Summary of NLRB Decisions for Week of September 19 - 23, 2022
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
PG Publishing Co., Inc. d/b/a Pittsburgh Post–Gazette (06-CA-233676; 371 NLRB No. 141) Clinton, PA, September 21, 2022.
A full-Board majority consisting of Chairman McFerran and Members Wilcox and Prouty reversed the Administrative Law Judge and found that the Respondent violated Section 8(a)(5) and (1) by laying off two employees following the Respondent’s decision to eliminate two days of print publication. Contrary to the judge, the Board majority first found that the General Counsel had preserved the argument that the Respondent’s layoff of the two employees, who were covered by a five-shift guarantee contained in the parties’ expired collective-bargaining agreement, constituted a violation of the Respondent’s statutory duty to maintain the status quo pending negotiations for a successor agreement. The majority then found that the Respondent violated Section 8(a)(5) and (1) by admittedly unilaterally laying off the two employees prior to reaching an overall impasse in negotiations for a successor collective-bargaining agreement because the parties’ expired agreement contained no language clearly and unmistakably waiving the Union’s statutory right to maintenance of the five-shift guarantee (unless and until the parties reached an impasse in bargaining for a new collective-bargaining agreement). Because the majority found the layoffs unlawful on that basis, the majority found it unnecessary to address the judge’s conclusion that the Respondent satisfied its separate obligation to bargain over the effects of its decision to eliminate two days of print publication before laying off the two employees.
Finally, the Board unanimously affirmed the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information.
Dissenting in part, Members Kaplan and Ring would reverse Finley Hospital, 362 NLRB 915 (2015), and find that the five-shift guarantee did not survive expiration of the parties’ collective-bargaining agreement because of the durational language contained in the five-shift guarantee section of the parties’ expired agreement, and that the layoffs therefore did not violate the Respondent’s statutory duty to maintain the status quo pending negotiations for a successor collective-bargaining agreement. They further agreed with the judge that effects bargaining is not subject to the overall impasse rule, and that the Respondent satisfied its effects bargaining obligations. In addition, Member Kaplan would find that, even assuming that the five-shift guarantee was part of the post-expiration status quo, the fact that the laid off employees stopped being assigned to shifts because they were no longer employed by the Respondent does not constitute an unlawful unilateral change under Board law.
Charge filed by Graphic Communications International Union, GCC/International Brotherhood of Teamsters Local 24M/9N. Administrative Law Judge David I. Goldman issued his decision on September 14, 2020. Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty participated.
***
Cadillac of Naperville, Inc. (13-CA-207245; 371 NLRB No. 140) Naperville, IL, September 22, 2022.
On remand that the Board requested from the D.C. Circuit Court, the Board retroactively applied General Motors, 369 NLRB No. 127 (2020), which made Wright Line the appropriate test for analyzing whether an employer has unlawfully discharged or disciplined an employee who engaged in “abusive conduct” in connection with Section 7 activity. The prior Board decision had applied Atlantic Steel, 245 NLRB 814 (1979), to find the discharge of an employee unlawful. Applying Wright Line, the Board unanimously found that the Respondent violated Section 8(a)(3) and (1) by discharging the employee. In so finding, the Board unanimously affirmed the judge’s conclusion that the General Counsel met its initial Wright Line burden and went on to find that the Respondent failed to meet its rebuttal burden. A majority, consisting of Members Kaplan and Ring, found it unnecessary to rely on a statement made by the Respondent after it discharged the employee, which was not otherwise found to have violated Section 8(a)(1), to establish animus. Member Prouty would rely on the judge’s animus finding in its entirety, which included the statement.
Charge filed by Automobile Mechanics Local 701, International Association of Machinists & Aerospace Workers, AFL-CIO. Administrative Law Judge Michael A. Rosas issued his decision on June 19, 2018. Members Kaplan, Ring, and Prouty participated.
***
NRT Bus, Inc. (01-RC-292628; 371 NLRB No. 136) Framingham, MA, September 22, 2022. Correction to decision issued September 13, 2022. Errata Amended Decision.
***
D.A.G. Construction Co., Inc. (09-CA-278094; 371 NLRB No. 145) Cincinnati, OH, September 23, 2022.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s withdrawal of its answer to the complaint. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to adhere to the terms of its multiemployer collective-bargaining agreement.
Charge filed by Indiana, Kentucky, Ohio Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America. Chairman McFerran and Members Kaplan and Prouty participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Starbucks Corporation (04-RC- 299148) Easton, PA, September 22, 2022. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Board declined to revisit, in this proceeding, its decision in Aspirus Keweenaw, 370 NLRB No. 45 (2020), regarding the direction of mail ballot elections during the COVID pandemic. Regarding the Employer’s contention of Board agent misconduct in mail ballot elections in other of its stores conducted by other regional offices, the Board noted that these allegations were not raised to the Acting Regional Director and even if they had been raised (and even if they were true) they would not demonstrate that the Acting Regional Director abused his discretion by directing a mail ballot election. The Board also denied the Union’s requests for the Board to issue a formal reprimand of the Employer and to order the payment of litigation costs. Petitioner—Workers United a/w SEIU. Members Ring, Wilcox, and Prouty participated.
C Cases
Greenbrier VMC, LLC, d/b/a Greenbrier Valley Medical Center, Community Health Systems, Inc. and/or Community Health Systems Professional Services Corporation, LLC, a single employer and/or joint employers (10-CA-150998) Ronceverte, WV, September 21, 2022. No exceptions having been filed to the August 9, 2022 supplemental decision of Administrative Law Judge Christal J. Key’s finding that determined the amounts of backpay due the employees and adopted the judge’s recommendation that the Respondent pay such amounts set forth in the Supplemental Decision of the Administrative Law Judge. Charge filed by National Nurses Organizing Committee (NNOC), AFL-CIO.
Bernhard MCC, LCC (09-CA-285766) New Albany, OH, September 23, 2022. No exceptions having been filed to the August 10, 2022 decision of Administrative Law Judge Arthur J. Amchan’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 Ohio State Association of Plumbers and Pipefitters.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Columbus Electric Cooperative, Inc. (28-CA-285046; JD(SF)-24-22) Deming, NM. Administrative Law Judge Jeffrey D. Wedekind issued his decision on September 19, 2022. Charge filed by International Brotherhood of Electrical Workers, Local 611, AFL-CIO.
International Longshoremen’s Association, AFL-CIO, Local 1475 (Georgia Stevedore Association) (10-CB-266481; JD-56-22) Savannah, GA. Administrative Law Judge Keltner W. Locke issued his decision on September 22, 2022. Charge filed by an individual.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.