Summary of NLRB Decisions for Week of September 9 - 13, 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
The Boeing Company (10-RC-215878; 368 NLRB No. 67) North Charleston, SC, September 9, 2019.
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) concluded that the petitioned-for unit limited to only two job classifications within an aircraft production line was inappropriate for collective bargaining. In reaching this conclusion, the Board clarified that its recent return to the traditional community-of-interest standard in PCC Structurals, Inc., 365 NLRB No. 160 (2017), contemplated a three-step analysis for determining whether the petitioned-for unit is appropriate. The Board will (1) evaluate whether the members of the petitioned-for unit share a community of interest with each other, (2) ascertain whether the employees excluded from the unit have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members, and (3) consider guidelines the Board has established for appropriate unit configurations in specific industries. Applying this three-step analysis to the facts before it, the Board reasoned that the employees in the petitioned-for unit both did not share an internal community of interest and did not have sufficiently distinct interests from those of excluded employees, and it found no guidelines specific to the Employer’s industry. Member McFerran, dissenting, would have found the petitioned-for unit appropriate. She disagreed with the second step of her colleague’s legal framework and would have found the facts warranted concluding that the members of the bargaining unit did share an internal community of interest and had interests sufficiently distinct from excluded employees.
Petitioner—International Association of Machinists and Aerospace Workers. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Copper State Bolt & Nut Company, Inc. (28-CA-232050; 368 NLRB No. 69) Phoenix, AZ, September 9, 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 requiring employees to bring job related concerns directly to a manager, threatening unspecified reprisals for failing to do to so, interrogating and threatening to interrogate employees about their own and other employees’ protected concerted activities, prohibiting employees from discussing pay, threatening employees with discharge for their protected concerted activities, and suspending, discharging, and refusing to rehire or consider for rehire one employee because of his protected concerted activity.
Charge filed by an individual. Chairman Ring and Members McFerran and Kaplan participated.
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El Rio Bakery, Inc. (28-CA-216755 and 28-CA-221086; 367 NLRB No. 99) Tucson, AZ, September 10, 2019. Errata to February 28, 2019 Decision and Order. Errata Amended Decision
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MV Transportation, Inc. (28-CA-173726; 368 NLRB No. 66) Las Vegas, NY, September 10, 2019.
On a stipulated record, the full Board considered whether the Respondent violated Section 8(a)(5) and (1) by implementing five work policies without first bargaining with the Union, including the Respondent’s argument that this unilateral action was permitted by the parties’ collective-bargaining agreement. In doing so, the majority (Chairman Ring and Members Kaplan and Emanuel) abandoned the “clear and unmistakable waiver” standard, which the Board had applied when considering arguments like the Respondent’s. Under the clear and unmistakable standard, an employer’s unilateral action violated the Act unless a contractual provision, granting an employer the right to act unilaterally, unequivocally and specifically referred to the type of employer action at issue. See Provena St. Joseph Medical Center, 350 NLRB 808 (2007). In agreement with the D.C. Circuit, see NLRB v. U.S. Postal Service, 8 F.3d 832 (D.C. Cir. 1993), and other courts of appeals, the majority adopted the “contract coverage” standard. Under that standard, the Board will examine the plain language of the collective-bargaining agreement, applying ordinary principles of contract law, to determine whether action taken by an employer is within the compass or scope of contractual language granting the employer the right to act unilaterally. Accordingly, where contract language covers the act in question, the agreement will have authorized the employer to make the disputed change unilaterally, and the employer will not have violated Section 8(a)(5). If the contract coverage standard is not met, the Board will continue to apply its traditional waiver analysis to determine whether some combination of contractual language, bargaining history, and past practice establishes that the union waived its right to bargain regarding a challenged unilateral change.
Among other reasons, the majority held that the contract coverage standard is more consistent with the purposes of the Act than is the waiver standard because contract coverage: (i) encourages parties to foresee and resolve potential labor-management issues through comprehensive collective bargaining; (ii) will end the Board’s practice of selectively applying exacting scrutiny to contractual provisions that vest in employers the right to act unilaterally; (iii) will end the Board’s practice of sitting in judgment on the substantive terms of a collective-bargaining agreement, a practice contrary to Supreme Court law; (iv) ensures the Board’s interpretation of contractual language remains within its limited authority to do so; and (v) discourages forum shopping by applying the same standard that arbitrators apply, thus channeling unilateral-change disputes into grievance arbitration, as Congress intended. The majority noted that its decision resolves a conflict with several courts of appeals, in particular, the D.C. Circuit, where the waiver standard has become indefensible and unenforceable. The majority explained that, while the Supreme Court has stated that it does not disapprove of the waiver standard, the Court did so in deference to the Board’s expertise and experience. The Board’s subsequent experience and subsequent court decisions, the majority argued, now support adopting the contract coverage standard.
Applying the contract coverage standard retroactively, the majority found that each of the Respondent’s work policies (concerning the addition of light duty work assignments and the setting of disciplinary standards for safety, schedule adherence, security sweeps/breaches, and driving) falls within the compass or scope of language in the collective-bargaining agreement that granted the Respondent the right to assign employees, to discipline employees, and to issue reasonable rules and policies related to employee discipline. Accordingly, the majority found that the Respondent did not violate the Act by unilaterally implementing these work policies.
Dissenting, Member McFerran disagreed with the majority’s decision to abandon the clear and unmistakable waiver standard. Member McFerran faulted the majority for overruling the Board’s many-decades-long adherence to the waiver standard without notice or public participation. She argued that the waiver standard is consistent with the Act because it favors collective bargaining concerning changes in working conditions that might precipitate labor disputes while the contract coverage standard will destabilize labor relations by making it easier for employers to unilaterally change employees’ terms and conditions of employment. She further argued that the contract coverage standard cannot be squared with Supreme Court law endorsing the Board’s waiver standard, faulted the majority for deferring to the current view of the D.C. Circuit in an area where it is the court that should have deferred to the Board, and noted that multiple courts of appeals have applied the waiver standard. Member McFerran argued that the contract coverage standard will diminish the likelihood of parties reaching collective-bargaining agreements because employers will seek broadly-worded provisions granting them the right to unilaterally act and unions will decide that they are better off resting entirely on the statutory right to bargain created by the Act. She added that this outcome will be amplified by the Board’s decision in Raytheon Network Centric Systems, 365 NLRB No. 161 (2017), which permits employers to continue a past practice of making unilateral changes authorized by contractual provisions, even after the collective-bargaining agreement expires. Finally, Member McFerran disagreed with the majority’s retroactive application of the contract coverage standard because, among other reasons, it would be unjust to unions that previously thought they were assured the right to bargain over matters not explicitly waived. Applying the waiver standard, contrary to her colleagues, Member McFerran would find that the Respondent violated the Act by unilaterally implementing its policies concerning safety, schedule adherence, and security sweeps/breaches. Member McFerran agreed with her colleagues the Respondent did not violate the Act by implementing its light duty work assignments and driving policies.
The full Board also considered whether the Respondent, within the meaning of Section 8(d) of the Act, violated Section 8(a)(5) and (1) by implementing five additional work policies on the basis that those policies modified the parties’ collective-bargaining agreement without the Union’s consent. Applying the “sound arguable basis” standard, see Bath Iron Works Corp., 345 NLRB 499 (2005), the Board found that the Respondent unlawfully implemented bereavement pay, licensing reimbursement, and required extra assignments policies. The Board found that the Respondent did not violate the Act by implementing operator log-in and customer service policies.
Charge filed by Amalgamated Transit Union Local #1637, AFL-CIO, CLC. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Briad Wenco, LLC d/b/a Wendy’s Restaurant (29-CA-165942; 368 NLRB No. 72) Livingston, NJ, September 11, 2019.
In a Supplemental Decision, the Board found that the Respondent’s mandatory arbitration agreements do not violate Section 8(a)(1) under the analytical framework set forth in The Boeing Company, 365 NLRB No. 154 (2017), because, when reasonably interpreted, they do not potentially interfere with employees’ right to access the Board and its processes. The Board concluded that, although the agreements provide that “[a]ny claim, controversy or dispute” shall be resolved through binding arbitration, they contained effective “savings clause” language by also providing that nothing in them is to be construed to prohibit the filing of any charge or participating in any proceeding conducted by an administrative agency, including the Board. The Board determined that the “savings clause” language in the agreements is unconditional and sufficiently prominent so that the agreements could not be reasonably interpreted to prohibit employees from filing Board charges or participating in Board proceedings in any manner, whether acting individually or in concert with coworkers. In addition, the Board found that the agreements in this case are factually distinguishable from those in which the pre-Boeing Board found “savings clause” language, in context, to be confusing, ambiguous, or otherwise insufficient, without passing on whether those cases were correctly decided.
Charge filed by Fast Food Workers Committee. Administrative Law Judge Joel P. Biblowitz issued his decision on July 6, 2016. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
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Vince & Sons Co. and Jo Mo Enterprises, Inc. d/b/a Vince & Sons Pasta, alter-ego and/or Golden State Successor and Judella, Inc. d/b/a Vince & Sons Pasta, alter-ego and/or Successor (13-CA-123828; 368 NLRB No. 71) Bridgeview, IL, September 12, 2019.
In a Second Supplemental Decision and Order, the Board granted the General Counsel’s Motion for Default Judgment and Motion for Partial Default Judgment concerning the personal liability of individual Respondents for backpay owed to discriminatees. The Board granted the General Counsel’s motion as to an individual Respondent because he failed to file a legally sufficient answer to the General Counsel’s supplemental compliance specification, and, as to the remaining Respondents, because they failed to file timely answers to it. The Board found the Respondents liable for the backpay owed to the discriminatees as stated in the supplemental compliance specification, plus interest accrued to the date of payment.
Charge filed by United Food and Commercial Workers Local 1546. Chairman Ring and Members McFerran and Emanuel participated.
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E.I. DuPont de Nemours & Co., Inc. (03-CA-096616; 368 NLRB No. 73) Tonawanda, NY, September 13, 2019.
The Board (Chairman Ring and Member Kaplan; Member McFerran, dissenting), applying Raytheon Network Centric Systems, 365 NLRB No. 161 (2017), found that, as in E.I. DuPont de Nemours (Edgemoor), 367 NLRB No. 12 (2018), Raytheon controls and compels a finding that the Respondent did not violate Section 8(a)(5) and (1) by making the Beneflex plan changes at issue without providing the Union advance notice and an opportunity for bargaining. Dissenting, Member McFerran, referring to her dissents in Raytheon and E.I. DuPont de Nemours (Edgemoor), above, argued that the case should be decided under the precedent overruled in Raytheon, E.I. DuPont de Nemours, 364 NLRB No. 113 (2016) (DuPont 2016), and that, under DuPont 2016, the Respondent violated the Act. Member McFerran, referring to views she had previously expressed in dissents in Raytheon and DuPont Edgemoor, further stated that the Board erred by failing to provide advance notice and an opportunity for responsive briefing to the Union in the present case, prior to reconsidering precedent.
Charge filed by United Steelworkers International Union and its Local 6992. Chairman Ring and Members McFerran and Kaplan participated.
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Arlington Metals Corp. (13-CA-122273, et al.; 368 NLRB No. 74) Franklin Park, IL, September 13, 2019.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union with requested information, engaging in surfacing bargaining, withdrawing recognition from the Union, and denying the Union access after the withdrawal to the premises to conduct a health and safety inspection. The Board found that the Respondent had not asserted a present inability to pay during bargaining and therefore was not required to provide the requested financial information, and that even if the Respondent’s statements could be interpreted as claiming an inability to pay, the Respondent expressly and repeatedly clarified that it was not making such a claim, which would negate any need to provide financial information. The Board also disagreed with the judge and found that the Respondent made largely general statements about a tougher business environment and so did not have to provide the information under a general relevancy standard for specific claims. The Board further reversed the judge and found the Respondent did not engage in bad faith bargaining.
Because it did not find the underlying violations, the Board did not find the petition for withdrawal of recognition tainted by any such practices under Master Slack. It further found that the Respondent had shown under Levitz Furniture that the Union lacked majority support at the time of the withdrawal. In so doing, it took judicial notice of proceedings in United States District Court following the Administrative Law Judge’s decision during which the Respondent provided testimony from employees who had signed the petition and authenticated their signatures. The Board also took judicial notice of the district court’s finding that the Respondent, at the unfair labor practice hearing, was deprived of a full opportunity to present evidence establishing the validity of the withdrawal petition. It therefore found it appropriate to consider the evidence of authentication from the district court, and found the Respondent had proven that the Union had lost majority support when the Respondent withdrew recognition. Having found a lawful withdrawal, the Board found the Union had no right of access and reversed the judge’s finding that the Respondent’s denial of access violated the Act.
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO (USW). Administrative Law Judge Mark Carissimi issued his decision on July 23, 2015. Chairman Ring and Members Kaplan and Emmanuel participated.
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Conforming Matrix Corporation (08-CA-222146; 368 NLRB No. 75) Toledo, OH, September 13, 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 bargain over the effects of its decision to close its facility.
Charge filed by International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, Local 12 (UAW). Chairman Ring and Members McFerran and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Sysco Central Alabama, Inc. (10-RC-238289) Calera, AL, September 12, 2019. The Board denied the Employer’s Request for Review and Supplemental Emergency Request for Review of the Acting Regional Director’s determination to hold the petition in abeyance as they raised no substantial issues warranting review. Petitioner—Teamsters Local 612. Chairman Ring and Members McFerran and Kaplan participated.
Ardent Mills, LLC (16-RD-234061) Saginaw, TX, September 13, 2019. The Board denied the Union’s Request for Review of the Regional Director’s Decision and Certification of Results of Election as it raised no substantial issues warranting review. Petitioner—an Individual. Union—United Food & Commercial Workers, Local 450. Members McFerran, Kaplan, and Emanuel participated.
Langer Transport Corp. (13-RD-240921) Joliet, IL, September 13, 2019. The Board denied the Employer’s and Petitioner’s Requests for Review of the Regional Director’s Order Dismissing Petition as they raised no substantial issues warranting review. Petitioner—an Individual. Union—Teamsters Local 705. Chairman Ring and Members McFerran and Kaplan participated.
C Cases
Local 713, International Brotherhood of Trade Unions (Platinum Amenity Services Ltd.) (29-CB-220367) Queens, NY, September 9, 2019. The Board approved a formal settlement stipulation between the Respondent Local 713, the Charging Party, and the General Counsel, and specified actions that the Respondent Local 713 must take to comply with the Act. The complaint had alleged Section 8(b)(1)(A) and (2) violations. Charge filed by Service Employees International Union, Local 32BJ. Members McFerran, Kaplan, and Emanuel participated.
Kaiser Foundation Hospitals; Southern California Permanente Medical Group (21-CA-224219) Los Angeles, CA, September 13, 2019. No exceptions having been filed to the August 1, 2019 decision of Administrative Law Judge Jeffrey P. Gardner’s finding that the Respondents had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondents to take the action set forth in the judge’s recommended Order. Charge filed by National Union of Healthcare Workers.
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Appellate Court Decisions
Southern Bakeries, LLC, Board Case No. 15-CA-169007 (reported at 366 NLRB No. 78) (8th Cir. decided September 11, 2019).
In a published opinion, the Court enforced, in part, the Board’s order issued against this commercial bakery in Hope, Arkansas, for unfair labor practices committed in 2015. In a prior decision (364 NLRB No. 64), the Board found, in relevant part, that the Employer unlawfully disciplined an employee because of her protected union activity in violation of Section 8(a)(3) and (1), and ordered the Employer to expunge any reference to the unlawful discipline from its files and not to use it against her in any way. On review, the Court upheld that Board finding and enforced that portion of the Board’s order. S. Bakeries, LLC v. NLRB, 871 F.3d 811 (8th Cir. 2017). In a subsequent decision (366 NLRB No. 78), the Board (Members McFerran, Kaplan, and Emanuel) found that the Employer violated Section 8(a)(3) and (1) by issuing that same employee a last-chance agreement, discharging her, and marking her ineligible for rehire, in part relying on the prior disciplinary action that was found unlawful in its earlier decision. The Board further found that the Employer violated Section 8(a)(1) by instructing a second employee not to discuss her discipline with other employees and by later telling her that she was being discharged in part for having done so.
On review, the Court upheld the Board’s Section 8(a)(1) findings that the Employer unlawfully instructed the second employee not to discuss her discipline with co-workers and unlawfully repeated that statement when discharging her. In doing so, the Court rejected the Employer’s challenges to the Administrative Law Judge’s credibility determinations. The Court, however, denied enforcement of the Board’s Section 8(a)(3) and (1) findings. As an initial matter, the Court did not disagree with the principle, applied by the Board here, that if prior discipline was unlawfully motivated, then any subsequent adverse actions relying on that discipline are themselves unlawful. Rather, the Court held that on this record, and given the timing of the litigation in the prior Board proceeding, there was not yet a finding of “prior unlawful discipline” that would serve as a predicate for the Board’s Section 8(a)(3) and (1) findings.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Impact Wellness Center, Inc. (28-CA-221411 and 28-CA-223540; JD(SF)-30-19) Las Vegas, NV. Administrative Law Judge Lisa D. Ross issued her decision on September 9, 2019. Charges filed by individuals.
California Cartage Company, LLC; Orient Tally Company, Inc.; and Core Employee Management, Inc. (21-CA-190500, 21-CA-207939 and 21-RC-188813; JD(SF)-29-19) Carson, CA. Administrative Law Judge Dickie Montemayor issued his decision on September 9, 2019. Charges filed by International Brotherhood of Teamsters.
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