Summary of NLRB Decisions for Week of December 30, 2019 - January 3, 2020
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. Louis Cardinals, LLC (14-CA-213219; 369 NLRB No. 3) St. Louis, MO, January 3, 2020.
The Board adopted the Administrative Law Judge’s conclusion that four employees did not lose the Act’s protection by acting in contravention of Section 8(b)(1)(B) by filing internal union charges against the Respondent’s foreman alleging that he violated union bylaws. The Board noted that Section 8(b)(1)(B) only applies to “a labor organization or its agents,” not rank-and-file union members who are neither officers nor agents of the union. The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by telling an employee that “there are consequences for actions,” referring to the filing of the internal union charges, because it implies that the employee would face negative repercussions because of his protected activity. Applying Wright Line, 251 NLRB 1083 (1980), the Board adopted the judge’s conclusion that the Respondent failed to show that it would have not recalled one of the four employees, even if he had not filed the internal union charges. However, because the judge did not analyze the credibility of the Respondent’s purported reasons for why it did not recall two of the other employees who filed the internal union charges, the Board decided to remand that issue to the judge for further analysis as to whether the Respondent showed that it would have not recalled them, even if they had not filed the internal union charges. As to a fourth employee whom the Respondent did recall, the Board reversed the judge to find that the Respondent did not unlawfully fail to recall him in a timely manner because the General Counsel did not make the threshold showing that the employee suffered any cognizable adverse action nor did the Respondent treat him any differently because he filed the internal union charges.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on October 17, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
No Unpublished R Cases Issued.
United States Postal Service (28-CA-230940) Albuquerque, NM, January 3, 2020.
No exceptions having been filed to the November 15, 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 Association of Letter Carriers, Sunshine Branch 504, affiliated with National Association of Letter Carriers, AFl-CIO.
West Fraser, Inc. (15-CA-234126, et al.) Leola, AR, January 3, 2020. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Charges filed by Carpenters Industrial Council, United Brotherhood of Carpenters. Chairman Ring and Members Kaplan and Emanuel participated.
Appellate Court Decisions
Constellium Rolled Products, Board Case No. 09-CA-116410 (reported at 366 NLRB No. 131) (D.C. Cir. decided December 31, 2019).
In a published opinion, the Court granted the petition for review filed by this operator of a rolled aluminum manufacturing facility in Ravenswood, West Virginia, where its production and maintenance employees are employed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Services Workers International Union, Local 5668. In doing so, the Court held that, although the Board’s findings were supported by substantial evidence and did not depart from precedent without explanation, in the Court’s view, the Board had not addressed a potential conflict between its interpretation of the NLRA and the Employer’s obligations under state and federal equal employment opportunity laws. Accordingly, the Court remanded the case to the Board for further proceedings consistent with the Court’s opinion.
The Board (Members Pearce and McFerran; Member Emanuel, dissenting) found that the Employer violated Section 8(a)(3) and (1) when it suspended and discharged an employee for writing “whore board” on two overtime signup sheets in protest of a new overtime system that had been unilaterally imposed by the Employer. The Board noted that the credited evidence demonstrated that employees began referring to the overtime signup sheets as “the whore board” as part of a widespread boycott of the overtime system, and that it was an expression that became commonplace at the facility as it was used by employees and supervisors alike. On that evidence, the Board concluded that the written notation on the overtime sheets was an expression of employees’ collective concern about the overtime system and part of a continuing course of protected activity about that term and condition of employment. The Board rejected the Employer’s argument that the writing was instead an unprotected act of vandalism to company property. Applying the factors of Atlantic Steel Co., 245 NLRB 814 (1979), the Board found that the writing was not so egregious as to cause the employee to lose the protection of the Act.
On review, the Court upheld the Board’s findings in all aspects, but also held that, although the Board’s decision acknowledged that the words written on the overtime sheets were harsh and arguably vulgar, “the Board did not so much as advert to the potential conflict it was arguably creating between the NLRA and state and federal equal employment opportunity laws.” The Court then remanded the case for the Board to address that issue in the first instance.
The Court’s opinion is here.
Administrative Law Judge Decisions
Arakelian Enterprises, Inc. d/b/a Athens Services (31-CA-223801, et al.; JD(SF)-45-19) Los Angeles, CA. Administrative Law Judge Jeffrey D. Wedekind issued his decision on December 30, 2019. Charges filed by Teamsters Local 396. Errata issued January 3, 2020. Errata Amended Decision
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