Summary of NLRB Decisions for Week of October 1 - 5, 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
Consolidated Communications d/b/a Illinois Consolidated Telephone Co. (14-CA-094626 and 14-CA-101495; 367 NLRB No. 7) Mattoon, IL, October 2, 2018.
On remand from the D.C. Circuit Court, the Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting) dismissed the Board’s earlier finding that the Respondent had violated Section 8(a)(3) and (1) when it discharged an employee for her strike-related activity of maneuvering to block a company truck while driving at highway speeds. The Court had found that the Board failed to properly consider whether the striker’s activity had lost the Act’s protection, and the Court remanded the case to consider whether, under all of the relevant circumstances, the striker’s driving behavior would have “reasonably tend[ed] to coerce or intimidate” the nonstrikers in the company truck. Applying this test, the majority concluded the striker’s conduct had lost the Act’s protection. Dissenting, Member McFerran would reaffirm the violation and find that the striker’s driving would not have reasonably tended to coerce or intimidate the nonstrikers and thus did not lose the Act’s protection.
Charges filed by Local 702, International Brotherhood of Electrical Workers, AFL-CIO. Administrative Law Judge Arthur J. Amchan issued his decision on November 19, 2013. Chairman Ring and Members McFerran and Kaplan participated.
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ADI Worldlink, LLC; Samsung Electronics America, Inc. f/k/a Samsung Telecommunications Americas, LLC (07-CA-157722 and 20-CA-156284; 367 NLRB No. 10) Dallas, TX, October 2, 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 and enforcement of its mandatory arbitration agreement violated Section 8(a)(1) must be dismissed. The Board remanded to the Regional Director the separate issue, before the Board on the parties’ motions for summary judgment, whether the Respondent’s mandatory arbitration agreement independently violates Section 8(a)(1) of the Act because it interferes with employees’ ability to access the Board. The Board observed that, when the parties filed their pending motions, 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. The Board found that, under the standard announced in Boeing, the parties’ motions do not establish that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law as to this complaint allegation.
Charges filed by individuals. Chairman Ring and Members McFerran and Kaplan participated.
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United Government Security Officers of America International and its Local 129 (04-CB-192246, et al.; 367 NLRB No. 5) Scranton, PA, October 4, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondents violated Section 8(b)(2) and 8(b)(1)(A) by failing to file or process a grievance to restore an individual’s past union seniority after he returned to work following a medical absence and/or failing to grant him union seniority. The Board found that the Respondents waived their Section 10(b) defense by failing to plead it sufficiently specifically or litigate it during the hearing. The Board noted that, even if the defense were not waived, it would adopt the judge’s alternative finding that the charge was timely filed. In the absence of exceptions, the Board also adopted the judge’s finding that Respondent Local 129 violated Section 8(b)(2) and 8(b)(1)(A) by attempting to cause the Employer to discriminate against an individual because of his union and protected activities.
Charges filed by individuals. Administrative Law Judge Robert A. Giannasi issued his decision on June 4, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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Adecco USA, Inc. (13-CA-175962; 367 NLRB No. 11) Chicago, IL, October 4, 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 and enforcement of its mandatory arbitration agreement violated Section 8(a)(1) must be dismissed. The Board remanded to the Regional Director the separate issue, before the Board on the General Counsel’s motion for summary judgment, whether the Respondent’s mandatory arbitration agreement independently violates Section 8(a)(1) of the Act because it interferes with employees’ ability to access the Board. The Board observed that, when the General Counsel filed the pending motion, 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. The Board found that, under the standard announced in Boeing, the General Counsel’s motion does not establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law as to this complaint allegation.
Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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Ford Motor Company (07-CA-198075; 367 NLRB No. 8) Allen Park, MI, October 5, 2018.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent, Ford Motor Company, was a lawful successor to Jacobs Engineering, the prior contractor, in its operation of the maintenance operation at the Drivability Testing Facility. Accordingly, the Board adopted the judge’s finding that the Respondent unlawfully refused to recognize and bargain with the Union in violation of Section 8(a)(5) and (1).
Charge filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO. Administrative Law Judge David I. Goldman issued his decision on February 8, 2018. Chairman Ring and Members McFerran and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Bio-Medical Applications of Alabama, Inc. d/b/a Fresenius Kidney Care Dauphin Island Parkway (15-RC-201753) Mobile, AL, October 1, 2018. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections as it raised no substantial issues warranting review. Petitioner—Retail, Wholesale and Department Store Union, Local 932. Members McFerran, Kaplan, and Emanuel participated.
East Valley Glendora Hospital, LLC d/b/a Glendora Community Hospital (31-RC-219293) Glendora, CA, October 4, 2018. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. The Employer had contended that the Regional Director had erred in overruling its objections, without a hearing, concerning pro-union supervisory conduct during the election. Chairman Ring and Member Kaplan expressed no view with respect to the revisions made to the Board’s Election Rule, but agreed that it applied here and warranted denial of the Employer’s Request for Review in this case. Petitioner—Service Employees International Union, Local 121RN. Chairman Ring and Members McFerran and Kaplan participated.
C Cases
Dave and Busters Management Corporation, Inc. (19-CA-181845) Happy Valley, OR, October 3, 2018. The Board denied, without prejudice, the joint motion to transfer this proceeding directly to the Board for a decision based on the stipulated record. The complaint alleged, among other things, a violation based on Board precedent finding unlawful the maintenance and enforcement of arbitration agreements requiring employees to waive the right to file or participate in class or collective actions in all forums. In light of the recent Supreme Court decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612 (2018), which held that such arbitration agreements do not violate the Act, the Board denied the parties’ joint motion without prejudice. Charge filed by individual.
United States Postal Service (12-CA-202996 and 12-CA-203260) Key West, FL, October 4, 2018. The Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act. The complaint had alleged Section 8(a)(5) refusal to provide/delay in providing relevant information violations. Charges filed by National Association of Letter Carriers, Branch 818, AFL-CIO, and American Postal Workers Union, Local 620, AFL-CIO. Members McFerran, Kaplan, and Emanuel participated.
United States Postal Service (10-CA-204533, et al.) Charlotte, NC, October 4, 2018. 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. The complaint had alleged Section 8(a)(5) refusal to provide/delay in providing relevant information violations. Member Emanuel noted that he would not approve the parts of the Order that require the Respondent to take action with respect to “any other union[s],” because no violations against other unions were alleged as part of this case. Charges filed by National Association of Letter Carriers, AFL-CIO, Branch 545. Members McFerran, Kaplan, and Emanuel participated.
Nexstar Broadcasting Group, Inc. d/b/a WIVB-TV (03-CA-210156) Buffalo, NY, October 5, 2018. The Board denied the Respondent’s Motion for Summary Judgment, in which it argued that the matter should be dismissed or deferred to arbitration. The Board found that the Respondent had failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. The denial is without prejudice to the Respondent's right to renew its arguments regarding deferral to the Administrative Law Judge, after presenting evidence, and to raise the deferral issue before the Board on any exceptions that may be filed to the judge’s decision, if appropriate. Charge filed by National Association of Broadcast Employees & Technicians - Communications Workers of America, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel 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
St. Paul Park Refining Co. d/b/a Andeavor (18-CA-205871 and 18-CA-206697; JD-65-18) St. Paul, MN. Administrative Law Judge Arthur J. Amchan issued his decision on October 5, 2018. Charges filed by an individual.
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