Summary of NLRB Decisions for Week of May 4 - 8, 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
Smith’s Food and Drug Centers, Inc. (28-CA-247263; 369 NLRB No. 71) various locations, NM, May 6, 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 requested information that is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit.
Charge filed by Bakery, Confectionery, Tobacco Workers, and Grain Millers, BCTGM Local #351, AFL-CIO-CLC. Chairman Ring and Members Kaplan and Emanuel participated.
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Danbury Ambulance Service, Inc. (01-CA-238987 and 01-CA-240229; 369 NLRB No. 68) Danbury, CT, May 6, 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)(5) and (1) violations.
In light of the ongoing COVID-19 pandemic, the Board modified its standard notice-posting remedy and ordered the Respondent, if the facility involved in these proceedings is closed temporarily due to the pandemic, to post the notices within 14 days after the facility reopens and a substantial complement of employees have returned to work. The Board ordered that any pandemic-related delay in the physical posting will also apply to electronic distribution of the notice. The changes do not apply if the facility involved in these proceedings remains open and staffed by a substantial complement of employees despite the pandemic.
Charges filed by New England Health Care Employees Union, District 1199, SEIU. Chairman Ring and Members Kaplan and Emanuel participated.
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Hoot Winc, LLC and Ontario Wings, LLC d/b/a Hooters of Ontario Mills, Joint Employers (31-CA-104872, et al.; 369 NLRB No. 69) Ontario, CA, May 6, 2020.
On remand from the Ninth Circuit, the Board found that the Respondents had violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that unlawfully interferes with employee access to the Board’s processes. Chairman Ring and Member Kaplan found that the agreement’s exclusion clause, which excluded from coverage “any dispute that cannot be arbitrated as a matter of law,” was legally insufficient to save the arbitration agreement, as a reasonable employee could not be expected to interpret this language as preserving their right to file charges with the Board. Member Emanuel agreed with his colleagues that the Respondents’ maintenance of the arbitration agreement violated Section 8(a)(1), as the agreement’s exclusion of “any dispute that cannot be arbitrated as a matter of law” would not encompass NLRA claims, which can be, and often are, subject to arbitration through collectively-bargained dispute resolution procedures.
Charges filed by individuals. Administrative Law Judge William Nelson Cates issued his decision on May 19, 2014. Chairman Ring and Members Kaplan and Emanuel participated.
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The Market By Jennifer’s LLC (28-CA-236704; 369 NLRB No. 72) Phoenix, AZ, May 6, 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)(1) by ceasing to schedule for work and discharging an employee because the employee engaged in concerted activity for the purposes of mutual aid and protection and to discourage other employees from engaging in protected concerted activity.
Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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MHN Government Services, LLC (27-CA-253931; 369 NLRB No. 74) Colorado Springs, CO, May 7, 2020.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the grounds that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.
Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
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Anderson Enterprises, Inc. d/b/a Royal Motor Sales (20-CA-187467; 369 NLRB No. 70) San Francisco, CA, May 8, 2020.
The Board found that the Respondent’s mandatory arbitration agreement does not violate Section 8(a)(1) under the analytical framework set forth in The Boeing Company, 365 NLRB No. 154 (2017), because, when reasonably interpreted, it does not potentially interfere with employees’ right to access the Board and its processes. The Board concluded that, although the agreement requires arbitration of employment-related disputes, including “statutory” claims, it contained effective “savings clause” language by also specifically providing that employees may bring claims and charges before the Board. The Board overruled SolarCity Corp., 363 NLRB No. 83 (2015), and its progeny, where the pre-Boeing Board found savings clauses nearly identical to that here to be inadequate on the ground that not all potential ambiguities as to the employees’ right to file Board charges had been eliminated from the agreements, as the Boeing Board repudiated such fruitless quest for “linguistic precision.” Likewise, the Board also overruled Ralph’s Grocery Co., 363 NLRB No. 128 (2016), and its progeny, on which the judge relied in finding the Respondent’s agreement unlawful. In so doing, the Board determined that employees would not treat the savings language affirmatively preserving their right to access the Board as mere surplusage just because the coverage language provides that they are required to resolve all statutory employment-related claims through arbitration. The Board pointed out Ralph’s Grocery’s reliance on Murphy Oil USA, Inc., 361 NLRB 774 (2014), subsequently invalidated by the Supreme Court in Epic Systems Corp. v. Lewis, 584 U.S. ___, 138 S.Ct. 1612 (2018). Finally, the Board noted that the agreement does not require an employee with a claim under the NLRA to pursue it before the Board only in an individual capacity.
Charge filed by an individual. Administrative Law Judge Jeffrey D. Wedekind issued his decision on December 4, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
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International Brotherhood of Teamsters Local 492 (Fire and Ice Productions, Inc.) (28-CB-207136; 369 NLRB No. 75) Albuquerque, NM, May 8, 2020.
The Board adopted the Administrative Law Judge’s dismissal of the complaint allegations that the Respondent violated Section 8(b)(1)(A) by maintaining a rule against double rostering, failing to inform hiring hall users of the rule, and failing to inform hiring hall users of the consequences for violating the rule. Specifically, the Board adopted the judge’s findings that the Respondent operated an exclusive hiring hall and that the rule against double rostering is necessary to the Respondent’s function of representing its constituency.
Charge filed by an individual. Administrative Law Judge Amita Baman Tracy issued her decision on June 24, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
BASF Corporation (07-RC-259428) Muskegon, MI, May 4, 2020. The Board stayed the Skype audio hearing scheduled for May 5, 2020, in order to more fully consider and address the issues raised in the Employer’s Request for Review. 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.
Raymundo’s Food Group, LLC (13-RC-244834) Bedford Park, IL, May 5, 2020. The Board denied the Employer’s Requests for Review of the Regional Director’s Decision and Direction of Second Election and the Regional Director’s Decision and Certification of Representative as they raised no substantial issues warranting review. In denying review, Chairman Ring and Member Kaplan found that an alleged immigration-related threat did not warrant setting the election aside; contrary to his colleagues, Member Emanuel found the statements at issue vague and would have granted review and overruled the Petitioner’s objection. Petitioner—United Food and Commercial Workers Local 881. Chairman Ring and Members Kaplan and Emanuel participated.
Johnson Controls, Inc. (16-RC-256972) San Antonio, TX, May 8, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Amended Order and the Regional Director’s Denial of Joint Motion as they raised no substantial issues warranting review. Due to the COVID-19 pandemic, on March 17, 2020, the Regional Director had postponed a manual election scheduled for March 26, 2020, and, after providing the parties an opportunity to respond to his Order to Show Cause, had revoked the parties’ stipulated election agreement, denied their motion to proceed with the manual election, and scheduled an election hearing. In denying the Requests for Review, the Board relied on its decision in Super Valu Stores, Inc., 179 NLRB 469 (1969), as finding that a Regional Director’s authority to approve consent election agreements implied an authority to revoke that approval when “changed circumstances” warrant such action. Further, the Board acknowledged the “unprecedented challenges” of conducting an election during the pandemic, and stated that the question of whether, when, and how to conduct the election would be determined at the election hearing and was not currently before the Board. Finally, the Board noted that the Employer filed a third Request for Review seeking to vacate the Regional Director’s order rescheduling the election hearing and to stay the hearing. The Board treated this filing as a Request for Extraordinary Relief under Section 102.67(j) of the Board’s Rules and Regulations and denied it as moot, subject to renewal of the Employer’s contentions in a later request for review. Petitioner—SMART – Southwest Gulf Coast Regional Council. Chairman Ring and Members Kaplan and Emanuel participated.
Atlas Pacific Engineering Company (27-RC-258742) Pueblo, CO, May 8, 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 lifted its May 1, 2020 stay of the Regional Director’s direction of a mail-ballot election, instructing the Regional Director to, as needed, issue a new Notice of Election and an updated mail-balloting schedule. The Board concluded that the Regional Director did not abuse her discretion in ordering a mail-ballot election here, relying 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,” and noting that mandatory telework in the regional office is based on the Agency’s assessment of current COVID-19 pandemic conditions in the local area. Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
FCA US, LLC (07-CA-213717, et al.) Auburn Hills, MI, May 5, 2020. The Board denied the Respondent’s Motion to Dismiss the Consolidated Complaint, finding no merit to the Respondent’s contention that the Board lacked jurisdiction over this proceeding under Section 10(b) of the Act. Charges filed by individuals. Chairman Ring and Members Kaplan and Emanuel participated.
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) Orlando, FL, May 6, 2020. No exceptions having been filed to the April 3, 2020 decision of Administrative Law Judge Donna N. Dawson’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 individuals.
Local 147, Laborers’ International Union of North America (Northeast Remsco Construction, Inc.) (02-CB-231600) New York, NY, May 6, 2020. No exceptions having been filed to the March 25, 2020 decision of Administrative Law Judge Lauren Esposito’s finding that the Respondent had not engaged in certain unfair labor practices, the Board dismissed the amended complaint. Charge filed by an individual.
Stericycle, Inc. (04-CA-137660, et al.) Southampton, PA, May 8, 2020. After receiving responses to its Notice to Show Cause, the Board severed and remanded to the Administrative Law Judge for consideration under The Boeing Co., 365 NLRB No. 154 (2017), the allegations that various work rules have been unlawfully maintained, including those related to the use of personal electronic devices, personal conduct, conflicts of interest, confidentiality of harassment complaints, and camera and video use. It also severed and remanded to the judge for consideration under Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), allegations that work rules relating to electronic communications were unlawfully maintained. Charges filed by Teamsters Local 628. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Alaris Health at Castle Hill, No. 22-CA-125034 (367 NLRB No. 52); Alaris Health at Rochelle Park, No. 22-CA-124968 (367 NLRB No. 55); Alaris Health at Boulevard East, No. 22-CA-125076 (367 NLRB No. 53); and Alaris Health at Harborview, No. 22-CA-125023 (367 NLRB No. 54) (3d Cir. decided May 4, 2019).
In an unpublished opinion, the Court enforced in full four separate Board orders issued against this management company that operates nursing homes in New Jersey, including the four facilities at issue in this case (Castle Hill, Rochelle Park, Boulevard East, and Harborview), where 420 employees are represented by 1199 Service Employees International Union, United Healthcare Workers East. The Court consolidated the cases for decision, and, dispensing with oral argument, upheld a litany of unfair labor practices committed by Alaris at those facilities in violation of Section 8(a)(5), (3), and (1).
In the absence of exceptions, the Board (Chairman Ring and Members McFerran and Kaplan) adopted the Administrative Law Judge’s findings that, while the parties were negotiating for successor collective-bargaining agreements covering the four facilities, Alaris refused to bargain in good faith with the Union’s chosen bargaining committee, unreasonably delayed providing information requested by the Union, and refused outright to provide information about health insurance and daily work schedules. Moreover, after learning of its employees’ plans to strike partly in protest of those unfair labor practices, Alaris responded by committing a variety of unlawful acts, including threatening employees with job loss and changed working conditions; coercively interrogating employees and surveilling them; reducing strikers’ work hours and changing other terms of their employment; soliciting employees to convince others not to strike; soliciting grievances; prohibiting employees from wearing union insignia; and refusing to permit the Union’s representative to meet at reasonable times with employees in break rooms at one facility.
On the Employer’s exceptions, the Board (Chairman Ring and Members McFerran and Kaplan) found that Alaris violated Section 8(a)(3) and (1) at all four facilities by refusing to immediately reinstate the unfair-labor-practice strikers to their former assignments and work hours because they had engaged in the strike. There was no dispute that Alaris’s employees participated in an unfair-labor-practice strike and that Alaris failed to immediately and fully reinstate many of them for four months. Citing the cardinal rule that unfair-labor-practice strikers are entitled to immediate and full reinstatement upon their unconditional offer to return to work, the Board found the strikers had that right in this case.
Further, the Board found no merit to Alaris’s two asserted defenses. First, the Board found unsupported in law Alaris’s attempt to have the unfair-labor-strikers treated as economic strikers, and rejected its argument that staffing contracts it entered into for certain temporary replacement workers provided a legitimate and substantial business justification for its failure to immediately reinstate. Second, the Board rejected Alaris’s contention that because it operates health care facilities, the Board should have granted it an exception to the requirement of immediate reinstatement. The Board found that claim contrary to the balance struck by Congress in enacting the ten-day notice provision of Section 8(g), which, among other things, gives unions the opportunity to establish the date and time for a strike, and provides health care employers the degree of certainty necessary to plan for continuity of care.
On review, the Court upheld the Board’s finding that Alaris violated Section 8(a)(3) and (1) by refusing to immediately reinstate the unfair-labor-practice strikers and agreed with the Board’s rejection of Alaris’s defensive contentions. As the Court explained, “the substantial business justification exception to immediately reinstating employees does not apply to unfair-labor-practice strikes,” and Alaris is not entitled to an exception from the settled law that “unfair-labor-practice strikers must be immediately and fully reinstated.” Finally, the Court summarily enforced those portions of the Board’s four orders remedying the numerous uncontested violations of the Act committed by Alaris at the four nursing homes.
The Court’s unpublished opinion is here.
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Administrative Law Judge Decisions
International Brotherhood of Electrical Workers, Local 98 (04-CC-229379; JD-20-20) Philadelphia, PA. Administrative Law Judge Robert A. Giannasi issued his decision on May 6, 2020. Charge filed by Post General Contracting, LLC, d/b/a Post Brothers.
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