Summary of NLRB Decisions for Week of September 18 - 22, 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
Gulf Coast Rebar, Inc. (12-CA-149627, et al.; 365 NLRB No. 128) Jacksonville, FL, September 18, 2017.
The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) reversed the Administrative Law Judge and found that the Respondent violated Section 8(a)(5) and (1) by failing to respond to the Union’s information request. The Respondent had contended that it had effectively repudiated the collective-bargaining agreement and was under no obligation to respond to the Union’s information request, and, in any event, that the Union’s charge was untimely.
The majority found that, under established law, the Respondent’s purported notice of its contract repudiation to the Union was ineffective. In particular, the majority concluded that the Respondent had sent a “conflicting signal” to the Union by filing a motion in federal district court to compel arbitration during the six-month period after its purported repudiation of the collective bargaining agreement, and that this conflicting signal privileged the Union to subsequently send its information request and file its unfair labor practice charge based on the Respondent’s noncompliance with that request. Dissenting, Chairman Miscimarra would find that for a “conflicting signal” to be a valid explanation for a “delay in filing” an unfair labor practice charge, it must “predate[] the express repudiation.” Here, Chairman Miscimarra concluded that the Board should not consider the Respondent’s invocation of the contract in moving to compel arbitration as a conflicting signal because it occurred after the letter that allegedly constituted a clear repudiation of the Agreement. Further, he contended that the majority’s position effectively conditions the running of the 10(b) period on whether a conflicting signal manifests by the end of the 6-month period following a putative repudiation event.
Charges filed by Iron Workers Regional District Council, International Union of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO. Administrative Law Judge Keltner W. Locke issued his decision on March 4, 2016. Chairman Miscimarra and Members Pearce and McFerran participated.
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Pacific Coast Sightseeing Tours & Charters, Inc., a wholly owned Subsidiary of Coach USA, Inc., and Megabus West, LLC, an indirectly owned Subsidiary of Coach USA, Inc. (21-CA-168811 and 21-RC-167379; 365 NLRB No. 131) Anaheim, Bakersfield, and Van Nuys, CA, September 18, 2017.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by threatening employees with more strictly enforcing work rules if they chose union representation and by telling employees that they could work elsewhere if they did not like their working conditions. The Board, in agreement with the judge, also sustained the election objection corresponding to those coercive statements made during the critical period and directed a second election.
Charge and petition filed by International Association of Sheet Metal, Air, Rail and Transportation Workers – Transportation Division. Administrative Law Judge Ariel L. Sotolongo issued his decision on March 17, 2017. Chairman Miscimarra and Members Pearce and McFerran participated.
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Retro Environmental, Inc./Green JobWorks, LLC (05-CA-195809; 365 NLRB No. 133) Baltimore, MD, September 21, 2017.
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. Although Chairman Miscimarra dissented in the underlying representation proceeding, he agreed with his colleagues that granting summary judgment was appropriate, because the Respondent had not raised any new matters that were properly litigable in this unfair labor practice proceeding.
Charge filed by Construction and Master Laborers’ Local 11, a/w Laborers’ International Union of North America (LIUNA). Chairman Miscimarra and Members Pearce and McFerran participated.
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ImageFIRST Uniform Rental Service, Inc. (04-CA-166319; 365 NLRB No. 132) Columbia, PA, September 22, 2017.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by demanding that nonemployee union representatives leave the public shoulder where they were distributing handbills, and by threatening to summon and summoning the police because they failed to do so. In finding these violations, the majority (Members Pearce and McFerran) did not rely on the judge’s de minimis trespass analysis. Concurring, Chairman Miscimarra agreed that the Respondent violated the Act for the reasons stated by the majority, but believed that the Board should repudiate the judge’s de minimis trespass analysis as contrary to Supreme Court precedent.
Charge filed by Philadelphia Joint Board, Workers United, a/w SEIU. Administrative Law Judge Kenneth W. Chu issued his decision on February 27, 2017. Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Manorcare of Allentown PA, LLC d/b/a Manorcare Health Services-Allentown (06-RC-186558) Allentown, PA, September 19, 2017. The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Second Supplemental Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. In denying review, the Board agreed with the Regional Director that the Employer’s arguments related to the prior processing of the petition by Region 4 were not relevant to this case. The Board also rejected the Employer’s contention that the petition was misfiled in Region 6, citing the General Counsel’s order stating that the case should be processed in Region 6 as if it had originally been filed in Region 4 and transferred to Region 6. Finally, the Board agreed that the Regional Director properly rejected the Employer’s objection that the Petitioner’s offer in a pre-election hearing to demonstrate its showing of interest by disclosing signed authorization cards was neither sufficiently serious nor sufficiently disseminated to unit employees to call into question the validity of the election. Chairman Miscimarra noted that, although he disagrees with the Board’s recently revised representation procedures, he would not pass on their application to the present case as the Employer had not timely raised the issue. Petitioner – Retail, Wholesale and Department Store Union, RWDSU, UFCW, AFL-CIO. Chairman Miscimarra and Members Pearce and McFerran participated.
PCC Structurals, Inc. (19-RC-202188) Portland, OR, September 22, 2017. The Board (Members Pearce and Kaplan; Chairman Miscimarra, dissenting) denied the Employer’s Request to Stay the Election or, alternatively, to Impound the Ballots. While expressing no view as to the revisions made by the Board’s Election Rule, Member Kaplan agreed that it applied here and warranted denial of the Employer’s request, without prejudice to the Board’s subsequent consideration of the merits of the Request for Review of the Regional Director’s appropriate unit determination. Dissenting, Chairman Miscimarra would find that Employer’s Request for Review warrants staying the election because all parties should have the benefit of the Board’s resolution of election-related issues before the election takes place; alternatively, he would impound the ballots pending the Board’s resolution of election-related issues. Petitioner – International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge W24. Chairman Miscimarra and Members Pearce and Kaplan participated.
Brightside Academy, Inc. (02-RC-204309, et al.) New York, NY, September 22, 2017. The Board denied on the merits the Employer’s Expedited Request for Review of the Acting Regional Director’s Decision and Direction of Election, as it raised no substantial issues warranting review; accordingly, it also denied as moot, the Employer’s Request to Stay the Election and/or Impound Ballots. The Regional Director had ordered a Sonotone election for professional employees and deferred the resolution of certain eligibility issues until after the election. Petitioner – District Council 1707, AFSCME, AFL-CIO. Chairman Miscimarra and Members Pearce and Kaplan participated.
C Cases
ABM Industries Group, LLC (13-CA-183244) Chicago, IL, September 20, 2017. In this case which alleged Section 8(a)(5) and independent 8(a)(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. Charge filed by International Brotherhood of Teamsters, Local 727. Chairman Miscimarra and Members Pearce and McFerran participated.
PCMC/Pacific Crane Maintenance Company, Inc. and/or Pacific Marine Maintenance Co., LLC, a single employer, and/or PCMC/Pacific Crane Maintenance Company, LP, their successor (32-CA-021925, et al.) Oakland, CA/Tacoma, WA, September 20, 2017. The Board (Members Pearce and McFerran; Member Kaplan, concurring) denied the Request for Review filed by six mechanics regarding the General Counsel’s dismissal of the mechanics’ compliance determination appeal. The General Counsel had concluded that the mechanics had no standing to appeal the Regional Director’s failure to include the mechanics as discriminatees in this matter because the Regional Director did not issue a compliance determination and the mechanics are not the Charging Party. In denying the Request for Review, the majority agreed that there was no compliance determination in this case, and, while stating that the Board’s Rules contain no provision for individuals who are not charging parties to file compliance determination appeals, distinguished a case where the Board had considered an appeal by a non-charging party employee. Concurring, Member Kaplan would have dismissed the mechanics’ Request for Review because the Board’s Rules and Regulations do not permit the filing of an appeal in this matter and the mechanics’ motion was not properly before the Board. Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 190, Local Lodge 1546, and District Lodge 160. Members Pearce, McFerran, and Kaplan participated.
Brightside Academy (29-CA-194062) Brooklyn, NY, September 20, 2017. The Board (Members Pearce and McFerran; Chairman Miscimarra dissenting in part) denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter 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 agreement to limit the scope of certain paragraphs to unit employees. Contrary to the dissent, the majority found that the Region’s offer to limit the scope of the subpoena did not establish that it was initially overbroad. Chairman Miscimarra would have granted the Petition to Revoke to the extent that those paragraphs seek documents concerning non-unit employees. In his view, it is more appropriate for the Board to grant a petition to revoke as to such requests, rather than to deny the petition based on changes that were communicated only after the petition is under consideration by the Board. Charge filed by District Council 1707 AFSCME. Chairman Miscimarra and Members Pearce and McFerran participated.
Cinelease, Inc. (31-CA-166005, 31-CA-167675, and 31-RC-164872) Los Angeles, CA, September 21, 2017. No exceptions having been filed to the July 19, 2017 decision of Administrative Law Judge Eleanor Laws’ 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. Charges filed by Studio Transportation Drivers, Local 399 of the International Brotherhood of Teamsters.
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Appellate Court Decisions
Adams and Associates, Inc., Board Case No. 20-CA-130613 (reported at 363 NLRB No. 193) (5th Circuit decided September 15, 2017)
In a published decision, the Court enforced the Board’s Order in full against two employers, Adams and Associates and MJLM, found by the Board to be joint employers. The Employers took over operation of a Job Corps Youth Training Center in Sacramento, California, whose employees had been represented by American Federation of Teachers Local 4986 under the former employer. The Board found that that Adams and Associates unlawfully declined to hire five Residential Associates (“RAs”) employed by the predecessor in an attempt to avoid incurring a bargaining obligation as a successor employer. The Court agreed, finding the Board’s determinations to be reasonable and supported by the record as a whole.
The Court also agreed with the Board’s application of Pressroom Cleaners, 361 NLRB No. 57 (2014), to find that, having discriminated to avoid a bargaining obligation, Adams and Associates had forfeited the successor’s usual right to set initial terms and conditions of employment, and that their changes from the predecessor’s employment terms, including a transfer of duties to employees in the newly created position of Residential Coordinator (“RC”), were therefore unlawful. In so ruling, the Court rejected, as both untimely and without merit, Adams and Associates’ contention in its reply brief that the remedy restoring the status quo was improper because it had recognized and bargained with the Union.
The Court found no merit to Adams and Associates’ challenge to the portion of the Board’s remedy requiring it to rescind the transfer of work from RAs to RCs and requiring the Employers to bargain with the Union as the representative of its RCs as well as RAs. The Court explained that ordering an employer to bargain with respect to employees to whom it has unilaterally and unlawfully transferred work is a traditional remedy, and found no merit to Adams and Associates’ argument that the RCs were supervisors excluded from the Act’s coverage because they intermittently substitute for supervisors “without possessing any other indicia of supervisory authority.”
The Court also upheld as supported by substantial evidence the Board’s finding that Adams and Associates further violated the Act by refusing to grant access to the facility to the Union president, its former employee, for the purpose of bargaining. The Court found that the refusal to grant access was not rendered lawful because it was in accord with a company rule that generally denied access to former employees, and rejected Adams and Associates’ contention that there should be no liability because the parties bargained (with the president participating) at a different location. Finally, the Court, found that substantial evidence supported the Board’s finding that Adams and Associates and MJLM were joint employers under the then-applicable standard set forth in NLRB v. Browning-Ferris Industries Inc., 691 F.2d 1117 (3d Cir. 1982) and Laerco Transportation, 269 NLRB 324, 325 (1984).
The Court’s decision may be found here.
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Administrative Law Judge Decisions
Lucky Cab Company (28-CA-023508; JD(SF)-40-17) Las Vegas, NV. Administrative Law Judge Jeffrey D. Wedekind issued his Supplemental Decision and Order on September 18, 2017. Charge filed by Industrial, Technical and Professional Employees Union, Local 4873 affiliated with Office and Professional Employees International Union, AFL-CIO.
National Captioning Institute, Inc. (16-CA-182528, et al.; JD-71-17) Dallas, TX. Administrative Law Judge Robert A. Ringler issued his decision on September 18, 2017. Charges filed by National Association of Broadcast Employees & Technicians – Communication Workers of America, AFL-CIO.
Delta Sandblasting Company, Inc. (20-CA-176434 and 32-CA-180490; JD(SF)-37-17) Petaluma, CA. Administrative Law Judge Mara-Louise Anzalone issued her decision on September 19, 2017. Charges filed by International Union of Painters and Allied Trades, District Council 16.
ATX Innovation, Inc. d/b/a Tabbed Out (16-CA-180675; JD-72-17) Austin, TX. Administrative Law Judge Christine E. Dibble issued her decision on September 19, 2017. Charge filed by an individual.
General Drivers, Warehousemen & Helpers Local Union No. 89 (affiliated with the International Brotherhood of Teamsters) (Jack Cooper Holdings d/b/a Jack Cooper Transport Co.) (09-CB-157269; JD-5-17) Kansas City, MO and Louisville, KY. Errata to February 6, 2017 decision of Administrative Law Judge Donna N. Dawson. Errata Amended Decision.
Jack Cooper Holdings d/b/a Jack Cooper Transport Co. (09-CA-150482; JD-7-16) Louisville, KY. Errata to January 27, 2016 decision of Administrative Law Judge Melissa M. Olivero. Errata Amended Decision.
Four Seasons Healthcare & Wellness Center, LP, a California Limited Partnership (31-CA-169143; JD(SF)-25-17) North Hollywood, CA. Errata to June 21, 2017 decision of Administrative Law Judge Ariel L. Sotolongo. Errata Amended Decision.
Mayo Clinic Health Systems (18-CA-168834 and 18-CA-174200; JD-74-17) Albert Lea, MN. Administrative Law Judge David I. Goldman issued his decision on September 20, 2017. Charges filed by SEIU Healthcare Minnesota.
Parkview Lounge, LLC, d/b/a Ascent Lounge (02-CA-178531; JD-75-17) New York, NY. Administrative Law Judge Michael A. Rosas issued his decision on September 22, 2017. Charge filed by an individual.
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