Summary of NLRB Decisions for Week of July 13 - 17, 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
Argos USA LLC d/b/a Argos Ready Mix, LLC (12-CA-196002 and 12-CA-203177; 369 NLRB No. 118) Naples, FL, July 14, 2020.
In a supplemental decision, the Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by suspending a represented employee without giving the Union notice and an opportunity to bargain. The judge had analyzed this issue under the then-controlling precedent articulated in Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016). While the instant case was pending, the Board overruled Total Security in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020), and returned to the principle that no material change has occurred when an employer imposes discretionary discipline on a represented employee pursuant to its existing disciplinary policy or practice, and, therefore, that an employer has no pre-discipline obligation to bargain. Applying 800 River Road, the Board found that the suspension here did not violate the Act.
Charges filed by Construction and Craft Workers Local Union No. 1652, Laborers’ International Union of North America, AFL-CIO. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on May 14, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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20/20 Communications, Inc. (12-CA-165320; 369 NLRB No. 119) Fort Worth, TX, July 15, 2020.
The Board found that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that employees reasonably would believe bars or restricts their right to file charges with the Board. The Board found that the Agreement was an unlawful restriction on access to the Board’s processes due to the Agreement’s inadequate savings clause and prohibition on Board remedies.
Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on September 6, 2016. Chairman Ring and Members Kaplan and Emanuel participated.
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G&E Real Estate Management Services, Inc. d/b/a Newmark Grubb Knight Frank (28-CA-178893; 369 NLRB No. 121) Tucson, AZ, July 16, 2020.
The Board, reversing the Administrative Law Judge, found that the Respondent did not violate Section 8(a)(1) by maintaining six workplace policies in its employee handbook. Applying The Boeing Co., 365 NLRB No. 154 (2017), the Board found that an employee would not reasonably interpret the six policies potentially to interfere with NLRA rights and that each policy thus fit within Boeing Category 1(a). The Board further found that the Respondent violated Section 8(a)(1) by maintaining the footer “Confidential – For Internal Use Only” on each page of its employee handbook. The Board reasoned that there was no business justification that could outweigh the adverse impact on NLRA rights and thus the footer fit within Boeing Category 3.
Charge filed by an individual. Administrative Law Judge Robert A. Ringler issued his supplemental decision on November 8, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Five Corner Produce LLC d/b/a Cross Island Fruits (29-CA-257298; 369 NLRB No. 122) Lynbrook, NY, July 16, 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 failing and refusing to bargain a successor collective-bargaining agreement with the Union as the exclusive collective-bargaining representative of the unit.
Charge filed by Local 2013, United Food and Commercial Workers, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
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International Association of Machinists and Aerospace Workers, District Lodge No. 160 (SSA Terminals, LLC) (19-CD-238056; 369 NLRB No. 126) Seattle, WA, July 16, 2020.
In this Section 10(k) jurisdictional dispute proceeding, the Board awarded the work in dispute to employees represented by the International Association of Machinists & Aerospace Workers, District Lodge No. 160 (IAM), based on the factors of employer preference, past practice, skills and training, and economy and efficiency.
Charge filed by SSA Terminals, LLC. Members Kaplan and Emanuel participated. Chairman Ring, who was recused, was a member of the panel but did not participate in the decision on the merits.
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Union Tank Car Company (12-CA-210779, et al.; 369 NLRB No. 120) Valdosta, GA, July 17, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by maintaining a work rule prohibiting cell phone usage during work hours or in work areas, confiscating pro-Union literature the day before an election, and threatening employees by telling them the Respondent would find a pretextual reason to discharge employees if they failed to sign a decertification petition. The Board also found that the Respondent unlawfully told an employee that his suspension would have been only a warning absent Union representation. Further, the Board found unlawful the Respondent’s work rule that prohibited statements intended to injure the reputation of the Company or its management personnel with customers or employees due to its prohibition of protected activity. Finally, the Board found that the confiscation of Union literature from a break room the day before the election, combined with the one vote margin in the election, warranted a second election. Accordingly, the Board severed and remanded the representation petition to the Regional Director to conduct a second election.
Charges filed by International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART). Administrative Law Judge Arthur J. Amchan issued his decision on January 11, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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American Medical Response Mid-Atlantic, Inc. (05-CA-221233; 369 NLRB No. 125) Washington, DC, July 17, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by suspending an employee, issuing her a last chance agreement, and discharging her because she engaged in protected concerted activity. In reaching this conclusion, the Board relied on the judge’s findings that the employee engaged in protected concerted activity at a meeting in which she joined a fellow employee in protesting the employee’s suspension for violating the Respondent’s fuel policy and complained about the Respondent’s inconsistent application of that policy. Applying the four-factor test set forth in Atlantic Steel Co., 245 NLRB 814 (1979), the Board, contrary to the judge, found that the fourth Atlantic Steel factor (provocation) did not weigh in favor of protection, but nonetheless found that the employee did not lose the Act’s protection because the other three factors did weigh in favor of protection. Further, the Board found that the Respondent violated Section 8(a)(1) by placing the employee on unpaid administrative leave for engaging in protected concerted activity at the same meeting.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on July 18, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Triumph Aerostructures, Vought Aircraft Division (16-CA-197912, et al.; 369 NLRB No. 123) Red Oak, TX, July 17, 2020.
The Board dismissed the allegations that the Respondent violated Section 8(a)(5) and (1) by unilaterally imposing discretionary discipline on employees under its preexisting disciplinary policy after the Union had been certified but the parties had not yet entered into a collective-bargaining agreement. The Board relied on its recent decision in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020), in which it held that, upon commencement of a collective-bargaining relationship, employers do not have an obligation to bargain prior to disciplining unit employees in accordance with an established disciplinary policy or practice, overruling Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016). The Board further dismissed the allegation that the Respondent violated Section 8(a)(5) and (1) by laying off employees without negotiating to impasse. The Board found that impasse was established under the test set forth in Taft Broadcasting Co., 163 NLRB 475 (1967).
Charges filed by individuals and International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America Local 848. Administrative Law Judge Robert A. Ringler issued his decision on September 30, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Michigan Bell Telephone Company and AT&T Services, Inc., Joint Employers (07-CA-161545, et al.; 369 NLRB No. 124) Howell, MI, July 17, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5), (3), and (1) by unilaterally placing a full-time Union representative back in the workload and requiring him to fill out union activity logs. The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with relevant and necessary information. The Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining an unlawful confidentiality policy. The Board also remanded to the judge the complaint allegation that the Respondent violated Section 8(a)(3) and (1) by disciplining and discharging the Union representative.
Charges filed by Local 4034, Communications Workers of America (CWA), AFL-CIO. Administrative Law Judge Ira Sandron issued his decision on June 21, 2018. Chairman Ring and Member Kaplan participated. Member Emanuel, who was recused, was a member of the panel but did not participate in the decision on the merits.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel (28-RC-261253) Las Vegas, NV, July 13, 2020. The Board granted the Employer’s Request to Stay the mail-ballot to allow the Board time to fully consider the issues raised in the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election. Petitioner—Local Joint Executive Board of Las Vegas. Chairman Ring and Members Kaplan and Emanuel participated.
Brink’s Global Services USA, Inc. (29-RC-260969) Springfield Gardens, NY, July 14, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Order Denying Motion to Reopen the Hearing and Decision and Direction of Election as it raised no substantial issues warranting review. The Board also denied the Employer’s Request for Extraordinary Relief as moot. Petitioner—Law Enforcement Officers Security Unions (LEOSU), Law Enforcement Officers Security and Police Benevolent Association (LEOS-PBA). Chairman Ring and Members Kaplan and Emanuel participated.
Kumho Tires (10-RC-246475) Macon, GA, July 17, 2020. The Board denied the Employer’s and Petitioner’s Requests for Review of the Acting Regional Director’s Decision on Exceptions to the Hearing Officer’s Report as they raised no substantial issues warranting review. Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
United States Postal Service (10-CA-239552) Greenville, SC, July 14, 2020. 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)(5) and (1) violations. Charge filed by American Postal Workers Union, AFL-CIO, Local 168. Chairman Ring and Members Kaplan and Emanuel participated.
BS&B Safety Systems, LLC (14-CA-249322, et al.) Tulsa, OK, July 14, 2020. No exceptions having been filed to the June 1, 2020 decision of Administrative Law Judge Geoffrey Carter’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 United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO.
Vanguard Properties, Inc. (20-CA-254600) San Francisco, CA, July 15, 2020. The Board denied the Respondent’s Motion for Summary Judgment as the Respondent 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 an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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