Summary of NLRB Decisions for Week of April 15 - 19, 2019
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
Metalcraft of Mayville, Inc. (18-CA-178322; 367 NLRB No. 116) Mayville, WI, April 17, 2019.
A Board majority (Chairman Ring and Member Emanuel), reversing the Administrative Law Judge, found that the Respondent acted lawfully when it discontinued dues checkoff following the effective date of a Wisconsin right to work law that included provisions addressing permissible dues checkoff arrangements. The Board found that the Respondent had a “sound, arguable basis” for interpreting the parties’ agreement as not requiring the continuation of dues checkoff under those circumstances, and that the Respondent’s communications to employees regarding the matter also were lawful and did not constitute direct dealing in violation of its duty to bargain with the Union. Dissenting, Member McFerran found that the Respondent’s discontinuance of dues checkoff was unlawful because the state law was relevantly preempted by the Act, and that its communications to employees unlawfully disparaged the Union and constituted unlawful direct dealing.
Charge filed by District Lodge No. 10, International Association of Machinists and Aerospace Workers of America, AFL-CIO. Administrative Law Judge Charles J. Muhl issued his decision on March 10, 2017. Chairman Ring and Members McFerran and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Dawson Construction, LLC (19-RC-219495) Bellingham, WA, April 19, 2019. 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 Regional Director found that the Employer failed to prove that the Petitioner engaged in coercive threats sufficient to warrant setting aside the election. Petitioner—Pacific Northwest Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America. Chairman Ring and Members McFerran and Emanuel participated.
C Cases
Rohm and Haas Texas Incorporated, a subsidiary of Dow Chemical Company (16-CA-218857) Deerfield Park, TX, April 15, 2019. No exceptions having been filed to the March 1, 2019 decision of Administrative Law Judge Ira Sandron’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered that the Respondent take the action set forth in the recommended Order. Charge filed by United Steelworkers of America, AFL-CIO-CLC.
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Appellate Court Decisions
UNITE HERE! Local 5, Board Case No. 20-CB-163657 (reported at 365 NLRB No. 169) (9th Cir. decided April 15, 2019)
In an unpublished memorandum opinion, the Court enforced the Board’s order issued against this Union that began a campaign in February 2015 to organize employees at the Aston Waikiki Beach Hotel in Waikiki, Hawaii. In doing so, the Court agreed with the Board that the Union’s picketing unlawfully blocked or impeded access to the hotel.
As part of its organizing campaign, the Union held pickets on a weekly basis in front of the hotel’s porte cochere, which is a one-way, u-shaped driveway used by vehicles and pedestrians to access the hotel. Typically, 15 to 40 picketers attended the smaller pickets each week, and larger pickets were attended by 75 to 200 picketers once or twice a month. Regardless of the picket size, the Union used a procedure by which picketers marched in an oblong circle on the sidewalk where it crossed the porte cochere’s entrance or exit driveways while carrying signs, chanting slogans, and banging on cans or using other noisemaking instruments. The picketers would stop marching every 1 to 4 minutes to allow cars driven by hotel guests or valets to enter or exit the driveway. The Board (Chairman Miscimarra and Member McFerran; Member Pearce, dissenting) found that the Union, during its picketing over several months, violated Section 8(b)(1)(A) by blocking or impeding hotel employees, or others while employees were present, from entering or exiting the hotel property.
On review, the Court held that the Board’s unfair labor practice finding was supported by substantial evidence, and rejected the Union’s argument that any obstruction was only minor or de minimis. The Court explained: “Short delays, occurring regularly over the course of months and affecting workers during their performance of work duties, as well as others in the presence of employees, is sufficient to reasonably find that such actions violated the NLRA.”
The Court’s unpublished opinion is here.
UPS Ground Freight, Inc., Board Case No. 04-CA-205359 (reported at 366 NLRB No. 100) (D.C. Cir. decided April 19, 2019)
In a published opinion in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this subsidiary of United Parcel Service, Inc., after drivers at its Kutztown, Pennsylvania distribution center voted 27 to 1 in a mail-ballot election in January 2016 to be represented by International Brotherhood of Teamsters, Local Union No. 773. In doing so, the Court concluded that the Board did not abuse its discretion in determining the appropriate bargaining unit or in overruling the Employer’s election objections. The Court also agreed with the Board that the Regional Director had not abused his discretion in applying the Board’s Rules and Regulations during the representation proceeding.
In the underlying representation case, the Union filed a petition to represent the drivers at the Kutztown distribution center in December 2015. In response, the Employer argued that the appropriate unit was instead a multi-facility unit that should include all 290 drivers employed across nine distribution centers it operated in Connecticut, Florida, Georgia, Kansas, Mississippi, North Carolina, Ohio, and Virginia, under a contract with Advance Auto Parts. After a hearing was held, the Regional Director issued a decision finding that the Employer failed to present evidence to rebut the presumptive appropriateness of a single-facility bargaining unit, and directed a mail-ballot election. Although fully litigated at hearing, the Regional Director did not address whether a potential voter was a statutory supervisor who engaged in conduct that would taint the election, or whether two job classifications should be excluded from the unit, finding resolution of those issues would not significantly affect the size or character of the unit. The Employer filed a Request for Review, which was denied by the Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting in part).
After the election, the Employer filed objections to the election and a supporting offer of proof. The Regional Director issued a supplemental decision rejecting the Employer’s post-election objections without a hearing, and certified the Union. Thereafter, the Employer filed a Request for Review raising a variety of arguments, including contesting the appropriateness of the unit, reasserting the status and conduct of the alleged supervisor, and challenging various procedural rulings made by the Regional Director under the Board’s representation-case procedures. On review, the Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting in part) issued a decision providing analysis for why the supervisory claim failed, but in all other respects, denied the Request for Review. The Employer then refused to bargain in order to seek court review.
Before the Court, the Employer only briefly challenged the substantive merits of the underlying certification. Nonetheless, the Court reviewed and upheld the Board’s determination of an appropriate unit, as well as the Board’s findings on the issue of the status of the putative supervisor, holding that the claims of authority to assign, responsibly direct, hire, and adjust grievances were unsupported. On the procedural issues, the Court rejected the Employer’s contentions that the Regional Director abused his discretion and that the pre-election timeline was unfairly abbreviated. The Court held that those rulings fully comported with the Board’s Rules and Regulations and with due process. Lastly, the Court held that the Regional Director properly directed a mail-ballot election, and that such an election did not unduly restrict the Employer’s right to campaign.
The Court’s opinion is here.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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