Summary of NLRB Decisions for Week of August 12 - 16, 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
Laborers’ International Union of North America, Local Union No. 91 (Scrufari Construction Co., Inc.) (03-CB-196682 and 03-CB-201412; 368 NLRB No. 40) Niagara Falls, NY, August 12, 2019.
In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(b)(1)(A) by threatening to bring internal union charges against an individual unit member if he contacted the NLRB, and by refusing to show him the hiring hall out-of-work list in retaliation for his protected concerted activity. Reversing the judge, the Board found that the Respondent also violated Section 8(b)(1)(A) by refusing to refer the individual from the out-of-work list because of his brother’s protected criticism of union leadership and by reducing its members’ access to the out-of-work list in retaliation for the individual’s protected activity. Additionally, the Board adopted the judge’s finding that Respondent did not violate Section 8(b)(1)(A) by pursuing internal union charges and sanctions against the individual.
Charges filed by an individual. Administrative Law Judge David I. Goldman issued his decision on December 11, 2017. Chairman Ring and Members Kaplan and Emanuel participated.
Shamrock Cartage, Inc. (09-CA-204232, et al.; 368 NLRB No. 42) Groveport and Obetz, OH, August 13, 2019.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with the terms of the parties’ informal settlement agreement. The complaints alleged Section 8(a)(5), (3), and (1) violations. The Board ordered a full remedy for the violations found.
Charges filed by International Brotherhood of Teamsters (IBT), Local Union No. 413. Chairman Ring and Members Kaplan and Emanuel participated.
Cordúa Restaurants, Inc. (16-CA-160901, et al.; 368 NLRB No. 43) Houston, TX, August 14, 2019.
In this supplemental decision, the Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by discharging an employee for engaging in protected concerted activity and by maintaining a no-solicitation rule. The Board also adopted the judge’s dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) by discharging a second employee, and the Board reversed the judge’s finding that the Respondent violated Section 8(a)(1) by discharging a third employee. The Board severed the allegations that the Respondent violated Section 8(a)(1) by maintaining additional rules and issued a Notice to Show Cause why those allegations should not be remanded to a judge for further consideration in light of Boeing Co., 365 NLRB No. 154 (2017).
Considering two important issues of first impression following the Supreme Court’s decision Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), a full Board majority consisting of Chairman Ring and Members Kaplan and Emanuel held that the Act does not prohibit employers from promulgating mandatory arbitration agreements in response to employees opting in to collective action or from threatening employees with discharge for failing to sign mandatory arbitration agreements. Therefore, the majority reversed the judge’s findings that the Respondent violated Section 8(a)(1) by promulgating a revised arbitration agreement in response to employees opting in to a collective action and by its statements to employees who expressed concerns about the agreement. Dissenting, Member McFerran would have affirmed the judge’s conclusions that the Respondent violated Section 8(a)(1) by promulgating a revised arbitration agreement in response to employees’ protected concerted activity and by threatening employees with reprisals for raising concerns regarding the agreement.
Charges filed by individuals. Administrative Law Judge Sharon Levinson Steckler issued her decision on December 9, 2016. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
Richfield Hospitality, Inc. as Managing Agent for Kahler Hotels, LLC (18-CA-151245; 368 NLRB No. 44) Rochester, MN, August 15, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by refusing to meet and bargain with the Union, failing to provide or unreasonably delaying in providing information regarding the Respondent’s costs for the Union’s health proposal and for its vacation proposal, and discontinuing the longevity pay increases in the expired collective-bargaining agreement.
A Board majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting) reversed the judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by making pay proposals via confusing pie charts and by failing to adequately explain the status of tips in its pay proposal for banquet servers. The majority acknowledged that making proposals in this manner may have been confusing, but it was unable to conclude that the pay proposals submitted in this form rose to the level of wage proposals that the Board has considered to be “a sham” calculated to impede negotiations in violation of Section 8(a)(5). Dissenting, Member McFerran reasoned that the Respondent presented more than 2500 pages of misleading pie charts as wage proposals and a proposal for banquet servers that cut their compensation and left to the Respondent’s sole discretion whether they would receive a share of the service charge for any given event. She further noted that the pie charts were not only confusing, but also contained numerous errors and inconsistencies. A different Board majority (Members McFerran and Kaplan; Chairman Ring, dissenting) adopted the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing to sufficiently explain its union leave proposal, noting that the Respondent’s only argument in its exceptions was that its proposal was a minor change from the union leave provision in the expired collective-bargaining agreement. Dissenting, Chairman Ring found that, while a failure to explain a bargaining proposal may, in some circumstances, be evidence of bad-faith bargaining, he would not find that it amounts, by itself, to an unfair labor practice.
The Board also unanimously adopted the judge’s conclusions that the Respondent violated Section 8(a)(1) by telling an employee that no raises will be given because no contract exists and by telling an employee that she had not received a raise because there was no contract and because the Union would not agree to a “fair offer.” In addition, the Board found that the Respondent violated Section 8(a)(3) by disciplining an employee, noting that the Respondent failed to timely raise its defense that a grievance resolution resolved the matter. Finally, the Board found that the Respondent violated Section 8(a)(3) by refusing to assign additional work hours as a bartender to another individual.
Charge filed by UNITE HERE International Union Local 21. Judge Sharon L. Steckler issued her decision on May 27, 2016. Chairman Ring and Members McFerran and Kaplan participated.
Bud’s Woodfire Oven LLC d/b/a Ava’s Pizzeria (05-CA-194577; 368 NLRB No. 45) St. Michaels, MD, August 16, 2019.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(1) by discharging an employee because of his actions during an employee meeting. In doing so, the Board found that the judge’s conclusion that the employee had not engaged in protected concerted activity when he criticized a manager at the meeting was consistent with Alstate Maintenance, 367 NLRB No. 68 (2019). In addition, the Board adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that employees reasonably would believe bars or restricts the right to file charges with, and obtain remedies from, the Board. The Board noted that the Respondent’s exceptions did not challenge the judge’s findings regarding the lawfulness of the arbitration agreement and rejected the Respondent’s arbitration-deferral arguments, raised for the first time in exceptions, as untimely. The Board did not pass on whether the Respondent’s maintenance of the arbitration agreement also violated Section 8(a)(4).
Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on May 18, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
No Unpublished R Cases Issued.
No Unpublished C Cases Issued.
Appellate Court Decisions
Marathon Petroleum Co., d/b/a Catlettsburg Refining, LLC, Board Case No. 09-CA-162710 (reported at 366 NLRB No. 125) (6th Cir. decided August 16, 2019).
In an unpublished opinion, the Court granted the Petition for Review filed by this refiner and retailer of transportation fuels that operates a crude-oil refinery in Catlettsburg, Kentucky, where its maintenance and operations employees are represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, and its Local 8-719. The Board (Chairman Ring and Members Pearce and McFerran) found that the Employer violated Section 8(a)(5) and (1) by refusing to provide the Union with certain information it requested regarding the cost of subcontracting that was relevant to the Union’s bargaining duties. In doing so, the Board declined to address the Employer’s argument that it had no duty to bargain over the subcontracting, indicating that the Employer had not preserved the argument before the Administrative Law Judge. On review, the Court viewed the matter differently, and found that the argument had been adequately preserved. The Court therefore remanded the case to the Board to address whether the Employer had a duty to bargain over the subcontracting and thus whether its refusal to provide the information violated that duty.
The Court’s opinion is here.
Advanced Masonry Associates, LLC d/b/a Advanced Masonry Systems, Board Case Nos. 12-CA-176715 and 12-CA-221114 (reported at 366 NLRB No. 57, and 366 NLRB No. 164) (11th Cir. decided August 16, 2019).
In an unpublished opinion, the Court enforced two Board orders, consolidated for decision, that issued against this commercial-construction subcontractor that provides masonry services at jobsites throughout Florida. The first order (366 NLRB No. 57) remedies unfair labor practices committed by the Employer in the weeks leading up to a May 2016 election conducted by mail ballot in which its masons voted to be represented by the Bricklayers and Allied Craftworks Local 8 Southeast. The second order (366 NLRB No. 164) remedies the Employer’s refusal to bargain with the Union after the Board overruled the Employer’s ballot challenges and certified the Union.
The Board (then-Chairman Kaplan and Members Pearce and McFerran) found that, prior to the election, the Employer violated Section 8(a)(1) when its safety director threatened that the masons’ wages would decrease if the Union won the election. The Board also found that the Employer violated Section 8(a)(3) and (1) by suspending and discharging two employees, and by more strictly enforcing its fall-protection policy against them. Once the election was held, the tally of ballots showed a vote of 16 to 16, with 22 challenged ballots. Thereafter, the Regional Director ordered an investigation and an Administrative Law Judge held a hearing on the challenges and other issues.
On review, the Board, among other findings, overruled 9 of the Employer’s 22 ballot challenges. After those ballots were opened and counted, the revised tally of ballots showed that the Union won the election, 25 to 16. After the Union was certified, the Employer refused to bargain in order to test the certification and filed Petitions for Review of both Board orders. Before the Court, the parties filed briefs in the two proceedings, but the Court granted the Board’s Motion to Consolidate the cases for oral argument.
In its opinion resolving both cases, the Court held that the Board’s findings were supported by substantial evidence, rejected numerous challenges to the judge’s credibility determinations, and upheld the Board’s overruling the Employer’s ballot challenges. On the discharges, the Court held that the Board reasonably inferred an unlawful motive in the Employer’s decision to fire one employee, who was an open union supporter, and his jobsite partner, only eight days before the election. In doing so, the Court rejected the contention that the Board had given timing too much weight in finding the violation. Further, the Court held that the Board, in finding animus, properly relied on evidence of disparate treatment, the unlawful threat that wages would be reduced if the Union won the election, as well as two changes in past practice—the safety director’s consultation with senior managers before the discharges, and the Employer’s imposition of a zero-tolerance policy for fall-protection policy violations. The Court also rejected the Employer’s contention that the discharge of the employee who himself was not a union member nor known union supporter demonstrated that the policy had not been discriminatorily applied on the basis of union activity. Rather, the Court explained, the Board reasonably found that the jobsite partner of the union activist was fired as “collateral damage” and “as part of an effort to camouflage the discriminatory discharge of a known union activist.” Lastly, the Court upheld the Board’s determination that the Employer had failed to show that it would have taken the same adverse actions against the employees absent the union activity.
The Court’s unpublished opinion is here.
Administrative Law Judge Decisions
The Susan B. Allen Memorial Hospital (14-CA-233000 and 14-CA-233898; JD-63-19) El Dorado, KS. Administrative Law Judge Arthur J. Amchan issued his decision on August 15, 2019. Charges filed by individuals.
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