Summary of NLRB Decisions for Week of March 16 - 20, 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
Baylor University Medical Center (16-CA-195335; 369 NLRB No. 43) Dallas, TX, March 16, 2020.
The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by merely offering departing employees separation agreements that included “No Participation in Claims” and “Confidentiality” provisions in exchange for severance pay and post-employment benefits to which they otherwise would not be entitled. As an initial matter, contrary to the judge, the Board found that the analysis set forth in Boeing Co., 365 NLRB No. 154 (2017), for assessing the lawfulness of work rules, did not apply in assessing whether the provisions were lawful. On the merits, the Board noted that the complaint did not allege that the Charging Party or anyone else offered the agreement was unlawfully discharged for conduct protected by the Act, or that the Respondent’s proffers were made under any circumstances that would tend to infringe on the separating employees’ exercise of their own Section 7 rights or those of coworkers. Accordingly, the Board found that the mere proffer of the agreements containing these provisions was lawful. For the same reasons, the Board adopted the judge’s conclusion that a third “Non-Disparagement” provision in the separation agreements was lawful. In reaching these conclusions, the Board overruled Clark Distribution Systems, 336 NLRB 747 (2001), to the extent it holds that it is invariably unlawful to offer employees a severance agreement that includes a non-assistance clause. Instead, the Board limited the holding of Clark to the fact pattern that case presents, where an employer offers such an agreement to one or more employees it has discharged in violation of the Act. The Board similarly limited the holdings in Metro Networks, 336 NLRB 63 (2001), and Shamrock Foods Co., 366 NLRB No. 117 (2018). The Board dismissed the complaint in its entirety.
Charge filed by an individual. Administrative Law Judge Robert A. Ringler issued his decision on February 12, 2018. Chairman Ring and Members Kaplan and Emanuel participated.
Atrium Hospitality LP d/b/a The Westin Southfield Detroit (07-CA-239682; 369 NLRB No. 44) Southfield, MI, March 18, 2020.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the reissued complaint following its noncompliance with an informal settlement agreement. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with relevant and necessary information that the Union requested, by unreasonably delaying in providing such information, and by unreasonably delaying in informing the Union that certain requested information did not exist.
Charge filed by Local 24, UNITE HERE!, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Law-Den Nursing Home, Inc. (07-CA-233610; 369 NLRB No. 45) Detroit, MI, March 17, 2020.
The Board granted the General Counsel’s Corrected Motion for Default Judgment based on the Respondent’s failure to file an answer to the compliance specification. Accordingly, the Board ordered the Respondent to make the unit employees whole by paying the backpay due as stated in the compliance specification.
Charge filed by SEIU Healthcare Michigan. Chairman Ring and Members Kaplan and Emanuel participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Charter Communications (Successor to Time Warner Cable of NYC) (02-RD-220036) Stamford. CT, March 19, 2020. The Board granted the Union’s Request for Review of the Regional Director’s Supplemental Decision on Challenges and Objections as it raised substantial issues warranting review. The Regional Director had overruled the Union’s challenges to the ballots cast by strike replacement employees and sustained the Employer’s and Petitioner’s challenges to the ballots of strikers. Specifically, the Board remanded several matters on voter-eligibility issues to the Regional Director for further proceedings consistent with the Board’s order, including a hearing, if warranted, and reinstated the Union’s Objection 6, directing the Regional Director to hold it in abeyance pending the resolution of the voter-eligibility challenges and, if necessary, to consider it in a post-election hearing along with several objections previously held in abeyance. Finally, in denying review of the Union’s contention that the Board should, solely for eligibility purposes, determine whether the strike was converted to an unfair labor practice strike, the Board noted that its denial was without prejudice to the Union raising the issue again if the Union does not ultimately prevail in the election. Petitioner—an Individual. Union—Local Union No. 3, International Brotherhood of Electrical Workers. Chairman Ring and Members Kaplan and Emanuel participated.
International Association of Heat and Frost Insulators and Asbestos Workers, (HFIA) AFL-CIO, Local Union No. 50 (Alloyd Insulation Co., Inc.; Advanced Energy Protection, LLC; and Pedersen Insulation Co.) (09-CB-239346, 25-CB-239416 and 09-CB-240443) Columbus, OH and Greenwood, IN, March 16, 2020. The Board denied the Respondent’s Motion for Summary Judgment, finding that the Respondent has failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charges filed by Alloyd Insulation Co., Inc.; Advanced Energy Protection, LLC; and Pedersen Insulation Co. Chairman Ring and Members Kaplan and Emanuel participated.
Stein, Inc. (09-CA-215131, et al.) Middletown, OH, March 17, 2020. The Board denied the Respondent’s Motion for Reconsideration, Rehearing, or Reopening the Record for a portion of the Board’s Decision and Order, reported at 369 NLRB No. 10 (2020). The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration, rehearing, or reopening the record. The Board found that it permissibly relied on the facts pled in the complaint to find an employee’s discharge unlawful based on a rationale different from the one advanced by the General Counsel or adopted by the judge. Charges filed by Laborers’ International Union of North America (LIUNA), Local 534 and International Union of Operating Engineers (IUOE), Local 18. Chairman Ring and Members Kaplan and Emanuel participated.
Ohio North East Health Systems, Inc. d/b/a One Health Ohio (08-CA-230542, et al.) Youngstown, OH, March 17, 2020. The Board denied the Respondent’s Partial Motion to Dismiss the Complaint, both as untimely filed and on the merits. The Board found that the Respondent has not demonstrated that the complaint fails to state a claim upon which relief can be granted and that it was entitled to judgment as a matter of law. Charges filed by individuals. Chairman Ring and Members Kaplan and Emanuel participated.
Papa John’s International, Inc.; P.J. Minnesota, LLC; Papa John's USA, Inc. (10-CA-203499 and 18-CA-197952) Covington, GA and St. Paul, MN, March 19, 2020. The Board denied the Respondents’ Motion to Dismiss the Complaints on the ground that the Respondents have not demonstrated that the consolidated complaints fail to state a claim upon which relief can be granted and that they are entitled to judgment as a matter of law. In addition, to the extent the Respondents’ motion can be viewed as seeking summary judgment, the Board found that the Respondents failed to establish that there are no genuine issues of material fact warranting a hearing and that they are entitled to judgment as a matter of law. Charges filed by individuals. Chairman Ring and Members Kaplan and Emanuel participated.
Appellate Court Decisions
Denton County Electric Cooperative, Inc. d/b/a Coserv Electric, Board No. 16-CA-149330 (reported at 366 NLRB No. 103) (5th Cir. decided March 18, 2020).
In a published opinion, the Court enforced in part the Board’s order issued against this electric utility based in Corinth, Texas, and granted in part the Employer’s petition for review. In doing so, the Court upheld the Board’s determination that unfair labor practices tainted a decertification petition under Master Slack Corp., 271 NLRB 78 (1984), and that, as a result, the Employer’s withdrawal of recognition violated Section 8(a)(5) and (1). While enforcing with regard to the remaining uncontested violations, the Court vacated the affirmative bargaining order and notice-reading remedy contained in the Board’s order.
In July 2012, an election was held and the Employer’s linemen and other technicians chose to be represented by the International Brotherhood of Electrical Workers, Local 220. Without success, the parties bargained for a first contract for 15 sessions. In October 2013, the Board conducted a decertification election on the basis of an employee petition, and the Union again prevailed. Subsequently, the Employer suspended its usual annual wage-rate increases and blamed the Union for the lack of raises. After the Union filed charges, the parties reached a settlement in early November 2014, which required the Employer to implement wage increases in accord with its prior annually prescribed method, to pay backpay to certain employees, and to post a remedial notice. Later that month, 28 of the 32 unit employees signed a second decertification petition. When the Employer received the petition, it withdrew recognition from the Union. Thereafter, the Employer altered its method of compensating employees and refused to provide the Union with information.
The Board (Members Pearce and McFerran; Chairman Ring, dissenting in part) found that the Employer violated Section 8(a)(5) and (1) by unilaterally changing its past practice of increasing employees’ wage ranges annually, and violated Section 8(a)(1) by blaming the Union for employees’ lack of raises. Although the Board found those actions unlawful, it did not impose liability for that conduct because the Employer had previously settled those allegations. Rather, the Board evaluated the settled conduct only for its effect on the second decertification petition and the withdrawal of recognition. The Board concluded that the conduct tainted the decertification petition such that the Employer could not rely on it to establish that the Union had lost majority support, and that therefore its withdrawal of recognition was unlawful. Further, the Board found that the post-withdrawal changes to employee compensation and the refusal to provide information violated Section 8(a)(5) and (1). Among other remedies, the Board issued an affirmative bargaining order and a notice-reading remedy.
On review, the Court held that the Employer waived any challenge to the Board’s findings that it unlawfully withheld annual wage raises and blamed the Union for the lack of raises because the Employer failed to adequately brief those issues in its opening brief to the court. With regard to the Board’s finding that the second decertification petition was tainted by those unfair labor practices, the Court reviewed the Board’s analysis under each of the four factors of the Board’s Master Slack test and determined that substantial evidence supported the Board’s finding of taint. For instance, on timing, the Court noted that the violations were ongoing throughout the 7 to 11 months between the first denial of raises and the circulation of the second petition, a period not long enough to dissipate the effects of the unfair labor practices. On the nature of the violations and their tendency to coerce, the Court noted that wage increases are a “bread-and-butter” issue, and that the sudden “swing” toward disaffection from the Union could reasonably be relied on in finding a tendency to coerce. Finally, the Court concluded that, on this record, the Board reasonably found that the unfair labor practices influenced employee morale and membership in the Union.
The Court, however, vacated two portions of the Board’s remedial order. First, it found that the Board had failed to make the findings necessary to support an affirmative bargaining order under Fifth Circuit law. Second, in vacating the Board’s notice-reading remedy, the Court agreed with the Employer’s contentions that the remedy was inappropriate on this record because the Employer was not a repeat violator and because its conduct did not create an atmosphere of fear.
The Court’s opinion is here.
Dish Network Corporation, Board No. 16-CA-173719 (reported at 366 NLRB No. 119) (5th Cir. decided March 20, 2020).
In a published opinion, the Court granted the petition for review filed by this satellite television provider that challenged portions of the Board’s order issued against it and enforced the Board’s order with regard to the uncontested violations. This case involves unfair labor practice allegations that arose after employees at offices in Farmers Branch and North Richland Hills, Texas, selected representation by Communications Workers of America, AFL-CIO, in a 2011 election.
The Board (Members Pearce, Kaplan, and Emanuel), in the absence of exceptions, adopted the Administrative Law Judge’s findings that the Employer violated Section 8(a)(1) by telling employees that “the Union is gone,” threatening employees with adverse consequences if they engaged in union activities, and creating the impression of surveillance, and violated Section 8(a)(5) and (1) by unilaterally changing its disciplinary policy and discharging an employee. Further, the Board majority (Member Emanuel, dissenting) found that the parties, while negotiating for a first contract, had not reached a genuine, good-faith impasse, so that the Employer’s subsequent unilateral implementation of new contract terms violated Section 8(a)(5) and (1). The Board majority also found that the Employer independently violated Section 8(a)(5) and (1) by conditioning bargaining on the Union holding a ratification vote. Finally, the Board found that the Employer violated Section 8(a)(3) and (1) by constructively discharging 17 employees who left to find other work after the Employer unilaterally implemented its final offer.
On the key issue on appeal, the Court agreed with the Employer that a lawful impasse in contract negotiations had been reached, and that therefore the Board’s findings that it violated Section 8(a)(5) and (1) by making unilateral changes were unsupported. Specifically, the Court held the Board’s finding of unlawful impasse rested on its acceptance of a factual error made by the Administrative Law Judge whom, the Court stated, misread the rates of employee attrition that were important to the parties’ negotiations prior to the Employer’s declaration of impasse. The Court stated that the Board’s finding on impasse “flows straight from the ALJ’s misreading of the record,” and that thereafter “the Board’s decision simply didn’t address the mistake the ALJ made or any of [the employer]’s arguments on that point.” The Court enforced the remainder of the Board’s order.
The Court’s opinion is here.
Administrative Law Judge Decisions
Cascades Containerboard Packaging – Niagara, a Division of Cascades Holding US Inc. (03-CA-242367, et al.; JD-11-20) Niagara Falls, NY. Administrative Law Judge Paul Bogus issued his decision on March 17, 2020. Charges filed by International Association of Machinists and Aerospace Workers, District Lodge 65, AFL-CIO.
Errands Plus Inc. d/b/a RMA Worldwide Chauffeured Transport (05-CA-230586; JD-12-20) Baltimore, MD. Administrative Law Judge Arthur J. Amchan issued his decision on March 17, 2020. Charge filed by Teamsters Local Union 570 a/w the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Dignity Health d/b/a Mercy Gilbert Medical Center (28-CA-229160 and 28-CA-238137; JD(SF)-09-20) Gilbert, AZ. Administrative Law Judge Ariel Sotolongo issued his decision on March 19, 2020. Charges filed by Service Employees International Union-United Healthcare Workers West.
Alameda Center for Rehabilitation and Healthcare, Inc. (22-CA-180564 and 22-CA-188462; JD(NY)-02-20) Perth Amboy, NJ. Administrative Law Judge Benjamin W. Green issued his decision on March 20, 2020. Charges filed by 1199 Service Employees International Union, United Healthcare Workers East, New Jersey.
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