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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of July 19 - 23, 2021

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

Mid City Parking, Inc. (13-CA-257439; 371 NLRB No. 10) Chicago, IL, July 20, 2021.

The Board granted the Acting General Counsel’s motion seeking clarification of the Board’s remedial Order in Mid City Parking, Inc., 370 NLRB No. 105 (2021).  The Board modified the Order to require the Respondent to pay the Union’s Health and Welfare Fund, Pension Fund, and Legal and Educational Assistance Fund the amounts specified in the compliance specification plus any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213 (1979), and to bargain upon request with the Union over the effects of its decision to close.

Charge filed by Teamsters Local 727.  Members Kaplan, Emanuel, and Ring participated.

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United States Postal Service (07-CA-232299; 371 NLRB No. 7) Eaton Rapids, MI, July 21, 2021.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to timely provide the Union with requested information that was relevant and necessary for the Union’s participation in the Respondent’s investigative interview of an employee.  A majority (Members Emanuel and Ring; Chairman McFerran, dissenting), however, reversed the judge’s finding that the Respondent’s obligation to furnish that information began shortly after the request was made, and, instead, found that the Respondent was obligated to provide the information only after the conclusion of the investigation.  Contrary to her colleagues, Chairman McFerran would affirm the judge’s decision in its entirety by also finding that the Respondent had an obligation to provide the information before the investigative interview.

Charge filed by Central Michigan Area Local 300, American Postal Workers Union (APWU), AFL-CIO.  Administrative Law Judge Donna Dawson issued her decision on December 23, 2019.  Chairman McFerran and Members Emanuel and Ring participated.

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International Union of Operating Engineers, Local Union No. 150 a/w International Union of Operating Engineers, AFL–CIO (Lippert Components, Inc.) (25-CC-228342; 371 NLRB No. 8) South Bend, IN, July 21, 2021.

The Board affirmed the Administrative Law Judge’s conclusion that the Respondent Union did not violate Section 8(b)(4)(i) or (ii)(B) by displaying two large banners and a 12-foot inflatable rat near the entrance to a neutral site.  Concurring, Chairman McFerran expressed her belief that the outcome of this case was required by the Board’s decisions in Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB 797 (2010), and Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB 1290 (2011).  In their separate concurrence, Members Kaplan and Ring agreed that the complaint must be dismissed here because Supreme Court First Amendment precedent requires the Board to avoid interpreting the Act to find a violation on these facts.  They disagreed, however, with the reasoning of Eliason & Knuth and Brandon to the extent those decisions read the prohibitions of Section 8(b)(4) too narrowly.  Member Emanuel, dissenting, urged the overruling of Eliason & Knuth and Brandon and would have found the banner and rat display here to violate Section 8(b)(4)(ii)(B).

Charge filed by Lippert Components, Inc.  Administrative Law Judge Kimberly Sorg-Graves issued her decision on July 15, 2019.  Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.

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Stephens Media Group‒Watertown, LLC and Stephens Media Group‒Massena, LLC (03-CA-226225, et al.; 371 NLRB No. 11) Massena and Watertown, NY, July 22, 2021.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by making unilateral changes to unit employees’ terms and conditions of employment in the absence of a valid impasse, bypassing the Union, and dealing directly with bargaining unit employees.  The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by interrogating employees about their union activities.  A majority (Members Ring and Kaplan; Chairman McFerran, dissenting) allowed the Respondent to argue during compliance proceedings that the Board’s Order rescinding its unlawful unilateral changes posed an undue burden.  Dissenting, Chairman McFerran would not permit the Respondent to do so because the unilateral changes involved were not fundamental to its enterprise.

The majority also reversed the judge’s conclusion that the Respondent unlawfully refused to meet to bargain for employees at its Massena location, explaining that the Respondent met to bargain for both its Watertown, NY and Massena, NY locations concurrently.  During the limited timeframe alleged in the complaint, the parties met only once and the Respondent’s representative noted “Massena” bargaining on the sign-in sheet and asked if the Massena representative was present.  Dissenting, Chairman McFerran would have affirmed the judge and found that the Respondent’s repeated refusals to bargain separately for the Massena unit were not cured by its representative writing “Massena” on the sign-in sheet.

Finally, the Board unanimously reversed the judge and found that the Respondent did not unlawfully discharge an employee, a radio D.J. and union steward, because of his protected union activity of informing employees (incorrectly) that a supervisor was under investigation for sexual harassment of two employees.  Although the Respondent cited this activity in its discharge decision, the Board found that the Respondent would have discharged the employee in the absence of his union activity.  The Board rejected the General Counsel’s argument that the Respondent had tolerated similar misconduct by this employee in the past, explaining that in the month leading up to his discharge, the employee had engaged in increasingly severe and frequent misconduct, including sleeping during his radio show, failing to show up for promotional appearances, and misreporting his work hours.

Charges filed by National Association of Broadcast Employees and Technicians – Communications Workers of America, AFL-CIO.  Administrative Law Judge Charles J. Muhl issued his decision on January 24, 2020.  Chairman McFerran and Members Kaplan and Ring participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

Aramark Refreshment Services, LLC (22-CA-271930) Newark, NJ, July 20, 2021.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman McFerran and Members Kaplan and Ring participated.

United States Postal Service (12-CA-271703) Tallahassee, FL, July 21, 2021.  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 Acting General Counsel, and specified actions the Respondent must take to comply with the Act.  Charge filed by National Association of Letter Carriers, Branch 1172, AFL-CIO.  Chairman McFerran and Members Kaplan and Ring participated.

Medical Diagnostic Laboratories, Genesis (22-CA-250467) Newark, NJ, July 23, 2021.  No exceptions having been filed to the May 13, 2021 decision of Administrative Law Judge Kenneth W. Chu’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint.  Charge filed by District 119J, National Union of Hospital & Healthcare Employees, AFSCME, AFL-CIO.

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Appellate Court Decisions

Mondelez Global, LLC, Board Case No. 22-CA-174272 (reported at 369 NLRB No. 46) (7th Cir. decided July 21, 2021).

 

In a published opinion, the Court enforced the Board’s order that issued against this operator of a bakery production plant in Fair Lawn, New Jersey, where its production employees are represented by the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, Local 719, AFL-CIO.  In 2014, the Employer took over operations from Kraft Foods Global, Inc., and abided by the existing collective-bargaining agreement.  In 2016, while the parties were negotiating for a successor contract, the Employer engaged in a number of unfair labor practices.  Specifically, the Board (then-Chairman Ring and Members Kaplan and Emanuel) found that the Employer violated Section 8(a)(3) and (1) by suspending and discharging three vocal union activists for their union activity, and violated Section 8(a)(5) and (1) by unilaterally changing terms and conditions of employment, and by failing to furnish, or timely furnish, information to the Union.

In assessing the discriminatory discharges, the Board noted that Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019), had “clarified” the animus element of the Wright Line analysis, stating that unlawful motivation requires a sufficient causal connection between the protected activity and the adverse action.  On this record, the Board found that the causal connection was “amply” established.  Regarding the unilateral-change violations, the Board disavowed the Administrative Law Judge’s references to the “sound arguable basis” test, explaining that the standard applies only before expiration of the collective-bargaining agreement.  Here, it explained, where the contract had expired, the General Counsel instead must show that an Employer has made a “significant change [to a mandatory bargaining subject] without bargaining.”  Bath Iron Works Corp., 345 NLRB 499 (2005), enforced sub nom. Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007).  Applying that standard, the Board upheld the judge’s findings that the Employer had unilaterally eliminated the Union’s right to meet with new employees during orientations, modified work schedules, and lengthened the time required for employees to return to work after short-term disability leave.

In a comprehensive opinion, the Court held that the Board’s findings were supported by substantial evidence and consistent with law.  On the unlawful disciplines and discharges, the Court agreed with the Board that union animus was a motivating factor, and that animus was properly inferred from the timing and the pretextual nature of the Employer’s asserted justification for the adverse actions.  The Court rejected the Employer’s contentions, among others, that knowledge had not been established because the decision maker was unaware of the employees’ union activities, and that timing was insufficient to support the requisite causal link.  On the unilateral-change findings, the Court rejected the Employer’s arguments that they were either immaterial or permissible.  Finding no merit to the remaining contentions, the Court enforced the Board’s order in full.

The Court’s opinion is here.

T-Mobile USA, Inc., Board Case No. 14-CA-155249 (reported at 369 NLRB Nos. 50 and 90) (D.C. Cir. decided under the name Communications Workers of America v. NLRB, July 23, 2021).

In a published opinion, the Court granted the petitions for review filed by the Charging Party, the Communications Workers of America, AFL-CIO, that challenged two Board orders dismissing several allegations brought against this nationwide telecommunications business with a call center in Wichita, Kansas.  Relevant to the issues on review, the Board (then-Chairman Ring and Members Kaplan and Emanuel) dismissed allegations related to the Employer’s reprimand of an employee for using its email system at the Wichita facility to send union-related emails to coworkers under its existing workplace rules, and also dismissed allegations that the Employer unlawfully issued new rules in response to her email.  On review, the Court held that the dismissals were not supported by substantial evidence, and remanded the case to the Board for further proceedings.

In the first decision under review (369 NLRB No. 50), the Board applied Caesars Entertainment, 368 NLRB No. 143 (2019), and found, contrary to the Administrative Law Judge, that the Employer did not discriminatorily enforce its written policies when it reprimanded the employee for sending her union-related emails.  In so finding, the Board stated that the record showed that the Employer had never broadly permitted its employees to send mass emails for their personal benefit, or for the benefit of an outside organization, or in favor of a specific union or against union activity.  Instead, the Board noted, the only comparator emails in the record “were, by and large, emails that [the employer] sent for its own business-related interests of improving camaraderie”—including mass emails regarding topics such as “free popcorn and hockey tickets, nacho day in the cafeteria, upcoming salsa and lip-syncing contests, deaths in employees’ families, condolence cards, baby showers, and birth announcements.”  The Board found those emails dissimilar to the employee’s mass emails encouraging support for the Union, and thus that the Employer’s reprimand of the employee was not discriminatory on the basis of their union-related content.

However, the Board noted that because the judge had applied its prior rule articulated in Purple Communications, Inc., 361 NLRB 1050 (2014), which Caesars overruled, the parties had not had an opportunity to address Caesars’s exception for employees who would otherwise be deprived of any reasonable means of communicating with co-workers.  The Board then remanded that issue to the judge, and severed and retained for later consideration the allegations that the Employer violated Section 8(a)(1) by promulgating and maintaining new rules in response to the employee’s union-related emails.

After remand, the Board issued its supplemental decision (369 NLRB No. 90).  Finding no record evidence that employees lacked other reasonable means of communication, the Board found that the Caesars exception did not apply, and that the Employer had lawfully restricted the employee’s use of its email system.  Consequently, the Board also dismissed the allegations that the Employer unlawfully promulgated and maintained new workplace rules.  The Board explained that the rules were issued in response to the employee’s improper use of the email system, and that reasonable employees would therefore interpret the rules as restricting only that type of impermissible use, and not as restricting Section 7-protected activity.

On review, the Court reversed and remanded.  On the issue of discriminatory enforcement, the Court held that the Board improperly relied on “a post hoc line between permissible and impermissible conduct the employer had not itself established,” noting that the primary contemporaneous reason the Employer gave for reprimanding the employee was that she sent a mass email.  “Based on the evidence of disparate treatment of [the employee]’s email and related facts suggesting a singling out of the union,” the Court held that substantial evidence did not support the Board’s determination that the employee was “‘disciplined for a reason other than that she sent a union-related email,’” quoting Guard Publ’g Co. v. NLRB, 571 F.3d 53 (D.C. Cir. 2009), remanding in part Register Guard, 351 NLRB 1110 (2007).  Rather, the Court stated its view that the Board “sidestepped those facts only by relying on the type of post hoc distinction that we deemed impermissible in Guard Publishing.”  Having granted the Union’s petition on the discrimination issue, the Court further held that the workplace rules issued in response to the employee’s union-related emails were impermissibly promulgated in response to Section 7 activity.

The Court’s opinion is here.

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Administrative Law Judge Decisions

North Texas Investment Group d/b/a Whitehawk Worldwide (28-CA-265119, et al.; JD-39-21) El Paso, TX.  Administrative Law Judge Michael A. Rosas issued his decision on July 20, 2021.  Charges filed by an individual and International Union, Security, Police & Fire Professionals of America (SPFPA).

Gavilon Grain, LLC (25-CA-264907 and 25-CA-265798; JD-24-21) Maceo, KY, July 22, 2021. Errata to May 12, 2021 decision of Administrative Law Judge Geoffrey Carter.  Errata   Amended Decision.

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