Summary of NLRB Decisions for Week of August 31 - September 4, 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
SAG‒AFTRA New York (Various Employers) (02-CB-242132; 370 NLRB No. 14) New York, NY, August 31, 2020.
The Board, reversing the Administrative Law Judge, found that the General Counsel failed to establish jurisdiction over Picrow Streaming, for whom the Charging Party had recently worked, based on its membership in a multiemployer association, and dismissed the complaint.
Charge filed by an individual. Administrative Law Judge Lauren Esposito issued her decision on April 22, 2020. Chairman Ring and Members Kaplan and Emanuel participated.
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NP Texas LLC d/b/a Texas Station Gambling Hall (28-RC-261253; 370 NLRB No. 11) Las Vegas, NV, August 31, 2020.
The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised substantial issues warranting review. Upon review, the Board reversed the Regional Director’s decision to direct an election, finding that the Employer had temporarily suspended its operations, laid off all of its employees, and did not know when it would be able to resume operations. Under the circumstances, the Board found that the laid-off employees had no reasonable expectation of recall, and, therefore, the Employer had no eligible voters to vote in an election. Accordingly, the Board dismissed the petition, without prejudice and subject to reinstatement when the Employer resumes operations.
Petitioner—Local Joint Executive Board of Las Vegas. Chairman Ring and Members Kaplan and Emanuel participated.
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Truck Drivers, Chauffeurs and Helpers Local Union No. 100, a/w the International Brotherhood of Teamsters (Wicked Films, LLC) (09-CB-214166; 370 NLRB No. 15) Newport, KY, September 1, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(1)(A) and (2) by failing to refer an employee from its exclusive referral service for a job with the Employer. The Board found the violation under the duty-of-fair-representation analytical framework and found it unnecessary to pass on the judge’s finding that the same failure also violated the Act under the Wright Line framework.
Charge filed by an individual. Administrative Law Judge Andrew S. Gollin issued his decision on September 11, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Epsilon System Solutions, Inc. (21-RC-257595) Coronado, CA, September 1, 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 Association of Machinists & Aerospace Workers, District Lodge 725, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Hobby Lobby Stores, Inc. (20-CA-139745) Sacramento, CA, September 2, 2020. The Board denied the Charging Party’s Motion for Reconsideration of the Board’s Second Supplemental Decision and Order reported at 369 NLRB No. 129 (2020). The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Member McFerran concurred in this result. Charge filed by The Committee to Preserve the Religious Right to Organize. Chairman Ring and Members Kaplan, Emanuel, and McFerran participated.
Lion Elastomers, LLC (16-RC-262751) Orange, TX, September 2, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Order Denying the Employer’s Ex Parte Motion for Continuance as it raised no substantial issues warranting review. The Board also denied the Employer’s request to the stay the election. Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC. Members Kaplan, Emanuel, and McFerran participated.
Wismettac Asian Foods, Inc. (21-RC-204759) Santa Fe Springs, CA, September 4, 2020. The Board denied the Employer’s Request for Review and Remand of the Regional Director’s Decision to Overrule the Employer’s Exceptions and Overrule the Union’s Exceptions, Adopt the Administrative Law Judge’s Recommendations and Certification of Representative as it raised no substantial issues warranting review. Petitioner—Food, Industrial & Beverage Warehouse, Drivers and Clerical Employees Union Local 630, International Brotherhood of Teamsters. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
The Boeing Company (10-CA-204795, et al.) North Charleston, SC, August 31, 2020. The Board denied the Respondent’s Motion for Partial Summary Judgment, finding that the Respondent 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. Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
The Boeing Company (10-CA-204795, et al.) North Charleston, SC, August 31, 2020. The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order directing that the hearing be conducted by videoconference 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 ongoing COVID-19 pandemic, and that the Respondent did not show that a hearing held by videoconference would deny it due process. Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Local 675 of the United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry of the United States & Canada (RPS Mechanical, Inc.) (20-CB-251372) Honolulu, HI, September 4, 2020. The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order directing that the hearing be conducted by videoconference but denied the appeal on the merits. The Board found that the ongoing COVID-19 pandemic establishes good cause based on compelling circumstances for the video hearing and that the Respondent may raise any nonspeculative concerns that arise during the hearing to the judge in the first instance, without prejudice to its right to file exceptions with the Board to any adverse rulings. Charge filed by RPS Mechanical, Inc. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Matsu Corp. d/b/a Matsu Sushi Restaurant, Board Case No. 01-CA-214272 (reported at 368 NLRB No. 16) (2d Cir. decided September 3, 2020).
In an unpublished summary order, the Court enforced the Board’s order that issued against this operator of a restaurant located in Westport, Connecticut. In doing so, the Court upheld the findings of the Board (Chairman Ring and Members McFerran and Kaplan) that the restaurant violated Section 8(a)(1) by discharging two kitchen chefs for their protected concerted activity in jointly refusing to work an extra overnight shift because of health and safety concerns.
After working a 36-hour shift for a catering order in 2017, the two kitchen chefs conferred and agreed to refuse to work extra overnight shifts in the future because of the detrimental effect that the long hours had on their health. Three months later, upon learning that the next catering order was scheduled in two weeks, the chefs again conferred, reaffirmed their agreement, and jointly refused to work the extra overnight shift by informing their manager who then contacted the restaurant owner. Three days later, after they continued to refuse to work the upcoming extra overnight shift, the restaurant stopped calling them in for work altogether. On those facts, the Board found the restaurant unlawfully discharged the chefs. The Board also relied on the owner’s admission that the restaurant fired them because of “their defiance” in refusing to work the extra overnight shift, and the manager’s statement that the chefs would face consequences for their refusal to work. Lastly, the Board rejected the restaurant’s defense that the chefs had voluntarily quit.
On review, the Court held that the Board’s unlawful-discharge findings were supported by substantial evidence, that many of the arguments that the restaurant attempted to raise were jurisdictionally barred from review under Section 10(e) of the Act because they were not presented to the Board, and that the restaurant’s remaining contentions were without merit. On its claim that the Board’s order was moot because the restaurant had permanently closed, the Court stated that the issue was one appropriately addressed in a later compliance proceeding.
The Court’s summary order may be found here.
Entergy Mississippi, Inc., Board Case No. 15-CA-017213 (reported at 367 NLRB No. 109) (5th Cir. decided under the name IBEW Local 605 v. NLRB September 2, 2020).
In a published opinion in this unit-clarification case, the Court denied the petition filed by International Brotherhood of Electrical Workers, Locals 605 and 985, for review of the Board’s decision on remand. In its decision, the Board (Chairman Ring and Members Kaplan and Emanuel) dismissed the complaint that had alleged that this electric utility company violated Section 8(a)(5) and (1) by refusing to bargain with the Union as representative of its dispatchers, who work with field employees to maintain and restore power to geographical areas throughout Mississippi. On review, the Court upheld the Board’s determination that the dispatchers were supervisors within the meaning of Section 2(11) of the Act.
This case has a lengthy procedural history which began in 2003, when the Employer filed a unit-clarification petition contending that the dispatchers were supervisors and seeking to exclude them from the bargaining unit that also included field employees. The Region denied the petition, and the Employer sought Board review. In 2006, the Board (Chairman Battista and Members Schaumber and Kirsanow) remanded the case to the Region to apply the Board’s then-recent 2006 decisions in Oakwood Healthcare, Inc., 348 NLRB 686, Golden Crest Healthcare Center, 348 NLRB 727, and Croft Metals, Inc., 348 NLRB 717, which addressed the meaning of Section 2(11)’s terms “assign,” “responsibly to direct,” and “independent judgment.” The Region again concluded that the dispatchers were not statutory supervisors. In 2011, the Board (Chairman Pearce and Member Becker; Member Hayes, dissenting) affirmed that ruling on review (357 NLRB 2150). The Employer then refused to bargain in order to seek court review.
The Fifth Circuit, in that earlier review proceeding, agreed with the Board that the dispatchers did not “responsibly direct” field employees under Oakwood. However, on the question whether they exercise independent judgment to “assign” field employees to job locations, the Court held that the Board “ignored significant evidence suggesting that dispatchers ‘assign’ field employees to ‘places’ using ‘independent judgment.’” Specifically, the Court pointed to evidence that “dispatchers arguably exercise independent judgment when deciding how to allocate [the] field workers” during instances of multiple simultaneous outages or other troubles. The Court remanded for further proceedings on that narrow question. Entergy Miss., Inc. v. NLRB, 810 F.3d 287 (5th Cir. 2015).
In its decision currently under review, the Board accepted the Court’s decision as the law of the case, reviewed the evidence identified by the Court, and concluded that the dispatchers are statutory supervisors. The Board found that when the dispatchers send field employees from one work area to another, then either on to yet another location or back to the original one, they are necessarily assigning field employees to particular locations. Further, the Board found that the dispatchers exercise independent judgment in making those assignment decisions, because they are based on their own evaluation of a number of discretionary factors without set rules or standard operating procedures. Those factors include the number of employees needed at a particular location, and whether to redirect dispatched employees to other trouble locations based on changed circumstances. Accordingly, the Board concluded that the dispatchers assign field employees to places using independent judgment, dismissed the complaint, and issued an order clarifying the bargaining unit to exclude dispatchers.
On review, the Court upheld the Board’s determinations that the dispatchers assign field employees to places, and do so with independent judgment. On the issue of assignment, the Court held that the Union’s challenges to the Board’s finding that the dispatchers “assign” field employees to “places” were not properly before the Court. The Court explained that, under the jurisdictional bar of Section 10(e) of the Act, the Union’s failure to raise those arguments “at the appropriate time—in its brief to the Board on remand—precludes our court from considering dispatchers’ assignment powers.” On the issue of independent judgment, the Court rejected the Union’s contentions and held that the Board’s determination was reasonable, supported by substantial evidence, and consistent with precedent.
The Court’s opinion is here.
Sysco Grand Rapids, LLC, Board Case No. 07-CA-146820 (reported at 367 NLRB No. 111) (6th Cir. decided September 4, 2020).
In an unpublished opinion, the Court enforced, in part, the Board’s order that issued against this food distributor for unfair labor practices committed at its facility in Grand Rapids, Michigan, after an organizing campaign among the facility’s 160 employees was initiated in 2014, and an election was conducted in which the employees voted 82 to 71 against representation by General Teamsters Union Local 406. In doing so, the Court enforced the bulk of the Board’s order, except regarding an unlawful threat and several remedial provisions.
The Board (Chairman Ring and Members McFerran and Kaplan) found that the Employer committed numerous violations during its campaign against unionization, including violating Section 8(a)(1) by threatening employees with various adverse consequences should they unionize and promising benefits should they reject the Union, interrogating employees about their Union views, and surveilling their Union activities. The Board further found that the Employer violated Section 8(a)(3) and (1) by discharging one prominent Union supporter and reducing the hours of another, and violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union after it demonstrated its majority status by a showing of authorization cards, then destroying that majority support and impeding the election process by its unlawful conduct. In addition to ordering a second election and a number of traditional remedies, the Board held that the Employer’s numerous and pervasive violations warranted additional remedies that would “dissipate as much as possible any lingering effects of [its] unfair labor practices and to ensure that a fair second election can be held.” Those remedies included a broad cease-and-desist order, a notice-reading requirement, granting the Union reasonable access to all places where the Employer customarily posts notices, supplying the Union with employees’ names and addresses, and giving the Union notice and opportunity to attend meetings where the Employer addresses employees regarding Union representation, with equal time to respond. The Board (Member McFerran, dissenting) declined to adopt the Administrative Law Judge’s recommendation to issue a Gissel bargaining order.
Before the Court, the Employer contested only the unlawful discharge, three unlawful threats, and several remedial provisions. On the unlawful discharge of the Union supporter, who was a truck driver, the Court held that substantial evidence supported the Board’s finding of unlawful motive, and rejected the Employer’s claim that it had no knowledge of his Union activity, or that it had just cause to fire him. The Court noted its agreement with the Board that an incident where his supervisor had intentionally taken his truck keys and hidden them while he was in route making deliveries, was “an obvious attempt to lure [him] into acting out.” The employee reacted by using profanity, complaining to a customer that his supervisor had taken his keys, and threatening to take a sick day. He was fired the next day for that reaction. The Court explained that because “employers generally may not use an employee’s outburst resulting from an employer-caused problem as grounds for discharge, see Paradise Post, 297 NLRB 876, 895 (1990), [his] reaction to the keys incident can’t justify his termination.”
On the contested threats, the Court held that the Board reasonably concluded that the Employer repeatedly and coercively threatened that, if employees unionized, they would most likely end up on strike and be permanently replaced, as well as its statements that unionization would result in diminished access to supervisors. However, on the Board’s finding that the company president unlawfully threatened employees by warning them that unionization would cause dissatisfied customers, leading to loss of business and jobs, the Court held that his statements were protected by Section 8(c) of the Act. The Court explained that the company president “truthfully spoke about his experience working with unions,” and was “entitled to communicate his views about ‘the likely economic consequences of unionization that are outside his control,’” quoting NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
On the contested remedies, the Court held that the Board’s broad cease-and-desist order was fully warranted, but that both the notice-reading requirement and the order that the Union have access to the Employer’s facilities and employees were remedies not justified on the record in this case. Lastly, the Court summarily enforced those portions of the Board’s order remedying the numerous uncontested unfair-labor-practice findings.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Smyrna Ready Mix Concrete, LLC (09-CA-251578, et al.; JD-33-20) Winchester, KY. Administrative Law Judge Arthur J. Amchan issued his decision on September 1, 2020. Charges filed by General Drivers, Warehousemen and Helpers, Local Union No. 89, a/w the International Brotherhood of Teamsters.
Ampersand Publishing, LLC d/b/a Santa Barbara News-Press (31-CA-028589, et al.; JD(SF)-19-20) Los Angeles, CA. Administrative Law Judge Dickie Montemayor issued his decision on September 4, 2020. Charges filed by Graphic Communications Conference, International Brotherhood of Teamsters.
Stericycle, Inc. (04-CA-137660, et al.; JD-34-20) Morgantown and Southampton, PA. Administrative Law Judge Michael A. Rosas issued his decision on September 4, 2020. Charges filed by Teamsters Local 628.
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