Summary of NLRB Decisions for Week of March 9 - 13, 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
VHS of Michigan, Inc. d/b/a Detroit Medical Center (DMC) (07-CA-205394; 369 NLRB No. 41) Detroit, MI, March 11, 2020.
The Board found that the dispute in this matter concerning the Respondent’s unilateral change in its overtime pay policy should be deferred to the parties’ contractual grievance-arbitration procedure. The Board found that the parties’ grievance-arbitration procedure clearly encompasses the overtime pay dispute; it is eminently well suited to resolution by arbitration because the meaning of a contract provision is at the heart of the dispute; and the parties’ bargaining relationship remains functional and their grievance-arbitration procedure remains fair and available to resolve the dispute.
Charge filed by Local 283, International Brotherhood of Teamsters (IBT). Administrative Law Judge Arthur J. Amchan issued his decision on July 23, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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VW Credit, Inc. and Volkswagen Group of America, Inc. (13-CA-158715 and 13-CA-166961; 369 NLRB No. 42) Herndon, VA and Libertyville, IL, March 12, 2020.
On a stipulated record, the Board concluded that the Respondents violated Section 8(a)(1) by maintaining an Agreement to Arbitrate (Agreement) that, reasonably interpreted, makes arbitration the exclusive forum for resolution of certain claims arising under the Act. The Board rejected the Respondents’ contention that notices sent to employees purporting to revise the Agreement to allow NLRB charge-filing effectively repudiated whatever was unlawful in the Agreement.
Charges filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Teamsters Local 743 (13-UC-239758) Chicago, IL, March 12, 2020. The Board granted the Petitioner’s Request for Review of the Regional Director’s administrative dismissal of the instant petition as it raised substantial issues which can best be resolved upon the basis of a record developed at a hearing. Petitioner—Chicago News Guild Local 34071. Chairman Ring and Members Kaplan and Emanuel participated.
St. Louis Symphony Orchestra (14-RC-236036) St. Louis, MO, March 13, 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 Regional Director had concluded that the petitioned-for unit employees share a sufficient community of interest with employees in the existing bargaining unit and directed an Armour-Globe self-determination election. Petitioner—American Federation of Musicians Local 2-197. Chairman Ring and Members Kaplan and Emanuel participated.
C Case
Teamsters Local Union No. 206 (Safeway, Inc.) (19-CB-168283, et al.) Clackamas and Portland, OR, March 12, 2020. The Board denied the Charging Party’s Motion for Reconsideration/Clarification of the Board’s Decision and Order reported at 368 NLRB No. 15 (2019), because the Charging Party did not identify any material error or demonstrate extraordinary circumstances warranting reconsideration. Charge filed by Safeway, Inc. Chairman Ring and Member Kaplan participated. Member Emanuel was a member of the panel but did not participate in the decision on the merits.
Z & Y Restaurant; Jun Yuan “Michelle” Zhang; and Li Jun Han (20-CA-250186) San Francisco, CA, March 13, 2020. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum and subpoena ad testificandum on the basis that the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoenas. Charge filed by Chinese Progressive Association. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Colorado Symphony Association, Board No. 27-CA-140724 (reported at 366 NLRB No. 122) (D.C. Circuit decided March 10, 2020).
In an unpublished judgment, the Court enforced the Board’s order issued against this symphony orchestra based in Denver, Colorado. The Symphony has collective-bargaining relationships with two unions that represent the same musicians. One of those unions, the American Federation of Musicians, was voluntarily recognized by the Symphony in 2010, with the signing of an agreement that covered the musicians’ terms and conditions of employment concerning national issues, like the recording and releasing of electronic media. The Board (Members Pearce and McFerran; Member Kaplan, dissenting in part) found that, during negotiations for a successor agreement, the Symphony violated Section 8(a)(5) and (1) by refusing to provide information, unilaterally implementing proposals that changed the musicians’ terms and conditions of employment in the absence of impasse, bypassed the Union and dealt directly with the musicians, implemented those terms, and ultimately withdrew recognition.
On review, the Court held that the Symphony’s three principal challenges to the Board’s unfair-labor-practice findings all lacked merit. First, the Court rejected the Symphony’s untimely contention that the Union had lacked majority support among the musicians at the time the Symphony voluntarily recognized the Union in 2010. Agreeing with the Board, the Court held that the claim was time-barred by Section 10(b), because it was not raised until 2016, long after the six-month statute of limitations for such claims. Second, the Court rejected the Symphony’s argument that the Board had failed to consider record evidence of the Union’s own bad-faith actions during the contract negotiations. The Court explained that “[t]he Board, however, did consider those arguments,” and that the Board’s rejection of the arguments was supported by substantial evidence. Third, the Court held that the Symphony’s belatedly raised argument that the 2010 agreement violated the Sherman Act was jurisdictionally barred from review under Section 10(e) of the Act, because it had not been raised before the Board. Finding no merit to the Employer’s remaining arguments, and summarily affirming the uncontested findings, the Court enforced the Board’s order in full.
The Court’s unpublished judgment may be found here.
Ozburn-Hessey Logistics, LLC, Board Case No. 26-CA-092192 (reported at 366 NLRB No. 177) (6th Cir. decided March 12, 2020).
In an unpublished opinion, the Court affirmed in part, reversed in part, and enforced in part, the Board’s order that issued against this provider of transportation, warehousing, and logistics services for unfair labor practices committed after the parties learned in May 2013 that the revised tally of ballots for a 2011 election held among employees at the Memphis, Tennessee warehouse showed that the employees had selected representation by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO. See Ozburn-Hessey Logistics, LLC, 359 NLRB 1025 (2013), incorporated by reference, 361 NLRB 921 (2014).
In the current case, the Board (Members Pearce and McFerran; Chairman Ring, dissenting in part) found that the Employer committed 22 separate violations of Section 8(a)(1), (3), and (5), during the period when the Union resumed organizing to reestablish its presence at the warehouse. In addition to regular remedies, the Board’s order imposed a broad cease-and-desist provision, a notice-reading remedy with the added requirement that all supervisors and managers be in attendance, an extended three-year period of notice-posting, and a requirement that the notice be published in two publications of broad circulation and local appeal. The Board’s imposition of those special remedies was, in large part, justified by the extraordinary history of the Employer’s violations, including those enforced by the D.C. Circuit.
On review, the Employer contested the Board’s findings that it discharged four employees for their union activities in violation of Section 8(a)(3), that it unilaterally changed its timekeeping system and discharged an employee as a consequence of that change in violation of Section 8(a)(5), and disputed the Board’s imposition of special remedies. The Court summarily affirmed the numerous uncontested violations, enforcing those portions of the Board’s order.
On the four unlawful-discharge findings, the Court upheld two, concluding that they were supported by substantial evidence. The Court, however, reversed the other two violations, holding that one employee was fired consistent with a similar discipline imposed only days earlier, and that the other was lawfully discharged for lying about not leaving the warehouse during work hours, while other employees who left the premises had confessed. Regarding the new timekeeping system, the Court disagreed with the Board and held that the upgrading of time clocks was not a “material, substantial, and significant change” in terms or conditions of employment, and, accordingly, the discharge that resulted was not also unlawful.
Lastly, in upholding the special remedies, the Court explained that the Board’s “proffered reasons and justifications refute the [employer’s] claim that these remedies were a ‘patent attempt’ at something other than furtherance of the Act,” quoting Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533 (1943), and concluded: “We accept that the Board intended legitimate remedial purposes and, therefore, we must uphold them.”
The Court’s opinion is here.
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Administrative Law Judge Decisions
National Association of Broadcast Employees & Technicians, The Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL-CIO (19-CB-234944; JD(SF)-08-20) Portland, OR. Administrative Law Judge Mara-Louise Anzalone issued her decision on March 10, 2020. Charge filed by Nexstar Broadcasting, Inc. d/b/a KOIN-TV.
Nestlé USA, Inc. (18-CA-231008; JD-10-20) Little Chute, WI. Administrative Law Judge Charles J. Muhl issued his decision on March 11, 2020. Charge filed by an individual.
Kenny/Obayashi V, a Joint Venture between Kenny Construction Company and Obayashi USA, LLC (08-CA-226350; JD-09-20) Akron, OH. Administrative Law Judge Thomas M. Randazzo issued his decision on March 12, 2020. Charge filed by Laborers’ Local Union No. 894 a/w Laborers International Union of North America.
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