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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of August 29 - September 2, 2022

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

Tesla, Inc.  (32-CA-197020, et al.; 371 NLRB No. 131)  Fremont, CA, August 29, 2022.

The full Board (Chairman McFerran and Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) reaffirmed that, consistent with Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), and decades of Board and court precedent, when an employer interferes in any way with employees’ Section 7 right to display union insignia (whether through buttons, pins, stickers, shirts, hats, or any other accessories or attire), that interference is presumptively unlawful, and the employer has the burden to establish special circumstances that justify its interference.  Consequently, the majority found that, consistent with Stabilus, Inc., 355 NLRB 836 (2010), the Republic Aviation special circumstances test applies to workplace rules or policies that restrict the display of union insignia by requiring employees to wear uniforms or other designated clothing, thereby implicitly prohibiting employees from substituting union attire for the required uniform or clothing.  The Board majority overruled the Board’s decision in Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019)—which applied the standard set forth in Boeing Co., 365 NLRB No. 154 (2017), to employer policies limiting the size and appearance of union buttons and insignia and arguably required application of the Boeing standard, rather than the Republic Aviation special circumstances test, to any employer policy that only partially restricts the display of union insignia.

Applying the above principles to the facts of the present case, the Board majority found that the Respondent’s team-wear policy interferes with its production associates’ Section 7 right to display union insignia because it allows them to wear only black team-wear shirts with the Respondent’s logo—or on occasion, with their supervisor’s permission, all-black shirts—and thus prohibits them from wearing union shirts in place of the required team wear or other approved shirts.  Therefore, the team-wear policy was presumptively unlawful, and the Respondent had the burden to establish special circumstances that justify its interference with the production associates’ right to display union insignia.  The majority found that the Respondent failed to establish special circumstances based on its claim that the team-wear policy is intended to lower the risk of employees’ clothing causing mutilations to unfinished vehicles and to aid in the visual management of the General Assembly department.  Accordingly, the majority adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining the team-wear policy.

Dissenting, Members Kaplan and Ring would have held that facially neutral, nondiscriminatory employer dress codes that provide a meaningful opportunity to display union insignia are lawful to maintain, and that employers therefore do not have to establish special circumstances to justify such policies, even if they limit the ways that union insignia may be displayed.  They would have found that the Respondent lawfully maintained its team-wear policy and lawfully enforced it against production associates wearing shirts bearing union insignia in place of the required team wear because the team-wear policy is facially neutral and nondiscriminatory and does not deny production associates meaningful opportunities to display union insignia, as they may affix union stickers to the required team wear.

Charges filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL–CIO and individuals.  Administrative Law Judge Amita Baman Tracy issued her decision on September 27, 2019.  Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty participated.

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National Nurses Organizing Committee-Texas/National Nurses United (Bay Area Healthcare Group, Ltd. d/b/a Corpus Christi Medical Center, an indirect subsidiary of HCA Holdings, Inc.)  (16-CB-225123; 371 NLRB No. 132)  Corpus Christi, TX, August 30, 2022.

The Board (Chairman McFerran and Member Wilcox; Member Ring, dissenting) adopted the Administrative Law Judge’s dismissal of allegations that the Union violated Section 8(b)(1)(A) by refusing to disclose the “neutrality agreement” with the Employer’s holding company to a bargaining-unit employee.  The majority (Chairman McFerran and Member Wilcox) held that the General Counsel failed to prove that the requested agreement affected any term and condition of employment for bargaining-unit employees. The majority also rejected, the General Counsel’s argument that the Board should require unions to disclose “neutrality agreements” to bargaining-unit employees unless there was a compelling reason not to do so.  Dissenting, Member Ring  would urge that the Board adopt a rebuttable presumption that “pre-recognition agreements” affect bargaining-unit employees’ terms and conditions of employment.  He argued that such an approach should be applied retroactively and that the case accordingly be remanded to the Administrative Law Judge for further proceedings.

Charge filed by an individual.  Administrative Law Judge Keltner W. Locke issued his decision on June 24, 2020.  Chairman McFerran and Members Ring and Wilcox participated.

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Vision Battery USA, Inc.  (16-CA-271723; 371 NLRB No. 133)  Plano, TX, August 30, 2022.

The Board adopted the Administrative Law Judge’s dismissal of an allegation that the Respondent violated Section 8(a)(1) by discharging an employee.  A Board majority consisting of Members Kaplan and Wilcox adopted the judge’s dismissal of allegations that the Respondent violated Section 8(a)(1) by interrogating an employee and directing a former employee not to communicate with the Respondent’s current employees.  Dissenting in part, Member Prouty would have found the interrogation and directive unlawful.

Charge filed by an individual.  Administrative Law Judge Andrew S. Gollin issued his decision on November 17, 2021.  Members Kaplan, Wilcox, and Prouty participated.

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Ohio River Valley Environmental Coalition, Inc.  (09-CA-274743, et al.; 371 NLRB No. 135)  Huntington, WV, August 31, 2022.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging one employee and discharging a second employee based on their union and protected concerted activity.  The Board also rejected the Respondent’s claim that make-whole relief should be limited based on the terms of an alleged agreement it reached with the Region in Section 10(j) proceedings.

Charges filed by OVEC Union a/w the Industrial Workers of the World and individuals.  Administrative Law Judge Paul Bogas issued his decision on March 11, 2022.  Members Kaplan, Wilcox, and Prouty participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Nectar Markets, LLC  (19-RC-293303)  Portland. OR, August 31 2022.  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.  In denying review, the Board observed that the Petitioner had not challenged the merits of the Reginal Director’s analysis under existing precedent, and had argued solely that the Board should revisit the presumptive appropriateness of a single-facility unit.  Petitioner—United Food and Commercial Workers, Local 555.  Chairman McFerran and Members Kaplan and Wilcox participated.

Jacmar Food Service Distribution  (21-RD-287238)  Industry, CA, September 1, 2022.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order as it raised no substantial issues warranting review.  Member Kaplan would have granted review and remanded in order to determine whether, prior to a ratification vote, the Union presented the employees with a final and complete collective-bargaining agreement.  Petitioner—an individual.  Union—Food, Industrial & Beverage Warehouse, Drivers and Clerical Employees, International Brotherhood of Teamsters Local 630.  Chairman McFerran and Members Kaplan and Wilcox participated.

C Cases

Envision Physician Services, LLC, Arizona Em-I Medical Services, P.C., and Tucson Medical Center, Joint Employers, and Integrative Emergency Services, LLC, and IES Arizona, PLLC, Successors to Envision Physician Services, LLC and Arizona EM-I Medical Services, PC, and Joint Employers with Tucson Medical Center  (28-CA-284862)  Tucson, AZ, August 30, 2022.  The Board denied the Respondents’ Motion to Dismiss three paragraphs of the complaint, finding that the Respondents had failed to demonstrate that there were no genuine issues of material fact warranting a hearing and that they were entitled to judgment as a matter of law.  Charge filed by an individual.  Chairman McFerran and Members Wilcox and Prouty participated.

High Altitude Dental LLC  (28-CA-242115)  Albuquerque, NM, September 1, 2022.  In this case alleging Section 8(a)(1) and (4) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the Acting General Counsel, and specified actions the Respondent must take to comply with the Act.  Charge filed by an individual.  Chairman McFerran and Members Kaplan and Wilcox participated.

United States Postal Service  (13-CA-281488, et al.)  Elks Grove Village, IL, September 1, 2022.  In this case alleging Section 8(a)(5) and (1) violations, 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.  Charges filed by American Postal Workers Union, Northwest Illinois Area Local 7140.  Chairman McFerran and Members Kaplan and Wilcox participated.

DirecTV, LLC  (19-CA-279701)  Kennewick, WA, September 2, 2022.  No exceptions having been filed to the July 22, 2022 decision of Administrative Law Judge Eleanor Laws’ 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 Brotherhood of Electrical Workers Local 89.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Good Samaritan Hospital  (31-CA-282566; JD(SF)-22-22)  Los Angeles, CA.  Administrative Law Judge Gerald M. Etchingham issued his decision on August 30, 2022.  Charge filed by California Nurses Association.

Tecnocap LLC  (06-CA-265111, et al.; JD-52-22)  Glen Dale, WV.  Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on August 30, 2022.  Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC.

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