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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of March 15 - 19, 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

Tacoma Baking Company, Inc.  (19-CA-258566, et al.; 370 NLRB No. 95)  Tacoma, WA, March 16, 2021.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the consolidated complaint.  The Board found that the Respondent violated Section 8(a)(1) by various discharges, threats, and restrictions on its employees’ right to discuss wages, hours, or other terms and conditions of employment.

Charges filed by individuals.  Chairman McFerran and Members Kaplan and Ring participated.

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Art to Frames, Inc.  (29-CA-266298; 370 NLRB No. 96)  Brooklyn, NY, March 16, 2021.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(1) by laying off and then refusing to reinstate employees because they engaged in protected concerted activities and to discourage employees from engaging in such activities.

Charge filed by Catholic Migration Services.  Chairman McFerran and Members Emanuel and Ring participated.

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Dish Network, LLC  (27-CA-158916; 370 NLRB No. 97)  Englewood, CO, March 18, 2021.

On remand from the Fifth Circuit Court, the Board unanimously found that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement (Agreement) that restricts employees’ right to file charges with the Board and by maintaining a requirement in the Agreement that settlements be kept confidential.  Applying California Commerce Club, Inc., 369 NLRB No. 106 (2020), a Board majority (Members Kaplan and Ring) found the Agreement’s confidentiality requirement lawful to the extent it mandates that arbitration proceedings, including hearings, discovery, and awards, be kept confidential.  Dissenting, Chairman McFerran argued that California Commerce Club was wrongly decided.  Chairman McFerran would have found that the Agreement’s confidentiality provision violates the Act because it interferes with employees’ right to discuss their terms and conditions of employment and is not shielded by the Federal Arbitration Agreement.  In addition, Chairman McFerran would have found that the Agreement’s confidentiality provision unlawfully interferes with employees’ access to the Board.

Charge filed by an individual.  Chairman McFerran and Members Kaplan and Ring participated.

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FAA Concord T, Inc., d/b/a Concord Toyota  (32-CA-264162; 370 NLRB No. 98)  Concord, CA, March 19, 2021.

The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the basis 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.

Charge filed by Machinists Automotive Trades District Lodge No. 190, Machinists Local 1173.  Chairman McFerran and Members Kaplan and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

FreshPoint Southern California, Inc.  (28-RC-252613)  Las Vegas, NV, March 15, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision as it raised no substantial issues warranting review.  In denying review, the Board agreed with the Regional Director that the unit is an employer-wide unit and that the Employer did not rebut the presumptive appropriateness of the unit.  Petitioner—International Brotherhood of Teamsters, Local 630.  Members Kaplan, Emanuel, and Ring participated.

Detrex Corporation  (08-RC-269611)  Ashtabula, OH, March 16, 2021.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Board found that the direction of a mail-ballot election as a result of the COVID-19 pandemic was consistent with the guidelines set forth in Aspirus Keweenaw, 370 NLRB No. 45 (2020).  The Board also rejected the Employer’s claim that the Acting Regional Director improperly delayed making her determination.  Chairman McFerran agreed to deny review for the reasons given in her separate opinion in Aspirus, but also agreed that, even under the majority’s opinion there, the Acting Regional Director’s determination should be affirmed.  Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC.  Chairman McFerran and Members Kaplan and Ring participated.

Tartine JV Holdings, LLC  (20-RC-256091)  San Francisco, CA, March 19, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Petitioner’s Exceptions to Certain Findings in the Hearing Officer’s Report as it raised no substantial issues warranting review.  The Board noted that, because the Employer did not raise to the Regional Director any arguments concerning two specified employees, those arguments were not properly before the Board.  Petitioner—International Longshore & Warehouse Union.  Chairman McFerran and Members Kaplan and Ring participated.

C Cases

No Unpublished C Cases Issued.

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Appellate Court Decisions

American Security Programs, Inc., Board No. 05-CA-211315 (reported at 368 NLRB No. 151) (D.C. Cir. decided March 19, 2021).

In an unpublished judgment, the Court enforced the Board’s order issued against this provider of security services to the federal government at locations throughout the Washington, D.C. area, under contracts with the Federal Protective Service.  In 2016, security personnel working for the Employer at certain locations in D.C. had grown dissatisfied with their prior Union representation and they formed a new labor organization to represent themselves.  Applying the factors of Taft Broadcasting Co., 163 NLRB 475 (1967), the Board (Chairman Ring and Members McFerran and Kaplan) found that, during negotiations with the new Union for its initial contract, the Employer violated Section 8(a)(5) and (1) by unilaterally implementing its last offer in the absence of a valid bargaining impasse.  The Board found that the parties had not exhausted all avenues of reaching agreement, and that the Employer’s “final offer” contained very different and regressive proposals on multiple noneconomic issues on which the parties had previously reached agreement.

On review, the Court held that the Board reasonably concluded that the parties were not at impasse at the time the Employer implemented the offer because the prospects of reaching an agreement had not yet been exhausted.  In upholding the Board’s determination that there was no genuine good-faith impasse, the Court also relied on Board precedent holding that no genuine impasse exists where, shortly before declaring impasse, the Employer makes an offer so different from proposals then on the table that further bargaining is required before impasse can be reached.

The Court’s judgment may be found here.

Transdev Services, Inc., Board No. 05-CA-195364 (reported at 368 NLRB No. 121) (8th Cir. decided March 16, 2021).

In a published opinion, the Court enforced the Board’s bargaining order that issued against this contractor that operates certain paratransit van services as part of the Metropolitan Washington Area Transit Authority, after a unit of its “road supervisors” voted in a July 2016 election to be represented by the Amalgamated Transit Union, Local 689.  In doing so, the Court upheld the Board’s determination that the employees were not supervisors within the meaning of Section 2(11) of the Act.

In the underlying representation proceeding, after the Union petitioned to represent the road supervisors, the Employer claimed that they were statutory supervisors on the bases that they discipline or effectively recommend the discipline of van operators, responsibly direct them, and reward them.  After a hearing, the Regional Director issued a decision finding that the road supervisors had the authority to discipline and effectively recommend discipline, and dismissed the petition.  The Union filed a Request for Review, which was granted by the Board (Chairman Pearce and Member Hirozawa; Member Johnson, dissenting).  After briefing, the Board (Chairman Pearce and Member Hirozawa; Member Miscimarra, dissenting) reversed the Regional Director’s decision, and found that the Employer failed to carry its burden of proof.  The Board cited the lack of record support for the existence of a progressive disciplinary policy or what role, if any, incident reports that the road supervisors could issue to van operators played in their discipline.  The Board also noted that higher management independently investigated the reports, and that, on the whole, the Employer’s evidence was “too vague, limited and conflicting.”  Accordingly, the Board remanded the case to the Regional Director to conduct the election, after which the Union was certified.  The Employer then refused to bargain in order to seek court review.

On review, the Court issued a comprehensive decision that entailed a careful review of the law and record evidence, and rejected the Employer’s claims that the Board erred in not finding that the road supervisors were statutory supervisors on the bases that they discipline or effectively recommend the discipline of van operators.  On all points, the Court held that the Board’s determination was supported by substantial evidence.  The Court similarly rejected the Employer’s arguments that the road supervisors reward or responsibly direct the operators.  Lastly, the Court summarily found meritless the Employer’s various assertions that the Board’s decision was unreasonable, inconsistent with the Act, the product of ad-hoc decision-making reflecting a pro-union bias, and arbitrary and capricious in violation of the Administrative Procedure Act, and explained:  “We view these arguments as merely different articulations of the argument that the Board’s decision was not supported by substantial evidence.”

The Court’s decision is here.

Lowes Home Centers, LLC, Board No. 19-CA-191665 (reported at 368 NLRB No. 133) (5th Cir. decided March 15, 2021).

In an unpublished opinion, the Court enforced the Board’s order issued against this seller of home-improvement goods in retail stores throughout the United States.  The Board (then-Chairman Ring and Members McFerran and Kaplan) found that Lowes violated Section 8(a)(1) by maintaining nationwide confidentiality rules that restricted employees from discussing salary information.  Specifically, its code of business conduct and ethics contained confidentiality rules that applied broadly to all employees and prohibited the disclosure of confidential information, which was defined as including salary information.  Applying the framework of The Boeing Company, 365 NLRB No. 154 (2017), the Board noted that “any rule prohibiting employees from discussing salary information [is] per se unlawful,” and that although employers have a legitimate interest in preventing unauthorized distribution of confidential records, “such circumstances [were] not present in this case.”  This was particularly true here, the Board stated, where the rule “was directed to all employees and not just those given access to [the employer’s] confidential records.”

On review, the Court agreed with the Board’s application of Boeing, and found no error in the Board’s analysis.  The Court explained that the policy “falls within the Category 3 rules contemplated by Boeing because the policy can be reasonably construed to limit employees’ [discussion of] wages.”  Rejecting the Employer’s asserted need for confidentiality, the Court held that the policy was “too broad to be justified by Lowe’s interest in preventing employees from sharing confidential information.”

The Court’s opinion is here.

PCC Structurals, Inc., Board No. 19-CA-207792 (reported at 368 NLRB No. 122) (D.C. Cir. decided March 16, 2021).

In an unpublished judgment issued in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this manufacturer of metal castings for aviation, medical, and other industries, with operations in the Portland, Oregon area, after a unit of its welders voted 54 to 38 in a September 2017 election to be represented by International Association of Machinists and Aerospace Workers, Local Lodge 63.  In doing so, the Court held that the Board did not abuse its discretion in determining that the petitioned-for unit of welders constituted an appropriate unit for purposes of collective bargaining.

In the underlying representation proceeding, after the Union filed a petition seeking to represent the unit of welders, the Employer challenged the unit as inappropriate, arguing that the smallest appropriate unit was a “wall to wall” unit of all 2,565 production and maintenance employees in over 100 job classifications.  After a hearing, the Regional Director found the petitioned-for unit appropriate under the Board’s then-controlling standard in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), and directed an election.  The Employer filed a Request for Review, as well as a Request to Stay the Election pending the Board’s decision; the Board denied the request for a stay.  After the election was held, and the Regional Director certified the Union, the Board granted review and overturned Specialty Healthcare in PCC Structurals, Inc., 365 NLRB No. 160 (2017).  The Board then remanded the case to the Regional Director for reconsideration.  After a hearing, the Regional Director issued a supplemental decision finding the unit appropriate on two bases—that the unit’s community of interest was sufficiently distinct from the excluded employees, and that the welders constituted an appropriate unit of skilled craft workers.  The Employer requested review, which the Board denied, with one two-member majority finding the unit appropriate because the welders shared a sufficiently distinct community of interest, while a different two-member majority found the unit appropriate as a craft unit.  Thereafter, the Employer refused to bargain in order to seek court review.

The Court held that the Regional Director’s decision was adequately reasoned and rejected the Employer’s challenges to the unit determination.  The Court noted that in seeking to contest the two bases for the Board’s unit determination, the Employer failed to demonstrate that the findings were not supported by substantial evidence.  As to the craft-unit holding, the Court also rejected the Employer’s contentions that the Board relied on inapposite cases, and that it was deprived of due process because it received no notice that the craft-unit test would be applied.  Noting the evidentiary overlap of the two tests, the Court held that the Employer “cannot show that any lack of notice was prejudicial, which is necessary to establish a due-process violation.”

The Court’s judgment may be found here.

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Administrative Law Judge Decisions

United States Postal Service  (14-CA-195011; JD-10-21)  Norman, OK.  Administrative Law Judge Melissa M. Olivero issued her Supplemental Decision on March 18, 2021.  Charge filed by an individual.

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