Summary of NLRB Decisions for Week of April 22 - 26, 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
Cascades Containerboard Packaging-Lancaster, a division of Cascades New York, Inc. (03-CA-210207; 367 NLRB No. 115) Lancaster, NY, April 22, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) when—after long-time representative Local 27C of the Teamsters’ Graphic Communications Conference administratively transferred into Local 503-M of the same conference following a 5-year trusteeship under Local 503-M’s president—the Respondent refused to recognize Local 503-M and to fully adhere to the extant collective-bargaining agreement.
Charge filed by Graphic Communications Conference/International Brotherhood of Teamsters, Local 503-M. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on November 23, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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XPO Logistics Freight, Inc. (21-CA-227312; 367 NLRB No. 120) Los Angeles, CA, April 23, 2019.
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.
Charge filed by International Brotherhood of Teamsters, Local 63. Chairman Ring and Members McFerran and Kaplan participated.
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United Government Security Officers of America International and its Local 217 (04-CB-202803; 367 NLRB No. 118) Philadelphia, PA, April 24, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondents violated Section 8(b)(1)(A) by threatening to disaffiliate from a portion of the bargaining unit and by disaffiliating in retaliation for employees’ protected concerted activities. The Board also adopted the judge’s dismissal of the allegation that the Respondents violated Section 8(b)(1)(A) by telling employees that they could disaffiliate and join another union.
Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on January 22, 2019 and an erratum on January 23, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Part-Time Faculty Association at Columbia College (13-CB-165873, et al.; 367 NLRB No. 119) Chicago, IL, April 24, 2019.
The Board adopted the Administrative Law Judge’s findings that the Respondent: (1) violated Section 8(b)(1)(A) and breached its duty of fair representation by failing to recognize full-time staff who teach part-time (the FTST) as bargaining unit members; (2) violated Section 8(b)(1)(A) and (2) by causing or attempting to cause the College to discriminate against the FTST in making course assignments; (3) violated Section 8(b)(1)(A) and (3) by seeking to enforce an arbitration award and to compel the arbitration of several grievances which were inconsistent with the Board’s determination that the FTST were included in the bargaining unit; and (4) violated Section 8(b)(1)(A) and (3) by refusing to bargain regarding the FTST’s interests in negotiations for a successor collective-bargaining agreement. The Board noted that while the judge applied a duty-of-fair-representation framework in analyzing the Section 8(b)(2) allegation, even under Wright Line, 251 NLRB 1083 (1980), the judge’s finding of a violation was warranted.
Charges filed by individuals. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on May 24, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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Nexstar Broadcasting, Inc. d/b/a KOIN-TV (19-CA-211026; 367 NLRB No. 117) Portland, OR, April 24, 2019.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with information it requested regarding graphics work and by unreasonably delaying in providing the Union with information it requested regarding when the graphics work would return to the station.
Charge filed by National Association of Broadcast Employees & Technicians, The Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL-CIO. Administrative Law Judge Eleanor Laws issued her decision on September 25, 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
L&L Fabrication (16-RD-232491) Fort Worth, TX, April 22, 2019. The Board denied the Petitioner’s and Employer’s Requests for Review of the Regional Director’s dismissal of the petition as they raised no substantial issues warranting review. Petitioner—an individual. Union—Sheet Metal Workers International Association, Local 68. Chairman Ring and Members McFerran and Emanuel participated.
United Food and Commercial Workers, Local No. 951 (UFCW), AFL-CIO (07-RD-228723) Grand Rapids, MI, April 25, 2019. The Board denied the Petitioner’s and Employer’s Requests for Review of the Acting Regional Director’s determination to hold the petition in abeyance as they raised no substantial issues warranting review. Petitioner—an individual. Union—Federation of Agents and International Representatives. Chairman Ring and Members McFerran and Emanuel participated.
C Cases
Prospect Charter Care, LLC (01-CA-200126 and 01-CA-214788) North Providence, RI, April 24, 2019. No exceptions having been filed to the March 11, 2019 decision of Administrative Law Judge Donna N. Dawson’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. Charges filed by United Nurses & Allied Professionals, Local 5110.
United States Postal Service (08-CA-213645 and 08-CA-219955) Toledo, OH, April 26, 2019. 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 complaints had alleged that the Respondent violated Section 8(a)(5) and (1) by unreasonably delaying in providing relevant and necessary information and unreasonably delaying in informing the Union that certain information did not exist. Charges filed by American Postal Workers Union, Local 170. Members McFerran, Kaplan, and Emanuel participated.
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Appellate Court Decisions
Security Walls, LLC, Board Case No. 16-CA-152423 (reported at 365 NLRB No. 99) (11th Cir. decided April 23, 2019)
In a published opinion, the Court enforced the Board’s order issued against this Tennessee-based provider of security services which, in 2014, assumed a contract from a predecessor contractor to provide armed security guard services at the IRS facility in Austin, Texas. In doing so, the Court upheld the findings of the Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) that the Employer violated Section 8(a)(1) and (5) by unilaterally changing its disciplinary policy when it discharged three guards, and by refusing to bargain over the discharges with the employees’ representative, the International Union, Security, Police and Fire Professionals of America. The Court also held that the Board did not abuse its discretion in denying the Employer’s motions to reopen the record and to amend its answer.
Shortly after assuming the security contract, the Employer commenced negotiations for a collective-bargaining agreement with the Union. While negotiations were ongoing, the Employer adopted a disciplinary policy that established a detailed progressive system listing specific violations and corresponding disciplinary actions, from verbal counseling to immediate discharge. In 2015, after the policy had been in effect for more than a year, two guards were distracted while attempting to correct an error in a logbook and a woman walked into the IRS facility undetected. A week later, another guard was momentarily looking down to adjust his chair and did not notice that a woman and child had walked into the facility. The Employer opened investigations and suspended the three guards, none of whom had prior discipline. After consulting with the IRS contracting officer, who made clear that the Employer had discretion on how to discipline the guards, the Employer decided to discharge them and thereafter refused to bargain with the Union over the discharges.
The Administrative Law Judge issued a decision finding that the Employer unlawfully implemented unilateral changes to the progressive discipline policy when it discharged the guards and unlawfully refused to bargain. After exceptions were filed, the Employer filed motions to reopen the record and to amend its answer to the complaint, wherein it had admitted that its decision to discharge the three guards was discretionary. Rather, the Employer claimed that certain post-hearing events demonstrated that it had no choice but to discharge the guards, and proffered an affidavit concerning its attempt to reinstate the employees and an IRS notification that it would not allow reinstatement. On review, the Board agreed with the judge that the Employer “unilaterally changed its progressive disciplinary policy [by treating] the discharge of the three guards as a mandatory penalty,” and unlawfully refused to bargain, post-discharge. The Board denied the motions, concluding that the proffered evidence, if true, would not require a different result and was available at the time of the hearing and thus not newly discovered.
Before the Court, the Employer argued, for the first time, that a policy statement contained in its contract with the IRS included standards of conduct that, among other things, left it no choice but to discharge the guards. The Court rejected that argument, noting that “our interpretation of the [IRS policy statement] and the Board’s are identical”—nothing in the statement required the guards’ removal. Turning to the evidence proffered with the motions, the Court pointed to the Board’s finding that no one at the IRS ordered the discharges and that any after-the-fact evidence “that the IRS would have required as much is beside the point.” Accordingly, the Court held it was reasonable for the Board to deny the motions because granting them would not compel a different result.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Lion Elastomers (16-CA-190681, et al.; JD-36-19) Port Neches, TX. Administrative Law Judge Michael A. Rosas issued his decision on April 25, 2019. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 228.
Gowanus Staffing, Inc. (29-CA-208094; JD(NY)-07-19) Brooklyn, NY. Administrative Law Judge Benjamin W. Green issued his decision on April 26, 2019. Charge filed by an individual.
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