Summary of NLRB Decisions for Week of May 20 - 24, 2019
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
Entergy Nuclear Operations, Inc. (01-CA-153956, et al.; 367 NLRB No. 135) Plymouth, MA, May 21, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate the Act when it issued a verbal warning to a union steward for engaging in profane and threatening behavior in the course of otherwise protected concerted and union activity because she lost the protection of the Act. The Board dismissed the complaint related to the steward’s discipline.
Charges filed by United Government Security Officers of America, Local 25. Administrative Law Judge Paul Bogas issued his decision on May 12, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
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Volkswagen Group of America Chattanooga Operations, LLC (10-RC-239234; 367 NLRB No. 138) Chattanooga, TN, May 22, 2019.
A Board majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting) granted the Employer’s Request for Review of the Regional Director’s Order Deferring Ruling on Motion to Dismiss Petition and ordered the Regional Director to dismiss the petition under the certification bar doctrine. Member McFerran would have found an exception to the certification bar due to the unusual circumstances presented by the case. Petitioner—International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Chairman Ring and Members McFerran and Kaplan participated.
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Electrolux Home Products, Inc. (15-CA-206187; 367 NLRB No. 136) Memphis, TN, May 22, 2019.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for insubordination. Pursuant to Wright Line, 251 NLRB 1083 (1980), the Board found that the record did not contain evidence to support an inference of anti-union animus. In addition, the Board adopted the judge’s recommended dismissal of the allegation that the Respondent independently violated Section 8(a)(1) by discharging an employee for engaging in protected concerted activities. Accordingly, the Board dismissed the complaint.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on July 2, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Anheuser-Busch, LLC (12-CA-094114; 367 NLRB No. 132) Jacksonville, FL, May 22, 2019.
A Board majority (Chairman Ring and Member Emanuel; Member McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by filing a motion in federal district court to compel arbitration, under its Dispute Resolution Program (DRP), of racial discrimination claims raised by a discharged bargaining unit employee. The DRP, by its terms, applied to “salaried and non-union hourly employees,” and it differed from the grievance-arbitration provisions of the collective-bargaining agreement that had covered the employee, a non-salaried hourly employee, throughout his employment. Further, the Respondent had not previously suggested that the DRP might apply to a former bargaining unit employee, and it had not provided the Union notice or an opportunity to bargain over the DRP’s potential application to the employee. In accordance with Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983), BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002), and related precedents, however, the majority found that the Petition Clause of the First Amendment prevents the Board from finding that the Respondent’s motion violates the Act unless it is both baseless and retaliatory or falls within the exception at issue here, litigation that has an illegal objective. The majority found that the Respondent’s motion, which sought to apply a lawful provision, did not have an illegal objective and was distinguishable from any litigation that the Board had previously found to have an illegal objective. Nor was the motion baseless and retaliatory. Because, in his application for employment with the Respondent, the employee had agreed that he would be bound by the DRP “unless a written contract provide[d] to the contrary,” the majority found that the Respondent’s contention that the DRP applied to the employee after his discharge was not plainly foreclosed as a matter of law nor otherwise frivolous; thus, the motion was not baseless. And there was no contention that the Respondent sought by its motion to retaliate against the employee for activity protected by the Act. Accordingly, the majority found that the Petition Clause protected the Respondent’s motion and dismissed the complaint.
Dissenting, Member McFerran first found (addressing an issue that the majority did not reach) that the employee remained an employee and a member of the bargaining unit for the purpose of challenging his suspension and discharge. Member McFerran further found that the Respondent’s motion sought to unilaterally apply the DRP to the employee by court order, thus changing his terms and conditions of employment in a way that the Respondent could not lawfully do by other means. In her view, the Respondent’s motion therefore constituted petitioning the court with an illegal objective. Member McFerran analyzed cases applying the illegal-objective exception differently from the majority and concluded that finding an illegal objective in this case would be consistent with Board and court precedents. Thus, Member McFerran would have found the violation and ordered appropriate remedies.
Charge filed by an individual. Administrative Law Judge William Nelson Cates issued his decision on September 10, 2013. Chairman Ring and Members McFerran and Emanuel participated.
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Roemer Industries, Inc. (08-CA-188055, et al.; 367 NLRB No. 133) Masury, OH, May 23, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by impliedly threatening employees’ continued employment, telling employees that it had hired a union-busting lawyer, threatening to eliminate a training incentive pay program, and telling employees that it had to rescind a wage increase because the Union had filed a Board charge. In addition, the Board adopted the judge’s conclusions that the Respondent violated: (1) Section 8(a)(3) and (1) by suspending and discharging one employee because of his union activity; (2) Section 8(a)(4) and (1) by rescinding a wage increase in retaliation for the Union’s filing of a Board charge; and (3) Section 8(a)(5) and (1) by dealing directly with unit employees, refusing to provide relevant requested information to the Union, and unilaterally increasing and then decreasing wages of unit employees. The Board also referred apparent misconduct by the Respondent’s attorney to the Investigating Officer for investigation and such disciplinary action as may be appropriate pursuant to Section 102.177 of the Board’s Rules and Regulations.
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC. Administrative Law Judge Sharon Levinson Steckler issued her decision on September 24, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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MCPc, Inc. (06-CA-063690; 367 NLRB No. 137) Pittsburgh, PA, May 23, 2019.
Upon remand from the Third Circuit Court, in a Supplemental Decision and Order, the Board found that the Respondent violated Section 8(a)(1) when it discharged an employee for his protected concerted activity of discussing an executive’s pay in the course of complaining about an engineer shortage. The Court concluded that the Board failed to adequately analyze the Respondent’s defense that it lawfully fired the employee for accessing confidential salary information and later being dishonest about it. After reexamining the evidence, the Board concluded that the Respondent’s shifting justifications for the termination demonstrated that its rationale was pretextual.
Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on June 7, 2012. Chairman Ring and Members McFerran and Kaplan participated.
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Dillon Companies, Inc. d/b/a King Soopers (27-CA-237098; 367 NLRB No. 141) Broomfield, CO, May 23, 2019.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were, or could have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board therefore found that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union as the exclusive collective-bargaining representative of the voting unit as part of the existing multi-store unit.
Charge filed by United Food and Commercial Workers Local 7. Chairman Ring and Members McFerran and Kaplan participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
New York Paving, Inc. (29-CA-197798, et al.) Long Island City, NY, May 20, 2019. No exceptions having been filed to the April 5, 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. Charges filed by Construction Council Local 175, Utility Workers Union of America, AFL-CIO.
Malco Enterprises of Nevada, Inc. d/b/a Budget Rent A Car of Las Vegas (28-CA-213222) Las Vegas, NV, May 20, 2019. No exceptions having been filed to the March 8, 2019 decision of Administrative Law Judge Dickie Montemayor’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint. Charge filed by an individual.
AT&T Mobility Services, LLC (20-CA-215835) Sacramento, CA, May 21, 2019. No exceptions having been filed to the April 9, 2019 decision of Administrative Law Judge Gerald M. Etchingham’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint. Charge filed by an individual.
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Appellate Court Decisions
Michael Cetta, Inc. d/b/a Sparks Restaurant, Board Case No. 02-CA-142626 (reported at 366 NLRB No. 97) (D.C. Cir. decided May 20, 2019)
In an unpublished judgment, the Court enforced the Board’s order issued against this operator of a restaurant in New York, New York, for unfair labor practices committed after its waiters and bartenders voted in 2013 to be represented by United Food and Commercial Workers Local 342. In doing so, the Court upheld the findings of the Board (Members Pearce, McFerran, and Emanuel) that the Employer violated Section 8(a)(3) and (1) by refusing to reinstate striking employees after they unconditionally offered to return to work, and by discharging them, and summarily upheld the Board’s additional findings.
In December 2014, after the parties had negotiated for 18 months to reach a first contract without success, 36 employees went on strike over the lack of progress in bargaining. In the coming days, the Employer hired 34 employees to replace the strikers. Nine days into the strike, the employees made an unconditional offer to return to work. The Employer refused to rehire them and banned them from the premises, claiming the strikers had engaged in picket-line violence and intimidation. After the Employer could not provide the Union with a single example of such misconduct, the Employer then claimed its refusal to reinstate the strikers was justified because it had hired permanent replacements, and that it suffered a drop in business and no longer needed as much waitstaff. On review, the Board applied the settled principle that an employer must reinstate striking employees immediately once they unconditionally offer to return to work, unless the employer provides a legitimate and substantial business justification not to do so. The Board noted that it was undisputed that the strikers made an unconditional offer to return and that the Employer had refused to rehire them. Regarding the Employer’s stated justifications, the Board determined that they were contrary to the record evidence. Among other findings, the Board concluded that the Employer unlawfully discharged the employees for taking part in a strike.
The Court held that the Board’s discharge finding was amply supported by the Employer’s “repeated rejections of the employees’ offer to return, its shifting explanations for those rejections, and its ban on the employees returning to the restaurant for any purpose.” Further, the Court noted that “the test is objective,” and that “the Board’s general counsel was under no obligation to call any employees to testify to their subjective belief that they had been discharged.” On the failure-to-reinstate finding, the Court rejected the Employer’s justification that it had hired permanent employees and thus was relieved of the duty to reinstate. The Court noted that, under settled law, the Employer failed to show that it had a mutual understanding with the replacements that the nature of their employment relationship was permanent, and that the understanding was reached prior to the strikers’ unconditional offer to return to work. Regarding the Employer’s stated justification that it no longer needed as much waitstaff due to a downturn in business, the Court upheld the Board’s determination that the downturn was merely seasonal after the December holiday rush, and did not explain the Employer’s refusal to reinstate the strikers. Accordingly, the Court enforced the Board’s order in full.
The Court’s judgment may be found here.
Tito Contractors, Inc., Board Case No. 05-CA-119008 (reported at 366 NLRB No. 47) (D.C. Cir. decided May 24, 2019)
In an unpublished judgment, the Court enforced the Board’s order issued against this provider of general contracting, construction, painting, and recycling services in the District of Columbia and nearby suburban Maryland. The Board (Members Pearce, McFerran, and Emanuel) found that the Employer committed numerous violations of Section 8(a)(1) and (3), including threats, interrogations, unlawful rule violations, and various levels of discipline and discharges imposed on the basis of the employees’ protected activities.
Before the Court, the Employer contested only the Board’s findings that it unlawfully discharged five employees, and that it issued a new overtime rule in response to union activity which it also discriminatorily applied to seven employees who were plaintiffs in a FLSA lawsuit. In upholding the Board’s unlawful discharge findings, the Court cited a manager’s statements of hostility against the Union and the employees’ union activities that were made directly to three employees at the time of discharge, and noted that the Employer’s knowledge of the other two employees’ union activities was uncontested. On the Employer’s asserted defenses, the Court held that the Employer’s claims that it would have discharged the employees because of misconduct and low productivity despite their union activities were pretextual.
On the rule violations, the Court cited managers’ statements that the new overtime policy would apply only to those employees who had joined the FLSA lawsuit, and thus that the rule was created in response to protected activity. The Court also agreed with the Board that the rule was discriminatorily applied only to those employees, as shown by payroll records and evidence of how overtime assignments were determined. Finally, the Court rejected the Employer’s contention that the Board improperly left certain evidentiary questions on the scope of the remedy to the compliance phase of the case.
The Court’s judgment may be found here.
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Administrative Law Judge Decisions
Transportation Services of St. John, Inc. (12-CA-202248; JD-44-19) St. John, USVI. Administrative Law Judge Elizabeth M. Tafe issued her decision on May 20, 2019. Charge filed by United, Industrial, Service, Transportation, Professional and Government Workers of North America, of the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District/NMU, AFL-CIO.
Argos USA LLC d/b/a Argos Ready Mix, LLC (12-CA-196002 and 12-CA-203177; JD-43-19) Naples, FL, May 23, 2019. Errata to Administrative Law Judge Kimberly R. Sorg-Graves’ May 14, 2019 decision. Charges filed by Construction and Craft Workers Local Union 1652, Laborers’ International Union of North America, AFL-CIO. Errata Amended decision.
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