Summary of NLRB Decisions for Week of May 11 - 15, 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
McLaren Macomb (07-CA-232056; 369 NLRB No. 73) Mount Clemens, MI, May 11, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unreasonably delaying in furnishing the Union with relevant requested information.
Charge filed by Local 40, Office and Professional Employees International Union (OPEIU), AFL-CIO. Administrative Law Judge Donna N. Dawson issued her decision on September 30, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
***
Morrison Healthcare (12-RC-257857; 369 NLRB No. 76) Palm Beach Gardens, FL, May 11, 2020.
The Board granted the Employer’s Request for Review of the Regional Director’s Notice of Representation Hearing as it raised substantial issues warranting review and remanded the case to the Regional Director for further proceedings. The Board held that remote hearings may be held in representation cases when “compelling circumstances” exist and clarified that the current COVID-19 pandemic constitutes compelling circumstances. The remote hearing must be conducted by videoconference where there is witness testimony; where there is no witness testimony, or if the parties agree, the hearing may be conducted telephonically.
Petitioner—SEIU United Healthcare Workers East. Chairman Ring and Members Kaplan and Emanuel participated.
***
SCL Health, St. James Medical Group, Rocky Mountain Clinic (19-CA-242468; 369 NLRB No. 29) Butte, MT, May 11, 2020. Errata to February 12, 2020 Decision and Order. Errata. Amended Decision.
***
Providence Health & Services – Oregon d/b/a Providence Portland Medical Center (19-RC-231425; 369 NLRB No. 78) Portland, OR, May 13, 2020.
The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised substantial issues warranting review. The Board held that where a ballot includes markings in more than one square or box, it is void, overruling inconsistent Board precedent, including Thiele Industries, 325 NLRB 1122 (1998). Because the revised tally of ballots showed an equal number of votes for and against representation, the Board vacated the Regional Director’s certification of representative and issued a certification of results. The Board also determined that it was appropriate to apply the new standard retroactively. Finally, the Board directed that the ballot’s instructions, which would appear on the actual ballots used in an election and in the sample ballot included in the notice of election, be changed. The Board noted that the new ballot language would be applicable only prospectively and implemented as soon as practicable, but that the fact that an election was conducted with ballots using the “now-defunct ‘spoiled’ language” would not be grounds for filing objections.
Petitioner—Service Employees International Union Local 49. Chairman Ring and Members Kaplan and Emanuel participated.
***
East Brunswick European Wax Center, LLC (22-CA-178646; 369 NLRB No. 77) East Brunswick, NJ, May 13, 2020.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with provisions of the parties’ informal settlement agreement. The complaint alleged Section 8(a)(3) and (1) violations. The Board ordered a full remedy for the violations found.
Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
***
Horseshoe Bossier City Hotel & Casino (15-CA-215656, et al.; 369 NLRB No. 80) Bossier City, LA, May 15, 2020.
The Board adopted the Administrative Law Judge’s finding that the Respondent failed to establish that dual-rate dealers (DRDs) are supervisors within the meaning of Section 2(11), and the Board found that the Respondent also failed to demonstrate that DRDs are managerial employees. Further, the Board adopted the judge’s conclusions that the Respondent violated Section 8(a)(1) by (1) interrogating an employee, (2) soliciting grievances and impliedly promising to remedy them, (3) threatening that employees would no longer be permitted to ask for a last-minute day off, (4) telling DRDs that they are supervisors and cannot vote, (5) creating the impression of surveillance, (6) blaming the Union for DRDs not being permitted to bid on full-time dealer positions, and (7) ordering employees to remove their union pins. The Board also adopted the judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by refusing to consider DRDs for full-time dealer positions and by discharging an employee. Finally, the Board reversed the judge and dismissed the complaint allegation that the Respondent violated Section 8(a)(1) by promising DRDs the right to bid on full-time dealer positions.
Charges filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Administrative Law Judge Robert A. Ringler issued his decision on July 30, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Sea World Parks & Entertainment (12-RC-257917) Orlando, FL, May 11, 2020. The Board granted the Employer’s Request for Review of the Regional Director’s Order Rescheduling Hearing and Notice of Hearing, as it raised substantial issues warranting review, and remanded the case to the Regional Director for further proceedings consistent with Morrison Healthcare, 369 NLRB No. 76 (2020). The Board also denied the Employer’s Request for a Stay of the hearing as moot. Petitioner—International Union, Security, Police and Fire Professionals of America (SPFPA). Chairman Ring and Members Kaplan and Emanuel participated.
BASF Corporation (07-RC-259428) Muskegon, MI, May 14, 2020. The Board granted the Employer’s Request for Review of the Regional Director’s Order Denying Employer’s Motion to Postpone Until an In-Person Hearing May Be Safely Conducted, as it raised substantial issues warranting review, and remanded the case to the Regional Director for further proceedings consistent with Morrison Healthcare, 369 NLRB No. 76 (2020). The Board also lifted the stay issued May 4, 2020. Petitioner—International Chemical Workers Union Council of the United Food and Commercial Workers International Union, AFL-CIO, CLC. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Local 155, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) AFL-CIO (SAS Automotive USA, Inc.) (07-CB-210547) Sterling Heights, MI, May 12, 2020. No exceptions having been filed to the March 30, 2020 decision of Administrative Law Judge Charles J. Muhl’s finding that the Respondent had not engaged in certain unfair labor practices, the Board dismissed the complaint. Charge filed by an individual.
International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 720, AFL-CIO, CLC (Global Experience Specialists) (28-CB-107693 and 28-CB-113281) Las Vegas, NV, May 12, 2020. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 369 NLRB No. 34 (2020). The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charges filed by individuals. Administrative Law Judge Lisa D. Thompson issued her decision on May 7, 2014. Chairman Ring and Members Kaplan and Emanuel participated.
West Fraser, Inc. (15-CA-235975) Leola, AR, May 15, 2020. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena 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 subpoena. Charge filed by Central South Carpenters Regional Council. Chairman Ring and Members Kaplan and Emanuel participated.
***
Appellate Court Decisions
Coastal Marine Services, Inc., Board No. 21-CA-139031 (reported at 367 NLRB No. 58) (9th Cir. decided May 13, 2020).
In an unpublished memorandum opinion, the Court denied the petition filed by International Association of Heat & Frost Insulators and Allied Workers, Local 5, for review of the Board’s dismissal of a complaint that had issued against this Employer, a business that performs insulation work on ships in San Diego, California. The complaint had alleged that the Employer unlawfully maintained an arbitration agreement that violated Section 8(a)(1), under the Board’s then-precedent of Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015). Thereafter, the Administrative Law Judge found the violation. While the case was pending before the Board on exceptions, the Supreme Court decided Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which reversed the Board’s decision in Murphy Oil. Accordingly, the Board issued a decision dismissing the complaint. The Union filed a Motion for Reconsideration arguing that there were additional theories upon which the Board could have found the violation, which the Board denied.
On review, the Court upheld the Board’s dismissal of the complaint on the basis of Epic Systems’ reversal of Murphy Oil. Further, the Court held that the Board acted within its discretion in declining to entertain arguments not raised by the General Counsel. In doing so, the Court cited the settled principle that a charging party cannot enlarge upon or change the General Counsel’s theory of a case, because Section 3(d) vests in the General Counsel the exclusive prosecutorial authority over unfair labor practices.
The Court’s opinion is here.
***
Administrative Law Judge Decisions
Silver Services Group Corp. and Precise Services Corp., alter ego and successor (22-CA-230596; JD(NY)- 07-20) Newark, NJ. Administrative Law Judge Jeffrey P. Gardner issued his decision on May 11, 2020. Charge filed by Laborers Local 79, Laborers International Union of North America.
Sunrise Operations, LLC, a wholly-owned subsidiary of The Pasha Group (20-CA-219534, et al.; JD(SF)-11-20) San Francisco, CA. Administrative law Judge Lisa D. Ross issued her decision on May 11, 2020. Charges filed by International Organizations of Masters, Mates & Pilots, ILA/AFL-CIO.
Sunbelt Rentals, Inc. (18-CA-236643, et al.; JD-19-20) Franksville, WI. Administrative Law Judge Michael A. Rosas issued his decision on May 13, 2020. Charges filed by International Union of Operating Engineers Local 139, AFL-CIO.
Boar’s Head Provisions Co., Inc. (07-CA-209874 and 07-CA-212031; JD-21-20) Holland, MI. Administrative Law Judge Thomas M. Randazzo issued his decision on May 14, 2020. Charges filed by United Food & Commercial Workers International Union (UFCW), AFL-CIO.
Service Employees International Union, Local 87 (Metro Services Group) (20-CB-206863; JD(SF)-12-20) San Francisco, CA. Administrative Law Judge Gerald M. Etchingham issued his decision on May 14, 2020. Charge filed by an individual.
St. Louis Cardinals, LLC (14-CA-213219; JD-22-20) St. Louis, MO. Administrative Law Judge Arthur J. Amchan issued his decision on May 15, 2020. Charge filed by an individual.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.