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Summary of NLRB Decisions for Week of March 19 - 23, 2018

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

Environmental Contractors, Inc., Kielczewski Corporation and their alter ego, single employer, and/or successor, Be Construction Corporation  (22-CA-089865; 366 NLRB No. 41)  West Orange, NJ, March 19, 2018.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondents’ failure to file an answer to the complaint and compliance specification.  The Board found that Respondent Kielczewski established Respondent BE Construction as a disguised continuance of its business so that it could evade its responsibilities under the Act.

Charge filed by Local 78, Laborers International Union of North America.  Chairman Kaplan and Members Pearce and Emanuel participated.

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DirectSat USA, LLC  (13-CA-176621; 366 NLRB No. 40)  South Holland, IL, March 20, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by refusing to provide a full, unredacted copy of its subcontracting agreement with DirecTV to the Union.  The Board agreed that, by proposing to have the subcontracting agreement define its employees’ scope of work, the Respondent rendered the entire document relevant to the parties’ contract negotiations.  The Board also clarified the nature of the burden to show relevance when seeking non-unit information, and the standard for determining whether, by finding a violation based on a different theory than that articulated by the General Counsel, a judge violates a respondent’s due-process rights.

Charge filed by International Brotherhood of Electrical Workers, Local Union 21, AFL-CIO.  Administrative Law Judge Charles J. Muhl issued his decision on July 20, 2017.  Members Pearce, McFerran, and Emanuel participated.

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Village Red Restaurant Corp. d/b/a Waverly Restaurant  (02-CA-162509 and 02-CA-166015; 366 NLRB No. 42)  New York, NY, March 20, 2018.

In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by discharging and constructively discharging employees, as well as by reducing their work hours, because they had filed a Fair Labor Standards Act lawsuit, and that it violated Sections 8(a)(1) and (4) by constructively discharging an employee because he had filed a Board charge.

Charges filed by individuals.  Administrative Law Judge Steven Davis issued his decision on October 31, 2016.  Members Pearce, McFerran, and Emanuel participated.

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Walden Security, Inc.  (14-CA-170110, et al.; 366 NLRB No. 44)  Chattanooga, TN, March 23, 2018.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent was a “perfectly clear” successor and violated Section 8(a)(5) and (1) by failing to provide the Union with notice and an opportunity to bargain before imposing initial terms and conditions of employment for the unit employees.

In adopting the judge’s conclusion, Chairman Kaplan noted that he disagreed with the judge’s analysis insofar as it relied on the interpretation of Spruce Up Corp., 209 NLRB 194 (1974), as expressed in Creative Vision Resources, LLC, 364 NLRB No. 91 (2016), and Canteen Co., 317 NLRB 1052 (1995).  However, Chairman Kaplan recognized these decisions as extant precedent and applied them in the absence of a vote to overrule them; moreover, he would find that the Respondent was a “perfectly clear” successor even under a narrower interpretation of Spruce Up.  Member Emanuel noted that he agreed that the Respondent was a “perfectly clear” successor under the facts of this case, but he is open to reexamining the Board’s “expresses an intent to hire” standard in future cases.

Charges filed by United Government Security Officers of America, International Union, jointly with its Member Locals 85, 86, 109, 111, 173, 175, and 220.  Administrative Law Judge Melissa M. Olivero issued her decision on July 7, 2017.  Chairman Kaplan and Members Pearce and Emanuel participated.

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J&K Floral USA, Inc.  (02-CA-185241; 366 NLRB No. 43)  New York, NY, March 23, 2018.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the amended complaint.  The Board found that the Respondent violated Section 8(a)(1) by reducing employees’ wages because they engaged in protected concerted activities, terminating employees because they engaged in protected concerted activities, interrogating employees about their protected concerted activities, and promising employees benefits on the condition that they refrain from engaging in protected concerted activities.

Charge filed by an individual.  Chairman Kaplan and Members Pearce and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Tree Top  (31-RD-210605)  Oxnard, CA, March 20, 2018.  The Board denied as moot the Employer’s Request for Review and Renewed Request for Review of the Regional Director’s determination to hold the petition in abeyance, because the Regional Director had subsequently resumed processing the petition.  Petitioner – an Individual.  Union – Teamsters Local 186.  Chairman Kaplan and Members Pearce and McFerran participated.

G4S Secure Solutions (USA), Inc.  (12-RC-203988)  Florida City, FL, March 20, 2018.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Board found that the Employer did not demonstrate that the lieutenants were supervisory employees under Section 2(11) of the Act based on their responsible direction of security officers during drills and tactical situations, nor did it submit sufficient evidence detailing the lieutenants’ role during these drills.  The Board also found that the record demonstrated that the lieutenants’ ability to send officers home on account of unfitness did not constitute supervisory authority because it was exercised only in response to obvious deficiencies.  Under these circumstances, the lieutenants’ authority did not involve the exercise of independent judgment under Section 2(11).  Finally, the Board found no merit in the Petitioner’s request to dismiss the Request for Review as not conforming to the Board’s procedural requirements.  Petitioner – International Union, Security, Police and Fire Professionals of America, Local 610.  Chairman Kaplan and Members Pearce and McFerran participated.

Reed College  (19-RC-213177)  Portland, OR, March 22, 2018.  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 as moot the Employer’s requests to stay the election, or to impound the ballots, pending review.  Petitioner – Student Workers Coalition–Local 1 Housing Advisers.  Chairman Kaplan and Members McFerran and Emanuel participated.

Pepperidge Farm, Incorporated  (01-RC-155159)  Woburn, MA, March 23, 2018.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order as it raised no substantial issues warranting review.  The Regional Director had found that the Employer met its burden to establish that sales development associates are independent contractors under the Act.  Petitioner – Chauffeurs, Teamsters and Helpers Local 633 of New Hampshire.  Chairman Kaplan and Members McFerran and Emanuel participated.

Colonial Parking, Inc.  (04-RC-187843)  Wilmington, DE, March 23, 2018.  In this case involving parking attendants and maintenance employees employed at multiple parking facilities, the Employer filed a Revised Request for Review of the Regional Director’s Decision and Direction of Election and Regional Director’s Decision on Exceptions to the Hearing Officer’s Report on Challenged Ballots, requesting review of both the pre-election decision to hold a mail ballot election and the post-election determination that the proposed bargaining unit is appropriate under Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011).  The Board (Chairman Kaplan and Member Emanuel, Member Pearce dissenting) granted review solely with respect to whether the proposed unit of employees—excluding the lot auditor and the skilled maintenance employee, whose ballots were challenged—is an appropriate unit.  The Board remanded the case to the Regional Director for further appropriate action consistent with PCC Structurals, Inc., 365 NLRB No. 160 (2017), including reopening the record, if necessary.  In all other respects, including the Employer’s contention that the Regional Director’s factual findings were clearly erroneous, the Board denied the Request for Review as it raised no substantial issues warranting review.  Member Pearce would have denied the request for review in all respects.  Petitioner – United Food and Commercial Workers Local 27.  Chairman Kaplan and Members Pearce and Emanuel participated.

C Cases

Wyman Gordon Pennsylvania, LLC  (04-CA-182126, et al.)  Wilkes Barre, PA, March 19, 2018.  The Board denied an employee’s Request for Special Permission to Appeal the Administrative Law Judge’s order that granted the employee’s Motion to Intervene solely for the purpose of filing a post-hearing brief.  The Board found that the judge did not abuse his discretion in denying full intervenor status to the employee.  Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO/CLC.  Chairman Kaplan and Members McFerran and Emanuel participated.

Muller Automotive, Inc. d/b/a Team Toyota of Princeton  (22-CA-191253)  Princeton, NJ, March 20, 2018.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by United Service Workers Union Local 355, International Union of Journeyman Trades and Allied Trades.  Chairman Kaplan and Members Pearce and McFerran participated.

Ameripride Services, Inc.  (15-CA-167488 and 15-CA-170246)  Memphis, TN, March 20, 2018.  No exceptions having been filed to the December 14, 2017 decision of Administrative Law Judge Ira Sandron’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charges filed by Workers United, a/w Service Employees International Union.

Kava Holdings, LLC, a Delaware Limited Liability Company, a/k/a Kava Holdings, Inc., a Delaware Corporation d/b/a Hotel Bel-Air  (31-CA-074675)  Los Angeles, CA, March 20, 2018.  The Board granted the Respondent’s Request for Special Permission to Appeal from Administrative Law Judge Lisa D. Thompson’s order denying the Respondent’s Motion for a Protective Order restricting the use of payroll records that the Respondent produced pursuant to a Board subpoena and an order of the United States District Court for the Central District of California.  On the merits, the Board denied the appeal, finding that the Respondent failed to establish that the judge abused her discretion.  Charge filed by UNITE HERE – Local 11.  Chairman Kaplan and Members McFerran and Emanuel participated.

Silverstar Delivery Ltd, Gold Standard Transportation and Amazon Logistics, Inc., Joint Employers  (07-CA-199193 and 07-CA-200543)  Brownstown, MI, March 22, 2018.  The Board denied Employer Silverstar Delivery Ltd’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  In response to the Employer’s contention that some responsive documents were not in its possession, custody, or control, the Board found that the Employer is required to request such information from other persons or companies, if necessary.  The Board also denied the Employer’s Request for a Protective Order, finding that the Employer had failed to show good cause.  Charges filed by Local 337, International Brotherhood of Teamsters, AFL-CIO, and an individual.  Chairman Kaplan and Members Pearce and McFerran participated.

Windsor Healthcare Management, Inc. d/b/a Windsor Care Center of Petaluma  (20-CA-199555)  Petaluma, CA, March 23, 2018.  The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  The complaint had alleged Section 8(a)(5) refusal-to-provide/delay-in-providing relevant information violations.  Charge filed by Service Employees International Union Local 2015.  Chairman Kaplan and Members McFerran and Emanuel participated.

Lodge 104 of the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, a/w International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, CLC (Foss Maritime Company)  (19-CB-194647)  Seattle, WA, March 23, 2018.  The Board denied the Union’s Motion to Revoke the subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Union failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman Kaplan and Members McFerran and Emanuel participated.

United States Postal Service  (16-CA-188057, et al.)  San Antonio, TX, March 23, 2018.  The Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  The complaint had alleged Section 8(a)(5) refusal-to-provide/delay-in-providing relevant information violations.  Charges filed by National Association of Letter Carriers, Branch 421 a/w National Association of Letter Carriers, AFL-CIO, and American Postal Workers Union San Antonio Alamo Area Local 195, a/w American Postal Workers Union, AFL-CIO.  Chairman Kaplan and Members McFerran and Emanuel participated.

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Appellate Court Decisions

H&M International Transportation, Inc., Board Case No. 22-CA-089596 (reported at 363 NLRB No. 139) (D.C. Cir. decided March 20, 2018)

In an unpublished judgment, the Court enforced the Board’s order issued against this provider of railroad terminal services, such as loading and unloading cargo trains, at a facility in Jersey City, New Jersey, where its crane operators are represented by United Food and Commercial Workers, Local 312.  The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that the Employer violated Section 8(a)(3) and (1) by unlawfully suspending and later discharging four employees for their union and protected concerted activity, which included responding to changes in their work and safety rules.  Further, the Board found the Employer’s defense that it would have discharged them anyway for engaging in an intentional work slowdown was unsupported by the credited evidence.

On review, the Court held that substantial evidence supported the Board’s findings and enforced the order.  In doing so, the Court held it was jurisdictionally barred by Section 10(e) of the Act from deciding the Employer’s belatedly raised challenge to the complaint’s validity based on the claim that it was issued by Acting General Counsel Solomon when he lacked the authority to do so under NLRB v. SW General, Inc., 137 S. Ct. 929 (2017).  Although the Employer made the claim in its answer to the complaint, it then dropped the argument until asserting it in a motion for reconsideration.  The Court explained that an argument “made in the answer to the complaint but not renewed in an exception to the decision of the ALJ is forfeit,” and raising it anew in a motion for reconsideration “comes ‘too late’ to preserve an issue for our review absent exceptional circumstances, which are not present here.”  Therefore, the Court had no occasion to reach the Employer’s challenge to General Counsel Griffin’s ratification of the complaint.

The Circuit Court’s unpublished judgment may be found here.

Novelis Corporation, Board Case No. 03-CA-121293 (reported at 364 NLRB No. 101) (2d Cir. decided March 15, 2018)

In a published opinion, the Second Circuit, in all respects except the Gissel bargaining order, enforced the Board’s order issued against this manufacturer of rolled aluminum at a plant in Oswego, New York, where 600 employees voted in a February 2013 election against representation by United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers Union, on a vote of 273 to 287.

The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that, in the run up to the election, the Employer committed serious and substantial unfair labor practices in response to the Union’s nascent organizing campaign.  Among other violations, the Board found that the Employer engaged in numerous unlawfully coercive acts, including variously threatening employees, soliciting grievances, granting wage increases and benefits, maintaining and giving effect to overly broad social media and email usage work rules, selectively and disparately enforcing its posting, distribution, and union insignia work rules, and by demoting an employee for his union support and other protected concerted activities.  In addition to the usual remedial provisions, the Board found it appropriate to issue a bargaining order under the rubric of a Gissel “Category II” case—that is, one where “the possibility of erasing the effect of past practices and of ensuring a fair election . . . by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through [authorization] cards would, on balance, be better protected by a bargaining order.”  NLRB v. Gissel Packing Co., 395 U.S. 575, 614-15 (1969).  Finally, the Board denied three motions filed by the Employer to reopen the record to admit evidence of changed circumstances affecting the bargaining order, stating that it evaluates the appropriateness of a bargaining order as of the time the unfair labor practices were committed, and does not consider turnover among unit employees or management officials, nor the passage of time, in determining whether a Gissel order is appropriate.  The Board further noted that, in any event, the proffered evidence would not require a different result, given the continuing presence of management officials who engaged in the unlawful conduct, and that a substantial number of employees would remember the violations and likely inform new employees.

On review, the Court held that substantial evidence supported the litany of unfair labor practices found by the Board, and rejected the challenges raised, finding them either unsupported by the record or otherwise meritless.  However, the Court held that, in issuing the Gissel bargaining order, the Board did not properly account for changed circumstances that occurred between the time of the unfair labor practices and the issuance of the Board’s decision.  Citing a body of in-circuit precedent, the court explained that “the relevant circumstances must be measured at the time of the issuance of a bargaining order and not at the time of the election,” and include changes such as employee turnover, management turnover, and the passage of time.  In light of that in-circuit precedent, the Court stated that the Board improperly issued the bargaining order, rather than requiring a new election, given the passage of 2 years, management turnover, and employee turnover equal to one-third of the unit.  Accordingly, the Court denied enforcement of the bargaining order, and remanded the case to the Board for further proceedings consistent with its opinion.  Additionally, in response to the Board’s motion to sever and remand certain work-rule findings that may have been affected by the recent Boeing decision, the court stated that, given the remand, the Board may “assess the applicability, if any, of the change in the test.”

The Court’s opinion may be found here.

Dish Network, LLC, Board Case No. 27-CA-131084 (reported at 363 NLRB No. 141) (10th Cir. decided March 7, 2018)

In an unpublished opinion, the Court enforced the Board’s order issued against this nationwide satellite media provider for violations of Section 8(a)(1).  The Board (then-Chairman Pearce and Members Miscimarra and Hirozawa) found that the Employer maintained a facially unlawful solicitation policy in its employee handbook that prohibited employees from soliciting in work areas during their non-work time and required prior approval by a vice president or higher company official.  The Board (Member Miscimarra concurring) also found that the Employer unlawfully disciplined and later discharged an employee for his protected, concerted activities, which included actively opposing the “charge back” policy in place at its sales call center in Littleton, Colorado, which reduced the pay of employees who made even minor oversights, often without their prior knowledge, as well as his off-duty solicitation of coworkers to join him in a wage and hour suit.

The Court held that the Board’s finding that the solicitation rule was unlawful was consistent with well-settled labor law principles.  The Court rejected the Employer’s argument that its call center should fall into the “special circumstances” exception that permits an employer, in certain contexts such as a sales floor of a department store, to prohibit solicitation even during nonwork hours in that portion of the store devoted to selling purposes.  See Marshall Field & Co., 98 NLRB 88 (1952).  The Court held that the physical absence of customers and the nonretail nature of the call center provided a reasonable basis for the Board’s distinguishing of this case from cases like Marshall Field, and explained: “Unlike in a call center where communications with customers are telephonic, in a retail store setting, a customer may well be put off by the presence of off-duty employees soliciting one another on the sales floor.”  Further rejecting a number of related contentions, the Court upheld the Board’s finding.

On the unlawful discharge finding, the Court roundly rejected the Employer’s arguments that the Board had misapplied the Wright Line dual-motive test by not also requiring a showing of particularized animus towards the employee’s protected activity or “some additional undefined nexus” between the employee’s protected activity and the adverse action.  Similarly, the Court rejected the Employer’s argument that the Board improperly double-counted animus in assessing its defense that it would have fired the employee in the absence of his protected activity, holding none of the Employer’s contentions supported by precedent.  Lastly, on the challenge to the Board’s finding that the Employer’s earlier discipline of the employee was unlawful, the Court held that the Employer’s argument was contrary to the record evidence.

The Court’s unpublished opinion is here.

1621 Route 22 West Operating Company LLC, d/b/a Somerset Valley Rehabilitation and Nursing Center, Board Case No. 22-CA-064426 (reported at 357 NLRB No. 153), and Board Case Nos. 22–CA–069152 and 22–CA–074665 (reported at 364 NLRB No. 4) (3rd Cir. decided March 14, 2018)

In an unpublished opinion, the Court enforced two Board orders issued against this operator of a rehabilitation and nursing facility in New Jersey in a pair of review cases consolidated for decision.  The earlier of the two proceedings (Somerset I) was a test-of-certification case involving the Employer’s objections filed after employees voted 38 to 28 in a September 2010 election for representation by 1199 SEIU United Healthcare Workers East, New Jersey Region.  The second proceeding (Somerset III) sought review of the Board’s findings that the Employer committed numerous unfair labor practices after the election.

The two cases have extensive procedural histories that also involve a third case (Somerset II).  In 2013, after the Somerset I review proceeding was initiated, the Court placed the case in abeyance pending its ruling on the petition for rehearing in NLRB v. New Vista Nursing Home & Rehabilitation, 3d Cir. Nos. 11-3440, 12-1027 and 12-1936.  New Vista, like Somerset I, presented the issue whether the recess appointment of Member Becker (who was on the panels that issued the decisions in Somerset I and New Vista) was valid.  Subsequently, without success, the Board twice requested that the Court lift the stay in Somerset I, explaining that Member Becker’s appointment was valid in light of NLRB v. Noel Canning, 134 S. Ct. 2550 (2014).  Meanwhile, in the review proceeding in Somerset II, the Court upheld the Board’s findings that the Employer committed numerous unfair labor practices in the run up to and after the election.  1621 Route 22 W. Operating Co. v. NLRB, 825 F.3d 128 (2016).  There, the Court held that, before the election, the Employer violated Section 8(a)(1) by repeatedly interrogating employees about their union support and soliciting grievances and promising to fix them, and after the election unlawfully discharged four licensed practical nurses (LPNs) for their union support in violation of Section 8(a)(3) and (1).

Thereafter, at issue in the review proceeding of Somerset III, were the Board’s findings that, after the election, the Employer violated Section 8(a)(3) and (1) by eliminating the LPN classification from the bargaining unit in retaliation for the LPNs’ union activity and by discharging two LPNs, and violated Section 8(a)(5) and (1) when it altered the scope of the bargaining unit without the Union’s consent and denied the Union access to its facility.  The Employer also challenged the Board’s remedial authority to order reinstatement of the LPN classification and the two discharged LPNs.  Finally, the Employer raised three procedural challenges—whether Member Becker should have recused himself from Somerset I because of his prior representation of the Service Employees International Union (SEIU); whether Acting General Counsel Solomon lacked authority under the Federal Vacancies Reform Act (FVRA) to issue the complaint; and whether General Counsel Griffin’s subsequent ratification of the complaint was valid.

In April 2017, the Court issued an order lifting the stay in Somerset I and, on the Board’s motion, consolidating Somerset I and III for oral argument and decision.

In its opinion, the Court first resolved the three procedural challenges.  On the recusal issue, the Court accepted Member Becker’s reasons for not recusing, noting that international unions, such as the SEIU, and their affiliated unions, such as SEIU Local 11, are separate and distinct entities.  Thus, the Court stated, the fact that Member Becker had never worked for Local 11, without more, would not give rise to an ethical conflict or an appearance of impropriety.  On the Employer’s FVRA-based contention, the Court agreed that, under NLRB v. SW General, Inc., 137 S. Ct. 929 (2017), Solomon was without authority to issue the complaint, but further held that Griffin’s later ratification was valid.  Citing a body of principles related to ratification and the presumption of regularity under which courts “presume that public officials have properly discharged their duties absent ‘clear evidence to the contrary,’” the Court rejected the Employer’s contentions that Griffin “merely rubberstamped” Solomon’s actions or that the timing was suspect because it came after the Employer raised the issue.

On the merits issues presented in Somerset I, the Court held that the Board did not abuse its discretion in overruling the Employer’s three election objections.  First, on the claim that the Union distributed an objectionable flyer during the election campaign, the Court, despite sharing concerns about the way the Union used employees’ statements and likenesses on the flyer, held that “whatever deceit worked by the union did not in the end undermine the election.”  Second, on the claim that the Union engaged in objectionable electioneering by calling and texting employees on the day of the election to remind them to vote, the Court held that “there is no evidence of such conduct while an employee was waiting in line to cast a ballot,” and that “employees were free to disregard the text messages and phone calls, which were delivered in isolation.”  Third, the Court concluded that the Employer’s claim that the use of a table-top voting booth at the election did not adequately protect voter privacy was merely speculative.

The Court held that the Board’s unfair labor practice findings in Somerset III were supported by substantial evidence and rejected the Employer’s arguments as meritless.  Specifically, the Court held that the Employer’s challenges to the Section 8(a)(5) and (1) findings that it impermissibly altered the scope of the unit by eliminating the LPN classification without the Union’s consent, and denied the Union access to the facility, were inadequate.  On the discriminatory discharge of the two LPNs, the Court agreed with the Board that the Employer’s union animus was “beyond question,” given the findings in Somerset II, and that the Board’s finding was further supported by the timing of the Employer’s decision to eliminate the LPNs and that the Employer’s purportedly legitimate reason for their discharge—the need to reposition its workforce in the face of an adverse state agency report—was not supported by the credited evidence.  Finally, the Court held that the Board did not abuse its discretion by ordering the LPN classification, and the two LPNs, reinstated.

The Court’s unpublished opinion is here.

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Administrative Law Judge Decisions

No Administrative Law Judge Decisions Issued.

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