Summary of NLRB Decisions for Week of October 5 - 9, 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
St. Louis Cardinals, LLC (14-CA-213219; 370 NLRB No. 31) St. Louis, MO, October 6, 2020.
In a supplemental decision, the Board unanimously adopted the Administrative Law Judge’s conclusions on remand that the Respondent violated Section 8(a)(3) and (1) by discharging one employee and refusing to recall another. The Board found that the Respondent failed to satisfy its Wright Line defense burden by showing that it would have taken the same adverse actions absent the employees’ protected activity. The Board adopted the judge’s discrediting of the Respondent’s statutory supervisor as to his purported explanations for the adverse actions, although a Board majority (Chairman Ring and Member Emanuel) did not rely on certain reasons given by the judge for his credibility finding. Additionally, the Board clarified why, contrary to the judge’s assertion in his decision on remand, there is no inconsistency between the Board’s earlier remand in this case and the statement in Wright Line that the Board will not seek to quantitatively analyze the effect of an unlawful cause once it has been found.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on remand on May 15, 2020. Chairman Ring and Members Emanuel and McFerran participated.
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Kumho Tires Georgia (10-CA-208255 and 10-CA-208414; 370 NLRB No. 32) Macon, GA, October 8, 2020.
The Board (Chairman Ring and Member Kaplan; Member Emanuel, dissenting in part) adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by interrogating employees about their union sympathies; making various threats, including threats of job loss, transfer of work, loss of benefits, changed working conditions, facility closure, and unspecified reprisals; telling an employee not to talk to anyone about the Union; suggesting that it would get rid of some or all of the employees who voted for union representation; and creating the impression that employees’ union activities were under surveillance. Member Emanuel would have reversed the judge’s conclusion that the Respondent unlawfully threatened changed working conditions. The Board found it unnecessary to pass on additional allegations of interrogation and threats of plant shutdown, loss of work, and stricter rule enforcement. The majority ordered extraordinary remedies, including notice-reading and a broad cease-and-desist order. Member Emanuel would not have granted the additional extraordinary remedies.
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Administrative Law Judge Arthur J. Amchan issued his decision on May 14, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Purple Communications, Inc. (21-CA-095151, et al.; 370 NLRB No. 33) Corona and Long Beach, CA, October 8, 2020.
On remand from the Ninth Circuit, the Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting) dismissed the complaint allegation that the Respondent violated Section 8(a)(1) by maintaining its Electronic Communication Policy. The majority applied the standard announced in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), that an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination. Because no party contended in response to the Board’s previously-issued Notice to Show Cause that the exception applied and no record evidence supported it, the majority held that a remand would serve no purpose and dismissed the allegation. Dissenting, Member McFerran adhered to her dissent in Caesars Entertainment and would have found the violation under Purple Communications, Inc., 361 NLRB 1050 (2014).
Charges filed by Communications Workers of America, AFL-CIO. Administrative Law Judge Paul Bogas issued his decision on March 16, 2015. Chairman Ring and Members Kaplan and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
CR&R Incorporated (21-RC-262469 and 21-RC-262474) Perris, CA, October 9, 2020. The Board (Chairman Ring and Member Emanuel; Member McFerran, dissenting) granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, finding that the Regional Director’s direction of a mail-ballot election raised substantial issues warranting review. Member McFerran would have denied the Request for Review. The Board also denied the Employer’s Request for Review of the Regional Director’s appropriate-unit determination. Petitioner—Package & General Utility Drivers, Teamsters Local Union No. 396. Chairman Ring and Members Emanuel and McFerran participated.
C Cases
Bridgestone Americas Tire Operations, LLC (10-CA-230142) La Vergne, TN, October 7, 2020. The Board approved a two-party formal settlement stipulation between the Respondent and the General Counsel, and specified actions the Respondent must take to comply with the Act. The complaint alleged Section 8(a)(5) and (1) refusal-to-provide relevant information violations. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International, AFL-CIO, and its Local 1055L. Members Kaplan, Emanuel, and McFerran participated.
New York Paving, Inc. (29-CA-254799) Brooklyn, NY, October 8, 2020. The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s Order directing that the hearing be conducted via videoconference, but denied the appeal on the merits. The Board found that the Respondent failed to establish that the judge abused her discretion in finding that good cause for a video hearing exists due to the ongoing COVID-19 pandemic, and that the Respondent did not show that a hearing held by videoconference would deny it due process. The Board further found that the Respondent’s speculative concerns are premature and may be raised to the judge in the first instance, without prejudice to its right to file exceptions with the Board to any adverse rulings. Charge filed by Construction Council, Local 175, Utility Workers Union of America, AFL-CIO. Members Kaplan, Emanuel, and McFerran participated.
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Appellate Court Decisions
Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, Board Case No. 13-CA-187272 (reported at 367 NLRB No. 6) (D.C. Cir. decided October 6, 2020).
In a published opinion, the Court enforced the Board’s order that issued against this car dealership in Libertyville, Illinois, for unfair labor practices committed after its service technicians voted in an October 2016 election to be represented by Local Lodge 701, International Association of Machinists and Aerospace Workers, AFL-CIO. Specifically, the Board (Chairman Ring and Members McFerran and Emanuel) found that the Employer violated Section 8(a)(3) and (1) by laying off one employee and discharging another in retaliation for the employees voting in favor of the Union. Among other violations, the Board found that the Employer violated Section 8(a)(1) by removing employee toolboxes from its facility in retaliation for the employees going out on strike after contract negotiations stalled, and by creating the impression that its employees’ union activities were under surveillance. Further, the Board upheld three procedural rulings of the Administrative Law Judge that were challenged by the Employer, and adopted, in the absence of exceptions, the judge’s finding that the Employer violated Section 8(a)(1) by telling the laid-off employee that he was being laid off because the employees had voted in favor of the Union.
On review, in addressing the primary contested issue, the Court (Circuit Judges Millett and Wilkins; Circuit Judge Rao, dissenting) held that the Board’s determination that the Employer unlawfully laid-off one employee and discharged another in order to punish its employees for their pro-union vote was “reasoned, consistent with the statutory text and precedent, and supported by substantial evidence.” After an extensive review of the supporting precedent, and rejecting the Employer’s contentions to the contrary, the Court explained that the Board properly focused its analysis on “the employer’s discriminatory intent to punish its employees as a group for their known decision to unionize, rather than on the employer’s knowledge of the targeted employees’ individual views about the union.” On the finding that the Employer unlawfully retaliated against striking technicians by removing their toolboxes, the Court stated that the Employer’s admission that it took that action only against those employees who voluntarily and willingly chose to exercise their statutory right to strike, “proves its retaliatory, discriminatory motive.” Lastly, regarding the three procedural rulings, the Court held that, even assuming the challenges had merit, they nonetheless would fail because the Employer failed to show any resulting prejudice.
Dissenting on the issue of the retaliatory nature of the lay-off and discharge, Judge Rao expressed her view that an Employer’s knowledge of a particular employee’s union activity is an essential element to a finding of discrimination, and that no such showing was made on this record. The majority responded at length, concluding that the concerns raised “misunderstand the Board’s precedent and its application to this case.”
The Court’s opinion is here.
Natural Life Inc. d/b/a Heart and Weight Institute, Board Case No. 28-CA-181573 (reported at 366 NLRB No. 53) (9th Cir. decided October 8, 2020).
In an unpublished memorandum, the Court enforced the Board’s order that issued against this telemarketing company that sells and distributes health supplements through a sales office in Las Vegas, Nevada. The Board (then-Chairman Kaplan and Members McFerran and Emanuel) found that the Employer violated Section 8(a)(1) when it discharged nine sales employees because they repeatedly complained about wages and adverse working conditions, including allegations of racism and sexism, and openly discussed seeking legal remedies. As support for its finding of the Employer’s hostility towards that protected activity, the Board relied on the direct evidence of a manager’s tape-recorded statements made at an employee meeting. Among those statements, the Board also found that the manager unlawfully created an impression that the employees’ protected activities were under surveillance, and coercively told them that they were being discharged, and would not be rehired, because of their protected activities.
On review, the Court held that substantial evidence supported the Board’s finding that the discharges were unlawful. In doing so, the Court rejected the Employer’s contentions that the manager was not acting as its agent when she made the unlawful statements, and held that she was acting with both actual and apparent authority at the time. Regarding the Employer’s challenges to the Board’s impression-of-surveillance and coercive-statement findings, the Court held that those arguments were not properly before the Court because the Employer had not adequately raised them in exceptions before the Board. Finding no merit in the Employer’s remaining contentions that sought to challenge rulings by the Administrative Law Judge, the Court enforced the Board’s order in full.
The Court’s decision is here.
Laborers' International Union of North America, Local Union No. 91, Board Case No. 03-CB-196682 (reported at 368 NLRB No. 40) (2d Cir. decided October 9, 2020).
In an unpublished summary order, the Court enforced the Board’s order that issued against this Union that operates a non-exclusive hiring hall in Niagara Falls, New York. In the absence of exceptions, the Board (Chairman Ring and Members Kaplan and Emanuel) adopted the Administrative Law Judge’s findings that the Union violated Section 8(b)(1)(A) in taking two actions against a Union member: by threatening to bring internal charges against him if he contacted the Board, and by refusing to show him the current out-of-work list. On the General Counsel’s exceptions, the Board reversed the judge’s dismissal of two allegations and held that the Union had violated Section 8(b)(1)(A) in two additional ways: by refusing to refer that same member off the out-of-work list because his brother had engaged in protected criticism of the Union’s leadership, and by changing its practice of making the most current out-of-work list available to members upon request. Before the Board, the Union did not challenge any of the four violations. It filed no exceptions to the judge’s decision, no pleading in response to the General Counsel’s exceptions, and no Motion for Reconsideration.
Dispensing with oral argument, the Court concluded that the Union failed to preserve any arguments for review, and that the sole issue the Union did seek to contest in its opening brief was jurisdictionally barred under the principles of Section 10(e) of the Act (“No objection that has not been urged before the Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”). The Court explained that the bar applies “whenever a party fails to raise an objection before the Board, regardless of whether the ALJ had earlier made favorable findings on the point,” citing NLRB v. DeBartelo, 241 F.3d 207 (2d Cir. 2001). Rather, the Court noted that the Board’s regulations require that any matter “not included in exceptions or cross-exceptions may not thereafter be urged before the Board, or in any further proceeding,” quoting 29 C.F.R. § 102.46(f). The Court also noted that in an answering brief to a party’s exceptions before the Board, “the opposing party may defend an ALJ’s favorable decision or file cross-exceptions of its own,” citing 29 C.F.R. §§ 102.46-(b), (c), (d). Noting that the Union had chosen to forego those opportunities, the Court held that the Union failed to preserve the questions raised in its petition for review.
The Court’s summary order may be found here.
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Administrative Law Judge Decisions
J.G. Kern Enterprises, Inc. (07-CA-231802, et al.; JD-40-20) Sterling Heights, MI. Administrative Law Judge Paul Bogas issued his decision on October 6, 2020. Charges filed by Local 228, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO.
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