finding of an unlawful interrogation.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Littlejohn Electrical Solutions, LLC (16-CA-214170; JD-23-19) Denton, TX. Administrative Law Judge Robert A. Ringler issued his decision on March 4, 2019. Charge filed by International Brotherhood of Electrical Workers, Local Union No. 20.
Jennersville Hospital, LLC – Tower Health (04-CA-226116; JD-24-19) West Grove, PA. Administrative Law Judge Arthur J. Amchan issued his decision on March 4, 2019. Charge filed by SEIU Healthcare of Pennsylvania, CTW, CLC.
Malco Enterprises of Nevada, Inc. d/b/a Budget Rent A Car of Las Vegas (28-CA-213222; JD(SF)-08-19) Las Vegas, NV. Administrative Law Judge Dickie Montemayor issued his decision on March 8, 2019. Charge filed by an individual.
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