Summary of NLRB Decisions for Week of August 8 - 12, 2022
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
Thrifty Payless, Inc. d/b/a Rite Aid (20-CA-255252; 371 NLRB No. 124) Roseville, CA, August 11, 2022.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent failed and refused to bargain in good faith with the Union in violation of Section 8(a)(5) and (1) by unilaterally implementing the terms of its contract proposals without bargaining to an overall impasse in negotiations with the Union for a new collective-bargaining agreement.
Charge filed by United Food and Commercial Workers Local 8-Golden State. Administrative Law Judge Dickie Montemayor issued his decision on December 9, 2021. Members Kaplan, Wilcox, and Prouty participated.
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North Texas Investment Group d/b/a Whitehawk Worldwide (28-CA-265119, et al.; 371 NLRB No. 122) El Paso, TX, August 11, 2022.
The Board unanimously affirmed the Administrative Law Judge’s dismissal of the allegations that the Respondent violated Section 8(a)(4), (3), and (1) by filing a civil lawsuit against an employee, agreeing that the lawsuit was not baseless. A Board majority consisting of Members Ring and Prouty found it unnecessary to pass on whether the lawsuit was retaliatory. Member Wilcox concurred in dismissing the allegations because the lawsuit was not baseless, but would have found that the record included some evidence suggesting that the lawsuit was filed in a retaliatory fashion.
A Board majority consisting of Members Wilcox and Prouty affirmed the judge’s broad cease-and-desist order, found a Gissel bargaining order to be warranted to remedy the Respondent’s unlawful conduct, and ordered specific named individuals to read the notice to employees. Dissenting in part, Member Ring would have issued a narrow cease-and-desist order and would have found a Gissel bargaining order not warranted. While Member Ring agreed that the Respondent’s unfair labor practices were sufficiently serious and widespread to warrant a notice-reading remedy, he disagreed with the majority’s decision to order specific named individuals to perform the notice reading.
Charges filed by International Union, Security, Police and Fire Professionals of America (SPFPA) and an individual. Administrative Law Judge Michael A. Rosas issued his decision on July 20, 2021. Members Ring, Wilcox, and Prouty participated.
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Troy Grove, a Division of Riverstone Group Inc., Vermillion Quarry, a Division of Riverstone Group Inc. (25-CA-262611; 371 NLRB No. 123) Utica, IL, August 11, 2022.
The Board remanded this case to the Administrative Law Judge for clarification of the credibility determinations underlying her recommended dismissal of an allegation that the Respondent violated Section 8(a)(1) by unlawfully coercively interrogating two of its employees. Specifically, the Board instructed the judge to clarify whether and in what way a piece of admitted documentary evidence that went unaddressed in the judge’s analysis impacts her credibility determinations and to further explain how the specific non-demeanor credibility factors at play impact her credibility determinations. Member Ring concurred in the decision to remand to the judge but wrote separately to highlight certain considerations that, in his view, the majority failed to mention and that the judge may reasonably factor into her analysis of credibility on remand.
Charge filed by the International Union of Operating Engineers, Local 150, AFL-CIO. Administrative Law Judge Christine E. Dibble issued her decision on December 21, 2021 and corrected it by an Errata on December 23, 2021. Chairman McFerran and Members Ring and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Starbucks Corporation (19-RC-297142) North Bend, WA, August 8, 2022. 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. Chairman McFerran and Members Ring and Wilcox participated. Petitioner—Workers United.
Starbucks Corporation (19-RC-296544) Salem, OR, August 9, 2022. 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. Chairman McFerran and Members Kaplan and Wilcox participated. Petitioner—Workers United.
Hussman Services Corporation (27-RC-271418) Denver, CO, August 11, 2022. The Board denied the Petitioner’s Request for Review of the Regional Director’s dismissal of objections as it raised no substantial issues warranting review. Petitioner—Plumbers and Pipefitters Local 208, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO. Chairman McFerran and Members Wilcox and Prouty participated.
Quarterline Consulting Services, LLC (28-RC-292258) Albuquerque, NM, August 11, 2022. 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. In denying review, the Board observed that the Employer had not overcome its burden to demonstrate that the interests of the employees within the presumptively valid petitioned-for single-facility unit were so disparate from one another that they could not be represented in the same unit. The Board did not rely on the Regional Director’s analysis of interchange within the petitioned-for unit. Petitioner—International Association of Machinists and Aerospace Workers, Local Lodge 794. Chairman McFerran and Members Wilcox and Prouty participated.
C Cases
Bebo’s and Kathy’s Café (16-CA-280782) Pilot Point, TX, August 9, 2022. No exceptions having been filed to the June 28, 2022 decision of Administrative Law Judge Michael A. Rosas’ 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.
Falcon Trucking, LLC. and Ragle, Inc., a single employer and/or joint employer (25-CA-188022, et al.) Newburgh, IN, August 10, 2022, Errata to May 9, 2022 Order. Errata Amended Order.
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Appellate Court Decisions
Constellium Rolled Products, Board Case No. 09-CA-116410 (reported at 371 NLRB No. 16) (D.C. Cir. decided August 9, 2022).
In a published opinion, the Court reviewed the Board’s supplemental decision after remand, and enforced the Board’s order issued against this operator of a rolled aluminum manufacturing facility in Ravenswood, West Virginia, where its production and maintenance employees are employed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Services Workers International Union, Local 5668. In conclusion, the Court held that “the Board sufficiently addressed the conflict between the NLRA and Constellium’s antidiscrimination obligations,” which was the issue on remand, and that the Board reasonably found that Constellium discharged an employee in violation of Section 8(a)(3) and (1), despite having written “whore board” on two overtime signup sheets posted at the facility.
In its initial decision (366 NLRB No. 131), the Board (Member Pearce and then-Member McFerran; Member Emanuel, dissenting) found that the employee was unlawfully discharged for writing those words on the overtime sheets in protest of a new overtime system that had been unilaterally imposed by Constellium. The Board noted that a boycott of the overtime system was widespread at the facility, and that the expression was commonplace among employees and supervisors alike. The Board rejected Constellium’s argument that the writing was instead an unprotected act of vandalism to its property.
Previously on review, the D.C. Circuit granted Constellium’s petition for review and remanded the case to the Board for further proceedings. See Constellium Rolled Products Ravenswood, LLC v. NLRB, 945 F.3d 546 (D.C. Cir. 2019). The Court upheld the Board’s findings in all other aspects, but remanded for the Board to address whether it was creating a conflict between the NLRA and state and federal equal employment opportunity laws.
In its supplemental decision on remand (371 NLRB No. 16), the Board applied the Wright Line test, as required in General Motors, 369 NLRB No. 127 (July 21, 2020), which it had issued after the Court’s remand, and concluded that Constellium unlawfully suspended and discharged the employee. Given that the Court had previously upheld the bulk of the Board’s factual findings, the Board found there was “no dispute under the law of the case that [the employee] engaged in protected Section 7 activity when he wrote ‘whore board’ on the overtime signup sheets.” Turning to the Employer’s defense, the Board rejected Constellium’s contention that the suspension and discharge were actions “lawfully motivated by its efforts to comply with antidiscrimination laws” after receiving a jury verdict finding a hostile work environment at the facility. Rather, the Board found Constellium’s contention unsupported by the record. The Board emphasized that Constellium continued to tolerate “extensive profanity, vulgarity, and graffiti in the workplace after the adverse jury verdict,” and that its “lack of enforcement of its obligations under antidiscrimination laws allowing wide use of the term persisted for some 6 months, until [this employee] alone was singled out for discipline and discharge for use of the term.”
Back on review, the Court held that the Board had sufficiently addressed any conflict between the NLRA and Constellium’s antidiscrimination obligations in this case. The Court explained, consistent with the Board’s decision, that “Constellium could have avoided NLRA liability by showing that it had a history of enforcing laws and policies against discrimination and harassment in a consistent manner, or by showing that it was turning over a new leaf in that regard when it disciplined [the employee], but it showed neither.” The Court concluded that “Constellium’s lack of enforcement of its own anti-harassment policies and code of conduct, not the Board’s assessment of the record, forecloses its rebuttal argument.” In sum, the Court stated that “[a]n employer may defend against allegations that its act of discipline against an employee engaged in protected activity violated the NLRA by demonstrating that its motive was adherence to antidiscrimination laws,” which is an approach that addresses both “the potential conflict between the [Board’s] interpretation of the NLRA and Constellium’s obligations under state and federal equal employment opportunity laws.”
The Court’s opinion is here.
Ampersand Publishing, LLC d/b/a Santa Barbara News-Press, Board Case No. 31-CA-028589 (reported at 370 NLRB No. 70) (9th Cir. decided August 11, 2022).
In a pair of decisions in this backpay case, the Ninth Circuit enforced in full the Board’s supplemental order that issued against this publisher of a newspaper in Santa Barbara, California, where its newsroom employees are represented by the Graphic Communications Conference, International Brotherhood of Teamsters. In doing so, the Court upheld the Board’s remedial authority to order an employer to reimburse a union for legal fees incurred during contract bargaining, and rejected Ampersand’s challenges to the amounts claimed in the compliance specification.
In the underlying unfair-labor-practice decision (362 NLRB No. 26), the Board (then-Chairman Pearce, Member Hirozawa, and then-Member McFerran) found that Ampersand committed a litany of violations of Section 8(a)(5), (3), and (1), and ordered it to compensate the employees and the Union for losses suffered. Among other things, the order required Ampersand to bargain with the Union, reimburse the Union for its bargaining costs and expenses, make employees whole for any losses suffered as a result of its discontinuing merit pay raises and other unilateral changes, offer reinstatement and pay backpay to two discharged employees, post a remedial notice, and have a management official or Board agent publicly read it. On review, the D.C. Circuit enforced the Board’s order in an unpublished judgment,
Thereafter, a controversy arose over the amounts due under the Board’s order and a compliance proceeding was initiated in July 2018. After the Board granted partial summary judgment on matters for which Ampersand had insufficiently answered, an Administrative Law Judge held a hearing and issued a recommended decision finding that two discharged employees made reasonable efforts to mitigate their losses, and that their interim earnings and expenses were substantiated by documentary evidence and credible testimony. The judge also found that the calculations of the Union’s bargaining costs and expenses were based on reliable, contemporaneously prepared business records, or reasonable estimates where exact figures were unavailable. On exceptions, the Board (Members Kaplan, Emanuel, and Ring) affirmed the judge’s findings and issued an order detailing specific amounts due to the employees and Union (370 NLRB No. 70). The Board then filed for enforcement in the Ninth Circuit.
In a published opinion, the Court held that the Board acted within its remedial discretion in ordering Ampersand to reimburse the Union for legal fees incurred during contract bargaining. The Court rejected Ampersand’s reliance on cases that were “specifically limited to the context of litigation,” which the Court viewed as not barring the compensatory award of contract-bargaining fees in this case. The Court explained that the Board’s remedy was “directly targeted at Ampersand’s violation, compensating the Union for ‘the resources that were wasted because of [Ampersand’s] unlawful conduct’ and ‘restor[ing] the economic strength that is necessary to ensure a return to the status quo ante at the bargaining table,’” quoting Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085 (D.C. Cir. 2016). Imposing such remedies that are “designed to ‘respond[] directly to an unfair labor practice,’” the Court stated, “fall squarely within the heartland of the NLRB’s delegated powers,” quoting Unbelievable, Inc. v. NLRB, 118 F.3d 795, (D.C. Cir. 1997).
In a simultaneously issued unpublished memorandum, the Court separately addressed Ampersand’s challenges to the specific amounts due under the Board’s order. On the Union’s claimed expenses, the Court found sufficient evidence existed in the record, such as extensive billing records detailing work performed and expenses made to its lead negotiator, as well as expense reports for travel and other costs. On the backpay amounts awarded the two discharged employees, the Court found no merit in Ampersand’s arguments that they had failed to make reasonable efforts to mitigate their damages. Accordingly, the Court enforced the Board’s order in full.
The Court’s decisions are here and here.
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Administrative Law Judge Decisions
Davis Defense Group, Inc. (10-CA-284049; JD-47-22) North Charleston, SC. Administrative Law Judge Robert A. Giannasi issued his decision on August 8, 2022. Charge filed by an individual.
Greenbrier VMC, LLC, d/b/a Greenbrier Valley Medical Center, Community Health Systems, Inc. and/or Community Health Systems Professional Services Corporation, LLC, a single-employer and/or joint employers (10-CA-150997; JD-48-22) Ronceverte, WV. Administrative Law Judge Christal J. Key issued her decision on August 9, 2022. Charge filed by National Nurses Organizing Committee (NNOC), AFL-CIO.
Tuckahoe Recreation Club, Inc. (05-CA-267420; JD-46-22) McLean, VA. Administrative Law Judge Melissa M. Olivero issued her decision on August 9, 2022. Charge filed by an individual.
VHHC, LLC and Eagle Eye – 2550 Oak Street, Inc., a single employer (20-CA-272873 and 20-CA-275967; JD(SF)-21-22) Vallejo, CA. Administrative Law Judge Lisa D. Ross issued her decision on August 10, 2022. Charges filed by United Food and Commercial Workers, Local 5, AFL-CIO.
Bernhard MCC, LLC (09-CA-285766; JD-49-22) New Albany, OH. Administrative Law Judge Arthur J. Amchan issued his decision on August 10, 2022. Charge filed by Ohio State Association of Plumbers and Pipefitters.
Adamas Building Services (22-CA-261363; JD(NY)-11-22) Jersey City, NJ. Administrative Law Judge Jeffrey P. Gardner issued his decision on August 12, 2022. Charge filed by Local 32BJ, Service Employees International Union.
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