Summary of NLRB Decisions for Week of September 14 - 18, 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
Perdue Foods, LLC d/b/a Draper Valley Farms (19-RC-263822; 370 NLRB No. 20) Chehalis, WA, September 15, 2020.
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) granted the Employer’s Request for Immediate Stay of Mail Ballot Election, and also granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election ordering a mail-ballot election due to circumstances related to the COVID-19 pandemic as it raised substantial issues warranting review. Member McFerran would have denied both requests.
Petitioner—Teamsters Local Union No. 252, a/w the International Brotherhood of Teamsters. Chairman Ring and Members Kaplan, Emanuel, and McFerran participated.
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New York Party Shuttle, LLC, d/b/a Onboard Tours, Washington DC Party Shuttle, LLC, d/b/a Onboard Tours, Onboard Las Vegas Tours, LLC, d/b/a Onboard Tours, NYC Guided Tours, LLC, and Party Shuttle Tours, LLC, and New York Party Shuttle, LLC, d/b/a Onboard Tours and Its Alter Ego and/or Golden State Successor, NYC Guided Tours, LLC (02-CA-073340; 370 NLRB No. 19) New York, NY, September 16, 2020.
In this compliance proceeding, the Board adopted the Administrative Law Judge’s conclusions that the backpay calculations in the amended compliance specification were reasonable and that the five Respondents are jointly and severally liable for the remedy as a single employer. The Board found it unnecessary to pass on the judge’s additional findings that Respondent NYC Guided Tours is also liable as an alter ego and a Golden State successor to Respondent New York Party Shuttle.
Charge filed by an individual. Administrative Law Judge Kenneth W. Chu issued his decision on July 9, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
ClarkWestern Dietrich Building Systems, LLC (01-RC-264014) Bristol, CT, September 16, 2020. The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) granted the Employer’s Emergency Motion to Stay the Election, and also granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election ordering a mail-ballot election due to circumstances related to the COVID-19 pandemic as it raised substantial issues warranting review. Member McFerran would have denied the Motion to Stay and the Request for Review. Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC. Chairman Ring and Members Kaplan, Emanuel, and McFerran participated.
29th Street ALF, LLC d/b/a Meadowview of Greeley (27-RC-245022) Greeley, CO, September 16, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. The Employer had contended that the Petitioner tainted the showing of interest and the election results by using supervisors during its organizing drive. In denying review, the Board agreed with the Regional Director’s conclusion that the conduct at issue in this case did not require setting aside the election under the test set out in Harborside Healthcare, Inc., 343 NLRB 906 (2004), regarding pro-union supervisory conduct, but in doing so did not rely on the Regional Director’s finding that the pro-union conduct at issue was relatively isolated and was not widely disseminated. The Board also denied the Employer’s Request for Extraordinary Relief as moot. Petitioner—United Food & Commercial Workers International Union, AFL-CIO, Local 7. Members Kaplan, Emanuel, and McFerran participated.
C Cases
McDonald’s USA, LLC, a Joint Employer, et al. (02-CA-093893, et al.) Various Cities and States, September 16, 2020. The Board denied the Charging Parties’ Motion to Reopen the Record and for Reconsideration of the Board’s Order Remanding reported at 368 NLRB No. 134 (2019). The Board found that the Charging Parties had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. The Board also denied as moot the Charging Parties’ request for a stay of the Board’s Order Remanding. Charges filed by Fast Food Workers Committee and Service Employees International Union, CTW, CLC, et al. Members Kaplan, Emanuel, and McFerran participated.
Zeigler North Riverside, LLC d/b/a Zeigler Ford of North Riverside (13-CA-255786, et al.) North Riverside and Lincolnwood, IL, September 18, 2020. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel and specified actions the Respondent must take to comply with the Act. The complaint had alleged Section 8(a)(5) and (1) violations. Charges filed by Teamsters Local 731, International Brotherhood of Teamsters, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Khavkin Clinic, PLLC (28-CA-220023 and 28-CA-223014) Las Vegas, NV, September 18, 2020. No exceptions having been filed to the August 6, 2020 decision of Administrative Law Judge John T. Giannopolous’ 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 an individual.
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Appellate Court Decisions
United Nurses and Allied Professionals, Board Case No. 01-CB-011135 (reported at 367 NLRB No. 94) (1st Cir. decided September 15, 2020).
In a published opinion, the Court enforced the Board’s order issued against this Union that represents groups of nurses and other medical professionals at various facilities in Connecticut, Rhode Island, and Vermont. The Union has organized its represented employees into 15 “local” unions based on their work location and employer, including 600 registered nurses in Local 5008 at Kent Hospital in Kent County, Rhode Island. In 2009, after several Kent Hospital nurses resigned from the Union and asserted their right to pay agency fees, rather than full membership dues, under Communications Workers of America v. Beck, 487 U.S. 735 (1988), the Union responded by letter informing the objectors of the reduced fees they would owe for the Union’s representational activities. In enforcing the Board’s order, the Court upheld the Board’s determinations that the Union violated Section 8(b)(1)(A) by charging nonmember Beck objectors for expenses incurred for lobbying activities, and by failing to furnish objectors with a letter from its auditor verifying the expenses reported as the basis for the Union’s agency fees.
By way of background, members of each of the Union’s locals pay monthly dues, a portion of which goes into the Union’s general operating fund. The general operating fund supports an array of services that the Union provides to all locals, including contract negotiation, grievance processing, and arbitrations. The Union also uses some of its general operating fund to lobby for various legislative measures at the state level. In Rhode Island, for example, such measures include the following: the Public Officers and Employees Retirement Bill, which would have raised the cap on postretirement earnings that former state-employed registered nurses could earn without reducing their retirement benefits; the Hospital Payments Bill, which would have provided all hospitals in Kent County, with $800,000 in funding; and the Center for Health Professionals Bill, which would have created a center tasked with developing a sufficient, diverse, and well-trained healthcare work force in the state.
In support of its reduced-fee calculations, the Union provided the Kent Hospital objectors with several charts setting forth the major categories of the Union’s overall expenses, and for Local 5008 in particular. The Union stated that the calculations had been verified by an independent auditor, but the Union’s letter was not accompanied by a certification from the auditing CPA. For purposes of calculating the reduced fees, the Union included the costs of lobbying activities that it considered relevant to its collective-bargaining efforts on behalf of the Local 5008 bargaining unit, which included about $21,970 as expenditures on lobbying before a state legislature. On those facts, the Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) found that the Union breached its duty of fair representation, and therefore violated Section 8(b)(1)(A) by: (1) charging Beck objectors for the costs of lobbying before the state legislature—a political activity that is nonchargeable under Supreme Court precedent; and (2) failing to give Beck objectors a letter from a CPA verifying that the expenses reported as the basis for the agency fees had been audited as required by law.
On the issue of lobbying expenses, the Board held that the Supreme Court’s decisions in Beck, and Machinists v. Street, 367 U.S. 740 (1961), compelled a holding that union lobbying activity is never chargeable to nonmembers, regardless of its possible relationship to collective-bargaining subjects, as was asserted by the Union. The Board determined that, under the Union’s statutory duty to deal fairly with all bargaining-unit employees, it plainly breached that duty by attempting to charge nonmembers for activities that are not part of the Union’s recognized representative functions on behalf of employees in dealing with their employer. The Board noted that the undisputed evidence shows that the Union sought to charge nonmember objectors for expenses incurred in lobbying for proposed legislation, and did so in violation of its duty of fair representation. On the issue of the auditor’s certification, the Board clarified that a union’s duty to provide verification by an auditor encompasses not only the independent audit itself, but also a letter from the auditor confirming to Beck objectors that the union’s figures had been independently verified. The Board held that the Union’s failure to provide such verification in this case constituted a second violation of its duty of fair representation.
On review, the Court (Circuit Judges Kayatta and Selya, Associate Justice Souter of the Supreme Court (ret.), sitting by designation) upheld the Board’s decision on both issues. As an initial matter, the Court noted that it is not obligated to defer to an agency’s interpretation of Supreme Court precedent. Thus, it undertook an extensive de novo review of the precedent the Board found compelled its holding that, in the private-sector context, union lobbying activity is never chargeable to nonmembers. To begin, the Court reiterated that the core principles at play come from Beck, in which the Supreme Court clarified that employees have the right to refuse to pay union fees for activities other than those “necessary to ‘[the union's performance of] the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.’” 487 U.S. at 762–63. But the Court noted that, in Beck, the record made clear that the union made no attempt to show that the lobbying was germane to collective bargaining, and thus, the Court stated, Beck”s ultimate affirmance of the lower court ruling “provides us with no rule categorically dealing with lobbying expenses.” The Court noted, though, that the Supreme Court’s earlier private-sector decision interpreting the Railway Labor Act in Machinists v. Street “can be read as perhaps categorically treating as nonchargeable amounts spent to support candidates for public office, and advance political programs.”
The Court then undertook a review of public-sector Supreme Court precedent, but “with the recognition that the concerns arising from compelled union fees differ markedly in the public sector as compared to the private sector.” Despite that difference, the Court found instructive dictum in the public-sector case of Lehnert v. Ferris Fac. Ass'n, 500 U.S. 507 (1991). Specifically, Lehnert stated that Street, and subsequent Supreme Court cases, “establish that, at least in the private sector, those [collective-bargaining] functions [chargeable to Beck objectors] do not include political or ideological activities.” Id. at 516. Although the Lehnert statement was dictum, the Court held that it fell within a body of “considered Supreme Court dicta” to which the Court was bound, and to which “the Board may have to accord similar deference,” citing 800 River Road Operating Co., 369 NLRB No. 109 (2020). After finding “no convincing argument that legislative lobbying is not a ‘political’ activity—at least as conducted here,” the Court upheld the Board’s determination.
The Court also agreed with the Board’s clarification that a union’s duty to provide an auditor’s verification of chargeable expenses encompasses not only the independent audit itself, but also a letter from the auditor confirming the union’s expense figures. The Court held that the Board’s rule reasonably applied and extended the standard stated in Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), where the Supreme Court held that “basic considerations of fairness . . . dictate that the potential objectors be given sufficient information to gauge the propriety of the union’s fee.” Id. at 306. The Court stated that, as the Board pointed out, providing an audit verification letter to objecting employees avoids “requiring [employees] to accept the union’s bare representations that the figures were appropriately audited,” and noting that “‘Trust but verify’ is a reasonable approach for the Board to take, especially when the Union can cite no good reason for not supplying” an audit verification letter.
Lastly, the Court rejected the Union’s contention that the Board’s rules issued in this case should not be applied retroactively, and that it should be relieved of the requirements of the Board’s order. Those requirements include providing the charging party objector, and all other similarly situated nonmember objectors, with verification from the Union’s auditor that the financial information previously disclosed to them had been audited, and reimbursing them for the amount of dues collected from them for lobbying activities. The Court, finding “no injustice in the Board”s application of its rulings in this case to the parties in this case,” enforced the Board’s order in full.
The Court’s opinion is here.
STP Nuclear Operating Co., Board Case No. 16-CA-222349 (reported at 367 NLRB No. 73), and STP Nuclear Operating Co., Board Case No. 16-CA-223678 (reported at 367 NLRB No. 102) (5th Cir. decided September 16, 2020).
In a published opinion in a pair of test-of-certification cases consolidated for decision, the Court denied enforcement of the Board’s bargaining orders that issued against this operator of two nuclear reactors that generate electricity at a facility in Wadsworth, Texas. The Board found that the Employer violated Section 8(a)(5) and (1) by refusing to bargain after two groups of employees, classified as “unit supervisors” and “maintenance supervisors,” voted in separate elections to be represented by International Brotherhood of Electrical Workers, Local Union 66. In doing so, the Court held, contrary to the Board, that both groups were statutory supervisors excluded from the Act’s protections under Section 2(11).
In the underlying representation case in STP I (Case 16-RC-214839), the Union filed a petition for an Armour-Globe election to allow the “unit supervisors” to be added to an existing bargaining unit of 475 company employees that included reactor operators and plant operators. The Employer opposed the petition, asserting that the unit supervisors were statutory supervisors who had the authority to assign, responsibly direct, discipline, and reward the operators. After a hearing, the Regional Director issued a decision finding that the Employer failed to meet its burden of proving supervisory status. Further, finding that the unit supervisors shared a community of interest with employees in the existing unit, the Regional Director directed an election. In March 2018, after an election was held in which the Union won on a vote of 18 to 3, the Regional Director certified the Union. The Employer filed a Request for Review, which was denied by the Board (Members Pearce and Emanuel; Member McFerran, dissenting). The Employer then refused to bargain in order to seek court review.
In the underlying representation case in STP II (Case 16-RC-220802), the Union filed a petition for an Armour-Globe election to allow the “maintenance supervisors” to determine whether they should be added to an existing bargaining unit of company employees that included technicians, mechanics, and electricians in the Employer’s maintenance division. The Employer opposed the petition, asserting that the maintenance supervisors were statutory supervisors who had the authority to assign, responsibly direct, discipline, and reward the operators, and that they effectively recommended hiring and adjusted grievances. After a hearing, the Regional Director issued a decision finding that the Employer failed to meet its burden of proof. Further, finding that the maintenance supervisors shared a community of interest with employees in the existing unit, the Regional Director directed an election. In June 2018, after an election was held in which the Union won on a vote of 20 to 5, the Regional Director certified the Union. The Employer filed a Request for Review, which was denied by the Board (Members McFerran, Kaplan, and Emanuel). The Employer then refused to bargain in order to seek court review.
On review, the Court (Circuit Judge Jones, joined by Circuit Judges Higginbotham and Duncan) concluded that unit supervisors “responsibly direct” the work of operators, and that maintenance supervisors “assign” employees in the maintenance division. The Court explained that because only one indicium of Section 2(11) authority is needed to establish supervisory status, there was no need for the Court to assess the additionally claimed bases of authority.
Regarding unit supervisors, the Court held that they responsibly direct the work of subordinates and that the Board ignored record evidence in deciding to the contrary. The Court stated that the Board did not take into account the special role accorded unit supervisors under federal regulations and their possession of Senior Reactor Operator licenses, which permit them “to manipulate the controls of a facility and to direct the licensed activities of licensed operators,” (emphasis by the court). The Court also cited the testimony of witnesses that “unit supervisors use their own judgment, experience, and training to determine the order of tasks, delegate those tasks to employees, and respond to situations that arise in the facility.” The Court also noted that in the context of a highly regulated industry, such as nuclear-power generation, written protocols are nearly ubiquitous, and “‘the mere existence of company policies does not eliminate independent judgment from decision-making if the policies allow for discretionary choices,’” quoting Oakwood Healthcare, Inc., 348 NLRB 686 (2006). Lastly, the Court held that the Board’s finding that unit supervisors are not held accountable for the actions of their subordinates, is belied by the record evidence that they can lose some or all of a bonus because of the errors of subordinates.
Regarding the maintenance supervisors, the Court held that they assign work within the meaning of Section 2(11), and that the Board had ignored at least four discrete tasks that they perform that the Court viewed as illustrating that authority. Those tasks include contributing to the creation of the authorized work schedule used to assign employees, regularly reassigning employees to other crews on a temporary basis without managerial oversight, delegating tasks to their crews based on their assessment of individual crew members’ skills and certifications, and assigning limited amounts of overtime.
The Court’s opinion is here.
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Administrative Law Judge Decisions
PG Publishing Co., Inc. d/b/a Pittsburgh Post-Gazette (06-CA-233676; JD-35-20) Clinton, PA. Administrative Law Judge David I. Goldman issued his decision on September 14, 2020. Charge filed by Graphic Communications International Union, GCC/International Brotherhood of Teamsters Local 24M/9N.
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