Summary of NLRB Decisions for Week of June 8 - 12, 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
Utility Workers United Association, Local 537 (Pennsylvania American Water Company) (06-CB-235968; 369 NLRB No. 99) Pittsburgh, PA, June 8, 2020.
The Board granted the Employer’s and General Counsel’s Motions for Partial Summary Judgment as to whether the previous union’s collective-bargaining agreement remained in effect following the Respondent Union’s certification as bargaining representative. The Board rejected the Respondent Union’s argument that it was a successor to the previous union, finding instead that when the Respondent Union prevailed in the RC election, it was a “new” union under Board precedent. As such, the previous union’s contracts were no longer in effect and did not relieve the Respondent Union of its duty to bargain for an initial agreement.
Charge filed by Pennsylvania American Water Company. Chairman Ring and Members Kaplan and Emanuel participated.
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Randalls Food and Drug, L.P. (16-CA-251484; 369 NLRB No. 100) Roanoke, TX, June 9, 2020.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the grounds 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.
Charge filed by International Brotherhood of Teamsters, Local Union 745. Chairman Ring and Members Kaplan and Emanuel participated.
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Bethany College (14-CA-201546 and 14-CA-201584; 369 NLRB No. 98) Lindsburg, KS, June 10, 2020.
The Board, reversing the Administrative Law Judge, found that the Respondent was not subject to the Board’s jurisdiction. In addressing whether it could exercise jurisdiction over the faculty of the Respondent, a self-identified religious institution of higher education, the Board reconsidered and overruled the governing jurisdictional standard set forth in Pacific Lutheran University, 361 NLRB 1404 (2014), and, in its place, adopted the jurisdictional test announced by the D.C. Circuit Court in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002). Under the Great Falls test, the Board “must decline to exercise jurisdiction” over an institution that (a) “holds itself out to students, faculty, and community as providing a religious educational environment”; (b) is “organized as a nonprofit”; and (c) is “affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.”
Specifically, the Board concluded that the Great Falls decision correctly interpreted controlling Supreme Court precedent and properly concluded that the “exercise of Board jurisdiction over religious schools in matters involving faculty members will inevitably involve inquiry into the religious tenets of these institutions.” The Board agreed that such inquiry “would impermissibly present a significant risk that the protections set forth in the Religion Clauses of the First Amendment of the Constitution would be infringed.” Accordingly, the Board concluded that the two-part Pacific Lutheran test was “fatally flawed” inasmuch as it required consideration of “whether faculty members at religiously affiliated institutions of higher learning are held out as performing a specific religious function,” which necessarily entailed “an impermissible inquiry into what does and what does not constitute a religious function.” As the Board observed, this flaw led the D.C. Circuit Court itself to specifically reject the Pacific Lutheran test. By adopting the bright-line Great Falls test, the Board “will leave the determination of what constitutes religious activity versus secular activity precisely where it has always belonged: with the religiously affiliated institutions themselves, as well as their affiliated churches and, where applicable, the relevant religious community.” Applying the Great Falls test to this case, the Board found that the Respondent was not subject to the Board’s jurisdiction and therefore dismissed the unfair labor practice complaint.
Charges filed by individual employees. Administrative Law Judge Christine E. Dibble issued her decision on October 31, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Transcendence Transit II, Inc.; Transcendence Transit, Inc.; Patriarch Partners, LLC; and Patriarch Partners Agency Services, Single Employer or Joint Employers (29-CA-182049; 369 NLRB No. 101) Brooklyn, NY, June 10, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondents did not violate Section 8(a)(5) and (1) by failing to bargain with the Union over the effects of its decision to cease paratransit unit operations. The Board found that the General Counsel failed to present evidence that the alleged successor employer hired a substantial and representative complement of the predecessor employer’s unit employees before operations ceased.
Charge filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO. Administrative Law Judge Kenneth W. Chu issued his decision on September 4, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Uber Technologies, Inc. (20-CA-181146; 369 NLRB No. 102) San Francisco, CA, June 11, 2020.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining its Dispute Resolution Agreement as a condition of employment for its software engineers. The Board found that the Agreement, when reasonably interpreted, did not potentially interfere with employees’ rights to file Board charges and participate in Board proceedings and was lawful under Boeing Category 1(a). In so finding, the Board relied on the fact that while the Agreement required arbitration of all “disputes regarding the employment relationship,” which would include claims arising under the Act, that language was immediately followed by a savings clause that explicitly permits employees to bring claims to the Board, mentioning the Board by name and providing its website. The savings clause was sufficiently prominent and specific. The Board concluded that this resolved any potential ambiguity created by the inclusion of language allowing claims to be brought before administrative agencies if “applicable law permits.”
Charge filed by an individual. Administrative Law Judge Mara-Louise Anzalone issued her decision on June 13, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
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World Color (USA) Corp., a wholly-owned subsidiary of Quad Graphics, Inc. (32-CA-062242 and 32-CA-063140; 369 NLRB No. 104) Fernley, NV, June 12, 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 policy that prohibits employees from wearing any baseball caps other than company caps. The Board, pursuant to the instructions from the Court, found that employees were not precluded from exercising their Section 7 rights as they may adorn the company caps with permissible union insignia—i.e., insignia that neither violates the Respondent’s general uniform restrictions nor poses a safety risk when employees are engaged in production activities.
Charges filed by Graphic Communications Conference of the International Brotherhood of Teamsters, Local 715-C. Administrative Law Judge William Nelson Cates issued his decision on July 31, 2013. Chairman Ring and Members Kaplan and Emanuel participated.
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San Rafael Healthcare and Wellness, LLC (20-CA-204948; 369 NLRB No. 105) San Rafael, CA, June 12, 2020.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining its Alternative Dispute Resolution Policy. The Board found that a reasonable employee would interpret the Policy’s savings clause to permit the filing of unfair labor practice charges.
Charge filed by National Union of Healthcare Workers. Administrative Law Judge Jeffrey D. Wedekind issued his decision on February 14, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
North American Corporation of Illinois (13-RC-253792) Glenview, IL, June 8, 2020. The Board denied the Employer’s and Intervenor’s Requests for Review of the Regional Director’s Direction of Election as they raised no substantial issues warranting review. Petitioner—Teamsters Local Union No. 70. Intervenor—Production and Maintenance Union, Local 101. Chairman Ring and Members Kaplan and Emanuel participated.
Rieth-Riley Construction Co., Inc. (07-RD-257830) Wyoming, MI, June 8, 2020. The Board denied the Petitioner’s and Employer’s Requests for Review of the Acting Regional Director’s determination to hold the petition in abeyance as they raised no substantial issues warranting review. Petitioner—an Individual. Union—Local 324, International Union of Operating Engineers (IUOE), AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Vistar Transportation, LLC (09-RC-260125) Louisville, KY, June 12, 2020. The Board denied the Employer’s Request for Review of the Acting 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 have resulted in a determination that the regional office charged with conducting this election should remain on mandatory telework at the time the Acting 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.” The Board also denied the Employer’s Request for Extraordinary Relief as moot. Petitioner—General Drivers, Warehousemen and Helpers, Local Union No. 89, a/w the International Brotherhood of Teamsters. Chairman Ring and Members Kaplan and Emanuel participated.
Mr. C Manager, LLC (31-RC-249624) Los Angeles, CA, June 12, 2020. The Board denied the Employer’s Requests for Review of the Acting Regional Director’s Decision Overruling Certain Objections, Order Directing Hearing, and Notice of Hearing on Challenged Ballots and Objections and the Regional Director’s Decision to Adopt Hearing Officer’s Recommendations, Count Challenged Ballots, and Overrule Objections as they raised no substantial issues warranting review. Petitioner—UNITE HERE Local 11. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
LGH Digital Media, Inc., d/b/a Larson Studios, LLC (31-CA-248995) Los Angeles, CA, June 9, 2020. Errata to June 4, 2020 Decision and Order. Errata Amended Decision.
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Appellate Court Decisions
Challenge Manufacturing Company, LLC, Board Case No. 07-CA-199352 (reported at 368 NLRB No. 35) (6th Cir. decided June 9, 2020).
In an unpublished opinion, the Court enforced the Board’s order issued against this manufacturer of structural metal automotive components for unfair labor practices committed at its plant in Holland, Michigan, after an organizing campaign among the plant’s 700 employees was initiated in 2015 by the United Automobile, Aerospace and Agricultural Implement Workers of America. Specifically, the Board (Members McFerran, Kaplan, and Emanuel) found that the Employer violated Section 8(a)(1) by threatening the lead union organizer with reprisals and creating the impression of surveillance, and violated Section 8(a)(3) and (1) by discharging him because of his union activities.
On review, the Court concluded that the Board “did not contravene any of its rules and its findings are supported by substantial evidence.” In doing so, it rejected the Employer’s contention that the Board erred by not explicitly requiring the General Counsel to establish a causal connection between its anti-union animus and its discharge of the union organizer. The Court explained that the Board recently clarified that “the Wright Line framework ‘is inherently a causation test,’” and therefore “[i]dentifying a causal nexus as a separate element would accordingly be ‘superfluous,’” quoting Tschiggfrie Properties, LTD, 368 NLRB No. 120 (2019). Further, citing the settled principle that motive may be inferred from circumstantial evidence, the Court rejected the contention that the General Counsel was required to prove directly that the ultimate decision-maker acted with anti-union animus. On the Employer’s Wright Line defense, the Court held that the credited evidence supported the Board’s rejection of the Employer’s claims that it fired the organizer for refusing to follow a supervisor’s orders and for using profanity, or that the Employer had a good-faith belief that the organizer uttered such a slur. Before the Court, because the Employer did not contest the unlawful threat and impression of surveillance findings, the Court summarily enforced those portions of the Board’s order.
Lastly, the Court rejected the Employer’s challenge to the Board order’s remedial requirement that it reimburse the discriminatee for his search-for-work and interim employment expenses, as provided for in King Soopers, Inc., 364 NLRB No. 93 (2017). As the Court stated, “we have already held that this is a permissible remedy,” citing Lou’s Transport, Inc. v. NLRB, 945 F.3d 1012 (6th Cir. 2019), and Erickson Trucking Service, Inc. v. NLRB, 929 F.3d 393 (6th Cir. 2019).
The Court’s opinion is here.
Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas, Board No. 28-CA-120975 (reported at 366 NLRB No. 110) (D.C. Cir. decided June 12, 2020).
In a published opinion, the Court granted the petition for review filed by this operator of a hotel and casino in Las Vegas, Nevada. In doing so, the Court denied enforcement with respect to two unfair-labor-practice findings, and remanded the third to the Board for reconsideration. In the decision under review, the Board (Chairman Ring and Members Pearce and McFerran) found that the Employer violated Section 8(a)(1) by threatening, suspending, and discharging one of its temporary journeyman carpenters in retaliation for his protected concerted activity of complaining about a workplace health and safety concern—specifically, the amount of second-hand marijuana smoke that the carpenters were encountering in the hotel while working. Further, applying the rule approved in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the Board (Chairman Ring, dissenting) found that the Employer violated Section 8(a)(1) by denying the carpenter his request for union representation at an investigatory interview that he reasonably believed could result in his discharge.
On review, the Court (Circuit Judge Rao and Senior Circuit Judge Randolph, Chief Judge Srinivasan dissenting in part) held that the carpenter’s statement made to managers when he arrived for the investigatory interview was insufficient to trigger his Weingarten right. The Board found that when he arrived and was surprised to find no union representative present, he stated that he had “called the Union three times [and] nobody showed up, I’m here without representation.” The Court, though, held that his statement failed to constitute a request for representation because it was not language reasonably calculated to apprise the Employer that he was seeking such assistance, and reversed. The Court also reversed the Board’s finding that the Employer unlawfully threatened the carpenter with discharge when, at an employee safety meeting after he and a co-worker raised the second-hand smoke issue, the chief engineer responded, “maybe we just won’t need you anymore.” The Court based that reversal on its rejection of the Administrative Law Judge’s credibility determinations that supported the finding.
On the unlawful discharge finding, the Court, citing Sutter East Bay Hospitals v. NLRB, 687 F.3d 424 (D.C. Cir. 2012), agreed with the Employer that the Board, in assessing the Employer’s Wright Line defense, had failed to consider whether the Employer had a reasonable belief that the carpenter had refused to take a respirator exam, which was misconduct the Employer consistently disciplined. Accordingly, the Court remanded the issue to the Board for further proceedings consistent with its opinion.
Chief Judge Srinivasan joined that portion of the majority opinion remanding the Wright Line issue to the Board, but dissented on the other two issues. First, in his view, the Board permissibly determined, consistent with precedent, that the carpenter adequately conveyed his desire for union representation at the investigatory interview. Second, in detailed exposition, he stated why he disagreed with the majority’s rejection of the Administrative Law Judge’s credibility determinations, and accordingly would have upheld the Board’s finding of an unlawful threat.
The Court’s opinion is here.
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Administrative Law Judge Decisions
SW Design School, LLC, d/b/a Interns4Hire.com d/b/a K-12Coders, and SW Design School, L3C, a Single-Integrated Business Enterprise and/or Employer (05-CA-243576; JD-27-20) Capitol Heights, MD. Administrative Law Judge Michael A. Rosas issued his decision on June 8, 2020. Charge filed by an individual. Errata issued June 10, 2020. Errata Amended Decision.
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