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
Greyhound Lines, Inc. (08-CA-181769; 367 NLRB No. 123) Cleveland, OH, May 6, 2019. The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) when it discharged a chief union steward for his union-related activity of confronting a manager with an employee’s workplace complaints. Applying the four-factor test set forth in Atlantic Steel, 245 NLRB 814 (1979), the Board adopted the judge’s conclusion that the steward did not engage in misconduct during the confrontation that caused him to lose the protection of the Act. Although the steward used profanities and engaged in aggressive physical conduct, the Board found that the manager provoked the steward and the Respondent had tolerated such conduct in the past. Moreover, while a few employees and an unknown number of the Respondent’s customers were present for the confrontation, the record did not establish that it had any meaningful impact on the Respondent’s operations.
Charge filed by an individual. Administrative Law Judge Thomas M. Randazzo issued his decision on July 21, 2017. Chairman Ring and Members McFerran and Kaplan participated.
Merck, Sharp & Dohme Corp. (06-CA-163815, 05-CA-168541 and 22-CA-168483; 367 NLRB No. 122) Riverside, PA, May 7, 2019.
A Board majority (Chairman Ring and Member Emanuel; Member McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by offering a one-time paid holiday (i.e. “Appreciation Day”) to all its employees with the exception of employees in the U.S. covered by a collective-bargaining agreement lacking that benefit (“covered employees”). The majority found that the General Counsel failed to show that the Respondent’s refusal to offer the benefit was motivated by unlawful animus, relying on Sun Transport, 340 NLRB 70 (2003). The majority also reversed the judge’s conclusion that a statement made by the Riverside Plant Manager explaining Merck’s rationale for refusing to offer the Appreciation Day independently violated Section 8(a)(1).
Dissenting, Member McFerran found that the Respondent acted in “pure retaliation” for the Unions’ prior protected conduct in denying the Appreciation Day to the covered employees, as evidenced by the Respondent’s own admission. Member McFerran distinguished the majority’s reliance on Sun Transport, noting that the parties were engaged in ongoing collective bargaining in that case. Finally, she would find that the Plant Manager’s statements independently violated Section 8(a)(1).
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Locals 4–575 and 10–580, AFL–CIO, CLC and the International Chemical Workers Council of the United Food and Commercial Workers International Union, AFL–CIO. Administrative Law Judge David I. Goldman issued his decision on December 20, 2016. Chairman Ring and Members McFerran and Emanuel participated.
Didlake, Inc. (05-RC-179494; 367 NLRB No. 125) Arlington, VA, May 10, 2019.
A Board majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting) granted the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Direction of Second Election as it raised substantial issues regarding two objections alleging that the Employer, through two of its managers, improperly threatened employees with discharge if the Petitioner “prevailed in the election and imposed a union security requirement on the bargaining unit.” The majority, contrary to the Regional Director, held that the Employer’s statements were mere misrepresentations regarding the Petitioner’s ability to compel membership or enforce payment of dues that did not rise to the level of objectionable conduct. The majority emphasized that the statements were conditional and based on the Employer’s prior experience with the Petitioner. Accordingly, the Board reversed the Decision and Direction of Second Election, vacated the results of the second election and the certification of representative, overruled the Petitioner’s objections, and certified the results of the first election (in which the Employer prevailed). Also, Chairman Ring and Member Kaplan noted that the Board’s 2014 Election Rule greatly increased the number of requests for review pending before the Board after a regional director’s issuance of a certification of representative obligated an employer requesting review to bargain immediately upon demand, and stated their belief that this state of affairs warrants reconsideration in a future rulemaking.
Dissenting, Member McFerran would have denied the Employer’s Request for Review on all counts, agreeing with the Regional Director that the statements at issue were not simply misstatements of law, but were also coercive because they conveyed that if employees chose the Petitioner, the Employer certainly would require them to join the Petitioner and pay dues or be fired. Member McFerran emphasized that, although the Employer described other changes as uncertain or conditioned on the results of collective bargaining, the Employer stated that it was “know[n] for sure” union membership would be compulsory to remain employed. Member McFerran also would have denied the Employer’s Motion to Stay the Certification of Representative.
Petitioner—Public Service Employees Local Union 572, affiliated with Laborers’ International Union of North America. Chairman Ring and Members McFerran and Kaplan participated.
H.W. Weidco/Ren LLC d/b/a South Jersey Extended Care (04-CA-213035; 367 NLRB No. 126) Bridgeton, NJ, May 10, 2019.
The Board (Members Kaplan and Emanuel; Member McFerran, dissenting) denied the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint, without prejudice to the General Counsel’s renewing his motion in the event that the complaint is amended and the Respondent again fails to file an answer. The Board majority determined that the complaint’s failure to allege that the Union is the exclusive bargaining representative of the unit employees, and that the employee at issue is a unit employee, precluded them from finding that the Respondent violated Section 8(a)(1) by denying the employee a Union representative. Member McFerran would have granted the motion, stating that the omitted allegations from the complaint are all implicit in the related allegations and established by a second amended charge; thus, the Respondent was not compromised in its ability to answer the complaint.
Charge filed by United Food and Commercial Workers Union Local 152. Members McFerran, Kaplan, and Emanuel participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Touro College Jacob D. Fuchsberg Law Center (29-RC-230262) Central Islip, NY, May 9, 2019. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. The Employer had filed an objection contending that a Board Agent’s conduct of staring at an employee with a “cold gaze” cast reasonable doubt as to the fairness and validity of the election, and the Regional Director had overruled the objection without a hearing. Petitioner—Consolidated Commercial Workers of America, Local 528. Members McFerran, Kaplan, and Emanuel participated.
No Unpublished C Cases Issued.
Appellate Court Decisions
Long Beach Memorial Medical Center d/b/a Long Beach MemorialCare Medical Center & MemorialCare Miller Children’s and Women’s Hospital Long Beach, Board Case No. 21-CA-157007 (reported at 366 NLRB No. 66) (D.C. Cir. decided May 10, 2019)
In an unpublished judgment, the Court enforced the Board’s order issued against this independent, non-profit subsidiary of Memorial Health Services that operates two hospitals in Long Beach, California, where it employs 6000 employees, including 2100 registered nurses represented by the California Nurses Association/National Nurses United. In doing so, the Court upheld findings by the Board (Members Pearce and McFerran; Member Emanuel, dissenting in part) that the Employer unlawfully maintained two overbroad rules prohibiting direct-care providers from wearing union-branded pins, badges, and badge reels in non-patient care areas in violation of Section 8(a)(1).
On review, the Court found no error in the Board’s application of the settled presumption, applicable to healthcare settings, that a blanket restriction on wearing union insignia in areas not devoted to immediate patient care is presumptively invalid, unless the employer establishes that the prohibition is necessary to avoid disruption of health-care operations or disturbance of patients. The Court noted that neither of the rules contained language restricting their application to patient-care areas. Moreover, the Court held that the Employer’s contentions that the pin rule only applied to patient-care areas, and that safety concerns justified the badge-reel rule, were not supported by the text of the rules. Further, the Court held that the Employer’s argument, first raised on appeal, that the case should have been governed by Boeing Co., 365 NLRB No. 154 (2017), was jurisdictionally barred from review under Section 10(e) of the Act. The Court noted that the Employer could have raised the issue to the Board while the case was pending on exceptions, or in a motion for reconsideration, but had not done so.
The Court’s judgment may be found here.
Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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