Summary of NLRB Decisions for Week of December 17 - 21, 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
Leggett & Platt, Inc. (09-CA-194057, et al.; 367 NLRB No. 51) Winchester, KY, December 17, 2018.
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 without objective evidence that the Union had lost majority support of unit employees under Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). The Board further found that the Respondent violated Section 8(a)(5) and (1) by making several unilateral changes to employees’ terms and conditions of employment after it unlawfully withdrew recognition from the Union. Finally, the Board affirmed the judge’s conclusion that the Respondent violated Section 8(a)(1) when a supervisor unlawfully provided aid to the decertification petition filed after the withdrawal of recognition.
Charges filed by International Association of Machinists and Aerospace Workers (IAM), AFL-CIO. Administrative Law Judge Andrew S. Gollin issued his decision on October 2, 2017. Chairman Ring and Members McFerran and Kaplan participated.
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Cobalt Coal Corp. Mining, Inc. (09-CA-092229, et al.; 367 NLRB No. 45) Premier, WV, December 18, 2018.
The Board granted the General Counsel’s Motion to Vacate and, upon de novo consideration, to reissue the Board’s May 24, 2013 Decision and Order granting the General Counsel’s Motion for Default Judgment in this proceeding (359 NLRB No. 123). The Board issued the original decision at a time when the Board included two persons whose appointments to the Board were subsequently determined to be constitutionally infirm. NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). After considering the Motion for Default Judgment de novo, the Board granted the General Counsel’s motion and found that the Respondent violated Section 8(a)(3) and (1).
Charges filed by United Mine Workers of America, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
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Cablevision Systems Corp. (29-RD-138839; 367 NLRB No. 59) Brooklyn, NY, December 19, 2018.
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) granted the Employer’s Request for Review of the Regional Director’s Decision and Order dismissing the petition and reversed the dismissal. The Regional Director had dismissed the petition based on unfair labor practice charges that had been found to have merit in two Administrative Law Judges’ decisions, but which had been settled prior to final adjudication by the Board. Given that the decertification petition had been filed before the settlement of the unfair labor practice charges, the Board majority held that Truserv Corp., 349 NLRB 227 (2007), applied to preclude dismissal of the petition, given that neither judges’ decision was a final decision by the Board that the Employer had committed any unfair labor practices, and thus neither judges’ decision imposed any obligation on the Employer absent further action by the Board. Instead, these judges’ decisions became a nullity when the Employer and the Union settled the charges, and the settlement thus precluded any conclusion that the Employer’s conduct at issue in the decisions violated the Act. Dissenting, Member McFerran would have found that the settlement agreement did not erase the evidence—credited by the judges—of the underlying misconduct or change its likely impact on employees, and, accordingly, would have affirmed the Regional Director’s dismissal of the petition, instead of treating the Employer’s conduct as if it had never happened.
Petitioner—an individual. Union—Communications Workers of America, AFL-CIO. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Alaris Health at Castle Hill (22-CA-125034, et al.; 367 NLRB No. 52) Union City, NJ, December 21, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by refusing to immediately reinstate 15 unfair labor practice strikers after their unconditional offer to return to work. In finding the violation, the Board rejected the Respondent’s argument that its weeks-long delay in reinstating the strikers was justified by contracts that it had with several staffing agencies obligating the Respondent to employ replacements supplied by the agencies for a minimum of 4 to 6 weeks.
Charges filed by 1199, SEIU United Healthcare Workers East. Administrative Law Judge Michael A. Rosas issued his decision on February 3, 2016. Chairman Ring and Members McFerran and Kaplan participated.
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Alaris Health at Boulevard East (22-CA-125076, et al.; 367 NLRB No. 53) Palisades, NJ, December 21, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by refusing to immediately reinstate eight unfair labor practice strikers after their unconditional offer to return to work. In finding the violation, the Board rejected the Respondent’s argument that its delay in reinstating the strikers was justified by contracts that it had with two staffing agencies obligating the Respondent to employ replacements supplied by the agencies for at least 4 weeks.
Charges filed by 1199, SEIU United Healthcare Workers East. Administrative Law Judge Michael A. Rosas issued his decision on February 18, 2016. Chairman Ring and Members McFerran and Kaplan participated.
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Alaris Health at Harborview (22-CA-125023, et al.; 367 NLRB No. 54) Jersey City, NJ, December 21, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by refusing to immediately reinstate two unfair labor practice strikers after their unconditional offer to return to work. In finding the violation, the Board rejected the Respondent’s argument that its delay in reinstating the strikers was justified by contracts that it had with two staffing agencies obligating the Respondent to employ replacements supplied by the agencies for a minimum of 4 and 6 weeks, respectively.
Charges filed by 1199, SEIU United Healthcare Workers East. Administrative Law Judge Michael A. Rosas issued his decision on February 11, 2016. Chairman Ring and Members McFerran and Kaplan participated.
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Alaris Health at Rochelle Park (22-CA-124968, et al.; 367 NLRB No. 55) Rochelle Park, NJ, December 21, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by refusing to immediately reinstate 10 unfair labor practice strikers after their unconditional offer to return to work. In finding the violation, the Board rejected the Respondent’s argument that its delay in reinstating the strikers was justified by contracts that it had with two staffing agencies obligating the Respondent to employ replacements supplied by the agencies for a minimum of 4 weeks.
Charges filed by 1199, SEIU United Healthcare Workers East. Administrative Law Judge Michael A. Rosas issued his decision on February 25, 2016. Chairman Ring and Members McFerran and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
Nexstar Broadcasting, Inc. d/b/a KOIN-TV (19-CA-219985 and 19-CA-219987) Portland, OR, December 17, 2018. The Board denied the Respondent’s Motion for 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 National Association of Broadcast Employees & Technicians, The Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL-CIO. Chairman Ring and Members McFerran and Emanuel participated.
J&S Audio Visual Communications, LLC (15-CA-214849) Memphis, TN, December 17, 2018. The Board denied the Employer’s Petition to Revoke an investigative subpoena, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by International Alliance of Theatrical Stage Employees, Local 69. Chairman Ring and Members McFerran and Kaplan participated.
Bannum Place of Saginaw (07-CA-207685, et al.) Saginaw, MI, December 17, 2018. The Board denied the Employer’s Petition to Revoke an investigative subpoena, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Charges filed by Local 406, International Brotherhood of Teamsters and by an individual. Chairman Ring and Members McFerran and Kaplan participated.
Matson Terminals, Inc. (20-CA-188087) Honolulu, HI, December 18, 2018. No exceptions having been filed to the October 16, 2018 decision of Administrative Law Judge Gerald Michael Etchingham’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 Hawaii Teamsters & Allied Workers Union, Local 996.
International Longshoremen’s Association Local Union No. 1982, AFL-CIO (Midwest Terminals of Toledo International, Inc.) (08-CB-206215, et al.) Toledo, OH, December 18, 2018. In this case alleging Section 8(b)(1)(A) and (2) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charges filed by individuals and Midwest Terminals of Toledo International, Inc. Chairman Ring and Members McFerran and Emanuel participated.
Fransula Foods, LLC d/b/a GF-East Paterson Foods, LLC (22-CA-196390, et al.) Paterson, NJ, December 21, 2018. In this case alleging Section 8(a)(1) and (5) violations, the Board approved a formal settlement stipulation between the Respondent and the General Counsel, and specified actions the Respondent must take to comply with the Act. In concluding that approval of the stipulation would effectuate the purposes and policies of the Act, the Board considered that the stipulation fully remedies all of the substantive complaint allegations and provides for the entry of Board and court orders. Charges filed by United Food & Commercial Workers International Union, Local 464A. Chairman Ring and Members McFerran and Emanuel participated.
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Appellate Court Decisions
ImageFIRST Uniform Rental Service, Inc., Board Case No. 04-CA-166319 (reported at 365 NLRB No. 132) (3d Cir. decided December 18, 2018)
In a published opinion, the Court enforced those portions of the Board’s order remedying two uncontested violations, but denied enforcement with respect to the Board’s findings that this provider of linen and laundry services for healthcare facilities with a non-union facility in Columbia, Pennsylvania, violated Section 8(a)(1) by threatening to summon and summoning the police after union leafleters refused to leave a public right-of-way adjacent to the Employer’s property. Specifically, the Court held that substantial evidence did not support the Board’s findings.
One early morning in December 2015, during an organizing campaign by the Philadelphia Joint Board, Workers United, four union representatives gathered near the Employer’s property to hand out union-related leaflets to employees arriving to work. After the Employer’s general manager arrived, he approached the representatives, who were standing on the shoulder of the road, and one of them stepped onto the grassy area that was part of Employer’s property to talk with him. The general manager said that they were on private property and were not allowed to leaflet there. In response, the representative stated that she believed the shoulder to be public property and refused to leave. After consulting by phone with upper management, the general manager again approached the representatives and, after some back and forth, stated “if you’re not going to stay off our property, I’m going to have to call the police,” and then did so. When two police officers arrived, the general manager told them that he called the police because the representatives were trespassing and that he wanted them arrested. The police refused to arrest the union representatives because they were in the public right-of-way.
The Board (Chairman Miscimarra and Members Pearce and McFerran) found that the Employer violated Section 8(a)(1) by prohibiting the union representatives from distributing literature in the public right-of-way adjacent to its property on the shoulder of the road, attempting to remove the representatives from the right-of-way, and threatening to summon and summoning the police when the representatives refused to leave the right-of-way. In doing so, the Board found that the general manager’s conduct was not motivated by a reasonable concern over protecting the Employer’s property. The Board also noted that, by the time the police were called, the representatives had already moved to the shoulder of the road at the general manager’s request and were not on the Employer’s private property. Chairman Miscimarra concurred but wrote separately to state his view that the union representatives had no Section 7 right to trespass, regardless of the brevity of their trespass here, when at times they stepped onto the grassy area between the shoulder of the road and the parking lot before being told to confine themselves to the shoulder, which was a public right-of-way.
Before the Court, the Employer did not contest the Board’s findings that it had unlawfully prohibited the union representatives from distributing literature in the public right-of-way adjacent to its property, and attempted to remove the union representatives from that area. The Court, however, disagreed with the remaining findings. The Court started with the principle that an employer will be found to have acted lawfully if it can show that its threat to summon or its summoning of the police “is motivated by some reasonable concern, such as public safety or interference with legally protected interests,” such as a property interest. Interpreting that principle as implicating “both subjective and objective components,” the Court viewed the record evidence as supporting the conclusion that the general manager was subjectively concerned with the multiple forays onto the Employer’s property, and that, objectively, that concern was reasonable on these facts. The Court then concluded that substantial evidence did not support those Board findings because “no reasonable finder of fact could have failed to find that [the general manager]’s conduct was motivated by a broader—and reasonable—concern over [the employer’s] property interests.”
The Court’s opinion is here.
Cayuga Medical Center at Ithaca, Inc., Board Case No. 03-CA-156375 (reported at 365 NLRB No. 170) (D.C. Cir. decided December 21, 2018)
In an unpublished judgment, the Court enforced the Board’s order that issued against this medical center located in Ithaca, New York, for numerous unfair labor practices committed in 2015 during an organizing campaign among its 350 nurses by 1199 Service Employees International Union, United Healthcare Workers East. The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting in part) found that the Employer violated Section 8(a)(1) through its many threats, interrogations, and coercion of employees engaged in protected activity, and violated Section 8(a)(3) and (1) by taking adverse actions against two key organizers, which included disciplining, suspending, adversely evaluating, and demoting them because of their union or other protected, concerted activities. The Board also found that the Employer violated Section 8(a)(1) by applying two provisions of its nursing code of conduct to restrict employee exercise of Section 7 activities.
On review, the Court considered the Employer’s arguments and held that they were either barred from review under Section 10(e), because they were not raised before the Board, or without merit. Noting that the bulk of the Employer’s contentions amounted to challenges to credibility or to the Board’s factual findings, “which outlined months of anti-union activity,” the Court stated that the Employer failed to show “that the agency record compels us to find in its favor, or that the ALJ’s credibility determinations are patently unsupportable.”
The Court’s decision may be found here.
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Administrative Law Judge Decisions
Tri-Messine Construction Company, Inc. and its alter ego Callahan Paving Corp. (29-CA-194470 and 29-CA-206246; JD(NY)-19-18) Brooklyn, NY. Administrative Law Judge Jeffrey P. Gardner issued his decision on December 17, 2018. Charges filed by Construction Council Local 175, UWUA, AFL-CIO.
G4S Secure Solutions (USA) Inc., a division of G4S Regulated Security Solutions, Inc. f/k/a The Wackenhut Corporation (12-CA-026644 and 12-CA-026811; JD-83-18) Turkey Point, FL. Administrative Law Judge Robert A. Ringler issued his supplemental decision on December 20, 2018. Charges filed by individuals.
Mid-Atlantic Restaurant Group LLC d/b/a Kelly’s Taproom (04-CA-162385; JD-82-18) Philadelphia, PA. Administrative Law Judge Robert A. Giannasi issued his supplemental decision on December 20, 2018. Charge filed by an individual.
Arbah Hotel Corp. d/b/a Meadowlands View Hotel (22-CA-197658, et al.; JD(NY)-20-18) Newark, NJ. Administrative Law Judge Lauren Esposito issued her decision on December 20, 2018. Charges filed by New York Hotel and Motel Trades Council, AFL-CIO.
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