Summary of NLRB Decisions for Week of September 3 - 6, 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
Ampersand Publishing, LLC d/b/a Santa Barbara News-Press (31-CA-028589, et al.; 368 NLRB No. 65) Santa Barbara, CA, September 3, 2019.
In this compliance proceeding, the Board granted the General Counsel’s Motion for Partial Summary Judgment on the basis that portions of the Respondent’s amended answer to the compliance specification attempted to raise matters that had been decided in the underlying unfair labor practice proceeding (362 NLRB 252 (2015)), and was inadequate under the Board’s Rules and Regulations. Accordingly, the Board granted summary judgment as to the applicable paragraphs of the compliance specification but remanded to the Region to schedule a hearing on the remaining contested issues.
Charges filed by Graphic Communications Conference, International Brotherhood of Teamsters. Chairman Ring and Members Kaplan and Emanuel participated.
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E.I. DuPont de Nemours and Company (05-CA-090984, et al.; 368 NLRB No. 48) Wilmington, DE, September 4, 2019.
A Board majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent, at three locations, violated Section 8(a)(5) and (1) by making certain unilateral changes to companywide dental and medical retirement benefit plans. In so doing, the Board majority, as it reasoned in E.I. DuPont de Nemours and Company, 367 NLRB No. 145 (2019) (DuPont I), found that the parties’ agreements, bargaining history and past practice, taken together, made clear that the Respondent was not obligated to bargain with the Unions prior to making these changes because the Unions had clearly and unmistakably waived their right to bargain over them. The Board majority therefore dismissed the complaint. Dissenting, Member McFerran argued that for each Union, for many of the same reasons she expressed in her dissent in DuPont I, the Respondent did not carry its heavy burden to demonstrate a clear and unmistakable waiver. She stated that the majority’s application of an “amalgam” of factors analysis is not supported by substantial evidence, at least applying the clear and unmistakable waiver standard as the Board has traditionally understood it.
Charges filed by Ampthill Rayon Workers, Inc., Local 992, International Brotherhood of DuPont Workers; Freon Craftsman Union, Local 788, International Brotherhood of Dupont Workers; and International Brotherhood of Dupont Workers (IBDW), Local 593, Old Hickory Employees Council. Administrative Law Judge Michael A. Rosas issued his decision on December 16, 2013. Chairman Ring and Members McFerran and Kaplan participated.
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General Motors LLC (14-CA-197985 and 14-CA-208242; 368 NLRB No. 68) Kansas City, KS, September 5, 2019.
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) issued a Notice and Invitation to File Briefs, which invited the parties and interested amici, to file briefs addressing the following questions and other related questions: (1) under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act; (2) to what extent should employees be granted leeway when engaged in Section 7 activity with respect to profanity or language that is offensive to others on the basis of race or sex; (3) should the Board continue to consider norms of the workplace in determining whether an employee’s outburst is unprotected; (4) should the Board reconsider its standard for determining whether racially or sexually offensive language on a picket line does not lose the protection of the Act; and (5) what relevance should the Board accord to antidiscrimination laws such as Title VII in determining whether an employee’s statements lose the protection of the Act. Dissenting, Member McFerran stated that the majority had failed to offer “good reason for revisiting long-settled law.” Briefs are due to be filed with the Board by November 4, 2019, with the parties permitted to file responsive briefs by November 19, 2019.
Charge filed by an individual. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Kroger Limited Partnership I Mid-Atlantic (05-CA-155160; 368 NLRB No. 64) Portsmouth, VA, September 6, 2019.
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) overruled Sandusky Mall Co., 329 NLRB 618 (1999), enf. denied in relevant part 242 F.3d 682 (6th Cir. 2001), and similar cases based on the majority's view that these cases improperly stretched the NLRB v. Babcock & Wilcox, Inc., 351 U.S. 105 (1956) discrimination exception well beyond its accepted meaning in a manner that finds no support in Supreme Court precedent or the policies of the Act. The majority observed that Sandusky Mall and its progeny have been roundly rejected by the federal courts of appeals, and that courts have consistently limited the Babcock discrimination exception to situations where an employer ejects union agents seeking to engage in activities similar in nature to activities the employer permitted other nonemployees to engage in on its property. The majority further stated that in a pre-Sandusky Mall case, Jean Country, 291 NLRB 11, 12 fn. 3 (1988), which was never relevantly overruled, the Board itself limited Babcock’s discrimination exception the same way. The majority also pointed to other factors that, in its view, warranted reconsideration of the Board’s approach to the discrimination exception, as embodied in Sandusky Mall and related cases.
The majority stated that, under the standard it was adopting, to establish that a denial of access to nonemployee union agents was unlawful under the Babcock discrimination exception, the General Counsel must prove that an employer denied access to other nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage. The majority further stated that, consistent with this standard, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Also, the majority observed that an employer may ban nonemployee access for union organization activities if it also bans comparable organizational activities by groups other than unions. The majority stated that its approach is consistent with the policies of the Act, while at the same time giving due recognition to an employer’s property right to exclude nonemployees.
The majority, applying the above-described standard to the allegation before it, reversed the Administrative Law Judge’s finding of a violation (which was based on her application of Sandusky Mall and related cases) and dismissed the complaint. The majority explained that the General Counsel did not show that the Respondent has ever permitted any nonemployees, whether affiliated with a union or not, to engage in protest activities on its premises comparable to the boycott solicitation at issue in this case.
Dissenting, Member McFerran argued that the judge properly found a violation based on precedent that spanned decades. She argued that the majority, repeating errors the majority made in UPMC, 368 NLRB No. 2 (2019), incorrectly reached out to decide an issue that was not required to resolve the case. In this regard, she asserted that the judge made a motive-based determination that easily supports finding a violation here, making it unnecessary to reach the disparate-treatment issue. She also argued that the majority again reversed precedent on a major labor-law issue without providing notice to the public and inviting briefing. Regarding the merits of the majority’s decision, she asserted that the majority’s decision to reverse precedent was wrong and impermissible under Supreme Court law. She asserted that the majority’s approach contradicted the understanding of discrimination reflected in NLRB v. Stowe Spinning Co., 336 U.S. 226 (1949), and more than 70-years of Board decisions; misconstrued the meaning of discrimination within the framework of Section 8(a)(1); and radically narrowed the scope of the discrimination exception. Member McFerran additionally argued that, although the federal courts of appeals are divided about the Board’s interpretation of the Babcock discrimination exception, a majority of the Circuits that have addressed the issue have approved the Board’s approach. In Member McFerran’s view, the majority’s decision to change the Board’s approach is flawed because it permits employers to treat union representatives as distinct based on their supposed “boycott and protest activities” as opposed to their actual conduct: solicitation of customers. She stated that the majority’s approach, which cannot be squared with Supreme Court precedent or statutory policy, creates a license for an employer to permit almost any third-party activity on its property but union solicitation and distribution.
Charge filed by United Food and Commercial Workers Union Local 400. Administrative Law Judge Donna N. Dawson issued her decision on September 9, 2016. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
No Unpublished C Cases Issued.
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Appellate Court Decisions
First Student, Inc., a division of First Group America, Board Case No. 07-CA-092212 (reported at 366 NLRB No. 13) (D.C. Cir. decided September 3, 2019).
In a published opinion, the Court enforced the Board’s order that issued against this provider of school-transportation services in North America, and admitted successor employer to the Saginaw School District, for violating its duty to bargain with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO/CLC, Local 9036, the representative of the unit of bus drivers and monitors employed when it took over the District’s student-transportation services. In doing so, the Court upheld the finding by the Board (Members Pearce and McFerran; then-Chairman Kaplan, dissenting) that First Student was a “perfectly clear successor,” and thus violated Section 8(a)(5) and (1) by unilaterally changing initial terms and conditions of employment for unit employees.
Until 2012, the District directly employed bus drivers and monitors, who were represented by the Union and worked under the terms of a collective-bargaining agreement. For the 2012-13 school year, the District issued a request for proposals to subcontract its transportation services. After First Student submitted a proposal, and the School Board approved it, First Student and the District negotiated a services contract that also was approved. When it took over transportation services and began hiring, First Student changed some of the employees’ terms and conditions of employment, and the Union filed a charge alleging those changes to initial terms, among other actions, violated Section 8(a)(5) and (1). After a hearing, the Administrative Law Judge found that First Student had unlawfully implemented new attendance policies and delayed bargaining with the Union, but otherwise dismissed the complaint, finding that First Student could lawfully set initial terms.
The Board reversed in relevant part and found that First Student was a “perfectly clear successor.” As such, the Board found that First Student’s announcement and implementation of changed initial terms and conditions of employment without giving the Union notice and an opportunity to bargain was unlawful. The Board applied its precedent, drawn from the Supreme Court’s decision in NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), that a successor to a unionized employer that expresses an intent to hire the predecessor’s employees without signaling that it will impose different terms and conditions of employment is a “perfectly clear successor” and must bargain with the incumbent union before setting initial terms. On this record, the Board found that First Student qualified as such. Specifically, First Student told unit employees at two meetings before assuming operations that it usually hired 80-90 percent of existing employees, intended to hire as many of them as possible, and had no hiring requirements that were different from the District’s current requirements. It did not condition those statements with any announcement of changed employment terms, instead simply saying that it would need later to negotiate employment terms with the Union, which is required of all successors, perfectly clear or otherwise.
On review, the Court (Circuit Judges Rogers and Wilkins; Senior Circuit Judge Silberman, dissenting in part) undertook an extensive survey of the controlling Supreme Court, Circuit, and Board case law, and rejected First Student’s contentions that the Board had applied the wrong legal standard or departed from precedent. The Court also noted that, under the Board’s approach, “the employer need not specify the new terms during its initial communication with employees,” but “need only convey its intent to make unilateral changes; it can determine the details later.” The Court found that approach “reasonably balance[s] the employer’s rights against employees’ reliance interests,” and is a reasonable interpretation of the “perfectly clear” successor doctrine. Moreover, the Court noted that in accepting the Board’s interpretation of the doctrine in Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. NLRB, 595 F.2d 664 (D.C. Cir. 1978), and later in S & F Mkt. St. Healthcare LLC v. NLRB, 570 F.3d 354 (D.C. Cir. 2009), the Court had emphasized the dual purposes of the doctrine are to protect a successor employer’s freedom to alter the acquired enterprise by imposing initial terms and conditions, while also affording incumbent employees an important measure of protection by preventing the successor from inducing potential adverse reliance by the employees it might mislead or lull into not looking for other work. Further, the Court noted that since its decision in Machinists, all sister circuits that have addressed the doctrine have agreed and upheld the Board’s interpretation consistent with that balance of interests.
Finally, the Court rejected First Student’s alternative argument that, even if the Board had applied the proper standard, its application was not supported by substantial evidence, and summarily enforced with regard to the uncontested unfair labor practices. Judge Silverman authored a separate opinion to state his differing views.
The Court’s opinion is here.
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Administrative Law Judge Decisions
District Hospital Partners, L.P. d/b/a The George Washington University Hospital, a limited partnership, and UHS of D.C., Inc., General Partner (05-CA-216482, et al.; JD-69-19) Washington, D.C. Administrative Law Judge Michael A. Rosas issued his decision on September 4, 2019. Charges filed by 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Region a/w Service Employees International Union.
Transcendence Transit II, Inc., Transcendence Transit, Inc., Patriarch Partners, LLC and Patriarch Partners Agency Services, Single Employer or Joint Employers (29-CA-182049; JD(NY)-15-19) Brooklyn, NY. Administrative Law Judge Kenneth W. Chu issued his decision on September 4, 2019. Charge filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO.
Zeigler North Riverside, LLC d/b/a Zeigler Ford of North Riverside (13-CA-225984, et al.; JD-70-19) Lincolnwood and North Riverside, IL. Administrative Law Judge Charles J. Muhl issued his decision on September 5, 2019. Charges filed by Local Lodge 701, International Association of Machinists & Aerospace Workers, AFL-CIO.
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