Summary of NLRB Decisions for Week of May 18 - 22, 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
Sheffield Barbers, LLC (28-CA-199308, et al.; 369 NLRB No. 81) Las Vegas, NV, May 19, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee for her protected concerted activity.
Charges filed by Nellis Barbers Association and an individual. Administrative Law Judge Gerald Michael Etchingham issued his decision on August 27, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Edward Hotel Michigan, LLC d/b/a Edward Hotel & Convention Center d/b/a Edward Hotel, Edward Hotel Detroit, LLC, Edward Hotel Management, LLC, Edward Hotel Holdings, Inc. (07-CA-240810; 369 NLRB No. 86) Dearborn, MI, May 19, 2020.
The Board granted the General Counsel’s Motion for Summary Judgment based on the Respondents’ failure to file an answer to the complaint. The complaint alleged that the Respondents violated Section 8(a)(5) and (1) by failing to provide the Union with notice and a meaningful opportunity to engage in bargaining over their decision to close their hotel and to permanently lay off hotel employees. The Board found that the Respondents violated Section 8(a)(5) and (1) by failing and refusing, upon the Union’s request, to engage in effects bargaining.
Charge filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
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International Shipping Agency, Inc., Marine Terminal Services, Inc., and Truck Tech Services, Inc., a single employer (24-CA-091723, et al.; 369 NLRB No. 79) San Juan, PR, May 20, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) when two supervisors grabbed and pushed an employee because of his protected activity. The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by ceasing operations and discharging the employees at the Marine Terminal Services and Truck Tech Services facilities and found it unnecessary to address the judge’s finding that the discharges and closing of Marine Terminal Services violated Section 8(a)(5) as well. Additionally, the Board adopted the judge’s dismissal of allegations that the Respondent violated Section 8(a)(5) by changing Intership maintenance workers’ hours and by changing its auto checker procedures. The Board (Chairman Ring and Member Kaplan; Member Emanuel, dissenting) reversed the judge and found that the Respondent also violated Section 8(a)(3) and (1) by suspending a union steward.
Charges filed by Union de Empleados de Muelles (UDEM), ILA 1901, AFL-CIO. Administrative Law Judge Robert A. Ringler issued his decision on March 30, 2016. Chairman Ring and Members Kaplan and Emanuel participated.
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CW Building Maintenance (20-CA-253040; 369 NLRB No. 83) San Francisco, CA, May 20, 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)(5) and (1) by failing and refusing to provide the Union with information necessary for, and relevant to, performing its duties as the exclusive collective-bargaining representative of the unit.
Charge filed by Service Employees International Union, SEIU Local 87. Chairman Ring and Members Kaplan and Emanuel participated.
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Interstate Management Company, LLC as agent for Bre Newton Hotels Property Owner, LLC d/b/a Residence Inn by Marriott Santa Fe All-Suites Hotel (28-CA-206663; 369 NLRB No. 84) Santa Fe, NM, May 20, 2020.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining two workplace rules. Applying The Boeing Co., 365 NLRB No. 154 (2017), the Board found the Respondent’s legitimate business interests for both its Government Investigations policy and Information Protection policy outweighed the slight risk that employees would misread the rules as restricting their Section 7 rights.
Charge filed by Residence Marriott Committee. Administrative Law Judge John T. Giannopoulos issued his decision on September 11, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Cott Beverages Inc. (16-CA-181144; 369 NLRB No. 82) San Antonio, TX, May 20, 2020.
Upon remand to the Administrative Law Judge for further consideration under The Boeing Company, 365 NLRB No. 154 (2017), the Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining rules that prohibit employees from possessing cell phones on the manufacturing floor and at workstations. Applying Boeing, the Board found that the rules at issue are lawful because the Respondent’s legitimate business interests outweigh the relatively slight risk that the rules will interfere with employees’ right to engage in protected activity.
Charge filed by an individual. Administrative Law Judge Paul Bogas issued his supplemental decision on October 7, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Altura Communication Solutions, LLC (13-CA-174605; 369 NLRB No. 85) Downers Grove, IL, May 21, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by engaging in overall bad faith bargaining and unilaterally changing unit employees’ terms and conditions of employment.
Charge filed by International Brotherhood of Electrical Workers, Local 2. Administrative Law Judge David I. Goldman issued his decision on July 27, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
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American Postal Workers Union Local 238 (United States Postal Service) (14-CB-253322; 369 NLRB No. 87) Kansas City, KS, May 22, 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(b)(1)(A) by failing to process a class action grievance and misinforming employees as to the status of the grievance.
Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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Edward Hotel Michigan, LLC d/b/a Edward Hotel & Convention Center d/b/a Edward Hotel, Edward Hotel Detroit, LLC, Edward Hotel Management, LLC, Edward Hotel Holdings, Inc. (07-CA-240810; 369 NLRB No. 86) Dearborn, MI, May 22, 2020. Errata to May 19, 2020 Decision and Order. Errata Amended Decision.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Touchpoint Support Services, LLC (07-RC-258867) Southfield, MI, May 18, 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 Board also denied the Employer’s Emergency Motion to Stay the Election as moot. In denying review, the Board concluded that the audio-only pre-election hearing complied with Morrison Healthcare, 369 NLRB No. 76 (2020), because it did not include witness testimony. In concluding that a mail-ballot election was warranted in this case, the Board relied upon the “extraordinary circumstances” exception set forth in San Diego Gas & Electric, 325 NLRB 1143 (1998), and upon “the extraordinary federal, state, and local government directives that have limited nonessential travel, required the closure of nonessential businesses, and resulted in a determination that the regional office charged with conducting this election should remain on mandatory telework,” with mandatory telework in the regional office being based on the Agency’s assessment of current COVID-19 pandemic conditions in the local area. The Board found that the Employer’s concern about whether the regional office would or could comply with applicable mail-ballot and ballot count procedures given that its staff was teleworking and its concern about potential disenfranchisement of voters if the ballots were delayed in the mail could be raised, if applicable, in post-election objections. Petitioner—Michigan Council 25, American Federation of State, County, and Municipal Employees (AFSCME), AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Johnson Controls, Inc. (16-RC-256972) San Antonio, TX, May 18, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election setting a mail ballot election. The Regional Director had ordered a mail ballot election pursuant to the “extraordinary circumstances” exception to the election-method guidelines set out in San Diego Gas & Electric, 325 NLRB 1143 (1998), finding that a manual election under pandemic conditions would carry a risk of exposure to COVID-19 for the employees, party representatives, Board personnel, their families, and the wider community. In denying review, the Board relied on “the extraordinary federal, state, and local government directives that have limited nonessential travel, required the closure of nonessential businesses, and resulted in a determination that the regional office charged with conducting this election should remain on mandatory telework.” The Board also denied the Employer’s Requests for extraordinary relief as moot. Petitioner—SMART – Southwest Gulf Coast Regional Council. Chairman Ring and Members Kaplan and Emanuel participated.
Leisure Knoll at Manchester (04-RC-249476) Manchester Township, NJ, May 21, 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. Petitioner—SEIU Local 32BJ. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Genpak, LLC (15-CA-237525) Hope Hull, AL, May 21, 2020. The Board denied the Respondent’s Motion for Summary Judgment as 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. Charge filed by Retail, Wholesale and Department Store Union, Mid-South Council. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Green Apple Supermarket of Jamaica, Inc., Board No. 29-CA-183238 (reported at 366 NLRB No. 124) (2d Cir. decided May 20, 2020).
In an unpublished summary order, the Court enforced the Board’s order that issued against this operator of a chain of grocery stores in the New York City metropolitan area for unfair labor practices committed at its store in Jamaica, New York. In doing so, the Court upheld the findings of the Board (Members McFerran, Kaplan, and Emanuel) that the Employer committed unfair labor practices before and after its meat department workers voted 4 to 0 in a June 2016 election to be represented by the United Food and Commercial Workers Union, Local Union 342, AFL-CIO.
The Board found that the Employer violated Section 8(a)(1) by a series of threats, including to discharge employees and to close the store if the employees voted for the Union, and to more strictly enforce its work rules. The Board also found that the Employer violated Section 8(a)(3) and (1) by disciplining and discharging the two outspoken union advocates for their union activity, and, after the election, violated Section 8(a)(5) and (1) by unilaterally changing working conditions without bargaining and by refusing to provide the union with information. In addition to its usual remedies, the Board issued a notice-reading requirement.
Before the Court, the Employer challenged only the Board’s findings that the two employees were unlawfully disciplined and discharged for their union support. Reviewing the Board’s application of Wright Line, the Court held that substantial evidence supported the Board’s determinations that the Employer had an unlawful motive in taking those adverse actions against the employees, as well as the Board’s finding that the Employer’s proffered reasons for its actions were pretextual. In sum, the Court stated: “The totality of the substantial evidence, including the Board’s findings that [the employer] did not offer [the employees] an opportunity to explain themselves before taking adverse action, as well as the timing of their firing, all contribute to the reasonable conclusion that [the employer] illegally sought to punish [the employees] for engaging in activities protected by law.” Finding no merit to the Employer’s remaining arguments, the Court enforced the Board’s order in full.
The Court’s summary decision may be found here.
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Administrative Law Judge Decisions
LHoist North America of Alabama, LLC, a Subsidiary of LHoist North America (10-CA-221731; JD-23-20) Calera, AL. Administrative Law Judge Sharon Levinson Steckler issued her decision on May 21, 2020. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 563.
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