Summary of NLRB Decisions for Week of January 11 - 15, 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
Asociacion de Empleados del Estado Libre Asociado de Puerto Rico (12-CA-218502 and 12-CA-232704; 370 NLRB No. 71) San Juan, PR, January 14, 2021.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally decreasing employees’ Christmas bonuses in 2017 following expiration of the 2013-2017 collective-bargaining agreement. The Board found that the status quo under the expired agreement was for the Respondent to pay employees only the minimum bonus required under a local statute because “modifications” (i.e., higher bonuses conferred by the agreement) were limited to the years 2013-2016. The Board also reversed the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) within the meaning of Section 8(d) by again paying employees the minimum statutory bonus in 2018 and thereby modifying the parties’ extended agreement. The Board found that the Respondent had a sound arguable basis for interpreting the agreement to provide for “modifications” to the minimum statutory bonus only in specified years. Dissenting, Member McFerran would have found both alleged violations. In her view, the reduced bonuses did not comport with the language of the agreement and the parties’ experience and expectations under prior agreements.
Charges filed by Union Internacional de Trabajadores de la Industria de Automoviles, Aeroespacio e Implementos Agricolas, U.A.W., Local 1850. Administrative Law Judge Sharon Levinson Steckler issued her decision on November 6, 2019. Chairman Ring and Members Emanuel and McFerran participated.
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Nexstar Broadcasting, Inc. d/b/a KOIN-TV (19-CA-240187; 370 NLRB No. 72) Portland, OR, January 14, 2021.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with certain requested information needed to evaluate a bargaining proposal put forth by the Respondent.
Charge filed by National Association of Broadcast Employees & Technicians, The Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL-CIO. Administrative Law Judge Amita Baman Tracy issued her decision on August 27, 2020. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Shamrock Foods, Inc. (27-RD-260796) Meridian and Twin Falls, ID, January 13, 2021. The Board denied as moot the Petitioner’s and Employer’s Requests for Review of the Regional Director’s Decision and Order Dismissing Petition. Petitioner—an individual. Union—General Teamsters Warehousemen and Helpers Local 483. Chairman Ring and Members Kaplan, Emanuel, and McFerran participated.
Northwestern Corporation d/b/a Northwestern Energy (19-UC-261685) Butte, MT, January 14, 2021. The Board granted in part the Employer’s Request for Review of the Regional Director’s Decision and Order Clarifying Unit as it raised a substantial issue warranting review regarding whether the Regional Director correctly found that a newly created controller position performs the same basic functions as the Outage Management System dispatcher position to warrant clarifying that the controller position is properly viewed as already included in the unit. The Board denied the Request for Review in all other respects and denied the Employer’s request for a stay of the Decision and Order. Petitioner—International Brotherhood of Electrical Workers, Local 44. Chairman Ring and Members Kaplan and Emanuel participated.
Sysco Hampton Roads, Inc. (05-RC-245597) Suffolk, VA, January 14, 2021. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. Petitioner—International Brotherhood of Teamsters, Local Union 822. Members Kaplan, Emanuel, and McFerran participated.
C Cases
No Unpublished C Cases Issued.
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Appellate Court Decisions
Cordua Restaurants, Inc., Board Case No. 16-CA-160901 (reported at 368 NLRB No. 43) (5th Cir. decided January 11, 2021).
In a published opinion, the Court enforced the Board’s order that issued against this operator of numerous food-service businesses in the Houston metropolitan area, including nine restaurants where several hundred servers, busboys, and bartenders are employed. The Board (then-Chairman Ring and Members McFerran, Kaplan, and Emanuel), applying its Wright Line test for unlawful discrimination, found that the Employer violated Section 8(a)(1) when it discharged a server who had a public role as the lead plaintiff for a collective-action FLRA lawsuit against the Employer for wage-and-hour violations, and who was recruiting more coworkers to join the lawsuit. The Board also found that the Employer unlawfully maintained an overly broad blanket no-solicitation rule that prohibited “[s]olicitation on company premises.”
Before the Court, the Employer did not challenge the Board’s findings that the server engaged in protected activities by discussing payroll-related issues with his coworkers, filing the collective-action lawsuit, or requesting to access his own personnel records, or that those protected activities were known to the Employer. Rather, the Employer challenged only the Board’s finding that it harbored animus towards the server’s protected activities. Rejecting the Employer’s arguments, the Court held that substantial evidence supported the Board’s finding that the Employer exhibited “overt animus” in its surveillance and questioning of the server.
Regarding surveillance, the Court cited the record evidence that a manager photographed a text conversation between the server and a co-worker and sent the photographs to the Employer’s chief operating officer. The Court explained that “illicit surveillance of protected conduct indicates an employer’s opposition to [that conduct], and the furtive nature of the snooping tends to demonstrate spectacularly the state of the employer’s anxiety.” Regarding interrogation, the Court agreed with the Board’s finding of coercion, citing record evidence that the Employer pressured the server to grant it access to his personal cellphone and consistently denied his repeated requests to call his attorney. Further, the Court rejected the Employer’s challenges to the Board’s reliance on the timing of the Employer’s investigation into the server’s purported misconduct, its internally inconsistent statements, and its failure to conduct a meaningful investigation. Lastly, the Court summarily enforced the Board’s order regarding the unlawfully maintained no-solicitation rule.
The Court’s decision is here.
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Administrative Law Judge Decisions
Troy Grove, a Division of Riverstone Group Inc., and Vermillion Quarry, a Division of Riverstone Group, Inc. (25-CA-234477, et al.; JD-02-21) Countryside, IL. Administrative Law Judge Melissa M. Olivero issued her decision on January 11, 2021. Charges filed by International Union of Operating Engineers Local 150, AFL-CIO.
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