Summary of NLRB Decisions for Week of February 10 - 14, 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
Atlanticare Management LLC d/b/a Putnam Ridge Nursing Home (02-CA-177329, et al.; 369 NLRB No. 28) Brewster, NY, February 11, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by promulgating and maintaining a rule prohibiting employees from engaging in union business on its property or during work hours; Section 8(a)(3) and (1) by discharging an employee for supporting the Union and by reducing unit employees’ annual merit wage increases because those employees selected the Union as their representative; and Section 8(a)(5) and (1) by failing and refusing to provide the Union with relevant information requested in bargaining, by refusing to meet with the Union at reasonable times to bargain, and by unilaterally reducing unit employees’ annual merit wage increases. In adopting the judge’s finding that the Respondent’s merit wage program was an established term and condition of employment that the Respondent was not privileged to unilaterally change once the unit employees selected the Union as their representative, the Board emphasized that the Respondent had maintained the merit wage program since acquiring ownership of the facility, annually provided unit employees with merit wage increases around their employment anniversaries, and used the employees’ performance appraisals to determine whether they received merit wage increases and the amounts thereof. The Board also adopted the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) by engaging in overall bad-faith bargaining.
Charges filed by 1199 SEIU United Healthcare Workers East. Administrative Law Judge Benjamin W. Green issued his decision on December 12, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
***
SCL Health, St. James Medical Group, Rock Mountain Clinic (19-CA-242468; 369 NLRB No. 29) Butte, MT, February 12, 2020.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.
Charge filed by Montana Nurses Association. Chairman Ring and Members Kaplan and Emanuel participated.
***
Safeway, Inc. (20-CA-221482; 369 NLRB No. 30) Eureka, CA, February 13, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union with requested information, and unreasonably delaying in informing the Union that requested information did not exist, which information was relevant to the Union’s performance of its duties as the collective-bargaining representative of the unit employees. The Board found that the Union established relevance by informing the Respondent that it needed the information to investigate whether the Respondent was violating the parties’ collective-bargaining agreement.
Charge filed by United Food and Commercial Workers, Local 5, United Food and Commercial Workers, AFL-CIO. Administrative Law Judge Amita Baman Tracy issued her decision on July 9, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
***
Seldat, Inc. (21-CA-240526, et al.; 369 NLRB No. 14) Compton, CA, February 14, 2020. Errata amending the attached Appendix—Notice to Employees of January 29, 2020 Decision. Errata Amended Decision.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
NP Palace LLC d/b/a Palace Station Hotel & Casino (28-CA-218622) Las Vegas, NV, February 14, 2020. The Board denied the Charging Party’s Motion for Reconsideration of the Board’s Decision and Order reported at 368 NLRB No. 148 (2019). The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by International Union of Operating Engineers Local 501, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
CM Energy, GP and its subsidiaries CM Energy Holdings, LP, CM Energy Facilities, LP and CM Energy Operations, LP, successors to Justice Highwall Mining, Inc. (06-CA-202855, 06-CA-200465 and 06-CA-198911) Coal Mountain, WV, February 14, 2020. The Board denied the Respondent’s Motion to Dismiss the consolidated complaint, finding no merit to the Respondent’s contention that the Board lacked jurisdiction over this proceeding under Section 10(b) of the Act. Charges filed by individuals and International Union, United Mine Workers of America, District 17, AFL-CIO, CLC. Chairman Ring and Members Kaplan and Emanuel participated.
***
Appellate Court Decisions
Dolgencorp, LLC, Board Case No. 14-CA-223328 (reported at 367 NLRB No. 48) (8th Cir. decided February 13, 2020).
In a published opinion, the Court enforced the Board’s bargaining order issued against this retail store in Auxvasse, Missouri, after its sales associates voted 4 to 2 in a December 2017 election to be represented by the United Food and Commercial Workers, Local 655. In doing so, the Court held that the Board did not abuse its discretion in overruling the Employer’s objections to the election, which alleged that the election should be set aside because an employee organizer unlawfully had threatened to slash the tires of coworkers if they did not vote for the Union and had offered a coworker $100 as an inducement to vote for the Union.
After a sales associate at the store became dissatisfied when the Employer cut his work hours and those of three coworkers, he contacted the Union. The Union advised him to gauge employee interest for union representation, which he did by speaking with coworkers over the next few days. After a sufficient number of employees signed union authorization cards, the Union filed a representation petition, and the election was held. Thereafter, the Employer filed objections to the election. Among other claims, the Employer alleged that the employee organizer, acting as a Union agent, had threatened to slash the tires of coworkers if they did not vote for the Union, and had offered a coworker $100 in exchange for her vote.
After a hearing and supplemental hearing, the Hearing Officer issued a report recommending that the objections be overruled. As an initial matter, the Hearing Officer found that the Employer had not established that the employee organizer was a Union agent. Regarding the alleged tire-slashing threat, the Hearing Officer found that even assuming the threat had occurred, it would have occurred prior to the “critical period” between the filing of the petition and the election, and thus was not objectionable under Ideal Electric & Manufacturing Co., 134 NLRB 1275 (1961). Regarding the employee’s offer of $100 to a coworker, the Hearing Officer found that the credited testimony established that the offer of financial assistance was unconditional and not made in exchange for a vote. The Acting Regional Director adopted the Hearing Officer’s recommendations and certified the Union. The Employer filed a Request for Review, which the Board (Members Pearce, Kaplan, and Emanuel) denied. Thereafter, the Employer refused to bargain in order to seek court review.
On review, the Court upheld the Board’s finding that the employee organizer was not a Union agent under the Employer’s theory that he was acting with the Union’s “apparent authority.” Specifically, the Court held that the Employer’s “apparent-authority theory is flawed to the extent that it relies on [the employee]’s own unilateral conduct,” actions which the Court noted “are not manifestations from the [u]nion,” as would be required. Rather, the Court explained, simply engaging in union campaign activity “does not establish apparent authority [of an employee] to act on the [u]nion’s behalf.” Regarding the tire-slashing allegation, the Court upheld the Board’s factual finding that, if it occurred, it took place before the Union filed its petition, and held that the Employer’s alternative argument that the Board misapplied Ideal Electric had not been preserved for court review under Section 10(e) of the Act. Regarding the allegation that the employee organizer offered $100 to a coworker in exchange for her vote, the Court upheld the Board’s finding that there was no evidence of objectionable conduct. Although the Court noted that the portion of the Board’s decision addressing the loan offer “lacks ideal clarity,” it found that, “read in context,” the Board’s rationale was “reasonably discernable.” The Court explained that, for its conclusion, the Board cited Cornell Forge Co., 339 NLRB 733 (2003), a case containing the standard for such nonthreatening third-party conduct, and adopted the Hearing Officer’s credibility determinations on the issue. Accordingly, the Court held that substantial evidence supported the Board’s findings, and enforced the bargaining order.
The Court’s opinion is here.
***
Administrative Law Judge Decisions
S & S Enterprises, LLC d/b/a Appalachian Heating (09-CA-235304, et al.; JD-01-20) Charleston, WV, February 14, 2020. Errata to January 15, 2020 decision of Administrative Law Judge David I. Goldman. Errata Amended Decision.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.