Summary of NLRB Decisions for Week of June 23 - 26, 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
National Hot Rod Association (NHRA) (29-CA-254760; 369 NLRB No. 110) Glendora, CA, June 23, 2020.
The Board granted the General Counsel’s Motion for Summary Judgment as there were no material issues of fact warranting a hearing, thus finding, as a matter of law, that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information that was relevant and necessary to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit. The Respondent’s refusal to furnish the requested information was based solely on its contesting the certification of the Union for the same reasons that were rejected by the Board in the related test-of-certification case, National Hot Rod Association (NHRA), 369 NLRB No. 60 (2020).
Charge filed by International Alliance of Theatrical Stage Employees, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated
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800 River Road Operating Company, LLC d/b/a Care One at New Milford (22-CA-204545; 369 NLRB No. 109) Newark, NJ, June 23, 2020.
The Board overruled Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016), and reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by disciplining four employees without first providing the Union with notice and an opportunity to bargain. In doing so, the Board held that Total Security was flawed because its imposition of a pre-discipline bargaining obligation: (1) conflicted with a specific Board precedent and the rationale of the Supreme Court’s Weingarten decision relevant to this issue; (2) misconstrued the general unilateral-change doctrine announced in the Court’s Katz decision with respect to what constitutes a material change in working conditions; and (3) imposed a complicated and burdensome bargaining scheme that is irreconcilable with the general body of law governing statutory bargaining practices. Accordingly, the Board returned to long-standing law establishing that, upon commencement of a collective-bargaining relationship, employers do not have an obligation under Section 8(d) and 8(a)(5) to bargain prior to disciplining unit employees in accordance with an established disciplinary policy or practice. The Board determined that its decision was to apply retroactively, and, applying the holding to the case before it, found that the Respondent applied its pre-existing disciplinary policy, which included the use of discretion, in disciplining the four employees. Thus, the Board held that the Respondent did not violate Section 8(a)(5) and (1) and dismissed that allegation. Finally, the Board adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing employees’ payroll hours.
Charge filed by 1199 SEIU, United Healthcare Workers East. Administrative Law Judge Benjamin W. Green issued his decision on November 20, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Verizon Wireless (02-CA-156761, et al.; 369 NLRB No. 108) New York, NY, June 24, 2020.
The Board denied the Charging Parties’ Request for Special Permission to Appeal the Administrative Law Judge’s order approving the General Counsel’s motion to withdraw complaint allegations related to eight work rules that the General Counsel determined to be lawful under The Boeing Co., 365 NLRB No. 154 (2017), following remand by the Board. The Board, however, granted the Charging Parties’ Request for Special Permission to Appeal to the extent that the judge’s order applied to three complaint allegations that had not been remanded to the judge and to the extent that it required the Regional Director to dismiss the allegations upon remand.
The Board dismissed the allegation relating to a rule notifying employees that the Respondents may search employees’ personal property when on the Respondents’ premises and designated such rules as Category 1(b) rules under Boeing.
The Board severed and retained the two remaining allegations, which concerned the lawfulness of rules placing restrictions on the use of the Respondents’ IT systems, and issued a Notice to Show Cause why the allegations should not be remanded to the judge for further proceedings consistent with the Board’s decision in Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, 368 NLRB No. 143 (2019).
Charges filed by Communications Workers of America, AFL–CIO; Communications Workers of America, District 2-13, AFL–CIO, CLC; and Communications Workers of America, AFL–CIO, District 9. Administrative Law Judge Donna N. Dawson issued her decision on May 25, 2017 and issued her order approving the General Counsel’s withdrawal motion on September 27, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Richfield Hospitality, Inc. as Managing Agent for Kahler Hotels, LLC (18-CA-176369; 369 NLRB No. 111) Rochester, MN, June 26, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by engaging in surface bargaining. In so finding, the Board relied on three factors: (1) the adverse impact of two unremedied unilateral changes found unlawful in Richfield Hospitality, Inc. as Managing Agent for Kahler Hotels, LLC, 18-CA-151245 (Richfield I); (2) the repeated premature declarations of impasse made by the Respondent’s negotiators; and (3) the failure of the Respondent to prove its claim that there was a single-issue impasse on wage issues that precluded further overall bargaining. The Board also found that unilateral changes made in the absence of impasse violated Section 8(a)(5). Finally, the Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening employees that union representation was futile. The Board adopted the judge’s recommendation for notice-reading and litigation expense reimbursement remedies, finding them appropriate in the circumstances of this case and in consideration of the violations found in Richfield I.
Charge filed by UNITE HERE International Union, Local 21. Administrative Law Judge Keltner W. Locke issued his decision on May 4, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
TDS Metrocom, LLC (18-RC-260318) Scofield, WI, June 23, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election (ordering a mail-ballot election due to the circumstances related to the COVID-19 pandemic) as it raised no substantial issues warranting review. In so doing, the Board relied upon “the extraordinary federal, state, and local government directives regarding the Covid-19 pandemic, which resulted in a determination that the regional office charged with conducting this election should remain on mandatory telework when the Regional Director issued her Decision and Direction of Election,” and noted that the Agency’s determination that the regional office should remain on mandatory telework “was based on the Agency’s assessment of current Covid-19 pandemic conditions in the local area.” Petitioner—Communications Workers of America, District 4. Chairman Ring and Members Kaplan and Emanuel participated.
Mountaire Farms, Inc. (05-RD-256888) Shelbyville, DE, June 23, 2020. The Board granted the Union’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised substantial issues warranting review, and ordered the election be stayed. The Board also found merit to the Petitioner’s contention that this case warrants a general review of the contract bar doctrine and announced it would subsequently issue a Notice and Invitation to File Briefs. Petitioner—an Individual. Union—United Food and Commercial Workers Union, Local 27, a/w United Food and Commercial Workers International Union, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Mountaire Farms, Inc. (05-RD-256888) Shelbyville, DE, June 24, 2020. The Board granted the Employer’s and Petitioner’s Requests for Extraordinary Relief and in doing so rescinded the stay of the election granted on June 23, 2020. The Board noted the ballots for the mail ballot election had been mailed to voters shortly before the issuance of the stay, and directed the ballots be impounded pending the Board’s ruling on the Union’s Request for Review. Petitioner—an Individual. Union—United Food and Commercial Workers Union, Local 27, a/w United Food and Commercial Workers International Union, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Roseland Community Hospital (13-RC-259788) Chicago, IL, June 25, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s 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—Service Employees International Union (SEIU) Healthcare Illinois & Indiana. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Silver Services Group Corp. and Precise Services Corp., alter ego and successor (22-CA-230596) Newark, NJ, June 22, 2020. No exceptions having been filed to the May 11, 2020 decision of Administrative Law Judge Jeffrey P. Gardner’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. Charge filed by Laborers Local 79, Laborers International Union of North America.
Service Employees International Union, Local 87 (Metro Services Group) (20-CB-206863) San Francisco, CA, June 25, 2020. No exceptions having been filed to the May 14, 2020 decision of Administrative Law Judge Gerald M. Etchingham’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint. Charge filed by an individual.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Hennes & Mauritz, LP d/b/a H&M (32-CA-250461 and 32-CA-256051; JD(SF)-14-20) Hayward, San Francisco, and Emeryville, CA. Administrative Law Judge Ariel L. Sotolongo issued his decision on June 22, 2020. Charges filed by United for Respect.
National Nurses Organizing Committee-Texas/National Nurses United (Bay Area Healthcare Group, Ltd. d/b/a Corpus Christi Medical Center, an indirect subsidiary of HCA Holdings, Inc.) (16-CB-225123; JD-29-20) Corpus Christi, TX. Administrative Law Judge Keltner W. Locke issued his decision on June 24, 2020. Charge filed by an individual.
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