Summary of NLRB Decisions for Week of August 24 - 28, 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
Aspirus Keweenaw (18-RC-263185; 370 NLRB No. 13) Calumet, MI, August 25, 2020.
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) granted the Employer’s Emergency Motion to Stay Mail-Ballot Election, and also granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election ordering a mail-ballot election due to circumstances related to the COVID-19 pandemic as it raises substantial issues warranting review. Member McFerran would have denied the Motion to Stay and the Request for Review.
Petitioner—Michigan Nurses Association. Chairman Ring and Members Kaplan, Emanuel, and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
AvalonBay Communities, Inc. (02-RC-238385) Fairfield, CT, August 26, 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 also denied the Employer’s request for a stay of the certification as moot. Petitioner—Local 30, International Union of Operating Engineers, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Cogent Waste Solutions LLC (29-RC-256443) Brooklyn, NY, August 27, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Board also denied the Employer’s request for a stay of the election as moot. Petitioner—Waste Material, Recycling, and General Industrial Laborers, Local 108. Chairman Ring and Members Kaplan and Emanuel participated.
Cogent Waste Solutions LLC (29-RC-256449) Brooklyn, NY, August 27, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Board also denied the Employer’s request for a stay of the election as moot. Petitioner—Waste Material, Recycling, and General Industrial Laborers, Local 108. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Cellco Partnership d/b/a Verizon Wireless (21-CA-075867, et al.) Basking Ridge, NJ, August 25, 2020. The Board denied the Charging Party’s Motion for Reconsideration of the Board’s Supplemental Decision and Order reported at 369 NLRB No. 130 (2020). The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charges filed by Communications Workers of America District 9, AFL-CIO; Communications Workers of America, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Cellco Partnership, Inc. (28-CA-145221) Nationwide, August 26, 2020. The Board denied the Charging Party’s Motion for Reconsideration of the Board’s Supplemental Decision and Order, reported at 369 NLRB No. 131 (2020). The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
FCA US LLC (07-CA-213717, et al.) Auburn Hills, MI, August 26, 2020. The Board denied the Respondent Employer’s Motion for Summary Judgment as the Respondent Employer failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. In so doing, the Board found that the Employer failed to establish that the Board lacks jurisdiction over this proceeding under Section 10(b). Charges filed by individuals. Chairman Ring and Members Kaplan and Emanuel participated.
FCA US LLC (07-CA-213717, et al.) Auburn Hills, MI, August 26, 2020. The Board denied the Respondent Union’s Motion to Dismiss the Consolidated Complaint, finding no merit to the Respondent Union’s contention that the Board lacked jurisdiction over this proceeding under Section 10(b). Charges filed by individuals. Chairman Ring and Members Kaplan and Emanuel participated.
Santa Fe T, LLC d/b/a Toyota of Santa Fe (28-CA-251745, et al.) Santa Fe, NM, August 27, 2020. The Board denied the Employer’s Petition for Partial Revocation of an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. The Board also denied the Employer’s request for a protective order but stated that, if the Employer’s concerns about confidentiality and privacy can be substantiated, it may seek a confidentiality agreement from the Region. Regarding the social security numbers sought by the Region, the Board encouraged the parties to reach an agreement redacting or partially redacting the social security numbers, or, in the alternative, to enter into a confidentiality agreement covering them. Charges filed by individuals and International Association of Machinists and Aerospace Workers, Local Lodge 794. Chairman Ring and Members Kaplan and Emanuel participated.
William Beaumont Hospital (07-CA-244615) Royal Oak, MI, August 27, 2020. The Board denied the Respondent’s Motion to Dismiss the Complaint on the grounds that it was untimely and that the Respondent failed to demonstrate that the complaint fails to state a claim upon which relief can be granted. Charge filed by Michigan Nurses Association. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Roemer Industries, Board Case No. 08-CA-188055 (reported at 367 NLRB No. 133) (6th Cir. decided August 27, 2020).
In an unpublished opinion, the Court enforced the Board’s order issued against this manufacturer of industrial identification nameplates at a small facility in Masury, Ohio, where United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union has represented a unit of about 20 production and maintenance employees since 1973. In doing so, the Court upheld the Board’s determination that an employee was suspended and discharged because of his union activities in violation of Section 8(a)(3) and (1).
This case arose in the context of the parties’ negotiations for a successor collective-bargaining agreement in which a dispute developed over the Employer’s proposal to eliminate a contractual union-membership requirement and instead operate as an “open shop.” As the parties negotiated, the Employer took a series of actions that the Board ultimately found unlawful. Specifically, the Board (Chairman Ring and Members McFerran and Kaplan) found that the Employer violated Section 8(a)(5), (4), and (1) by threatening and coercing employees, unilaterally increasing and then decreasing wages without bargaining, bypassing the Union and dealing directly with employees, refusing to provide information to the Union, and retaliating against employees for the Union’s filing of an unfair-labor-practice charge. The Board also found that the Employer violated Section 8(a)(3) and (1) by suspending and discharging its most senior employee for openly opposing the Employer’s demand for an open-shop provision during the final weeks before his suspension and discharge. After the Board issued its decision, the parties settled all aspects of the case except for the unlawful suspension and discharge. Consequently, enforcement was not sought for the settled portions of the Board’s order.
On review, the Court agreed with the Board that the suspension and discharge were unlawful under Wright Line. The Court noted that it was uncontested that the employee engaged in protected activity when he produced and distributed “No Open Shop” bumper stickers to fellow employees in the midst of the open-shop dispute, openly displayed a Union “Fair Contract Now” sign in his parked car in an area it was easily observed, and previously filed a grievance that ultimately led to the Board’s order in Roemer Industries, 362 NLRB 828 (2015). The Court held that the Employer’s challenges to the Board’s findings of protected activity and the Employer’s knowledge of those activities, were jurisdictionally barred from review under Section 10(e) of the Act because they had not been presented to the Board with the sufficiency required under the Board’s Rules and Regulations, citing 29 C.F.R. § 102.46(a)(1). The Court, however, stated that even if it were to consider only the distribution of the “No Open Shop” bumper stickers, it would still uphold the Board’s finding of knowledge, which was also supported by the “small-plant doctrine,” and the Employer’s close monitoring of its employees’ union activities. Further, the Court held that the timing of the adverse actions, and the Employer’s “general anti-union animus,” as demonstrated by the unfair labor practices in the earlier Roemer decision, supported the Board’s finding of unlawful motive. On the Employer’s defense, the Court agreed with the Board that the Employer’s inconsistent justifications for its actions were pretextual in nature.
The Court’s opinion is here.
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Administrative Law Judge Decisions
AT&T Mobility Services, LLC (25-CA-249079; JD-32-20) Rantoul, IL. Administrative Law Judge Andrew S. Gollin issued his decision on August 25, 2020. Charge filed by Communications Workers of America, Local 4202, a/w Communications Workers of America, AFL-CIO.
Nexstar Broadcasting, Inc. d/b/a KOIN-TV ( 19-CA-240187; JD(SF)-18-20) Portland, OR. Administrative Law Judge Amita Baman Tracy issued her decision on August 27, 2020. 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.
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