Summary of NLRB Decisions for Week of April 13 - 17, 2020
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
Aryzta, LLC (31-CA-178826; 369 NLRB No. 55) Los Angeles, CA, April 13, 2020.
The Board, applying The Boeing Company, 365 NLRB 154 (2017) and Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), concluded that the Respondent violated Section 8(a)(1) by maintaining its Mutual Agreement to Arbitrate (MAA). The MAA covered a wide range of claims but contained an exclusion clause stating that “claims” does not mean any dispute if arbitration of the dispute is “prohibited by law,” and it included an opt-out clause. The Board reasoned that employees would reasonably interpret the MAA’s open-ended litany of claims to restrict access to the Board. Concurring, Member Emanuel distinguished cases in which he has dissented and agreed with his colleagues that the exclusion language does not preserve employees’ rights to file NLRA charges because the Act does not “prohibit” arbitration. In light of the MAA’s unjustifiable restriction of access to the Board, the Board rejected the Respondent’s opt-out based argument that the agreement was lawful because it was not mandatory.
Charge filed by an individual. Administrative Law Judge Eleanor Laws issued her decision on April 9, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville (13-CA-209951, et al.; 369 NLRB No. 56) Libertyville, IL, April 14, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) when it failed and refused to execute a collective-bargaining agreement that reflected the terms agreed to by the Respondent and the Union. The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) when it failed and refused to reinstate striking employees after their unconditional offer to return to work.
Charges filed by International Association of Machinists and Aerospace Workers, Automobile Mechanics Local 701, AFL-CIO. Administrative Law Judge Geoffrey Carter issued his decision on June 24, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Securitas Security Services USA (16-CA-176006 and 16-CA-183494; 369 NLRB No. 57) Austin, TX, April 14, 2020.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by prohibiting an employee from discussing the Respondent’s internal investigations. The Board applied Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), a decision issued after the judge’s decision, to determine that the Respondent’s instruction was lawful. The Board declined to decide whether the Respondent’s instruction was unlawfully overbroad under Apogee in restricting employee discussion of incidents underlying its internal investigation or discussion by employees not involved in those investigations because those issues were not fully and fairly litigated.
Charges filed by an individual. Administrative Law Judge Donna N. Dawson issued her supplemental decision on August 30, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Claridge Operations LLC, d/b/a Claridge Health Care Center (13-CA-243715; 369 NLRB No. 58) Lake Bluff, IL, April 15, 2020.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to execute a written contract embodying the parties’ collectively-bargained agreement.
Charge filed by Healthcare, Professional, Technical, Office, Warehouse, and Mail Order Employees Union, Local 743. Chairman Ring and Members Kaplan and Emanuel participated.
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Kauai Veterans Express Co. (20-CA-193339, et al.; 369 NLRB No. 59) Kauai, HI, April 16, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union as the bargaining representative of the unit employees. The Board found that the petition submitted to the Employer was not objective evidence of a loss of majority support because it was facially contradictory and stated that employees wished to cease their membership, not representation; further, the petition was tainted by an Employer-initiated decertification petition circulated to employees several months prior. The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by polling employees about their union support. Finally, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to furnish the Union with relevant, requested information, and by unilaterally ceasing to deduct and remit dues payments to the Union and by failing to make contractually required contributions to the Union’s trust fund. Applying Valley Hospital Medical Center, Inc., 368 NLRB No. 139 (2019), the Board modified the remedy set forth by the judge such that the Respondent’s dues reimbursement obligation terminated as of the June 30, 2019 expiration of the parties’ collective-bargaining agreement.
Charges filed by Operating Engineers Local Union No. 3. Administrative Law Judge Dickie Montemayor issued his decision on August 27, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Geodis Logistics, LLC (15-RD-217294 and 15-RD-231857) Memphis, TN, April 13, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s dismissal of the petitions as it raised no substantial issues warranting review. The Board found that the petitions are subject to reinstatement, if appropriate, after final disposition of the unfair labor practice proceedings, and, accordingly, made the Petitioner a party-in-interest to the unfair labor practice cases solely for the purpose of receiving notification of the final outcome of those cases. Petitioner—an Individual. Union—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers Union, AFL-CIO-CLC. Chairman Ring and Members Kaplan and Emanuel participated.
Elon University (10-RC-231745) Elon, NC, April 13, 2020. The Board granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised a substantial issue with respect to the continued application of the Board’s “majority status rule” as articulated in Pacific Lutheran University, 361 NLRB 1404 (2014). The Board denied the Request for Review in all other respects. Petitioner—SEIU Workers United Southern Region. Chairman Ring and Members Kaplan and Emanuel participated.
NP Sunset LLC d/b/a Sunset Station Hotel & Casino (28-RC-242249) Henderson, NV, April 13, 2020. 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. The Board found it unnecessary to pass on whether union supporters who stationed themselves at the Employer’s facility on the day of the election were acting as the Petitioner’s special agents, but found that, even if they were the Petitioner’s agents, their conduct was not objectionable. Member Kaplan stated that the issue of the designation and enforcement of no-electioneering zones should be addressed in a future appropriate proceeding. Petitioner—Local Joint Executive Board of Las Vegas a/w UNITE HERE International Union. Chairman Ring and Members Kaplan and Emanuel participated.
McLaren Macomb (07-RC-243228) Mt. Clemens, MI, April 14, 2020. The Board denied the Employer’s Requests for Review of the Regional Director’s Decision and Direction of Election, and of the Decision on Objections 1 and 4, as they raised no substantial issues warranting review. The Regional Director had found a residual unit of nonprofessional employees appropriate under St. Mary’s Duluth Clinic Health System, 332 NLRB 1419 (2000). The Board also denied the Employer’s request to stay the election as moot. Petitioner—Local 40, RN Staff Council, Office and Professional Employees International Union (OPEIU), AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
EIHAB Human Services, Inc. (29-RC-245133) Jamaica, NY, April 15, 2020. 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. Petitioner—Local 215, District Council 1707, AFSCME, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
PCA Central California Corrugated, LLC (20-RC-248663) McClellan, CA, April 15, 2020. The Board denied the Employer’s Requests for Review of the Regional Director’s Decision and Direction of Election and Decision to Overrule Employer’s Objection to Election and Certification of Representative as they raised no substantial issues warranting review. Petitioner—Association of Western Pulp and Paper Workers. Chairman Ring and Members Kaplan and Emanuel participated.
Western Wall Systems, LLC (28-RC-247464) Las Vegas, NV, April 16, 2020. 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. Petitioner—Operative Plasterers and Cement Masons Local 797. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
United States Postal Service (10-CA-238338, et al.) Kannapolis, NC, April 13, 2020. 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 that the Respondent violated Section 8(a)(5), (4), (3), and (1) by informing employees or giving the impression that filing grievances was futile, telling employees that the Respondent does not have to abide by grievance resolutions, and threatening employees because they engaged in protected activity. Charges filed by National Association of Letter Carriers, AFL-CIO, Branch 2794. Members Kaplan and Emanuel participated. Chairman Ring, who was recused, was a member of the panel but did not participate in the decision on the merits.
SJK, Inc. d/b/a Fremont Ford (32-CA-151443) Newark, CA, April 15, 2020. The Board denied the Charging Party’s Motion for Reconsideration of the Board’s Decision and Order, reported at 369 NLRB No. 4 (2020). The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, East Bay Automotive Machinists Lodge No. 1546, District Lodge 190. Chairman Ring and Members Kaplan and Emanuel participated.
Casino Pauma (21-CA-161832) Pauma Valley, CA, April 15, 2020. No exceptions having been filed to the March 3, 2020 decision of Administrative Law Judge Robert A. Giannasi’s 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. Charge filed by UNITE HERE International Union.
The Transportation Corporation (22-CA-234445) Newton, NJ, April 15, 2020. The Board construed the Union’s Motion for a Bill of Particulars as a Motion for Reconsideration and denied the motion. The Board found that the Union had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by World Association of Motorcar Inspectors, WAMI, New York City Regional Local. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
United Automobile, Aerospace and Agricultural Implement Workers of America, Local 600, AFL-CIO, Board No. 07-CB-221096 (reported at 368 NLRB No. 54) (6th Cir. decided April 13, 2020).
The Court issued a published opinion reviewing the Board’s order issued against this Union that represents employees at the Ford Motor Company plant in Dearborn, Michigan. The Board (Chairman Ring and Members McFerran and Emanuel) found that the Union committed two violations of Section 8(b)(1)(A). First, the Board found that the Union breached its duty of fair representation by intentionally mistreating an employee when it delayed the processing of his resignation from union membership and revocation of his dues-checkoff authorization for over two months, as it continued to receive remitted dues. Second, the Board, relying on its decision in Walt Disney Parks & Resorts U.S., Inc., 366 NLRB No. 96 (2018), found that the Union’s delay unlawfully coerced the employee, regardless of the Union’s claim that the delay was inadvertently caused by clerical error.
On review, the Court agreed with the Board that the Union breached its duty of fair representation by intentionally ignoring the employee’s membership resignation and check-off revocation, and later by responding reproachfully to him after he filed an unfair labor practice charge. The Court, however, disagreed with the Board’s finding that the delay further violated Section 8(b)(1)(A) by coercing the employee, regardless of the Union’s claim that the delay was inadvertent. In so ruling, the Court found that Walt Disney, on which the Board had relied, did not categorically establish that intent is unnecessary to establish such a violation.
The Court’s opinion is here.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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