Summary of NLRB Decisions for Week of September 23 - 27, 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
CC Traffic and Property Management Company LLC (13-CA-215998; 368 NLRB No. 79) Chicago, IL, September 24, 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)(5) and (1) by failing and refusing to recognize and bargain with the Union, by refusing to furnish the Union with requested information, and by unilaterally ceasing contributions to the Union’s Health and Welfare, Pension, and Legal and Educational Assistance Funds.
Charge filed by Teamsters Local Union No. 727. Chairman Ring and Members McFerran and Kaplan participated.
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H.W. Weidco/Ren LLC d/b/a South Jersey Extended Care (04-CA-213035; 368 NLRB No. 80) Bridgeton, NJ, September 24, 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 refusing a bargaining unit employee’s request for union representation during an investigatory interview that she had reasonable cause to believe would result in disciplinary action against her.
Charge filed by United Food and Commercial Workers Union Local 152. Members McFerran, Kaplan, and Emanuel participated.
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Santos Cruz LLC d/b/a Filiberto’s (28-CA-221286; 368 NLRB No. 78) Anthem, AZ, September 24, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with provisions of the parties’ bilateral informal settlement agreement. The complaint alleged Section 8(a)(1) violations. The Board ordered a full remedy for the violations found.
Charge filed by an individual. Chairman Ring and Members McFerran and Emanuel participated.
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Alaris Health at the Atrium (22-CA-206004; 368 NLRB No. 82) Jersey City, NJ, September 26, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with provisions of the parties’ informal settlement agreement. The complaint alleged Section 8(a)(5) and (1) violations. The Board ordered the Respondent to comply with its obligations under the settlement agreement.
Charge filed by 1199 SEIU United Healthcare Workers East. Chairman Ring and Members McFerran and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Marriott Hotel Services, Inc. (20-RC-236046) South San Francisco, CA, September 25, 2019. The Board (Members McFerran and Kaplan; Member Emanuel, dissenting) 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. Member Emanuel would have granted review. Petitioner—UNITE HERE Local 2. Members McFerran, Kaplan, and Emanuel participated.
Tito Contractors, Inc. (05-RC-117169) Cockeysville, MD, September 26, 2019. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Supplemental Decision and Certification of Representative as it raised no substantial issues warranting review. The Acting Regional Director had found the petitioned-for employer-wide unit was an appropriate unit for bargaining, and that changed circumstances since the initial hearing did not warrant a different result. Petitioner—International Union of Painters and Allied Trades, District Council 51, AFL-CIO. Members McFerran, Kaplan, and Emanuel participated.
C Cases
Virbac Corporation (14-CA-222238) Bridgeton, MO, September 24, 2019. The Board denied Respondent’s Motion to Dismiss the Complaint or, in the Alternative, for a More Definite Statement, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Noting that a portion of the motion had requested, in the alternative, deferral to contractual grievance and arbitration procedures, the Board also denied that request without prejudice to the Respondent’s right to renew its deferral argument, finding that the Respondent had not established that a presently effective collective-bargaining agreement contains such procedures and that they apply to the allegations of the complaint. Charge filed by an individual. Chairman Ring and Members McFerran and Emanuel participated.
United States Postal Service (13-CA-204225, et al.) Elk Grove Village, IL, September 25, 2019. 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 by the Respondent’s failure to provide/delay in providing relevant information. Charges filed by American Postal Workers Union, AFL-CIO, Northwest Illinois Area Local 7140. Members McFerran, Kaplan, and Emanuel participated.
Temsco N.C., Inc., Debtor-In-Possession (12-CA-227471) Carolina, PR, September 25, 2019. 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 International Association of Machinists and Aerospace Workers, AFL-CIO. Members McFerran, Kaplan, and Emanuel participated.
The Susan B. Allen Memorial Hospital (14-CA-233000 and 14-CA-233898) El Dorado, KS, September 27, 2019. No exceptions having been filed to the August 15, 2019 decision of Administrative Law Judge Arthur J. Amchan’s finding that the Respondents 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 individuals.
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Appellate Court Decisions
Ozburn-Hessey Logistics, LLC, Board Case No. 15-CA-165554 (reported at 366 NLRB No. 173) (6th Cir. decided September 24, 2019).
In a published opinion, the Court enforced the Board’s order issued against this provider of transportation, warehousing, and logistics services for unfair labor practices committed after its employees at five warehouses in Memphis, Tennessee, voted in a second election in July 2011 to be represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. This is the sixth Board order that courts have enforced involving the Employer’s conduct related to that organizing campaign and its aftermath.
In the current case, while the Employer was pursuing its ultimately unsuccessful challenge to the July 2011 election, the Board (Members Pearce, Kaplan, and Emanuel), in the absence of exceptions, adopted the Administrative Law Judge’s finding that the Employer violated Section 8(a)(5) and (1) by unilaterally changing its attendance policy in October 2013 without affording the Union notice and an opportunity to bargain. The Board, however, reversing two of the judge’s recommended dismissals, found that the Employer made similar unilateral changes to its attendance policy sometime after October 2013, and unlawfully discharged an employee pursuant to the changed policy. Although the later policy change was not specifically alleged in the complaint, the Board found that, because it was closely connected to the complaint’s subject matter and fully litigated at the hearing, there were no due process concerns in finding the additional violation. Further, noting that the Employer did not contest its unilateral implementation of the changed attendance policy, and that the Employer had admitted that it discharged the employee pursuant to it, the Board found the discharge unlawful under Section 8(a)(5) and (1).
Before the Court, the Employer challenged, on due-process grounds, the Board’s finding that it had made unilateral changes to the attendance policy after October 2013. Rejecting that contention, the Court held that, while the second unilateral change was not alleged in the complaint, it involved “identical subject matter.” Further, the Court stated, “the record is replete with evidence that the Board provided ample notice to [the employer], and the parties thoroughly litigated the issue at the hearing.” The Court concluded that “[d]ue process demands nothing more.” On the unlawful discharge, the Court upheld the violation, agreeing with the Board that, “but for” implementation of the unlawful attendance policy changes, the employee would not have been discharged. Finally, commenting on the Employer’s claim that it is “not the lawbreaker that the Board paints it to be,” the Court stated that the Employer “had multiple opportunities to prevent its current predicament,” but instead “chose to dispute the results of the representation election and then unilaterally make substantive changes to its attendance policy while those challenges were pending.”
The Court’s opinion is here.
Charter Communications, LLC, Board Case No. 07-CA-140170 (reported at 366 NLRB No. 46) (6th Cir. decided September 25, 2019).
In a published opinion, the Court enforced the Board’s order issued against this provider of television, internet, and telephone services throughout the United States, with a field office in Saginaw, Michigan. The Board’s order remedies numerous unfair labor practices the Employer committed after field auditors at its Saginaw office contacted International Brotherhood of Electrical Workers expressing interest in unionizing and organizers began distributing pro-union flyers outside the office.
Specifically, the Board (Members Pearce, McFerran, and Emanuel) found that the Employer violated Section 8(a)(1) by surveilling its employees’ union activities and creating the impression of surveillance, and, with regard to the known lead organizer, by coercively interrogating him, threatening him with closer supervision, soliciting grievances from him and impliedly promising to remedy them, monitoring him more closely, and threatening to discharge him. Further, the Board found that the Employer violated Section 8(a)(3) and (1) by reassigning that lead organizer, and two of his co-workers whom the Employer suspected were union supporters, to rural areas to isolate them, and by later discharging them.
On review, the Court (Judges Siler and Stranch; Judge Nalbandian, concurring in part) held that the Board’s findings were supported by substantial evidence. In comprehensive analyses, the Court addressed each of the Board’s Section 8(a)(1) findings, provided supporting authority, and demonstrated that application of those principles to the credited record evidence supported the Board’s conclusions. In addition to rejecting the Employer’s general reliance on discredited evidence, the Court found no merit to its argument that Section 10(b) of the Act rendered four of the five allegations time-barred. The Court noted that the charge was timely filed within the statute’s six-month period and then later amended more than five months before the hearing opened. Moreover, the Court agreed with the Board that the amendments were “closely related” to the initial charge, explaining that “[e]ach action emanated from the same protected activity, the union handbilling that [the lead organizer] instigated,” and that all but one “targeted (at least in part) the same employee,” and “involved the same [company] official.” With regard to the surveillance allegations, the Court noted, among other things, that the supervisors and managers engaged in “out-of-the-ordinary behavior,” which additionally supported the Board’s findings.
Turning to the discriminatory reassignment of the lead organizer and his two co-workers, the Court noted, in particular, that the manager “who ordered the reassignment, admitted unlawful motivation, saying a [c]ompany vice president told him ‘to isolate the employees and keep them away from other technicians.” Regarding the discharge of the lead organizer, the Court held under Wright Line that the Employer had conceded that it knew of his union activities, and that unlawful motive was established on this record by the “temporal proximity” of his discharge in relation to his continued union activities, the numerous coercive acts taken against him, and that “tellingly, just two weeks before [he] was discharged, his immediate supervisor threatened that [he], as the ‘union mastermind,’ would be discharged.” On the Employer’s affirmative defense, the Court agreed with the Board that the purported reasons for the discharge were pretextual in nature, finding them “shifting and unreliable” and contrary to the credited evidence. The Court also relied on disparate-treatment evidence and the fact that a meaningful investigation had not been conducted prior to the discharge. Regarding the other two discharged employees who had not engaged in union activity, the Court explained that it is “immaterial that [neither] employee was not in fact engaging in union activity as long as that was the employer’s perception and the employer was motivated to act based on that perception.” Here, the Court held, the record evidence shows that company managers suspected and treated the two employees as union supporters. The Court then concluded that the reasons presented for their discharges, which were largely forfeited on appeal, nonetheless were shown to be pretextual given that no other employee had been similarly discharged for dishonesty, as the Employer claimed.
Concurring, Judge Nalbandian wrote separately, in part, to state his view that, for assessing “the line between observation and unlawful surveillance,” evidence that company officials acted “out of the ordinary,” is not necessarily the most reliable of facts to consider.
The Court’s opinion is here.
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Administrative Law Judge Decisions
TDY Industries, LLC, d/b/a ATI Specialty Alloys and Components, Millersburg Operations (19-CA-227649 and 19-CA-227650; JD(SF)-32-19) Albany, OR. Administrative Law Judge Eleanor Laws issued her decision on September 25, 2019. Charges filed by United Steel Workers of America, Local 6163.
Chip’s Wethersfield, LLC d/b/a Chip’s Family Restaurant (01-CA-217597; JD-72-19) Wethersfield, CT. Administrative Law Judge Elizabeth M. Tafe issued her decision on September 25, 2019. Charge filed by an individual.
Indiana Bell Telephone Company, Inc. (25-CA-218494; JD-71-19) Indianapolis, IN, September 25, 2019. Errata to September 17, 2019 decision of Administrative Law Judge Michael A. Rosas. Errata Amended Decision
UNITE HERE Local 1 (Hyatt Regency Chicago) (13-CB-217959, et al.; JD-73-19) Chicago, IL. Administrative Law Judge Christine E. Dibble issued her decision on September 26, 2019. Charges filed by Hyatt Regency Chicago.
Tesla, Inc. (32-CA-197020, et al.; JD(SF)-33-19) Fremont, CA and Sparks, NV. Administrative Law Judge Amita Baman Tracy issued her decision on September 27, 2019. Charges filed by individuals.
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