Summary of NLRB Decisions for Week of July 29 - August 2, 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
National Hot Rod Association (02-CA-185569, 22-CA-190221, et al.; 368 NLRB No. 26) New York, NY, July 29, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by soliciting employee grievances and impliedly promising to remedy them and by advising employees that they could not be rehired for the following year until after the union election, and possibly even longer if the Union won. The Board also agreed with the judge’s decision to overrule the Respondent’s objections to the election. The Board reversed the judge to find that the Respondent did not violate Section 8(a)(1) by creating the impression that employees’ union activities were under surveillance. The Board also reversed the judge to find that the Respondent did not violate Section 8(a)(3) and (1) when it discharged an employee for failing to carry out his job duties. The Board found that, even assuming the General Counsel satisfied his Wright Line burden of showing that the employee’s union activity was a motivating factor in his discharge, the Respondent established it would have discharged him even in the absence of his union activities. Finally, because all the challenged ballots had been resolved, the Board issued a Certification of Representative.
Charges filed by International Alliance of Theatrical Stage Employees. Administrative Law Judge Benjamin W. Green issued his decision on November 9, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Conventions Unlimited, Inc. d/b/a Convention Services of Louisiana (15-CA-230783; 368 NLRB No. 27) River Ridge, LA, July 30, 2019.
The Board granted the General Counsel’s Motion for Default Judgement 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 furnish the Union with requested information that is relevant and necessary to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit employees.
Charge filed by International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, AFL-CIO (IATSE), Local 39. Chairman Ring and Members McFerran and Kaplan participated.
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Sears, Roebuck and Co. (13-CA-191829; 368 NLRB No. 30) Pueblo, CO, July 30, 2019.
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union based on a petition that employees signed and presented to it 3 weeks before the end of the certification year. The majority (Chairman Ring and Member Kaplan) affirmed the judge’s dismissal of the allegations that the Respondent violated Section 8(a)(1) by providing more than ministerial aid to employees in removing the Union and that the Respondent’s withdrawal of recognition was also unlawful because the petition was tainted. Dissenting in part, Member McFerran would have reversed the judge and found the alleged Section 8(a)(1) violations.
Charge filed by Local 881 United Food and Commercial Workers. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on August 17, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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Stern Produce Company, Inc. (28-CA-163215, et al.; 368 NLRB No. 31) Phoenix, AZ, July 31, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by interrogating employees about their union sympathies; making various threats, including “hallmark” threats of job loss, layoffs, and facility closure; creating the impression that employees’ union activities were under surveillance; promising to improve employees’ working conditions, salaries, insurance, and positions if employees voted against union representation; and promising that the Respondent’s owner would fix a workers’ compensation problem. The Board also adopted the judge’s dismissal of separate allegations that the Respondent violated Section 8(a)(1) by interrogating an employee, creating the impression of surveillance, threatening employees with wage loss, telling employees not to pay attention to the Union and that the Union would not be able to do anything for them because the Respondent was the one with the last word, and discouraging employees from participating in the Board’s investigation by telling them that the Respondent could not help them with their work orders because it had to continue answering Board charges.
The Board reversed two of the judge’s Section 8(a)(1) findings. The majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting) found, contrary to the judge, that the Respondent did not violate Section 8(a)(1) by threatening its employees that a strike or lockout was inevitable if they selected the Union as their collective-bargaining representative. The Board unanimously found that the Respondent did not violate Section 8(a)(1) by telling employees that choosing union representation would result in their no longer having direct dealings with the Respondent’s owner and having to wait until the Union negotiated with him.
Reversing the judge, the same majority found that there was substantial doubt as to the enforceability of a Gissel bargaining order due to the lapse in time between the Respondent’s unfair labor practices and the issuance of the Board’s decision, and because the Respondent’s “hallmark” violations were witnessed by only three employees and there was no evidence that they were disseminated beyond those three. Consistent with the Board’s recent decision in Sysco Grand Rapids, LLC, 367 NLRB No. 111 (2019), the majority ordered extraordinary remedies, including notice reading, special union-access remedies, and a broad cease and desist order. Member McFerran would have found that a remedial bargaining order was necessary and would have denied the Respondent’s related motion to reopen the record to introduce evidence of changed circumstances.
Charges filed by United Food and Commercial Workers Union, Local 99. Administrative Law Judge Lisa D. Thompson issued her decision on December 14, 2017. Chairman Ring and Members McFerran and Kaplan participated.
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The Arc of South Norfolk (01-RC-213174; 368 NLRB No. 32) Westwood, MA, July 31, 2019.
The Board reversed the Acting Regional Director and found that the Employer’s program coordinators are supervisors within the meaning of Section 2(11) because they possess the authority to assign caseloads to employees and utilize independent judgment in doing so.
Petitioner—American Federation of State, County and Municipal Employees, Council 93. Chairman Ring and Members Kaplan and Emanuel participated.
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Bob’s Tire Co., Inc. and B.J.’s Service Company, Inc. (01-CA-183476; 368 NLRB No. 33) New Bedford, MA, July 31, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by subcontracting bargaining unit work without first notifying the Union and giving it an opportunity to bargain. The Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to pay its employees a Christmas bonus in 2015 without giving the Union prior notice and an opportunity to bargain.
Charge filed by United Food and Commercial Workers International Union, Local 328. Administrative Law Judge Arthur J. Amchan issued his decision on December 7, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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THC-Seattle, LLC d/b/a Kindred Hospital Seattle – First Hill (19-CA-227218; 368 NLRB No. 36) Seattle, WA, July 31, 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)(5) and (1) by failing and refusing to furnish the Union with requested relevant information related to the Respondent’s investigation of an employee’s internal complaint.
Charge filed by SEIU Healthcare 1199 NW. Chairman Ring and Members McFerran and Kaplan participated.
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Challenge Manufacturing Company, LLC (07-CA-199352; 368 NLRB No. 35) Holland, MI, August 1, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by threatening an employee with unspecified reprisals for engaging in protected concerted activity and by creating the impression that such activities were under surveillance by the Respondent, and violated Section 8(a)(3) and (1) by discharging an employee for his union activity.
Charge filed by an individual. Administrative Law Judge Paul Bogas issued his decision on September 5, 2018. Members McFerran, Kaplan, and Emanuel participated.
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Liberty Retirement Community of Lima, Inc., Liberty Healthcare Corp., Liberty Retirement Properties of Lima, Ltd., Liberty Villas of Lima, Inc. and Liberty Nursing Properties of Woodland Manor, Ltd., a single employer and Plus Management Services, Inc. d/b/a Baton Rouge Medical & Rehab Center of Lima, joint employers (08-CA-198572 and 08-CA-201287; 368 NLRB No. 37) Lima, OH, August 1, 2019.
The Board granted the General Counsel and Respondent Liberty’s Joint Motion for Summary Judgment finding that Respondent Liberty, a successor employer, violated Section 8(a)(5), (4), (3), and (1) by discharging employees because they engaged in union and protected concerted activity, filed charges, and/or gave testimony under the Act; by withdrawing recognition and refusing to bargain in good faith with the Union; by changing terms and conditions of employment without notifying the Union and giving it an opportunity to bargain; and by failing and refusing to furnish the Union with requested information.
Charges filed by Ohio Council 8, American Federation of State, County and Municipal Employees, AFL-CIO. Chairman Ring and Members McFerran and Kaplan participated.
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Marburn Academy, Inc. ( 09-CA-224092; 368 NLRB No. 38) New Albany, OH, August 1, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated the Act by: (1) disciplining, withdrawing an employment contract, and discharging an employee because of her protected, concerted activity; (2) conditioning the employee’s continued employment on her agreeing to refrain from engaging in protected, concerted activity in the future; and (3) requiring the employee to follow the Respondent’s Problem-Solving System to resolve disagreements and to commit to seeking out the lower division head, associate head of school, and/or head of school to assist in the process.
Charge filed by an individual. Administrative Law Judge Andrew S. Gollin issued his decision on February 14, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Electrolux Home Products, Inc. (15-CA-206187; 368 NLRB No. 34) Memphis, TN, August 2, 2019.
The Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) when it discharged an employee for insubordination. Pursuant to Wright Line, 251 NLRB 1083 (1980), the majority found that the record as a whole did not contain sufficient evidence to support an inference of anti-union animus. Dissenting, Member McFerran found that, under Wright Line and longstanding Board precedent, a finding of pretext precludes a conclusion that the Respondent acted lawfully and would have adopted the judge’s finding of a violation. The Board unanimously adopted the judge’s recommended dismissal of the allegation that the Respondent independently violated Section 8(a)(1) by discharging an employee for engaging in protected concerted activities.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on July 2, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
ADT, LLC, d/b/a ADT Security Services (03-CA-230714 and 03-CA-234585) Orem, UT, July 29, 2019. No exceptions having been filed to the June 17, 2019 decision of Administrative Law Judge Arthur J. Amchan’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 International Brotherhood of Electrical Workers, Local Union 43.
Entergy Nuclear Operations, Inc. (01-CA-153956, et al.) Plymouth, MA, July 30, 2019. No exceptions having been filed to the June 4, 2019 decision of Administrative Law Judge Paul Bogas’ 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 Government Security Officers of America, Local 25.
International Alliance of Theatrical Stage Employees (IATSE), Local 127 (The Texas Ballet Theatre) (16-CB-219221 and 16-CB-226852) Dallas, TX, July 30, 2019. No exceptions having been filed to the June 18, 2019 decision of Administrative Law Judge Keltner W. Locke’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 an individual.
Capay, Inc. d/b/a Farm Fresh To You (20-CA-215451, et al.) West Sacramento, CA, August 1, 2019. In this case alleging Section 8(a)(5), (3), and (1) violations, 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. Charges filed by Bakery, Confectionary, Tobacco Workers & Grain Millers Union, Local 85. Chairman Ring and Members McFerran and Kaplan participated.
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Appellate Court Decisions
Hendrickson USA, LLC, Board Case No. 09-CA-159641 (reported at 366 NLRB No. 7) (6th Cir. decided August 1, 2019).
In a published opinion, a divided panel denied enforcement to the Board’s order that issued against this manufacturer of truck axles and suspension systems for coercive statements made during an effort by the United Steel Workers to organize employees at its plant in Lebanon, Kentucky, in 2015. Specifically, the Board (Members Pearce and McFerran; Member Emanuel, dissenting in part) had found that the Employer violated Section 8(a)(1) because a reasonable employee would interpret the statements as threats of retaliation if they selected the Union as their representative.
On review, the Court (Circuit Judges Cook and McKeague; Circuit Judge White, dissenting) held that the Board’s application of the law to the facts did not meet the substantial evidence standard. The first statement the Board found coercive was a comment in a letter to employees that listed their current benefits and then stated, if the plant unionized, contract negotiations would begin “from scratch.” Rejecting the Board’s finding of coercion, the Court explained that, although the letter made clear that employees would be taking a risk with unionization that could adversely affect their current benefits, the statement “does not evince any intent on the part of company officials to adopt a regressive bargaining posture in response to unionization.” The other statements that the Board found coercive appeared in a slideshow presentation to employees that stated, in the event of unionization, “the culture will definitely change,” “relationships will suffer,” and “flexibility [will be] replaced by inefficiency.” Disagreeing, the Court held that those statements “can only be reasonably understood as elaborating upon and summarizing the company’s position on the ineffectiveness of third-party representation, which was a lawful argument for the company to make.”
Dissenting, Judge White stated that she would have deferred to the Board’s judgment and expertise in this area. She stated that the majority’s interpretation is not the only reasonable one, that the Board saw things differently, and that in such circumstances, the Court is not to “displace the Board’s choice between two fairly conflicting views.”
The Court’s opinion is here.
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Administrative Law Judge Decisions
Horseshoe Bossier City Hotel & Casino (15-CA-215656, et al.; JD-62-19) Bossier City, LA. Administrative Law Judge Robert A. Ringler issued his decision on July 30, 2019. Charges filed by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW).
Kaiser Foundation Hospitals; Southern California Permanente Medical Group (21-CA-224219; JD(NY)-13-19) Los Angeles, CA. Administrative Law Judge Jeffrey P. Gardner issued his decision on August 1, 2019. Charge filed by National Union of Healthcare Workers.
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