Summary of NLRB Decisions for Week of December 16 - 20, 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
McDonald’s USA, LLC, a joint employer, et al. (02-CA-093893 et al.; 368 NLRB No. 134) various cities and states, December 16, 2019. Errata changing footnote 2 of December 12, 2019 Decision. Errata Amended Decision.
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American Security Programs, Inc. (05-CA-211315; 368 NLRB No. 151) Washington, DC, December 16, 2019.
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing its final offer in the absence of a valid impasse, and unanimously reversed the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to meet and bargain with the Union after unilaterally implementing its final offer. In light of the reversal of the judge’s refusal-to-bargain finding, a Board majority (Chairman Ring and Member Kaplan) substituted a limited bargaining order for the affirmative bargaining order recommended by the judge. Dissenting, Member McFerran would have issued an affirmative bargaining order—which specifically requires the employer to bargain in good faith with the union—as part of the remedy for the violation found.
Charge filed by Union Patriots of Plaza. Administrative Law Judge Michael A. Rosas issued his decision on November 14, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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E.A. Renfroe & Company Inc. (10-CA-171072; 368 NLRB No. 147) Birmingham, AL, December 16, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement and by discharging an employee for refusing to sign it. Applying Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), the Board found that the Respondent’s mandatory arbitration agreement, when reasonably interpreted, plainly makes arbitration the exclusive forum for the resolution of all claims, including claims under the Act and that a reasonable employee would understand that agreement to restrict access to the Board. The Board further found that the agreement’s exclusion clause was insufficient to put employees on notice that claims arising under the Act would be excluded from its coverage.
Charge filed by an individual. Administrative Law Judge Keltner W. Locke issued his decision on August 17, 2016. Chairman Ring and Members McFerran and Kaplan participated.
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Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 542, International Brotherhood of Teamsters (United Parcel Service) (21-CB-233544; 368 NLRB No. 140) San Diego, CA, December 16, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent-Union violated Section 8(b)(1)(A) when its agent threatened an employee and union member with loss of employment in retaliation for engaging in the protected activity of handbilling.
Charge filed by an individual. Administrative Law Judge Gerald M. Etchingham issued his decision on July 17, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Mike-Sell’s Potato Chip Company (09-CA-184215; 368 NLRB No. 145) Dayton, OH, December 16, 2019. Errata issued December 19, 2019 correcting decision. Errata Amended Decision
In a supplemental decision, a Board majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and/or refusing to bargain with the Union about its decision to subcontract bargaining unit work from unit employees to others outside the bargaining unit when it sold four company sales routes to independent distributors. Applying Raytheon Network Centric Systems, 365 NLRB No. 161 (2017), the Board found that the Respondent’s sales of the four routes were consistent with its established past practice of unilaterally selling sales routes to independent distributors. The Board clarified language in Raytheon to make clear that where an employer has established a past practice of acting unilaterally, it is not obligated to bargain before taking a specific action (even though it would remain obligated to bargain, upon request, over the past practice going forward). The Board majority also reversed the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with requested information related to the sales of the routes. Dissenting, Member McFerran found that the Board majority disregarded Board precedent that was not overruled in Raytheon that, in order for past changes to constitute a “practice,” the changes must have been regular and consistent. Agreeing with the judge’s rationale, Member McFerran found that the Respondent did not have a regular and consistent practice of unilaterally transferring sales routes to independent distributors. Member McFerran also would have affirmed the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with requested information related to the sales of the routes.
Charge filed by International Brotherhood of Teamsters (IBT), General Truck Drivers, Warehousemen, Helpers, Sales and Service, and Casino Employees, Teamsters Local Union No. 957. Administrative Law Judge Andrew S. Gollin issued his decision on July 25, 2017. Chairman Ring and Members McFerran and Kaplan participated.
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Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center (28-CA-213783; 368 NLRB No. 139) Las Vegas, NV, December 16, 2019.
A full-Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) overruled Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), and restored the longstanding rule established in Bethlehem Steel, 136 NLRB 1500 (1962). Under Bethlehem Steel, employers’ statutory obligation to check off union dues ends when its collective-bargaining agreement containing a checkoff provision expires. In Lincoln Lutheran, the Board had held that an employer’s statutory obligation to check off union dues would continue to be enforceable after the collective-bargaining agreement’s expiration, based on Section 8(a)(5), which prohibits most unilateral changes. The majority found that dues-checkoff provisions belong in the limited category of mandatory-bargaining subjects that are exclusively created by the contract and are enforceable through Section 8(a)(5) only for the duration of the contractual obligation created by the parties. In so finding, the majority relied on the Members Schaumber-Hayes concurring opinion in Hacienda Hotel Inc. Gaming Corp., 355 NLRB 742 (2010), enf. denied Local Joint Executive Board of Las Vegas v. NLRB, 657 F.3d 865 (9th Cir. 2011). Further, the majority agreed with the Lincoln Lutheran dissent that dues checkoff is not analogous to other voluntary deduction arrangements and that the Lincoln Lutheran majority had wrongly relied on after-the-fact recharacterizations of Board precedent. Thus, the majority found that there is no independent statutory obligation to check off and remit employees’ union dues after the expiration of the collective-bargaining agreement containing the checkoff provision, just as no such statutory obligation exists before parties enter into such an agreement. Contrary to the dissent, the majority concluded that Lincoln Lutheran’s holding undermines and conflicts with statutory bargaining principles, while the majority’s result in this case is more consistent with the collective-bargaining process and the settled expectations of parties negotiating in good faith.
The majority explained that this holding and rationale apply even where the contract does not contain a union-security provision, and that its conclusion is not precluded by the Ninth Circuit’s 2011 decision in Local Joint Executive Board, above. Further, the majority applied its holding retroactively, found that the Employer in this case had no obligation to continue dues checkoff after the contract’s expiration, and dismissed the complaint. The Administrative Law Judge had dismissed the complaint on a different basis.
Dissenting, Member McFerran argued that the majority’s belated assertion of a new “contract creation” rationale, without notice or public participation, continues a string of decisions in which the majority has permitted employers to dispense with bargaining and make unilateral changes, contrary to the Act’s central goal of encouraging the practice and procedure of collective bargaining. Member McFerran faulted the majority for offering no tenable reason for discarding the “comprehensive and carefully-analyzed” Lincoln Lutheran decision: the majority, she said, relies on an artificial and arbitrary distinction between dues-checkoff provisions and other terms, such as wage rates, that are embodied in a contract and must be continued after contract expiration. She observed that the majority’s ruling contradicts Board and court holdings that unilateral action is not a lawful economic weapon, and it rests on the “remarkable claim” that a rule permitting an employer to act without bargaining is better for the statutory bargaining process than a rule requiring the employer to bargain. Lastly, Member McFerran argued that the majority’s retroactive application of its new rule is manifestly unjust to parties that reached agreements with the expectation that their dues-checkoff provisions would continue after contract expiration.
Charge filed by Local Joint Executive Board of Las Vegas. Administrative Law Judge Jeffrey D. Wedekind issued his decision on September 19, 2018. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Apogee Retail LLC d/b/a Unique Thrift Store (27-CA-191574 and 27-CA-198058; 368 NLRB No. 144) Aurora, CO, December 16, 2019.
On a stipulated record, the full Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) concluded that the Respondent did not violate Section 8(a)(1) by maintaining two written rules requiring employees to maintain confidentiality and prohibiting unauthorized discussions regarding workplace investigations into illegal or unethical conduct. The majority overruled the Board’s former approach to investigative confidentiality rules as set forth in Banner Estrella Medical Center, 362 NLRB 1108 (2015), requiring an employer to make a case-by-case determination of whether confidentiality can be required in a specific investigation. Instead, the Board applied the test for facially neutral workplace rules established in The Boeing Co., 365 NLRB No. 154 (2017), and found such confidentiality rules generally to be lawful. The majority found that the Banner Estrella approach improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed presumptive employee Section 7 rights, contrary to both Supreme Court and Board precedent. Further, the Board’s prior test failed to consider the importance of the employer’s confidentiality assurances to both employers and employees during an ongoing investigation and was inconsistent with other federal guidance, including from the EEOC regulations requiring an employer to provide confidentiality assurances throughout sensitive discrimination investigations. However, noting that the Respondent did not limit the application of the rules to the duration of the investigation in this case, the majority remanded this case for further consideration.
Dissenting, Member McFerran disagreed with the majority’s decision to overrule Banner Estrella without notice or public participation. Member McFerran criticized the majority’s abandonment of Banner Estrella’s case-by-case balancing of employee rights and employer interests in favor of a categorical determination that all employer-imposed rules requiring confidentiality for the duration of an investigation are lawful to maintain, and argued that, under Banner Estrella, these rules’ blanket prohibition on employees’ discussion of workplace investigations that implicate their Section 7 rights is clearly overbroad. In Member McFerran’s view, under the majority’s new approach, workers who are the targets of workplace investigations—whether fairly or unfairly—will be prevented from seeking the help of their co-workers, their union, or the Board, despite the “mutual aid or protection” guarantee of Section 7.
Charges filed by an individual. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino (28-CA-060841; 368 NLRB No. 143) Las Vegas, NV, December 16, 2019.
A full Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran dissenting in part) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining a rule prohibiting employees from using the Respondent’s information-technology (IT) resources to send “non-business information.” The majority overruled Purple Communications, Inc., 361 NLRB 1050 (2014), and determined that employers generally have the right to impose nondiscriminatory restrictions (including outright bans) on the use of employer-owned IT systems for nonwork purposes, essentially reinstating the Board’s decision in Register Guard, 351 NLRB 1110 (2007).
The majority explained that Purple Communications was inconsistent with Board and court precedent holding non-discriminatory restrictions on the use of employer equipment to be lawful. It further explained that the Supreme Court’s decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)—which held that workplace restrictions on Section 7 communications that applied during nonwork time were presumptively unlawful—stands for the twin propositions that employees must have “adequate avenues of communication” in order to meaningfully exercise their Section 7 rights and that employer property rights must yield to employees’ Section 7 rights when necessary to avoid creating an “unreasonable impediment to the exercise of the right to self-organization.” Thus, the majority’s new standard respects both employees’ Section 7 right to engage in union or other protected concerted communications during the workday and employers’ property rights in their equipment by allowing employers to generally prohibit non-work use of their equipment, while creating an exception where the use of such equipment is the only reasonable means for employees to communicate with one another during the workday.
Additionally, the majority: (1) adopted, for different reasons than the judge, her conclusion that several additional restrictions on the use of the Respondent’s IT resources were lawful to maintain; and (2) remanded a computer confidentiality rule and several rules found unlawful in an earlier Board decision in this case, 362 NLRB 1690 (2015), which were remanded, on the Board’s request, by the Ninth Circuit, for reconsideration in light of the Board’s decision in The Boeing Company, 365 NLRB No. 154 (2017).
Dissenting in part, Member McFerran would have applied Purple Communications to find the Respondent’s prohibitions on using its IT resources to send non-business information or “solicit for personal gain or advancement of personal views” unlawful because the Respondent did not argue or present any “special circumstances” to justify its total ban on the nonwork use of email to maintain production or discipline.
Charge filed by International Union of Painters and Allied Trades, District Council 16, Local 159, AFL-CIO. Administrative Law Judge Mara-Louise Anzalone issued her decision on May 3, 2016. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Twin America, LLC, City Sights NY, LLC and Gray Line New York Tours, Inc., as a single employer and JAD Transportation, Inc., as joint employers (02-CA-190704, et al.; 368 NLRB No. 136) New York, NY, December 18, 2019.
The Board dismissed the complaint. In so doing, the Board adopted the Administrative Law Judge’s dismissal of allegations that the Respondent Joint Employers violated Section 8(a)(1) and the Respondent Union violated Section 8(b)(1)(A) and (2) by endtailing the seniority of certain employees. The Board found that the endtailing—which followed a Board representation election and the resulting merger of two units of employees formerly employed by different employers and represented by different unions—was not impermissibly based on union membership considerations. Having found the endtailing lawful, the Board also adopted the judge’s dismissal of the allegation that the Respondent Joint Employers violated Section 8(a)(3) and (1) by constructively discharging employees who declined to accept endtailing as a condition of continued employment.
Charges filed by individuals. Administrative Law Judge Jeffrey P. Gardner issued his decision on March 20, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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National Indemnity Company (14-CA-182175; 368 NLRB No. 96) Omaha, NE, December 18, 2019.
The Board, reversing the Administrative Law Judge, found that the Respondent did not violate Section 8(a)(1) by maintaining a rule requiring employees to “maintain the confidentiality of confidential information entrusted to them.” The Board found such a rule to be a lawful Category 1(a) rule under the framework set out in Boeing provided that the rule either does not apply to personnel information or clearly applies to data accessible only in the employer’s confidential records. The Board amended the judge’s remedy to not mandate rescission of one unlawful confidentiality rule that had been replaced by the Respondent prior to the hearing in the case but adopted the judge’s remedy of ordering rescission of an unlawful memo the Respondent had ceased distributing.
Charge filed by an individual. Administrative Law Judge Elizabeth M. Tafe issued her decision on November 20, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
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Tri-Messine Construction Company, Inc. and its alter ego Callahan Paving Corp. (29-CA-194470 and 29-CA-206246; 368 NLRB No. 149) Brooklyn, NY, December 16, 2019.
The Board adopted the Administrative Law Judge’s conclusion that Respondents Tri-Messine Construction Company, Inc. and Callahan Paving Corp. are alter egos and that they violated Section 8(a)(5) and (1) by failing and refusing to bargain collectively with Construction Council Local 175, Utility Workers Union of America, AFL-CIO; Section (8)(a)(2) and (1) by recognizing Highway, Road and Street Construction Laborers Local 1010, LIUNA, AFL-CIO, as the collective-bargaining representative of their unit employees; and Section 8(a)(3) and (1) by terminating all of their employees.
Charges filed by Construction Council Local 175, UWUA, AFL-CIO. Administrative Law Judge Jeffrey P. Gardner issued his decision on December 17, 2018. Members McFerran, Kaplan, and Emanuel participated.
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NP Palace LLC d/b/a Palace Station Hotel & Casino (28-CA-218622; 368 NLRB No. 148) Las Vegas, NV, December 16, 2019.
The Board denied in part and granted in part the General Counsel’s Motion for Summary Judgment. A full Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, concurring in part and dissenting in part) denied summary judgment with respect to the Respondent’s failure to provide information about certain matters, including customer complaints about unit employees, finding that it was not presumptively relevant to the Union’s performance of its duties as an exclusive bargaining representative of unit employees and the Union had not shown its relevance. The Board granted summary judgment with respect to the presumptively relevant information requested by the Union. The Board found that the Respondent violated Section 8(a)(5) by failing and refusing to furnish the Union with such information. The majority, however, found that the Respondent articulated legitimate confidentiality interests with respect to confidential policies related to the security and integrity of its gaming machines, and precautions taken to combat illegal gaming activity and money laundering. The majority found that the Respondent violated Section 8(a)(5) by refusing to furnish this assertedly confidential information without seeking accommodative bargaining.
Finally, the majority adopted a modified remedial approach for a certification-testing employer facing the union’s request for relevant, but confidential information. Previously, an employer forfeited its confidentiality defense unless it responded to the union’s information request with an offer to engage in accommodative bargaining over the disputed information. But at the same time, the Board and courts held that, if it engaged in accommodative bargaining, the employer waived its right to challenge the union’s certification in the court of appeals. The majority explained that the Board had never addressed why a certification-testing employer is required to waive either its challenge to the union’s certification or its confidentiality defense to providing requested information and that it did not effectuate any of the policies of the Act. Accordingly, in order to eliminate the Hobson’s choice under the prior law, the majority held that, if the Board finds that an employer articulates a legitimate, specific confidentiality interest in particular requested information, it will order the employer to engage in accommodative bargaining, rather than the immediate production of the requested information. Under this modified approach, the majority ordered the Respondent to engage in accommodative bargaining with the Union concerning its assertedly confidential information.
Member McFerran dissented in two respects. First, she found that complaints about bargaining unit employees are presumptively relevant because they implicate employees’ job performance and go to the core of the employer-employee relationship, including discipline or discharge as a result of a complaint, and that employers respond to complaints in ways that directly affect employees’ employment. Second, she found that the Respondent waived its confidentiality argument by failing to raise it in its answer to the complaint and by failing to claim confidentiality at the time of the Union’s request as required under Board law. Even if the Respondent had preserved a confidentiality claim, she found that allowing an employer that is unlawfully refusing to bargain in order to test the certification to simultaneously preserve a confidentiality defense to requests for relevant information is “contrary to the Act’s policy of promoting collective bargaining and improperly favors wrongdoers.”
Charge filed by International Union of Operating Engineers Local 501, AFL-CIO. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Domino’s Pizza LLC (29-RC-214227; 368 NLRB No. 142) Howard Beach, NY, December 16, 2019.
A Board majority (Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the Regional Director’s Decision and Certification of Representative, which had overruled the Employer’s election objections involving prounion supervisory conduct. Specifically, where the Regional Director had characterized a prounion supervisor’s threats of job loss as non-coercive under Prong 1 of Harborside Healthcare, Inc., 343 NLRB 906 (2004), the Board majority found express threats of job loss to be “highly coercive.” The majority clarified that Harborside’s analysis of implied threats (such as in connection with a prounion supervisor’s card solicitation) does not apply to express threats. Turning to Prong 2 of the Harborside analysis, the Board found that the total number of employees subject to the supervisor’s coercion exceeded the vote-shift required to change the election’s outcome. Finally, the Board found that the Employer did not mitigate its supervisor’s conduct specifically by disavowing the threats of job loss. The Board majority therefore concluded that the totality of the supervisor’s conduct interfered with employees’ freedom of choice; vacated the election and the certification; and remanded the case for a second election. Member McFerran, dissenting, reiterated her view that the Board should not allow an employer to rely on its own supervisor’s objectionable conduct, which it failed to disavow, as a basis for setting aside an election. Petitioner—Local 91, United Crafts & Industrial Workers Union. Members McFerran, Kaplan, and Emanuel participated.
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Wyman Gordon Pennsylvania, LLC (04-CA-182126, et al.; 368 NLRB No. 150) Plains, PA, December 16, 2019.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with relevant information regarding quarterly bonuses paid to unit employees and the relationship between the Respondent’s labor costs and the prices of its products and by withdrawing recognition from the Union. In concluding that the Respondent unlawfully withdrew recognition from the Union, the Board found that the Respondent failed to establish that the Union had, in fact, lost majority support at the time that it withdrew recognition. While the first and last pages of the five-page petition on which the Respondent relied in withdrawing recognition clearly indicated that the employees whose signatures appear on those pages no longer wanted the Union to represent them, only 9 of the 43 employees in the bargaining unit signed those pages. The Board found that the Respondent could not properly rely on the 14 signatures on the middle three pages of the petition because those pages lacked any statement of the signatory employees’ intent in signing the petition, let alone their desires concerning union representation.
A Board majority consisting of Chairman Ring and Member Emanuel reversed the judge and dismissed the allegations that the Respondent violated Section 8(a)(5) and (1) by insisting on resolving noneconomic subjects of bargaining before discussing economic subjects and by failing to comprehensively respond to the Union’s initial proposal. The majority found the present case distinguishable from precedent cited by the judge and their dissenting colleague because, unlike in those cases, the Respondent’s insistence on resolving noneconomic issues before negotiating economic issues did not unreasonably fragment bargaining or frustrate the parties’ ability to reach agreement. The Board emphasized that the parties agreed in their ground rules for bargaining to discuss noneconomic proposals before economic proposals, that the Respondent did not demand that the Union agree to any of its specific noneconomic proposals before it would proceed to discuss economic subjects, and that the parties were still making progress toward agreement on noneconomic subjects at the time that bargaining ceased. The majority found that the Respondent’s failure to respond to certain provisions in the Union’s initial proposal was part and parcel of its lawful adherence to the ground rules upon which the parties had agreed. The majority also reversed the judge and dismissed the allegation that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with requested information regarding the Respondent’s competitors because the Union did not need that information to evaluate claims made by the Respondent at the bargaining table.
Dissenting in part, Member McFerran would have affirmed the judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by insisting on resolving noneconomic subjects of bargaining before discussing economic subjects and by failing to comprehensively respond to the Union’s initial proposal because those conclusions were fully supported by established precedent. She argued that the Respondent’s conduct unlawfully fragmented bargaining and frustrated the parties’ ability to reach agreement, as the parties had made very little progress toward reaching an initial agreement after 14 months of bargaining largely because of the Respondent’s refusal to discuss economic subjects. Additionally, Member McFerran would have affirmed the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with requested information regarding the Respondent’s competitors.
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers Union, AFL–CIO–CLC. Administrative Law Judge Arthur J. Amchan issued his decision on July 13, 2018. Chairman Ring and Members McFerran and Emanuel participated.
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United States Postal Service (02-CA-219434; 368 NLRB No. 153) New Rochelle, NY, December 16, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by terminating an employee because he asserted his right to a union representative prior to continuing his investigatory interviews. In finding the violation, Members McFerran and Emanuel relied on the judge’s application of Wright Line, while Member Kaplan would find the violation based on an Atlantic Steel, 245 NLRB 814 (1979), framework.
Charge filed by National Association of Letter Carriers. Administrative Law Judge Jeffrey P. Gardner issued his decision on May 3, 2019. Members McFerran, Kaplan, and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Indus Holding Co. (32-RD-247755) Salinas, CA, December 20, 2019. The Board denied the Employer’s Request for Review of the Regional Director’s determination to hold the petition in abeyance as it raised no substantial issues warranting review. Petitioner—an individual. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Drock Gaming, LLC d/b/a The D Casino (28-CA-219756) Las Vegas, NV, December 16, 2019. No exceptions having been filed to the October 29, 2019 decision of Administrative Law Judge Lisa D. Ross’ finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint. Charge filed by an individual.
Bud’s Woodfire Oven, LLC d/b/a Ava’s Pizzeria (05-CA-194577) St. Mary’s, MD, December 19, 2019. No exceptions having been filed to the November 6, 2019 supplemental decision of Administrative Law Judge Michael A. Rosas’ finding that the Respondent’s application under the Equal Access to Justice Act should be denied, the Board adopted the judge’s findings and denied the Respondent’s application for attorney’s fees and expenses. Charge filed by an individual.
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Appellate Court Decisions
DHSC, LLC d/b/a Affinity Medical Center, Board Case No. 08-CA-090083 (reported at 362 NLRB No. 78) (D.C. Cir. decided December 20, 2019).
In a published opinion, the Court enforced the Board’s order issued against this acute-care facility in Massillon, Ohio, owned by its parent company, Community Health Systems. The Board’s order remedies numerous unfair labor practices the Employer committed after its registered nurses in a unit of 213 employees voted in an August 2012 election to be represented by National Nurses Organizing Committee.
The Board (Chairman Pearce and Members Johnson and McFerran) found that the Employer violated Section 8(a)(3) and (1) by discharging, disciplining, or otherwise discriminating against a leading union activist, as well as reporting her to the Ohio Board of Nursing without any basis other than her protected union activity. The Board also found that the Employer violated Section 8(a)(1) in numerous ways, such as denying access to union representatives who had been previously permitted access in retaliation for their representational activities on behalf of bargaining-unit employees, and by restraining, coercing, or interfering, with its employees’ union activities in various ways. Lastly, the Board found that the Employer violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union after it was certified as the unit’s representative.
On review, the Court dispensed with oral argument and took the case on submission of the briefs. Stating that the Employer’s petition “largely comes down to an attack on the Board’s factual conclusions,” the Court emphasized that substantial evidence is all that is required for the court to uphold the Board’s findings, which, it stated, “is not a high bar. ‘It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’” quoting Biestek v. Berryhill, 139 S. Ct. 1148 (2019). Under that standard, the Court held that the Board’s decision “easily clears that bar.”
Accordingly, the Court upheld the Board’s Section 8(a)(1) findings after noting the insufficiencies of the Employer’s arguments, and upheld the refusal-to-bargain violation because it was challenged only on the basis of claims not presented to the Board. On the discriminatory actions taken against the union activist in violation of Section 8(a)(3) and (1), the Court noted that the only aspect of the Board’s Wright line analysis challenged on review was that of unlawful motive, and held that the finding was amply supported by evidence of the timing of the adverse actions, the Employer’s inadequate investigation of the charges against the nurse, and the evidence of disparate treatment which showed that she was treated “unusually harshly.” Turning to the Employer’s Wright Line defense, the Court explained that the Employer misunderstood the standard that it needed to meet—i.e., that “‘it would have fired the employee, not that it could have done so,’” quoting Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929 (D.C. Cir. 2011) (original emphasis). The Employer, the Court stated, alleged only the latter.
The Court’s opinion is here.
University of Chicago, Board Case No. 13-CA-217957 (reported at 367 NLRB No. 41) (7th Cir. decided December 17, 2019).
In a published opinion in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this non-profit corporation that runs a private teaching and research university on a campus in Chicago, Illinois, where 226 enrolled students who work as library clerks at the university voted in June 2017 to be represented by Local 743, International Brotherhood of Teamsters. On the primary issue presented on appeal, the Court held that the Board did not abuse its discretion in refusing to permit the University to introduce evidence proffered at a pre-election hearing that, even if assumed to be true, would not have affected the case outcome under Columbia University, 364 NLRB No. 90 (2016).
In May 2017, the Union filed a petition to represent the student library clerks. In response, the University submitted a position statement claiming that the clerks were not employees within meaning of Section 2(3) of the Act, arguing that the Board’s decision in Columbia University was wrongly decided, and that the correct standard was stated in the Board’s prior decision in Brown University, 342 NLRB 483 (2004). The University also claimed that the clerks were nonetheless “temporary and/or casual employees” who did not manifest a sufficient interest in their terms of employment to warrant representation, citing San Francisco Art Institute, a case the University asserted was “wrongly overruled” in Columbia University.
At the pre-election hearing, the Hearing Officer received the University’s offer of proof which again disagreed with Columbia University and purported to show that, in any event, the student library clerks should be classified as “temporary and/or casual employees” who lack a sufficient interest in their terms of employment to warrant representation. Citing established Board law, the Regional Director declined to allow the introduction of the proffered evidence, and issued a Decision and Direction of Election. The University then requested review, which was denied by the Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting). In June 2017, the election was held. The University then filed objections, which, after a few additional procedural steps, were overruled by the Board (Members Pearce, Kaplan, and Emanuel).
On review, the Court noted that, although the University contended that the Board erred in adhering to Columbia University, it did not directly challenge its reasoning or ask the Court to evaluate the decision, therefore leaving the matter beyond the limits of review. With regard to the Board’s ruling to exclude the proffered evidence at the pre-election hearing that purportedly would have shown that the student library clerks were merely “temporary and/or casual employees” not covered by the Act, the Court explained: “The fatal flaw in the University’s argument is that, under prevailing Board law, short-term student employees may collectively bargain,” and that “in Columbia University, the Board ‘made clear that finite tenure alone cannot be a basis on which to deny bargaining rights,’” citing 364 NLRB No. 90. Accordingly, the Court held that the issues the University raised “are immaterial under prevailing Board law,” and thus the Board did not abuse its discretion in not holding a hearing on the proffered evidence.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Kava Holdings, LLC, et al., d/b/a Hotel Bel Air (31-CA-074675; JD(SF)-43-19) Los Angeles, CA. Administrative Law Judge Lisa D. Ross issued her decision on December 19, 2019. Charge filed by UNITE HERE Local 11.
International Brotherhood of Teamsters, Local 385 (Freeman Decorating Services, Inc.) (12-CB-208733; JD-95-19) Orlando, FL. Administrative Law Judge Christine E. Dibble issued her decision on December 19, 2019. Charge filed by an individual.
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