Summary of NLRB Decisions for Week of September 4 - 7, 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
Buy-Low Market, Inc. (21-CA-173346; 367 NLRB No. 1) Carson, CA, September 6, 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 must be dismissed. The Administrative Law Judge had found that Respondent’s maintenance and enforcement of its dispute resolution program, which required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, violated the Act under the Board’s decisions in Murphy Oil and D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part, 737 F.3d 344 (5th Cir. 2013).
Charge filed by an individual. Administrative Law Judge Amita Baman Tracy issued her decision on February 3, 2017. Chairman Ring and Members McFerran and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Savage Services Corporation (21-RC-219057) Wilmington, CA, September 4, 2018. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction to Open and Count Certain Challenged Ballots as it raised no substantial issues warranting review. The Employer’s request for a stay of the decision was also denied as moot. The Regional Director had found that on-call drivers were regular part-time employees under the Davison-Paxon criteria and therefore eligible to vote. Petitioner — Wholesale Delivery Drivers, General Truck Drivers, Chauffeurs, Sales, Industrial and Allied Workers, Teamsters Local 848, International Brotherhood of Teamsters. Chairman Ring and Members McFerran and Kaplan participated.
CoreCivic of Tennessee, LLC (28-RC-213154) Eloy, AZ, September 6, 2018. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. In denying review, the Board declined to pass on the party agent’s conduct in the voting room because it was not properly before the Board and distinguished Nathan Katz Realty, LLC v. NLRB, 251 F.3d 981 (D.C. Cir. 2001), noting that certain circumstances of the alleged conduct in Katz were not present in the instant case. Member McFerran agreed that Nathan Katz Realty, LLC is distinguishable without addressing whether it was correctly decided. Member Kaplan noted that many of the issues in this case could have been avoided by the designation and enforcement of a no-electioneering zone and believes this issue should be addressed in a future appropriate proceeding. Petitioner — International Union, Security, Police and Fire Professionals of America (SPFPA). Chairman Ring and Members McFerran and Kaplan participated.
NP Sunset LLC d/b/a Sunset Station Hotel & Casino (28-RC-222992) Henderson, NV, September 7, 2018. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and Certification of Representative as it raised no substantial issues warranting review. The Regional Director had found that the technicians who maintained gaming machines were not guards within the meaning of Section 9(b)(3) and certified the petitioned-for unit. Petitioner — International Union of Operating Engineers Local 501, AFL-CIO. Chairman Ring and Members McFerran and Kaplan participated.
The Boeing Company (10-RC-215878) North Charleston, SC, September 7, 2018. The Board granted Motions for Leave to File a Brief Amicus Curiae submitted by South Carolina Chamber of Commerce, South Carolina Manufacturers Alliance, Coalition for a Democratic Workplace, Independent Electrical Contractors, National Association of Wholesaler-Distributors, National Federation of Independent Business, National Retail Federation, Restaurant Law Center, Retail Industry Leaders Association, Business Roundtable, Chamber of Commerce of the United States of America, State of South Carolina, Ex Rel. Alan Wilson, Attorney General, National Association of Manufacturers, HR Policy Association, Society for Human Resource Management, and Governors of South Carolina, Maine, Mississippi, and Kentucky.
C Cases
No unpublished C Cases issued.
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Appellate Court Decisions
Teachers College, Columbia University, Board Case No. 02-CA-164870 (reported at 365 NLRB No. 86) (D.C. Cir. decided September 4, 2018)
In a published opinion, the Court enforced the Board’s order issued against this nonprofit higher-education institution that serves as Columbia University’s graduate school of education in New York City. Since the 1990s, the College’s secretarial and clerical employees have been covered by a collective-bargaining agreement with Local 2110, Technical, Office and Professional Union, United Auto Workers, AFL-CIO.
In 2012, based on a suspicion that the College was violating the contract by transferring unit work to non-unit employees, the Union filed a grievance and a request for information regarding non-unit employees and their work. After discussions with the College, the Union narrowed the scope of its request, and later, in the face of the College’s continuing refusal to provide information, took the matter to arbitration. Among other rulings, the arbitrator ordered the parties to agree on what information should be provided. The College made demands that the Union better explain the relevance of information sought and narrow the request. In response, the Union canvassed its members, and compiled all available information on the non-unit positions in question and its explanations of relevance into a detailed chart, which it gave the College in October 2015. The College continued to refuse to provide the information, and the Union filed an unfair-labor-practice charge.
The Administrative Law Judge concluded that, by the time of the October 2015 request, the Union had demonstrated both the relevance of the requested information and the evidence giving rise to its reasonable belief of the information’s relevance, and that the College’s refusal violated Section 8(a)(5) and (1). On exceptions, the Board (Chairman Miscimarra and Members Pearce and McFerran) adopted the judge’s recommended findings.
On review, the Court upheld the Board’s finding because it was supported by substantial evidence and consistent with applicable law, concluding: “It is obvious to us, as it was to the ALJ, that this kind of information was relevant for processing the grievance and preparing for arbitration on the issue, both of which are central to the union’s ‘carrying out its statutory duties and responsibilities,’” quoting NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967). Further, the Court rejected the College’s challenges to the sufficiency of the Union’s showing, including that it was too conclusory, as well as its contention that the Union had made the request in bad faith and only for the purpose of bringing an unfair-labor-practice charge.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Challenge Manufacturing Company, LLC (07-CA-199352; JD-54-18) Holland, MI. Administrative Law Judge Paul Bogas issued his decision on September 5, 2018. Charge filed by an individual.
Cantor Fitzgerald, LP (28-CA-195506; JD(SF)-26-18) New York, NY. Administrative Law Judge Jeffrey D. Wedekind issued his decision on September 7, 2018. Charge filed by an individual.
BGC Partners, Inc. (28-CA-195500; JD(SF)-25-18) New York, NY. Administrative Law Judge Jeffrey D. Wedekind issued his decision on September 7, 2018. Charge filed by an individual.
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