Summary of NLRB Decisions for Week of November 25 - 29, 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
Queen of the Valley Medical Center (20-CA-191739, et al.; 368 NLRB No. 116) Napa, CA, November 25, 2019.
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union and by subsequently failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit employees. The Board affirmed that the Respondent recognized the Union, bargained, and then stopped bargaining and withdrew recognition, thereby waiving its right to invoke the test-of-certification procedures. The Board also adopted the judge’s conclusion that the Respondent unlawfully failed to provide information requested by the Union, unlawfully changed terms and conditions of employment, and unlawfully denied an employee a Weingarten representative.
A Board majority (Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the judge’s conclusion that a supervisor unlawfully threatened an employee by informing the employee that, union or no union, he would run his department as he saw fit. The Board majority found that the statement was too vague to constitute a threat of futility. The same majority also reversed the judge’s conclusion that the Respondent discriminatorily altered the schedule of an environmental services employee in retaliation for protected activity. The majority held that there was an inadequate basis to infer that the Employer had knowledge of and bore animus toward the employee’s protected activity. Dissenting, Member McFerran agreed with the judge that the circumstantial evidence warranted an inference of knowledge and unlawful motivation. Finally, the majority also reversed (Member McFerran dissenting) the judge’s notice-reading remedy.
Charges filed by National Union of Healthcare Workers (NUHW). Administrative Law Judge Sharon Levinson Steckler issued her decision on February 28, 2018. Members McFerran, Kaplan, and Emanuel participated.
***
PCC Structurals, Inc. (19-CA-207792 and 19-CA-233690; 368 NLRB No. 122) Portland, OR, November 27, 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 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 and by failing and refusing to furnish the Union with requested information that was relevant and necessary to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit.
Charges filed by International Association of Machinists and Aerospace Workers, Local Lodge 63. Members McFerran, Kaplan, and Emanuel participated.
***
Everglades College, Inc. d/b/a Keiser University and Everglades University (12-CA-096026; 368 NLRB No. 123) Fort Lauderdale, FL, November 27, 2019.
On remand from the Eleventh Circuit Court, the Board (Chairman Ring and Members McFerran and Kaplan; Member Emanuel, dissenting in part and concurring in part) found that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that unlawfully restricts access to the Board and its processes, and by discharging an employee for failing to sign it.
A full Board majority (Chairman Ring and Members McFerran and Kaplan; Member Emanuel, dissenting in part), applying the standard announced in The Boeing Co., 365 NLRB No. 154 (2017), concluded that the Respondent violated Section 8(a)(1) by maintaining its mandatory arbitration agreement covering “[a]ny controversy or claim arising out of or relating to Employee’s employment, Employee’s separation from employment, and this Agreement…except where specifically prohibited by law….”
Following its recent decision in Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), the Board concluded that the Respondent’s mandatory arbitration agreement, “when reasonably interpreted, plainly makes arbitration the exclusive forum for the resolution of all claims, including statutory claims under the Act…[and that] a reasonable employee would understand that agreement to restrict access to the Board.” Finally, the Board concluded that the vague exclusion clause – “except where specifically prohibited by law” – contained in the agreement was insufficient to put employees on notice that claims arising under the Act would be excluded from the agreement’s coverage. As the Board explained, “Vague, generalized language like that in the…[arbitration agreement] purporting to exclude claims for which arbitration is ‘prohibited by law’ would undoubtedly require employees to meticulously determine the state of the law themselves.” Dissenting in relevant part, Member Emanuel would have found the exclusion clause sufficient to put employees on notice that claims under the Act were excluded from the arbitration agreement’s coverage. However, the full Board unanimously (Member Emanuel, concurring) found that the Respondent violated Section 8(a)(1) by discharging the employee for failing to sign the mandatory arbitration agreement.
Charge filed by an individual. Administrative Law Judge Melissa M. Olivero issued her decision on August 14, 2013. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
***
Roseburg Forest Products Co. (19-CA-213306; 368 NLRB No. 124) Riddle, OR, November 29, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by suspending and discharging an employee for engaging in protected concerted complaints about working conditions, and that the suspension and discharge also violated Section 8(a)(3) because the Respondent acted in response to the employee’s communication with fellow employees on a union-moderated Facebook page.
Charge filed by Carpenters Industrial Council (CIC), Local Union No. 2949. Administrative Law Judge Eleanor Laws issued her decision on October 31, 2018. Members McFerran, Kaplan, and Emanuel participated.
***
Paragon Systems, Inc. (13-CA-241354; 368 NLRB No. 125) Chicago, IL, November 29, 2019. 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 relevant and necessary information to the Union upon request.
Charge filed by Committee for Fair and Equal Representation (CFER Union). Chairman Ring and Members Kaplan and Emanuel participated.
***
Arbah Hotel Corp. d/b/a Meadowlands View Hotel (22-CA-197658 et al., 368 NLRB No. 119) North Bergen, NJ, November 29, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for her union activity and violated Section 8(a)(5) and (1) by denying the Union’s bargaining representative access to the facility and by unilaterally failing and refusing to make health insurance coverage payments.
Charges filed by New York Hotel and Motel Trades Council, AFL-CIO. Administrative Law Judge Lauren Esposito issued her decision on December 20, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Case Decisions Issued.
C Cases
Frontier Florida, LLC (12-CA-215545 et al.) Tampa, FL, November 27, 2019. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. The complaint had alleged Section 8(a)(5) and (1) refusal-to-provide/delay in providing relevant information violations. Charges filed by International Brotherhood of Electrical Workers, Local 824, AFL-CIO. Chairman Ring and Members McFerran and Kaplan participated.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
NSL Country Gardens, LLC (01-CA-223025, et al.; JD-77-19) Swansea, MA, November 25, 2019. Errata to October 7, 2019 decision of Administrative Law Judge Geoffrey Carter. Errata Amended Decision.
M&T Engineering and Construction LLC (14-CA-240972, et al.; JD-90-19) Overland Park, KS. Administrative Law Judge Michael A. Rosas issued his decision on November 26, 2019. Charges filed by individuals.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.