Summary of NLRB Decisions for Week of June 15 - 19, 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
American Postal Workers Union Local 83 (United States Postal Service) (15-CB-223251 and 15-CB-232568; 369 NLRB No. 95) New Orleans, LA, June 16, 2020.
The Board granted the General Counsel’s Motion for Partial Default Judgment based on the Respondent’s failure to file an answer to the consolidated complaint. The Board found that the Respondent refused to provide the Charging Party copies of grievances that were filed by or on his behalf.
Charges filed by an individual. 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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Altura Communication Solutions, LLC (13-CA-174605; 369 NLRB No. 85) Downers Grove, IL, June 17, 2020. Errata to May 21, 2020 decision. Errata Amended Decision.
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Trinity Health—Michigan d/b/a St. Joseph Mercy Oakland Hospital (07-CA-161375; 369 NLRB 103) Pontiac, MI, June 18, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally removing the classification of pharmacy technicians and the work they perform from the bargaining unit. The Board found that the Respondent did not create a new position or transfer the work to nonunit employees, because the same employees performed the same job duties in nonunit positions as they had in their prior bargaining unit positions. Neither a state law requiring licensure of pharmacy technicians nor the exclusion of “licensed associates” in the recognition clause of the collective-bargaining agreement justified removing a position from the bargaining unit. The Board found that the Respondent’s change to the scope of the unit was a permissive subject of bargaining, and, as such, could not be achieved without the consent of the Union or the Board.
Charge filed by Council 25, Michigan American Federation of State, County, and Municipal Employees, AFL–CIO. Administrative Law Judge Christine E. Dibble issued her decision on May 25, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
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California Commerce Club, Inc. (21-CA-149699; 369 NLRB No. 106) Commerce, CA, June 19, 2020.
On remand from the D.C. Circuit Court, the Board dismissed the complaint allegation that the Respondent violated Section 8(a)(1) by maintaining a confidentiality provision in an arbitration agreement, which requires that “[t]he arbitration shall be conducted on a confidential basis and there shall be no disclosure of evidence or award/decision beyond the arbitration proceeding.” The Board found that, when reasonably read, the provision does not prohibit employees from disclosing the existence of arbitration, their claims against an employer, the legal issues involved, or the events, facts, and circumstances that give rise to an arbitration proceeding. Although the Board found that these restrictions are limited in scope, the Board recognized that the provision would restrict employees’ Section 7 right to discuss terms and conditions of employment insofar as an arbitrator’s award or evidence introduced in an arbitral proceeding (and known by an employee through that sole means) concerns terms and conditions of employment.
Because the provision, however, is maintained as part of an arbitration agreement, and the Federal Arbitration Act (FAA) protects parties’ ability to specify “the rules under which . . . arbitration will be conducted,” the Board found that the provision is shielded by the FAA. The Board concluded that the confidentiality provision is part and parcel of the rules under which the parties agreed to conduct arbitration, acknowledged that the FAA commands that arbitration agreements be enforced according to their terms absent a contrary congressional command, and found that the NLRA does not contain such a contrary congressional command. The Board held, however, that while an employer may seek to enforce an employee’s breach of the confidentiality provision before an arbitrator or a court, an employer violates Section 8(a)(1) if it discharges or otherwise disciplines an employee for a Section-7 protected disclosure of information, even if the disclosure violates the provision.
Charge filed by an individual. Administrative Law Judge Amita Baman Tracy issued her decision on January 6, 2016. Chairman Ring and Members Kaplan and Emanuel participated.
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ABF Freight System, Inc. (09-CA-208379 and 09-CA-210267; 369 NLRB No. 107) Dayton, OH, June 19, 2020.
The Board, reversing the Administrative Law Judge, found that the Respondent violated Section 8(a)(5) and (1) when it installed cameras in some of its break/locker rooms without bargaining with the Union. The Board found that the installations of the cameras—now pointed at the employees’ recreational and changing areas—differed from other camera installations at the facility; thus, it rejected the judge’s conclusion that the installations were lawful pursuant to an established past practice. Additionally, the Board noted that the Respondent had previously attempted to install cameras in the break/locker rooms but removed them after receiving objections from employees. The Board also rejected the Respondent’s argument that the installations were “covered by” the parties’ collective-bargaining agreement. The Board found that the parties’ agreement contained a prohibition on where to install cameras, which may well have been breached. Therefore, it could not find that the installations came “within the compass or scope of contractual language granting the employer the right to act unilaterally,” as required by the contract-coverage standard recently articulated in MV Transportation, Inc., 368 NLRB No. 66 (2019).
Charges filed by General Truck Drivers, Warehousemen, Helpers, Sales and Service and Casino Employees and International Brotherhood of Teamsters (IBT), Local 957. Administrative Law Judge Keltner W. Locke issued his decision on August 20, 2018. 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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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
FreshPoint Southern California, Inc. (28-RC-252613) Las Vegas, NV, June 18, 2020. The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised substantial issues warranting review. The Regional Director had concluded that the petitioned-for unit employees share a sufficient community of interest with employees in the existing bargaining unit and directed an Armour-Globe self-determination election. The Board remanded the case to the Regional Director to issue a supplemental decision to determine whether the Petitioner was seeking a presumptively appropriate employer-wide unit. In addition, the Board directed the Regional Director to apply the Board’s test to determine whether the petitioned-for unit was an appropriate multi-facility unit. Petitioner—International Brotherhood of Teamsters, Local 630. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
The Boeing Company (10-CA-204795, et al.) North Charleston, SC, June 17, 2020. The Board denied the Respondent’s Motion to Dismiss in part the consolidated complaint, finding that the Respondent had not demonstrated that the complaint fails to state a claim upon which relief can be granted. The Board declined to pass on the Respondent’s request for a Bill of Particulars, finding that it should have been filed with the Division of Judges rather than with the Board and thus was not before the Board. Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Greenbrier, VMC, LLC d/b/a Greenbrier Valley Medical Center, Community Health Systems, Inc., and/or Community Health Systems Professional Services Corporation, LLC, a single employer and/or joint employers (10-CA-150997) Ronceverte, WV, June 17, 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 National Nurses Organizing Committee (NNOC), AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Bluefield Hospital Company, LLC d/b/a Bluefield Regional Medical Center, Community Health Systems, Inc., and/or Community Health Systems Professional Services Corporation, LLC, a single employer and/or joint employers (10-CA-153544) Bluefield, WV, June 18, 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), (3), and (1) violations. Charge filed by National Nurses Organizing Committee (NNOC), AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Lucky Cab Company, Board Case No. 28-CA-023508 (reported at 366 NLRB No. 56) (9th Cir. decided June 15, 2020).
In an unpublished opinion, the Court enforced the Board’s supplemental backpay order issued against this taxi service in Las Vegas, Nevada, for the amounts of backpay owed to five discriminatees. In the earlier unfair-labor-practice case, the Board (Chairman Pearce and Members Hirozawa and Johnson) found that the Employer violated Section 8(a)(3) and (1) by discharging six organizers for their union activities during a 2011 campaign to organize the Employer’s 235 cab drivers conducted by Industrial, Technical and Professional Employees, Local 4873, which is affiliated with Office and Professional Employees International Union, AFL-CIO. Lucky Cab Co., 360 NLRB 271 (2014).
After the D.C. Circuit enforced the Board’s unfair-labor-practice order, a compliance proceeding ensued in which the parties settled the backpay owed to one employee, and the Administrative Law Judge issued a decision specifying amounts owed to the remaining five. On exceptions, the Board (Chairman Kaplan and Members Pearce and McFerran) affirmed the judge’s findings and adopted his recommended order. The Board then filed an application for enforcement, and after briefing, the Court dispensed with oral argument and took the case on submission.
The Court found that the Employer’s limited arguments raised in its defense lacked merit. Regarding the three employees who secured interim employment as independent contractors in the long-haul trucking industry, the Court held that the Board appropriately deducted from their interim earnings meal expenses that they incurred while traveling. The Court explained that although the Employer had not provided meals, meal expenses were appropriately deducted as a business expense for their travel, consistent with the standard per diem rates allowed under the Internal Revenue Code. Regarding the fourth employee, the Court upheld the Board’s finding that the Employer failed to prove that she had not engaged in a reasonable job search, explaining that the available jobs the Employer asserted that she should have applied for were not substantially equivalent to her position with the Employer. The Employer did not contest the Board’s backpay award to the fifth employee, which the Court summarily enforced.
The Court’s opinion is here.
RadNet Management Inc., Board Case No. 31-CA-222587 (reported at 367 NLRB No. 88) (9th Cir. decided June 17, 2020).
In an unpublished opinion, the Court enforced the Board’s bargaining order issued in this test-of-certification case against this provider of diagnostic imaging services at various facilities in California, after technical employees working at two of its facilities voted in December 2017 to be represented by the National Union of Healthcare Workers. In doing so, the Court held that the Board did not abuse its discretion in overruling the Employer’s election objections.
In the underlying representation case, the Employer filed petitions for elections after the Union demanded recognition as the representative of its technical employees at the two facilities, the San Fernando Valley Interventional Radiology and Imaging Center, and the San Fernando Valley Advanced Imaging Center. The parties entered stipulated election agreements in which they waived their rights to a pre-election hearing and agreed to unit descriptions. In the elections, the Union prevailed on votes of 4-2, and 5-3, respectively. The Employer filed two sets of objections, the bulk of which were similar in substance. The Regional Director then issued a partial decision overruling all but one objection, finding the offers of proof insufficient, or that the allegations involved matters waived under the terms of the stipulated election agreements.
A hearing was held on the remaining objection, which alleged that the Union harassed the Employer and eligible voters by filing false police reports. The Employer presented no evidence on the issue, however, instead arguing for enforcement of its unanswered subpoenas and requesting additional subpoenas. After two days of hearing, the Regional Director declined to pursue enforcement of the subpoenas, found the offers of proof for the additional subpoenas insufficient, and closed the hearing. The Hearing Officer recommended overruling the objection for failure to prove objectionable conduct. The Regional Director agreed and certified the Union. The Employer filed Requests for Review, which were denied by the Board (Chairman Ring and Members Pearce and Kaplan). After the Employer refused to bargain, the General Counsel initiated an unfair-labor-practice proceeding, in which the Employer reasserted its election objections. After the Board issued its decision and bargaining order, the Employer filed Motions for Reconsideration, which were denied.
On review, the Court held that the Board had not abused its discretion in overruling the Employer’s election objections. On the objections for which no hearing was held, the Court agreed with the Board that the Employer had, among other things, asserted its claims too late, failed to allege conduct objectionable under Board law, or failed to offer specific evidence in support of its conclusory allegations. Addressing each in turn, the Court found no abuse of discretion in the Board’s determinations to overrule them. On the objection of false police reports that went to hearing, the Court found that the Regional Director’s rulings on subpoena issues were without error, and the objection was properly overruled because the Employer chose not to present supporting evidence. Finally, contrary to the Employer’s contention, the Court held that the Board, under longstanding precedent, properly declined to reconsider the election objections in the unfair-labor-practice proceeding.
The Court’s opinion is here.
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Administrative Law Judge Decisions
YP Midwest Publishing, LLC, d/b/a DEX YP (07-CA-218455; JD-28-20) Maryland Heights, MO. Administrative Law Judge Melissa M. Olivero issued her decision on June 18, 2020. Charge filed by District 4, Communications Workers of America (CWA), AFL-CIO.
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