Summary of NLRB Decisions for Week of March 30 - April 3, 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
Maine Coast Regional Health Facilities, d/b/a Maine Coast Memorial Hospital, the sole member of which is Eastern Maine Healthcare Systems (01-CA-209105 and 01-CA-212276; 369 NLRB No. 51) Ellsworth, ME, March 30, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) when it discharged an employee for engaging in protected concerted and union activity, after her letter discussing the impact of the hospital’s staffing shortages on her fellow coworkers was published in the local newspaper. The Respondent fired the employee under its media policy which banned employee media contact without the Respondent’s permission. The Board found that the Respondent’s media policy was unlawfully overbroad under The Boeing Co., 365 NLRB No. 154 (2017), and that the Respondent violated Section 8(a)(1) for maintaining and enforcing the unlawful media policy against the employee. However, the Board reversed the judge to find that the Respondent’s amended media rule, which included a savings clause allowing for employee communications protected by Section 7 with the media, was lawful under Boeing as a Category 1(a) rule, because when reasonably interpreted, there is no potential interference with the exercise of Section 7 rights.
Charges filed by an individual. Administrative Law Judge Paul Bogas issued his decision on November 2, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Mondelez Global, LLC (22-CA-174272, et al.; 369 NLRB No. 46) Fair Lawn, NJ, March 31, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated: (1) Section 8(a)(3) and (1) by discriminatorily suspending and terminating three unit employees who were Union supporters; and (2) Section 8(a)(5) and (1) by, after the expiration of the parties’ collective-bargaining agreement, unilaterally lengthening the time required to return from short-term disability leave to active work and unilaterally changing the work schedules of certain unit employees. Further, the Board adopted the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) by excluding new hires still in the orientation process from a temporary layoff. Although the Board adopted the judge’s bottom-line rulings on those three unilateral change issues, it clarified that the “sound arguable basis” test (on which the Respondent and the judge, at least in part, relied) applied only to cases (unlike this one) involving allegedly unlawful modifications of contract terms while the agreement was still in effect. The proper analysis here, the Board explained, was whether, under NLRB v. Katz, 369 U.S. 736 (1962), the Respondent unlawfully changed the post-contract status quo without notice to, and bargaining with, the Union. Finally, the Board adopted the judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by unilaterally eliminating the Union’s right to meet privately with new hires during their orientations and by failing to fully respond, or unduly delaying its response, to the Union’s requests for relevant information.
Charges filed by the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, Local 719, AFL-CIO. Administrative Law Judge Kenneth W. Chu issued his decision on January 7, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Alle Processing Corp. d/b/a Meal Mart (29-CA-213963; 369 NLRB No. 52) Maspeth, NY, April 2, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for an intemperate outburst towards managers. The Board observed that it did not condone the employee’s behavior, but that the nature of the outburst did not weigh against continued protection under the Act, especially considering that a manager had just coerced the employee into signing a dues checkoff form, which violated his Section 7 right to refrain from union activity. The Board also adopted the judge’s conclusion that the employee did not forfeit his right to reinstatement or backpay under the standard for evaluating postdischarge misconduct.
Charge filed by an individual. Administrative Law Judge Lauren Esposito issued her decision on June 19, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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T-Mobile USA, Inc. (14-CA-155249, et al.; 369 NLRB No. 50) Wichita, KS, April 2, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by telling employees that they could not talk about the Union during work time in working areas despite permitting discussions of other subjects “not associated or connected with their work tasks” during work time in working areas, surveilling employees and interrogating employees about their union activity, telling an employee that it was creating a seating chart to isolate employees because of their union activity, and maintaining and implementing a seating chart to isolate certain employees because of their union activity. The Board reversed the judge to find that the Respondent effectively repudiated a security guard’s statement to an employee that she could not distribute union flyers outside of the Respondent’s facility while off duty because the Respondent’s repudiation was timely, unambiguous, and specific in nature to the coercive conduct. In addition, the Board reversed the judge’s conclusion that the Respondent discriminatorily applied its Acceptable Use Policy, Enterprise User Standard, and No Solicitation or Distribution Policy against Section 7 activity because, despite sending numerous emails on nonwork-related subjects, it never permitted emails in favor of a specific union or against union activity. Lastly, as to the complaint allegations that the Respondent unlawfully announced rules prohibiting employees from sending “mass communications” to other employees, discussing the Union during work time, and using social media unless “off the job,” the Board issued a Notice to Show Cause as to why those allegations should not be remanded to the judge because the lawfulness of those rules is dependent on whether an employee’s email that prompted the Respondent to announce those rules was protected activity under Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019).
Charges filed by Communications Workers of America, AFL-CIO. Administrative Law Judge Sharon Levinson Steckler issued her decision on June 28, 2016. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Baxter Academy for Technology and Science (01-RC-239165) Portland, ME, March 30, 2020. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner—Maine Education Association. Chairman Ring and Members Kaplan and Emanuel participated.
Lyles Cleaning Services, LLC (05-RC-252336) Ijamsville, MD, April 1, 2020. The Board denied the Employer’s Amended Request for Review of the Acting 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—United Food and Commercial Workers Union, Local 27 a/w United Food and Commercial Workers International Union. Chairman Ring and Members Kaplan and Emanuel participated.
Empresas Stewart Cementerios d/b/a Cementerio Los Cipreses (12-RC-254044) Bayamon, PR, April 2, 2020. The Board denied the Employer’s and the Intervenor’s Requests for Review of the Regional Director’s Decision and Direction of Election as they raised no substantial issues warranting review. In denying review, the Board agreed with the Regional Director that the new collective-bargaining agreement that the Employer and the Intervenor executed was a premature extension of the automatic 1-year renewal of their previous collective-bargaining agreement and therefore was not a bar to the timely-filed petition. Petitioner—Central General de Trabajadores. Intervenor—Union de Tronquistas de Puerto Rico, Local 901, International Brotherhood of Teamsters. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Amalgamated Sugar Co., LLC (27-CA-243789 and 27-CA-248764) Nampa, ID, March 30, 2020. The Board denied the Respondent’s Motion for Summary Judgment, finding 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. Charges filed by Bakery Confectionery, Tobacco Workers & Grain Millers Union Local 284g, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Coca-Cola Beverages Florida, LLC (12-CA-230207, et al.) Miami, FL, March 31, 2020. The Board denied the Respondent’s Motion to Dismiss, or, in the alternative, for Summary Judgment concerning the portion of the complaint alleging noncompliance with a settlement agreement, finding that the Respondent failed to demonstrate that the allegations were untimely or violated the Respondent’s due process rights. In addition, the Board found that the Respondent failed to establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Charges filed by International Brotherhood of Teamsters, Local Union 769. Chairman Ring and Members Kaplan and Emanuel participated.
The Ohio Bell Telephone Company (09-CA-196106) Dayton, OH, April 1, 2020. No exceptions having been filed to the December 27, 2019 decision of Administrative Law Judge Andrew S. Gollin’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 an individual.
Chanticleer Holdings Inc. d/b/a Little Big Burger (19-CA-239759) Portland, OR, April 2, 2020. No exceptions having been filed to the February 19, 2020 decision of Administrative Law Judge Jeffrey D. Wedekind’s finding that the Respondent had not engaged in certain unfair labor practices, the Board dismissed the complaint. Charge filed by Little Big Union Industrial Workers of the World.
United States Postal Service (14-CA-195011) Norman, OK, April 3, 2020. This case implicates the Respondent’s restrictions on employees’ use of its email system. In response to both parties’ request, the Board remanded this case to the Administrative Law Judge for further consideration in light of Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), overruling Purple Communications, Inc., 361 NLRB 1050 (2014). Charge filed by an individual. Administrative Law Judge Melissa M. Olivero issued her decision on September 25, 2018. Members Kaplan and Emanuel participated. Chairman Ring, who was recused, was a member of the panel but did not participate in the decision on the merits.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Local 155, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) AFL-CIO (SAS Automotive USA, Inc.) (07-CB-210547; JD-15-20) Sterling Heights, MI. Administrative Law Judge Charles J. Muhl issued his decision on March 30, 2020. Charge filed by an individual.
United Pulse Trading, d/b/a AGT Foods (18-CA-242003; JD-16-20) Minot, ND. Administrative Law Judge Arthur J. Amchan issued his decision on March 31, 2020. Charge filed by Bakery, Confectionery, Tobacco Workers and Grain Millers, International Union, AFL-CIO, Local No. 167G.
International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists, and Allied Crafts of the United States, its Territories and Canada, AFL-CIO, CLC, Local 835 (Freeman Decorating Co., Global Experience Specialists, Inc.) (12-CB-233694 and 12-CB-233788; JD-17-20) Orlando, FL. Administrative Law Judge Donna N. Dawson issued her decision on April 3, 2020. Charges filed by individuals.
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