Summary of NLRB Decisions for Week of July 2 - 6, 2018
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
Glades Electric Cooperative, Inc. (12-CA-168580, et al.; 366 NLRB No. 112) Lake Placid, Moore Haven, and Okeechobee, FL, July 2, 2018.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by: (1) unilaterally eliminating the unit positions of mechanics and meter specialists and reassigning their work to the non-unit positions of transportation foremen and energy service agents; (2) refusing to accept and process a grievance; and (3) engaging in direct dealing with employees regarding severance pay. The Board also adopted the judge’s finding that the Respondent violated Section 8(a)(3) and (4) by transferring and then laying off two former meter specialists because of their union activities and because the Union filed and pursued unfair labor practice charges on their behalf. Finally, the Board adopted the judge’s finding that the Respondent violated Section 8(a)(1) by coercively interrogating an employee about his union sympathies and threatening to lay off the meter specialists because of their union and charge-filing activities.
Charges filed by International Brotherhood of Electrical Workers, Local 1933, AFL-CIO. Administrative Law Judge Charles J. Muhl issued his decision on June 1, 2017. Members Pearce, Kaplan, and Emanuel participated.
***
Colorado Symphony Association (27-CA-140724, et al.; 366 NLRB No. 122) Denver, CO, July 3, 2018.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by: (1) unilaterally implementing its initial contract proposal in the absence of a valid impasse; (2) unilaterally changing terms and conditions of employment; (3) dealing directly with employees about terms and conditions of employment; and (4) withdrawing recognition from the American Federation of Musicians of the United States and Canada, AFL-CIO/CLC (AFM). A Board majority (Members Pearce and McFerran) also adopted the judge’s findings that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide requested information to the AFM. Dissenting in part, Member Kaplan would dismiss the allegation that the Respondent violated Section 8(a)(5) and (1) by failing to provide the information requested by the AFM, finding that the Respondent has a legitimate confidentiality concern for refusing to proffer the requested information without a monetary damages provision in a proposed confidentiality agreement. He would not rely on this conduct when joining his colleagues in affirming the finding that the Respondent unlawfully implemented its initial contract proposal in the absence of a valid impasse. Additionally, Member Kaplan disagreed with his colleagues that the Respondent violated Section 8(a)(5) and (1) by making unilateral changes to musicians’ terms and conditions of employment when it recorded an interactive large-scale public arts project, finding that the General Counsel failed to prove this project involved video game work that fell within the AFM’s Video Game Agreement.
Charges filed by American Federation of Musicians of the United States and Canada, AFL-CIO/CLC. Administrative Law Judge Geoffrey Carter issued his decision on February 14, 2017. Members Pearce, McFerran, and Kaplan participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No unpublished R Cases Issued
C Cases
Walden Security, Inc. (14-CA-170110, 15-CA-176496, 16-CA-170337 and 18-CA-170129) Chattanooga, TN, July 2, 2018. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 366 NLRB No. 44 (2018), on the basis that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charges filed by United Government Security Officers of America, International Union, jointly with its Member Locals 85, 86, 109, 111, 173, 175, and 220. Members Pearce, Kaplan, and Emanuel participated.
***
Appellate Court Decisions
In-N-Out Burger, Inc., Board Case No. 16-CA-156147 (reported at 365 NLRB No. 39) (5th Cir. decided July 6, 2018)
In a published opinion, the Court enforced the Board’s order issued against this operator of more than 300 fast food restaurants bearing the name In-N-Out Burger, including one in in Austin, Texas, where the case arose after employees wore buttons demonstrating support for the “Fight for $15” campaign. The Board (Acting Chairman Miscimarra and Members Pearce and McFerran) found that the Employer violated Section 8(a)(1) by maintaining a prohibition on all unauthorized pins and stickers, and by instructing an employee to remove his “Fight for $15” button. Further, the Board (Miscimarra, dissenting) found that the Employer violated Section 8(a)(1) when a manager told another employee that the button was not part of the uniform.
On review, the Court recognized the settled principles that employees have the right to wear such items as buttons, pins, and stickers that relate to terms and conditions of employment, citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), and that the Board will find an employer’s work rule that infringes upon the employees’ Section 7 right to wear protected items “presumptively invalid,” unless the employer carries its burden of establishing “special circumstances” that would outweigh the employees’ right. Noting that the rule in this case bans employees from “[w]earing any type of pin or stickers,” the Court held the rule was presumptively invalid. The Employer argued that its unique public image and its concern for food safety constituted special circumstances sufficient to overcome the presumption.
Assessing the Employer’s public-image contention, the Court held that there was no demonstrated connection between the “Fight for $15” buttons and the Employer’s asserted interests in preserving a consistent menu and ownership structure, ensuring excellent customer service, and maintaining a “sparkling clean” environment in its restaurants, and that the Employer had not established its asserted interest in maintaining consistent, unadorned employee uniforms as part of its public image. Moreover, the Court agreed with the Board that the Employer’s requirements that twice a year employees wear larger, more noticeable “Christmas and In-N-Out Foundation buttons,” undercut its claim that employee uniforms needed to remain consistent and button-free. Rejecting the Employer’s food-safety contention, the Court noted, as the Board had, that its rule banned all buttons, other than its own, “without regard to their safety,” and that the Employer had failed to show that its ban was a genuine, narrowly tailored rule based on food-safety concerns. Finally, the Court upheld the Board’s finding that it was unlawful for the manager to have told an employee that the “Fight for $15” button was not part of the uniform because it would have been understood as an instruction to not wear the button.
The Court’s opinion is here.
***
Administrative Law Judge Decisions
Fred Meyer Stores, Inc. (19-CA-206136; JD(SF)-18-18) Portland, OR. Administrative Law Judge Jeffrey D. Wedekind issued his decision on July 2, 2018. Charge filed by United Food & Commercial Workers, Local 555.
Center Line Studios, Inc. (02-CA-185189; JD(NY)-08-18) New York, NY. Administrative Law Judge Jeffrey P. Gardner issued his decision on July 2, 2018. Charge filed by International Alliance of Theatrical Stage Employees, Local 311.
Electrolux Home Products, Inc. (15-CA-206187; JD-42-18) Memphis, TN. Administrative Law Judge Arthur J. Amchan issued his decision on July 2, 2018. Charge filed by an individual.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.