Summary of NLRB Decisions for Week of August 27 - 31, 2018
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
Erickson Trucking Service, Inc. d/b/a Erickson’s Inc. (07-CA-178824; 366 NLRB No. 171) Grand Rapids, MI, August 27, 2018.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by discharging five employees because of the Union’s increased representation and Section 8(a)(1) by threatening an employee with discharge, promising employees reinstatement if they got the Union to change its actions, and informing employees that they were discharged because of the Union’s actions on their behalf. A Board majority (Members Kaplan and Emanuel; Member Pearce, dissenting) reversed the judge to find that the Respondent did not violate Section 8(a)(1) by disparaging the Union when it referred to the Union’s business representative in pejorative terms.
Charge filed by Local 324, International Union of Operating Engineers (OPEIU), AFL-CIO. Administrative Law Judge Ira Sandron issued his decision on August 11, 2017. Members Pearce, Kaplan, and Emanuel participated.
***
Consolidated Communications Holdings, Inc. d/b/a Consolidated Communications of Texas Company (16-CA-187792 and 16-CA-192050; 366 NLRB No. 172) Conroe, TX, August 27, 2018.
The Board (Members Pearce and McFerran; Member Emanuel, dissenting) reversed the Administrative Law Judge to find that the Respondent violated Section 8(a)(3) and (1) by issuing written discipline to an employee for her role in organizing and participating in a brief stand-and-stretch demonstration in her workplace. The majority found that the employee’s involvement in the demonstration was statutorily protected and that the demonstration did not constitute an unprotected work slowdown. Specifically, the majority reasoned that the employee did not refuse to perform duties or reduce the rate of work, nor did the demonstration have a disruptive effect. Member Emanuel would have found that the demonstration constituted an unprotected slowdown as it interfered with the Respondent’s operations and resulted in lost work time. The Board unanimously affirmed the judge’s dismissal of allegations that the Respondent violated Section 8(a)(1) by threatening an employee and by creating an impression of surveillance.
Charges filed by Communications Workers of America, AFL-CIO, Local 6218. Administrative Law Judge Robert A. Ringler issued his decision on September 28, 2017. Members Pearce, McFerran, and Emanuel participated.
***
Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino (28-CA-211043 and 28-CA-216411; 366 NLRB No. 175) Henderson, NV, August 27, 2018.
The Board granted the General Counsel’s Motion for Partial Summary Judgment, with certain exceptions, on the basis that there were no genuine issues of material fact warranting a hearing and the General Counsel was entitled to a judgment as a matter of law. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with requested information that was relevant and necessary to the performance of its duties as the exclusive collective-bargaining representative of unit employees. The Board ordered the Respondent to furnish the information except for information about certain matters outside the bargaining unit, where the Union had not specified why it wanted the information and had not otherwise demonstrated its relevance.
Charges filed by International Union of Operating Engineers Local 501, AFL-CIO. Members Pearce, McFerran, and Kaplan participated.
***
Inter-Coast International Training, Inc., d/b/a “Intercoast Colleges” (31-CA-131805; 366 NLRB No. 176) Northridge, CA, August 27, 2018.
The Board found that, in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint must be dismissed. The Administrative Law Judge had found that the Respondent’s maintenance of a mandatory arbitration provision in its Employee Manual, requiring employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, violated the Act under the Board’s decisions in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil.
Charge filed by an individual. Administrative Law Judge Lisa D. Thompson issued her decision on April 7, 2016. Chairman Ring and Members Pearce and McFerran participated.
***
Preferred Building Services, Inc. and Rafael Ortiz d/b/a Ortiz Janitorial Services, joint employers (20-CA-149353; 366 NLRB No. 159) San Francisco Bay Area, CA, August 28, 2018.
The Board reversed the Administrative Law Judge’s conclusions that the Respondents violated Section 8(a)(3) and (1) by cancelling contracts and discharging employees, and also committed several independent Section 8(a)(1) violations. Contrary to the judge, the Board found that the Respondents affirmatively established that employees engaged in secondary picketing prohibited by Section 8(b)(4)(ii)(B). Accordingly, the Board dismissed the complaint in its entirety because the complaint allegations involved the Respondents’ reactions to that unprotected picketing. The Board found it unnecessary to pass on the judge’s finding that the Respondents are joint employers.
Charge filed by Service Employees International Union Local 87. Administrative Law Judge Mary Miller Cracraft issued her decision on September 9, 2016. Chairman Ring and Members Kaplan and Emanuel participated.
***
E.I. DuPont de Nemours and Company (05-CA-101359; 366 NLRB No. 178) Richmond, VA, August 27, 2018.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Sections 8(a)(5) and (1) by unreasonably delaying and failing to respond to the Union’s information request pertaining to bargaining unit employees in relation to an employee’s discharge. As to other requests for information pertaining to supervisors, the majority (Members Pearce and McFerran) reversed the judge and found that the Union met its burden to show relevance under the Board’s liberal discovery-type standard. The majority found that the information was necessary for the Union, in carrying out its duties as a bargaining representative, to evaluate comparative data to decide whether or not to arbitrate the employee’s discharge. Dissenting in part, Member Emanuel would have found that the Union had not met its burden to show that the request for supervisors’ information was relevant to the Respondent’s reason for discharging the employee.
Charge filed by Ampthill Rayon Workers, Inc., Local 992, International Brotherhood of Du Pont Workers. Administrative Law Judge Donna N. Dawson issued her decision on February 20, 2014. Members Pearce, McFerran, and Emanuel participated.
***
ImageFIRST and Laundry Distribution (22-CA-161563 and 22-CA-181197; 366 NLRB No. 182) Clifton, NJ, August 27, 2018.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by soliciting grievances and granting benefits to employees to discourage their union activity by, among other things, discharging unpopular supervisors and providing more and better free food to employees. In addition, the Board found that the Respondent unlawfully initiated a confrontation with a union representative and maintained a handbook rule that provided for discipline for discussing payroll information. Dissenting in part, Member Emanuel would have found that the Respondent did not change its practice of providing food for employees after the start of the organizing campaign.
Charges filed by Laundry Distribution and Food Service Joint Board, Workers United, a/w Service Employees International Union. Administrative Law Judge Arthur J. Amchan issued his decision on April 18, 2017. Members Pearce, Kaplan, and Emanuel participated.
***
Ozburn-Hessey Logistics, LLC (26-CA-092192, 15-CA-097046, et al.; 366 NLRB No. 177) Memphis, TN, August 27, 2018.
The Board (Members Pearce and McFerran; Chairman Ring, dissenting in part) found that the Respondent violated Section 8(a)(5), (3), and (1) by interfering with employees’ union activity in numerous respects following the Union’s certification in 2013, while affirming the judge’s dismissal of other similar complaint allegations. In addition, the Board affirmed the judge’s finding that the Respondent acted unlawfully by unilaterally implementing a mandatory exercise program, changing time and attendance policies and work schedules, and increasing contributions to employees’ 401(k) plans. The Board also concluded that the Respondent unlawfully told an employee that he had no right to union representation during a disciplinary interview following the 2013 election won by the Union, reasoning that such rights attach when the union wins the election, not when the union’s win is certified by the Board. The Board also found that the Respondent unlawfully discharged certain employees for their union activity. To remedy these unfair labor practices, and in light of the Respondent’s history of violating the Act, the Board ordered that the remedial notice be read aloud to employees and published and posted for three years. Dissenting in part, Chairman Ring would have found that some of the discharges were lawful, and that the additional extraordinary remedies are not warranted.
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, and two individuals. Administrative Law Judge Keltner W. Locke issued his decision on April 28, 2015. Chairman Ring and Members Pearce and McFerran participated.
***
The Ruprecht Company (13-CA-155048, et al.; 366 NLRB No. 179) Mundelein, IL, August 27, 2018.
The Board (Members Pearce and McFerran; Member Emanuel, dissenting in part) adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by using temporary employment agency employees and enrolling in E-Verify without giving the Union notice and an opportunity to bargain over these changes; bypassing the Union and dealing directly with its employees over the terms of severance from employment; and failing to furnish the Union with unredacted copies of the letters it received from the U.S. Immigration and Customs Enforcement, Homeland Security Investigations, containing the names of unit employees who had been identified as having suspect employment documents. Dissenting in part, Member Emanuel would have found that the requested information was confidential, and therefore, the Respondent did not violate the Act by failing to provide the Union with the unredacted letters. In addition, while Member Emanuel agreed that the Respondent violated the Act by unilaterally enrolling in E-Verify, he would not have ordered the Respondent to rescind its participation in the E-Verify program, as he found that the parties subsequently bargained over the Respondent’s enrollment in E-Verify.
Charges filed by UNITE HERE Local 1. Administrative Law Judge Joel P. Biblowitz issued his decision on May 13, 2016. Members Pearce, McFerran, and Emanuel participated.
***
Garner/Morrison, LLC (28-CA-021311 and 28-CB-006585; 366 NLRB No. 184) Tempe, AZ, August 27, 2018.
Upon remand from the D.C. Circuit Court, the Board reversed its previous Decision and Order (356 NLRB 1301 (2011), aff’g in part 353 NLRB 719 (2009)) and found that the presence of Garner/Morrison’s executives at a meeting while the Carpenters solicited Garner/Morrison’s employees to sign authorization cards did not constitute unlawful surveillance and assistance or taint the Carpenter’s showing of majority support based on the cards. The Court held that it could not reconcile the Board’s prior decision in this case with Coamo Knitting Mills, 150 NLRB 579 (1964), in which the Board found similar conduct to be lawful. Agreeing with the Court, Chairman Ring and Member Emanuel found that Coamo is not materially distinguishable. They therefore dismissed the complaint allegations that Garner/Morrison violated Section 8(a)(1) by surveilling its employees’ protected activity and violated Section 8(a)(2) by assisting the Carpenters in obtaining authorization cards and by granting Section 9(a) recognition to the Carpenters based on the cards. They also dismissed allegations that the Carpenters violated Section 8(b)(1)(A) by accepting the assistance and recognition and entering into a new collective-bargaining agreement with Garner/Morrison. Dissenting, Member Pearce stated that Coamo is of doubtful precedential value in light of the Board’s subsequent decisions defining what constitutes unlawful coercion and assistance and, in any event, is readily distinguishable on its facts. Considering the totality of the circumstances and the record as a whole, he would find that the presence of Garner/Morrison’s top executives at a meeting while the Carpenters solicited employees to sign authorization cards constituted unlawful surveillance and assistance and reasonably tended to coerce employees in the free exercise of their right to choose a bargaining representative. Accordingly, Member Pearce would affirm the Board’s prior decision.
Charges filed by International Union of Painters and Allied Trades, District Council #15, Local Union #86, AFL-CIO-CLC. Administrative Law Judge James M. Kennedy issued his decision on December 21, 2007. Chairman Ring and Members Pearce and Emanuel participated.
***
Kankakee County Training Center for the Disabled, Inc. (25-CA-166729, et al.; 366 NLRB No. 181) Kankakee, IL, August 27, 2018.
A Board majority (Members Pearce and McFerran; Chairman Ring, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by subcontracting unit IT work, a second time, without bargaining with the Union. The Board unanimously adopted the judge’s conclusions that the Respondent did not violate Section 8(a)(5) and (1) by failing to bargain with the Union over an earlier decision to subcontract similar IT work and that the Respondent did violate Section 8(a)(5) and (1) by failing to provide requested personnel information to the Union. Also, the Board unanimously adopted the judge’s dismissal of allegations that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging an employee in retaliation for her union activity; and Section 8(a)(1) by instructing employees not to talk about the Union during working time.
Charges filed by American Federation of State, County and Municipal Employees (AFSCME), Council 31, AFL-CIO. Administrative Law Judge Joel P. Biblowitz issued his decision on September 14, 2016. Chairman Ring and Members Pearce and McFerran participated.
***
Con-Way Freight, Inc. (21-CA-135683, et al.; 366 NLRB No. 183) Los Angeles, CA, August 27, 2018.
The Board (Members Pearce and McFerran; Chairman Ring, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging an employee after he had a driving accident. The majority found that the employee was a known Union organizing leader and that the Respondent had displayed animus towards him for his protected activity. The majority concluded that the Respondent’s assertion that the employee was discharged because he lied about the incident was pretextual and that the Respondent had instead manipulated the situation to retaliate by discharging the leader of the Union organizing campaign. In particular, the majority noted the Respondent’s unexplained decision to review the incident footage after the accident had been ruled non-preventable, the Respondent’s sustained effort to inflate the nature of the employee’s conduct over the course of the investigation, the shifting reasons for his termination, and the disproportionate nature of the Respondent’s response.
The Board majority also adopted the judge’s finding that the Respondent, by its labor consultant, violated Section 8(a)(1) by unspecified threats to another employee, a known union supporter. Specifically, the majority found that the labor consultant responded to the employee’s suggestion that employees needed a union because they felt “battered” by making a pointed statement about his own aggressive and vengeful nature in the face of opposition. This included miming kicking down a door, pushing someone down, and aiming a gun at that person’s head. The majority found this, combined with his description of his character, implied that the labor consultant was willing to do anything—including acts of physical violence—to stop the Union.
Chairman Ring dissented from the majority’s conclusions concerning the Respondent’s violations of the Act with respect to the two employees. The Chairman asserted that the Respondent’s animus towards the Union, if any, did not begin until after one employee was discharged, and that the Respondent reasonably believed that his omission of his use of an electronic device in his report justified the discharge, and that there was nothing suspicious in the decision to review the recorded footage. Chairman Ring also concluded that there was no threat to the other employee because the labor consultant’s words and actions did not have the requisite tendency to interfere with the free exercise of rights under the Act, and that there was insufficient evidence to infer that the labor consultant acted because of the employee’s protected activity.
The Board unanimously adopted the judge’s overruling of the Respondent’s election objections and certified the Union as the exclusive bargaining representative of the employees in the unit.
Charges filed by International Brotherhood of Teamsters Local 63, and by individuals. Administrative Law Judge Eleanor Laws issued her decision on November 5, 2015. Chairman Ring and Members Pearce and McFerran participated.
***
UPMC and its subsidiary, UPMC Presbyterian Shadyside, single employer, d/b/a UPMC Presbyterian Hospital and d/b/a UPMC Shadyside Hospital (06-CA-102465, et al.; 366 NLRB No. 185) Pittsburgh, PA, August 27, 2018.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by discharging employees and by issuing disciplinary warnings to numerous employees. The Board, also unanimously, reversed and dismissed one final written warning allegation.
A majority (Members Pearce and McFerran) also adopted the judge’s conclusion that the Respondent violated Section 8(a)(2) by dominating or interfering with the formation or administration of an employee council found to constitute a “labor organization” under Section 2(5). Dissenting in part, Member Emanuel found the council to be a labor organization, but did not find domination or interference. Based on its finding that the council was a statutory “labor organization,” the Board adopted the judge’s findings of a number of Section 8(a)(3) or Section 8(a)(1) violations regarding discriminatory prohibitions against union-related bulletin board postings.
The case involved a large number of additional Section 8(a)(1) violations, including prohibitions against the wearing of union insignia and asking or compelling employees to answer questions or provide written statements regarding union activity by themselves or their fellow employees. Member Emanuel dissented or set forth narrower rationales regarding a number of the Section 8(a)(1) violations.
As part of the remedy, the majority (Members Pearce and McFerran; Member Emanuel, dissenting in part) ordered notice-reading and a 120-day notice posting period. A different majority (Members McFerran and Emanuel; Member Pearce, dissenting) severed for further consideration an allegation that the Respondent unlawfully ejected non-employee union organizers from its cafeteria and two related allegations. Finally, the case involved several evidentiary and subpoena issues, in all of which the Board unanimously adopted the judge’s rulings.
Charges filed by SEIU Healthcare Pennsylvania CTW, CLC. Administrative Law Judge Mark Carissimi issued his decision on November 14, 2014. Members Pearce, McFerran, and Emanuel participated.
***
East End Bus Lines, Inc. (29-CA-161247, et al.; 366 NLRB No. 180) Medford, NY, August 27, 2018.
A Board majority (Chairman Ring and Member McFerran) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) by reassigning a school bus driver from a full-size bus to a van, resulting in a reduction in the driver’s pay, because of her protected concerted activity and union activity. The Board unanimously found that the General Counsel had shown that the driver’s reassignment was motivated by the Respondent’s animus; however, the majority found that the Respondent showed that it would have reassigned the employee in any event to save money for the school district. Member Pearce, dissenting, found the General Counsel’s showing stronger than did the majority and the Respondent’s showing insufficient to meet its burden; thus, he would have adopted the judge’s finding of a violation.
A different majority (Members Pearce and McFerran) affirmed the judge’s conclusion that the Respondent violated Section 8(a)(3) by subsequently discharging the same employee, purportedly for unsafe driving. Again, the Board unanimously found that the General Counsel met his initial burden, but split on whether the Respondent showed that it would have discharged the driver even absent her protected activity. The majority relied on the strong evidence that the discharge was motivated by animus, the Respondent’s rushed and incomplete investigation of the incident at issue, and the Respondent’s inconsistency in disciplinary responses to occurrences raising safety concerns; further, the majority noted the full context, including the Respondent’s many unchallenged Section 8(a)(3) violations. Chairman Ring found that the employee’s misconduct was so dangerous and intentional that the Respondent properly discharged her. Accordingly, contrary to the majority, Chairman Ring found it improper for the Board to order reinstatement and backpay.
Charges filed by International Brotherhood of Teamsters Local 1205 and an individual. Administrative Law Judge Ira Sandron issued his decision on November 21, 2016. Chairman Ring and Members Pearce and McFerran participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
Center Line Studios, Inc. (02-CA-185189) New York, NY, August 29, 2018. No exceptions having been filed to the July 2, 2018 decision of Administrative Law Judge Jeffrey P. Gardner’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 International Alliance of Theatrical Stage Employees, Local 311.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Sheffield Barbers, LLC (28-CA-199308, et al.; JD(SF)-23-18) Las Vegas, NV. Administrative Law Judge Gerald M. Etchingham issued his decision on August 27, 2018. Charges filed by Nellis Barbers Association and an individual.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.