Summary of NLRB Decisions for Week of April 27 -May 1, 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
ILWU, Alaska Longshore Division and ILWU, Unit 222 (American President Lines, Ltd.) (19-CD-225672 and 19-CD-225674; 369 NLRB No. 63) Kodiak, AK, April 28, 2020.
In this Section 10(k) jurisdictional dispute proceeding, the Board awarded the work in dispute to employees represented by the Inland Boatmen’s Union of Alaska affiliate of the Marine Engineers’ Beneficial Association and employed by Intervenor Samson Tug and Barge, based on the factors of current assignment, past practice, relative skill, and economy and efficiency of operations.
Charges filed by American President Lines, Ltd. Chairman Ring and Members Kaplan and Emanuel participated.
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Huron-Valley Sinai Hospital (07-CA-201332, et al.; 369 NLRB No. 64) Commerce Charter Township, MI, April 28, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing its prior practice of allowing unit employees to cover for each other during meal breaks, by unilaterally ceasing to consider unit employees’ requests to combine meal breaks with rest breaks on a case-by-case basis, and by failing and refusing to furnish the Union with requested information pertaining to the Respondent’s exit interview forms. The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by denying unit employees breaks on April 14 and 15, 2018. The Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally promulgating a new employee break policy. In reversing the judge, the Board found that uncontradicted evidence the judge did not reference in his decision established that the Respondent’s break policy, applicable to unit employees, remained in place, and the Respondent’s mistake in sending the wrong policy to the Union did nothing to change it, especially insofar as the mistake was promptly corrected.
Charges filed by Michigan Nurses Association. Administrative Law Judge Arthur J. Amchan issued his decision on April 29, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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County Agency Inc. and Esplanade Partners Ltd. d/b/a Esplanade Venture Partnership d/b/a The Esplanade Hotel and 305 West End Holding, LLC d/b/a 305 West End Avenue Operating, LLC and Ultimate Care Management Assisted Living Management, LLC, a division of The Engel Burman Group, d/b/a Ultimate Care Management, LLC (02-CA-188405, et al.; 369 NLRB No. 62) New York, NY, April 29, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the successor Respondents, as joint employers, violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the bargaining unit. The Board agreed with the judge’s conclusion that the New York Displaced Building Service Workers Protection Act (DBSWPA) did not relevantly affect the composition of the successor Respondents’ workforce, because the successor Respondents voluntarily chose to hire former unit employees of Respondents County Agency Inc. and Esplanade Partners Ltd. d/b/a Esplanade Venture Partnership d/b/a The Esplanade Hotel (the predecessor Respondents), including those covered by the DBSWPA, as a majority of their initial complement, and, independently, because predecessor employees not covered by the DBSWPA would have constituted a majority of the successor Respondents’ initial complement all by themselves. Accordingly, the Board found that the record did not present the question of whether, as the General Counsel argued, a departure from the successorship principles set forth in NLRB v. Burns Security Services, 406 U.S. 272 (1972), and Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987), would be warranted where a worker retention law does interfere with an employer’s ability to make a voluntary and conscious decision as to the composition of its workforce.
The Board also adopted the judge’s conclusion that the successor Respondents violated Section 8(a)(3) and (1) when they refused to hire a former employee of the predecessor Respondents because of her union activity. In doing so, the Board rejected the successor Respondents’ contention that a release the employee signed with the predecessor Respondents prevented the Board from ordering its standard make-whole remedies. A Board majority (Chairman Ring and Member Kaplan) found that private agreements like the one the employee signed could not limit the Board’s exercise of its remedial powers in the public interest (Member Emanuel did not pass on this reason for denying effect to the release). The Board independently concluded that the release was ineffective because a release agreement with the predecessor Respondents could not reasonably be read to encompass the successor Respondents’ liability for their own independent violation of the Act. The Board accordingly ordered its standard make-whole remedies for the employee.
Charges filed by United Food & Commercial Workers Union, Local 2013. Administrative Law Judge Benjamin W. Green issued his decision on February 7, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its territories, and Canada, Philadelphia Local No. 8 (Elliott Lewis Convention Services, LLC) (04–CB–216541 and 04–CB–221871; 369 NLRB No. 67) Philadelphia, PA, April 29, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(1)(A) by issuing three internal union charges against the Charging Party because the Charging Party filed unfair labor practice charges with the National Labor Relations Board. The Board found that the Respondent presented only bare exceptions to the judge’s determination that it violated Section 8(b)(1)(A) by issuing an internal union charge against the Charging Party for directly soliciting work, and accordingly adopted the judge’s determination that this action was in retaliation for the Charging Party’s charge-filing conduct.
Chairman Ring and Member Kaplan additionally adopted the judge’s conclusion that the Respondent violated Section 8(b)(1)(A) by moving the Charging Party from the preferential “house crew” to the regular hiring hall list because the Charging Party sent complaints about the Respondent’s operation of the hiring hall. Dissenting, Member Emanuel would have found that the Respondent met its burden of establishing that it satisfied its duty of fair representation and that its actions were necessary to the effective performance of its representative function when it removed the Charging Party from the house crew, because it did so after discovering that the Charging Party had attempted to solicit work directly from a contractor in violation of the Respondent’s hiring hall procedure and Union Constitution.
Charges filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on March 11, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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UNITE HERE Local 1 and Hyatt Regency Chicago (13‒CB‒217959, et al.; 369 NLRB No. 65) Chicago, IL, April 30, 2020.
In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(3) by refusing to provide the Employer with requested relevant information. The Board modified the judge’s recommended Order requiring that the Respondent train its current organizers and representatives in properly responding to information requests as there was insufficient evidence to warrant this extraordinary remedy.
Charges filed by Hyatt Regency Chicago. Administrative Law Judge Christine E. Dibble issued her decision on September 26, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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IIG Wireless, Inc. f/k/a Unlimited PCS, Inc.; and UPCS CA Resources, Inc. (21-CA-152170; 369 NLRB No. 66) Garden Grove and Irvine, CA, April 30, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that unlawfully interferes with employee access to the Board’s processes. The Board found uncompelling the Respondent’s argument that the agreement was “directed at civil litigation, not administrative charges,” finding that employees would reasonably believe the language of the agreement bars or restricts them from filing charges with the National Labor Relations Board.
Charge filed by an individual. Administrative Law Judge Jeffrey D. Wedekind issued his decision on April 14, 2016. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Kaiser Foundation Hospitals (21-RD-237218) Moreno Valley, CA, April 28, 2020. The Board denied the Union’s Request for Review of the Regional Director’s Decision on Challenged Ballots related to the ballot of an employee on sick leave as it raised no substantial issues warranting review. Petitioner—an Individual. Union—Service Employees International Union, Local 121RN. Chairman Ring and Members Kaplan and Emanuel participated.
Morrison Healthcare (12-RC-257857) Palm Beach Garden, FL, April 30, 2020. The Board stayed the telephonic hearing scheduled for April 30, 2020, in order to more fully consider and address the issues raised in the Employer’s Request for Review. Petitioner—SEIU United Healthcare Workers East. Chairman Ring and Members Kaplan and Emanuel participated.
Atlas Pacific Engineering Company (27-RC-258742) Pueblo, CO, May 1, 2020. The Board granted the Employer’s Emergency Motion to Stay the Election in order to allow the Board time to fully consider the issues presented by the Regional Director’s direction of a mail-ballot election. Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Errands Plus Inc. d/b/a RMA Worldwide Chauffeured Transport (05-CA-230586) Baltimore, MD, April 28, 2020. No exceptions having been filed to the March 17, 2020 decision of Administrative Law Judge Arthur J. Amchan’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 Teamsters Local Union 570, a/w the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Shamrock Foods Company (28-CA-177035, et al.) Phoenix, AZ, April 29, 2020. The Board denied the Charging Party Union’s Motion for Reconsideration of the Board’s Decision and Order, reported at 369 NLRB No. 5 (2020). The Board found that the Union had not raised any “extraordinary circumstances” warranting reconsideration. Charges filed by Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Audio Visual Services Group, Inc., d/b/a PSAV Presentation Services, Board No. 19-CA-186007 (reported at 367 NLRB No. 103) (9th Cir. decided April 29, 2020).
In a published opinion, the Court denied the petition filed by International Alliance of Theatrical Stage Employees, Local 15, for review of the Board’s dismissal of two complaint allegations brought against this nationwide provider of labor and technology for meetings in hotels and conference centers, after the Union was certified to represent a unit of its technicians in the Seattle, Washington area. Both dismissals involved allegations that the Employer’s conduct during the parties’ bargaining for a first contract violated Section 8(5) and (1).
On the first allegation, the Board (Chairman Ring and Members McFerran and Emanuel) found, in disagreement with the Administrative Law Judge, that although the Employer initially asserted an inability-to-pay claim in response to the Union’s wage proposal, it had effectively retracted the claim and was not required to produce general financial information to the Union. On the second allegation, the Board (Member McFerran, dissenting) found, again in disagreement with the judge, that the evidence did not support a finding that the Employer engaged in bad-faith bargaining. Specifically, the Board found that the Employer did not engage in dilatory tactics at the bargaining table, and that its proposals on wages and benefits, discipline, management rights, and grievance and arbitration were not calculated to frustrate the bargaining process. Nor did the Board find that the Employer’s comments made away from the bargaining table were indicative of bad faith. Viewing the record as a whole, the Board found that both parties engaged in lawful hard bargaining, and that the Union did not sufficiently test the Employer’s willingness to bargain before filing unfair-labor-practice charges.
On review, the Court held the Board’s dismissal of those allegations were supported by substantial evidence. On the inability-to-pay claim, the Court noted that the Employer did not contest that it made such a claim when its attorney stated that the Union’s proposed wage increase would be “suicide” for the business and put it “underwater.” However, the Court held, in agreement with the Board, that the attorney’s later clarification—that he only meant that such high wages would hurt the business, and not that the Employer lacked the revenue to pay the wage rates—effectively retracted the claim. On the issue of bad-faith bargaining, the Court extensively reviewed the evidence in support of the Board’s determination that the Employer had not engaged in an overall pattern of bad-faith bargaining, and affirmed the Board’s dismissal of the allegation.
The Court’s opinion is here.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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