Summary of NLRB Decisions for Week of January 14 - 18, 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
Comprehensive at Orleans, LLC (03-CA-196513; 367 NLRB No. 70) Albion, NY, January 15, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to comply with the terms of a settlement agreement. The Board found that the Respondent violated Section 8(a)(5) and (1) by unilaterally modifying and failing to provide the contractual wage increases to bargaining unit employees as agreed upon in its collective-bargaining agreement with the Union. The Board found that the Respondent violated Section 8(a)(3) and (1) by failing to increase the wage of the Charging Party in conformity with the terms of the collective-bargaining agreement because he refrained from joining the Union and engaging in concerted activities, and to encourage employees to engage in these activities. The Board ordered the Respondent to comply with the unmet provisions of the settlement agreement by making the Charging Party and any other affected bargaining unit employee whole in the manner prescribed in the settlement agreement, providing records necessary to analyze the amount of backpay due, and filing a report of backpay with the Regional Director.
Charge filed by an individual. Members McFerran, Kaplan, and Emanuel participated.
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Alstate Maintenance, LLC (29-CA-117101; 367 NLRB No. 68) Brooklyn, NY, January 15, 2019. Errata to January 11, 2019 decision. Errata Amended Decision.
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Buddy’s Parking Company, LLC (13-CA-170510; 367 NLRB No. 67) Chicago, IL, January 16, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to comply with the terms of a settlement agreement. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain collectively and in good faith with the exclusive, collective-bargaining representative of its employees by refusing to furnish the Union with necessary and relevant information. The Board ordered the Respondent to comply with the unmet provisions of the settlement agreement by responding to the Union’s request in a timely manner.
Charge filed by Teamsters Local 727. Chairman Ring and Members McFerran and Emanuel participated.
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STP Nuclear Operating Company (16-CA-222349; 367 NLRB No. 73) Wadsworth, TX, January 16, 2019.
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 of certain employees as part of the existing unit, pursuant to a self-determination election.
Although Chairman Ring did not participate in the underlying representation proceeding, he agreed with his colleagues that granting summary judgment was appropriate, because the Respondent had not raised any litigable issue in this unfair labor practice proceeding Member McFerran, although she dissented from her colleagues’ denial of the Respondent’s Request for Review of the Union’s certification, agreed that the Respondent had raised no new evidence in the instant proceeding and that its defenses were, or could have been, litigated in the underlying representation proceeding. Accordingly, she joined her colleagues in granting summary judgment.
Charge filed by International Brotherhood of Electrical Workers, Local Union 66. Chairman Ring and Members McFerran and Emanuel participated.
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Tegna, Inc. d/b/a KGW-TV (19-CA-148474; 367 NLRB No. 71) Portland, OR, January 17, 2019.
The Board affirmed in part and reversed in part the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide information sought by the Union. The Board unanimously adopted the judge’s findings that some of the information sought was relevant and that the Respondent’s response to these requests was inadequate; and also unanimously dismissed other complaint allegations, finding that the information sought was not relevant or that the Respondent adequately responded to the requests. A Board majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting in part) further dismissed the complaint with respect to additional information requests.
Charge filed by International Brotherhood of Electrical Workers, Local 48, AFL-CIO. Administrative Law Judge Mara-Louise Anzalone issued her decision on December 20, 2016. Chairman Ring and Members McFerran and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Foster Poultry Farms (32-RD-230993) Fresno, CA, January 15, 2019. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Order Directing Hearing and Notice of Hearing on Objections and “Errata” and its Request to Stay the Hearing on Objections as moot. Although the Request to Stay the hearing was denied, the Board noted that the Employer is free to request review, should the Regional Director ultimately sustain the Union’s objections. Petitioner—an individual. Union—United Food and Commercial Workers 8-Golden State. Members McFerran, Kaplan, and Emanuel participated.
Embassy Suites by Hilton, Seattle Downtown Pioneer Square (19-RD-223236) Seattle, WA, January 15, 2019. The Board denied the Petitioner’s Request for Review of the Regional Director’s administrative dismissal of the petition, as it raised no substantial issues warranting review. Petitioner—an individual. Union—UNITE HERE! Local 8. Chairman Ring and Members McFerran and Kaplan participated.
Multicare Health System d/b/a Indigo Urgent Care (19-RC-221006) Seattle, WA, January 18, 2019. The Board denied the Employer’s Requests for Review of the Regional Director’s Decision and Direction of Election and his Supplemental Decision and Certification of Representative, as they raised no substantial issues warranting review. In denying review, the Board emphasized that the petitioned-for unit tracked the Employer’s own administrative grouping of clinics. It also stated that it was not relying on the Regional Director’s discussion of PCC Structurals, Inc., 365 NLRB No. 160 (2017), or on his statement that the Board considers functional integration and interchange to be the “more important” factors in determining the appropriateness of a petitioned-for unit. Petitioner—Union of American Physicians and Dentists a/w the American Federation of State County and Municipal Employees, Local 206 AFL-CIO. Chairman Ring and Members McFerran and Emanuel participated.
C Cases
National Rural Letter Carriers Association (United States Postal Service) (15-CB-213552) Denham Springs, LA, January 16, 2019. No exceptions having been filed to the November 30, 2018 decision of Administrative Law Judge Ira Sandron’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. Charge filed by an individual.
Consolidated Communications Holdings, Inc., d/b/a Consolidated Communications of Texas Company (16-CA-187792 and 16-CA-192050) Conroe, TX, January 18, 2019. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 366 NLRB No. 172 (2018), on the basis that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charges filed by Communication Workers of America, AFL–CIO, Local 6218. Chairman Ring and Members McFerran and Emanuel participated.
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Appellate Court Decisions
Airgas USA, LLC, Board Case No. 09-CA-189551 (reported at 366 NLRB No. 92) (6th Cir. decided January 14, 2019)
In an unpublished 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 McFerran, Kaplan, and Emanuel) found that the Employer violated Section 8(a)(4) and (1) by refusing to pay an employee for the two-day, Thanksgiving holiday in retaliation for filing charges with the Board, assisting with the investigation of charges, and testifying at a Board hearing.
Before the Board, the Employer did not dispute, under Wright Line, either the protected nature of the employee’s activities or that it knew of the activities. The Board found animus based on the timing of the pay denial and on a number of explicit statements by a high-ranking official that expressed disdain for the protected activities. The Board rejected the Employer’s defense that, even absent the protected activities, it would have withheld the employee’s holiday pay based on the terms of the collective-bargaining agreement. Finding the claim pretextual, the Board noted that it was based on discredited testimony and contrary to the record evidence that, in practice, the Employer paid other employees under similar circumstances.
On review, the Court held that the Board’s findings were supported by substantial evidence and consistent with law. Agreeing with the Board, the Court held that the official’s statements were “direct, relevant evidence” of animus, and rejected the Employer’s contention that the statements were irrelevant because the official was not the person responsible for the holiday-pay decision. Rather, the Court explained, the evidence showed that the official was “intimately involved” in the decision, and that in any event, “it is eminently reasonable to assume that high-level corporate managers speak on behalf of the company when they express anti-union animus.” Further, citing in-circuit precedent, the Court also rejected the Employer’s assertion that “a link, or nexus” between an employee’s protected activities and the adverse action was needed, emphasizing that “we have repeatedly and consistently” described Wight Line as requiring no such showing. Regarding the Employer’s affirmative defense, the Court agreed with the Board’s finding of pretext.
The Court’s unpublished opinion is here.
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Administrative Law Judge Decisions
Hearst Communications, Inc. d/b/a The San Francisco Chronicle (20-CA-212720; JD(SF)-39-18) San Francisco, CA, January 16, 2019. Errata to the December 13, 2018 decision of Administrative Law Judge Gerald M. Etchingham. Errata Amended Decision
Mike-Sell’s Potato Chip Company (09-CA-184215; JD-85-18) Dayton, OH, January 18, 2019. Errata to the December 27, 2018 supplemental decision of Administrative Law Judge Andrew S. Gollin. Errata Amended Decision
Demza Masonry, LLC (22-CA-208778 and 22-CA-220318; JD-04-19) Newark, NJ. Administrative Law Judge Robert A. Giannasi issued his decision on January 18, 2019. Charges filed by Local 4, Bricklayers and Allied Craftworkers’ Administrative District Council of New Jersey.
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