Summary of NLRB Decisions for Week of February 24 - 28, 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
Huber Specialty Hydrates, LLC (15-CA-168733, et al.; 369 NLRB No. 32) Bauxite, AR, February 25, 2020.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing the plant attendance policy during the term of its collective-bargaining agreement. The judge had relied on the “clear and unmistakable waiver” standard that was controlling Board law at the time of his ruling. Applying, instead, the “contract coverage” test that it recently articulated in MV Transportation, Inc., 368 NLRB No. 66 (2019), the Board ruled that the management-rights clause in the collective-bargaining agreement authorized the Respondent to unilaterally change the attendance policy subject to the Union’s rights to have input during a 7-day period and to challenge the reasonableness of the changes using the contractual grievance-arbitration procedure. As an alternative basis for reversing the judge and dismissing the Section 8(a)(5) and (1) unilateral change allegations, the Board concluded that, under Howard Industries, Inc., 365 NLRB No. 4 (2016), the management-rights clause amounted to a lawful agreed-upon procedure for making policy changes. Finally, the Board noted that there had been no exceptions to two other allegations that had been dismissed by the judge. Thus, the Board dismissed the entirety of the complaint.
Charges filed by United Steel Workers, Local 4880, and an individual. Administrative Law Judge Christine E. Dibble issued her decision on January 29, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Atlantic City Electric Company (04-CA-224253; 369 NLRB No. 33) Mays Landing, NJ, February 26, 2020.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the grounds 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. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.
Charge filed by International Brotherhood of Electrical Workers, Local 210. Members Kaplan and Emanuel participated. Chairman Ring, who is recused, was a member of the panel but did not participate in the decision on the merits.
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Keystone Printing, Inc., d/b/a Keystone Millbrook Printing Group (07-CA-246458; 369 NLRB No. 35) Grand Ledge, MI, February 27, 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)(5) and (1) by announcing the closure of its facility and the permanent layoff of unit employees without providing the Union prior notice and an opportunity to bargain about the effects of the decisions and by failing to continue in effect the terms and conditions of the collective-bargaining agreement concerning compensation for accrued vacation.
Charge filed by Graphic Communications Conference International Brotherhood of Teamsters Local 25-M of District Council 3. Chairman Ring and Members Kaplan and Emanuel participated.
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ADT, LLC d/b/a ADT Security Services (03-CA-184936 and 03-CA-192545; 369 NLRB No. 31) Albany and Syracuse, NY, February 27, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) when it bypassed the Union and dealt directly with a technician when it granted him an exemption from a newly-implemented, mandatory six-day workweek. However, the Board reversed the judge and found that the Respondent did not violate Section 8(a)(5) and (1) by unilaterally implementing the mandatory six-day workweek at its facilities for its service and installation technicians who were covered by its collective-bargaining agreements with the Union. Applying the “contract coverage” standard announced in MV Transportation, Inc., 368 NLRB No. 66 (2019), the Board determined that the implementation of a six-day workweek was within the compass or scope of language in the parties’ collective-bargaining agreements granting the Respondent the right to take that action unilaterally. The Board also found that the Respondent did not violate Section 8(a)(5) and (1) because it did not modify its collective-bargaining agreements with the Union within the meaning of Section 8(d) when it implemented the six-day workweek as it had a “sound arguable basis” for interpreting its collective-bargaining agreements as giving it the right to do so. Lastly, the Board reversed the judge and found that, because the Respondent had no duty to bargain over the change to a six-day workweek and the Union communicated to the Respondent that it was requesting information solely for the purpose of bargaining about that change, the Respondent did not violate Section 8(a)(5) and (1) by delaying in providing the Union with the requested information.
Charges filed by International Brotherhood of Electrical Workers, Local Union 43. Administrative Law Judge Michael A. Rosas issued his decision on August 4, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
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International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 720, AFL-CIO, CLC (Global Experience Specialists) (28-CB-107693 and 28-CB-113281; 369 NLRB No. 34) Las Vegas, NV, February 28, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent operated an exclusive hiring hall and that it violated Section 8(b)(1)(A) by failing and refusing to provide the dispatch information requested by an individual Charging Party. Additionally, the Board found that the judge erred in concluding that the Respondent violated Section 8(b)(2) by failing to provide the information because it was not alleged by the General Counsel.
Further, the Board adopted the judge’s conclusion that the Respondent violated Section 8(b)(1)(A) and (2) by applying its disciplinary rules to suspend another individual Charging Party from its referral service and prevent him from returning to work until he had paid all fines that had been levied against him. In adopting the judge’s conclusion, the Board noted that the Respondent’s enforcement of its disciplinary rules was patently arbitrary and inconsistent with its duty of fair representation that it owed the individual Charging Party.
Charges filed by individuals. Administrative Law Judge Lisa D. Thompson issued her decision on May 14, 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
Stericycle, Inc. (10-RC-233912) Haw River, NC, February 24, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. The Board stated that it strongly condemns the use of racist language, but found that the epithet in question was not sufficiently disseminated within the unit to justify setting aside the election. Similarly, Chairman Ring condemned an apparent threat by one unit employee regarding another for no longer supporting the Union, but agreed that the comment, in the absence of aggravating circumstances, did not warrant setting aside the election under extant precedent applying the third-party standard. Petitioner—Teamsters Local 391 a/w International Brotherhood of Teamsters. Chairman Ring and Members Kaplan and Emanuel participated.
Audio Visual Services Group LLC d/b/a PSAV (05-RC-232347) Lanham, MD, February 26, 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. In denying review, the Board applied The Boeing Company, 368 NLRB No. 67 (2019), which clarified that PCC Structurals, 365 NLRB No. 160 (2017), contemplates a three-step process for determining if a petitioned-for unit is appropriate and must include additional employees. Because the Acting Regional Director did not expressly apply the first step in her analysis, the Board independently assessed the internal community of interest of the petitioned-for unit of Riggers and Rigging Supervisors and concluded that they had a strong internal community of interest. With respect to the election mechanics, Chairman Ring and Member Kaplan noted that they viewed the four weeks provided for employees to return their ballots as excessive but that the Acting Regional Director’s decision in this regard was not an abuse of her discretion. Finally, Member Emanuel agreed with the decision to deny review but reiterated his view that the Board should consider restricting mail ballot elections to cases where a manual election is not feasible. Petitioner—International Alliance of Theatrical and Stage Employees, Local 22 a/w International Alliance of Theatrical and Stage Employees, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
The Transportation Corporation (22-CA-234445) Newton, NJ, February 24, 2020. The Board denied the Union’s Motion for Default Judgment alleging that the Respondent had failed to file a timely answer to the complaint and remanded the proceeding to the Regional Director for further appropriate action. Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
Midland Electrical Contracting Corp. (29-CA-144562 and 29-CA-144584) Staten Island, NY, February 26, 2020. The Board denied Mac Fhionnghaile & Sons Electrical Contracting, Inc.’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Petitioner failed to establish any other legal basis for revoking the subpoena. Charges filed by United Electrical Workers of America, IUJAT, Local 363. Chairman Ring and Members Kaplan and Emanuel participated.
Shamrock Foods Company (28-CA-177035) Phoenix, AZ, February 28, 2020. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 369 NLRB No. 5 (2020). The Board found that the Respondent had not raised any “extraordinary circumstances” warranting reconsideration. Charge filed by Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC. Chairman Ring and Members Kaplan and Emanuel participated.
Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino (28-CA-060841) Las Vegas, NV, February 28, 2020. The Board denied the Motion to Intervene filed by Communications Workers of America, AFL-CIO (CWA) and dismissed CWA’s Motion for Reconsideration as moot. CWA had moved to intervene and for reconsideration of the Board’s decision, reported at 368 NLRB No. 143 (2019), on the basis that the Board violated its due process rights by issuing that decision without prior notice that the decision could affect CWA’s position in a different pending case. The Board denied the Motion to Intervene on the bases that its Rules and Regulations do not allow for intervention after issuance of a decision and that CWA showed no prejudice stemming from the Board’s actions. Charge filed by International Union of Painters and Allied Trades, District Council 16, Local 159, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino (28-CA-060841) Las Vegas, NV, February 28, 2020. The Board denied the Union’s Motion for Reconsideration of the Board’s Decision and Order, reported at 368 NLRB No. 143 (2019). The Board found that the Union had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by International Union of Painters and Allied Trades, District Council 16, Local 159, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Concrete Express of NY, LLC (02-CA-220381, et al.) Bronx, NY, February 28, 2020. No exceptions having been filed to the December 27, 2019 decision of Administrative Law Judge Benjamin W. Green’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 Teamsters & Chauffeurs Local Union 456, IBT.
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Appellate Court Decisions
Troutbrook Company, LLC d/b/a Brooklyn 181 Hospitality, LLC, Board No. 29-CA-232891 (reported at 367 NLRB No. 139) (D.C. Cir. decided Feb. 28, 2020).
In an unpublished judgment that issued in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this operator of a hotel in Brooklyn, New York, after a majority of its housekeeping, front desk, bell, and food and beverage employees voted in a second election to be represented by New York Hotel and Motel Trades Council, AFL-CIO. In doing so, the Court held that the Board did not abuse its discretion in overruling the Employer’s objections to the rerun election that came after the first election was set aside due to an administrative error.
In the underlying representation case, after the Warehouse Production Sales & Allied Service Employees Union Local 811, AFL-CIO (Local 811), petitioned to represent the employees, the New York Hotel and Motel Trades Council, AFL-CIO (the Union), sought to represent the same unit and intervened. At the AFL-CIO’s request, the Regional Director for Region 29 issued an order holding the case in abeyance pending the AFL-CIO’s internal dispute-resolution procedure that applies when affiliated unions seek to represent the same unorganized unit.
After the case resumed, the Regional Director set an election to be held in June 2018, with both the Union and Local 811 on the ballot. The Union won a majority of the votes, and the Employer filed objections alleging misconduct by the Union, as well as administrative errors by the regional office. Because some objections alleged errors by Region 29, the Regional Director for Region 22 took over the case, found merit to one objection that alleged an error in the notice of election, and set aside the election. The Regional Director also granted Local 811’s request to withdraw, and directed a second election to be held in September 2018, which the Union won. The Employer then filed objections that alleged Union misconduct and administrative errors in the first election, which were nearly identical to its earlier objections. Because the objections concerned conduct relative to the first election, the Regional Director found that they alleged conduct that fell outside the critical period for the second election. After the Regional Director overruled the objections and certified the Union, the Employer filed a Request for Review, which was denied by the Board (Chairman Ring and Members McFerran and Kaplan). Thereafter, the Employer refused to bargain in order to seek court review.
On review, the Court reiterated that it overturns the Board’s certification of a bargaining representative “in only the rarest of circumstances,” and that “[t]his is not one of those rare cases.” On the challenges raised, the Court rejected the Employer’s contention that misconduct during the first election could reasonably be found to affect the second election, explaining that settled precedent limited the Board’s inquiry into misconduct to the second election’s “critical period,” when “improper acts are most likely to affect the employees’ freedom of choice.” Further, the Court agreed with the Board that the Employer failed to offer evidence in support of its “continuing impact” theory, and that Board decisions in which “narrow exception[s]” to the “critical period” rule were applied, had no resemblance to this case. Finding no merit to the Employer’s remaining arguments, the Court enforced the Board’s order.
The Court’s decision may be found here.
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Administrative Law Judge Decisions
Newport Meat Southern California, Inc. (21-CA-209861, et al.; JD(SF)-07-20) Irvine, CA. Administrative Law Judge Amita Baman Tracy issued her decision on February 25, 2020. Charges filed by General Truck Drivers, Office, Food & Warehouse Union, Local 952, International Brotherhood of Teamsters.
Imerys Carbonates USA, Inc. (10-CA-232952, et al.; JD-06-20) Whitestone, GA. Administrative Law Judge Arthur J. Amchan issued his decision on February 26, 2020. Charges filed by an individual and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 254-06, AFL-CIO.
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