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Summary of NLRB Decisions for Week of December 3 - 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

Bodega Latina Corporation d/b/a El Super  (21-CA-183276; 367 NLRB No. 34)  Anaheim, CA, December 3, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by denying an employee’s vacation pay request because of her union support, and violated Section 8(a)(1) by showing her a document which indicated that she was denied vacation pay because, among other reasons, she was “pro union.”  The Board rejected the judge’s recommendation ordering extraordinary remedies (notice-reading and a broad cease-and-desist order) and notice-posting at all seven of the Respondent’s union-represented stores in California.  The Board awarded interest to compensate for the Respondent’s delay in paying the requested vacation funds.

Charge filed by United Food and Commercial Workers Union, Local 324.  Administrative Law Judge Gerald M. Etchingham issued his decision on December 29, 2017.  Chairman Ring and Members Kaplan and Emanuel participated.

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Apple SoCal, LLC d/b/a Applebee’s, Apple American Group II, LLC d/b/a Applebee’s and Apple American Group, LLC  (31-CA-185387; 367 NLRB No. 44)  Azusa, CA, December 4, 2018.  The Board remanded to the Regional Director the issue, before the Board on the Respondents’ Motion for Partial Summary Judgment, whether the Respondents’ mandatory arbitration agreement violates Section 8(a)(1) because it prohibits or restricts employees’ access to the Board.  The Board rejected the Respondents’ argument that the allegation should be dismissed as untimely under Section 10(b).  The Board also observed that, at the time the charge and the amended charges were filed, the issue of whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would have been 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 (2017), 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 has not established 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.

Charge filed by an individual.  Chairman Ring and Members McFerran and Kaplan participated.

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Orient Tally Company, Inc., and California Cartage Company LLC, a single employer  (21-CA-160242 and 21-CA-162991; 367 NLRB No. 36)  Wilmington, CA, December 4, 2018.

In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by interrogating an employee, telling an employee to bring work-related concerns directly to management rather than voice them elsewhere, and impliedly threatening an employee with termination by asking him why he did not work elsewhere if he was unhappy with his terms and conditions of employment.  Also, in the absence of exceptions, the Board adopted the judge’s dismissal of two complaint allegations.  In light of the unexcepted-to interrogation finding, the Board found it unnecessary to pass on the judge’s finding that the Respondent’s questioning of employees about taking heat breaks violated Section 8(a)(1) because the finding would be cumulative.  The Board also found it unnecessary to pass on the judge’s finding that the joint heat breaks constituted protected concerted activity. The Board reversed the judge’s finding that the Respondent threatened employees with unspecified reprisals when he ordered them to return to work.  Finally, the Board adopted the judge’s finding that the Respondent did not violate Section 8(a)(1) by issuing reports to employees documenting their heat breaks because the reports did not reasonably tend to create the impression that they were disciplinary in nature.

Charges filed by Warehouse Worker Resource Center.  Administrative Law Judge Ariel L. Sotolongo issued his decision on February 28, 2018.  Chairman Ring and Members Kaplan and Emanuel participated.

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American Sales and Management Organization, LLC d/b/a Eulen America  (12-CA-163435 and 12-CA-176653; 367 NLRB No. 42)  Fort Lauderdale, FL, December 4, 2018.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent is an employer within the meaning of Section 2(2) and subject to the Board’s jurisdiction and that the Respondent violated Section 8(a)(3) and (1) by discharging and refusing to rehire an employee because she engaged in union activity.  The Board applied the National Mediation Board’s recently reaffirmed six-factor test for determining whether a company is controlled by a carrier and found that five of the six factors supported a finding that air carriers do not exercise a significant degree of influence over the Respondent’s operations and employees.  In a separate concurrence, Member McFerran reiterated her view that the National Mediation Board has not adequately explained its decision to return to the six-factor jurisdictional test.  However, Member McFerran joined the majority in asserting jurisdiction because the evidence demonstrated that the Respondent is not subject to carrier control under either the six-factor standard or the NMB’s prior approach which gave greater weight to carrier control over personnel decisions.

Charges filed by Service Employees International Union, Local 32BJ.  Administrative Law Judge Ira Sandron issued his decision on January 30, 2018.  Chairman Ring and Members McFerran and Kaplan participated.

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University of Chicago  (13-CA-217957; 367 NLRB No. 41)  Chicago, IL, December 4, 2018.

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.

Chairman Ring noted that he did not participate in the underlying representation proceeding, but he agreed with his colleagues that the Respondent had not raised any litigable issue in this unfair labor practice proceeding and that summary judgment was appropriate, with the parties retaining their respective rights to litigate relevant issues on appeal.  In a future appropriate proceeding, however, Chairman Ring noted that he would agree to consider whether, and under what circumstances, students qualify as “employees” within the meaning of Section 2(3).   Members Kaplan and Emanuel noted that they participated in prior stages of the underlying representation proceeding in which relitigation of the employee status issue was precluded and, like the Chairman, they expressed an interest in considering, in a future appropriate proceeding, whether and under what circumstances students qualify as “employees” under the Act.

Charge filed by Healthcare, Professional, Technical, Office, Warehouse and Mail Order Employees, Local 743, IBT.  Chairman Ring and Members Kaplan and Emanuel participated.

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United States Postal Service  (12-CA-207188; 367 NLRB No. 40)  Tampa, FL, December 6, 2018.

The Board dismissed the complaint, affirming the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(3) and (1) by terminating an employee for her union activity.  The judge found that, although the employee engaged in union activity and the Respondent was aware of that activity, the General Counsel had failed to offer any credible evidence that the Respondent harbored animus towards the employee’s union activity; moreover, the Respondent had met its burden of showing that it would have discharged the employee even absent her union activity.

Charge filed by an individual.  Administrative Law Judge Michael A. Rosas issued his decision on July 16, 2018.  Members McFerran, Kaplan, and Emanuel participated.

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Novelis Corporation  (03-CA-121293, et al.; 367 NLRB No. 47)  Oswego, NY, December 7, 2018.

Upon remand from the Second Circuit Court of Appeals, the Board, applying the law of the case, deleted the Gissel bargaining order previously issued but agreed with the General Counsel that special remedies are necessary to dissipate any lingering effects of the Respondent’s unfair labor practices and to ensure a fair election if the Union files a new petition.  Because the Union did not request reinstatement of the petition, a Board majority (Chairman Ring and Member Kaplan) did not direct a second election.  Member McFerran would have reinstated the election petition and ordered a second election, reasoning that the petition was dismissed in the initial Board decision because the Gissel bargaining order mooted it.  Because the Gissel order has now been deleted, she argued that the petition should be reinstated.  In addition, in light of the Court’s remand in response to the Board’s Motion to Sever, the Board remanded to the Administrative Law Judge the two workplace rule violations consistent with the Board’s decision in The Boeing Company, 365 NLRB No. 154 (2017).

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.  Administrative Law Judge Michael A. Rosas issued his decision on January 30, 2015.  Chairman Ring and Members McFerran and Kaplan participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Pennsylvania American Water Co.  (06-RC-218209)  Pittsburgh, PA, December 6, 2018.  The Board denied the Employer’s and Intervenor’s Requests to Stay or, alternatively, to impound the ballots.  Chairman Ring and Member Kaplan expressed no view with respect to the revisions to the Board’s Election Rule, but agreed that it applied here and warranted denial of the Employer’s and Intervenor’s requests.  Petitioner—Utility Workers United Association, Local 537.  Intervenor—Utility Workers Union of America, AFL-CIO, and its Local 537.  Chairman Ring and Members McFerran and Kaplan participated.

C Cases

Ozburn-Hessey Logistics, LLC  (26-CA-092192, 15-CA-097046, et al.)  Memphis, TN, December 3, 2018.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 366 NLRB No. 177 (2018), on the basis that the Respondent had not demonstrated extraordinary circumstances warranting reconsideration.  The Board also rejected the Respondent’s contention that the Administrative Law Judge’s credibility findings preclude the Board from inferring its knowledge of employee’s union activity from circumstantial evidence.  Chairman Ring adhered to his partial dissent in the underlying decision, but agreed that the Respondent had not shown extraordinary circumstances warranting reconsideration.  Member Kaplan, who had not participated in the underlying decision, expressed no view as to whether it was correctly decided, but agreed that the Respondent’s motion should be denied because it had not shown extraordinary circumstances.  Charges filed by individuals and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers, International Union, AFL-CIO, CLC a/k/a United Steelworkers Union.  Chairman Ring and Members McFerran and Kaplan participated.

Boar’s Head Provisions Co., Inc.  (07-CA-209874 and 07-CA-212031)  Holland, MI, December 6, 2018.  The Board denied the Respondent’s Motion for Partial Summary Judgment regarding the complaint allegations that it unlawfully changed its vacation and attendance policies in order to discourage employees from engaging in union activity.  The Board found that the Respondent failed to establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law concerning those allegations.  Charges filed by United Food & Commercial Workers International Union (UFCW), AFL-CIO.  Chairman Ring and Members McFerran and Kaplan participated.

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Appellate Court Decisions

Mek Arden, LLC d/b/a Arden Post Acute Rehab, Board Case No. 20-CA-156352 (reported at 365 NLRB No. 109) (D.C. Cir. decided December 7, 2018)

In an unpublished judgment, the Court enforced the Board’s order issued against this operator of a long-term-care and rehabilitation facility in Sacramento, California.  The Board’s order remedies several violations of Section 8(a)(1) committed during the weeks leading up to an election in which a unit of certified nursing assistants, cooks, housekeepers, and maintenance workers voted 41 to 45 not to be represented by Service Employees International Union, Local 2015.

The Board (Chairman Miscimarra and Members Pearce and McFerran) found that the Employer unlawfully directed employees to wear attire associated with its anti-union campaign, created the impression that employees’ union and protected activities were under surveillance, prohibited the posting of union literature and removed such postings, and directed employees not to wear union scrubs or to visit areas of the facility to which they were not assigned.  The Board also found (Chairman Miscimarra, dissenting in part) that the Employer unlawfully solicited employee grievances and impliedly promised to remedy them.  Finally, the Board set aside the election and remanded the case to the Regional Director to conduct a new election.

On review, the Court held that the Board’s findings were supported by substantial evidence, sound credibility determinations, reasoned decision-making, and proper application of the law.  The Court also denied the Employer’s Motion to Remand the case for reconsideration under The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), which issued while review was pending.  In doing so, the Court agreed with the Board that Boeing “does not apply to rules that—as here—were promulgated in response to protected activity, or have been applied to restrict protected activity,” and therefore there was no basis for remand.

The Court’s unpublished judgment may be found here.

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Administrative Law Judge Decisions

Bob’s Tire Co., Inc. and B.J.’s Service Company, Inc.  (01-CA-183476; JD-79-18)  New Bedford, MA.  Administrative Law Judge Arthur J. Amchan issued his decision on December 7, 2018.  Charge filed by United Food and Commercial Workers International Union Local 328.

Shamrock Cartage, Inc.  (09-CA-219396; JD-78-18)  Columbus, OH.  Administrative Law Judge Andrew S. Gollin issued his decision on December 6, 2018.  Charge filed by International Brotherhood of Teamsters, Local Union No. 413.

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