Summary of NLRB Decisions for Week of December 23 - 27, 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
Wal-Mart Stores, Inc. (13-CA-114222 and 32-CA-111715; 368 NLRB No. 146) Bentonville, AR, December 16, 2019.
The full Board adopted the Administrative Law Judge’s conclusion that the Respondent’s maintenance of its dress codes requiring logos to be “small” and “non-distracting” violated Section 8(a)(1) as it applied to areas away from the selling floor; however, a Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the judge’s conclusion that the Respondent’s maintenance of its dress codes was unlawful as it applied to the selling floor. In doing so, the majority applied its test for examining facially neutral employer policies set forth in The Boeing Company, 365 NLRB No. 154 (2017). The majority explained that limitations on the display of union insignia short of outright prohibitions will vary in the extent to which they serve legitimate employer interests and the degree to which they interfere with Section 7 rights; thus, they will “warrant individualized scrutiny in each case” as Boeing Category 2 rules.
Applying Boeing to the maintenance of the rules on the selling floor, the majority found that the policies—when reasonably interpreted—would potentially interfere with employees’ Section 7 right to display some union insignia; nonetheless, the adverse effect is relatively minor and outweighed by the Respondent’s legitimate justifications for maintaining the policies—to enhance the customer shopping experience and protect its merchandise from theft or vandalism.
Dissenting and citing Republic Aviation, 324 U.S. 793 (1945), Member McFerran argued that the majority impermissibly applied The Boeing Company instead of the Board’s longstanding “special circumstances” test. By applying Boeing, the dissent argued that the majority upends the Board’s traditional framework by abandoning the presumption that any limitation on the display of union insignia is presumptively unlawful, and, instead, requiring the General Counsel to first prove that Section 7 rights have been adversely affected. The dissent further argued that, as a result, the majority effectively treats the display of union insignia more as a privilege to be granted by the employer on the terms it chooses, rather than as an essential Section 7 right that—pursuant to federal labor law—requires accommodation. Noting that the judge reached the only permissible conclusion on the facts presented, the dissent would have affirmed the judge’s conclusions that the Respondent’s maintenance of its policies violated Section 8(a)(1).
Charges filed by Organization United for Respect at Walmart (OUR Walmart). Administrative Law Judge Geoffrey Carter issued his decisions on December 9, 2014 and June 4, 2015. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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CBRE, Inc. (21-CA-182368; 368 NLRB No. 152) Los Angeles, CA, December 16, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining an arbitration agreement that restricts employees’ access to the Board and its processes. The Board applied its recent decision in Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), and found that, as in Prime Healthcare, the agreement did not explicitly prohibit charge filing, but it did, when reasonably interpreted, interfere with employees’ access to the Board and its processes because it broadly required arbitration of all employment-related disputes or claims arising under any federal, state, or governmental law, statute, regulation, or ordinance.
Charge filed by an individual. Administrative Law Judge John T. Giannopoulos issued his decision on November 24, 2017. Chairman Ring and Members McFerran and Kaplan participated.
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United Parcel Service, Inc. (06-CA-143062; 369 NLRB No. 1) North Apollo, PA, December 23, 2019.
The Board, reversing the Administrative Law Judge, dismissed the complaint and deferred to the joint grievance panel's decision upholding the employee's discharge. In so doing, the Board overruled Babcock & Wilcox Construction Co., Inc., 361 NLRB (2014), and returned to the post-arbitral deferral standard set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984). Under the restored standard, the Board will defer to the arbitrator’s decision where (1) the arbitral proceedings appear to have been fair and regular, (2) all parties have agreed to be bound, (3) the arbitrator considered the unfair labor practice issue, and (4) the arbitrator’s decision is not clearly repugnant to the Act. In addition, the Board restored policies for pre-arbitral deferral established in United Technologies Corp., 268 NLRB 557 (1984), and for deferral to pre-arbitral settlement agreements set forth in Alpha Beta Co., 273 NLRB 1546 (1985).
Charge filed by an individual. Administrative Law Judge Geoffrey Carter issued his decision on November 25, 2016. Chairman Ring and Members Kaplan and Emanuel participated.
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Haynes Building Service, LLC (31-CA-093920; 369 NLRB No. 2) Monrovia, CA, December 23, 2019.
On remand from the D.C. Circuit Court, the Board found that the Respondent violated Section 8(a)(1) by maintaining its mandatory arbitration agreement that, when reasonably interpreted, interferes with employees’ access to the Board and its processes. Applying The Boeing Company, 365 NLRB No. 154 (2017), Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), and Beena Beauty Holding, Inc., d/b/a Planet Beauty, 368 NLRB No. 91 (2019), the Board found that the agreement plainly makes arbitration the exclusive forum for the resolution of all claims, including claims arising under the Act. Finding that the agreement cannot be legitimately justified, the Board placed it in Boeing Category 3.
Charge filed by an individual. Administrative Law Judge Keltner W. Locke issued his decision on February 7, 2014. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued
C Cases
United States Postal Service (10-CA-214017, et al.) Kannapolis, NC, December 23, 2019. Errata to December 3, 2019 Decision. Errata Amended Decision
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Appellate Court Decisions
Coral Harbor Rehabilitation & Nursing Center, Board Case No. 22-CA-167738 (reported at 366 NLRB No. 75) (3d Cir. decided December 26, 2019).
In a published opinion, the Court enforced the Board’s order issued against the operator of this nursing facility and rehabilitation center in Neptune, New Jersey. The Employer purchased the facility in September 2015, three months after the facility’s licensed practical nurses (LPNs) voted to be represented by 1199 SEIU United Healthcare Workers East. After purchasing the facility, the Employer refused to bargain, claiming that it had no obligation to do so because it was not a Burns successor-employer, and that, even if it were, the LPNs were the supervisors of the certified nursing assistants (CNAs) and therefore not employees covered by the Act.
After a hearing, the Administrative Law Judge issued a decision finding that the Employer was a Burns successor that had an obligation to bargain with the Union, and that it had failed to carry its burden of establishing that the LPNs had the authority to assign, responsibly direct, discipline, evaluate, and adjust the grievances of the CNAs within the meaning of Section 2(11) of the Act. The judge therefore concluded that the Employer violated Section 8(a)(5) and (1) by refusing to bargain with the Union and by unilaterally changing certain terms of the LPNs’ employment after it began operating the facility.
On exceptions, the Board (Members Pearce, Kaplan, and Emanuel) rejected the Employer’s challenges and ordered it to bargain and remedy the unlawful unilateral changes. Before the Court, the Employer challenged only the Board’s findings that the LPNs do not discipline CNAs, or effectively recommend their discipline.
On review, the Court held that substantial evidence supported those contested findings, and accordingly enforced the Board’s order. On the issue of the statutory authority to discipline or effectively recommend it, the Court held that the record supported the Board’s finding that the LPNs did not exercise independent judgment as required by Section 2(11) of the Act. Specifically, the Court noted that all discipline of the CNAs, or recommendations of their discipline, needed to be cleared by the director of nursing or another facility manager, and that the LPNs had no knowledge of what level of discipline to recommend, given they did not have access to employee personnel files. Rather, the Court noted, it was the director of nursing who filled out disciplinary notices or received a notice from an LPN, investigated the matter, spoke with the CNA, and determined the level of discipline.
The Court’s opinion is here.
Lou's Transport, Inc. and T.K.M.S., Inc., Board Case No. 07-CA-102517 (reported at 366 NLRB No. 140) (6th Cir. decided December 26, 2019).
In a published opinion, the Court enforced the Board’s supplemental order issued against this materials transporter located in Pontiac, Michigan. The order specifies the amounts of backpay and other monies owed to one of the Employer’s truck drivers who hauled dirt and clay at a limestone quarry in southeastern Michigan. Previously, the Board determined that he was discharged in violation of Section 8(a)(1) for complaining about safety concerns commonly shared among the truck drivers at the quarry. See Lou’s Transport, Inc., 361 NLRB 1446 (2014) (Members Miscimarra, Johnson, and Schiffer).
In an unusually comprehensive opinion authored by Circuit Judge Stranch (joined by Circuit Judges Boggs and Moore), the Court detailed the three-year procedural history of this hard-fought backpay case, set out the governing legal principles and burdens of proof applicable to Board compliance proceedings, and applied the law methodically to the issues raised on appeal. The Court concluded that the Board did not deviate from precedent or policy in calculating the award, and that substantial evidence supported the Board’s findings that the Employer failed to carry its burden of proving facts that would mitigate its backpay liability. For instance, the Court upheld the Board’s specific findings on the backpay period, the use of comparators in calculating gross backpay figures, including estimating hours worked and rates of pay, as well as deductions from gross backpay, such as expenses for uniforms and union dues. The Court also rejected challenges to the Board’s treatment of interim overtime, its refusal to deduct unemployment benefits received, and its granting of reasonable search-for-work and other interim employment expenses under King Soopers, Inc., 364 NLRB No. 93 (2016). Finding no merit in the Employer’s remaining contentions, the Court enforced the Board’s order in full.
The Court’s opinion is here.
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Administrative Law Judge Decisions
American Federation of Teachers, AFL-CIO d/b/a Washington State Nurses Organizing Project, and/or American Federation of Teachers, AFL-CIO and Washington State Nurses Organizing Project (19-CA-190619; JD-(SF)-44-19) Vancouver, WA. Administrative Law Judge Eleanor Laws issued her decision on December 23, 2019. Charge filed by Communications Workers of America, Local 7901.
United States Postal Service (07-CA-232299; JD-97-19) Eaton Rapids, MI. Administrative Law Judge Donna N. Dawson issued her decision on December 23, 2019. Charge filed by Central Michigan Area Local 300, American Postal Workers Union (APWU), AFL-CIO.
Concrete Express of NY, LLC (02-CA-220381, et al.; JD(NY)-17-19) Bronx, NY. Administrative Law Judge Benjamin W. Green issued his decision on December 27, 2019. Charges filed by Teamsters & Chauffeurs Local Union 456, IBT.
The Ohio Bell Telephone Company (09-CA-196106; JD-96-19) Dayton, OH. Administrative Law Judge Andrew S. Gollin issued his decision on December 27, 2019. Charge filed by an individual.
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