Summary of NLRB Decisions for Week of October 13 - 16, 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
Wismettac Asian Foods, Inc. (21-CA-207463, et al.; 370 NLRB No. 35) Santa Fe Springs, CA, October 14, 2020.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by promising employees better benefits, improved terms and conditions of employment, the return of their bonuses, and retroactive pay if they rejected the Union. In addition, the Board adopted the judge’s conclusions that the Respondent violated Section 8(a)(3) by: (1) issuing an individual a written warning, demoting him, and changing his work shift; (2) terminating another individual; (3) refusing to consider for rehire and refusing to rehire three other individuals; and (4) issuing another individual a written warning, suspending, and terminating him. A majority (Chairman Ring and Member Kaplan; Member Emanuel, dissenting) adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by soliciting employees to revoke their authorization cards because the Respondent’s distribution of information letters and sample revocation forms occurred while challenges and objections were pending to a second election, which culminated in the Union’s certification. Therefore, the majority found that employees would reasonably view the Respondent’s actions as a coercive attempt to undermine the election results. Member Emanuel would have reversed, reasoning that the aid provided by the Respondent constituted mere ministerial assistance. Member Emanuel further explained that he would not find the Respondent’s conduct unlawful based on its timing, shortly after the second election, because the employees retained the right to revoke their authorization cards after the election and the Respondent simply informed them of that right using language that was factually and legally accurate. Finally, the Board remanded to the judge the complaint allegation that the Respondent violated Section 8(a)(1) by issuing an individual a verbal counseling record. The Board explained that the judge relied on the four-factor Atlantic Steel test, but that, in light of General Motors LLC, 369 NLRB No. 127 (2020), remand would allow the parties an opportunity to introduce evidence relevant to an analysis under the now applicable Wright Line standard.
Charges filed by International Brotherhood of Teamsters, Local 630. Administrative Law Judge Eleanor Laws issued her decision on August 30, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Alameda Center for Rehabilitation and Healthcare, Inc. (22-CA-180564 and 22-CA-188462; 370 NLRB No. 25) Perth Amboy, NJ, October 14, 2020.
In this compliance proceeding, the Board adopted the Administrative Law Judge’s conclusion that remedial relief included making employees whole for the delinquent 401(k) matching contributions the Respondent unlawfully failed to make on their behalf, plus the investment growth the amounts would have experienced. The Board reversed the judge’s conclusion that remedial relief included the Respondent’s contributing the amounts employees would have contributed to the 401(k) plan, reasoning that such relief is duplicative because the Respondent paid employees those amounts in their wages. The Board did find remedial relief appropriate to compensate employees for the investment growth they lost on their 401(k) contributions due to the Respondent’s unlawful failure to deduct and remit those amounts to the 401(k) plan. The Board remanded the case to the Regional Director to recalculate the amounts owed by the Respondent to the 401(k) plan for the affected employees.
Charges filed by 1199 Service Employees International Union, United Healthcare Workers East, New Jersey. Administrative Law Judge Benjamin W. Green issued his decision on March 20, 2020. Chairman Ring and Members Kaplan and Emanuel participated.
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GADecatur SNF LLC d/b/a East Lake Arbor (10-CA-262818; 370 NLRB No. 34) Decatur, GA, October 15, 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 Retail, Wholesale & Department Store Union – Southeast Council. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
JDRC Managed Services, LLC (25-RC-265109) Lincoln, IL, October 13, 2020. The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised substantial issues warranting review. The Board also granted the Employer’s Emergency Motion to Stay Mail-Ballot Election. Petitioner—Local 881 United Food and Commercial Workers. Chairman Ring and Members Kaplan and Emanuel participated.
Housing Works, Inc. (29-RC-256430) Brooklyn, NY, October 15, 2020. The Board granted the Employer’s Request for Review of the Regional Director’s Order Denying Employer’s Request to Withdraw from the Stipulated Election Agreement and Rescheduling Election as it raised substantial issues warranting review. Upon review, the Board reversed the Regional Director and approved the Employer’s request to withdraw from the stipulated election agreement, finding that the Employer had made an affirmative showing of unusual circumstances related to the COVID-19 pandemic. Petitioner—Retail, Wholesale and Department Store Union, UFCW. Chairman Ring and Members Kaplan and Emanuel participated.
Allied Power Services, LLC (13-RC-252563) Braidwood, IL, October 15, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Challenged Ballots as it raised no substantial issues warranting review. Petitioners—International Brotherhood of Electrical Workers, Local Unions 145, 146, 176, 364, and 601. Chairman Ring and Members Emanuel and McFerran participated.
Relentless Pursuit Enterprises, Inc. d/b/a Lexus of San Diego (21-RC-255451) San Diego, CA, October 15, 2020. The Board denied the Employer’s Request for Review of Certification of Representative as it raised no substantial issues warranting review. The Board also denied the Employer’s Request to Vacate and/or Stay Certification of Election Pending Outcome of Unfair Labor Practice Charge as moot. Petitioner—International Association of Machinists and Aerospace Workers Local Lodge No. 1484, District Lodge 190. Chairman Ring and Members Emanuel and McFerran participated.
C Cases
FCA US LLC (07-CA-213717, et al.) Auburn Hills, MI, October 13, 2020. The Board denied the Respondent Union’s Motion for Reconsideration of the Board’s August 26, 2020 Order denying its Motion to Dismiss the Consolidated Complaint. The Board found that the Union had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charges filed by individuals. Chairman Ring and Members Kaplan and Emanuel participated.
DuPont Specialty Products USA, LLC, as a successor to E.I. DuPont de Nemours and Company (05-CA-222622) Richmond, VA, October 14, 2020. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 369 NLRB No. 117 (2020). The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by Ampthill Rayon Workers, Inc., Local 992, International Brotherhood of DuPont Workers. Chairman Ring and Members Kaplan and Emanuel participated.
Constellium Rolled Products Ravenswood, LLC (09-CA-225275, et al.) Ravenswood, WV, October 15, 2020. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel and specified actions that the Respondent must take to comply with the Act. The complaint had alleged Section 8(a)(5) and (1) violations. Charges filed by United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 5668. Members Kaplan, Emanuel, and McFerrran participated.
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Appellate Court Decisions
International Longshore and Warehouse Union, and International Longshore and Warehouse Union, Local 4 (Kinder Morgan Terminals, Inc.), Board Case No. 19-CC-092816 (reported at 367 NLRB No. 64) (9th Cir. decided October 14, 2020).
In a published opinion, the Court granted two consolidated petitions for review and denied enforcement of the Board’s order issued against the International Longshore and Warehouse Union (ILWU), which represents longshoremen in a multiemployer, coastwide bargaining unit at shipping terminals on the West Coast. In doing so, the Court remanded the case to the Board for further proceedings consistent with its opinion.
This case arose from ILWU’s long-running jurisdictional dispute with the International Brotherhood of Electrical Workers Local 48 (IBEW) over certain work performed at a port in Washington State. Specifically, ILWU had claimed work that IBEW-represented employees, working for an electrical contractor, were performing for the terminal operator, Kinder Morgan Terminals, Inc. That jurisdictional dispute between the two Unions came before the Board in a prior proceeding brought under Section 10(k), and the Board resolved the conflict by awarding the work to IBEW. Thereafter, ILWU refused to accept that resolution and persisted in pursuing the work. In the ensuing unfair-labor-practice case, the Board (Members McFerran, Kaplan, and Emanuel) found that ILWU violated Section 8(b)(4)(ii)(D) by continuing to pursue the work through grievances against Kinder and by physically blocking IBEW electricians. The Board found that ILWU took those actions with the unlawful object of forcing Kinder to assign work to ILWU members rather than IBEW members. Further, the Board found that those same actions violated Section 8(b)(4)(ii)(B) because ILWU acted with an object of forcing Kinder to stop doing business with the contractor employing the IBEW electricians. In doing so, the Board rejected ILWU’s defense that it sought only to preserve its own traditional scope of work.
Before the Court, ILWU petitioned for review of both unfair-labor-practice findings. In a second petition for review, Pacific Maritime Association, the multiemployer bargaining association for which Kinder is a member, challenged the Board’s rejection of ILWU’s work-preservation defense. The Court granted both petitions.
First, the Court held that the Board improperly treated its prior Section 10(k) determination as precluding the ILWU from reasserting its work-preservation defense. The Court explained that it is settled law that Section 10(k) determinations are not binding with respect to the elements of the violation in the subsequent unfair-labor-practice proceedings, citing among other cases ITT Corp. v. Local 134, IBEW, 419 U.S. 428 (1975) (“The findings and conclusions in a [Section] 10(k) proceeding are not res judicata on the unfair labor practice issue in the later [Section] 8(b)(4)(D) determination.”). Rather, quoting its own precedent, Pacific Maritime Ass’n v. NLRB, 827 F.3d 1203 (9th Cir. 2016), the Court reaffirmed its prior holding that “reconsideration of [Section] 10(k) rulings appears implicitly contemplated by the statutory scheme, given that a [Section] 8(b)(4)(D) proceeding involves a full adversarial adjudication, in contrast with the informal proceedings required under [Section] 10(k).” The Court rejected the Board’s reliance on Tile, Marble, Terrazzo Finishers & Shopworkers, Local 47-T (Grazzini Bros.), 315 NLRB 520 (1994), a case in which the Board acknowledged the anti-preclusion rule, but, as the Court put it, “nevertheless granted dispositive weight to the findings supporting its earlier 10(k) award.” In conclusion, the Court held that the Board erred in finding its 10(k) determination dispositive of ILWU’s work-preservation defense, and overruled Grazzini Brothers to the extent it held to the contrary.
Next, the Court reviewed the substance of the Board’s analysis of ILWU’s work-preservation defense, and held that the Board incorrectly applied two Supreme Court cases, NLRB v. Int’l Longshoremen’s Ass’n, 447 U.S. 490 (1980), and NLRB v. Int’l Longshoremen’s Ass’n, 473 U.S. 61 (1985). As a result, the Court held that the Board erred by limiting its work-preservation inquiry to whether the longshoremen “historically performed” the disputed electrical work at the terminal, rather than examining whether ILWU’s purpose in seeking the disputed work was focused on preserving or replacing its members’ traditional work that was at risk of displacement.
Lastly, the Court looked at the issue of whether the collective-bargaining agreement covered the disputed work, as ILWU claimed. Exercising de novo review in assessing the contract’s terms, the Court reversed the Board and held that the contract’s plain language unambiguously assigned to the longshoremen “the maintenance and repair of all present and forthcoming stevedore cargo handling equipment,” which included the work in dispute.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Frontier Communications Corporation (09-CA-247015; JD-42-20) Charleston, WV. Administrative Law Judge Geoffrey Carter issued his decision on October 14, 2020. Charge filed by Communications Workers of America, AFL-CIO, District 2-13.
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