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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of March 29 - April 2, 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

Sunbelt Rentals, Inc.  (18-CA-236643, et al.; 370 NLRB No. 102)  Franksville, WI, March 29, 2021.

The Board found that the Employer violated: (1) Section 8(a)(1) by threatening employees that it would be futile to support the Union and interrogating employees about other employees’ union activities; (2) Section 8(a)(5) and (1) by failing to meet at reasonable times for negotiations, refusing to bargain over wages until all noneconomic issues were resolved, engaging in surface bargaining with no intention of reaching agreement, and failing to bargain over its decision to eliminate the bargaining unit; and (3) Section 8(a)(3) and (1) by reorganizing its facility and laying off remaining bargaining unit employees in response to union activity.  The Board also imposed various special remedies for the Employer’s pattern of serious misconduct.

Charges filed by International Union of Operating Engineers Local 139, AFL-CIO. Administrative Law Judge Michael A. Rosas issued his decision on May 13, 2020.  Chairman McFerran and Members Kaplan and Ring participated.

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International Longshore and Warehouse Union (Pacific Crane Maintenance Company, Inc.)  (32-CB-005932; 370 NLRB No. 104)  Oakland, CA, March 31, 2021.

In this compliance proceeding, the Board adopted the Administrative Law Judge’s recommended supplemental order requiring the Respondent to reimburse employees and former employees who joined the Respondent on or since March 31, 2005 for any initiation fees, periodic dues, assessments, or any other moneys it had collected from them as bargaining unit members during the period of unlawful recognition, all as specified in the second amended compliance specification.

Charge filed by International Association of Machinists & Aerospace Workers, AFL–CIO, District Lodge 190, Local Lodge 1546, and District Lodge 160.  Administrative Law Judge Eleanor Laws issued her supplemental decision on July 9, 2020.  Chairman McFerran and Members Kaplan and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Consolidated Networks Corporation  (31-RC-263768)  Fort Irwin, CA, April 1, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision to Adopt the Hearing Officer’s Recommendations and Issue Certification of Representative as it raised no substantial issues warranting review.  The Employer had requested review of the Regional Director’s finding that the Petitioner’s objection to an employee’s ballot should be sustained on the basis that he was ineligible to vote because he was not a regular part-time employee at the Employer’s Fort Irwin operations.  Petitioner—International Association of Machinists and Aerospace Workers, District Lodge 725.  Chairman McFerran and Members Kaplan and Ring participated.

C Cases

United States Postal Service  (16-CA-214840, et al.)  League City and Galveston, TX, March 30, 2021.  In this case alleging Section 8(a)(5) and (1) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Parties, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charges filed by National Association of Letter Carriers, Branch 283; National Association of Letter Carriers, Branch 23; and American Postal Workers Union, Local 185.  Chairman McFerran and Members Kaplan and Ring participated.

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Appellate Court Decisions

Constellation Brands, U.S. Operations, Inc. d/b/a Woodbridge Winery, Board Case No. 32-CA-186238 (reported at 367 NLRB No. 79) (7th Cir. decided March 30, 2021).

In a published opinion, the Court enforced the Board’s order issued against this winery in Acampo, California, for unfair labor practices committed while its test-of-certification case was pending in the Second Circuit.  In that case, the Employer sought review of the appropriateness of a unit of 46 employees in its outside cellar department after they voted in a February 2015 election to be represented by Cannery, Warehouse, Food Processors, Drivers & Helpers, Local Union No. 601, International Brotherhood of Teamsters.

Frustrated by the delay in obtaining their voted-for representation, the employees discussed among themselves the Employer’s refusal to bargain and its litigation attempting to invalidate the representation election.  One union organizer wrote on his vest “Cellar Lives Matter,” based on the then-prevalent news coverage of the Black Lives Matter movement.  After he wore the vest with that statement for two weeks without incident, he was called into a meeting with the general manager, who insisted that he stop wearing the vest with that union message.  On those facts, the Board (then-Chairman Ring and Members Kaplan and Emanuel) found that the Employer violated Section 8(a)(1) by prohibiting the employee from wearing the “Cellar Lives Matter” vest.  The Board also found that the Employer violated Section 8(a)(1) by maintaining a provision in its handbook suggesting that employees who are represented by a union are ineligible for its incentive bonus plan.

On review, the Court held that substantial evidence supported the Board’s findings.  The Court began with the “common recognition” that Section 7 protects an employee’s right to wear clothing bearing pro-union messages, and that an employer acts unlawfully when it curtails that right, citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), noting that such action is presumptively invalid, absent a showing that special circumstances justify banning union insignia.  The Court rejected the Employer’s arguments that prohibiting the employee from wearing the vest was justified, which among others, asserted that the slogan appealed to prejudice based on its reference to the Black Lives Matter movement.  On the handbook provision, the Court stated that it is unlawful for an Employer to suggest that employees who choose union representation will automatically be excluded from participation in a benefits plan, concluding that “the challenged handbook policy did just that.”

The Court’s decision is here.

Oncor Electric Delivery LLC, Board Case No. 16-CA-212174 (reported at 369 NLRB No. 40) (5th Cir. decided April 1, 2021).

In an unpublished opinion, the Court enforced in part, and denied in part, the Board’s order issued against this electric utility company with a facility in Dallas, Texas, where a bargaining unit of 600 employees is represented by the International Brotherhood of Electrical Workers, Local Union No. 69.  Included in the unit are “Troublemen,” who are the first responders charged with assessing damage to power lines in the aftermath of a storm.  The Board (then-Chairman Ring and Members Kaplan and Emanuel) found that the Employer violated Section 8(a)(5) and (1) by failing to comply with several requests by the Union for information related to processing grievances that alleged that the Employer violated the collective-bargaining agreement by using non-unit employees to perform bargaining-unit work.  Specifically, the grievances centered on the Employer’s assignment of “storm evaluation work” to non-unit workers, which the Union claimed led to the loss of unit hours and raised safety risks when inexperienced, non-unit workers were sent to respond first to power outages.

Before the Court, the Employer primarily disputed the requirement of the Board’s order that it turn over the names of the non-unit workers.  On that issue, the Court held that the names of the non-unit workers had “no obvious relevance” to the loss of unit hours or the alleged risk to unit employees.  Further, the Court stated that, in its view, the Union had not established relevance.  Accordingly, the Court reversed to the extent that the requests for information required the Employer to identify the non-unit workers by name, but otherwise enforced the Board’s order, while noting several issues for compliance.

The Court’s opinion is here.

RadNet Management, Inc., Board Case No. 21-CA-242665 (reported at 368 NLRB No. 53), RadNet Management, Inc., Board Case No. 21-CA-242660 (reported at 368 NLRB No. 55), RadNet Management, Inc., Board Case No. 21-CA-242668 (reported at 368 NLRB No. 56), RadNet Management, Inc., Board Case No. 21-CA-242697 (reported at 368 NLRB No. 57), RadNet Management, Inc., Board Case No. 21-CA-243181 (reported at 368 NLRB No. 58), and RadNet Management, Inc. d/b/a La Mirada Imaging, Board Case No. 21-CA-242664 (reported at 368 NLRB No. 89) (D.C. Cir. decided in a single opinion, April 2, 2021).

In a published opinion, the Court enforced the Board’s bargaining orders in six test-of-certification cases that were consolidated for briefing and decision.  The bargaining orders were issued against RadNet Management, Inc., a provider of diagnostic imaging services in Southern California, after six units of its technical employees working at separate facilities in Orange County, California, voted in elections held in October 2018 to be represented by the National Union of Healthcare Workers.  The Court held that the Board did not abuse its discretion in overruling the Employer’s election objections, and rejected the Employer’s challenges to the Board’s 2014 amendments to its election procedures.

In the underlying representation cases, the Union filed a petition seeking to represent a multi-facility bargaining unit, which the Employer argued should be divided into single-facility units. The Employer also argued that the petitioned-for unit was inappropriate for collective-bargaining purposes because it included “guards” within the meaning of Section 9(b)(3) of the Act.  It also contended that the petition should be dismissed because the Board’s 2014 amendments to its election procedures, Representation-Case Procedures, 79 Fed. Reg. 74308 (Dec. 15, 2014), violated law and public policy.  After a hearing, the Regional Director directed elections in six single-facility units, and found that the Employer failed to prove its claim of guard status, and that its various facial challenges to the Board’s 2014 amendments had already been rejected by the courts.  After the elections, the Regional Director, at the conclusion of the final polling period, tallied the ballots for each voting unit.

The Employer filed objections to all six elections, alleging that: (1) the Board erred by conducting an election in a unit containing statutory guards; (2) the Board erred by conducting an election under its 2014 amendments; (3) the Board erred by impounding the ballots and delaying the vote tallies; and (4) the Union engaged in a material misrepresentation by failing to disclose an affiliation with another union.  The Employer also filed facility-specific objections, alleging that: (1) a Board agent conducting one election failed to maintain the security of the ballot box; (2) a Union observer used a cellphone during polling; (3) a Board agent failed to post “Voting Place” signs; and (4) an employee entered the polling area, not to vote, but to discuss a work-related matter with the Union observer.  Without holding hearings, the Regional Director issued six decisions overruling the objections, and certified the Union.  The Employer filed Requests for Review, which were denied by the Board (then-Chairman Ring and Members Kaplan and Emanuel).  The Employer then refused to bargain in order to seek court review.

Before the Court, the Employer reargued all eight of its election objections.  The Court held that none had merit, explaining that “[a]ll of RadNet’s objections fail because the Board either did not err, or where it did, the error was harmless.”  First, on the allegation of guard status, the Court stated that the Regional Director’s decision “was reasoned, consistent with precedent, and supported by substantial evidence.”  Second, on the claim that the elections were defective because they were conducted pursuant to the Board’s 2014 amendments to its election rules, the Court noted that each of that argument’s subclaims lacked merit, citing cases in which the courts had previously rejected them:  Associated Builders & Contractors of Tex., Inc. v. NLRB (ABC), 826 F.3d 215 (5th Cir. 2016); Chamber of Commerce of U.S. v. NLRB, 118 F. Supp. 3d 171 (D.D.C. 2015).  Contrary to the Employer, the Court noted that no party, by statute or Board precedent, has a right to a pre-election hearing, and that here, the Employer received “precisely what it requested: a pre-election hearing on the eligibility of certain voters.”  On the Employer’s contention that the 2014 amendments, by shortening the electioneering period, interfered with speech protected by Sections 7 and 8(c) of the Act, the Court held that the Employer failed to explain how “such general amendments facially conflict with their right to a ‘free debate’ on the issues.”  Also contrary to the Employer, the Court held that it was reasonable for the Board to extend its “information-sharing requirements to cover employees’ personal email addresses, which are hardly more confidential or invasive than home addresses or phone numbers.”  On the Employer’s claim that the Board’s enactment of 2014 amendments was arbitrary and capricious, the Court found the argument to be a “nonstarter,” because it was not supported by evidence and presented no showing that the Board had not provided a reasoned basis for its change of policy.

Third, the Court agreed with the Employer that the Regional Director’s decision to postpone the counting of ballots was a departure from Board policy and practice without a reasoned basis, but found the error harmless.  The Court explained that the error did not prejudice either party, noting that the Administrative Procedure Act “instructs reviewing courts to take due account of the rule of prejudicial error,” quoting Ozark Auto. Distribs., Inc. v. NLRB, 779 F.3d 576 (D.C. Cir. 2015).  Fourth, the Court rejected the Employer’s allegation that the Union failed to disclose to employees some alleged affiliation with another union, explaining that the Union made no misrepresentation, nor was there a showing that any other union was material to the election campaign, or that the employees were in any way confused about what union they were voting for.  Fifth, the Court rejected the facility-specific objections, concluding that the Employer had shown “no specific evidence of prejudice to the fairness of the election.”  Finally, the Court “briefly dispatch[ed]” the Employer’s contention that the Board abused its discretion in granting summary judgment without relitigating certain representation case issues, holding simply that “the Board reasonably hewed to its general rule against relitigation.”

The Court’s opinion is here.

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Administrative Law Judge Decisions

ADT, LLC  (18-CA-264654, et al.; JD-12-21)  Janesville, WI.  Administrative Law Judge Michael A. Rosas issued his decision on March 29, 2021.  Charges filed by International Brotherhood of Electrical Workers Local Union 364.

National Association of Broadcast Employees & Technicians – Communications Workers of America, AFL-CIO  (03-CB-256179; JD-13-21)  Massena, NY.  Administrative Law Judge Elizabeth M. Tafe issued her decision on March 31, 2021.  Charge filed by Stephens Media Group-Massena, LLC.

SMART Sheet Metal Workers Local Union 9 (U.S. Engineering)  (27-CB-256117; JD(SF)-05-21)  Westminster, CO.  Administrative Law Judge Eleanor Laws issued her decision on April 2, 2021.  Charge filed by an individual.

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