Summary of NLRB Decisions for Week of September 28 - October 2, 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
ExxonMobil Research & Engineering Company, Inc. (22-CA-218903, et al.; 370 NLRB No. 23) Annandale, NJ, September 28, 2020.
The Board, reversing violations found by the Administrative Law Judge, concluded that the Respondent did not violate Section 8(a)(5) and (1) by bargaining in bad faith or engaging in other alleged unlawful conduct in the events leading up to, and including, its most recent negotiations for a new collective bargaining agreement with the Union. Specifically, the Board found that the Respondent’s changes to employee evaluations, prior to the expiration of the parties’ agreement, were not an unlawful unilateral change because the changes were encompassed by the parties’ contract. The Board also found that subcontracting of unit positions is a well-established mandatory subject that the Respondent could lawfully insist on. Additionally, the Board disagreed with the judge’s conclusions that the Respondent unlawfully refused to bargain over personal time in retaliation for Union unfair labor practices and unlawfully promised parental leave if employees withdrew from the Union, finding that the Respondent’s statements during bargaining, taken in context during lengthy negotiations, did not support such conclusions. The Board further found that the Respondent did not unlawfully disparage the Union’s bargaining conduct because its criticisms did not include misleading or otherwise coercive language, and that any direct dealing by the Respondent was effectively repudiated by a bulletin it sent to all unit employees. Finally, in view of the reversals on all the preceding violations, the Board found that the judge incorrectly concluded there was overall bad faith and instead found that the Respondent’s overall conduct signified a desire to reach agreement.
Charges filed by Independent Laboratory Employees Union, Inc. Administrative Law Judge Michael A. Rosas issued his decision on June 12, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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Purple Communications, Inc. and its Successor and Joint Employer CSDVRS, LLC d/b/a ZVRS (21-CA-149635, et al.; 370 NLRB No. 26) Tempe, AZ, Denver, CO, Oakland and San Diego, CA, September 28, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by interfering with an employee’s Weingarten rights and violated Section 8(a)(5) and (1) by unilaterally ceasing to pay a wage differential and stopping dues deductions for certain work; the judge’s decision to defer a unilateral change allegation; and the judge’s dismissal of allegations that the Respondent violated (1) Section 8(a)(5) and (1) by failing to respond to requests for information, (2) Section 8(a)(5) and (3) when a supervisor responded to a request for teaming reports, (3) Section 8(a)(3) and (1) when a supervisor stated that bathroom breaks did not qualify as union time, and (4) Section 8(a)(1) by disparaging the Union and denying employees’ Weingarten rights. The Board unanimously adopted in part the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by promulgating several rules in an email, but the majority (Chairman Ring and Member Kaplan) reversed in part to find one statement lawful and Member McFerran dissented in part to find additional statements unlawful. The majority adopted the judge’s dismissal of allegations that the Respondent violated Section 8(a)(1) by engaging in surveillance of Union displays and by requiring employees to sign an acknowledgment form for a handbook containing an unlawful rule. Finally, the Board unanimously reversed the judge to find that the Respondent violated Section 8(a)(1) by providing unlawful assistance in decertifying a Union, and the majority reversed the judge to find that the Respondent did not violate Section 8(a)(1) by maintaining its Internet, Intranet, Voicemail and Electronic Communications Policy.
Charges filed by Pacific Media Workers Guild, Local 39521, the Newspaper Guild, Communications Workers of America, AFL–CIO. Administrative Law Judge Mara-Louise Anzalone issued her decision on August 3, 2018. Chairman Ring and Members Kaplan and McFerran participated.
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Sebsen Electrical Contractors LLC and Sebsen Electric LLC, a single employer (12-CA-243307; 370 NLRB No. 27) Tampa, FL, September 29, 2020.
In this case alleging Section 8(a)(3) and (1) violations, the Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with the provisions of the parties’ informal settlement agreement. The Board also denied the Respondent’s Motion to Stay the proceedings, finding that, notwithstanding the Respondent’s possible financial difficulties due to the COVID-19 pandemic, it has not presented sufficient reasons to warrant staying this settlement proceeding.
Charge filed by International Brotherhood of Electrical Workers, Local 915, AFL-CIO. Members Kaplan, Emanuel, and McFerran participated.
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Everport Terminal Services, Inc. (32-CA-172286 and 32-CB-172414; 370 NLRB No. 28) Oakland, CA, September 30, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent Everport Terminal Services (Everport) was a successor employer to its predecessor and violated Sections 8(a)(5), (3), (2), and (1) by: prematurely recognizing, assisting, and bargaining with the Respondent International Longshore and Warehouse Union (ILWU) as the collective bargaining representative of its mechanics; implementing a discriminatory hiring plan to avoid hiring employees of its predecessor because of their affiliation with the International Association of Machinists and Aerospace Workers District Lodge 190, Local Lodge 1546, and Local Lodge 1414, AFL-CIO (Machinists), to avoid a successorship obligation to recognize and bargain with the Machinists; and unilaterally imposing initial terms and conditions of employment for unit employees without bargaining with the Machinists. The Board also adopted the judge’s conclusions that Everport violated Sections 8(a)(5), (3), and (2) by applying the terms of the multi-employer Pacific Maritime Association (PMA)-ILWU agreement, including union security and hiring hall clauses, before Everport began normal operations or hired maintenance and repair employees and that Everport violated 8(a)(1) in its statements regarding hiring. The Board additionally adopted the judge’s conclusions that the ILWU violated Sections 8(b)(1)(A) and (2) by: prematurely demanding recognition from Everport for the mechanics units; unlawfully accepting recognition from Everport prematurely and at a time when it did not represent an uncoerced majority of the units; and seeking to enforce the PMA-ILWU agreement regarding union security and hiring hall clauses.
In finding these violations, the Board majority (Members Kaplan and McFerran) found Everport lost the right of a successor to set initial terms and conditions because it used a general discriminatory hiring plan. The majority concluded that Everport’s actions made it impossible to determine whether its workforce would have consisted of all or substantially all the predecessor employees if it hired applicants on a nondiscriminatory basis. In so doing, it noted that Ridgewood Health Care Center, Inc., 367 NLRB No. 110 (2019) did not apply. The majority further found that, even if Everport retained the right to set initial terms without bargaining, it unlawfully recognized ILWU at a time when ILWU did not represent a majority of Everport’s unit employees and unlawfully applied the terms of the PMA-ILWU agreement; thus, the same remedies would be appropriate.
Dissenting in part, Member Emanuel found that, as in Ridgewood, Everport’s discriminatory failure to hire some of the predecessors’ unit employees created no uncertainty as to whether Everport planned to retain all or substantially all the predecessors’ unit employees. However, Member Emanuel concluded that, even though Everport had the right to set initial terms and conditions of employment, it was not free to recognize ILWU at a time when ILWU did not represent a majority of Everport’s employees or to apply the terms of the ILWU-PMA collective-bargaining agreement to its employees. Accordingly, Member Emanuel agreed with his colleagues that the remedy for those violations would be to order Everport to rescind its imposition of the ILWU-PMA collective-bargaining agreement and to make affected employees whole. Member Emanuel disagreed that notice-reading remedies are warranted.
Charges filed by International Association of Machinists and Aerospace Workers, District Lodge 190, Local Lodge 1546, AFL-CIO, and by International Association of Machinists and Aerospace Workers, District Lodge 190, Local Lodge 1414, AFL-CIO. Administrative Law Judge Sharon Levinson Steckler issued her decision on July 27, 2018. Members Kaplan, Emanuel, and McFerran participated.
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Local 147, Laborers’ International Union of North America (Northeast Remsco Construction, Inc.) (02-CB-231600; 370 NLRB No. 30) New York, NY, October 2, 2020.
The Board adopted the Administrative Law Judge’s dismissal of allegations that the Union violated Section 8(b)(1)(A) by threatening the Charging Party that he would no longer obtain employment from the Union’s referral system and lose union membership because he complained about the Union’s racial discrimination.
Charge filed by an individual. Administrative Law Judge Lauren Esposito issued her decision on March 25, 2020. Chairman Ring and Members Emanuel and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Paragon Systems Inc. (21-RC-262650) Riverside, CA, September 29, 2020. The Board denied the Intervenors’ Request for Review of the Regional Director’s Decision and Direction of Election for a unit of security guards at the Air Marine Operations Center (AMOC) in Riverside, California, as it raised no substantial issues warranting review. The Intervenors had contended that the petition was blocked by a current collective-bargaining agreement that included the petitioned-for security guards at the AMOC within a multi-facility unit of security guards and that an appropriate unit must be a multi-facility unit in the existing bargaining unit. The Board also denied the Intervenors’ Request to Impound the Ballots as moot. Petitioner—Law Enforcement Officers Security Unions LEOSCU-CA, LEOS-PBA. Intervenor—International Union, Security, Police and Fire Professionals of America, (SPFPA), and its Local 52. Members Kaplan, Emanuel, and McFerran participated.
Oracle Elevator Holdco, Inc. (25-RC-248645) Evansville, IN, September 30, 2020. The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Order as it raised substantial issues warranting review. On review, the Board found that the Regional Director had erred in finding that the Petitioner had established the employee’s supervisory status and reversed the Regional Director’s decision to sustain the challenge. The Board vacated the Regional Director’s certification and remanded the case to the Regional Director to open and count the ballots. The Board also denied review of the Regional Director’s decision to sustain a challenge to another ballot and to overrule the Employer’s objection. Petitioner—International Union of Elevator Constructors, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Ecolab Production LLC (16-RC-264667) Garland, TX, October 1, 2020. The Board (Members Kaplan and Emanuel; Member McFerran, dissenting) granted the Employer’s Emergency Request for 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. Petitioner—Retail, Wholesale, and Department Store Union. Members Kaplan, Emanuel, and McFerran participated.
Savage Services Corporation (21-RD-264617) Wilmington, CA, October 1, 2020. The Board denied the Petitioner’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 Petitioner’s request for a stay of the election as moot. Petitioner—an individual. Union—Wholesale Delivery Drivers, General Truck Drivers, Chauffeurs, Sales, Industrial and Allied Workers, Teamsters Local 848, International Brotherhood of Teamsters. Members Kaplan, Emanuel, and McFerran participated.
Jersey Shore University Medical Center, a Division of Hackensack Meridian Health (22-RC-263932) Neptune, NJ, October 1, 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 for a stay of the election as moot. Petitioner—Health Professionals and Allied Employees, HPAE, AFT/AFL-CIO. Members Kaplan, Emanuel, and McFerran participated.
C Cases
Mercy, Inc. d/b/a AMR Las Vegas (28-CA-241256) Las Vegas, NV, September 28, 2020. The Board denied the Respondent’s Motion to Dismiss the Complaint because of undue delay, finding that the Respondent had not demonstrated that the complaint fails to state a claim upon which relief can be granted. Charge filed by American Federation of State County and Municipal Employees, AFSCME Local 4041 (AFSCME Local 4041, EMS Workers United-AFSCME). Members Kaplan, Emanuel, and McFerran participated.
Fox Television Stations, LLC (02-CA-246371) New York, NY, October 2, 2020. No exceptions having been filed to the August 20, 2020 decision of Administrative Law Judge Lauren Esposito’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 Television Broadcasting Studio Employees Union, Local 794, I.A.T.S.E.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Murray American Energy, Inc. and The Monongalia County Coal Company, a single employer (06-CA-254520; JD-39-20) St. Clairsville, OH. Administrative Law Judge David I. Goldman issued his decision on September 29, 2020. Charge filed by United Mine Workers of America, District 31, Local 1702, AFL-CIO, CLC.
United States Postal Service (10-CA-223776; JD-39-20) Ludowici, GA. Administrative Law Judge Michael A. Rosas issued his decision on September 29, 2020. Charge filed by an individual.
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