Summary of NLRB Decisions for Week of August 10 - 14, 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
DuPont Specialty Products USA, LLC, as a successor to E.I. du Pont de Nemours and Company (05-CA-222622; 369 NLRB No. 117) Richmond, VA, August 12, 2020. Errata to July 8, 2020 decision. Errata Amended Decision.
***
Four Seasons Healthcare & Wellness Center, LP, a California Limited Partnership (31-CA-169143; 370 NLRB No. 8) North Hollywood, CA, August 13, 2020.
In a supplemental decision, the Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining its Alternative Dispute Resolution Policy and Agreement. The Board found that a reasonable employee would interpret the saving clauses in the Policy and Agreement to permit the filing of unfair labor practice charges.
Charge filed by an individual. Administrative Law Judge Ariel L. Sotolongo issued his decision on June 21, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
***
William Beaumont Hospital (07-CA-244615; 370 NLRB No. 9) Royal Oak, MI, August 13, 2020.
The Board granted the Respondent’s Request for Special Permission to Appeal the Deputy Chief Administrative Law Judge’s order denying the Respondent’s motion for an in-person hearing, but denied the appeal on the merits. The Board found that the Respondent failed to establish that the judge abused his discretion in finding that good cause for a video hearing exists due to the COVID-19 pandemic, and that the Respondent did not show that a hearing held by videoconference would deny it due process. The Board further found that the Respondent may raise any nonspeculative concerns that arise during the video hearing to the trial judge in the first instance, without prejudice to its right to file exceptions with the Board to any adverse rulings.
Charge filed by Michigan Nurses Association. Chairman Ring and Members Kaplan, Emanuel, and McFerran participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Eagle Express Lines, Inc. (13-RC-258675) Bedford Park, IL, August 12, 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—International Brotherhood of Teamsters Local 727. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
No Unpublished C Cases Issued.
***
Appellate Court Decisions
Delta Sandblasting Company, Inc., Board No. 20-CA-176434 (reported at 367 NLRB No. 17) (9th Cir. decided August 11, 2020).
In a published opinion, the Court enforced the Board’s order issued against this subcontractor based in Petaluma, California which provides marine vessel painting and sandblasting services in the San Francisco Bay Area to a general contractor in the ship-repair industry. The Board (Chairman Ring and Members McFerran and Kaplan) found that the Employer violated Section 8(a)(5) and (1) by unilaterally decreasing its pension contributions to the Pacific Coast Shipyards Pension Fund that were required by the parties’ collective-bargaining agreement, without notifying and bargaining with its employees’ representative, Auto, Marine & Specialty Painters Local Union No. 1176.
Over the years, the parties executed a series of collective-bargaining agreements under which the Employer was required to pay pension contributions according to the contract’s Schedule A. In 2007, the contribution rate was $1.95 per employee, per hour worked. In 2008, the fund was designated as underfunded, a problem that the fund trustees resolved by adopting a rehabilitation plan that increased Employer contribution rates. The plan laid out a schedule of rate increases that were listed on the Schedule A included in the parties’ 2014 successor agreement. By 2015, the rehabilitation rate was $9.78. The Employer continued to make payments at that rate after the contract expired later that year, and through February 2016, when it raised its contributions to $11.38 per hour, consistent with the rehabilitation plan. In March 2016, however, it abruptly reduced its contribution rate to $1.95, later sending the Union a message that it did not have the money to pay the rehabilitation rate.
The Administrative Law Judge found that the abrupt rate reduction without notice or an opportunity to bargain constituted an unlawful unilateral change. The judge did not rule on the Employer’s contention that the pension contributions before March 2016 violated Section 302(c)(5)(B) of the Labor Management Relations Act (LMRA), which requires “a written agreement” specifying “the detailed basis” for employer benefit contributions. 29 U.S.C. § 186(c)(5)(B). Rather, the judge found that, regardless of the legality of the contribution rates under Section 302, an unlawful unilateral change had been made under Board law.
On exceptions, the Board found the violation and held that the Employer had an obligation to maintain the status quo after contract expiration by continuing to pay the Schedule A rates, or at least the $9.78 rate that applied when the contract expired. Reaching the defense the judge had not addressed, the Board rejected the Employer’s contention that the rehabilitation rates violated LMRA Section 302(c)(5)(B)’s “written agreement” requirement. The Board explained that the parties’ contract satisfied that requirement because it obliged the parties to resolve the underfunded liabilities and incorporated the rehabilitation rates implemented for that purpose in Schedule A. The Board also rejected the Employer’s claim that LMRA Section 302(c)(5)(B) required that a separate agreement be executed for each benefit-contribution increase.
On review, the Court (Circuit Judges Wardlaw and Smith; Circuit Judge Bumatay, dissenting) upheld the violation, as well as the Board’s rejection of the Employer’s defense asserted on the basis of LMRA Section 302(c)(5)(B). Specifically, the Court agreed with the Board’s conclusion that the contract, which incorporated Schedule A, met Section 302’s requirements. The Court explained that the LMRA provision was “designed to protect employees’ pensions by preventing the misuse of pension funds by union officials and employers,” citing Guthart v. White, 263 F.3d 1099 (9th Cir. 2001), a case in which the court “recognized that a variety of written agreements other than collective bargaining agreements, including pre-hire agreements and the pension fund’s trust agreement, can satisfy Section 302,” id.. The Court then explained the inapplicability of the numerous cases advanced by the Employer, reiterated that the parties’ contract here “meets Section 302’s ‘written agreement’ requirement,” and upheld the Board’s unfair-labor-practice finding.
The Court’s opinion is here.
***
Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.