Summary of NLRB Decisions for Week of October 28 - November 1, 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
National Captioning Institute, Inc. (16-CA-182528, et al.; 368 NLRB No. 105) Dallas, TX, October 29, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent unlawfully disciplined and discharged one employee and unlawfully discharged another employee for their support of a union organizing drive. The Board found that the Respondent was aware of these employees’ union support and declined to allow the two employees the opportunity to transition to full-time remote work after the closure of the Respondent’s Dallas office. The Board also found that the Respondent engaged in surveillance by soliciting reports from an employee about the membership and content of an employee-Union Facebook group. Member McFerran stated that she would also find that the Respondent engaged in unlawful surveillance by searching its in-house text message platform for conversations about the organizing drive and for conversations generally. The Board severed and remanded to the judge, for further consideration under The Boeing Co., allegations regarding the Respondent’s maintenance of certain policies and its directive that employees not discuss the closure of the Dallas office. Finally, because the judge found that the Respondent unlawfully maintained an “Unacceptable Behavior” policy, and because an employee was disciplined pursuant to that alleged policy, the Board also severed and remanded the allegation that her discipline was unlawful.
Charges filed by National Association of Broadcast Employees & Technicians – Communications Workers of America, AFL-CIO. Administrative Law Judge Robert A. Ringler issued his decision on September 18, 2017. Chairman Ring and Members McFerran and Kaplan participated.
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Spectrum Juvenile Justice Services (07-CA-155494, et al.; 368 NLRB No. 102) Highland Park, MI, October 30, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by: (1) coercively interrogating employees about their protected concerted activities; (2) surveilling employees and creating the impression of surveillance of employees’ protected concerted activities; (3) threatening employees with discharge, and discharging and suspending employees for engaging in protected concerted activities; and (4) coercively informing employees that a benefit was being rescinded because employees chose the Union as their collective-bargaining representative. The Board adopted the judge’s conclusions that the Respondent violated Section 8(a)(3) and (a)(1) by coercively interrogating employees about their union activities, sympathies, and support, and by rescinding a benefit because employees chose the Union as their collective-bargaining representative. Finally, the Board adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (a)(1) by making unilateral changes to terms and conditions of employment, discharging employees pursuant to these unilateral changes, and failing and refusing to respond to the Union’s information request.
The Board declined to adopt the judge’s conclusion that the Respondent violated Section 8(a)(1) by issuing an employee a written warning for a time and attendance infraction because of her protected concerted activities. The Board found that, although the General Counsel met his initial burden of establishing the decision was motivated, at least in part, by animus, the record evidence established that the employee would have been issued the written warning regardless of her protected concerted activities. The Board additionally declined to adopt the judge’s finding of an additional Section 8(a)(5) violation for the Respondent’s failure and refusal to bargain with the Union as the exclusive collective-bargaining representative of unit employees, as this violation was already found by the Board in the prior test-of-certification case and enforced by the Sixth Circuit.
The Board majority, consisting of Chairman Ring and Member Emanuel, found it unnecessary to pass on the judge’s additional finding that the Respondent violated Section 8(a)(3) by implementing a new policy requiring that contingent employees work mandated overtime shifts because employees voted for the Union, as this additional finding would not affect the remedy in light of the aforementioned finding that this unilateral change violated Section 8(a)(5). Member McFerran would have affirmatively adopted the judge’s finding that the Respondent’s unilateral implementation of mandated overtime for contingent employees violated Section 8(a)(3).
Charges filed by an individual; Council 25, Michigan American Federation of State, County, and Municipal Employees (AFSCME), AFL-CIO; International Union, Security Police and Fire Professionals of America (SPFPA); and Local 120, International Union, Security, Police and Fire Professionals of America (SPFPA). Administrative Law Judge Thomas M. Randazzo issued his decision on October 11, 2017. Chairman Ring and Members McFerran and Emanuel participated.
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Tarlton and Son, Inc. (32-CA-119054 and 32-CA-126896; 368 NLRB No. 101) Fresno, CA, October 29, 2019.
Upon remand from the Ninth Circuit Court, the Board reversed its prior adoption of the Administrative Law Judge’s conclusion that the promulgation of a mutual arbitration policy in response to the protected concerted activity of the employees filing a state wage-and-hour claim violated the Act. In its prior decision and order, the Board had found that both the maintenance of the individual arbitration policy requiring the waiver of class and collective claims and the promulgation of the policy in response to the state court action violated the Act. That decision was appealed and held in abeyance pending the outcome of Epic Systems Corp. v. Lewis, 584 U.S.__, 138 S.Ct. 1612 (2018). After the issuance of Epic Systems, the Ninth Circuit Court remanded to the Board to determine whether the promulgation of the arbitration policy in response to the filing of the state wage-and-hour claim violated the Act. Applying its recent decision in Cordua Restaurants, Inc., 368 NLRB No. 43 (2019), the Board found that, although the employees were engaged in protected activity when they concertedly filed a lawsuit, the issuance of the arbitration policy in response to that filing did not violate the Act because requiring employees to pursue claims in individual arbitration does not restrict Section 7 rights.
Charges filed by an individual. Administrative Law Judge Amita Baman Tracy issued her decision on January 27, 2015. Chairman Ring and Members Kaplan and Emanuel participated.
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The Wang Theatre, Inc. d/b/a Citi Performing Arts Center (01-CA-179293; 368 NLRB No. 107) Boston, MA, October 30, 2019.
Upon remand from the First Circuit Court, the Board reaffirmed its conclusion that the Respondent had violated Section 8(a)(5) by refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of the petitioned-for local musicians. The Board noted that, in the underlying representation case, it had found that the Respondent is an employer of the local musicians within the meaning of Section 2(2) and that the petitioned-for single-employer unit was presumptively appropriate under the Act. The Board further found that no joint-employer argument was properly raised to the Board in the underlying representation proceeding, and even if it had been properly raised, under well-established precedent, the existence of potential joint employers is not relevant where, as here, the record establishes that the petitioned-for employer is an employer of the petitioned-for employees. As the petitioned-for unit in the representation case was properly certified, the Board found that the Respondent’s refusal to bargain violated Section 8(a)(5).
Charge filed by Boston Musicians Association, a/w American Federation of Musicians Local Union No. 9-535, AFL-CIO. Chairman Ring and Members McFerran and Kaplan participated.
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Joy Luck Palace Inc. d/b/a Joy Luck Palace Restaurant (02-CA-213541, et al.; 368 NLRB No. 108) New York, NY, October 30, 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 threatening to deny benefits to employees because of their union activities; Section 8(a)(3) and (1) by partially and temporarily ceasing operations because employees had engaged in protected concerted activity and to discourage them from engaging in such activity; and Section 8(a)(5) and (1) by refusing to execute an agreed-upon collective-bargaining agreement, failing to furnish the Union with requested relevant information, and failing to give notice to the Union and provide it the opportunity to bargain over the effects of the closure of its restaurant.
Charges filed by 318 Restaurant Workers Union. Chairman Ring and Members McFerran and Kaplan participated.
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Centerpoint Energy Houston Electric, LLC (16-RC-229214; 368 NLRB No. 109) Houston, TX, October 31, 2019.
The Board affirmed the Regional Director’s finding that the Employer’s Service Area Assistants are plant clerical employees that share a sufficient community of interest with the production and maintenance unit employees to warrant a self-determination election with respect to the Service Area Assistants. Petitioner—International Brotherhood of Electrical Workers Local Union 66. Chairman Ring and Members McFerran and Kaplan participated.
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CSC Holdings, LLC (29-CA-190108; 368 NLRB No. 106) Brooklyn, NY, November 1, 2019.
The Board, reversing the Administrative Law Judge, found that the Respondent did not violate Section 8(a)(3) and (1) by discharging an employee because of his union and other concerted activities. Applying Wright Line, the Board found that, even assuming the General Counsel met his initial burden of demonstrating unlawful motivation, the Respondent met its rebuttal burden of showing that it would have discharged the employee absent his union and other concerted activities based on its progressive disciplinary practices.
Charge filed by Communications Workers of America. Administrative Law Judge Kenneth W. Chu issued his decision on April 27, 2018, and an Errata on May 3, 2018. Members McFerran, Kaplan, and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Sinai Hospital of Baltimore, Inc. d/b/a VSP (05-RC-244319) Baltimore, MD, October 30, 2019. The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s Order Reopening Record as it raised no substantial issues warranting review. Petitioner—1199 SEIU United Healthcare Workers East. Chairman Ring and Members Kaplan and Emanuel participated.
Stericycle of Puerto Rico, Inc. (12-RC-238280) Carolina, PR, October 31, 2019. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objection to the Election and Certification of Representative and Request to Vacate the Certification of Representative, as it raised no substantial issues warranting review. The Board noted that the Employer entered into a stipulated election agreement naming it as the employer of the employees in question, and that, consistent with that admission, the Employer’s Request for Review stated that another entity “provides the workers in question” to the Employer. The Board further noted that, under extant Board law, “[p]rovided that the requisite employer-employee relationship exists, the Board has long held that if a petitioner seeks the employees of an employer, it will not require the naming of all potential joint employers and the litigation of their potential relationship with the named employer. Chelmsford Food Discounters, 143 NLRB 780, 781 (1963).” Petitioner—Central General de Trabajadores, CGT. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
ABF Freight System, Inc. (09-CA-208379 and 09-CA-210267) Dayton, OH, October 31, 2019. The Board issued a Notice and Invitation to File Briefs, inviting the parties to file briefs on how, if at all, the case is affected by the Board’s adoption of a contract coverage standard in MV Transportation, Inc., 368 NLRB No. 66 (2019). If the parties argue that MV Transportation affects the case, the Board asked them to address whether the Employer’s installation of cameras in break/locker rooms is covered by the parties’ collective-bargaining agreement and to discuss the significance of the parties’ grievance/arbitration proceedings. The parties’ supplemental briefs are due to be filed with the Board by December 16, 2019, with the parties permitted to file responsive briefs by December 30, 2019. Charges filed by General Truck Drivers, Warehousemen, Helpers, Sales and Service, and Casino Employees and International Brotherhood of Teamsters (IBT), Local 957.
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Appellate Court Decisions
Station GVR Acquisition, LLC d/b/a Green Valley Ranch Resort Spa Casino, Board Case No. 28-CA-224209 (reported at 367 NLRB No. 38) (D.C. Cir. decided October 29, 2019).
In an unpublished judgment that issued in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this operator of a hotel, resort, and casino in Henderson, Nevada, where its employees voted 571 to 156 in a November 2017 election to be represented by the Joint Executive Board of Las Vegas. In doing so, the Court held that the Board acted properly within its broad discretion in overruling the Employer’s objections to the election.
After the Union began its organizing campaign, it formed a committee of about 60-70 employee “leaders” who solicited authorization cards, accompanied organizers during home visits, distributed leaflets, and brought employees to Union meetings. When an election date was scheduled, the Union distributed short lists of employees’ names, all of whom were known Union supporters who had signed authorization cards, to each committee leader, and requested that they ask those voters to commit to a day and time to vote. The Union instructed committee leaders to inform employees on their respective lists of the polling times and ask them when they planned to vote. After the election, the Union instructed committee leaders to ask their assigned employees whether they had voted at the specified time, and then to report that information back to the Union.
After the election, the Employer filed objections alleging that the Union impermissibly kept a list of employees who had voted, thereby intimidating and coercing employees and giving employees the impression that the Union was surveilling whether they voted. A hearing was held, after which the Hearing Officer issued a report finding that the Union had not engaged in objectionable “list-keeping” because, even if the records collected from community leaders could be considered a list of voters, the Board has not found list-keeping objectionable unless conducted at or near the polls. The Hearing Officer also noted that no employees on the lists knew or suspected that the Union had kept a list of voters. After the Employer filed exceptions, the Regional Director affirmed the Hearing Officer’s rulings and certified the Union.
The Employer then filed a Request for Review, which was denied by the Board (Chairman Ring and Members McFerran and Emanuel). The Board explained that the Employer had failed to prove that any employees knew, or would have reasonably inferred, that the Union had made a list of employees who had not yet voted in the election, and absent such proof, the Union’s conduct could not have reasonably tended to interfere with the employees’ free choice in the election. Further, the Board noted that, because all of the Union’s actions were in response to information that employees voluntarily provided (either directly or through committee leaders), its conduct could not reasonably give rise to an impression of surveillance. Member McFerran added that the Board apparently has never found union list-keeping objectionable unless it was conducted at or near the polls. Thereafter, the Employer refused to bargain with the Union in order to seek court review.
The Court concluded that none of the Employer’s objections “overcomes its ‘heavy burden’ in challenging a Board-sponsored election.” More specifically, in rejecting those challenges, the Court noted that, even assuming that list-keeping away from a polling area could be found objectionable, “here only ‘the union adherents involved in the list keeping, whose voting choices could have hardly been affected,” knew about these ‘lists,’” (quoting the Hearing Officer’s report). Additionally, the Court held that substantial evidence supported the Board’s finding that no employee knew that the Union had compiled a list of voters. Lastly, the Court held that the surveillance claim was barred from review because it was not properly raised before the Board.
The Court’s unpublished judgment may be found here.
International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 229 (Commercial Metals Company d/b/a CMC Rebar), Board Case No. 21-CC-183510 (reported at 365 NLRB No. 126) (9th Cir. decided October 28, 2019).
In a published opinion, the Court enforced the Board’s order that issued against this Union representing concrete workers employed by Western Concrete Pumping, Inc. (WCP) while on a job constructing a parking structure at the Pechanga Resort & Casino in Temecula, California. After work began, a labor dispute arose between the Union and WCP over WCP not paying area standard wages. When the Union began picketing, its business agent made multiple appeals—through texts, flyers, phone calls, and conversations—to employees of Commercial Metals Company (CMC), another subcontractor on the job, to induce them to strike or refuse to perform work for CMC in support of the strike.
Before the Administrative Law Judge, the parties stipulated that the Union agent’s appeals to the employees of CMC satisfied both elements of a Section 8(b)(4)(i)(B) violation, in that they were (1) actions for the purpose of inducing or encouraging the employees of CMC, a neutral employer, to strike (2) for the secondary purpose of pressuring CMC to cease doing business with WCP, the Employer with whom the Union had the labor dispute. Further, the judge rejected the Union’s constitutional and statutory contentions raised as affirmative defenses.
On exceptions, the Board (Chairman Miscimarra and Members Pearce and McFerran) affirmed the violation of Section 8(b)(4)(i)(B), as well as the judge’s rejection of the Union’s defenses. Specifically, the Board rejected the arguments that the agent’s oral and written inducements were “pure speech” protected by the First Amendment, and that Section 8(b)(4)(i)(B) was unconstitutional as applied to this case. The Board explained that the Supreme Court “answered the free speech argument” in IBEW Local 501 v. NLRB, 341 U.S. 694 (1951), where it held that Congress’s decision to proscribe any kind of inducement or encouragement of secondary pressure does not violate the First Amendment. Additionally, the Board rejected the Union’s contention that the agent’s appeals were statutorily protected by Section 8(c), explaining that IBEW Local 501 rejected this claim as well, in holding that Section 8(c) does not limit the phrase “induce or encourage” in Section 8(b)(4)(i) to require a threat or promise. Lastly, the Board found no merit in the Union’s claims that Section 8(b)(4)(i)(B), as applied here, violated the Thirteenth Amendment’s bar on involuntary servitude, or that the Religious Freedom Restoration Act (RFRA) protected the Union’s unlawful appeals for secondary pressure.
On review, the Court noted that the Union had conceded that its actions, absent a viable defense, violated Section 8(b)(4)(i)(B), but held that such a conclusion nonetheless was supported by substantial record evidence. As to the Union’s asserted defenses, the Court found that none had merit. For instance, the Court stated that the Union’s First Amendment claim improperly would require the court to extend the Supreme Court’s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), which did not involve a labor dispute, to apply strict scrutiny to the analysis of Section 8(b)(4)(i)(B)—a level of scrutiny explicitly rejected by the Supreme Court in IBEW Local 501. Rather, the Court stated, “[t]here have been no changes to First Amendment jurisprudence in the interim that warrant divergence from the Supreme Court’s analysis in IBEW or the interpretation of IBEW in the decisions from the District of Columbia and Second Circuits,” citing Warshawsky & Co. v. NLRB, 182 F.3d 948 (D.C. Cir. 1999), and NLRB v. Local Union No. 3, Int’l Bhd. of Elec. Workers, 477 F.2d 260 (2d Cir. 1973), decisions in accord with IBEW Local 501. Regarding the Union’s additional defenses, the Court agreed with the Board that IBEW Local 501 dispensed with its Section 8(c) argument, and that its Thirteenth Amendment and RFRA claims were without support.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Rhino Northwest, LLC (19-CA-221309 and 19-CA-221359; JD(SF)-36-19) Fife, WA. Administrative Law Judge Ariel L. Sotolongo issued his decision on October 28, 2019. Charges filed by Local No. 15, International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists, and Allied Crafts of the United States and its Territories and Canada, AFL-CIO, CLC.
Drock Gaming, LLC d/b/a The D Casino (28-CA-219756; JD(SF)-38-19) Las Vegas, NV. Administrative Law Judge Lisa D. Ross issued her decision on October 29, 2019. Charge filed by an individual.
Rhino Northwest, LLC (19-CA-221309 and 19-CA-221359; JD(SF)-36-19) Fife, WA, October 29, 2019. Errata to the October 28, 2019 decision of Administrative Law Judge Ariel L. Sotolongo. Errata Amended Decision.
MGM Grand Hotel, LLC d/b/a MGM Grand (28-CA-186022; JD(SF)-37-19) Las Vegas, NV. Administrative Law Judge John T. Giannopoulos issued his decision on October 29, 2019. Charge filed by an individual.
Coral Reef Operating Systems, LLC d/b/a Coral Reef Nursing and Rehabilitation Center, LLC (12-CA-238299; JD-83-19) Miami, FL. Administrative Law Judge Donna N. Dawson issued her decision on November 1, 2019. Charge filed by 1199 SEIU United Healthcare Workers East.
Madelaine Chocolate Novelties, Inc. (29-CA-222257; JD(NY)-14-19) Brooklyn, NY. Administrative Law Judge Jeffrey P. Gardner issued his decision on November 1, 2019. Charge filed by Local 1222, United Professional Service Employees Union.
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