Summary of NLRB Decisions for Week of August 26 - 30, 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
Nexteer Automotive Corp. (07-CA-215036; 368 NLRB No. 47) Saginaw, MI, August 27, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for directing an intemperate outburst at management. The Board noted that, although the outburst exceeded the limits of what an employer would normally be expected to endure, the nature of the outburst did not weigh against continued protection under the Act given the presence of other mitigating facts.
Charge filed by Local 699, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL–CIO. Administrative Law Judge Paul Bogas issued his decision on December 10, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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RadNet Management, Inc. (21-CA-242660; 368 NLRB No. 55) Irvine, CA, August 27, 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 proceedings in which the Union was certified as the bargaining representative.
Charge filed by National Union of Healthcare Workers. Chairman Ring and Members Kaplan and Emanuel participated.
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RadNet Management, Inc. (21-CA-243181; 368 NLRB No. 58) Garden Grove, CA, August 27, 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 proceedings in which the Union was certified as the bargaining representative.
Charge filed by National Union of Healthcare Workers. Chairman Ring and Members Kaplan and Emanuel participated.
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Centura Health/St. Mary-Corwin Medical Center (27-CA-216441; 368 NLRB No. 51) Pueblo, CO, August 28, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information.
Charge filed by Communications Workers of America, Local 7774. Administrative Law Judge Mara-Louise Anzalone issued her decision on January 9, 2019. Chairman Ring and Members McFerran and Kaplan participated.
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Local 600, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (07-CB-221096; 368 NLRB No. 54) Dearborn, MI, August 28, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent Union’s failure to promptly process a unit employee’s resignation of union membership and revocation of dues checkoff authorization coerced the employee, and constituted a breach of its duty of fair representation, in violation of Section 8(b)(1)(A). The Board reversed, however, the judge’s finding that the Respondent Union violated Section 8(b)(2) by attempting to cause and causing the Employer to continue to deduct dues, post-resignation, from the employee’s wages and to remit those monies to the Respondent Union. The Board explained that in order to prove a violation of Section 8(b)(2), the General Counsel must prove that the Union engaged in an affirmative act to cause the Employer to continue to deduct dues from an employee post-resignation. The Board found no evidence of an affirmative act by the Respondent Union here, and held that the judge’s finding that the Respondent’s “inaction” caused the Employer’s conduct is insufficient to establish a violation of Section 8(b)(2).
Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on February 21, 2019. Chairman Ring and Members McFerran and Emanuel participated.
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RadNet Management, Inc. (21-CA-242697; 368 NLRB No. 57) Santa Ana, CA, August 28, 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 proceedings in which the Union was certified as the bargaining representative.
Charge filed by National Union of Healthcare Workers. Chairman Ring and Members Kaplan and Emanuel participated.
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RadNet Management, Inc. (21-CA-242668; 368 NLRB No. 56) Anaheim, CA, August 28, 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 proceedings in which the Union was certified as the bargaining representative.
Charge filed by National Union of Healthcare Workers. Chairman Ring and Members Kaplan and Emanuel participated.
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Southern Bakeries, LLC (15-CA-174022; 368 NLRB No. 59) Hope, AR, August 28, 2019.
In this supplemental decision, the Board, having received the case back from remand to the Administrative Law Judge to reconsider the legality of facially neutral handbook rules in light of the Board’s decision in The Boeing Company, 365 NLRB No. 154 (2017), reversed both of the judge's findings to which parties had filed exceptions (two of seven rules remanded to the judge). Specifically, the Board concluded the Respondent had not violated Section 8(a)(1) by maintaining a rule prohibiting “[u]sing Company time or resources for personal use unrelated to employment” but had violated Section 8(a)(1) by maintaining a rule forbidding “[u]nauthorized plant entry by employee[s].”
Charge filed by Bakery, Confectionary, Tobacco Workers, and Grain Millers Union. Administrative Law Judge Arthur J. Amchan issued his decision on remand on February 11, 2019. Members McFerran, Kaplan, and Emanuel participated.
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RadNet Management, Inc. (21-CA-242665; 368 NLRB No. 53) Orange, CA, August 28, 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 proceedings in which the Union was certified as the bargaining representative.
Charge filed by National Union of Healthcare Workers. Chairman Ring and Members Kaplan and Emanuel participated.
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Nob Hill General Stores, Inc. (20-CA-209431; 368 NLRB No. 63) Santa Clara, CA, August 29, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union with certain information and unreasonably delaying in providing other information regarding the opening of a new store. The Board agreed with the judge that the information was relevant to the administration of the parties’ collective-bargaining agreement but found it unnecessary to rely on the judge’s alternative findings that the information was also relevant to counseling unit members regarding potential transfers to the new store or bargaining over the effects of opening the new store. The Board modified the judge’s recommended Order to require that the notice be posted in all of the Respondent’s stores where bargaining unit employees work as well as the new store where several former bargaining unit employees work.
Charge filed by United Food and Commercial Workers Union, Local 5. Administrative Law Judge Amita Baman Tracy issued her decision on January 31, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Velox Express, Inc. (15-CA-184006; 368 NLRB No. 61) Little Rock, AR, August 29, 2019.
The full Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent failed to establish that its drivers are independent contractors. In adopting the judge’s conclusion, the Board applied SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), which issued subsequent to the judge’s decision. Additionally, the Board unanimously adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an individual driver for raising protected group complaints about the Respondent’s treatment of the drivers as employees instead of independent contractors.
A full Board majority (Chairman Ring and Members Kaplan and Emanuel) reversed the judge and dismissed the allegation that the Respondent independently violated Section 8(a)(1) by misclassifying its drivers as independent contractors. The majority held that an employer’s misclassification of its employees as independent contractors, standing alone, does not violate the Act. The majority explained that an employer’s communication to its workers of its legal opinion that they are independent contractors does not, in and of itself, inherently threaten that those employees are subject to termination or other adverse action if they exercise their Section 7 rights or that it would be futile for them to engage in union or other protected activities. The majority found that communication of that legal opinion is therefore privileged by Section 8(c) even if the employer is ultimately mistaken. Additionally, the majority rejected the argument that, even if a misclassification, standing alone, does not violate the Act, the Respondent’s misclassification became coercive when the Respondent unlawfully discharged a misclassified driver for engaging in protected activity. The majority acknowledged that the unlawful discharge may chill the other drivers from engaging in protected activity, but did not believe that the creation of a new misclassification violation was necessary because the Board has long used its notice-posting remedy to dispel the chilling effect of unfair labor practices. The majority did not accept that in any circumstances, an employer’s misclassification itself will become unlawful because of other related conduct by the employer, stating that if the General Counsel determines that related conduct is unlawful, then he should allege it as a violation of the Act, and the Board will remedy it accordingly if it agrees. Finally, the majority declined to order the Respondent to reclassify its drivers as part of the remedy for its unlawful discharge. The majority noted that the extraordinary remedy of reclassification is not routinely ordered in cases involving misclassified employees and found, once again, that the Board’s traditional notice-posting remedy would be sufficient to dissipate fully the coercive effects of the unlawful discharge.
Dissenting in part, Member McFerran would have adopted the judge’s conclusion that the Respondent independently violated Section 8(a)(1) by misclassifying its drivers as independent contractors. She argued that it was unnecessary for the Board to decide whether an employer’s misclassification of its employees as independent contractors, standing alone, violated the Act for two reasons. First, by discharging a misclassified driver for engaging in protected activity, the Respondent applied the misclassification to interfere with Section 7 activity, rendering the misclassification itself unlawful. Second, to fully remedy the unlawful discharge, the Board needed to order the Respondent to reclassify all of its misclassified drivers. If it had been necessary to decide the stand-alone misclassification issue, Member McFerran would have held that a misclassification, standing alone, violates Section 8(a)(1) because when an employer communicates to its employees that it has classified them as independent contractors, the employees would reasonably believe that exercising their Section 7 rights would be futile or would lead to adverse employer action.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on September 25, 2017. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Marburn Academy, Inc. (09-CA-224092; 368 NLRB No. 38) New Albany, OH, August 29, 2019. Errata to August 1, 2019 Decision and Order. Errata Amended Decision
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800 River Road Operating Company, LLC d/b/a Care One at New Milford (22-CA-204545; 368 NLRB No. 60) New Milford, NJ, August 29, 2019.
A Board majority (Chairman Ring and Member Kaplan) denied the Charging Party’s Motion for Partial Withdrawal of the Charge. The Charging Party sought to withdraw only the allegations that the unilateral imposition of discretionary discipline violated the Act. The Board majority noted that the Board and the parties have already expended significant resources in the litigation of this case, and there is no evidence that the Respondent has either remedied the violations found by the Administrative Law Judge or reached a settlement with the Charging Party Union. Additionally, the majority found that the case presented the Board with significant issues of law under the Act involving the obligation of the Respondent, and other employers, to engage in bargaining before imposing discipline on employees. For these reasons, the majority found that it would not effectuate the purposes of the Act to grant the Charging Party’s motion.
Dissenting, Member McFerran noted that the majority’s decision to deny the Charging Party’s Motion for Partial Withdrawal of its unfair labor practice charge is inexplicable—unless the majority intends to use this case to overrule Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016). According to Member McFerran, “it would be one thing for the majority to say that the Board should act in order to ensure that the violations found by the judge will be remedied. But if the majority overrules Total Security—as seems likely—then the violations found by the judge will fall with it. Thus, the majority’s rationale here—the importance of remedying violations—would be revealed as a pretext, damaging to the institutional integrity of the Board.” She also noted that there is no longer a live dispute in this case as the General Counsel has changed its position with respect to the relevant allegations, and urges the Board to dismiss them.
Charge filed by 1199 SEIU United Healthcare Workers East. Administrative Law Judge Benjamin W. Green issued his decision on November 20, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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St. Paul Park Refining Co. d/b/a Andeavor (18-CA-205871 and 18-CA-206697; 368 NLRB No. 62) St. Paul, MN, August 30, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by issuing an employee adverse performance evaluations, and thereafter discharging him, for his protected concerted activity. In a previous case, the Board found that the Respondent violated the Act by suspending the employee and issuing him a final warning. See St. Paul Park Refining Co., LLC d/b/a Western Refining, 366 NLRB No. 83 (2018), enfd. 929 F.3d 610 (8th Cir. 2019). The Respondent relied in part on the prior unlawful discipline as a basis for terminating the employee in this case.
Charges filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on October 5, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
United States Postal Service (10-CA-210479, et al.) Winston Salem, NC, August 26, 2019. In this case alleging Section 8(a)(5) and (1) violations, 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. Charges filed by National Association of Letter Carriers, AFL-CIO, Branch 461, the American Postal Workers Union, AFL–CIO, Local 523, and National Association of Letter Carriers, AFL-CIO, Branch 459. Members McFerran, Kaplan, and Emanuel participated.
Service Employees International Union Local 1107 (28-CA-209109) Las Vegas, NV, August 29, 2019. No exceptions having been filed to the July 18, 2019 decision of Administrative Law Judge Dickie Montemayor’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 an individual.
Global Contact Services (29-CA-211765, et al.) Brooklyn, NY, August 30, 2019. No exceptions having been filed to the July 19, 2019 decision of Administrative Law Judge Jeffrey P. Gardner’s finding that the Respondent had not engaged in certain unfair labor practices, the Board dismissed the complaint. Charges filed by Transport Workers Union, AFL-CIO, Local 100.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Laborers’ International Union of North America, Local Union No. 91 (Mader Construction Co., Inc.) (03-CB-225477; JD-67-19) Niagara Falls, NY. Administrative Law Judge Keltner W. Locke issued his Bench Decision and Certification on August 26, 2019. Charge filed by an individual.
Douglas Emmett Management, LLC (31-CA-206052 and 31-CA-211448; JD(SF)-27-19) Los Angeles, CA. Administrative Law Judge Jeffrey D. Wedekind issued his decision on August 27, 2019. Charges filed by International Union of Operating Engineers, Local 501, AFL-CIO.
David Saxe Productions, LLC and V Theater Group, LLC, Joint Employers (28-CA-219225, et al, 28-RC-219130; JD(SF)-25-19) Las Vegas, NV. Administrative Law Judge Mara-Louise Anzalone issued her decision on August 27, 2019. Charges filed by International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United States and Canada, Local 720, AFL-CIO.
Wismettac Asian Foods, Inc. (21-CA-207463, et al.; JD(SF)-28-19) Santa Fe Springs, CA. Administrative Law Judge Eleanor Laws issued her decision on August 30, 2019. Charges filed by International Brotherhood of Teamsters, Local 630, and an individual.
Securitas Security Services USA (16-CA-176006 and 16-CA-183494; JD-68-19) Austin, TX. Administrative Law Judge Donna N. Dawson issued her decision on August 30, 2019. Charges filed by an individual.
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