Summary of NLRB Decisions for Week of November 18 - 22, 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
Spectrum Juvenile Justice Services (07-CA-155494, et al.; 368 NLRB No. 102) Highland Park, MI, November 19, 2019. Errata to October 30, 2019 Decision and Order. Errata Amended Decision.
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Trinity Services Group, Inc. (28-CA-212163; 368 NLRB No. 115) Douglas, AZ, November 20, 2019.
The Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting), reversing the Administrative Law Judge, concluded that the Respondent did not violate Section 8(a)(1) by coercively interrogating an employee. The Board (Members McFerran and Kaplan; Chairman Ring, dissenting) adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by disparaging the Union.
Charge filed by United Food and Commercial Workers Union, Local 99. Administrative Law Judge John T. Giannopoulos issued his decision on November 7, 2018. Chairman Ring and Members McFerran and Kaplan participated.
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Four Seasons Healthcare & Wellness Center, LP, a California Limited Partnership (31-CA-169143; 368 NLRB No. 117) North Hollywood, CA, November 21, 2019.
The Board found that, in light of the Supreme Court decision in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018), the complaint allegations that the Respondent’s mandatory arbitration agreement violated Section 8(a)(1) must be dismissed.
The Board severed and retained the issue of whether the mandatory arbitration agreement unlawfully restricts employees’ right to file charges with the Board. The Board observed that, when the Administrative Law Judge issued his decision, the issue of whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would have been resolved based on the “reasonably construe” prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). The Board noted that it subsequently issued its decision in The Boeing Company, 365 NLRB No. 154 (2017), in which it overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases. The Board issued a Notice to Show Cause why this allegation should not be remanded to the judge for further proceedings in light of Boeing.
Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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ADT, LLC (16-CA-144548, et al.; 368 NLRB No. 118) Fort Worth, TX, November 22, 2019.
The Board reversed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by refusing to place new hires in the historic bargaining unit, withdrawing recognition of the Union, making several unilateral changes to unit employees’ terms and conditions of employment, and refusing to provide, and delaying in providing, information to the Union. The Board dismissed these allegations on the grounds that, after the Respondent consolidated the historic unit with a larger nonunit group, the unit lost its separate identity and the Respondent was no longer obligated to recognize and bargain with the Union. The Board adopted the judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging an employee for engaging in union activities and Section 8(a)(1) by telling employees they would not receive raises because of the union contract.
Charges filed by Communications Workers of America, AFL-CIO. Administrative Law Judge Robert A. Ringler issued his decision November 16, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
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Transdev Services, Inc. (05-CA-195364; 368 NLRB No. 121) Hyattsville, MD, November 22, 2019.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case, finding that the Respondent received the Union’s requests for bargaining. The Board, in a decision reported at 368 NLRB No. 12 (2019), had granted summary judgment as to all representation issues in the case, finding that all such issues were or could have been, litigated in the underlying representation proceedings in which the Union was certified as the collective-bargaining representative. Charge filed by Amalgamated Transit Union Local 689, a/w Amalgamated Transit Union, AFL-CIO. Members McFerran, Kaplan, and Emanuel participated.
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Tschiggfrie Properties, Ltd. (25-CA-161304; 368 NLRB No. 120) Dubuque, IA, November 22, 2019.
On remand from the Eighth Circuit Court, the full Board unanimously reaffirmed the Board’s conclusion in the underlying decision that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for engaging in union activity. The Court had concluded that, in the underlying decision, the Board had not held the General Counsel to the proper burden under Wright Line, 251 NLRB 1083 (1980), and instructed the Board to apply Wright Line consistent with its opinion on remand. Consistent with the Court’s opinion, the Board found that the General Counsel established a connection or nexus between the Respondent’s animus toward the employee’s union activity and its decision to discharge him. The Board also reaffirmed the finding in the underlying decision that the Respondent failed to establish that it would have discharged the employee even absent his union activity.
A full Board majority (Chairman Ring and Members Kaplan and Emanuel) clarified the General Counsel’s burden under Wright Line. The Board explained that Wright Line is inherently a causation test and that the General Counsel therefore does not invariably sustain his burden by producing—in addition to evidence of the employee’s protected activity and the employer’s knowledge thereof—any evidence of the employer’s animus or hostility toward union or other protected activity. Instead, the General Counsel must establish that a causal relationship exists between the employee’s protected activity and the employer’s adverse action against the employee. The majority overruled Mesker Door, 357 NLRB 591 (2011), Libertyville Toyota, 360 NLRB 1298 (2014), and their progeny to the extent that they suggest that the General Counsel necessarily satisfies his burden of proof under Wright Line by simply producing any evidence of the employer’s animus or hostility toward union or other protected activity. The majority emphasized that its clarification does not mark a radical shift in the Board’s interpretation or application of Wright Line, as it did not take issue with the Board’s standard three-element formulation of the General Counsel’s burden or seek to add a fourth “nexus” element.
Member McFerran, concurring in the result, disagreed with the majority that it was necessary to clarify the General Counsel’s burden under Wright Line. She agreed with the majority that the principles described above, in particular that the General Counsel must establish a causal relationship between the employee’s protected activity and the employer’s adverse action against the employee, are embedded in the Wright Line framework and in the Board’s precedent applying it. However, unlike the majority, she believes that the Board’s decisions in Mesker Door and Libertyville Toyota are consistent with those principles.
Charge filed by Teamsters Local 120, a/w International Brotherhood of Teamsters. Administrative Law Judge Keltner W. Locke issued his decision on June 24, 2016. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Atlantic City Electric Co. (04-RC-221319) Mays Landing, NJ, November 18, 2019. On review, a Board majority (Members McFerran and Kaplan) affirmed the Acting Regional Director’s conclusion that the Employer did not meet its burden to prove that its System Operators possess the authority to assign or responsibly direct employees within the meaning of Section 2(11) of the Act, and therefore, the System Operators do not constitute statutory supervisors. Member Emanuel, dissenting, would have found that the System Operators are statutory supervisors because they assign or designate field and their crews to places, using independent judgment, and because they give significant overall duties to field personnel. Petitioner—International Brotherhood of Electrical Workers, Local 210. Members McFerran, Kaplan, and Emanuel participated.
Apple Bus Company (19-RD-216636) Soldotna, AK, November 18, 2019. The Board denied the Petitioner’s Requests for Review of the Regional Director’s decisions to hold the petition in abeyance, as they raised no substantial issues warranting review. In denying review, the Board relied solely on the pendency of notice-posting periods associated with settlements in the respective “blocking” unfair labor practice cases. The Board noted that any further action with respect to the petition must be consistent with the recent decision in Pinnacle Foods Group, LLC, 368 NLRB No. 97 (2019). Petitioner—an Individual. Union—International Brotherhood of Teamsters, Local 959. Chairman Ring and Members Kaplan and Emanuel participated.
Legacy Emanuel Hospital & Health Center d/b/a Unity Center for Behavioral Health (19-RC-241339) Portland, OR, November 18, 2019. 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 found that the Employer had not overcome the presumption that a single-facility unit of registered nurses employed at the Unity Center for Behavioral Health was the appropriate unit. Petitioner—Oregon Nurses Association. Chairman Ring and Members Kaplan and Emanuel participated.
St. James Medical Group (19-RC-234472) Butte, MT, November 20, 2019. The Board denied the Employer’s Motion for Clarification of the Board’s October 25, 2019 Order finding it did not demonstrate that further clarification is warranted. Petitioner—Teamsters Union Local No. 2, a/w International Brotherhood of Teamsters. Chairman Ring and Members Kaplan and Emanuel participated.
Island Hospitality Management II, LLC d/b/a Hampton Inn-Long Island Brookhaven (29-RC-235501) Farmingville, NY, November 21, 2019. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Order and Certification of Representative as it raised no substantial issues warranting review, and further denied the Employer’s Request for extraordinary relief as moot. Petitioner —New York Hotel & Motel Trades Council, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Jake’s 58 Casino Hotel (29-RD-240966) North Islandia, NY, November 22, 2019. 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—International Union of Operating Engineers, Local 30, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
NSL Country Gardens, LLC (01-CA-223025, et al.) Swansea, MA, November 21, 2019. No exceptions having been filed to the October 7, 2019 decision of Administrative Law Judge Geoffrey Carter’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 New England Healthcare Employees Union 1199 and an individual.
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Appellate Court Decisions
Rockwell Mining, LLC, Board Case No. 09-CA-216001 (reported at 367 NLRB No. 46) (D.C. Cir. decided, November 18, 2019).
In an unpublished judgment, the Court enforced the Board’s order that issued against this operator of the Glancy Surface Mine in Wharton, West Virginia, in this test-of-certification case after its employees voted 27 to 25 in a July 2016 election to be represented by the United Mineworkers of America. In doing so, the Court held that the Board acted within its discretion in overruling the sole election objection for which the Employer sought review.
After the election, the Employer filed objections which included an allegation that a pro-union employee had coerced 16 of his fellow employees into signing union authorization cards during a meeting that was held before the Union filed its petition seeking an election. After a hearing was held on objections, the Hearing Officer resolved the conflicting testimony to find that the statement made by the pro-union employee to his co-workers was that “if they did not sign, they would not be protected or covered by the Union if something bad happened.” The Hearing Officer concluded that the statement did not warrant setting aside the election because, under longstanding Board policy, it was made prior to the “critical period” between the filing of the election petition and the election, as set forth in Ideal Electric & Manufacturing Co., 134 NLRB 1275 (1961). On review, the Regional Director adopted the Hearing Officer’s findings and agreed that the statement was unlike the more severe conduct in cases where the Board had departed from Ideal Electric, and that the statement was nevertheless too vague and ambiguous to be either a promise or a threat and was, at most, benign election propaganda. The Employer filed a Request for Review with the Board, which was denied (Chairman Ring and Members Kaplan and Emanuel). The Employer then refused to bargain in order to seek court review.
On review, the Court gave deference to the Board’s overruling of the election objection, noting that under Ideal Electric, “the Board will not set aside an election based on pre-petition conduct unless ‘it has found clearly proscribed activity likely to have a significant impact on the election,’” quoting Royal Packaging Corp., 284 NLRB 317 (1987). The Court explained that it was reasonable for the Board to determine that “a single comment—which was plausibly ambiguous and not clearly a threat—did not qualify as ‘clearly proscribed activity.’” Additionally, the Court rejected the Employer’s challenges to the facts established by the Hearing Officer on the basis of witness credibility, as well as its contention that Ideal Electric should be revisited.
The Court’s unpublished judgment may be found here.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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