Summary of NLRB Decisions for Week of September 26 - 30, 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
New York Paving, Inc. (29-CA-254799; 371 NLRB No. 139) Long Island City, NY, September 26, 2022.
The Board (Members Wilcox and Prouty; Member Ring, dissenting), adopted the Administrative Law Judge’s conclusion that the Employer (an asphalt paving company) violated Section 8(a)(3) and (1) by laying off 35 bargaining unit employees in retaliation for the Union’s filing and pursuit of a contractual grievance. The underlying grievance, found to be meritorious by an arbitrator, concerned the Employer’s contractual obligation to maintain a certain size crew for its asphalt paving crews. When the Employer implemented the award, increasing crew size, it simultaneously issued a Notice to its entire asphalt crew, blaming the Union for the layoffs and threatening the permanency of those layoffs. The Board found this Notice to constitute direct evidence of its unlawful motivation for the layoffs, and found additional circumstantial evidence of its animus in the Employer’s prior unfair labor practices against the Union, together with its shifting justifications for the layoffs. Dissenting, Member Ring opined that the General Counsel failed to demonstrate that the layoff was motivated by animus. Member Ring would have found that the Notice contained expressions of opinions, privileged by Section 8(c). A unanimous Board found that the Employer unlawfully failed to bargain with the Union about the effects of the layoffs before implementation.
Charge filed by Construction Council Local 175, Utility Workers Union of America, AFL-CIO. Administrative Law Judge Lauren Esposito issued her decision on July 8, 2021. Members Ring, Wilcox, and Prouty participated.
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Needham Excavating, Inc. (25-CA-239166, et al.; 371 NLRB No. 146) Walcott, IA.
In the absence of exceptions to findings of violations, the Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by permanently laying off a union supporter, violated Section 8(a)(4), (3), and (1) by discharging another union supporter who had participated in a Board pre-election proceeding, and violated Section 8(a)(1) by creating the impression that employees’ protected activities were under surveillance, by coercively interrogating and threatening employees about such activities, by discriminatorily restricting discussions about union matters, and by soliciting grievances and requests for improved terms to discourage union support. Further, the Board adopted the judge’s dismissals of allegations that the Respondent violated Section 8(a)(1) by creating the impression of surveillance of protected activities and by actually surveilling such activities. In addition, the Board adopted the judge’s recommendations to sustain or overrule challenges to certain ballots cast, to set aside that election, and to direct a second election.
Charges filed by International Union of Operating Engineers, Local 150, AFL-CIO. Administrative Law Judge Sharon Levinson Stickler issued her decision on December 20, 2021. Chairman McFerran and Members Kaplan and Ring participated.
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Southern Ocean Medical Center, Jersey Shore University Medical Center, Palisades Medical Center, and The Harborage, a Division of HMH Hospital Corp. (22-CA-223734 and 22-CA-223942; 371 NLRB No. 147) Edison, NJ, September 26, 2022.
The Board (Chairman McFerran and Member Prouty; Member Kaplan, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondents violated Section 8(a)(5) and (1) by dealing directly with represented employees about its Growing Together plan–a plan that sought to standardize benefits among its large workforce, which included employees represented by the Union and unrepresented employees. Applying the three-part standard for assessing direct dealing allegations set forth in Permanente Medical Group, 332 NLRB 1143 (2000), the Board found that the Respondents engaged in unlawful direct dealing. Dissenting, Member Kaplan stated that he would find that the Permanente standard was not satisfied.
Charges filed by Health Professionals and Allied Employees. Administrative Law Judge Benjamin W. Green issued his decision on April 24, 2020. Chairman McFerran and Members Kaplan and Prouty participated.
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Leggett & Platt, Inc. (09-CA-194057, et al.; 371 NLRB No. 148) Winchester, KY, September 26, 2022.
On remand from the D.C. Circuit Court, for the Board to fashion a remedy for the Section 8(a)(1) unlawful assistance violation, which remained after the Court’s denial of the General Counsel’s cross-appeal for enforcement with respect to the Section 8(a)(5) and (1) withdrawal-of-recognition and unilateral changes unfair labor practices, the Board ordered the standard cease-and-desist and notice posting remedies for the unlawful assistance violation. The Board rejected the Respondent’s arguments that ordering a remedy at this juncture for the lone violation is unwarranted on de minimis and/or mootness grounds.
Charges filed by International Association of Machinists and Aerospace Workers (IAM), AFL-CIO. Administrative Law Judge Andrew S. Gollin issued his decision on October 2, 2017. Chairman McFerran and Members Kaplan and Ring participated.
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Paragon Systems/Patronus Systems (09-RC-293280 371 NLRB No. 152) Frankfort, KY, September 26, 2022.
The Board denied the Petitioner’s Request for Review of the Regional Director’s Order dismissing the petition as it raised no substantial issues warranting review. The Board acknowledged that there were conflicting termination dates in the current collective-bargaining agreement between the Employer and the intervening Union, but noted that whichever date applies, the petition was clearly untimely and thus, consistent with Suffolk Banana, 328 NLRB 1086 (1999), the disparity in termination dates had no effect on employee free choice. Dissenting, Member Kaplan would have found that the conflicting termination dates removed the contract as a bar and would have found Suffolk Banana distinguishable.
Petitioner—International Union, Security, Police and Fire Professionals of America (SPFPA). Union—Law Enforcement Officers Security Unions LEOSU a/w LEOS-PBA. Chairman McFerran and Members Kaplan and Wilcox participated.
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Pain Relief Centers, P.A. (10-CA-266324; 371 NLRB No. 143) Conover and Salisbury, NC, September 27, 2022.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by filing state court claims against five employees who were discriminatees in a prior NLRB case against the Respondent. The Board agreed with the judge that the bulk of the Respondent’s defamation claims were preempted under San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959). The Board further agreed that the Respondent’s breach of contract claims violated Section 8(a)(1), but found that the correct theory was Garmon preemption rather than baseless and retaliatory under Bill Johnson’s Restaurants, Inc. v. NLRB, 461 NLRB 731 (1983). The Board also agreed with the judge that the Respondent’s discovery requests violated Section 8(a)(1), although primarily on a different theory. The Board found that to the extent the discovery requests were founded on claims that were preempted, that they, too, were preempted. To the extent the discovery requests were based on claims that were not dismissed under other doctrines, the Board found that they violated Section 8(a)(1) under Guess?, Inc., 339 NLRB 432 (2003).
Charges filed by an individual. Administrative Law Judge Charles J. Muhl issued his decision on December 13, 2021. Members Ring, Wilcox, and Prouty participated.
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VNS Federal Services, LLC (09-CA-262035 and 09-CB-262047; 371 NLRB No. 144) Pike County, OH, September 27, 2022.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent Employer violated Section 8(a)(3) and (1) by discharging an employee. The Board majority (Chairman McFerran and Member Wilcox) affirmed that the employee, confronting his Employer over a colleague’s hours guarantee, honestly and reasonably invoked his rights under the collective-bargaining agreement. Member Ring joined his colleagues in finding that the discharge was unlawful but only relied on the fact that the Respondent Employer’s retaliation was in response to the employee asking his union representative to intervene on his behalf.
The Board also adopted the judge’s conclusion that the Respondent Union, Operating Engineers Local 18, breached its duty of fair representation and violated Section 8(b)(1)(A) by refusing to assist the employee in processing his grievance. The Board, though, amended the remedy to eliminate the Respondent Union’s joint and several liability, finding that a union is not jointly and severally liability for an employee’s make whole relief where the union’s conduct is not connected to the unlawful termination. Member Ring agreed that joint and several liability was inappropriate but would apply the remedial framework set forth in Iron Workers Local 377 (Alamillo Steel Corp.). 326 NLRB 375 (1998). The Board majority found that the shifting liability under Iron Workers Local 377 only applied where there was no corresponding unfair labor practice finding related to an employers’ contractual breach that caused the discriminatees’ damages.
Charges filed by an individual. Administrative Law Judge Ira Sandron issued his decision on September 23, 2021. Chairman McFerran and Members Ring and Wilcox participated.
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Morgan Corp. (10-CA-250678; 371 NLRB No. 142) Duncan, SC/Rockingham, NC, September 27, 2022.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee. On different grounds then that of the judge, the Board found that, when the Respondent discharged the employee after he disclosed his pay raise to a coworker, who in turn complained about wages to management on behalf of himself and others, the Respondent made clear that it was acting in reprisal for this coworker’s protected concerted activity. Thus, the Board concluded, regardless of whether the employee’s own wage discussions were protected concerted activity, his discharge would tend to chill other employees’ group activity regarding wages and thus constituted unlawful interference with protected concerted activity.
Charge filed by an individual. Administrative Law Judge Sharon Levinson Steckler issued her decision on September 25, 2020. Chairman McFerran and Members Ring and Wilcox participated.
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Louisville & Jefferson County Public Defender Corporation (09-CA-291555; 371 NLRB No. 149) Louisville, KY, September 28, 2022.
The Board denied the General Counsel’s Motion for Summary Judgment in this purported refusal-to-bargain, test-of-certification case and remanded it to the Regional Director for further appropriate action. The Board found that the General Counsel failed to establish that there are no genuine issues of material fact warranting a hearing and that she is entitled to judgment as a matter of law. Among other contested factual issues, the Respondent denies that it is contesting the Union’s certification and claims that it is engaged in good faith bargaining with the Union.
Charge filed by International Brotherhood of Electrical Workers, AFL-CIO (IBEW) Local 369. Members Ring, Wilcox, and Prouty participated.
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Starbucks Corporation (19-RC-295849; 371 NLRB No. 154) Seattle, WA, September 29, 2022.
The full-Board (Chairman McFerran and Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) modified the considerations that guide Regional Directors in exercising their discretion under Aspirus Keweenaw, 370 NLRB No. 45 (2020), in determining whether an election should be conducted by mail ballot due to COVID-19-related conditions. Specifically, the Board re-aligned Aspirus factor 2 with the Centers for Disease Control’s Community Level tracker, specifically holding that Regional Directors will not abuse their discretion by directing a mail-ballot election whenever the county encompassing the employer’s facility is in the “high” Community Level risk category. The Board decided to apply this decision prospectively, only to Decisions and Directions of Election that issue after today’s Board decision. Members Ring and Kaplan agreed that Aspirus should be revisited, but dissented from the majority’s decision to revise Aspirus without seeking public input and expert advice.
Petitioner—Workers United. Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty participated.
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CP Anchorage Hotel 2 d/b/a Hilton Anchorage (19-CA-241411; 371 NLRB No. 151) Anchorage, AK, September 29, 2022.
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to provide relevant information to the Union. A Board majority consisting of Members Wilcox and Prouty found that the Respondent also violated Section 8(a)(5) and (1) by changing the housekeepers’ duties by requiring them to spend more time per room while still meeting the same room-cleaning quota without bargaining with the Union, and violated Section 8(a)(1) by threatening the housekeepers with discipline if they failed to meet their room-cleaning quotas. The majority ordered the Respondent to make whole affected employees, and reversed the judge to order that the Respondent compensate its housekeepers who lost money due to a decrease in their bonus room pay earnings as a result of the Respondent’s unilateral changes to the workload.
Concurring in part, Member Prouty would have further ordered that the notice to employees be read aloud, in both English and Spanish, at a group meeting held on company time by a management official in the presence of a Board agent or, at the Respondent’s choice, by a Board agent in the presence of management, and that the Respondent provide to each employee in attendance a copy of the notice posting.
Dissenting in part, Member Ring would have dismissed the allegations that the Respondent violated Section 8(a)(5) and (1) by changing the housekeepers’ duties and violated Section 8(a)(1) by threatening the housekeepers with discipline. He would have found that the Respondent fulfilled its duty to bargain, and that the Respondent did not interfere with, restrain, or coerce protected activity. In agreement with the judge, Member Ring would have also declined to order a room-bonus remedy.
Charges filed by UNITE HERE! Local 878, AFL-CIO. Administrative Law Judge Eleanor Laws issued her decision on March 11, 2021. Members Ring, Wilcox, and Prouty participated.
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Aleph Maintenance, Inc. (20-CA-296861; 371 NLRB No. 156) West Sacramento, CA, September 29, 2022.
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 bargain collectively and in good faith with the Union.
Charge filed by Service Employees International Union—United Service Workers West. Members Ring, Wilcox, and Prouty participated.
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Bothell Pediatric (19-CA-291046; 371 NLRB No. 158) Bothell, WA, September 29, 2022.
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 telling employees that they could be discharged if they engage in protected concerted activities and by discharging an employee because she engaged in protected concerted activities.
Charge filed by an individual. Members Ring, Wilcox, and Prouty participated.
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American Medical Response Ambulance Service, Inc. (28-RD-294046; 371 NLRB No. 153) Roswell, NM, September 29, 2022.
The Board denied the Employer’s Request for Review of the Regional Director’s decision and order dismissing the petition under the successor-bar doctrine as it raised no substantial issues warranting review. In denying review, the Board agreed with the Regional Director that the relevant inquiry was whether the Union had exhibited “inexcusable procrastination or other manifestations of bad faith,” and further agreed that the Union’s delay in requesting recognition—due to its difficulties locating documents needed to prepare for bargaining, an unexpected death, and the December holidays—did not rise to the level of bad faith. The Board noted that whether or not the Union could have acted with greater urgency, there was no evidence contradicting its articulated reasons for its delay, nor was there any indication that it had refused a request by the Employer to start bargaining, or that the Employer had complained about the delay. Dissenting, Member Kaplan would not have dismissed the petition given the Union’s failure to communicate with the Employer for a significant period of time.
Petitioner—an individual. Union—American Federation of State, County, & Municipal Employees, Council 18, Local 360, AFL-CIO. Chairman McFerran and Members Kaplan and Wilcox participated.
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Hospital De La Concepcion (12-CA-260107; 371 NLRB No. 155) San Germán, PR, September 29, 2022.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by unilaterally reducing unit employees’ scheduled work hours and by failing and refusing to furnish the Union with relevant requested information.
Charge filed by Unidad Laboral de Enfermeras(os) y Empleados de la Salud. Administrative Law Judge Kimberly Sorg-Graves issued her decision on December 22, 2021. Members Kaplan, Wilcox, and Prouty participated.
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National Association of Broadcast Employees & Technicians—Communications Workers of America, AFL–CIO (03-CB-256179; 371 NLRB No. 150) Massena, NY, September 29, 2022.
The Board unanimously found, contrary to the Administrative Law Judge, that the complaint was not time-barred by Section 10(b). A Board majority consisting of Members Kaplan and Ring found, contrary to the judge, that the Respondent Union violated Section 8(b)(3) by conditioning bargaining with SMG-Massena over a successor collective-bargaining agreement covering a Massena, New York unit of a separate employer, SMG-Watertown, remedying its unfair labor practices impacting a separate unit of employees at Watertown, New York, who were also represented by the Union. Dissenting, Chairman McFerran would find that the Union was fully justified in insisting on a return to the status quo at Watertown before good faith bargaining could commence in the Massena unit because the unlawful actions at Watertown directly impacted the subjects under negotiation at Massena.
Charge filed by Stephens Media Group—Massena, LLC. Administrative Law Judge Elizabeth M. Tafe issued her decision on March 31, 2021. Chairman McFerran and Members Kaplan and Ring participated.
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New Concepts for Living, Inc. (22-CA-187407, et al.; 371 NLRB No. 157) Rochelle Park, NJ, September 30, 2022.
The Board (Chairman McFerran and Member Prouty; Member Ring, dissenting) reversed the Administrative Law Judge’s conclusions and found that the Respondent violated Section 8(a)(1) by distributing a memorandum soliciting employees to withdraw their union membership and authorization for dues deduction; polling employees by distributing a memorandum asking them to return an attached card if they wanted to join the Union and start paying union dues; and conducting a poll of employees to determine whether they wanted to be represented by the Union. The Board found that the Respondent violated Section 8(a)(5) and (1) by engaging in overall bad-faith bargaining and withdrawing its recognition of the Union. Dissenting, Member Ring would dismiss these allegations, finding that the Respondent acted lawfully. The Board ordered the Respondent to cease and desist, to bargain in good faith with the Union, and to read the remedial notice aloud to employees.
Charges filed by Communications Workers Local 1040. Administrative Law Judge Jeffrey P. Gardner issued his decision on January 8, 2021. Chairman McFerran and Members Ring and Prouty participated.
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Encore Event Technologies, LLC (28-CA-234207 and 28-CA-246253; 371 NLRB No. 161) Las Vegas, NV, September 30, 2022.
The Board (Members Kaplan and Prouty; Member Wilcox, dissenting) reversed the Administrative Law Judge’s conclusion that the Charging Party timely filed his unfair labor practice charge alleging that the Respondent violated Section 8(a)(1) by refusing to recall him for work, and dismissed the allegation as time-barred under Section 10(b). Dissenting, Member Wilcox would adopt the judge’s conclusion that the unfair labor practice charge was timely filed, and she would find, contrary to the judge, that the Respondent violated the Act as alleged.
Charge filed by an individual. Administrative Law Judge Dickie Montemayor issued his decision on July 15, 2021. Members Kaplan, Wilcox, and Prouty participated.
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Wendt Corporation (03-RD-276476; 371 NLRB No. 159) Cheektowaga, NY, September 30, 2022.
The Board granted the Union’s Request for Review of the Acting Regional Director’s Decision and Direction of an Election as it raises substantial issues warranting review. Upon review, the Board dismissed the decertification petition as tainted by the Employer’s unfair labor practices. The Board found that the record established a causal connection between the Employer’s unremedied severe and pervasive unfair labor practices and the employees’ subsequent disaffection with the Union. Applying the test in Master Slack Corp., 271 NLRB 78 (1984), the Board found that the decertification petition was accordingly tainted by the Employer’s unlawful conduct and must be dismissed. Dissenting, Member Ring would find that the Master Slack test weighed against a conclusion that the employees’ decertification petition was attributable to the Employer’s violations of the Act.
Petition filed by an individual. Chairman McFerran and Members Ring and Prouty participated in the decision.
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Longmont United Hospital (27-CA-296153; 371 NLRB No. 162) Longmont, CO, September 30, 2022.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board severed for further consideration the issue of whether the Board should adopt a compensatory, make whole remedy for the Respondent’s refusal to bargain.
Charge filed by National Nurses Organizing Committee/National Nurses United. Chairman McFerran and Members Kaplan and Wilcox participated.
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T-Mobile USA, Inc. (14-CA-155249, et al.; 371 NLRB No. 163) Wichita, KS, September 30, 2022.
On remand from the D.C. Circuit Court, which granted the Union’s Request for Review of the Board’s decisions, the Board (Members Kaplan, Ring, and Prouty) unanimously found, that the Respondent violated Section 8(a)(1) by discriminatorily enforcing its workplace policies against an employee for a union-related email that she sent to all of her coworkers using her work email, announcing two new rules in response to the employee’s actions, and telling the employee that employees could not send union-related emails to employee’s work email addresses. The Board recognized that the Court had rejected the Respondent’s contemporaneous rationale that it reprimanded the employee for sending a “mass” email because, even assuming the Respondent had a policy against such “mass” emails, the Respondent had disparately enforced it against the employee because other nonsupervisory employees had sent or replied to facility-wide personal emails and the Respondent had sent its own mass, non-business-related emails. Furthermore, the Board noted that the Court had found that, even though the Respondent could lawfully restrict the employee’s use of its email system, it could not do so in a discriminatory fashion, which the Court found that the Respondent had done, and could not promulgate new rules in response to protected activity. The Board also found that the Respondent’s statement to the employee that she could not send union-related emails to employees’ work addresses was coercive and had a reasonable tendency to interfere with the employee’s right to communicate about the Union by causing the employee to conclude that she could not send union-related emails to her coworkers’ work addresses, even though the Respondent had permitted employees to send such messages.
A Board majority consisting of Members Kaplan and Ring found it unnecessary to address the General Counsel’s invitation to revisit the Register Guard, 351 NLRB 1110 (2007), discrimination standard, or consider whether the two rules that the Respondent promulgated in response to the employee’s union email are unlawfully overbroad under Boeing Co., 365 NLRB No. 154 (2017). Member Prouty would have overruled the Board’s Register Guard discrimination standard because the Court’s remand opinion demonstrates how the Register Guard standard is too restrictive in analyzing discriminatory-enforcement allegations, including by finding no discrimination without even considering the reasons purportedly relied upon by an employer at the time of its allegedly discriminatory action, which the D.C. Circuit has twice now counseled the Board that it must not do. In addition, Member Prouty would have found, in light of the Court’s remand instructions, that the two rules promulgated by the Respondent in response to the employee’s union email are unlawfully overbroad under Boeing Co. because the nature and extent of the potential impact of the Respondent’s rules on NLRA rights is self-evident and, as the Respondent only promulgated these rules in response to union activity, the Respondent lacked a legitimate justification for imposing them that is not tied to employees’ Section 7 activity.
Charges filed by Communications Workers of America, AFL-CIO. Administrative Law Judge Sharon Levinson Steckler issued her decision on June 28, 2016. Members Kaplan, Ring, and Prouty participated.
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Paragon Systems, Inc. (13-CA-286762; 371 NLRB No. 164) Des Plaines, IL, September 30, 2022.
The Board granted the General Counsel’s Motion for a Default Judgment based on the Respondent’s noncompliance with the provisions of the parties’ informal settlement agreement. The case alleges that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain collectively and in good faith with the exclusive collective-bargaining representative of its employees.
Charge filed by United Government Security Officers of America Local 360. Members Ring, Wilcox, and Prouty participated.
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Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center (28-CA-213783; 371 NLRB No. 160) Las Vegas, NV, September 30, 2022.
On remand from the Ninth Circuit Court, which found that the Board’s prior decision in this case, 368 NLRB No. 139 (2019) (Valley Hospital I), had failed to address contrary Board precedent, the full-Board majority (Chairman McFerran and Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) reversed Valley Hospital I. The Board concluded that Valley Hospital I had improvidently overruled Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), which held that dues checkoff is like most terms and conditions of employment in that it may not be changed unilaterally after the expiration of a collective-bargaining agreement that provided for dues checkoff during its term. Explaining in detail why Lincoln Lutheran’s approach is more consistent with the Act’s fundamental policy to encourage collective bargaining, the Board reinstated that rule and held again that unilaterally discontinuing dues checkoff violates Section 8(a)(5) and (1). Although the Board had established a contrary rule in Bethlehem Steel, 136 NLRB 1500 (1962), it had not persuasively explained, either in Bethlehem Steel itself or in repeated efforts – most recently in Valley Hospital I – during the intervening decades, why dues checkoff should be an exception to the statutory obligation to bargain after contract expiration. Because, contrary to Bethlehem Steel, dues checkoff is not analogous to union-security provisions, which by statute must terminate when a contract establishing those provisions expires, the Board’s analysis was not affected by the lawfulness of union-security provisions in the relevant state or by their presence in the parties’ contract. Further, the Board found that applying its rule retroactively would not create manifest injustice under its established test. Thus, the Board concluded, contrary to the Valley Hospital I majority, that the Respondent’s undisputed unilateral cessation of dues checkoff was unlawful. The Board ordered the Respondent to remit to the Union all dues that the Union had not already received from employees since the Respondent’s unlawful cessation of dues deductions, plus interest.
The dissent, emphasizing the long standing of Bethlehem Steel’s rule and the policy of promoting stability in bargaining relationships, would instead have applied Valley Hospital I, for the reasons stated in that decision, and would have distinguished dues checkoff from the terms and conditions of employment that the Court had asked the Board to grapple with. The dissent contended that Valley Hospital I’s “contract creation” rationale was further supported by an analysis of Section 302(c)(4) of the Taft-Hartley Act, which applies only to dues deductions and makes them unique among terms and conditions of employment. Further, the dissent disagreed with the Board’s retroactive application of the reinstituted rule to employers who, unlike the Respondent, may have terminated dues checkoff in reliance on precedent permitting that action. Lastly, the dissent contended that the Board’s remedy was punitive because it did not allow the Respondent to belatedly collect from employees the dues that the Respondent must pay to the Union.
Charge filed by Local Joint Executive Board of Las Vegas. Administrative Law Judge Jeffrey D. Wedekind issued his decision on September 19, 2018. Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty participated.
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Renew Home Health, a Division of Maxus Health Care Partners, LLC (16-CA-260038; 371 NLRB No. 165) Fort Worth, TX.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent failed to establish it employed the Charging Party as a statutory supervisor during the relevant period and that the Respondent violated Section 8(a)(1) by maintaining and enforcing a work rule prohibiting employees from discussing their workplace grievances and concerns among themselves, by interrogating its employees about their protected activities, and by firing the Charging Party for protected activity. A Board majority (Chairman McFerran and Member Prouty) additionally found that the Respondent violated Section 8(a)(1) by threatening the Charging Party with discipline for discussing workplace concerns with other employees. Member Kaplan found it unnecessary to pass on whether the Respondent independently violated Section 8(a)(1) in that manner.
Charge filed by an individual. Administrative Law Judge Robert A. Ringler issued his decision on November 30, 2021. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Centerline Logistics Corporation, Leo Marine Services, Inc. and Olympic Tug & Barge, Inc., a single employer (21-RC-274874, et al.) Los Angeles, Alameda, and Long Beach, CA, September 28, 2022. The Board denied Employers’ Requests for Review of the Regional Director’s Decision and Direction of Election. The Board agreed with the Regional Director’s conclusions, inter alia, that the three employers constitute a single employer within the meaning of the Act and that the petitioned-for, single-facility units in San Francisco and in Los Angeles are appropriate for collective bargaining purposes. Petitioners—International Organization of Masters, Mates and Pilots, AFL-CIO, and Inlandboatmen’s Union of the Pacific. Members Kaplan, Ring, and Wilcox participated.
C Cases
VHHC, LLC and Eagle Eye – 2550 Oak Street, Inc., a single employer (20-CA-272873 and 20-CA-275967) Vallejo, CA, September 26, 2022. No exceptions having been filed to the August 10, 2022 decision of Administrative Law Judge Lisa D. Ross’ 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 United Food and Commercial Workers, Local 5, AFL-CIO.
Holtec International, LLC (“Holtec”) and Holtec Decommissioning International, LLC (“HDI”), as a Single Integrated Enterprise; Comprehensive Decommissioning International, LLC (“CDI”) and HDI, as Alter Egos; and Champion Specialty Services, LLC (“Champion”) and Holtec/HDI as Joint Employers (04-CA-291971, 01-CA-292021 and 02-CA-292090) Buchanan, NY, September 28, 2022. The Board denied Respondents’ Motion for Summary Judgment as they failed to establish that there are no genuine issues of material fact warranting a hearing and that they are entitled to judgment as a matter of law. The Board also rejected the Respondents’ claims that the Board lacked jurisdiction and that a specific paragraph of the consolidated complaint was not pled with sufficient particularity. Charges filed by Laborers’ International Union of North America (LIUNA), AFL-CIO. Members Ring, Wilcox, and Prouty participated.
Kuraray America, Inc. (16-CA-278716) La Porte, TX, September 28, 2022. The Board denied the Respondent’s Motion for Summary Judgment as the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that they are entitled to judgment as a matter of law. The denial was without prejudice to the Respondent’s right to renew its arguments to the Administrative Law Judge and before the Board on any exceptions that may be filed to the judge’s decision, if appropriate. Charge filed by International Chemical Workers Union Council/United Food and Commercial Workers, Local 900C. Members Ring, Wilcox, and Prouty participated.
Bob’s Tire Co., Inc. and B.J.’s Service Company, Inc. (a Joint Employer) (01-CA-285355) New Bedford, MA, September 28, 2022. The Board denied the Respondent’s Motion to Dismiss the second complaint, finding that the Respondent failed to establish that the second complaint was deficient under Section 102.15 of the Board’s Rules and Regulations. Because the Respondent did not request Special Permission to Appeal the Administrative Law Judge’s denial of the Respondent’s request for a bill of particulars, the request for a bill of particulars was not before the Board. Charge filed by United Food and Commercial Workers International Union Local 328. Members Ring, Willcox, and Prouty participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Hospital Metro Mayaguez, Inc., d/b/a Hospital Perea (12-CA-278679; JD-57-22) Mayaguez, PR. Administrative Law Judge Keltner W. Locke issued his decision on September 26, 2022. Charge filed by Unidad Laboral de Enfermeras(OS) y Empleados de la Salud.
Foxworth-Galbraith Lumber Company (16-CA-279730; JD-59-22) Plano, TX. Administrative Law Judge Robert A. Ringler issued his decision on September 28, 2022. Charge filed by an individual.
United States Postal Service (09-CA-287274 and 09-CB-287349; JD-61-22) Oak Hill, OH. Administrative Law Judge Charles J. Muhl issued his decision on September 28, 2022. Charges filed by an individual.
Amalgamated Transit Union, Local 689, a/w Amalgamated Transit Union, AFL-CIO, CLC (Transdev Services, Inc.) (05-CB-286354 and 05-CB-286964; JD-62-22) Hyattsville, MD. Administrative Law Judge Christal J. Key issued her decision on September 29, 2022. Charges filed by an individual.
ILWU Alaska Division, Unit 223 (Matson Navigation Co.) (19-CB-214679, et al.; JD(SF)-25-22) Port of Dutch Harbor, AK. Administrative Law Judge Mara-Louise Anzalone issued her decision on September 29, 2022. Charges filed by individuals.
United States Postal Service (16-CA-279233 and 16-CA-287594; JD-60-22) San Antonio, TX. Administrative Law Judge Donna N. Dawson issued her decision on September 29, 2022. Charges filed by American Postal Workers Union, Alamo Area Local 0195.
Women’s Hospital Foundation (15-CA-270505; JD-63-22) Baton Rouge, LA. Administrative Law Judge Christine E. Dibble issued her decision on September 30, 2022. Charge filed by an individual.
Stericycle, Inc. (04-CA-277775; JD-64-22) Southampton, PA. Administrative Law Judge Michael A. Rosas issued his decision on September 30, 2022. Charge filed by Teamsters Union Local No. 628.
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