Summary of NLRB Decisions for Week of October 21 - 25, 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
Pinnacle Foods Group, LLC (14-RD-226626; 368 NLRB No. 100) St. Elmo, IL, October 21, 2019.
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) granted the Petitioner’s Request for Review of the Regional Director’s administrative dismissal of the petition and reversed the dismissal. The Union was initially certified as the employees’ collective bargaining representative in March 2017. The Petitioner filed a decertification petition more than a year later, in August 2018. Pursuant to the Board’s blocking charge policy, the Regional Director initially held the petition in abeyance during the Region’s investigation of unfair labor practice charges alleging certain bargaining-related violations of Section 8(a)(5). The Regional Director later issued a complaint and sought a remedial bargaining order extending the Union’s certification year under Mar-Jac Poultry Corp., 136 NLRB 785 (1962). The Employer and Union thereafter entered into a settlement agreement resolving those charges. Although the settlement contained a non-admission clause, the Employer agreed to continue contract negotiations for an additional seven months, purportedly as an extension of the certification year. The Regional Director then dismissed the decertification petition on the basis of the settlement agreement. The Petitioner was not a party to the settlement and did not consent to the dismissal of his petition. The Board majority held that the decision in Truserv Corp., 349 NLRB 227 (2007), precluded dismissal of the petition under these circumstances. According to the majority, as Truserv is properly understood, the remedial period associated with the settlement of such Section 8(a)(5) charges does not include the extended bargaining period and cannot serve to waive or unduly delay the Petitioner’s right to have his petition processed. The majority therefore reinstated the petition and remanded the case to the Region. Member McFerran, dissenting, would have allowed continued abeyance of the petition until “after the completion of the remedial period associated with the settlement,” Truserv, supra, at 227, which, in her view, necessarily included the extended bargaining period.
Petitioner—an Individual. Union—Local 881 United Food and Commercial Workers Union. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Montefiore Medical Center (02-CA-229024; 368 NLRB No. 100) Bronx, NY, October 23, 2019.
The Board affirmed the Administrative Law Judge’s dismissal of the complaint, which alleged that the Respondent violated Section 8(a)(1) by threatening employees with unspecified reprisals for requesting union representation for an investigatory interview which employees reasonably believed could result in discipline. In affirming the judge’s credibility determinations, the Board did not rely on the Union’s delay in filing the unfair labor practice charge or the employees’ failure to challenge their supervisor after she allegedly made the unlawful threat.
Charge filed by New York State Nurses Association. Administrative Law Judge Kenneth W. Chu issued his decision on May 30, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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777 Ethnic Dining Concept Corp. (28-CA-236521; 368 NLRB No. 104) Las Vegas, NV, October 25, 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)(1) by (i) directing employees not to discuss their wages with other people; (ii) coercively interrogating employees about their protected concerted activities; and (iii) discharging an employee and refusing to provide him with the full amount of his wages owed because he engaged in protected concerted activities or because the Respondent believed that he engaged in protected concerted activities.
Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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Opal Care LLC and Ruby Care LLC d/b/a Emerald Nursing and Rehabilitation Center (03-CA-225611; 368 NLRB No. 103) Buffalo, NY, October 25, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with the provisions of the parties’ informal settlement agreement. The complaint alleged Section 8(a)(5) and (1) violations. The Board ordered the Respondent to comply with its obligations under the settlement agreement.
Charge filed by 1199 SEIU United Healthcare Workers East. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
American Water MSG (14-RD-245062 and 14-RM-246212) Fort Leonard, MO, October 22, 2019. The Board granted the Employer’s Request for Review of the Acting Regional Director’s Order Dismissing Decertification Petition and the Employer-Petitioner’s Request for Review of the Acting Regional Director’s Order Dismissing RM Petition as they raised substantial issues warranting review of the successor bar doctrine as articulated in UGL-UNICCO Service Co., 357 NLRB 801 (2011). RD Petitioner—an Individual. RM Petitioner—American Water MSG. Union—IBEW Local 453. Chairman Ring and Members Kaplan and Emanuel participated.
AvalonBay Communities, Inc. (02-RC-238385) Westchester, NY, October 23, 2019. The Board denied review of the Employer’s Partial Request for Review of the Regional Director’s Decision on Objections and Notice of Hearing as it raised no substantial issues warranting review. The Board also denied the Employer’s Request for a Stay of the hearing on post-election objections. The Board expressed no view with respect to the revisions made to the Board’s Election Rule, but agreed that it applied here and warranted denial of the Employer’s request. Petitioner—Local 30, International Union of Operating Engineers, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
St. James Medical Group (19-RC-234472) Butte, MT, October 25, 2019. The Board granted the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised substantial and material issues regarding the Employer’s relationship to the Hospital and the Boulder Clinic. The Board found that the Regional Director’s decision in this regard was based on insufficient evidence and remanded the case for further appropriate action, including reopening the record, if necessary. Petitioner—Teamsters Union Local No. 2, a/w The International Brotherhood of Teamsters. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Impact Wellness Center, Inc. (28-CA-221411 and 28-CA-223540) Las Vegas, NV, October 22, 2019. No exceptions having been filed to the September 9, 2019 decision of Administrative Law Judge Lisa D. Ross’ 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.
Nexteer Automotive Corp. (07-CA-215036) Saginaw, MI, October 23, 2019. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 368 NLRB No. 47 (2019), on the basis that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by Local 699, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Parkview Lounge LLC d/b/a Ascent Lounge, Board Case No. 02-CA-178531 (reported at 366 NLRB No. 71) (2d Cir. decided October 25, 2019).
In an unpublished summary order, the Court enforced the Board’s order issued against this restaurant and lounge in Manhattan, New York, for violating Section 8(a)(1) when it discharged a server two days after she voiced group workplace concerns to managers during a staff meeting. Applying Wright Line, the Board (Members Pearce, McFerran, and Emanuel) found her discharge was unlawfully motivated based on the Employer’s knowledge of her stated concerns about working conditions, pay, and benefits which constituted protected concerted activity, the swiftness of the discharge coming two days after the staff meeting, and the pretextual nature of the Employer’s shifting and inconsistent reasons stated for her discharge. On review, the Court held that substantial evidence supported the Board’s findings, and rejected the Employer’s challenges to the Board’s application of Wright Line. On that basis, the Court also rejected the Employer’s challenge to the Board’s reinstatement remedy, finding it presumptively valid.
The Court’s unpublished summary order may be found here.
JLL Restaurant, Inc. d/b/a The Smoke House Restaurant, Inc., Board Case No. 31-CA-026240 (reported at 365 NLRB No. 166) (9th Cir. decided under the name Unite Here Local 11 v. NLRB, October 23, 2019).
In an unpublished memorandum opinion, the Court denied the petition filed by Unite Here Local 11 for review of the Board’s order issued against an operator of a restaurant in Burbank, California. Rejecting the Union’s challenge, the Court upheld the Board’s interpretation of the scope of its prior unfair-labor-practice order as not requiring the Employer to make back payments to the Union’s welfare fund.
In 2003, upon purchasing the restaurant from a predecessor, the Employer told job applicants that it was going to operate as a non-union shop, refused to recognize and bargain with the Union, unilaterally discontinued the employees’ health coverage provided for in the collective-bargaining agreement, ceased making payments to the welfare fund, and later implemented a new health plan with higher premiums. The Board found those actions violated Section 8(a)(5) and (1), and ordered the Employer to bargain with the Union, and, on request, to retroactively restore the contract’s terms and conditions of employment, and to make employees whole for any losses incurred as a result of the unilateral changes. Subsequently, the Ninth Circuit enforced the Board’s order. NLRB v. JLL Restaurant, Inc., 325 F. App’x 577 (9th Cir. 2009), enforcing 347 NLRB 192 (2006).
After a controversy arose over the amounts owed under the Board’s order, a compliance proceeding ensued which culminated in the Administrative Law Judge determining that the Employer owed $223,201, plus interest, to 60 named employees for health premiums and out-of-pocket medical expenses, as well as $1.25 million, plus interest, in back payments to the welfare fund. On exceptions, the Board (Chairman Miscimarra and Members McFerran and Kaplan) directed the Employer to pay the amounts found by the judge that were owed to individual employees, but found (Member McFerran, dissenting) that no back payments were owed to the welfare fund. Interpreting the scope of the order, the Board noted there was no explicit reference to the welfare fund, which typically would have been referenced if the Board had intended the remedy, and also noted that the order spoke only in terms of relief for employees.
In the current review proceeding, the Court upheld the Board’s interpretation of its prior order as reasonable, given it did not expressly require restoration or payment to the welfare fund, nor did it cite Merryweather Optical Co., 240 NLRB 1213 (1979), which delineates how the Board will determine what interest an employer must pay on the amounts owed to a fund.
The Court’s unpublished memorandum opinion is here.
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Administrative Law Judge Decisions
BS&B Safety Systems, L.L.C. (14-CA-239530; JD-81-19) Tulsa, OK. Administrative Law Judge Sharon Levinson Steckler issued her decision on October 21, 2019. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC.
DuPont Specialty Products USA, LLC, as a successor to E.I. DuPont de Nemours and Company (05-CA-222622; JD-79-19) Richmond, VA, October 21, 2019. Errata to October 11, 2019 decision of Administrative Law Judge David I. Goldman. Errata Amended Decision
Truck Drivers, Chauffeurs and Helpers Local Union 100, a/w The International Brotherhood of Teamsters (Beta Productions LLC) (09-CB-232458; JD-82-19) Cincinnati, OH. Administrative Law Judge Arthur J. Amchan issued his decision on October 24, 2019. Charge filed by an individual.
Medic Ambulance Service, Inc. (20-CA-193784; JD(SF)-35-19) Vallejo and Sacramento, CA. Administrative Law Judge Gerald M. Etchingham issued his decision on October 25, 2019. Charge filed by United Emergency Medical Services Workers, Local 4911, AFSCME, AFL-CIO.
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