Summary of NLRB Decisions for Week of February 25 - March 1, 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
Teamsters “General” Local Union No. 200, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (18-CB-202802; 367 NLRB No. 93) Milwaukee, WI, February 26, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(b)(1)(A) and (2) by causing the Employer to deduct union dues from an employee’s pay after he returned to work for the Employer without a valid dues-checkoff authorization in place. The Board emphasized that in determining whether a dues checkoff authorization will be effective after an employee’s separation and return to employment, the Board will examine whether the checkoff authorization contains a “clear and unmistakable” waiver of the individual employee’s statutory right to refrain from supporting the union. Further, in affirming the judge’s conclusion that the complaint was not time-barred under Section 10(b), the Board agreed that the judge properly relied on Kroger Co., 334 NLRB 847 (2001), where the Board held that each occurrence of the unlawful dues deduction constitutes a separate violation. The Board explained that the Section 10(b) standard set forth in Kroger focuses on the repeated denial of the individual employee’s statutory right to refrain from supporting the union.
Charge filed by an individual. Administrative Law Judge Charles J. Muhl issued his decision on June 6, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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UNITE HERE! Local 5 (Hyatt Corporation d/b/a Hyatt Regency Waikiki) (20-CB-127565 and 20-CB-127695; 367 NLRB No. 96) Honolulu, HI, February 26, 2019.
Upon remand from the D.C. Circuit, the Board, applying the law of the case, reversed its dismissal of the allegation that the Respondent violated Section 8(b)(1)(A) and found that the Respondent’s letter reasonably tended to restrain or coerce nonmember unit employees in the exercise of their statutory right to limit their association with the Respondent.
Charges filed by individuals. Administrative Law Judge John J. McCarrick issued his decision on September 18, 2015. Members McFerran, Kaplan, and Emanuel participated.
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Cott Beverages Inc. (16-CA-181144; 367 NLRB No. 97) San Antonio, TX, February 27, 2019.
In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by coercively interrogating its employees about their protected concerted activity. Also, the Board ordered a post-Boeing Notice to Show Cause with respect to the judge's finding that two work rules prohibiting cell phones in work areas were unlawful.
Charge filed by an individual. Administrative Law Judge Paul Bogas issued his decision on September 12, 2017. Members McFerran, Kaplan, and Emanuel participated.
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Recology Hay Road (20-UC-191943; 367 NLRB No. 32) Vacaville, CA, February 27, 2019.
The Board reversed the Regional Director’s Decision and Clarification of Bargaining Unit and found that the Petitioner did not meet the heavy burden of establishing accretion is appropriate because the Employer’s Material Receiving Coordinators have some separate group identity connected to their performance of a new job function reviewing unit employees’ work, and do not share an overwhelming community of interest with unit employees, particularly given this review function and the absence of interchange.
Petitioner—Teamsters Local 315. Chairman Ring and Members Kaplan and Emanuel participated.
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El Rio Bakery, Inc. (28-CA-216755 and 28-CA-221086; 367 NLRB No. 99) Tucson, AZ, February 28, 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)(1) by discharging or constructively discharging certain employees because they engaged in protected concerted activity; reducing certain employees’ work hours because they engaged in protected concerted activity; requiring certain employees to complete new job applications because they engaged in protected concerted activity; and creating the impression among its employees that their protected concerted activities were under surveillance. The Board further found that the Respondent violated Section 8(a)(4) by reducing certain employees’ work hours and discharging and/or constructively discharging them because they cooperated in a Board investigation.
Charges filed by an individual and Workers’ Rights Clinic, James E. Rogers College of Law, University of Arizona. Chairman Ring and Members Kaplan and Emanuel participated.
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Schuylkill Medical Center South Jackson Street d/b/a Lehigh Valley Hospital – Schuylkill South Jackson Street and Schuylkill Medical Center East Norwegian Street d/b/a Lehigh Valley Hospital – Schuylkill East Norwegian Street (04-UC-200537 and 04-UC-200541; 367 NLRB No. 100) Pottstown, PA, February 28, 2019.
On review, a unanimous Board panel reversed the Regional Director and found that an accretion was unwarranted, dismissing the consolidated UC petition. Petitioner—SEIU Healthcare Pennsylvania. Chairman Ring and Members McFerran and Kaplan participated.
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United Nurses and Allied Professionals (Kent Hospital) (01-CB-011135; 367 NLRB No. 94) Providence, RI, March 1, 2019.
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) found that the Union violated Section 8(b)(1)(A) by failing to provide nonmember objectors with an audit verification letter in support of the Union’s claim of expenses chargeable to a Beck objector. The Board also found that the Union violated Section 8(b)(1)(A) by charging nonmember objectors for any lobbying expenses. Member McFerran, dissenting, agreed with requiring unions to provide verification that the financial information has been audited, but she disagreed with retroactively applying the new rule to this case. In addition, Member McFerran would find some lobbying expenses chargeable on an expenditure-by-expenditure basis when germane to collective bargaining, contract administration, or grievance adjustment.
Charge filed by an individual. Administrative Law Judge Joel P. Biblowitz issued his decision on March 30, 2011. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Semper Fi Plumbing and Heating, Inc. (27-CA-177225; 367 NLRB No. 98) Morrison, CO, March 1, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with the provisions of the parties’ bilateral informal settlement agreement. The case alleges Section 8(a)(5), (3), and (1) violations. The remedy orders the Respondent to comply with the unmet terms of the settlement agreement.
Charge filed by Journeymen Plumbers and Gas Fitters Local Union No. 3. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Peco Energy Company (04-RC-223713) Philadelphia, PA, February 26, 2019. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as moot. Petitioner—International Brotherhood of Electrical Workers, AFL-CIO, Local 614. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Sysco Grand Rapids, LLC (07-CA-206108 and 07-CA-206109) Grand Rapids, MI, February 25, 2019. No exceptions having been filed to the January 11, 2019 decision of Administrative Law Judge David I. Goldman’s 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. Charges filed by General Teamsters Local Union No. 406, International Brotherhood of Teamsters.
Boulder Contracting, Inc. (10-CA-189876 and 10-CA-193007) Canton, GA, February 27, 2019. The Board denied the Employer’s Petitions to Revoke 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 Employer failed to establish any other legal basis for revoking the subpoenas. Charges filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
Montecito Heights Healthcare & Wellness Centre, LP (31-CA-129747) Los Angeles, CA, February 27, 2019. The Board denied the Charging Party’s Motion for Reconsideration of the Board’s Decision and Order, reported at 367 NLRB No. 57 (2019). The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by Service Employees International Union, United Long Term Care Workers. Chairman Ring and Members Kaplan and Emanuel participated.
Thesis Painting, Inc. (05-CA-167137) Springfield, VA, February 28, 2019. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 365 NLRB No. 142 (2017). The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Chairman Ring and Member Kaplan noted that they had not participated in the underlying decision but agreed that reconsideration is not warranted. Charge filed by International Union of Painters and Allied Trades, AFL-CIO, District Council 51. Chairman Ring and Members McFerran and Kaplan participated.
Safeway, Inc. (Tracy Distribution Center) (32-CA-222546) Tracy, CA, February 28, 2019. The Board denied the Respondent’s Motion for Summary Judgment, or, in the alternative, Partial Summary Judgment, finding that the Respondent had failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charge filed by Teamsters Local 439, International Brotherhood of Teamsters. Chairman Ring and Members McFerran and Kaplan participated.
We Work Companies, Inc. (32-CA-173569) Berkeley, CA, March 1, 2019. The Board found that, in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint allegation that the Respondent’s maintenance of its mandatory arbitration agreement violated Section 8(a)(1) must be dismissed. The Board remanded to the Regional Director the following separate issues, before the Board on the parties’ motions for summary judgment, whether the Respondent violated Section 8(a)(1) by: maintaining an arbitration agreement that prohibits or restricts employee access to the Board and includes an overbroad confidentiality provision; maintaining a non-disclosure agreement that includes an unlawful non-disparagement clause and overbroad restrictions on the disclosure of personnel data; and discharging an employee because she refused to sign the arbitration and non-disclosure agreements. As to these latter allegations, the Board observed that, when the parties filed their pending motions, the issue whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would be resolved based on the “reasonably construe” prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). The Board noted that it subsequently issued its decision in The Boeing Company, 365 NLRB No. 154, in which it overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases. The Board found that, under the standard announced in Boeing, the parties’ motions do not establish that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law as to these complaint allegations. Charge filed by an individual. Members McFerran, Kaplan, and Emanuel participated.
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Appellate Court Decisions
Meyer Tool, Inc., Board Case No. 09-CA-185410 (reported at 366 NLRB No. 32) (2d Cir. decided February 26, 2019)
In an unpublished summary order, the Court enforced the Board’s order issued against this manufacturer of components and parts for aerospace and industrial gas turbine engines with a facility in Cincinnati, Ohio. The Board (then-Chairman Kaplan and Member Pearce; Member Emanuel, concurring) found that the Employer violated Section 8(a)(1) when it summoned the police to remove, indefinitely suspended, and ultimately discharged an employee for engaging in protected, concerted activity after he and two other employees raised concerns to managers about a plan to create a new night-shift supervisor position.
Before the Court, the Employer argued principally that the employee had not engaged in protected, concerted activity, but instead raised only individual concerns. Rejecting that contention, the Court held that substantial evidence supported the Board’s finding that the employee and two others joined together in their complaints. The Court also held that the fact that the employee “also complained about his personal treatment by management does not defeat a finding that he engaged in concerted, protected activity.” Further, the Court upheld the Board’s application of Atlantic Steel in finding that the employee did not lose the protection of the Act when he argued with a manager and resisted the manager’s direction that he leave the premises immediately or the police would be called. Without comment, the Court rejected the Employer’s remaining arguments and granted enforcement.
The Court’s summary order may be found here.
Airgas USA, LLC, Board Case No. 09-CA-158662 (reported at 366 NLRB No. 104) (6th Cir. decided February 21, 2019)
In a published opinion, the Court enforced the Board’s order that issued against this distributer of industrial gasses and related products that operates a facility in Cincinnati, Ohio, where its drivers are represented by the International Brotherhood of Teamsters, Local 100. The Board (Members Pearce and McFerran; Member Kaplan, dissenting) found that the Employer violated Section 8(a)(4) and (1) by issuing a written warning to a driver in retaliation for filing charges with the Board. The reason provided for disciplining him was a safety violation involving tilting gas cylinders on his truck bed that the Employer’s operations manager observed when the driver returned from his morning route.
Before the Board, the Employer did not dispute that it knew that the employee had filed unfair-labor-practice charges, and that it was beyond doubt that the filing of charges is a protected activity. On the issue of motivation, the Board found that the employee’s filing of charges was a motivating factor in the Employer’s decision to issue him the written warning, rather than a lower-level form of discipline such as a verbal warning. In doing so, the Board relied on credited evidence of close timing, the specific actions of the Employer’s operations manager on the day of the incident which contradicted his purported concern for safety, disparate treatment relative to other employees who received verbal warnings for comparable offenses, and the pretextual nature of the Employer’s shifting explanations for issuing the written warning. The Board rejected the Employer’s defense that, even absent the protected activity, it would have issued that degree of discipline, finding the claim contrary to the credited evidence.
On review, the Court concluded that the Board’s findings were supported by substantial evidence and consistent with law. On the issue of anti-union animus, the Court found that the Employer’s claims principally relied on the discredited testimony of its operations manager. The Court also put weight on the Employer’s failure to conduct a meaningful investigation prior to the discipline, and other surrounding circumstances. The Court further held that the timing of events, and the disparate treatment of other disciplined employees supported a finding of unlawful motive. Regarding the Employer’s defense that it was motivated by safety concerns, the Court upheld the Board’s finding of pretext. In rejecting the Employer’s view of the facts, the Court commented that “[s]imply showing that evidence supports an alternative story is not enough,” and that under the standard of review, the Employer “must show that the Board’s [finding] is unreasonable.”
The Court’s opinion is here.
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Administrative Law Judge Decisions
SSA Pacific, Inc. (20-CA-151433, et al.; JD(SF)-06-19) Port of West Sacramento, CA. Administrative Law Judge Mara-Louise Anzalone issued her decision on February 27, 2019. Charges filed by individuals.
Nexstar Broadcasting, Inc. d/b/a KOIN-TV (19-CA-219985 and 19-CA-219987; JD-21-19) Portland, OR. Administrative Law Judge Robert A. Giannasi issued his decision on February 27, 2019. Charges filed by National Association of Broadcast Employees & Technicians, The Broadcasting and Cable Television Workers Sector of the Communication Workers of America, Local 51, AFL-CIO.
Dycora Transitional Health – Fresno, LLC (32-CA-215700 and 32-RD-213130; JD(SF)-07-19) Fresno, CA. Administrative Law Judge Ariel L. Sotolongo issued his decision on February 28, 2019. Charges filed by Service Employees International Union Local 2015 and an individual.
Rohm and Haas Texas Incorporated, a subsidiary of Dow Chemical Company (16-CA-218857; JD-22-19) Deerfield Park, TX. Administrative Law Judge Ira Sandron issued his decision on March 1, 2019. Charge filed by United Steelworkers of America, AFL-CIO-CLC.
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