Summary of NLRB Decisions for Week of September 21 - 25, 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
Ground Zero Foundation d/b/a Academy for Creative Enrichment (04-CA-245956; 370 NLRB No. 22) Bear, DE. September 22, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by telling an employee that employees were not permitted to discuss wages with each other and by discharging that employee because of engaging in protected concerted activities.
Charge filed by an individual. Administrative Law Judge Robert A. Giannasi issued his decision on March 25, 2020. Chairman Ring and Members Kaplan and Emanuel participated.
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Madelaine Chocolate Novelties, Inc. (29-CA-222257; 370 NLRB No. 24) Rockaway Park, NY, September 24, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing unit employees’ terms and conditions of employment when it discontinued the shift differential (i.e., premium) paid to afternoon- and evening-shift employees.
Charge filed by Local 1222, United Professional Service Employees Union. Administrative Law Judge Jeffrey P. Gardner issued his decision on November 1, 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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases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
Sea World of Florida, LLC (12-RC-257917) Orlando, FL, September 22, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election (ordering a mail-ballot election due to the circumstances related to the COVID-19 pandemic) as it raised no substantial issues warranting review. The Board also denied the Employer’s Request for an Immediate Stay of Mail Ballot Election as moot. Petitioner—International Union, Security, Police and Fire Professionals of America (SPFPA). Members Kaplan, Emanuel, and McFerran participated.
Arakelian Enterprises, Inc. d/b/a Athens Services (31-RD-223309) Pacoima, CA, September 22, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s blocking determination as it raised no substantial issues warranting review. Petitioner—an individual. Union—Teamsters Local 396. Members Kaplan, Emanuel, and McFerran participated.
FAA Concord T, Inc., d/b/a Concord Toyota (32-RC-255130) Concord, CA, September 22, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Board found that the Regional Director had applied the appropriate precedent — Warner-Lambert Co., 298 NLRB 993 (1990) (an Armour-Globe self-determination election is appropriate where the petitioned-for voting group is an identifiable, distinct segment so as to constitute an appropriate voting group and the petitioned-for voting group shares a community of interest with the existing unit) — and the Board independently determined that the petitioned-for voting group of advisors was a distinct, identifiable segment (and therefore not an arbitrary segment). The Board also remanded the case to the Regional Director with a directive to issue a certification of results, which is the proper certification in any self-determination election, irrespective of the results. Petitioner—Machinists Automotive Trades District Lodge No. 190, Machinists Local 1173. Members Kaplan, Emanuel, and McFerran participated.
The Seattle Times Co. (19-RC-261015) Seattle, WA, September 23, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Board also denied the Employer’s Request to Impound the Ballots as moot. Petitioner—Pacific Northwest Newspaper Guild, Communications Workers of America Local 37082. Members Kaplan, Emanuel, and McFerran participated.
Airgas USA, LLC (16-RC-262896) Grand Prairie, TX, September 24, 2020. The Board (Members Kaplan and Emanuel; Member McFerran, dissenting) granted the Employer’s Emergency Motion to Stay Mail Ballot Election and also granted in part 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. The Board declined to rule, at this time, on the Employer’s Request for Review of the Regional Director’s appropriate-unit determination. Member McFerran would have denied the Motion to Stay and the Request for Review, finding no basis to conclude that the Regional Director clearly abused his discretion in directing a mail ballot. Petitioner—International Brotherhood of Teamsters, Local 745. Members Kaplan, Emanuel, and McFerran participated.
The Atlantic Group, Inc. (16-RC-256920) Glen Rose, TX, September 24, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and Supplemental Direction of Election as it raised no substantial issues warranting review. Petitioner—International Brotherhood of Electrical Workers, Local 220. Members Kaplan, Emanuel, and McFerran participated.
Wayne/Scott Fetzer Company d/b/a Wayne Combustion Systems (25-RD-256161) Wayne Scott, IN, September 24, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Order Directing Hearing and Notice of Hearing on Objections as it raised no substantial issues warranting review. The Regional Director set the Employer’s objections for hearing but had found that four of the Employer’s offers of proof were insufficient to establish the existence of issues concerning the election’s validity that would warrant setting those matters for hearing. Member Emanuel would have granted review solely with respect to the second rejected offer of proof because he believed it specified sufficient facts to warrant setting it for hearing. Petitioner—an individual. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
Oxarc, Inc. (19-CA-230472, et al.) Pasco, WA, September 23, 2020. The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s denial of the Respondent’s Motion to Postpone the Hearing until it could be conducted in-person, but denied the appeal on the merits. The Board found that the Respondent failed to establish that the judge abused his 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 a party may raise any non-speculative concerns that arise during the video hearing to the judge in the first instance, without prejudice to its right to file exceptions with the Board to any adverse rulings. Charges filed by International Brotherhood of Teamsters and an individual. Members Kaplan, Emanuel, and McFerran participated.
Shamrock Foods Company (28-CA-150157) Phoenix, AZ, September 24, 2020. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Supplemental Decision and Order reported at 369 NLRB No. 140 (2020). The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Crozer-Chester Medical Center, Board Case No. 04-CA-172296 (reported at 366 NLRB No. 28) (3d Cir. decided September 24, 2020).
In a published opinion, the Court enforced, in part, the Board’s order that issued against this non-profit entity that operates a system of hospitals and medical facilities in Pennsylvania, where employees at two of its hospitals are represented by the Pennsylvania Association of Staff Nurses and Allied Professionals. In 2015, after the Union learned that the Employer planned to sell the system and determined that the sale would likely impact the employees’ working conditions, it requested a copy of the sales agreement so that it could bargain over the effects of the sale. The Employer acknowledged that portions of the sales agreement were relevant to bargaining, but refused to produce the agreement in its entirety, claiming that it contained irrelevant or confidential information. On those facts, the Board (Members Pearce, McFerran, and Emanuel) found that Employer violated Section 8(a)(5) and (1) by refusing to provide the Union with information relevant to its duty to bargain over the effects of the sale. As a remedy, the Board (Member Emanuel, dissenting) directed the Employer to provide the Union with the entire sales agreement, including all schedules and attachments.
On review, the Court (Circuit Judge Chagares and Chief District Court Judge Sánchez of the Eastern District of Pennsylvania, sitting by designation; Circuit Judge Bibas, dissenting in part) held that substantial evidence supported the Board’s conclusion that the Employer unlawfully failed to provide portions of the sales agreement that the Union had established were relevant to bargaining over the effects of the sale, and rejected the Employer’s claim that it had a confidentiality interest that barred it from providing the sales agreement to the Union. The Court, however, held that the Board abused its discretion by ordering the Employer to produce the entire sales contract, which, the Court stated, included information never established as relevant. The Court therefore upheld the Board’s unfair-labor-practice finding, but remanded the remedy for further consideration in light of the Court’s opinion. The Court explained that the Board abused its discretion in broadly ordering the Employer “to disclose all of the schedules and attachments,” but the Court “le[ft] it to the Board on remand to determine which schedules and attachments have been sufficiently established as relevant and thus which schedules and attachments the Union has a right to receive.”
Dissenting in part, Judge Bibas wrote to state his view that the Union had not adequately established the relevance of the sales agreement, and that the majority opinion had incorrectly placed the burden of proving relevance on the Employer.
The Court’s opinion is here.
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Administrative Law Judge Decisions
American Postal Workers Union, Greater Cincinnati Ohio Area Local 164, AFL-CIO (APWU)(United Postal Service) (09-CB-245613; JD-36-20) Cincinnati, OH. Administrative Law Judge Arthur J. Amchan issued his decision on September 23, 2020. Charge filed by an individual.
Morgan Corp. (10-CA-250678; JD-37-20) Duncan, SC. Administrative Law Judge Sharon Levinson Steckler issued her decision on September 25, 2020. Charge filed by an individual.
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