Summary of NLRB Decisions for Week of June 24 - 28, 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
Prohibition Brands Inc. (19-CA-221090; 368 NLRB No. 13) Arlington, WA, June 26, 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)(1) by discharging two employees for engaging in protected, concerted activities.
Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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Pacific Green Trucking, Inc. (21-CA-226775; 368 NLRB No. 14) Wilmington, CA, June 27, 2019.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by interrogating an employee about his union activity and threatening him with discharge, and violated Section 8(a)(3) and (1) by refusing to assign an employee work and thereafter discharging him because of his union activities. In adopting the interrogation violation, a Board majority (Chairman Ring and Member Kaplan) observed that the Respondent excepted only to the judge’s credibility determinations, and did not contend that the credited testimony failed to show a coercive interrogation, and therefore the merits of the judge’s finding were not before the Board. Member McFerran agreed with the judge on the merits of the interrogation finding.
Charge filed by International Brotherhood of Teamsters. Administrative Law Judge Jeffrey D. Wedekind issued his decision on February 13, 2019. Chairman Ring and Members McFerran and Kaplan participated.
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Taylor Roofing Solutions, Inc. and Capitol Roofing Solutions, LLC, a single employer (14-CA-211073; 368 NLRB No. 17) Belleville, IL and Clayton, MO, June 28, 2019.
The Board granted the General Counsel’s Motion for Default Judgment on the ground that the Respondent withdrew its answer to the complaint. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to apply the terms and conditions of the collective-bargaining agreement to all unit employees, including by failing to pay all unit employees the wage rates specified in the collective-bargaining agreement, by failing to make all fringe benefit contributions due on behalf of unit employees, and by subcontracting unit work.
Charge filed by United Union of Roofers, Waterproofers and Allied Workers, Local Union No. 2. Chairman Ring and Members Kaplan and Emanuel participated.
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Teamsters Local Union No. 206 (Safeway, Inc.) (19-CB-168283, et al.; 368 NLRB No. 15) Clackamas and Portland, OR, June 28, 2019.
The Board (Members McFerran and Kaplan; Chairman Ring, dissenting in part) adopted the Administrative Law Judge’s recommended dismissal of the complaint alleging that Respondent Teamsters Local Union No. 206 failed to bargain in good faith for a successor collective-bargaining agreement and over the transfer of work from the Clackamas distribution center to a consolidated distribution center in Portland, and unlawfully filed grievances related to that transfer. The Board unanimously found that no group of employees was sufficiently predominant to remove the question concerning representation resulting from the consolidation, and that the Employer did not have an obligation to bargain with any of the local unions involved in this case pending resolution of the question concerning representation. A majority (Chairman Ring and Member Kaplan) found it unnecessary to pass on the judge’s finding that the consolidated facility was a “new operation,” which Member McFerran would affirm. Chairman Ring, dissenting in part, would reverse the judge and find that the Respondent violated Section 8(b)(1)(A) and (2) by filing and maintaining grievances, and Section 8(b)(3) by insisting on contractual provisions that sought to expand the bargaining unit and require the Employer to unlawfully recognize the Respondent pending a question concerning representation.
Charges filed by Safeway, Inc. Administrative Law Judge Ariel L. Sotolongo issued his decision on October 31, 2017. Chairman Ring and Members McFerran and Kaplan participated.
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Matsu Corp. d/b/a Matsu Sushi Restaurant (01-CA-214272; 368 NLRB No. 16) Westport, CT, June 28, 2019.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by discharging two employees for refusing to work an extra shift because of health and safety reasons. The Board found that the record fully supported the judge’s finding that the employees were discharged and had not quit, as the Respondent contended. In addition, a Board majority (Chairman Ring and Member Kaplan) found that the judge’s Wright Line analysis was not warranted because the Respondent had not asserted that it discharged the employees for any reason other than their protected concerted refusal to work the extra shift. Noting the absence of exceptions to it, Member McFerran would not disturb the judge’s Wright Line analysis, which found that the Respondent’s failure to continue employing the employees was motivated by their concerted activity and not by a belief that they had voluntarily declined to work.
Charge filed by Flushing Workers Center. Administrative Law Judge Kenneth W. Chu issued his decision on October 26, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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NP Lake Mead LLC d/b/a Fiesta Henderson Casino Hotel (28-CA-230458; 368 NLRB No. 19) Henderson, NV, June 28, 2019.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union and 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, with the exception of employee social security numbers.
Charge filed by International Union of Operating Engineers, Local 501, AFL-CIO. Chairman Ring and Members McFerran and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Comcast of Florida/Georgia/Illinois/Michigan, LLC (13-RD-233964) Chicago, IL, June 25, 2019. The Board denied the Union’s Request for Review of the Regional Director’s Report and Certification of Results as it raised no substantial issues warranting review. The Regional Director overruled the Union’s objections relating to alleged Employer support of the decertification effort, and disparate application of a no-solicitation rule, finding the Union’s offer of proof provided insufficient evidence of objectionable conduct. Petitioner—an Individual. Union—International Brotherhood of Electrical Workers, Local 21 AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Alaska Communications Systems Holdings, Inc. (19-RC-226955) Anchorage, AK, June 27, 2019. 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. Petitioner—International Brotherhood of Electrical Workers, Local 1547, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
RAD Manufacturing LLC (04-RM-230627) Berwick, PA, June 27, 2019. The Board denied the Union’s Request for Review of the Regional Director’s Decision on Objections and Certification of Results as it raised no substantial issues warranting review. Union—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local Union 8567, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Grill Concepts Service, Inc. d/b/a The Daily Grill (31-RC-209589) Los Angeles, CA, June 28, 2019. On November 20, 2018, the Board granted the Employer’s Request for Review “with respect to whether union representatives’ offers to help employees with their mail ballots, including offers to help employees fill out their mail ballots, constituted objectionable conduct.” Upon review, the Board affirmed the Regional Director’s Decision and Certification of Representative, finding that the record did not establish that any solicitation of mail ballots occurred during the Petitioner’s representatives’ home visits or that their offers to help employees with their mail ballots were otherwise objectionable. The Board found it unnecessary to address the question of whether mere solicitation of mail ballots constitutes objectionable conduct, as urged by the partial dissent in Fessler & Bowman, 341 NLRB 932 (2004), and did not rely on the Hearing Officer’s or Regional Director’s statements that, even had the Petitioner solicited mail ballots from the employees, such conduct would not be objectionable. Petitioner—UNITE HERE, Local 11. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Platinum Services Commercial Building Maintenance, Inc. and Platinum Services Janitorial, Inc. and Platinum Services Maintenance, Inc. as a single employer and/or alter egos (20-CA-224943) Sacramento, CA, June 25, 2019. The Board denied Platinum Services Commercial Building Maintenance, Inc., Platinum Services Janitorial, Inc., and Platinum Services Maintenance, Inc.’s Petitions to Revoke two investigative subpoenas duces tecum and one subpoena ad testificandum, as the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Petitioners failed to establish any other legal basis for revoking the subpoenas. The Board evaluated the subpoenas in light of the Region’s clarification of one of the subpoenas duces tecum, and held that, with respect to requested information not in the Petitioners’ possession, the subpoena compels the Petitioners to seek such information from other persons or companies, if necessary. Charge filed by Service Employees International Union, United Service Workers West. Chairman Ring and Members Kaplan and Emanuel participated.
United States Postal Service (01-CA-176465) Boston, MA, June 25, 2019. In this case alleging Section 8(a)(5) allegations, 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. Charge filed by American Postal Workers Union, AFL-CIO, Boston Metro Area Local 100. Members McFerran, Kaplan, and Emanuel participated.
Coffman Specialties, Inc. (28-CA-223779) Phoenix, AZ, June 25, 2019. No exceptions having been filed to the April 30, 2019 decision of Administrative Law Judge Andrew S. Gollin’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.
The Leaguers, Inc. (22-CA-189289) Newark, NJ, June 26, 2019. No exceptions having been filed to the December 13, 2017 decision of Administrative Law Judge Kenneth W. Chu’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 Communications Workers of America.
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Appellate Court Decisions
Dura-Line Corporation, a subsidiary of Mexichem, Board Case No. 09-CA-163289 (reported at 366 NLRB No. 126) (D.C. Cir. decided June 25, 2019).
In an unpublished judgment, the Court denied the Petition for Review filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, and its Local 14300-12. In doing so, the Court rejected the Union’s challenge to the Board’s dismissal of the allegation that this manufacturer of telecommunications conduit, pipe, and related products had closed its facility in Middlesboro, Kentucky, and relocated work and equipment to other facilities in Tennessee, Georgia, and Ohio, in violation of Section 8(a)(3) and (1).
On that issue, the Board (Members McFerran, Kaplan, and Emanuel), in disagreement with the Administrative Law Judge, determined that the closure and relocation of work were not unlawful. Applying its Wright Line test, the Board found that the record evidence supported an inference that union activity was a motivating factor in those decisions, as shown by union activity at the Middlesboro plant and anti-union statements made by its local managers. The Board further found, however, that the Employer had established its affirmative defense that it would have closed the plant and relocated production for compelling economic reasons, despite the union activity at the Middlesboro plant or the anti-union animus of its managers. In that regard, the Board found that the Employer relied on legitimate business justifications in shuttering its oldest facility and relocating the work to its other newer facilities, actions which would permit it to update and streamline production and increase profits.
Under its deferential standard of review, the Court concluded that the Union did not “clear th[e] hurdle” of showing that “no reasonable factfinder could have found that, anti-union animus aside, [the employer]’s economic motives would have led to the same result.” Rather, the Court cited evidence of the Middlesboro plant’s crumbling and outdated physical structure and its inconvenient location, which choked off opportunities to expand or improve efficiency. The Court also noted that the local managers who made the anti-union statements were not involved in the decision to close the plant. Taken together, the Court concluded, those reasons provided substantial evidence in support of the Board’s finding that the Employer would have closed and relocated the Middlesboro plant’s operations even in the absence of union activity. Lastly, the Court held that the Board decisions that the Union cited in arguing that the Board had wrongly departed from its own precedent were materially different from this case.
The Court’s judgment may be found here.
Bozzuto's, Inc., Board Case No. 01-CA-115298 (reported at 365 NLRB No. 146) (2d Cir. decided June 24, 2019).
In a published opinion, the Court granted, in part, the petition filed by this distributor of food products with warehouses in Connecticut for review of the Board’s order issued against it for a number of violations of Section 8(a)(1) and (3) during a campaign by United Food and Commercial Workers Union, Local 919, to organize its 450 production workers. In doing so, the Court reversed two of the Board’s findings, a discriminatory discharge and an unlawful interrogation, and vacated a notice-reading remedy on the basis of those reversals. The Court enforced the remainder of the Board’s order.
The Board (Chairman Miscimarra and Members Pearce and McFerran) adopted, in the absence of exceptions, the Administrative Law Judge’s findings that the Employer violated Section 8(a)(1) by announcing and implementing wage increases, and by maintaining a policy that conditioned continued employment on the employees’ agreement to refrain from talking about discipline. On exceptions, the Board found that the Employer discriminatorily suspended and discharged one employee, and unlawfully issued a written warning to another employee. Finally, the Board (Chairman Miscimarra, dissenting) found that the Employer unlawfully interrogated the first employee and discharged the second.
On review, the Employer challenged only the two unlawful discharges and the interrogation finding, and the Court summarily enforced the portions of the Board’s order remedying the uncontested violations. Regarding one discharge, the Court held, without a need for extended discussion, that substantial evidence supported the Board’s determination that the employee was fired for his union activity and the asserted reason for his discharge (low productivity) was a pretext based on fraudulent data.
However, on the remaining two contested issues, the Court disagreed with the Board’s findings. On the interrogation, the Board majority had found coercive circumstances existed under the factors of Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964), when the employee, who had not yet disclosed his union activity, left a restroom and was approached by the Employer’s Vice President, who asked, “what’s going on with this [u]nion stuff,” and replied, “I’m not going to talk about it with you.” The Court held that the record showed that the employee had in fact disclosed his union activity by that time; that the inquiry was similar to that found lawful in Rossmore House, 269 NLRB 1176 (1984) (“What is this about a union?”); and that there is no evidence that the employee hesitated in responding to the inquiry.
In reversing one of the Board’s unlawful discharge findings, the Court noted that it was uncontested that the discharged employee had engaged in protected activity by complaining to coworkers about the Employer’s application of production standards, and that the Employer had unlawfully warned him to stop raising such complaints. The Court, however, disagreed with the Board’s further finding that the Employer unlawfully discharged the employee one week later, purportedly for refusing instructions to attend a meeting where the standards would be explained to him. Although the Board had found that reason pretextual and intertwined with his earlier protected activity, the Court viewed his refusal to attend the meeting to be an act of insubordination which, under the Employer’s no-tolerance policy, could result in discharge.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Napleton 1050, Inc., d/b/a Napleton Cadillac of Libertyville (13-CA-209951, et al.; JD-52-19) Libertyville, IL. Administrative Law Judge Geoffrey Carter issued his decision on June 24, 2019. Charges filed by International Association of Machinists and Aerospace Workers, Automobile Mechanics Local 701, AFL-CIO.
International Brotherhood of Teamsters Local 492 (Fire and Ice Productions, Inc.) (28-CB-207136; JD(SF)-17-19) Albuquerque, NM. Administrative Law Judge Amita Baman Tracy issued her decision on June 24, 2019. Charge filed by an individual.
Laborers’ International Union of North America, Local Union No. 91 (Scrufari Construction Co., Inc.) (03-CB-202698, et al.; JD-53-19) Niagara Falls, NY. Administrative Law Judge Donna N. Dawson issued her decision on June 28, 2019. Charges filed by individuals.
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