Summary of NLRB Decisions for Week of November 13 - 16, 2018
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
ABM Onsite Services-West, Inc. (19-RC-144377 and 19-CA-153164; 367 NLRB No. 35) Portland, OR, November 14, 2018. In this supplemental decision, the Board (Chairman Ring, Members Kaplan and Emanuel; Member McFerran, dissenting) deferred to the advisory opinion of the National Mediation Board (NMB) that the Employer and its employees at the Portland International Airport are subject to the Railway Labor Act (RLA). In 2015, the Board asserted jurisdiction, certified the Union, and found that the Employer unlawfully refused to recognize and bargain with the Union in a test-of-certification case. The D.C. Circuit Court subsequently remanded the case, finding that the NMB cases on which the Board relied in asserting jurisdiction represented an unexplained departure from longstanding NMB precedent. The Board referred the case to the NMB and the NMB issued an advisory opinion, returning to its traditional six-factor carrier control test and stating its view that the Employer’s operations at the Portland International Airport are subject to the RLA. Agreeing with the NMB’s determination, the Board dismissed the complaint and the petition and vacated the Union’s certification. Dissenting, Member McFerran found that the NMB’s opinion was deficient under the Administrative Procedure Act. Member McFerran would refer the case back to the NMB for it to provide a reasoned explanation for its decision to return to the traditional six-factor carrier control test.
Charge and Petition filed by International Association of Machinists & Aerospace Workers, District Lodge W24, AFL-CIO. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
Wendt Corporation (03-CA-212225, et al.) Cheektowaga, NY, November 13, 2018. The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s granting of the General Counsel’s motion to amend the complaint at the hearing to include an allegation that the Respondent violated Section 8(a)(1) by its counsel’s implied threat of unspecified reprisals during his cross-examination of a witness. The Board also granted the appeal on the merits, finding that the judge abused his discretion by granting the motion. The Board found that a counsel’s conduct toward a witness at a hearing has been held to warrant amending the underlying complaint during the hearing only in exceptional circumstances, typically involving threatening questions or statements by counsel that are unrelated to the unfair labor practices at issue, such as those questioning the immigration status of a witness or implying possible criminal jeopardy. Here, by contrast, the Board found that the Respondent’s counsel’s question contained no such serious threats, implicit or otherwise. In addition, the counsel’s line of questioning, though inartfully expressed, was relevant to determining whether notes taken by the witness concerning key events had been recorded contemporaneously or sometime later. Charges filed by Shopmen’s Local Union No. 576. Chairman Ring and Members Kaplan and Emanuel participated.
California Nurses Association, National Nurses Organizing Committee (31-CB-012913) Valencia, CA, November 14, 2018. In view of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board considered de novo the Administrative Law Judge’s recommended Decision and Order. The Board affirmed the judge's rulings, findings, and conclusions, and adopted her recommended Order regarding the Section 8(b)(3) allegation to the extent and for the reasons stated in the Board’s vacated Decision and Order reported at 359 NLRB 1391, which was incorporated by reference. In that Decision, the Board found that the Respondent violated Section 8(b)(3) by printing and distributing to employees copies of the parties’ collective-bargaining agreement with a statement entitled “The Weingarten Rights” on the back cover because it was contrary to the parties’ settled understanding on the issue of cover text. In this case, the Board also severed and retained for further consideration the allegation that the Respondent violated Section 8(b)(1)(A) by printing and distributing to employees copies of the parties’ collective-bargaining agreement containing “The Weingarten Rights” statement on the back cover because it implies that employees must request a union representative during investigatory meetings depriving employees of the right to refrain from union activity. At the time of the judge’s decision and the Board’s vacated Decision and Order, the issue whether a work rule or policy has been unlawfully maintained was resolved based on the “reasonably construe” prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). In the vacated Decision and Order, the Board cited Lutheran Heritage to find that “The Weingarten Rights” statement is susceptible to only one reasonable interpretation. Because the Board overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases in The Boeing Co., 365 NLRB No. 154 (2017), the Board issued a Notice to Show Cause why the allegation that “The Weingarten Rights” statement violated Section 8(b)(1)(A) should not be remanded to the judge for further proceedings in light of Boeing. Charge filed by Henry Mayo Newhall Memorial Hospital. Administrative Law Judge Mary Miller Cracraft issued her decision on July 9, 2012. Chairman Ring and Members McFerran and Emanuel participated.
Private National Mortgage Acceptance Company, LLC, “Pennymac” (20-CA-170020) Sacramento, CA, November 16, 2018. 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 allegation that the Respondent’s maintenance of its Mutual Arbitration Policy violated Section 8(a)(1) must be dismissed. As to the separate issue whether the Respondent’s Mutual Arbitration Policy independently violates Section 8(a)(1) because it interferes with employees’ ability to access the Board, the Board observed that, at the time of the Administrative Law Judge’s decision and the parties’ exceptions, the issue whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would be resolved based on the “reasonably construe” prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). The Board noted that it subsequently issued its decision in The Boeing Company, 365 NLRB No. 154, in which it overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases. Accordingly, the Board issued a Notice to Show Cause why the allegation that the Mutual Arbitration Policy unlawfully restricts employee access to the Board should not be remanded to the judge for further proceedings in light of Boeing. Charge filed by an individual. Administrative Law Judge Raymond P. Green issued his decision on November 29, 2016. Chairman Ring and Members McFerran and Kaplan participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Motor City Pawn Brokers Inc., The Aubrey Group Inc., and Aubrey Brothers, LLC, a single employer (07-CA-179458 and 07-CA-179461; JD-66-18) Detroit, MI, November 14, 2018. Errata to Administrative Law Judge Elizabeth M. Tafe’s October 22, 2018 decision. Errata. Amended Decision.
American Security Programs, Inc. (05-CA-211315; JD-73-18) Reston, VA. Administrative Law Judge Michael A. Rosas issued his decision on November 14, 2018. Charge filed by Union Patriots of Plaza.
Sierra Verde Plumbing LLC (28-CA-209991; JD(SF)-36-18) Phoenix, AZ. Administrative Law Judge Jeffrey D. Wedekind issued his decision on November 14, 2018. Charge filed by an individual.
ADT, LLC (16-CA-144548, et al.; JD-74-18) Fort Worth, TX. Administrative Law Judge Robert A. Ringler issued his decision on November 16, 2018. Charges filed by Communication Workers of America, AFL-CIO.
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