Summary of NLRB Decisions for Week of June 18 - 22, 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
UPS Supply Chain Solutions, Inc. (12-CA-159257 and 12-CA-168819; 366 NLRB No. 111) Carolina, PR, June 18, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by refusing to meet with the Union at reasonable times and by failing to submit counterproposals. The Board also reversed the judge and found that the Respondent violated Section 8(a)(5) and (1) by insisting, as a condition for bargaining with the Union, that the Union agree to a negotiation ground rule requiring it translate its initial Spanish language bargaining proposals into English. The Board explained that the Respondent’s translation request was not a mandatory subject of bargaining.
Charges filed by Union de Tronquistas de PR, Local 901, International Brotherhood of Teamsters. Administrative Law Judge Michael A. Rosas issued his decision on April 13, 2016. Members Pearce, McFerran, and Kaplan participated.
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Mitsubishi Hitachi Power Systems Americas, Inc. (12-CA-188952; 366 NLRB No. 108) Lake Mary, FL, June 18, 2018.
The Board affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee for raising a formal group complaint about his supervisor.
Charge filed by an individual. Administrative Law Judge Geoffrey Carter issued his decision on February 1, 2018. Chairman Ring and Members McFerran and Emanuel participated.
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International Brotherhood of Teamsters Local 385 (Walt Disney Parks and Resorts U.S., Inc. d/b/a Walt Disney World Co.; United Parcel Service, Inc.) (12-CB-136934, et al.; 366 NLRB No. 96) Orlando, FL, June 20, 2018.
The Board affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(b)(1)(A) by repeatedly and deliberately failing to respond in any manner to eight employees’ letters, telephone calls, and/or in-person inquiries regarding revocation of their dues checkoff authorizations. Members Kaplan and Emanuel relied on the judge’s “restraint and coercion” rationale and found it unnecessary to rely on his duty-of-fair-representation rationale. Member Pearce relied on the judge’s “restraint and coercion” rationale for two employees but relied on his duty-of-fair-representation rationale for the remaining six employees. Additionally, the Board affirmed the judge’s conclusions that the Respondent violated Section 8(b)(1)(A) by failing to honor seven employees’ union membership resignation requests. The Board recognized that the complaint only alleged such violations for two employees, but found that the issue was closely connected to the subject matter of the complaint and had been fully litigated for the other five employees. See Pergament United Sales, 296 NLRB 333 (1989). However, the Board reversed the judge’s conclusion that the Respondent violated Section 8(b)(1)(A) by failing to honor another employee’s resignation request because the Respondent had honored that employee’s resignation request.
Charges filed by individuals. Administrative Law Judge Michael A. Rosas issued his decision on March 22, 2017. Members Pearce, Kaplan, and Emanuel participated.
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Long Beach Memorial Medical Center Inc. d/b/a Long Beach Memorial Medical Center & Miller Children’s and Women’s Hospital Long Beach (21-CA-157007; 366 NLRB No. 66) Long Beach, CA, June 20, 2018. Errata to April 20, 2018 Decision and Order. Errata Amended Decision.
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Michael Cetta, Inc. d/b/a Sparks Restaurant (02-CA-142626 and 02-CA-144852; 366 NLRB No. 97) New York, NY, June 20, 2018. Errata to May 24, 2018 Decision and Order. Errata Amended Decision.
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Viejas Band of Kumeyaay Indians d/b/a Viejas Casino & Resort (21-CA-166290; 366 NLRB No. 113) Alpine, CA, June 21, 2018.
A Board panel majority (Members McFerran and Kaplan) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) when it unilaterally changed its past practice of paying unit and nonunit employees the same annual year-end bonus, and they ordered, among other remedies, rescission of the reduced bonus and to make unit employees whole for any loss of earnings caused by the unlawful reduction. Dissenting, Member Emanuel disagreed that the bonus past practice survived the parties’ execution of their most recent collective-bargaining agreement. Instead, he would have found that the Respondent violated Section 8(a)(5) and (1) by unilaterally paying unit employees any year-end bonus and would order rescission of the bonus, at the Union’s election.
Charge filed by United Food and Commercial Workers International Union, Local 135, AFL-CIO. Administrative Law Judge Mara-Louise Anzalone issued her decision on October 11, 2016. Members McFerran, Kaplan, and Emanuel participated.
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Shamrock Foods Company (28-CA-169970; 366 NLRB No. 107) Phoenix, AZ, June 22, 2018.
The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(3) and (1) by: (1) subjecting its employees to stricter enforcement of its previously unenforced break schedule; (2) subjecting an employee to closer supervision; (3) counseling an employee; and (4) issuing a verbal warning to an employee. The Board denied the Union’s request for numerous additional remedies for the violations found, because the Union did not demonstrate that the Board’s traditional remedies were insufficient to ameliorate the effects of the Respondent’s unfair labor practices.
Charge filed by Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC. Administrative Law Judge Amita Baman Tracy issued her decision on September 28, 2016. Members Pearce, McFerran, and Kaplan participated.
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Shamrock Foods Company (28-CA-161831, et al.; 366 NLRB No. 115) Phoenix, AZ, June 22, 2018.
The Board adopted the Administrative Law Judge’s recommended dismissal of allegations that the Respondent violated Section 8(a)(1) by distributing to its employees free shirts with the logo “We Are Shamrock,” and Section 8(a)(3) and (1) by suspending and discharging an employee and by changing the way it administered its modified duty program because of employees’ union activity. In affirming the judge’s finding that the Respondent did not violate Section 8(a)(3) and (1) by removing two injured employees from its modified duty program and placing one of them on extended medical leave, the Board found that the Respondent had shown that it would have taken the same actions even absent the injured employees’ organizing activities.
Charges filed by an individual and Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC. Administrative Law Judge Keltner W. Locke issued his decision on June 10, 2016. Members Pearce, McFerran, and Emanuel participated.
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Shamrock Foods Company (28-CA-150157; 366 NLRB No. 117) Phoenix, AZ, June 22, 2018.
The Board unanimously affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by: (1) discharging an employee for his protected concerted activity; (2) threatening employees; (3) soliciting employee complaints and grievances; (4) instructing employees to ascertain and disclose the union activities of others; (5) informing employees that supporting the Union would be futile; (6) promising employees a benefit in the form of no summer layoffs in order to discourage union support; (7) interrogating employees; (8) surveilling and creating the impression of surveillance; (9) confiscating and prohibiting the distribution of union literature; (10) granting a wage increase in order to discourage union support; and (11) promulgating an unlawful rule in response to employees’ union activities, instructing employees to report employees who violated the rule, and threatening employees with legal prosecution if they violated the rule. The Board also affirmed the judge’s conclusion that the Respondent violated Section 8(a)(3) by disciplining an employee because of his union activity. A majority (Members Pearce and McFerran) affirmed the judge’s conclusion that the Respondent violated Section 8(a)(1) by coercively interrogating employees and maintaining several unlawful paragraphs in its Separation Agreement. A different majority (Members Pearce and Kaplan) affirmed the judge’s dismissal of the allegation that another paragraph maintained in the Separation Agreement was unlawful. The Board unanimously reversed the judge’s conclusion that the Respondent promulgated an unlawful work rule because the statement at issue made to a single employee and not a generally applicable work requirement. Finally, the Board severed and retained for further consideration the numerous complaint allegations that the Respondent violated Section 8(a)(1) by maintaining various work rules in its employee handbook.
Charge filed by Bakery, Confectionary, Tobacco Workers’ and Grain Millers International Union, Local 232. Administrative Law Judge Jeffrey D. Wedekind issued his decision on February 11, 2016. Members Pearce, McFerran, and Kaplan participated.
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Time Warner Cable New York City, LLC (02-CA-126860; 366 NLRB No. 116) New York, NY, June 22, 2018.
The Board found, contrary to the Administrative Law Judge, that Respondent did not violate Section 8(a)(3) by suspending four employees for participating in a street blockage of the Respondent’s facility. A panel majority (Members McFerran and Kaplan) followed an arbitrator’s earlier decision (confirmed by a district court and a court of appeals) that the cars positioned by Union supporters at the street entrances to the Respondent’s facility and the other employees who surrounded the cars impeded the Respondent’s business in a manner that violated the terms of the parties’ no-strike clause. The demonstration was therefore not protected under Section 7. The majority also found that the four employees disciplined became aware, as soon as they arrived at the scene, that the demonstration was blocking access to the facility but then joined the gathering and milled among the blocking cars with the other participants. They were therefore not “mere bystanders” and were subject to discipline. Member Pearce, in dissent, would not have followed the arbitrator’s decision and would rather have found that the parties’ no-strike clause had expired before the event; that the demonstration was protected apart from the blockage caused directly by the parked cars; and that the four disciplined employees committed no specific misconduct that would cause them to lose the Act’s protection. The panel unanimously agreed with the judge that the Respondent, in the course of investigating the demonstration, violated Section 8(a)(1) by interrogating employees who participated about their protected activity.
Charge filed by Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO. Administrative Law Judge Michael A. Rosas issued his decision on June 4, 2016. Members Pearce, McFerran, and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Dolgencorp, LLC (14-RC-209845) Auxvasse, MO, June 21, 2018. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. Petitioner—United Food and Commercial Workers, Local 655. Members Pearce, Kaplan, and Emanuel participated.
Rockwell Mining LLC (09-RC-202389) Wharton, WV, June 21, 2018. The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Certification of Representative. Members Kaplan and Emanuel agreed with the denial of the Employer’s Request for Review, however, they note that there may be an important issue to be considered in a future case about whether the Board’s policy set forth in Ideal Electric and Mfg. Co., 134 NLRB 1275 (1961), adequately protects employees from election interference in light of the shortened critical periods resulting from the 2014 election rule changes. Member Pearce notes that the 2014 election rule changes did not affect the Board’s ability to set aside an election for clearly proscribed prepetition conduct. Petitioner— United Mine Workers of America International Union, AFL-CIO. Members Pearce, Kaplan, and Emanuel participated.
C Cases
United States Postal Service (16-CA-206637 and 16-CA-210946) Kingwood, TX, June 21, 2018. The Board approved a formal settlement stipulation between the Respondent, the Charging Parties, 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) refusal-to-provide/delay-in-providing relevant information violations. Charges filed by American Postal Workers Union, Local 185 and National Association of Letter Carriers, Branch 23. Members Pearce, McFerran, and Kaplan participated.
United States Postal Service (05-CA-180590) Alexandria, VA, June 21, 2018. The Board granted the General Counsel’s Request for Special Permission to Appeal from the Administrative Law Judge’s order reopening the record. The Board denied the appeal on the merits, finding that the judge did not abuse his discretion in reopening the record to facilitate making the credibility and other determinations required by the Board in remanding the case. Charge filed by an individual. Members Pearce, McFerran, and Kaplan participated.
ADT, LLC d/b/a ADT Security Services (03-CA-202122) Albany, NY, June 21, 2018. No exceptions having been filed to the May 16, 2018 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 Respondents to take the action set forth in the recommended Order. Charge filed by International Brotherhood of Electrical Workers, Local Union 43.
East End Bus Lines, Inc. (29-CA-208021) Medford, NY, June 22, 2018. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by an individual. Chairman Ring and Members Pearce and Kaplan participated.
Pasha Automotive Services (20-CA-195343) San Francisco, CA, June 22, 2018. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Lastly, the Board found that the Employer’s Section 10(b) argument was without merit and noted that issues regarding Section 10(b) are generally not addressed in an investigative subpoena context. Charge filed by International Longshore and Warehouse Union. Chairman Ring and Members Pearce and Kaplan participated.
Charter Schools USA, Inc. et al., a single employer (12-CA-203392) Fort Lauderdale, FL, June 22, 2018. The Board denied Employer’s Motion to Dismiss and for Summary Judgment. The Board found that 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 Pearce and Kaplan participated.
Fuyao Glass America, Inc. (09-CA-199943 and 09-CA-201382) Moraine, OH, June 22, 2018. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Charges filed by International Union, United Auto, Aerospace, and Agricultural Implement Workers of America (UAW), AFL-CIO. Chairman Ring and Members Pearce and Kaplan participated.
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Appellate Court Decisions
Cellco Partnership d/b/a Verizon Wireless, Board Case No. 29-CA-158754 (reported at 365 NLRB No. 93) (D.C. Cir. decided June 19, 2018)
In a published opinion, the Court denied enforcement and granted the petition for review filed by this nationwide telecommunications service provider with retail stores throughout the country, including, as relevant here, a wireless store in the Bensonhurst neighborhood of Brooklyn, New York. Based largely on its adoption of the Administrative Law Judge’s Wright Line analysis, the Board (Chairman Miscimarra and Members Pearce and McFerran)found that the Employer violated Section 8(a)(1) and (3) by discharging an employee who had been instrumental in a successful organizing campaign run by the Communications Workers of America, AFL-CIO, and was a member of the Union bargaining committee. Her discharge came after the Employer determined that she had lied in an investigatory interview in violation of its code of conduct.
On review, the Court held that the Board’s finding of union animus was not supported by substantial evidence. In finding animus, the Board had relied on three evidentiary bases, none of which the Court found sufficient. The Court noted that one was a stray comment by a junior supervisor who played no part in the discharge decision, and another was the lengthy investigatory process, which was caused in large part by the employee’s own dishonesty. Regarding the evidence submitted in support of disparate treatment, the Court explained that the Administrative Law Judge had not properly addressed the key question whether the Employer inconsistently treated instances of employee dishonesty during investigations, leaving his conclusion without support. Finally, the Court disagreed with the Board’s finding that the investigation had wrongly inquired into protected activity, instead holding that “[t]here is no indication here that [the employer] was doing any more than conducting a valid inquiry with no motive to pry into or interfere with protected activities.”
The court’s opinion is here.
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Administrative Law Judge Decisions
Cadillac of Naperville, Inc. (13-CA-207245; JD-41-18) Naperville, IL. Administrative Law Judge Michael A. Rosas issued his decision on June 19, 2018. Charge filed by Automobile Mechanics Local 701, International Association of Machinists & Aerospace Workers, AFL-CIO.
Michigan Bell Telephone Company, and AT&T Services, Inc., joint employers (07-CA-161545, et al.; JD-40-18) Grand Rapids, MI. Administrative Law Judge Ira Sandron issued his decision on June 21, 2018. Charges filed by Local 4034, Communications Workers of America (CWA), AFL-CIO.
Desert Cab, Inc. d/b/a ODS Chauffeured Transportation (28-CA-199576; JD(SF)-13-18) Las Vegas, NV. Administrative Law Judge Gerald M. Etchingham issued his decision on June 22, 2018. Charge filed by an individual.
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