Summary of NLRB Decisions for Week of March 2 - 6, 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
RAV Truck & Trailer Repairs, Inc. and Concrete Express of NY, LLC, a single employer (02-CA-220395; 369 NLRB No. 36) Bronx, NY, March 3, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent, a single employer, violated Section 8(a)(3) and (1) by: (1) discharging an employee for signing a union authorization card the day prior; (2) laying off an employee for signing a union authorization card a week prior; and (3) pursuant to the Supreme Court’s decision in Textile Workers v. Darlington, 380 U.S. 263 (1965), closing RAV Truck and Trailer Repairs, Inc. with a purpose of chilling union activity at its other facility, Concrete Express of NY, LLC, and where it reasonably could have been foreseen that this partial closure would have a chilling effect.
In adopting the judge’s conclusion of a Darlington violation, the Board additionally relied upon the unfair labor practices found against Respondent Concrete Express in Concrete Express of NY, LLC, Case Nos. 02-CA-220381 et al. (Feb. 28, 2020), as evidence of the Respondent’s anti-union motive. The Board adopted the judge’s Gissel bargaining remedy and broad cease-and-desist order, noting that, although the judge did not provide sufficient justification for the broad order as required by Hickmott Foods, 242 NLRB 1357 (1979), the order was warranted given the widespread and egregious nature of the Respondent’s conduct and the Respondent’s demonstrated proclivity to violate the Act.
Finally, the Board denied the Respondent’s Motion to Reopen the Record and Remand the case to the judge for consideration of evidence purporting to be the signed copy of the 2017 tax return for RAV Truck and Trailer Repairs, Inc. In finding that the judge did not err in declining to consider this document in his decision, the Board noted that the document presented by the Respondent in its motion was not the “actual signed tax return” requested by the judge at the hearing, but was instead a document created and signed at a later date.
Charge filed by Teamsters Local 456, International Brotherhood of Teamsters. Administrative Law Judge Benjamin W. Green issued his decision on July 15, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
***
Intermodal Bridge Transport (21-CA-157647 and 21-CA-177303; 369 NLRB No. 37) Wilmington, CA, March 3, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the drivers at issue were employees rather than independent contractors under the test outlined in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019). The Board reversed the judge’s conclusions that the Respondent’s misclassification of drivers as independent contractors was a stand-alone violation of the Act and that the Respondent unlawfully expressed the futility of the Union campaign. The Board adopted the judge’s conclusions that the Respondent unlawfully interrogated drivers, threatened drivers with unspecified reprisals for supporting the Union, and offered better work in exchange for abandoning Union support, and that the Respondent lawfully suspended an employee after meeting its Wright Line burden to show the employee would have been suspended absent protected concerted activity. Lastly, the Board did not adopt the judge’s recommended notice-reading remedy.
Charges filed by International Brotherhood of Teamsters. Administrative Law Judge Dickie Montemayor issued his decision on November 28, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
***
Mercedes-Benz U.S. International, Inc. (MBUSI) (10-CA-226249; 369 NLRB No. 38) Vance, AL, March 3, 2020.
The Board adopted the Administrative Law Judge’s dismissal of allegations that the Respondent violated Section 8(a)(1) by threatening and interrogating employees regarding their willingness to work with temporary employees. Accordingly, the Board found the Respondent’s argument that the interrogation allegation was not fully litigated was moot.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on July 26, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
***
Bevilacqua Asphalt Corp. (01-CA-245510; 369 NLRB No. 39) Uxbridge, MA, March 4, 2020.
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)(3) and (1) by barring a former employee from its plant because that employee had engaged in union activities, including activities in furtherance of an organizing drive at the Respondent’s facility while he was employed at the plant in 2016.
Charge filed by International Brotherhood of Teamsters Local 251, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
***
Oncor Electric Delivery, LLC (16-CA-212174; 369 NLRB No. 40) Dallas, TX, March 6, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with the following information: (1) non-unit employee names; and (2) link the employees’ names to the other employee information it had already provided. The Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(5) by failing to provide the Union with the reason for using non-unit employees for storm evaluation work because it failed to see how the Respondent’s reasons would be relevant to the question of whether that decision led to a reduction of the regular work hours of unit employees. The Board also reversed the judge’s conclusion that the Respondent violated Section 8(a)(5) by failing to provide the Union with requested information pertaining to work orders because the Respondent articulated a legitimate confidentiality concern with respect to customer information and fulfilled its obligation to offer to accommodate its confidentiality concerns and its bargaining obligations.
Charge filed by International Brotherhood of Electrical Workers, Local Union No. 69. Administrative Law Judge Robert A. Ringler issued his decision on April 4, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Circle K Stores, Inc. (27-RC-242382) Thornton, CO, March 5, 2020. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Order Directing Count of Challenged Ballots and Issuance of Revised Tally of Ballots finding that the Employer’s pre-election raffle constituted an objectionable grant of benefit, as it raised no substantial issues warranting review. The Board also denied the Employer’s Request for Extraordinary Relief. Petitioner—United Food & Commercial Workers Union, Local 7, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Healthbridge Management, LLC; Care Realty, LLC; CareOne, LLC; 107 Osborne Street Operating Company II, LLC d/b/a Danbury HCC; 710 Long Ridge Road Operating Company II, LLC d/b/a Long Ridge of Stamford; 240 Church Street Operating Company II, LLC d/b/a Newington Health Care Center; 1 Burr Road Operating Company II, LLC d/b/a Westport Health Care Center; 245 Orange Avenue Operating Company II, LLC d/b/a West River Health Care Center; 341 Jordan Lane Operating Company II, LLC d/b/a Wethersfield Health Care Center (34-CA-070823, et al.) Wethersfield, CT, March 2, 2020. The Board granted the General Counsel’s Motion to Vacate, and, upon de novo consideration, to reissue the Board’s October 31, 2012 Order denying in part and granting in part the Respondents’ Requests for Special Permission to Appeal the Administrative Law Judge’s ruling denying their petitions to revoke subpoenas duces tecum in this proceeding (unpublished Order dated October 31, 2012). The Board issued the original decision at a time when the Board included two persons whose appointments to the Board were subsequently determined to be constitutionally infirm. NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). After considering the Requests for Special Permission to Appeal the judge’s ruling de novo, the Board granted the General Counsel’s motion and found that the judge did not abuse his discretion in denying the petitions to revoke the subpoenas. Charges filed by New England Health Care Employees Union, District 1199, SEIU, AFL-CIO. Chairman Ring and Member Kaplan participated. Member Emanuel was a member of the panel but did not participate in the decision on the merits.
Sterett Crane & Rigging, LLC (25-CA-237121) Elberfeld, IN, March 3, 2020. No exceptions having been filed to the January 21, 2020 decision of Administrative Law Judge Kimberly Sorg-Graves’ 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 International Union of Operating Engineers, Local 181, a/w International Union of Operating Engineers, AFL-CIO.
Cristal USA, Inc. (08-CA-200330) Ashtabula, OH, March 6, 2020. The Board denied the Union’s Motion for Reconsideration of the Board’s Order Denying Motion and Remanding reported at 368 NLRB No. 137 (2019). The Board found that the Union had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by International Chemical Workers Union Council of the United Food & Commercial Workers, AFL-CIO, CLC. Chairman Ring and Member Kaplan participated. Member Emanuel was a member of the panel but did not participate in the decision on the merits.
United States Postal Service (28-CA-222265, et al.) Albuquerque, NM, March 6, 2020. No exceptions having been filed to the January 23, 2020 decision of Administrative Law Judge Jeffrey D. Wedekind’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. Charges filed by American Postal Workers Union, Local 380, AFL-CIO.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Casino Pauma (21-CA-161832; JD-08-20) Pauma Valley, CA. Administrative Law Judge Robert A. Giannasi issued his decision on March 3, 2020. Charge filed by UNITE HERE International Union.
CP Anchorage Hotel 2, LLC, d/b/a Hilton Anchorage (19-CA-193656, et al.; JD-07-20) Anchorage, AK. Administrative Law Judge Andrew S. Gollin issued his decision on March 4, 2020. Charges filed by UNITE HERE! Local 878, AFL-CIO.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.