Summary of NLRB Decisions for Week of February 16 - 19, 2021
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
Stericycle, Inc. (04-CA-137660, et al.; 370 NLRB No. 89) Southampton, PA, February 17, 2021.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with internal communications concerning the recoupment of health care deductions and 401(k) payments to unit employees, training material, a handbook, and its training video. The Board also adopted the judge’s conclusion that the Respondent’s 3-month delay in providing the Union with information concerning the vehicle backing program violated the Act. The Board further found, contrary to the judge, that the Respondent violated the Act by failing to provide the Union with slides in connection with its Team Member Experience program. In addition, the Board adopted the judge’s dismissals of the allegations that the Respondent violated the Act by implementing a plan to recoup healthcare premiums, refusing to provide requested 401(k) earnings statements and refusing to provide them on an ongoing basis, and refusing to provide additional information about the discipline of a supervisor.
A majority (Members Emanuel and Ring) reversed the judge and found that the Respondent did not have to provide the Union with bargaining notes regarding the healthcare and 401(k) provisions of the collective-bargaining agreement, concluding that parties must be able to formulate their strategies without fear of exposure. The same majority reversed the judge and found the Respondent did not violate the Act by unilaterally distributing an employee handbook, reasoning that the Respondent did not purport to make any changes to the terms in the collective-bargaining agreement or represent that the handbook would supersede the agreement.
Dissenting in part, Chairman McFerran found that the Respondent violated the Act by unilaterally distributing a handbook that conflicted with key provisions of the parties’ collective-bargaining agreement. Chairman McFerran also found that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with bargaining notes it had sought as part of its information requests related to potential grievances concerning its implementation of the healthcare and 401(k) provisions of the agreement.
Charges filed by Teamsters Local 628. Administrative Law Judge Michael A. Rosas issued his decision on November 10, 2016. Chairman McFerran and Members Emanuel and Ring participated.
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BS&B Safety Systems, LLC (14-CA-239530; 370 NLRB No. 90) Tulsa, OK, February 19, 2021.
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for engaging in union activities. A majority (Members Emanuel and Ring) reversed the judge to find that the Respondent did not violate Section 8(a)(4) and (1) by discharging an employee for cooperating with and assisting the Board in its proceedings. The majority found that the General Counsel did not meet his initial Wright Line burden of showing that animus against the employee’s Board activities, as opposed to his union activities, was a motivating factor in the Respondent’s decision to terminate him. Chairman McFerran would find it unnecessary to pass on whether the employee’s discharge also violated Section 8(a)(4), as doing so would not materially affect the remedy.
Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC. Administrative Law Judge Sharon Levinson Steckler issued her decision on October 21, 2019. Chairman McFerran and Members Emanuel and Ring participated.
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Elon University (10-RC-231745; 370 NLRB No. 91) Elon, NC, February 19, 2021.
The Board modified the test set forth in Pacific Lutheran University, 361 NLRB 1404 (2014), used to determine whether faculty members at colleges and universities are managerial employees. The Board’s modified framework involves two distinct inquiries: first, whether a faculty body exercises effective control over the Pacific Lutheran areas of consideration; and second, whether, based on the faculty’s structure and operations, the petitioning subgroup is included in that managerial faculty body. If both inquiries are satisfied, then the faculty members in the subgroup at issue constitute managerial employees, regardless of whether they exert majority control within specific faculty bodies. Applying the modified framework to the facts of the case, the Board found that the Employer had not met its burden to prove that the petitioned-for non-tenure-track faculty members are structurally included in the Employer’s faculty bodies, and therefore, had failed to prove that the petitioned-for employees are managerial. Chairman McFerran, concurring in the result, wrote separately to stress that the “structural inclusion” prong requires the Board to be sensitive to the unique interests of contingent faculty members, who often lack a meaningful voice in faculty governance.
Petitioner—SEIU Workers United Southern Region. Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.
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-256947, et al.) Kannapolis, NC, February 16, 2021. 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)(1) violations. Charges filed by National Association of Letter Carriers, AFL-CIO, Branch 2794. Chairman McFerran and Members Emanuel and Ring participated.
Logmet, LLC (09-CA-247369) Dayton, OH, February 17, 2021. The Board granted the General Counsel’s and Charging Party’s Requests for Special Permission to Appeal an order of the Administrative Law Judge, which granted in part and denied in part their motions to quash subpoenas issued by the Respondent. The Board stayed the judge’s order requiring production of documents pursuant to the subpoena pending its decision on the merits of the special appeal. Charge filed by Local Union No. 780, Motion Picture and Video Laboratory Technicians, Allied Crafts and Government Employees, IATSE. Chairman McFerran and Members Emanuel and Ring participated.
Chinchilla Theatrical Scenic, LLC (22-CA-200613) North Bergen, NJ, February 17, 2021. The Board denied Chinchilla Theatrical Scenic, LLC (Chinchilla) agent’s Petition to Revoke two investigative subpoenas duces tecum and an investigative subpoena ad testificandum; and Front Row Theatrical Rental, LLC and Entertainment Compensation Company, LLC’s Joint Petition to Revoke two investigative subpoenas duces tecum, as the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Petitioners failed to establish any other legal basis for revoking the subpoenas. The Board also denied Chinchilla agent’s request for attorney’s fees. Charge filed by International Alliance of Theatrical and Stage Employees, Local 8. Chairman McFerran and Members Emanuel and Ring participated.
AM/NS Calvert, LLC (15-CA-244523 and 15-CB-244598) Calvert, AL, February 19, 2021. The Board denied the Respondent’s Motion to Clarify the Status of Employer Respondent’s Motion for Summary Judgment and for a Section 102.24(b) Notice to Show Cause. The Board found that the Respondent’s Motion for Summary Judgment is moot because the Regional Director properly exercised her authority under Section 102.18 of the Board’s Rules and Regulations to withdraw sua sponte the complaints in this case prior to a hearing without obtaining approval from the Board. Charges filed by an individual.
Same Sun of Vermont (03-CA-262602) Rutland, VT, February 19, 2021. No exceptions having been filed to the January 7, 2021 decision of Administrative Law Judge Arthur J. Amchan’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 an individual.
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Appellate Court Decisions
Arbah Hotel Corp. d/b/a Meadowlands View Hotel, Board No. 22-CA-197658 (reported at 368 NLRB No. 119) (3d Cir. decided February 16, 2021).
In an unpublished opinion, the Court enforced the Board’s order issued against the operator of this hotel in North Bergen, New Jersey, for unfair labor practices committed after the expiration of its collective-bargaining agreement with New York Hotel and Motel Trades Council, AFL-CIO, the Union representing 30 of its housekeepers and other service employees. The Board (Chairman Ring and Members Kaplan and Emanuel) found that the hotel violated Section 8(a)(3) and (1) by discharging a housekeeper for her union activity, and violated Section 8(a)(5) and (1) by unilaterally barring a union representative from the property, and by failing to contribute to the UNITE HERE Health Fund, thereby causing the employees to lose health insurance for seven months. In the absence of exceptions, the Board summarily adopted the Administrative Law Judge’s findings that the hotel violated Section 8(a)(1) by threatening to unilaterally discontinue employees’ health-insurance coverage, and violated Section 8(a)(5) and (1) by dealing directly with employees and refusing to bargain with the Union since October 2017.
On review, the Court held that substantial evidence supported the contested findings. Agreeing with the Board, the Court held that the housekeeper was fired for complaining to the Union about working conditions and unfair treatment and rejected the hotel’s purported reasons for her discharge as pretextual. Further, the Court held that the hotel unlawfully barred the Union representative from its property. It explained that “a union needs to reach its members, even if the parties are between collective-bargaining agreements,” citing NLRB v. Unbelievable, Inc., 71 F.3d 1434 (9th Cir. 1995), and if the hotel had a problem with a union representative, it “must first discuss the problem with the union and try to work it out.” On the lapse of health insurance, the Court held that, even after the contract expired, the hotel “had no right to cancel its employees’ health insurance without a replacement.” In doing so, it rejected the hotel’s defensive contentions and enforced the order’s requirement that the hotel pay seven months of payments to the Union fund. Finally, the Court summarily enforced the uncontested portions of the Board’s order.
The Court’s unpublished decision may be found here.
Leggett & Platt, Inc., Board No. 09-CA-194057 (reported at 368 NLRB No. 132) (D.C. Cir. decided February 19, 2021).
In a published opinion, the Court granted, in part, the petition for review filed by this company that manufactures and sells innerspring mattresses at two facilities in Winchester, Kentucky, where a unit of its 295 production and maintenance employees had been represented since 1965 by the International Association of Machinists and Aerospace Workers (IAM), AFL-CIO. In doing so, the Court rejected the Board’s determination not to retroactively apply an intervening change in Board law. Further, given the Court’s resolution of the retroactivity issue, the Court held the petition for review filed by employee Purvis, which sought to challenge the Board’s denial of his motion to intervene in the unfair-labor-practice case, was moot.
In December 2016, employee Purvis circulated an antiunion petition, and by January 2017, when he had obtained signatures of a majority of employees, provided it to the Employer. Soon thereafter, the Employer informed the Union that it anticipated withdrawing recognition on the basis of the petition and informed the employees of changes it planned to their terms and conditions of employment. After receiving that notice, the Union held an open house at which it obtained the signatures of a majority of employees on a petition stating that they wished to continue being represented by the Union. The Union then sent the Employer a letter disputing its claim of loss of majority support, without mentioning its subsequent petition demonstrating its reacquired majority support. A week later, the Employer withdrew recognition and implemented its planned changes. After the Union filed charges and a complaint issued, Purvis and other employees filed a motion to intervene in the unfair-labor-practice proceeding, which the Regional Director denied.
The Board (Chairman Ring and Members McFerran and Kaplan), relying on the Union’s petition that contained signatures of a majority of employees stating their desire for continued representation, found that the Employer failed to show that, at the time of withdrawal, the Union had actually lost majority support. In doing so, the Board adhered to then-extant law, set forth in Levitz Furniture Co. of the Pacific, Inc., 333 NLRB 717 (2001), which cautioned that an Employer relying on a decertification petition to anticipatorily withdraw recognition does so at its peril, because an incumbent union can defeat that withdrawal by presenting evidence of reacquired majority status between the anticipatory withdrawal and the actual withdrawal upon contract expiration—referred to as the “last-in-time” principle. Thus, the Board concluded that the withdrawal and subsequent unilateral changes were unlawful. Additionally, the Board found that the Employer violated Section 8(a)(1) by directing an employee to meet with Purvis for the purpose of obtaining that employee’s signature on a second decertification petition that Purvis circulated in April 2017, while Board proceedings were under way. Lastly, the Board upheld the Regional Director’s denial of the motion to intervene.
While the case was previously pending before the D.C. Circuit, the Board issued Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019), which overruled Levitz’s “last-in-time” principle and foreclosed the incumbent union’s ability to “reacquire” majority status after an employer’s anticipatory withdrawal of recognition, and determined that its rule change should apply retroactively to “all pending cases.” Prior to briefing, the Court remanded the case for the Board to determine what effect, if any, Johnson Controls had on the case. On remand, the Board determined that retroactive application of Johnson Controls would work a manifest injustice in the case. Accordingly, the Board affirmed its prior findings that the withdrawal of recognition and subsequent unilateral changes were unlawful and issued a bargaining order.
Back before the D.C. Circuit, the Court agreed with the Employer that the Board’s determination not to apply Johnson Controls retroactively to this case was arbitrary and capricious, explaining that the Board “departed from its prior established precedent by not applying the Johnson Controls standard,” and emphasizing that the two cases were “factually indistinguishable.” Further, the Court held that, given its conclusion on the retroactivity issue, “it is plain that the Board’s bargaining order cannot stand.” On the unlawful-assistance finding, however, the Court upheld the Board’s finding that the Employer acted unlawfully by directing an employee to meet with Purvis to get him to sign the second decertification petition. Lastly, the Court noted that the Board upheld the Regional Director’s denial of Purvis’ motion to intervene, and that his petition for review of that ruling was moot given its disposition of the issue of retroactivity. The Court then remanded the case to the Board for the limited purpose of determining the proper remedy for the unlawful-assistance finding.
The Court’s opinion may be found here.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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