Summary of NLRB Decisions for Week of December 7 - 11, 2020
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
Nestlé USA, Inc. (18-CA-231008; 370 NLRB No. 53) Little Chute, WI, December 7, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by suspending and discharging an employee because of his protected concerted activities; by instructing the employee not to talk to anybody after suspending him pending investigation, without limiting the duration of that prohibition or the subject or subjects to which it applied; and by coercively interrogating the employee about his protected concerted activities.
Charge filed by an individual. Administrative Law Judge Charles J. Muhl issued his decision on March 11, 2020. Chairman Ring and Members Kaplan and Emanuel participated.
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National Stores, Inc. d/b/a Factory 2-U (28-CA-231771; 370 NLRB No. 54) Nogales, AZ, December 9, 2020.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(1) by threatening employees, and by reducing an employee’s work hours, changing her work schedule, and discharging her because she engaged in protected concerted activities and to discourage employees from engaging in such activities.
Charge filed by an individual. Chairman Ring and Members Kaplan and McFerran participated.
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BMW Manufacturing Co. (10-CA-178112; 370 NLRB No. 56) Spartanburg, SC, December 10, 2020.
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discriminatorily prohibiting conversation about the Union during worktime while permitting conversation about other nonwork subjects, creating the impression that employees’ union activities were under surveillance, and maintaining an overbroad Solicitation and Distribution policy. A Board majority (Chairman Ring and Members Kaplan and Emanuel) reversed the judge’s conclusion that the Respondent violated Section 8(a)(1) by its Section Leader coercively interrogating employees. Applying The Boeing Co., 365 NLRB No. 154 (2017), the majority also found that the Respondent did not violate Section 8(a)(1) by maintaining a civility rule, a confidentiality policy, a no-recording provision, and a non-disparagement rule. Dissenting, Member McFerran would have adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by interrogating employees. Member McFerran also would have found that the Respondent violated Section 8(a)(1) by maintaining its non-disparagement rule, and, consistent with her dissent in Boeing, by maintaining the no-recording provision. Member McFerran concurred with her colleagues that the Respondent did not violate Section 8(a)(1) by maintaining a civility rule and confidentiality policy, but would find so by applying Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
Charge filed by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America. Administrative Law Judge Donna N. Dawson issued her decision on December 1, 2017. Chairman Ring and Members Kaplan, Emanuel, and McFerran participated.
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American Medical Response of Southern California (21-CA-231607, et al.; 370 NLRB No. 57) Riverside, CA, December 10, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by directing employees to remove and not to wear several Union-provided buttons. A Board majority (Members Kaplan and McFerran) found it unnecessary to pass on the Respondent’s argument that the Board should extend to ambulance companies the presumption of validity, created in the healthcare facility setting, for employer restrictions on nonofficial insignia in immediate patient care areas because, even if the presumption were to apply to the Respondent’s operations, its button ban would nevertheless be unlawful because it is overbroad. Member Emanuel would analogize the transportation of patients in an ambulance to the immediate patient care areas of a hospital and find that bans on wearing union insignia at those times are presumptively valid; however, he agreed with his colleagues that the Respondent’s ban was unlawfully overbroad.
Charges filed by United EMS Workers, AFSCME Local 4911. Administrative Law Judge Dickie Montemayor issued his decision on January 31, 2020. Members Kaplan, Emanuel, and McFerran participated.
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American Medical Response West (20-CA-229397, et al.; 370 NLRB No. 58) Santa Rosa, CA, December 10, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by directing employees to remove and not to wear a button bearing the message “No on Prop 11.” A Board majority (Members Kaplan and McFerran) found it unnecessary to pass on the Respondent’s argument that the Board should extend to ambulance companies the presumption of validity, created in the healthcare facility setting, for employer restrictions on nonofficial insignia in immediate patient care areas because, even if the presumption were to apply to the Respondent’s operations, its button ban would nevertheless be unlawful because it is overbroad. Member Emanuel would analogize the transportation of patients in an ambulance to the immediate patient care areas of a hospital and find that bans on wearing union insignia at those times are presumptively valid; however, he agreed with his colleagues that the Respondent’s ban was unlawfully overbroad.
Charges filed by United Emergency Medical Service Workers, American Federation of State, County, and Municipal Employees, Local 4911. Administrative Law Judge Ariel L. Sotolongo issued his decision on December 6, 2019. Members Kaplan, Emanuel, and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Golden State Foods (10-RC-267373) Opelika, AL, December 8, 2020. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Board also denied the Employer’s request for a stay of the election as moot. Petitioner—Bakery, Confectionery, Tobacco Workers and Grain Millers Union Local 42. Chairman Ring and Members Kaplan and Emanuel participated.
Antioch Tire, Inc., d/b/a Tredroc Tire Services, LLC (13-RC-263043) Elk Grove Village, IL, December 8, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. The Board found that the Regional Director acted in accordance with Board precedent in certifying the Union based on the ballots received at the time of the count. Petitioner—Local Lodge 701, International Association of Machinists & Aerospace Workers, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
American Fuel Cell and Coated Fabrics Company d/b/a Amfuel (15-RD-257239) Magnolia, AR, December 8, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s blocking determination as it raised no substantial issues warranting review. Petitioner—an individual. Union—United Steel Workers Local 607L, AFL-CIO-CLC. Chairman Ring and Members Kaplan and Emanuel participated.
Newburg Egg Corp. (03-RC-267766) Woodbridge, NY, December 10, 2020. 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. The Board, addressing concerns raised by the Employer regarding potential disenfranchisement of voters, noted that any party is free to present evidence of actual disenfranchisement of voters via post-election objections. Petitioner—United Food and Commercial Workers Union, Local No. 342. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
International Brotherhood of Teamsters (IBT), Local 957 (United Parcel Service) (09-CB-255672) Dayton, OH, December 8, 2020. No exceptions having been filed to the October 27, 2020 decision of Administrative Law Judge Kimberly R. Sorg-Grave’s finding that the Respondent had not engaged in certain unfair labor practices, the Board dismissed the complaint. Charge filed by an individual.
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Appellate Court Decisions
Wang Theatre Inc. d/b/a Citi Performing Center, Board Case No. 01-CA-179293 (reported at 368 NLRB No. 107) (1st Cir. decided November 30, 2020).
In a published opinion in this test-of-certification case, the Court denied enforcement of the Board’s bargaining order that issued against this operator of a performance venue in Boston, Massachusetts, after local musicians who had performed at the theatre voted 9 to 0 in a mail-ballot election to be represented by American Federation of Musicians, Local Union No. 9-535, AFL-CIO. In doing so, the Court held that the Board had erred in conducting an election because the theatre had no employees eligible to vote under what the Court determined to be the proper test for voter eligibility.
For some travelling musical productions, the theatre had contracted to provide the number of local musicians needed by the producer, and then hired the musicians. In 2014, the theatre hired a total of 17 local musicians for two productions. In 2016, the Union filed a petition seeking to represent a unit of all musicians employed by the theatre. In response, the theatre contended, among other things, that it had not employed any musicians since 2014, and that there were no musicians eligible to vote in the election. After a hearing, the Acting Regional Director issued a decision finding, among other things, that the unit was appropriate and directed an election among those musicians found eligible to vote in the election under the voter-eligibility formula of Juilliard School, 208 NLRB 153 (1974). The theatre requested review, which was denied by the Board (Chairman Pearce and Members Hirozawa and McFerran). Thereafter, the theatre refused to bargain in order to seek court review.
The Court held that, rather than the “more expansive” Juilliard School formula to determine voter eligibility, the test to apply in this case was the Board’s “longstanding and most widely used test” of Davison-Paxon Co., 185 NLRB 21 (1970) (under which employees are eligible to vote if they regularly average 4 or more hours of work per week for the last quarter prior to the eligibility date). The Court explained that, in its view, Board decisions since Julliard School made clear that the Juilliard School decision rested on the special circumstances of that case and that, here, the Board had not addressed those factual differences when deciding to apply the Julliard School formula. Noting that it was uncontested that no musician who had worked at the theatre would have been eligible to vote under the Davison-Paxon formula, the Court denied enforcement.
The Court’s opinion is here.
Time Warner Cable New York City, LLC, Board Case No. 02-CA-126860 (reported at 366 NLRB No. 116) (2d Cir. decided December 10, 2020).
In a published opinion, the Court denied enforcement of the Board’s order issued against this provider of television, internet, security, and telephone services in the New York City area, and remanded for further proceedings consistent with its opinion. In doing so, the Court disagreed with the Board’s finding that three statements made by the Employer violated Section 8(a)(1).
In April 2014, during a time when contract negotiations were not progressing, and the day after the Employer suspended several Union-represented employees for violating a work rule, the representative Union, the International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 3, gathered employees outside the Employer’s Brooklyn facility for a protest that disrupted the Employer’s operations. While investigating the demonstration, the Employer asked employees a series of questions about their participation in, and knowledge of, the demonstration. Subsequently, the Employer disciplined several employees for their participation and the Union filed unfair-labor-practice charges.
The Board (Members McFerran and Kaplan; Member Pearce, dissenting in part) found that the demonstration did not constitute protected concerted activity and thus the Employer could lawfully discipline employees for their participation. However, the Board found that the Employer unlawfully interrogated employees about their protected union activities while investigating the unprotected demonstration. Specifically, the Board found unlawful three questions: “Who told you about this gathering?”; “When did you receive notification of the gathering?”; and “How was this event communicated to you?” The Board explained that the Employer’s “inquiry was . . . required to focus closely on the unprotected misconduct and to minimize intrusion into Section 7 activity,” and found that it had not.
On review, the Court concluded that the portion of the Board’s standard requiring that, in coercive questioning, employers “focus closely” on unprotected activity where it might touch on protected activity, has a reasonable basis in law, but that “the Board’s requirement that an employer ‘minimize’ intrusion into Section 7 activity in such questioning, at least as understood by the Board in this case, does not.” The Court stated that, in its view, that standard as applied to the facts of the case was inconsistent with Board precedent: “It is not the Board’s use of the phrase ‘minimize intrusion’ that is problematic; it is the Board’s interpretation of that phrase to mean ‘avoid virtually all intrusion,’ thus barring [the employer] from asking reasonable questions about conduct preceding the actual demonstration.”
The Court’s opinion is here.
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Administrative Law Judge Decisions
Profex, Inc. (03-CA-259352; JD-50-20) Newburgh, NY. Administrative Law Judge David I. Goldman issued his decision on December 7, 2020. Charge filed by International Union of Operating Engineers, Local 825.
Xcel Protective Services, Inc. (19-CA-232786, et al.; JD(SF)-21-20) Seattle, WA. Administrative Law Judge John R. Giannopoulos issued his decision on December 7, 2020. Charges filed by International Union, Security, Police, and Fire Professionals of America, Local 5.
Michigan Bell Telephone Company and AT&T Services, Inc., Joint Employers (07-CA-161545, et al.; JD-49-20) Grand Rapids, MI. Administrative Law Judge Ira Sandron issued his Supplemental Decision on December 8, 2020. Charges filed by Local 4034, Communications Workers of America (CWA), AFL-CIO.
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