Summary of NLRB Decisions for Week of May 13 - 17, 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
FP Holdings, L.P. d/b/a Palms Casino Resort (28-CA-224729; 367 NLRB No. 127) Las Vegas, NV, May 13, 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.
Charge filed by Local Joint Executive Board of Las Vegas a/w UNITE HERE International Union. Members McFerran, Kaplan, and Emanuel participated.
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NP Palace LLC d/b/a Palace Station Hotel & Casino (28-CA-218622; 367 NLRB No. 129) Las Vegas, NV, May 14, 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. However, a Board majority (Chairman Ring and Member Emanuel; Member McFerran, dissenting) severed and retained for further consideration the complaint allegations that the Respondent unlawfully refused to furnish information requested by the Union. Member McFerran would grant the General Counsel’s Motion for Summary Judgment with respect to the Union’s requests seeking information that clearly is presumptively relevant.
Charge filed by International Union of Operating Engineers Local 501, AFL-CIO. Chairman Ring and Members McFerran and Emanuel participated.
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Raymond Interior Systems (21-CA-037649 and 21-CB-014259; 367 NLRB No. 124) Orange and San Diego, CA, May 14, 2019.
On remand from the D.C. Circuit Court, in a Supplemental Decision and Order, the Board found that: (1) Respondents Raymond Interior Systems and the Carpenters Union had a lawful collective-bargaining agreement under Section 8(f) of the Act on October 1, 2006, by virtue of their Confidential Settlement Agreement; and (2) the agreement was vitiated by the unfair labor practices of unlawful assistance and acceptance of Section 9(a) recognition committed by Raymond Interior Systems and the Carpenters Union the following day. The Board found that cases cited by the Court, such as Zidell Explorations, 175 NLRB 887 (1969), in which otherwise lawful agreements were not vitiated by subsequent unfair labor practices, are distinguishable from this proceeding. The Board further reaffirmed its remedial holding declining to require Raymond Interior Systems to provide its drywall finishing employees with alternate benefits coverage equivalent to the coverage that those employees had under the Carpenters 2006 Drywall/Lathing Master Collective-Bargaining Agreement.
Charges filed by Southern California Painters and Allied Trades District Council No. 36, International Union of Painters and Allied Trades, AFL-CIO. Administrative Law Judge Burton Litvak issued his decision on November 10, 2008. Chairman Ring and Members Kaplan and Emanuel participated.
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International Longshoremen’s Association, Local 28 (Ceres Gulf, Inc.) (16-CB-181716 and 16-CB-194603; 367 NLRB No. 128) Houston, TX, May 15, 2019.
The Board, in a Supplemental Decision and Order, adopted the Administrative Law Judge’s dismissal of the complaint allegation that the Respondent violated Section 8(b)(1)(A) by arbitrarily denying training opportunities to the Charging Party because of her gender. There were no exceptions to the judge’s dismissal of the complaint allegation that the Respondent violated Section 8(b)(1)(A) by soliciting the Charging Party to withdraw her unfair labor practice charge.
Charges filed by an individual. Administrative Law Judge Sharon Levinson Steckler issued her decision on October 23, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Frontline Security Services, Inc. (05-CA-162677 and 05-CA-162945; 367 NLRB No. 130) Landover, MD, May 15, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with the provisions of the parties’ bilateral informal settlement agreement. The complaint alleged Section 8(a)(5) and (1) violations. The Board ordered the Respondent to comply with the unmet terms of the settlement agreement.
Charges filed by United Security & Police Officers of America (USPOA). Chairman Ring and Members McFerran and Kaplan participated.
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Frontline Security Services (05-CA-176516; 367 NLRB No. 131) Hyattsville, MD, May 16, 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. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain, and by failing to continue in effect the terms of its contract, with the Union.
Charge filed by Governed United Security Professionals. Chairman Ring and Members McFerran and Kaplan participated.
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Able Building Maintenance and its successor Empire Facility Solutions, LLC (22-CA-194688; 367 NLRB No. 134) Lyndhurst, NJ, May 16, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondents’ noncompliance with the provisions of the parties’ informal settlement agreement. The complaint alleged that the Respondents violated Section 8(a)(1) by failing to recall an employee based on her protected concerted activities. The Board ordered a full remedy for the violations found, including making the employee whole for any loss of earnings and other benefits suffered as a result of the Respondents’ unlawful actions.
Charge filed by an individual. Chairman Ring and Members McFerran and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
East Haven Builders Supply – US LBM, LLC d/b/a Millwood Lumber (02-RC-234932) Millwood, NY, May 17, 2019. The Board denied the Employer’s Request for Review of the Regional Director’s Report on Objections and Certification of Representative as it raised no substantial issues warranting review. Petitioner—International Brotherhood of Teamsters, Local 456. Members McFerran, Kaplan, and Emanuel participated.
Avera Marshall (18-RC-233463) Marshall, MN, May 17, 2019. The Board denied the Employer’s Request for Review of the Regional Director’s Direction of Election, Denial of Motion for Reconsideration, and Decision and Certification of Representative as it raised no substantial issues warranting review. The Regional Director had denied the Employer’s Motion for Reconsideration requesting a changed election date, and finding, among other things, that the request was not timely filed as the election notices had already been posted at the time of the Employer’s motion. The Board noted that the Employer’s motion was not technically untimely under Section 102.65(e)(1) of the Board’s Rules and Regulations, but it was untimely as it related to the scheduled election date and notice posting period pursuant to Section 102.67(k). Members Kaplan and Emanuel expressed no view with respect to whether they agreed or disagreed with the revisions made by the Board’s Election Rule, but they agreed that it applied and warranted denial of the Employer’s Request for Review. Petitioner—American Federation of State County and Municipal Employees, AFL-CIO, Council 65. Members McFerran, Kaplan, and Emanuel participated.
C Cases
Spartan Products, LLC a wholly owned subsidiary of U.S. Concrete, Inc. (12-CA-192417) Christiansted, St. Croix, USVI, May 13, 2019. No exceptions having been filed to the March 19, 2019 decision of Administrative Law Judge Elizabeth M. Tafe’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 International Association of Machinists and Aerospace Workers, AFL-CIO.
Dycora Transitional Health-Fresno, LLC (32-CA-215700; 32-RD-213130) Fresno, CA, May 17, 2019. No exceptions having been filed to the February 28, 2019 decision of Administrative Law Judge Ariel L. Sotolongo’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, except that the Board ordered a substitute notice posting. The Board also issued a Certification of Results of Election. Charge filed by Service Employees International Union, Local 2015. Petitioner—an individual.
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Appellate Court Decisions
Outokumpu Stainless USA, LLC f/k/a Thyssenkrupp Stainless USA, LLC, Board Case No. 15-CA-070319 (reported at 365 NLRB No. 127) (11th Cir. decided May 13, 2019)
In an unpublished opinion, the Court enforced the Board’s order issued against this operator of a facility in Calvert, Alabama, that produces and sells stainless steel on a non-retail basis. The Board’s order entered a default judgment against the Employer for non-compliance with a settlement agreement that resolved unfair-labor-practice charges alleging multiple violations of Section 8(a)(1) prior to an election in which its employees were to vote on whether to be represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.
Among other provisions, the settlement agreement included a notice-posting requirement and a provision authorizing the Board to enter default judgment if the Employer failed to comply with its terms. Ten days before posting the Board’s remedial notice, the Employer posted and emailed to employees a side letter that contained statements that it had not been found guilty of anything and blamed the Union for the election delay. The side letter remained posted near the Board’s remedial notice for the full 60-day posting period. The Regional Director determined that the Employer’s posting and dissemination of the side letter diminished the remedial effect of the remedial notice and constituted noncompliance with the settlement agreement. The Administrative Law Judge agreed. On review, the Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting in part) found the side letter constituted non-compliance and entered a default judgment.
On review, the Court upheld the Board’s finding of non-compliance with the settlement agreement, noting that the posting of such side letters have been found by the Board and courts to constitute non-compliance with remedial-notice posting requirements for nearly 50 years. Under that precedent, the Court held that the Employer’s side letter “subverted the purpose and effectiveness” of the Board’s remedial notice. Further, the Court held that the Employer’s non-compliance “triggered” the agreement’s default provision, and that the Board appropriately entered a default judgment. The Court rejected the Employer’s contention that the side letter merely expressed the Employer’s viewpoint and that thus default judgment was improper. Rather, the Court concluded that “[n]either Section 8(c) [of the Act] nor the First Amendment insulate the [employer] from breach of the Settlement Agreement by undermining its purpose.”
The Court’s unpublished opinion is here.
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Administrative Law Judge Decisions
Fareri Associates, LP, Greenwich Park, LLC, Greenwich Premier Services Corp., and Brenwood Hospitality, LLC, a single employer (01-CA-188158, et al.; JD-41-19) Hartford, CT. Administrative Law Judge David I. Goldman issued his decision on May 13, 2019. Charges filed by Service Employees International Union, Local 32BJ.
Kumho Tires (10-CA-208255, et al.; JD-42-19) Macon, GA. Administrative Law Judge Arthur J. Amchan issued his decision on May 14, 2019. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC.
Argos USA LLC d/b/a Argos Ready Mix, LLC (12-CA-196002 and 12-CA-203177; JD-43-19) Naples, FL. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on May 14, 2019. Charges filed by Construction and Craft Workers Local Union No. 1652, Laborers’ International Union of North America, AFL-CIO.
Bartle Bogle Hegarty, Inc. (02-CA-220370; JD(NY)-08-19) New York, NY. Administrative Law Judge Kenneth W. Chu issued his decision on May 15, 2019. Charge filed by Screen Actors Guild-American Federation of Television and Radio Artists.
Kauai Veterans Express Co. (20-CA-193339, et al.; JD(SF)-11-18) Kauai, HI, May 17, 2019. Errata to Administrative Law Judge Dickie Montemayor’s April 27, 2018 decision. Charges filed by Operating Engineers Local Union No. 3. Errata Amended Decision
Hayward Sisters Hospital d/b/a St. Rose Hospital (32-CA-197728, et al.; JD(SF)-14-19) Oakland, CA. Administrative Law Judge John T. Giannopoulos issued his decision on May 17, 2019. Charges filed by individuals.
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