Summary of NLRB Decisions for Week of May 28 - 31, 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
Core Recoveries, LLC (09-CA-208361; 367 NLRB No. 140) Louisville, KY, May 28, 2019.
The Board granted the General Counsel’s Motion for a Default Judgment based on the Respondent’s noncompliance with the provisions of the parties’ informal settlement agreement. The complaint alleged that the Respondent violated Section 8(a)(1) by maintaining unlawful work policies.
Charge filed by an individual. Chairman Ring and Members McFerran and Emanuel participated.
***
Quality Dining, Inc. (04-CA-175450; 367 NLRB No. 143) Philadelphia, PA, May 29, 2019.
The Board found that, in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint alleging that the Respondent violated Section 8(a)(1) by maintaining and enforcing an arbitration agreement must be dismissed.
Charge filed by an individual. Administrative Law Judge Raymond P. Green issued his decision on December 15, 2016. Chairman Ring and Members McFerran and Kaplan participated.
***
Perkins Management Service Company (13-CA-223500; 367 NLRB No. 146) Chicago, IL, May 30, 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 in good faith with the Union, by failing to continue in effect all the terms and conditions of the parties’ collective-bargaining agreement, and by failing and refusing to furnish the Union with requested information.
Charge filed by UNITE HERE Local 1. Members McFerran, Kaplan, and Emanuel participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Heavy Materials, LLC – St. Croix Division (12-RM-231582) St. Croix, VI, May 30, 2019. The Board denied the Employer’s Requests for Review of the Regional Director’s decision to block the RM petition and the Regional Director’s decision to dismiss the petition as they raised no substantial issues warranting review. Petitioner—Heavy Materials, LLC – St. Croix Division. Members McFerran, Kaplan, and Emanuel participated.
C Cases
Marquez Brothers Enterprises, Inc. (21-CA-039581 and 21-CA-039609) City of Industry, CA, May 28, 2019. No exceptions having been filed to the April 12, 2019 supplemental decision of Administrative Law Judge Lisa D. Ross’ determination of the amounts of backpay due the discriminatees under the terms of the December 16, 2014 Board Order, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to pay the amounts set forth in the judge’s recommended Order. Charges filed by individuals.
United States Postal Service (09-CA-191579) Columbus, OH, May 30, 2019. In this case alleging Section 8(a)(5) and (1) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Member Emanuel noted that he would not approve the provision of the Order that requires the Respondent to take action with respect to “any other labor organization,” because no violations against other unions were alleged as part of this case. Charge filed by American Postal Workers Union, Local 232, AFL-CIO. Members McFerran, Kaplan, and Emanuel participated.
United States Postal Service (05-CA-213750, et al.) Baltimore, MD, May 30, 2019. In this case alleging Section 8(a)(5) and (1) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charges filed by National Postal Mail Handlers Union, Local 305, a/w National Postal Mail Handlers Union, a Division of the Laborers’ International Union of North America, AFL-CIO. Members McFerran, Kaplan, and Emanuel participated.
***
Appellate Court Decisions
Midland Electrical Contracting Corp., Board Case No. 29-CA-144562 (reported at 365 NLRB No. 87) (3d Cir. decided May 28, 2019).
In an unpublished opinion, the Court enforced the Board’s order issued against this New Jersey electrical contractor whose employees are represented by United Electrical Workers of America, IUJAT, Local 363. The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) found that the Employer violated Section 8(a)(5), (a)(1), and (d) by failing to adhere to a collective-bargaining agreement between the Union and the Building Industry Electrical Contractors Association, which had negotiated the agreement on behalf of its member-employers. The Board determined that the Employer was bound by the collective-bargaining agreement as an association member after having executed an association membership agreement, and had failed to timely withdraw from the association under the terms of the membership agreement.
Before the Court, the Employer argued only that it had timely withdrawn from the association and therefore was not bound by the collective-bargaining agreement. On that narrow issue, the Court held that the two independent bases upon which the Board had rejected that contention were consistent with law and the record evidence. First, the Court agreed that the Employer was bound by the agreement because it failed to withdraw from the association prior to the start of negotiations for a successor agreement, but the Court also recognized that the Employer had forfeited the argument before the Board. Second, the Court held that the Employer had not complied with the applicable withdrawal provisions of its membership agreement that provided for a 90-day notice period prior to contract expiration. In doing so, the Court rejected the Employer’s contention that the 60-day notice period of the collective-bargaining agreement instead controlled its withdrawal, stating that “[w]ithdrawal from a multiemployer bargaining association is distinct from terminating a [collective-bargaining agreement].”
The Court’s unpublished opinion is here.
Anderson Excavating Company, Board Case No. 14-CA-156092 (reported at 365 NLRB No. 63) (8th Cir. decided May 31, 2019).
In a published opinion, the Court enforced the Board’s order that issued against this construction contractor based in Omaha, Nebraska, whose heavy equipment operators are represented by International Union of Operating Engineers Local 571, under a series of collective-bargaining agreements that the Union negotiated with a group of large construction employers in the Omaha area. The Board (Acting Chairman Miscimarra and Members Pearce and McFerran) found that the Employer, by its course of conduct, adopted and was bound by the most recent 2014-2018 agreement. The Board further found that the Employer repudiated that agreement and withdrew recognition from the Union in violation of Section 8(a)(5) and (1) by refusing to make benefit payments required by the agreement and by claiming it was not bound by the agreement. In doing so, the Board rejected the Employer’s affirmative defense that the Union’s unfair labor practice charge was time-barred by the six-month limitations period of Section 10(b) of the Act.
Before the Court, the Employer challenged a few of the Board’s findings. It primarily argued that the Board decided the Section 10(b) issue incorrectly, and reasserted its claim that the Union knew of the withdrawal of recognition much earlier, far outside of the six-month limitations period. The Court, however, agreed with the Board that the Union’s July 2015 charge was timely because the Union did not have “clear and unequivocal notice” of the repudiation and withdrawal until May 2015, when the Employer abruptly ceased making benefit contributions and remitting Union dues required by the collective-bargaining agreement. Finding the Employer’s remaining arguments without merit, the Court enforced the Board’s order in full.
The Court’s opinion is here.
***
Administrative Law Judge Decisions
Capitol Transportation, Inc. (12-CA-180495, et al.; JD-40-19) San Juan, PR, May 28, 2019. Errata to Administrative Law Judge Michael A. Rosas’ April 30, 2019 decision. Charges filed by individuals and Union de Tronquistas de Puerto Rico, Local 901, International Brotherhood of Teamsters. Errata Amended decision.
International Brotherhood of Electrical Workers, Local 98 (04-CC-223346; JD-45-19) Philadelphia, PA. Administrative Law Judge Robert A. Giannasi issued his decision on May 28, 2019. Charge filed by Shree Sai Siddhi Spruce, LLC, d/b/a Fairfield Inn & Suites by Marriott. Errata issued May 29, 2019. Errata Amended decision.
Montefiore Medical Center (02-CA-229024; JD(NY)-09-19) New York, NY. Administrative Law Judge Kenneth W. Chu issued his decision on May 30, 2019. Charge filed by New York State Nurses Association.
Parkway Florist, Inc. (06-CA-209583 and 06-CA-217020; JD-46-19) Pittsburgh, PA. Administrative Law Judge David I. Goldman issued his decision on May 30, 2019. Charges filed by individuals.
International Alliance of Theatrical Stage Employees (IATSE), Local 16 (Various Employers) (20-CB-218555; JD(SF)-16-19) San Francisco, CA. Administrative Law Judge Ariel L. Sotolongo issued his decision on May 30, 2019. Charge filed by an individual.
Hospital Menonita de Guayama, Inc. (12-CA-214830, et al.; JD-47-19) Guayama, PR. Administrative Law Judge Ira Sandron issued his decision on May 30, 2019. Charges filed by Unidad Laboral de Enfermeras (OS) y Empleados de La Salud.
Delta Western, Inc. (19-CA-217975; JD(SF)-15-19) Unalaska, AK. Administrative Law Judge Gerald M. Etchingham issued his decision on May 30, 2019. Charge filed by an individual.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.