Summary of NLRB Decisions for Week of October 30 - November 3, 2017
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
No Published Decisions Issued
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued
C Cases
B & H Foto & Electronics Corp. (29-CA-191326) Brooklyn, NY, October 31, 2017. The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s Order Denying Respondent’s Motion for a Bill of Particulars and Motion to Hold Hearing in Abeyance Pending Outcome of Special Permission to Appeal. The Board found that the Respondent failed to establish that the judge abused his discretion in denying the motions. Charge filed by District 2, United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO-CLC. Members McFerran, Kaplan, and Emanuel participated.
FCA US LLC (08-CA-185825 and 08-CB-185835) Toledo, OH, October 31, 2017. The Board (Members McFerran and Emanuel; Member Kaplan, dissenting in part) denied the Employer’s Petition to Revoke an investigative subpoena duces tecum as the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. The majority, in considering the petition, evaluated the subpoena in light of the Region’s subsequent temporal and geographical limitations. Member Kaplan would have granted the Petition to Revoke to the extent the subpoena seeks documents encompassed by the Region’s post-petition modifications narrowing the scope of the subpoena. In his view, it is more appropriate for the Board to grant the petition to revoke as to such requests, rather than to deny the petition based on changes communicated only after the petition is under consideration by the Board. Charges filed by an individual. Members McFerran, Kaplan, and Emanuel participated.
ATX Innovation, Inc. d/b/a Tabbed Out (16-CA-180675) Austin, TX, October 31, 2017. No exceptions having been filed to the September 19, 2017 decision of Administrative Law Judge Christine E. Dibble’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint. Charge filed by an individual.
Mayo Clinic Health System (18-CA-168834 and 18-CA-174200) Albert Lea, MN, November 1, 2017. No exceptions having been filed to the September 20, 2017 decision of Administrative Law Judge David I. Goldman’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint. Charges filed by an individual and SEIU Healthcare Minnesota.
Mek Arden, LLC d/b/a Arden Post Acute Rehab (20-CA-156352 et al.) Sacramento, CA, November 2, 2017. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 365 NLRB No. 109 (2017). Charges filed by Service Employees International Union, United Long Term Care Workers. Chairman Miscimarra and Members Pearce and McFerran participated.
Baker DC, LLC (05-RC-135621) Washington, D.C., November 2, 2017. The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting in part), having previously granted the Employer’s Request for Review, affirmed the Regional Director’s finding that the mere presence of union officials in the lobby of the building as employees entered to vote was not objectionable conduct sufficient to overturn an election. Chairman Miscimarra would have remanded this case for a hearing as he believes that the Request for Review raises substantial issues warranting a hearing. Petitioner – Operative Plasterers & Cement Masons International Association, Local 891. Chairman Miscimarra and Members Pearce and McFerran participated.
Baker DC, LLC (05-RC-135621) Washington, D.C., November 2, 2017. The Board overruled the Employer’s objection, which alleged that, during the critical period, the Union and/or its agents improperly threatened, coerced, or intimidated two pro-Employer employees. As a result, the Board issued a Certification of Representative. Chairman Miscimarra dissented from the issuance of the Certification of Representative based on his view, in a separate proceeding, that the Regional Director erred in overruling a related Employer objection. See Baker DC, Case 05–RC–135621 (2017) (not reported in Board volumes), above. Petitioner – Operative Plasterers & Cement Masons International Association, Local 891. Chairman Miscimarra and Members Pearce and McFerran participated.
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Appellate Court Decisions
International Union of Operating Engineers, Local 18, Board Case No. 08-CD-081840 (reported at 363 NLRB No. 184) (6th Cir. decided October 31, 2017)
In an unpublished opinion, the Court enforced the Board’s order issued against the International Union of Operating Engineers, Local 18, for violations of Section 8(b)(4)(i) and (ii)(D) for actions taken at jobsites in Cleveland and northeastern Ohio. Specifically, the Court upheld the determinations of the Board (then-Chairman Pearce and Members Hirozawa and McFerran) that Local 18 engaged in unlawful conduct by threatening to strike, striking, and maintaining and pursuing grievances against the Construction Employers Association, a multi-employer bargaining association, and five individual employers, in an effort to obtain forklift and skid steer work that the Board had previously awarded under Section 10(k) to employees represented by the Laborers Locals 894 and 310, associated with Laborers International Union of North America, AFL-CIO. Additionally, the Court agreed with the Board’s rejection of Local 18’s work-preservation defense. The Court noted that, for years, most of the forklift and skid steer work that Local 18 had sought was instead assigned to employees represented by the Laborers Locals 894 and 310, and that by “striking, threatening strikes, and filing grievances, it was laying claim to more.”
The Court’s opinion is here.
Capay, Inc. d/b/a Farm Fresh to You, Board Case No. 20-CA-166233 (reported at 363 NLRB No. 142) (9th Cir. decided November 2, 2017)
In an unpublished opinion, the Court enforced the Board’s bargaining order issued against this produce company with a facility in West Sacramento, California. In the underlying representation case, the Bakery, Confectionery, Tobacco Workers & Grain Millers Union Local 85 petitioned to represent the Employer’s warehouse employees. The parties entered a stipulated election agreement and also agreed that sanitation employees at the facility could also vote in the election, but that their ballots would be held under challenge and their eligibility or inclusion in the unit would be resolved, if necessary, after the election.
In a June 2015 election, the warehouse employees voted 23 to 15 for union representation, and 4 sanitation employees cast ballots, a number insufficient to determine the election outcome. Thereafter, the Employer filed objections. First, the Employer claimed that the sanitation employees should not be included in the unit because they lacked a community of interest with the warehouse employees. Second, it claimed that the Union violated the Board’s captive-audience rule in the 24 hours before the election and, in support, submitted employee affidavits stating that the Union solicited votes by visiting and telephoning employees at home, and by congregating outside the facility’s entrance on election morning and stopping employees as they entered for work. Third, the Employer alleged that the Union had threatened and harassed voting-eligible employees and promised them benefits. The Regional Director issued a decision finding that the Employer failed to raise any material and substantial issue of fact that would warrant a hearing, overruled the objections, and certified the Union. The Employer filed a Petition for Review, which was denied by the Board (then-Member Miscimarra and Members Hirozawa and McFerran).
The Court held that the Board did not abuse its discretion in overruling the objections and certifying the Union. On the issue of the inclusion of the sanitation employees in the unit, the Court held that it lacked jurisdiction over the question. The Court explained that because the Board’s order only requires the Employer to bargain with the Union as representative of unit employees, and that sanitation employees were not included in the unit, the Employer was not “aggrieved by a final order of the Board,” as required for Court review under Section 10(f). On the claim that the Union violated the captive-audience rule—which prohibits the making of election speeches on company time to massed assemblies of employees within 24 hours before a scheduled election—the Court noted that the Employer had not supported the claim with evidence that, if assumed true, would show that the Union made such speeches on company time during that period. On the issue of visiting and telephoning employees at home and engaging in electioneering on the morning of the election, the Court held that the Employer had failed to submit any supporting evidence of objectionable or coercive conduct “beyond legally insufficient subjective impressions by employees.” Finally, the Court concluded that the claims of threats, harassment, and promised benefits, were only “vague allegations” insufficient to support a finding that a free election was rendered impossible.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Hy-Brand Industrial Contractors, Ltd. And Brandt Construction Co., as a single employer and/or joint employers (25-CA-163189, et al.; JD-109-16ER) Muscatine, LA. Erratum issued on October 31, 2017 to the November 14, 2016 decision of Administrative Law Judge Robert A. Ringler. Charges filed by individuals. Erratum Amended Decision.
Teamsters Local Union No. 206 (Safeway Inc.) (19-CB-168283, et al.; JD(SF)-45-17) Clackamas and Portland, OR. Administrative Law Judge Ariel L. Sotolongo issued his decision on October 31, 2017. Charges filed by Safeway Inc.
Green Apple Supermarket of Jamaica, Inc. (29-CA-183238 and 29-CA-188130; JD(NY)-13-17ER) Brooklyn, NY. Errata issued on November 1, 2017 to the October 19, 2017 decision of Administrative Law Judge Kenneth W. Chu. Charges filed by United Food and Commercial Workers, Local 342, AFL-CIO. Errata Amended Decision.
Local 150, International Union of Operating Engineers (IUOE), AFL-CIO (MacAllister Machinery Co., Inc.) (07-CB-177422; JD-89-17) Niles, MI. Administrative Law Judge Robert A. Ringler issued his decision on November 3, 2017. Charge filed by an individual.
RDM Concrete & Masonry, LLC, Collective Concrete & Masonry, LLC, and Remco Concrete, LLC (22-CA-181515; JD(NY)-15-17) Newark, NJ. Administrative Law Judge Jeffrey P. Gardner issued his decision on November 3, 2017. Charge filed by New Jersey Building Laborers District Council.
ProudLiving Companies, LLC (22-CA-180487; JD(NY)-14-17) Newark, NJ. Administrative Law Judge Jeffrey P. Gardner issued his decision on November 3, 2017. Charge filed by an individual.
Rhino Northwest, LLC (19-CA-165356, et al.; JD(SF)-46-17) Seattle, WA. Administrative Law Judge John T. Giannopoulos issued his decision on November 3, 2017. Charges filed by Local No. 15, International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, AFL-CIO, CLC.
Silver Services Group Corp. (22-CA-185684, et al.; JD(NY)-17-17) Newark, NJ. Administrative Law Judge Jeffrey P. Gardner issued his decision on November 3, 2017. Charges filed by Laborers Local 79, Laborers International Union of North America.
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