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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of July 20 - 24, 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

General Motors LLC  (14-CA-197985 and 14-CA-208242; 369 NLRB No. 127)  Kansas City, KS, July 21, 2020.

The Board announced it will apply its Wright Line burden-shifting framework to cases involving abusive conduct in connection with activity protected by Section 7 of the Act.  Under prior precedent, the Board would apply different setting-specific standards to determine whether abusive conduct during Section 7 activity, such as profane ad hominem attacks or sexually or racially offensive speech, was severe enough to lose the Act’s protection.  The Board had applied the four-factor Atlantic Steel test to workplace conversations with management, a totality of the circumstances approach to social media posts and workplace discussions among coworkers, and the reasonably tend to coerce or intimidate standard of Clear Pine Mouldings to picket-line conduct.  The Board concluded these standards produced inequitable, unreliable results that were in tension with antidiscrimination laws and departed from the Board’s mission.

Instead, the Board newly recognized that abusive conduct is separable from the connected Section 7 activity.  The Board reasoned that, where it is in dispute whether discipline was motivated by Section 7 activity or by the abusive conduct, causation is at issue and Wright Line is the proper causation test.  Under Wright Line, the General Counsel has the initial burden to show that the Section 7 activity was a motivating factor for the discipline, and, if he does, the burden shifts to the employer to prove it would have issued the same discipline even in the absence of Section 7 activity.  Consequently, as was not always true under the prior setting-specific standards, an employer may lawfully discipline an employee for abusive conduct if it is unmotivated by Section 7 activity or if it would have issued the same discipline even in the absence of Section 7 activity.

 The Board determined that it will retroactively apply Wright Line to cases presenting these issues, and the Board remanded this case to the Administrative Law Judge for consideration under Wright Line.

Charges filed by an individual.  Administrative Law Judge Donna N. Dawson issued her decision on September 18, 2018.  Chairman Ring and Members Kaplan and Emanuel participated.

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TDY Industries, LLC d/b/a ATI Specialty Alloys and Components, Millersburg Operations  (19-CA-227649 and 19-CA-227650; 369 NLRB No. 128)  Albany, OR, July 22, 2020.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to provide relevant information relating to death benefits requested by the Union, but found it unnecessary to pass on the judge’s separate finding that the Respondent unlawfully failed to provide information regarding the last 30 employees to pass away because it would not affect the remedy.  In addition, the Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unlawfully delaying in furnishing information relating to the qualifications of a newly-hired unit employee.

Charges filed by the United Steelworkers of America, Local 6163.  Administrative Law Judge Eleanor Laws issued her decision on September 25, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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Cellco Partnership d/b/a Verizon Wireless  (21-CA-075867, et al.; 369 NLRB No. 130)  Basking Ridge, NJ, July 22, 2020.

In a supplemental decision, the Board dismissed the complaint allegations that the Respondent violated Section 8(a)(1) by maintaining two work rules restricting nonbusiness use of the employer’s IT systems.  The Board applied the standard announced in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), that an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.  Because no party contended in response to the Board’s previously-issued Notice to Show Cause that the exception applied and no record evidence supported it, the Board held that a remand would serve no purpose and dismissed the allegations.

Charges filed by Communications Workers of America District 9, AFL-CIO; Communications Workers of America, AFL-CIO.  Administrative Law Judge William Nelson Cates issued his decision on July 25, 2014.  Chairman Ring and Members Kaplan and Emanuel participated.

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Cellco Partnership d/b/a Verizon Wireless  (28-CA-145221; 369 NLRB No. 131)  Nationwide, July 22, 2020.

On remand from the Ninth Circuit Court, the Board dismissed the complaint allegations that the Respondent violated Section 8(a)(1) by maintaining two handbook rules in its 2014 and 2015 Codes of Conduct relating to use of the Respondent’s IT systems.  The Board applied the standard announced in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), that an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.  The Board noted that there was no indication in the record that the Respondent’s employees did not have access to other reasonable means of communication, and that, in response to a Notice to Show Cause, no party contended that the Respondent’s IT systems furnished the only reasonable means for employees to communicate with one another.

Charge filed by an individual.  Administrative Law Judge Mary Miller Cracraft issued her decision on September 18, 2015.  Chairman Ring and Members Kaplan and Emanuel participated.

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Hobby Lobby Stores, Inc.  (20-CA-139745; 369 NLRB No. 129)  Sacramento, CA, July 24, 2020.

On remand from the Seventh Circuit Court, the Board dismissed the allegation that the Respondent violated Section 8(a)(1) by maintaining its Mandatory Arbitration Agreement.  The Board found that a reasonable employee would interpret the savings clause, which preserves the right to file charges with federal administrative agencies, to permit the filing of unfair labor practice charges.

Charge filed by The Committee to Preserve the Religious Right to Organize.  Administrative Law Judge Eleanor Laws issued her decision on September 8, 2015.  Chairman Ring and Members Kaplan and Emanuel participated.

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GC Services Limited Partnership, a limited partnership, and GC Financial Corp., general partner  (28-CA-166389; 369 NLRB No. 133)  Houston, TX, July 24, 2020.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining and requiring employees to sign the Mutual Agreement for Dispute Resolution (MADR).  Members Kaplan and Emanuel reasoned that the MADR is unlawful because it expressly interferes with employees’ Section 7 right to file charges with the Board and otherwise access its processes.  Chairman Ring agreed with his colleagues that the MADR is unlawful, but he would find the violation under The Boeing Co., 365 NLRB No. 154 (2017) framework (and would place the MADR in Boeing Category 3), not on the basis that the MADR explicitly restricts Board charge filing.  Members Kaplan and Emanuel stated that, even assuming that the Boeing framework applies to the MADR, they would find the MADR unlawful and place it in Boeing Category 3.

Charge filed by an individual.  Administrative Law Judge Eleanor Laws issued her decision on March 19, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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Motor City Pawn Brokers Inc., The Aubrey Group Inc., and Aubrey Brothers, LLC, a single employer  (07-CA-179458 and 07-CA-179461; 369 NLRB No. 132)  Detroit, MI, July 24, 2020.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by maintaining work rules that provide for mandatory arbitration that interfere with employees’ rights to file charges and access the Board, indemnity provisions requiring employees to advance and pay costs of enforcing the unlawful mandatory arbitration rules, rules restricting association with and solicitation of other employees, and by requiring that Employee Handbooks be kept confidential.  The Board also adopted the judge’s conclusion that the Respondent unlawfully discharged four employees for failing to sign documents agreeing to be bound by the unlawful rules.

The Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining rules that restrict disclosure of confidential information, rules that prohibit or encourage certain behaviors which promote a civil work environment, rules prohibiting disparaging the Respondent through communication, dealings, and off-duty conduct with customers and the public, and rules limiting the use of the Internet and social media.

The Board severed the allegation concerning a rule prohibiting employees from sending personal email on the Respondent’s equipment and issued a Notice to Show Cause why that allegation should not be remanded to the judge for further proceedings consistent with the Board’s decision in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019).

Charges filed by individuals.  Administrative Law Judge Elizabeth M. Tafe issued her decision on October 22, 2018.  Chairman Ring and Members Kaplan and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

City of Hope National Medical Center  (21-UC-249611)  Duarte, CA, July 20, 2020.  The Board denied the Intervenor’s Request for Review of the Regional Director’s Corrected Decision and Order Clarifying Unit as it raised no substantial issues warranting review.  Union—United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied-Industrial & Service Workers International Union, AFL-CIO/CLC.  Intervenor—Service Employees International Union—United Healthcare Workers West.  Chairman Ring and Members Kaplan and Emanuel participated.

Mountaire Farms, Inc.  (05-RD-256888)  Shelbyville, DE, July 21, 2020.  The Board denied the Union’s Motion for Reconsideration of the Board’s July 7, 2020 Notice and Invitation to File Briefs as the Union had not demonstrated extraordinary circumstances warranting reconsideration.  The denial was without prejudice to the Union’s ability to raise the same issues in its brief responding to the Notice and Invitation to File Briefs.  Petitioner—an individual.  Union—United Food and Commercial Workers Union, Local 27, a/w United Food and Commercial Workers International Union, AFL-CIO.  Chairman Ring and Members Kaplan and Emanuel participated.

Nevada Gold Mines, LLC  (32-RM-255914)  Carlin, NV, July 23, 2020.  The Board denied the Employer-Petitioner’s Request for Review of the Acting Regional Director’s administrative dismissal of the petition as it raised no substantial issues warranting review.  Union—International Union of Operating Engineers, Local 3.  Chairman Ring and Members Kaplan and Emanuel participated.

C Cases

Geodis Logistics, LLC  (15-CA-218543, et al.)  Memphis, TN, July 21, 2020.  The Board granted the Respondent’s Request for Special Permission to Appeal the Regional Director’s Order and also granted the appeal on the merits.  The Board found that the Regional Director abused her discretion in revoking the parties’ informal settlement agreement where there was no evidence that the settlement agreement had been breached or that the Union had entered the informal settlement based on a misrepresentation made by the Respondent.  Charges filed by United Steelworkers Union.  Chairman Ring and Members Kaplan and Emanuel participated.

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Appellate Court Decisions

AdvancePierre Foods, Inc., Board No. 09-CA-153966 (reported at 366 NLRB No. 133) (D.C. Cir. decided July 24, 2020).

In a published opinion, the Court enforced the Board’s order issued against this operator of a food processing and packaging plant in Cincinnati, Ohio, for numerous unfair labor practices committed during an organizing campaign among the plant’s 600 hourly workers conducted in 2015 by United Food and Commercial Workers Union, Local 75.  Specifically, the Board (Members Pearce and McFerran; Member Emanuel, dissenting in part) found that the Employer committed multiple violations of Section 8(a)(1) and (3).  Among other violations, the Board found that the Employer unlawfully announced a total prohibition on employee solicitation and distribution, rifled through employee clipboards in search of union cards and confiscated them, and indefinitely suspended a high-profile union supporter.  Further, the Board found that the Employer unlawfully disciplined four other union supporters and implemented an unprecedented grievance-solicitation program in response to union activity.  Given those serious and wide-ranging violations, the Board found it appropriate to issue a notice-reading remedy to ameliorate the effects of the unlawful conduct and to assure the employees of their rights.

Before the Court, the only contested unfair-labor-practice was the Board’s finding that the Employer violated Section 8(a)(1) by soliciting employees to revoke their signed union authorization cards.  On that issue, the Board found the violation based on record evidence demonstrating that—in the context of the “perilous atmosphere” created by numerous contemporaneous unfair labor practices—the Employer’s repeated revocation statements amounted to unlawful solicitations that reasonably would tend to coerce employees in deciding whether to rescind their union support.  Those revocation statements included repeatedly advising employees on how they could revoke their union authorizations cards, including during anti-union meetings led by supervisors, and through the dissemination of instructional flyers accompanied by pre-printed revocation letters pre-addressed to the Union.  On review, the Court held that the Board’s finding was supported by substantial evidence, and rejected the Employer’s contention that there was no “perilous atmosphere” within the meaning of Mohawk Industries, 334 NLRB 1170 (2001), in which the Board held that an employer’s speech otherwise protected under Section 8(c) can constitute unlawful coercion if it occurs within a “perilous atmosphere” created by contemporaneous unfair labor practices.

On the Board’s remedies, the Employer challenged the imposition of a notice-reading requirement.  The Court, however, had “no trouble” concluding that the Board did not abuse its “extremely broad” discretion in determining that the unfair labor practices were sufficiently serious and widespread to warrant the remedy.  Finding the remaining argument jurisdictionally barred from review because it was not presented to the Board, the Court enforced the Board’s order in full.

The Court’s opinion is here.

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Administrative Law Judge Decisions

No Administrative Law Judges Decisions Issued.

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