Summary of NLRB Decisions for Week of October 15 - 18, 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
Seven Seas Union Square, LLC and Key Food Stores Co-Operative, Inc., and 100 Greaves Lane Meat LLC and Key Food Stores Co-Operative, Inc., and HB 84 Food Corp. and Key Food Stores Co-Operative, Inc., and 1525 Albany Avenue Meat LLC and Key Co-Operative, Inc. and Key Food CS2, LLC, d/b/a Food Universe and Key Food Stores Co-Operative, Inc. and Riverdale Grocers LLC and Key Food Stores Co-Operative, Inc. and Jar 259 Food Corp. and Key Food Stores Co-Operative, Inc., and Park Plaza Food Corp. and Key Food Stores Co-Operative, Inc. and Paramount Supermarkets Inc. and Key Food Stores Co-Operative, Inc. (29-CA-164058, et al.; 368 NLRB No. 92) Brooklyn, NY, October 16, 2019.
The Board found that, under Browning-Ferris, the Respondent Key Food Stores Co-Operative is a joint employer with each of the individual-store Respondents, because Key Food exercised direct and immediate control over essential terms and conditions of employment of the individual-store Respondents’ employees. The Board emphasized Key Food’s near-absolute control over negotiations for a common collective-bargaining agreement, encompassing essential terms and conditions of employment, that would cover employees at all the newly purchased supermarkets and bind the individual-store Respondents. The Board further found that the Respondents are perfectly clear successors who unlawfully failed to bargain over layoffs, other reductions in employment terms, and refused further bargaining. The Board additionally found that unlawful discrimination under Section 8(a)(3) occurred at individual stores, including layoffs and refusals to hire, after the Respondents’ purchase of the stores.
Charges filed by United Food and Commercial Workers Union, Local 342, AFL-CIO. Administrative Law Judge Benjamin W. Green issued his decision on February 9, 2018. Chairman Ring and Members McFerran and Emanuel participated.
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Law-Den Nursing Home, Inc. (07-CA-233610; 368 NLRB No. 95) Detroit, MI, October 16, 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 unanimously found that the Respondent, a nursing home operator, violated Section 8(a)(5) and (1) by failing and refusing to: (1) provide information requested by the Union for effects bargaining over the closure of the facility, and (2) abide by the Respondent’s effects-bargaining agreement to pay employees their accrued vacation pay and sick pay before the facility’s closure. The Board majority (Chairman Ring and Member Kaplan) declined the General Counsel’s request for an affirmative bargaining order, concluding that the appropriate remedy for the Respondent’s failure to adhere to its agreement was an order that the Respondent honor the agreement. Member McFerran would have included the affirmative bargaining order because, in her view, enforcing an agreement that the Union negotiated in the face of the Respondent’s Section 8(a)(5) violations does not restore the status quo ante.
Charge filed by SEIU Healthcare Michigan. Chairman Ring and Members McFerran and Kaplan participated.
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Amazing Pet Expositions LLC d/b/a Amazing Pet Expos and Pet Event Pros (14-CA-232234, et al.; 368 NLRB No. 98) St. Louis, MO, October 18, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s withdrawal of its answer to the complaint. The Board found that the Respondent violated Section 8(a)(1) by maintaining and enforcing overly broad provisions of its Employee Confidentiality and Non-Compete Agreement prohibiting employees from discussing pay; telling employees that, because it was unlawful to terminate employees for going on strike, the Respondent would have to find another reason to terminate striking employees; telling employees not to talk around returning striking employees because they might be recording conversations; telling employees not to talk about pay around other employees; and discharging three employees because they engaged in protected concerted activities.
Charges filed by individuals. Chairman Ring and Members Kaplan and Emanuel participated.
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Blue Earth Digital Printing, Inc. (31-CA-133542; 368 NLRB No. 99) Culver City, CA, October 18, 2019.
In the absence of substantive exceptions, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee for raising an issue of group concern under the parties’ collective bargaining agreement regarding the Respondent’s failure to provide her and other employees sufficient information to perform their jobs. The Board disregarded the Respondent’s submission to the Region that appeared to set forth exceptions to the judge’s decision because the document was not filed with the Board; there was no indication that it was served on the General Counsel and the Charging Party; and, even allowing for the Respondent’s pro se status, the contents of the document failed to substantially comply with the requirements of Section 102.46(a)(1) of the Board’s Rules and Regulations.
Charge filed by Graphic Communications Conference of the International Brotherhood of Teamsters, Local 140-N. Administrative Law Judge Ariel L. Sotolongo issued his decision on April 9, 2019. Members McFerran, Kaplan, and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
The American Bottling Company d/b/a Keurig Dr. Pepper (13-RC-243320) Northlake, IL, October 15, 2019. The Board denied the Employer’s Requests for Review of the Regional Director’s Decision and Direction of Election and Decision on Objections and Certification of Representative, as they raised no substantial issues warranting review. The Board relied on the Regional Director’s determination that a proposed contraction of the unit was not definite and imminent, and therefore an immediate election was warranted. Member McFerran also noted that the unit that existed at the time of the election was a “substantial and representative” complement of the projected, smaller unit. Petitioner—International Brotherhood of Teamsters Local 727. Members McFerran, Kaplan, and Emanuel participated.
New Mexico Gas Company, Inc. (28-RC-239902) Santa Fe, NM, October 15, 2019. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order as it raised no substantial issues warranting review. Petitioner—United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local 412. Chairman Ring and Members Kaplan and Emanuel participated.
AA Restoration, LLC (13-RC-241754) Chicago, IL, October 15, 2019. The Board denied the Employer’s Request for Review of the Regional Director’s Report on Challenged Ballots, Objections and Certification of Representative as it raised no substantial issues warranting review. Petitioner—International Union of Bricklayers and Allied Craftworkers Local 21 of Illinois. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
New York Paving, Inc. (29-CA-234894 and 29-CA-233990) Long Island City, NY, October 15, 2019. The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order denying the Petition to Revoke the subpoena duces tecum served on the Respondent. The Board found that the Respondent failed to establish that the judge abused her discretion. The Board further noted that, although the Respondent’s Request for Special Permission to Appeal is denied, that does not preclude the parties from agreeing to measures to protect individuals’ confidentiality concerns with respect to one of the subpoena requests. Charges filed by Construction Council Local 175, Utility Workers Union of America, AFL-CIO, and by an individual. Members McFerran, Kaplan, and Emanuel participated.
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Appellate Court Decisions
Mexican Radio Corp., Board Case No. 02-CA-168989 (reported at 366 NLRB No. 65) (2d Cir. decided October 15, 2019).
In an unpublished summary order, the Court enforced in full the Board’s order issued against this operator of a restaurant in New York, New York. The Board (Members McFerran, Kaplan, and Emanuel) found that the Employer violated Section 8(a)(1) by reprimanding and discharging four servers after they replied in agreement to a former employee’s group email that detailed ongoing employee complaints about working conditions and included some profane language.
The Administrative Law Judge found that the four servers were engaged in protected concerted activity when they replied to the group email, finding the replies were the culmination of a series of concerted workplace complaints the employees had raised over the preceding eight months. The judge also found that the email replies were the sole basis for the adverse actions and, thus, the only remaining question was whether, as the Employer contended, the replies were so objectively egregious as to have caused the employees to lose the Act’s protection. The judge found that they were not, and determined that the same outcome resulted under either the totality-of-the-circumstances test, or the four factors of Atlantic Steel Co., 245 NLRB 814 (1979) (which are: (1) the place of the discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by an unfair labor practice). The judge also rejected the Employer’s alternative claim that it did not discharge the employees because of their protected activity but because they refused to discuss the email and refused to work (either by leaving a shift or by not showing up for work). Applying Wright Line, the judge found that the Employer failed to show it would have taken the same action absent the employees’ protected activity.
On review, the Board adopted the judge’s findings, and noted that the Employer’s other purported reasons for discharge were pretextual. The Board also found an additional violation on the basis of the Employer’s retroactive issuance of a backdated reprimand to one server in response to her state claim for unemployment benefits.
Before the Court, the Employer argued principally that the employees had lost the Act’s protection and that the proper test for making that assessment was Atlantic Steel. The Court held that, even under Atlantic Steel, the employees were entitled to protection, and that the Employer’s contentions on each of the factors were meritless. For instance, on “the place of discussion,” the Court rejected the Employer’s argument that the factor weighed against protection because the email chain was limited to certain individuals, rather than shouted on the shop floor, noting that such a holding “would be antithetical to the nature of concerted action.” On “the subject matter of the discussion,” the Court rejected the Employer’s contention that the factor weighed against protection because it was not an immediate outburst, explaining that the second factor “does not turn on the timing or emotional tenor of an employee’s outburst.” On “the nature of the outburst,” the Court again rejected the Employer’s argument, noting that it cited no authority for its assertion that the language of the former server’s email should be attributed to the employees. Further, the Court noted that the Board properly focused on the language of the replies, which did not add any negative comments to the exchange. On the fourth factor, “whether the outburst was provoked by an unfair labor practice,” the Court agreed with the Board that a prior threat of discharge by an unpopular supervisor who had engaged in much of the complained-of ill treatment of the employees, fit the bill. Finally, the Court held that substantial evidence supported the Board’s finding that “the terminations were motivated by, and would not have occurred but for, the employees’ replies to [the] email,” and that the Employer failed to refute the finding of pretext.
The court’s Summary order may be found here.
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Administrative Law Judge Decisions
Cott Beverages Inc. (16-CA-181144; JD-76-19) San Antonio, TX, October 15, 2019. Errata to October 7, 2019 decision of Administrative Law Judge Paul Bogas. Errata Amended Decision
International Union of Operating Engineers, Local Union No. 150, a/w International Union of Operating Engineers, AFL-CIO (25-CC-230368; JD-80-19) South Bend, IN. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on October 16, 2019. Charge filed by Maglish Plumbing, Heating & Electric, LLC.
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