Summary of NLRB Decisions for Week of August 19 - 23, 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
St. Luke’s Hospital (01-RC-230363; 368 NLRB No. 49) New Bedford, MA, August 19, 2019.
The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. Chairman Ring and Member Kaplan noted that they would be open to reconsidering Midland National Life Insurance Co., 263 NLRB 127 (1982), in a future appropriate case. The Acting Regional Director overruled the Employer’s exception alleging that an individual voted fraudulently under an employee’s name. The Acting Regional Director further concluded that, contrary to the Employer’s exceptions, the Petitioner did not engage in objectionable misconduct by creating, distributing, and posting a campaign flyer containing the signatures of approximately 400 employees, which the Petitioner scanned from authorization cards authorizing the Petitioner to use their signature on a public petition. Petitioner—Massachusetts Nurses Association. Chairman Ring and Members McFerran and Kaplan participated.
Sheet Metal Workers Local Union 85 (The Logistics Company, Inc.) (10-CB-179895; 368 NLRB No. 50) Columbus, GA, August 22, 2019.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(b)(1)(A) and (2) by attempting to cause and causing the Employer to discharge an employee. The Board rejected the Respondent’s contention that it tolled its backpay liability by sending the Employer and the discriminatee written notices stating that the Respondent did not object to the discriminatee’s reinstatement.
Charge filed by an individual. Administrative Law Judge Donna N. Dawson issued her decision on May 24, 2018. Chairman Ring and Members McFerran and Kaplan participated.
PG Publishing Co., Inc. d/b/a Pittsburgh Post-Gazette (06-CA-212627, et al.; 368 NLRB No. 41) Pittsburgh, PA, August 22, 2019.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to make healthcare insurance contribution increases not specified in its separate extended or expired collective-bargaining agreements with seven different unions. The Board found that the Respondent had no contractual or statutory duty to continue the contribution increases, which were explicitly limited to two specific years.
Charges filed by seven different unions. Administrative Law Judge David I. Goldman issued his decision on October 16, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts (16-CA-193636; 368 NLRB No. 46) San Antonio, TX, August 23, 2019.
A Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by barring the off-duty employees of an onsite contractor from leafleting on its property. The majority overruled New York New York Hotel & Casino, 356 NLRB 907 (2011), and determined that contractor employees are not generally entitled to the same Section 7 access rights as the property owner’s own employees. The majority adopted a new standard, which it will apply retroactively to all pending cases, holding that a property owner may exclude from its property off-duty employees of an onsite contractor seeking access to the property to engage in Section 7 activity unless (i) those employees work both regularly and exclusively on the property, and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message, which could include the use of adjacent public property, newspapers, radio, television, billboards, and social media.
The majority relied on the principles articulated in the Supreme Court’s opinion in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The Court held that, when Section 7 rights conflict with a property owner’s property rights, an accommodation between the two “must be obtained with as little destruction of one as is consistent with the maintenance of the other” and that the “nature and strength” of the respective Section 7 rights must be balanced against the private property rights of the property owner. Most importantly to this case, the Court also labeled the distinction between the union activities of employees versus those of nonemployees as one “of substance.” The majority held that this distinction “of substance” necessitates that, although off-duty employees of an onsite contractor enjoy some Section 7 access rights, they are weaker than those of the property owner’s own employees and the extent to which their Section 7 rights permit infringing upon private property rights is inherently more restricted. Thus, the majority’s new standard properly accommodates the competing rights at issue: off-duty, onsite contractor employees may access a property owner’s property to engage in Section 7 activity where they have a sufficient connection to the property owner by working regularly and exclusively on the property, and the contractor employees do not have access to reasonable alternative nontrespassory means of communicating their message.
Dissenting, Member McFerran would have applied New York New York Hotel & Casino and found that the Respondent violated Section 8(a)(1) by barring access to employees whose leafleting occurred in a public area and caused no interference with patrons. She asserted that the majority’s new access standard failed to heed the D.C. Circuit’s admonition to determine access rights by weighing the concrete interests of contractor employees, which include their core right to leaflet at their own workplace, and those of property owners, which are preserved via their ability to control the conduct of leafleting employees and prevent disruption. Instead, she argued, the majority wrongly applied a distinction between the rights of employees and nonemployees that arose in a context involving nonemployee organizers rather than employees asserting their own rights at their own workplace. She also pointed out that the majority’s new standard, despite the claim that contractor employees have some rights, places a property owner’s right to exclude above employees’ rights in all but the rarest circumstances, arbitrarily excluding employees who do not work exclusively on a property – even when the property is their primary workplace – and requiring most employees to have to resort to infeasible methods to communicate their message rather than leaflet at their workplace.
Charge filed by Local 23, American Federation of Musicians. Administrative Law Judge Arthur J. Amchan issued his decision on December 5, 2017. Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.
NP Red Rock, LLC d/b/a Red Rock Casino Resort & Spa (28-CA-242302; 368 NLRB No. 52) Las Vegas, NV, August 23, 2019.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union and by failing and refusing to furnish the Union with requested information that was relevant and necessary to the Union’s performance of its duties as the exclusive collective bargaining representative of the unit.
Charge filed by International Union of Operating Engineers Local 501, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
No Unpublished R Cases Issued.
Guthrie Theater (18-CA-215022) Minneapolis, MN, August 19, 2019. No exceptions having been filed to the July 5, 2019 decision of Administrative Law Judge Melissa M. Olivero’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by International Alliance of Theatrical Stage Employees, Local 13.
Janus of Santa Cruz (32-CA-226320) Santa Cruz, CA, August 23, 2019. No exceptions having been filed to the July 12, 2019 decision of Administrative Law Judge Gerald M. Etchingham’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by National Union of Healthcare Workers.
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
Administrative Law Judge Decisions
Dura-Line Corporation, a subsidiary of Mexichem (09-CA-163289, et al.; JD-64-19) Middlesboro, KY. Administrative Law Judge Melissa M. Olivero issued her supplemental decision on August 20, 2019. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC, Local 14300-12.
American Medical Response West (20-CA-234200; JD(SF)-26-19) San Francisco, CA. Administrative Law Judge John T. Giannopoulos issued his decision on August 21, 2019. Charge filed by United EMS Workers, AFSCME Local 4911.
Mountain View Care and Rehabilitation Center, LLC (04-CA-235894 and 04-CA-238216; JD-66-19) Scranton, PA. Administrative Law Judge Robert A. Giannasi issued his decision on August 23, 2019. Charges filed by Retail, Wholesale, and Department Store Union.
Northstar Memorial Group, LLC d/b/a Skylawn Funeral Home, Crematory and Memorial Park (20-CA-227245 and 20-CA-229015; JD-65-19) San Mateo, CA. Administrative Law Judge Sharon Levinson Steckler issued her decision on August 23, 2019. Charges filed by Cemetery Workers, Golf Courses and Green Attendants, SEIU Local 265.
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