Summary of NLRB Decisions for Week of October 7 - 11, 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
RM Bakery, LLC d/b/a Leaven & Co., a wholly-owned subsidiary of BKD Group, LLC (02-CA-235116; 368 NLRB No. 90) Bronx, NY, October 8, 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 terminating five employees for engaging in protected concerted activities.
Charge filed by Make the Road New York. Chairman Ring and Members McFerran and Emanuel participated.
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Beena Beauty Holding, Inc. d/b/a Planet Beauty (31-CA-144492; 368 NLRB No. 91) Studio City, CA, October 8, 2019.
On remand from the Ninth Circuit Court, the Board found that the Respondent violated Section 8(a)(1) by maintaining its mandatory arbitration agreement because, when reasonably interpreted, it interferes with employees’ access to the Board and its processes. Applying The Boeing Company, 365 NLRB No. 154 (2017) and Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), the Board found that the agreement plainly makes arbitration the exclusive forum for the resolution of all claims except for workers compensation or unemployment compensation benefits, including claims arising under the Act. Finding that the agreement cannot be legitimately justified, the Board placed it in Boeing Category 3.
Charge filed by an individual. Administrative Law Judge Mary Miller Cracraft issued her decision on March 3, 2016. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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LA Specialty Produce Company (32-CA-207919; 368 NLRB No. 93) Hayward, CA, October 10, 2019.
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining two rules in its employee manual—the “Confidentiality & Non-Disclosure” rule and the “Media Contact” rule.
In doing so, the majority applied its decision in Boeing Co., 365 NLRB No. 154 (2017), and provided points of clarification. First, the majority noted that it is the General Counsel’s initial burden to prove that a facially neutral rule would in context be interpreted by a reasonable employee to potentially interfere with the exercise of Section 7 rights. If that burden is not met, there is no need for the Board to take the next step in Boeing of addressing the interests justifying the rule. Second, the majority noted that if the General Counsel meets that initial burden, then the Boeing analysis will require a balancing of the potential interference against the legitimate justifications associated with the rule. In many instances, it will be possible to strike a general balance of competing employee rights and employer interests for certain types of rules, eliminating the need for further case-by-case balancing. The Board will find those rules to be lawful and fit within Boeing Category 1(b). Third, the majority noted that in some cases, it will not be possible to draw broad conclusions about the legality of particular rules because the context and competing rights and interests are specific to that rule and employer. The Board will place those rules in Boeing Category 2.
Turning to the rules at issue in the case, the majority reversed the judge and found that the rules, as interpreted by an objectively reasonable employee, do not prohibit or interfere with the exercise of Section 7 rights. The majority found that the disputed portion of the Confidentiality Rule only applies to the Respondent’s own nonpublic, proprietary records and does not prohibit employees from disclosing the names of the Respondent’s customers and vendors. The majority also found that the Media Contact rule provides only that when employees are approached by the news media for comment, they may not comment on the Respondent’s behalf.
Dissenting, Member McFerran argued that the majority’s clarification of Boeing categorically removes broad subject areas of workplace regulations from scrutiny and erodes the Board’s ability to protect Section 7 rights. The dissent argued that the majority’s characterization of the “reasonable employee” is hopelessly unclear and cannot be reconciled with Supreme Court precedent. The dissent also argued that the majority’s analysis is too strict to adequately protect Section 7 rights. The dissent would find that both the Confidentiality rule and the Media Contact rule are impermissibly overbroad, have a reasonable tendency to chill employees from engaging in protected concerted activity, and are not narrowly tailored.
Charge filed by Teamsters Local 70, International Brotherhood of Teamsters. Administrative Law Judge Amita Baman Tracy issued her decision on June 28, 2018. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Aerotek, Inc. (17-CA-071193, et al.; 368 NLRB No. 94) Omaha, NE, October 10, 2019.
On remand from the Eighth Circuit Court for reconsideration of the Board’s remedy for an individual salt discriminatee, the Board accepted, as the law of the case, the Court’s opinion that the individual was not entitled to instatement and full backpay under the Board’s remedial “unfit for further service” standard because, subsequent to the Respondent’s unlawful refusal to hire him, he solicited a client of the Respondent to obtain electricians from the Union’s hiring hall rather than from the Respondent. The Court concluded that this “… behavior is not the type of reactive, emotive conduct the ‘unfit for further service’ standard is designed to forgive,” and that the individual, by his solicitation and other actions, “was acting in his role as a competitor to Aerotek – and not as an aggrieved discriminatee.” Accordingly, the Board reduced the individual’s remedy to the backpay accrued from the time of the Respondent’s refusal to hire him to the date the Respondent became aware of his unprotected solicitation. In the underlying case, the Board found (and the Court agreed) that the refusal to hire the individual and three other salt discriminatees violated Section 8(a)(3).
Charges filed by International Brotherhood of Electrical Workers, Local 22, a/w the International Brotherhood of Electrical Workers, AFL-CIO. Administrative Law Judge Arthur Amchan issued his decision on March 11, 2013. Members McFerran, Kaplan, and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
Laborers’ International Union of North America, Local Union No. 91 (Mader Construction Co., Inc.) (03-CB-225477) Niagara Falls, NY. No exceptions having been filed to the August 26, 2019 decision of Administrative Law Judge Keltner W. Locke’s 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. Charge filed by an individual.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
NSL Country Gardens, LLC ( 1-CA-223025, et al.; JD-77-19) Swansea, MA. Administrative Law Judge Geoffrey Carter issued his decision on October 7, 2019. Charges filed by New England Healthcare Employees Union 1199, and by an individual.
Cott Beverages Inc. (16-CA-181144; JD-76-19) San Antonio, TX. Administrative Law Judge Paul Bogas issued his supplemental decision on October 7, 2019. Charge filed by an individual.
Shamrock Foods Company (28-CA-150157; JD(SF)-34-19) Phoenix, AZ. Administrative Law Judge Jeffrey D. Wedekind issued his decision on October 7, 2019. Charge filed by Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC.
Noah’s Ark Processors, LLC d/b/a WR Reserve (14-CA-217400, et al.; JD-78-19) Hastings, NE. Administrative Law Judge Andrew S. Gollin issued his decision on October 11, 2019. Charges filed by United Food and Commercial Workers Local Union No. 293.
DuPont Specialty Products USA, LLC, as a successor to E.I. DuPont de Nemours and Company (05-CA-222622, JD-79-19) Richmond, VA. Administrative Law Judge David I. Goldman issued his decision on October 11, 2019. Charge filed by Ampthill Rayon Workers, Inc., Local 992, International Brotherhood of DuPont Workers.
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