Summary of NLRB Decisions for Week of August 5 - 9, 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
Rhode Island PBS Foundation (01-CA-204520; 368 NLRB No. 29) Providence, RI, August 5, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union, refusing to bargain about wages, unilaterally increasing wages, and refusing to provide the Union with relevant information. The Board also adopted the judge’s conclusions that the Respondent violated Section 8(a)(1) by coercively interrogating employees about their Union support. The Board reversed the judge’s conclusion that three Respondent witnesses had violated his sequestration order.
Charge filed by International Brotherhood of Electrical Workers, Local 1228. Administrative Law Judge David I. Goldman issued his decision on July 23, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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International Union of Operating Engineers, Local 627 (17-CB-072671; 368 NLRB No. 39) Oklahoma City and Tulsa, OK, August 6, 2019.
In this compliance proceeding, the Board adopted the Administrative Law Judge’s supplemental decision directing the Respondent to make whole a discriminatee and two fringe benefit funds. The compliance case arose from unfair labor practice proceedings where the Administrative Law Judge found that the Respondent violated Section 8(b)(1)(A) and (2) by removing an individual from its out-of-work list for arbitrary and discriminatory reasons.
Charge filed by an individual. Administrative Law Judge Charles J. Muhl issued his supplemental decision on January 29, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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AIM Aerospace Sumner, Inc. (19-CA-203455 and 19-CA-203586; 367 NLRB No. 148) Sumner, WA, August 6, 2019. Errata to June 6, 2019 Decision and Order. Errata Amended Decision.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Premier Scaffold, Inc. (19-RC-229377) Tacoma, WA, August 7, 2019. 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 Regional Director had overruled the Employer’s exceptions relating to the Regional Director’s decision to conduct a mail-ballot election. Petitioner—Pacific Northwest Regional Council of Carpenters. Chairman Ring and Members McFerran and Kaplan participated.
C Cases
No Unpublished C Cases Issued.
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Appellate Court Decisions
Woodcrest Health Care Center, Board Case No. 22-CA-083628 (reported at 366 NLRB No. 70) (3d Cir. decided August 6, 2019).
In an unpublished opinion, the Court enforced the Board’s supplemental order that issued against this operator of a rehabilitation and nursing facility in New Milford, New Jersey, where 200 non-professional employees voted in a 2012 election to be represented by 1199 SEIU United Healthcare Workers East. In doing so, the Court agreed with the Board that, prior to the election, the Employer violated Section 8(a)(1) and (3) by announcing and implementing improvements in healthcare benefits for all of its employees except those eligible to vote in the upcoming election.
Previously on review, the Court upheld a number of unfair labor practice findings remedied by the Board’s prior order (360 NLRB 415), but remanded the current healthcare-benefits issue for further consideration. See 800 River Rd. Operating Co., LLC v. NLRB, 784 F.3d 902 (3d Cir. 2015). Specifically, the Court identified the analytical framework of NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), as the applicable standard for assessing this issue of discrimination on remand, and instructed the Board to make specific findings on the Employer’s motive for withholding the benefit improvements from election-eligible employees.
On remand, the Board (Members Pearce, McFerran, and Kaplan) accepted the Court’s opinion as the law of the case and reexamined the Employer’s discriminatory-benefit announcement and implementation under the Great Dane analytical framework, again finding those actions unlawful. The Board first determined that the Employer’s “withholding of improved healthcare benefits from employees in the stipulated unit while announcing an intent to grant those benefits to other employees was ‘discriminatory conduct that could have adversely affected employee rights to some extent,’” quoting Great Dane, 388 U.S. at 34. Then, as specified in Great Dane, the Board shifted the burden to the Employer to demonstrate that its conduct was motivated by a “substantial and legitimate business justification.” In that regard, the Board found that the Employer failed to establish such a justification, and that because “no evidence of a proper justification appears in the record, it is unnecessary to determine whether the record contains independent evidence of improper motivation.”
Back on review, the Court held that the Board applied the correct standard, and that its application of that standard was supported by substantial evidence. In doing so, the Court held that the Employer’s contentions that the Board had misapplied Great Dane were based on a misunderstanding of that framework. Although it commented that the Board’s decision was “not a model of precision,” the Court held that “a reasonable mind, on the current record, could agree with the Board that [the employer] failed to justify its actions. That is all that is needed to enforce the Board’s order.” Finally, the Court rejected the Employer’s contention that the Board should have reopened the record on remand, noting that the Employer never made that request during the remand proceeding, and, before the Court, did not present any evidence it would have proffered if it had been given the opportunity.
The Court’s unpublished opinion is here.
Midwest Terminals of Toledo International, Inc., Board Case Nos. 08-CA-038092 (reported at 365 NLRB No. 157) and 08-CA-119493 (reported at 365 NLRB No. 158) and 08-CA-135971 (reported at 365 NLRB No. 159) (D.C. Cir. decided August 9, 2019).
In an unpublished judgment, the Court enforced in full three separate Board orders issued against this provider of stevedoring and warehousing services for actions taken at its 125-acre facility near the mouth of the Maumee River in Toledo, Ohio, where its employees are represented by the International Longshoremen’s Association and its Local 1982. The Court consolidated this trio of review cases for decision and upheld a litany of unfair labor practices committed by the Employer in violation of Section 8(a)(5), (4), (3), and (1), spanning from 2008 to 2014.
In Midwest I (365 NLRB No. 157), the Board (Members Pearce, McFerran, and Kaplan) found that the Employer violated Section 8(a)(3) and (1) by refusing to assign work to a union supporter and refusing to give him customary light-duty assignments after a later injury, all because he asserted his right to file grievances. The Board (Member Kaplan, dissenting) further found that the Employer violated Section 8(a)(1) by telling an employee that it would not use the contractually agreed-upon regular list to hire needed workers because those at the top of the list had filed charges or lawsuits against the Employer. The Board found that the Employer further violated Section 8(a)(1) by threatening that same employee that he could face discipline up to and including discharge based on the content of his grievances; telling another employee that the Union had caused him to lose paid overtime; and threatening and grabbing yet another employee for investigating a possible grievance in his capacity as a union steward. Finally, the Board found that the Employer violated Section 8(d) and Section 8(a)(5) and (1) by ceasing to check off union dues during the term of a collectively bargained agreement (a 2012 memorandum of understanding).
In Midwest II (365 NLRB No. 158), the Board (Chairman Miscimarra and Members Pearce and McFerran) found that the Employer violated Section 8(a)(5) and (1) by making three unilateral changes without bargaining with the Union: (1) altering mandatory terms and conditions of employment when it changed the availability of informal crane training for employees (Chairman Miscimarra, dissenting), (2) depriving unit employees of their work transferring aluminum and unloading calcium when it reassigned that work to Teamster-represented employees, and (3) changing its past practice of paying employees for time missed because of a work injury. In addition, the Board found that the Employer violated Sections 8(a)(3), (4), and (1) by discharging an employee for his union activities and for his participation in Board processes, and by denying another employee pay because of his union activities and his participation in Board processes.
In Midwest III (365 NLRB No. 159), the Board (Chairman Miscimarra and Members Pearce and McFerran) found that the Employer violated Section 8(a)(5) and (1) by unilaterally departing from the selection criteria for the skilled list set forth in the applicable collective-bargaining agreement, and by unilaterally changing the established practice of meeting and conferring with the Union before selecting employees to add to the skilled list. Further, the Board (Chairman Miscimarra, concurring) found that the Employer violated Section 8(a)(3) and (1) by discriminatorily denying a union supporter placement on the skilled list.
On review, the Court noted that the Employer had raised numerous legal challenges to the Board’s decisions, none of which surmount the Court’s deferential standard of review of Board decisions. With a broad brush, the Court stated: “We need not analyze each of those arguments one by one because the common denominator is that, on this record, they each succumb to the standard of review.” As the Court explained, the Board “permissibly adopted the conclusions in the ALJs’ three comprehensive opinions, which recount in painstaking detail, with substantial record support and permissible credibility judgments, the years of anti-union activity by Midwest.” Thus, the Court directly addressed only the remaining “grab bag of other issues, none of which succeeds.” Those matters included a due-process contention; an assertion that the Board’s order was barred by the doctrine of laches due to the passage of time; an argument that certain charges were time-barred by Section 10(b) of the Act; and contentions that the Union had waived its right to bargain over certain unilateral changes, that a shop steward had forfeited the Act’s protection by using profanity, and that three rulings by the Administrative Law Judges constituted abuses of discretion.
Additionally, in rejecting the Employer’s argument that certain of the complaints in Midwest I were void because they were issued by Acting General Counsel Lafe E. Solomon, the Court stated that, nonetheless, “those complaints were later ratified by a different General Counsel, whose appointment no one disputes,” citing, among other cases, Wilkes-Barre Hospital Co. v. NLRB, 857 F.3d 364, 371 (D.C. Cir. 2017) (“ratification can remedy a defect arising from the decision of an improperly appointed official . . . when . . . a properly appointed official has the power to conduct an independent evaluation of the merits and does so”). Further, the Court explained that the Federal Vacancies Reform Act—“the statute the original [Acting] General Counsel’s appointment violated—expressly permits such ratification in Board cases,” citing 5 U.S.C. § 3348(e)(1), and SW General, Inc. v. NLRB, 796 F.3d 67, 78 (D.C. Cir. 2015).
The Court’s unpublished judgment may be found here.
Consolidated Communications d/b/a Illinois Consolidated Telephone Company, Board Case No. 14-CA-094626 (reported at 367 NLRB No. 7) (7th Cir. decided August 9, 2019).
In a published opinion, the Court affirmed the Board’s dismissal of a complaint allegation that this telecommunications company unlawfully discharged an employee for strike-related activities in violation of Section 8(a)(3) and (1). In a prior review proceeding in this case, the D.C. Circuit had remanded the issue to the Board for further consideration. Consolidated Communications, Inc. v. NLRB, 837 F.3d 1 (D.C. Cir. 2016) (enforcing in part and remanding).
On remand, the Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting) found that the employee’s strike-related misconduct was of sufficient severity to cost her the Act’s protection under the standard of Clear Pine Mouldings, 268 NLRB 1044 (1984). Specifically, the striking employee had targeted and followed two replacement workers who were driving in a company truck, and, with a number of maneuvers, got in front of the truck and purposefully blocked it in an effort to create a rolling blockade. That misconduct, although brief, occurred on a public highway, at high speed, with third-party vehicles present. On those facts, the Board found that dismissal was warranted.
On review, the Court held that the Board’s dismissal of the complaint allegation was based on substantial evidence and a reasonable application of law.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Guthrie Theater (18-CA-215022; JD-56-19) Minneapolis, MN, August 6, 2019. Errata to Administrative Law Judge Melissa M. Olivero’s July 5, 2019 decision. Errata Amended Decision.
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