Summary of NLRB Decisions for Week of December 9 - 13, 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
Private National Mortgage Acceptance Company LLC (“PennyMac”) (20-CA-170020; 368 NLRB 126) Sacramento, CA, December 9, 2019.
The Board reversed the Administrative Law Judge and dismissed the complaint, which alleged that the Respondent violated Section 8(a)(1) by maintaining arbitration agreements that reasonable employees would read as restricting employees’ access to the Board’s processes. The Board found that consideration of the allegation on the merits was precluded by the parties’ joint stipulation, which did not encompass the allegation in its issues presented for resolution. The Board further found that, even if the issue had been properly raised to the judge, the allegation would be dismissed because the Respondent’s arbitration agreements included or referenced an effective exclusion clause.
Charge filed by an individual. Administrative Law Judge Raymond P. Green issued his decision on November 29, 2016. Chairman Ring and Members Kaplan and Emanuel participated.
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Sysco Columbia, LLC (10-CA-197586, et al.; 368 NLRB No. 129) Columbia, SC, December 9, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by soliciting grievances and promising benefits, granting employees parking benefits at a more desirable location, and withholding pay increases and making coercive statements. The Board, Member McFerran dissenting, amended the judge’s recommended remedy to remove the requirement that a Board agent or responsible management official publicly read the Board’s notice.
Charges filed by International Brotherhood of Teamsters Local Union 509. Administrative Law Judge Ira Sandron issued his decision on August 16, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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Leggett & Platt, Inc. (09-CA-194057, et al.; 368 NLRB No. 132) Winchester, KY, December 9, 2019.
On remand from the D.C. Circuit Court, the Board decided not to apply Johnson Controls, Inc., 368 NLRB No. 20 (2019), retroactively to this case. While this case was pending on appeal in the Court, the Board issued Johnson Controls, which overturned then-precedent Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), and held that the decision should apply retroactively to “all pending cases.” On remand, however, the Board noted that an affirmative bargaining order in this case had been in effect for over six months before Johnson Controls issued and that retroactive effect here would undermine the Board’s expectation of prompt compliance with its bargaining orders.
Charges filed by Retail, Wholesale and Department Store Union. Administrative Law Judge Robert A. Giannasi issued his decision on August 23, 2019. Chairman Ring and Members McFerran and Kaplan participated.
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Concrete Express of NY, LLC (02-RC-218783; 368 NLRB No. 135) Bronx, NY, December 10, 2019.
The Board (Chairman Ring and Member Emanuel; Member McFerran, dissenting) granted in part and denied in part the Employer’s Request for Review of the Regional Director’s Corrected Decision on Challenges and Objections and Notice of Hearing as it, in part, raised substantial issues warranting review. Member McFerran would have denied the Employer’s Request for Review in its entirety as the Employer’s objections are speculative and stem from a situation of the Employer’s own making.
Petitioner—Teamsters & Chauffeurs Local Union 456, IBT. Chairman Ring and Members McFerran and Emanuel participated.
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The Permanente Medical Group, Inc., Northern California Region (32-CA-226909; 368 NLRB No. 131) Oakland, CA, December 11, 2019.
The Board granted the General Counsel’s Motion to Remand to Approve Charging Party’s Withdrawal Request. In light of the remand to approve withdrawal of the one allegation, the Board adopted the Administrative Law Judge’s findings and conclusions, as modified, as to the sole remaining allegation, to which no exceptions were filed.
Charge filed by National Union of Healthcare Workers. Administrative Law Judge Gerald M. Etchingham issued his decision on July 25, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Smith’s Food and Drug Centers, Inc. (28-CA-235776; 368 NLRB No. 127) Albuquerque, NM, December 11, 2019.
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)(5) and (1) by failing and refusing to furnish the Union with requested relevant information and delaying in providing the Union with other requested relevant information.
Charge filed by Bakery, Confectionery, Tobacco Workers and Grain Millers BCTGM Local #351, AFL-CIO-CLC. Chairman Ring and Members Kaplan and Emanuel participated.
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Cristal USA, Inc. (08-CA-200330; 368 NLRB No. 137) Ashtabula, OH, December 11, 2019.
In this test-of-certification case, the Board denied the General Counsel’s and the Union’s Motions for Summary Judgment. The Board majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting) observed that, while the motions were pending, the Board issued an Order Granting Review and Remanding for further consideration PCC Structurals, Inc., 365 NLRB No. 160 (2019), in which the majority overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), and reinstated the traditional community-of-interest standard. Accordingly, in light of PCC Structurals, the Board remanded the representation case to the Regional Director for further appropriate action, including analyzing the appropriateness of the unit—a unit of production employees—under the standard articulated in PCC Structurals. Dissenting, Member McFerran disagreed that remand is appropriate based on her view that PCC Structurals was wrongly decided, as well as the Board’s longstanding rule prohibiting a party in a test-of-certification case from relitigating issues that were raised or could have been raised in the underlying representation proceeding.
Charge filed by International Chemical Workers Union Council of the United Food & Commercial Workers, AFL-CIO, CLC. Chairman Ring and Members McFerran and Kaplan participated.
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McDonald’s USA, LLC, Joint Employer, et al. (02-CA-093893, et al.; 368 NLRB No. 134) various cities and states, December 12, 2019.
The Board (Members Kaplan and Emanuel; Member McFerran, dissenting) granted the General Counsel’s and McDonald’s USA, LLC’s (McDonald’s) Requests for Special Permission to Appeal the Administrative Law Judge’s Order Denying Motions to Approve Settlement Agreements. The case involves complaints against McDonald’s, McDonald’s Restaurants of Illinois, Inc., and 29 franchisees, based on violations allegedly committed by McDonald’s Restaurants of Illinois and the franchisees. Although the complaints do not allege that McDonald’s independently violated the Act, they allege that McDonald’s is a joint employer of the affected employees, and, as such, can be held jointly and severally liable for the alleged unfair labor practices. After nearly three years of proceedings focused primarily on McDonald’s status as a joint employer, the General Counsel and McDonald’s presented a series of informal settlement agreements resolving the alleged unfair labor practices. Applying the “reasonableness” factors set forth in Independent Stave, 287 NLRB 740 (1987), the majority found, contrary to the judge, that the settlement agreements are reasonable, and that accepting the settlement agreements would serve the policies underlying the Act as well as the Board’s longstanding policy of encouraging the amicable resolution of disputes. The majority emphasized, among other things, that the settlements provide a full remedy for all of the substantive violations alleged in the complaints, and, although the settlements do not impose joint and several liability on McDonald’s as a joint employer, they impose obligations on McDonald’s to support the remedies agreed to by McDonald’s Restaurants of Illinois and the franchisees. The majority also emphasized that the Board’s Notice of Proposed Rulemaking regarding the standard for determining joint-employer status, which issued after the judge’s order, may render moot the utility of using this case as a vehicle to develop joint-employer law. Accordingly, the majority granted the General Counsel’s and McDonald’s Requests for Permission to file a Special Appeal, granted the appeals, vacated the judge’s order, and remanded the case to the judge with instructions to approve the settlement agreements.
Member McFerran dissented. She found that, at the urging of the current General Counsel, the majority disposed of a “mammoth and important joint-employer case under the National Labor Relations Act” before that case would have “require[d] the Board to apply a precedent [Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB 1599 (2015)] that both the majority and the current General Counsel have tried unsuccessfully to repudiate.”
Member McFerran found that “the heart of this proceeding was the allegation that McDonald’s is a joint employer with certain franchisees.” A finding of joint-employer status would have important consequences for McDonald’s in both unfair labor practice cases involving its franchisees and possible representational cases. Despite significant evidence that McDonald’s and the Franchisee Respondents engaged in “a coordinated effort to effectuate a mutual interest in warding off union representation” at the franchise locations, the General Counsel decided to settle the case. As a result of the settlements, McDonald’s joint-employer status remains unresolved.
Member McFerran found that the majority’s decision was based on application of the wrong standard of review, and it reached a result that plainly does not “effectuate the purposes and policies” of the Act. Under the proper standard of review, she found that the judge plainly did not abuse her discretion in rejecting the proposed settlements based on her application of the established Independent Stave criteria. This decision was not merely proper, it was correct.
Member McFerran concluded that the judge persuasively explained her decision to reject the settlements in a detailed decision. McDonald’s limited involvement in the settlements’ remedies did not approximate the remedial effect of a finding of joint-employer status and lacked any guarantee of the Franchisee Respondents’ performance. She also found that the judge properly identified significant additional shortcomings including the requirement that the General Counsel withdraw the consolidated complaint before compliance can be determined; the inability of the settlements to conclusively resolve these cases given their complex provisions, arguably contradictory terms, and the lack of clarity regarding the impact of notification procedures on the default process; and the omission of standard remedial language binding a respondent’s successors, which leaves no clear grounds for relief were a Franchisee to go out of business or change ownership.
Charges filed by Fast Food Workers Committee and Service Employees International Union, CTW, CLC, et al. Administrative Law Judge Lauren Esposito issued her Order Denying Motions To Approve Settlement Agreements on July 17, 2018. Members McFerran, Kaplan, and Emanuel participated.
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Lowe’s Home Centers, LLC (19-CA-191665; 368 NLRB No. 133) Mill Creek, CA, December 12, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining a Code of Business Conduct and Ethics that requires employees to keep salary information confidential.
Charge filed by an individual. Administrative Law Judge Amita Baman Tracy issued her decision on April 17, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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A.S.V., Inc. a/k/a Terex (18-RC-128308, 18-CA-131987, et al.; 368 NLRB No. 138) Grand Rapids, MN, December 12, 2019.
The Board denied the Respondent’s Request for Reconsideration of the Gissel bargaining order it issued in 366 NLRB No. 162 (2018). The Respondent’s request was based on PCC Structurals, Inc., 365 NLRB No. 160 (2017), in which the Board overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011). The Board found that further review of the case under PCC Structurals with respect to the appropriate bargaining unit would “serve no useful purpose” because the Regional Director, in finding the Respondent’s unit of assembly employees appropriate, correctly applied the traditional community-of-interest standard established in pre-Specialty Healthcare precedent.
Charges and Petition filed by International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO. Members McFerran, Kaplan, and Emanuel participated.
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Kelly Services, Inc. (04-CA-171036; 368 NLRB No. 130) East Brunswick, NJ, December 12, 2019.
The full Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement (MAA) that restricts employees’ access to the Board processes by prohibiting them from receiving backpay or other monetary compensation through Board processes. The MAA expressly allows for the filing of an administrative charge with the Board but requires employees to give up their right to any monetary remedies that may ensue and instead arbitrate monetary relief. Applying The Boeing Company, 365 NLRB No. 154 (2017), the Board found that the MAA is a “Category 3” rule that is unlawful to maintain because it limits access to the Board’s full processes and because it seeks to limit the Board’s exercise of its remedial authority to prevent unfair labor practices. In agreement with the judge, Member McFerran also found that the MAA’s limitation on full Board remedies would reasonably inhibit employees from filing charges at all.
Charge filed by an individual. Administrative Law Judge Robert Giannasi issued his decision on May 23, 2018. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Cristal USA, Inc. (08-CA-200737; 368 NLRB No. 141) Ashtabula, OH, December 13, 2019.
In this test-of-certification case, the Board denied the General Counsel’s and the Union’s Motions for Summary Judgment. The Board majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting) observed that while the motions were pending, the Board issued an Order Granting Review and Remanding for further consideration PCC Structurals, Inc., 365 NLRB No. 160 (2017), in which the majority overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), and reinstated the traditional community-of interest standard. Accordingly, in light of PCC. Structurals, the Board remanded the representation case to the Regional Director for further appropriate action, including analyzing the appropriateness of the unit—a unit of warehouse employees—under the standard articulated in PCC Structurals. Dissenting, Member McFerran disagreed that remand is appropriate based on her view that PCC Structurals was wrongly decided, as well as the Board’s longstanding rule prohibiting a party in a test-of-certification case from relitigating issues that were raised, or could have been raised, in the underlying representation proceeding.
Charge filed by International Chemical Workers Union Council of The United Food & Commercial Workers International Union, AFL-CIO, CLC. Chairman Ring and Members McFerran and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Mercy, Inc. d/b/a AMR Las Vegas (28-RC-239046) Las Vegas, NV, December 9, 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—American Federation of State County and Municipal Employees AFSCME Local 4041 (AFSCME Local 4041, EMS Workers United-AFSCME). Chairman Ring and Members Kaplan and Emanuel participated.
Paragon Systems, Inc. (29-RC-229372) Manhattan, the Bronx, West Nyack, Yonkers, New Rochelle, White Plains, and Peekskill, NY, December 10, 2019. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Certification of Representative and Report on Objections and Notice of Hearing as it raised no substantial issues warranting review. Petitioner—National League of Justice and Security Professionals (NLJSP). Chairman Ring and Members Kaplan and Emanuel participated.
Mountain View Health Care and Rehabilitation Center, LLC (04-RC-242288) Scranton, PA, December 11, 2019. 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. Petitioner—Retail Wholesale and Department Store Union (RWDSU). Chairman Ring and Members Kaplan and Emanuel participated.
AECOM (22-RC-238880) Jersey City, NJ, December 11, 2019. 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 requesting review, the Employer asserted that three classifications of employees in the petitioned-for unit were supervisors within the meaning of Section 2(11) of the Act. Petitioner—Local 352, National Association of Transportation Supervisors. Chairman Ring and Members Kaplan and Emanuel participated.
Washington Lawyers’ Committee for Civil Rights and Urban Affairs (04-RC-244591) Washington, DC, December 11, 2019. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election and Supplemental Decision Overruling Objections and Certification of Representative as it raised no substantial issues warranting review. Petitioner—National Organization of Legal Services Workers, UAW Local 2320 a/w United Automobile, Aerospace, and Agricultural Implement Workers of America, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
United States Postal Service (10-CA-221881) Greensboro, NC, December 9, 2019. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. The complaint had alleged Section 8(a)(5) and (1) refusal-to-provide/delay-in-providing relevant information violations. Charge filed by National Postal Mail Handlers Union, AFL-CIO, Local 305. Members McFerran, Kaplan, and Emanuel participated.
United States Postal Service (12-CA-227639, et al.) Key West, and various locations, FL, December 9, 2019. The Board approved the formal settlement agreement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions that the Respondent must take to comply with the Act. The complaint had alleged Section 8(a)(5) and (1) refusal-to-provide/delay-in-providing relevant information violations. Charges filed by National Association of Letter Carriers, AFL-CIO, Branch 818; American Postal Workers Union, AFL-CIO, Local 620; American Postal Workers Union, AFL-CIO, Local 1201; American Postal Workers Union, AFL-CIO, Local 172; and American Postal Workers Union, AFL-CIO, Palm Beach Area Local 749. Members McFerran, Kaplan, and Emanuel participated.
Rhino Northwest, LLC (19-CA-221309 and 19-CA-221359) Fife, WA, December 11, 2019. No exceptions having been filed to the October 28, 2019 decision of Administrative Law Judge Ariel L. Sotolongo’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. Charges filed by Local No. 15, International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United States and its Territories and Canada, AFL-CIO, CLC.
Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts (16-CA-193636) San Antonio, TX, December 11, 2019. The Board denied the Charging Party’s Motion for Reconsideration of the Board’s Decision and Order reported at 368 NLRB No. 46 (2019), because the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. In dissent, Member McFerran stated that she believed that the Charging Party had demonstrated “material error” in the decision. Charge filed by Local 23, American Federation of Musicians. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
MGM Grand Hotel, LLC d/b/a MGM Grand (28-CA-186022) Las Vegas, NV, December 11, 2019. No exceptions having been filed to the October 29, 2019 decision of Administrative Law Judge John T. Giannopoulos’ 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.
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Appellate Court Decisions
Windsor Redding Care Center, Board Case No. 20-CA-070465 (reported at 366 NLRB No. 127) (D.C. Cir. decided December 10, 2019).
In a published opinion, the Court enforced, in part, the Board’s order issued against this operator of an 80-resident skilled nursing facility in Redding, California, where its service and maintenance employees and licensed vocational nurses are represented by SEIU Local 2015, as successor to SEIU United Healthcare Workers-West, CTW, CLC. The Court summarily enforced those portions of the order of the Board (Members McFerran, Kaplan, and Emanuel) remedying the uncontested finding that the Employer violated Section 8(a)(5) and (1) by unilaterally suspending its merit raise program, but denied enforcement with regard to the Board’s findings (Member Emanuel, dissenting) that the Employer disciplined and discharged an employee for her union activity in violation of Section 8(a)(3) and (1).
The Administrative Law Judge dismissed the Section 8(a)(3) allegations, finding that, although the General Counsel had put forth a strong case that the employee’s union activity was a motivating factor in her discipline and discharge, the Employer nonetheless would have taken the same actions in the absence of her union activity. Specifically, the judge accepted the Employer’s asserted basis for disciplining and discharging the employee, a restorative nursing assistant, for saying to a difficult resident with dementia who was yelling and using profanity, “If you don’t knock it off, I’m going to beat your ass.” On exceptions, the Board majority disagreed with the judge, and reversed, finding that the Employer had failed to prove its affirmative defense. In the Board majority’s view, the record evidence indicated that the Employer treated the employee more severely than other employees accused of abuse, and that the Employer was doubtful at the time of discharge whether the employee had engaged in the alleged misconduct—so doubtful, in fact, that it continued to investigate the veracity of the accusation even after the discharge.
Dissenting on the issue, Member Emanuel agreed with the Administrative Law Judge’s finding that the Employer had proved its affirmative defense, and emphasized that the Employer had a zero-tolerance policy for resident abuse. He also stated that regardless of whether the employee actually committed elder abuse, the Employer reasonably believed that she had done so, and that the record clearly supported a finding that it acted on that belief.
On review, the Court held that the discipline and discharge findings were not supported by substantial evidence. The Court stated that this was because the Board majority had failed to adequately clarify its disagreement with the Administrative Law Judge’s well-reasoned decision, as well as the arguments raised by the dissenting Member, and explained: “Although the Board is not obliged to agree with either the judge or its dissenting Member, the Board is obligated to confront evidence detracting from its conclusions, particularly where the dissenting Member has offered a non-frivolous analysis.” In that vein, the Court noted that the Board failed to even acknowledge the Employer’s zero-tolerance policy, or fully assess the evidence surrounding the post-discharge investigation which showed it was conducted “out of an abundance of caution.” Lastly, the Court held that the comparators used in the Board’s disparate treatment analysis were not similarly situated enough to be analogous.
The Court’s opinion is here.
ImageFIRST Uniform Rental Services, LLC, Board Case No. 22-CA-161563 (reported at 366 NLRB No. 182) (3d Cir. decided December 13, 2019).
In an unpublished opinion, the Court enforced the Board’s order issued against this commercial laundry that cleans linen for health care facilities out of a plant in Clifton, New Jersey. In July 2015, a campaign to organize the facility’s employees was initiated by the Laundry Distribution and Food Service Joint Board, Workers United, a/w Service Employees International Union. The Board (Members Pearce and Kaplan; Member Emanuel, dissenting in part) found that, during the organizing campaign, the Employer violated Section 8(a)(1) by, among other things, soliciting employee grievances and impliedly promising to remedy them in a manner different than before the union campaign, by granting benefits to employees to discourage union support, by discharging an unpopular supervisor and lead person, and by increasing the frequency and quality of food provided to employees. On review, the Court held that substantial evidence supported the Board’s findings, rejected the Employer’s challenges, and summarily enforced those portions of the Board’s order related to findings uncontested on appeal.
The Court’s unpublished opinion is here.
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Administrative Law Judge Decisions
United Steel, Paper and Forestry, Rubber, Manufacturing, Allied Industrial, and Service Workers Local 1-912 (Toledo Refining Company, LLC) (08-CB-238577; JD-91-19) Oregon, OH. Administrative Law Judge Arthur J. Amchan issued his decision on December 9, 2019. Charge filed by an individual.
United States Postal Service (28-CA-236666; JD(SF)-42-19) Albuquerque, NM. Administrative Law Judge Amita Baman Tracy issued her decision on December 10, 2019. Charge filed by National Association of Letter Carriers, Sunshine Branch 504, AFL-CIO.
Indiana Bell Telephone Company, Inc. (25-CA-218405; JD-92-19) Indianapolis, IN. Administrative Law Judge Michael A. Rosas issued his decision on December 11, 2019. Charge filed by Communication Workers of America, Local 4900.
Justice Energy, Inc. (09-CA-231106; JD-93-19) McDowell County, WV. Administrative Law Judge Geoffrey Carter issued his decision on December 12, 2019. Charge filed by International Union, United Mine Workers of America (UMWA).
International Union of Operating Engineers, Local 150, AFL-CIO (13-CP-227526, et al.; JD-94-19) Lemont, IL. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on December 13, 2019. Charges filed by Donegal Services, LLC, and Ross Builders, Inc.
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