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Cases and Decisions

Cases and Decisions

Summary of NLRB Decisions for Week of May 26 - 29, 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

Qawasmi Trading Inc. d/b/a Green Way Glass & Mirror & Woodworking d/b/a Temp Tech Glass and Green Way Glass & Mirror & Woodworking and Temp-Tech Industries, Inc.  (13-CA-226275 and 13-CA-228751; 369 NLRB No. 89)  Chicago, IL, May 27, 2020.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondents’ noncompliance with the provisions of the parties’ informal settlement agreement.  The complaint alleged that the Respondents violated Section 8(a)(5) and (1) by failing and refusing to bargain with the Union as the exclusive collective-bargaining representative of the unit employees.

Charges filed by Glaziers Architectural Metal Workers Local 27.  Chairman Ring and Members Kaplan and Emanuel participated.

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T-Mobile USA, Inc.  (14-CA-155249, et al.; 369 NLRB No. 90)  Wichita, KS, May 27, 2020.

In a supplemental decision, the Board found that, in response to an employee attempting to use her work email to send a message to her 595 coworkers encouraging them to join the Union, the Respondent did not violate Section 8(a)(1) by announcing new workplace rules and telling the employee that employees could not send certain emails to other employees’ work email addresses.  In the underlying decision, T-Mobile USA, Inc., 369 NLRB No. 50 (2020), the Board severed and retained and issued a Notice to Show Cause as to those allegations because the lawfulness of the Respondent’s conduct was dependent on whether the employee engaged in protected activity under the limited exception to Caesars Entertainment by attempting to use her work email to send her message to her coworkers about joining the Union.  In response to the Board’s Notice to Show Cause, the parties all opposed remand and stated that they did not intend to offer additional evidence or argument concerning the Caesars Entertainment exception.  Because the record contained no evidence that the Respondent’s employees do not have access to other reasonable means of communication, and no party contended that the Respondent’s email system furnished the only reasonable means for the employees to communicate with one another, the Board found that the employee did not engage in protected activity when she attempted to use her work email to send her message to her coworkers.  Further, the Board reversed the Administrative Law Judge and found that the new workplace rules announced by the Respondent were not overbroad in violation of Section 8(a)(1).  The Board reasoned that the rules were lawful because the Respondent explicitly announced them in response to the employee’s violation of several of its policies and all of the employees reasonably knew that the Respondent promulgated its rules—the language of which prohibited the very type of impermissible conduct the employee engaged in—because of the employee’s improper use of its email system and to prevent similar infractions in the future.

Charges filed by Communications Workers of America, AFL-CIO.  Administrative Law Judge Sharon Levinson Steckler issued her decision on June 28, 2016.  Chairman Ring and Members Kaplan and Emanuel participated.

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Wynn Las Vegas, LLC  (28-CA-155984 and 28-CA-157203; 369 NLRB No. 91)  Las Vegas, NV, May 29, 2020.

The Board found that an employee engaged in union solicitation by encouraging a coworker to vote for the Union in a then upcoming representation election while the coworker was on working time.  In so doing, the Board overruled Wal-Mart Stores, 340 NLRB 637 (2003), and ConAgra Foods, Inc., 361 NLRB 944 (2014), and found that, in determining whether a statement amounts to solicitation of union support, neither the presentation of an authorization card for signature at the time nor the duration of the conversation are determinative.  The Board further clarified the definition to encompass the act of encouraging employees to vote for or against union representation.  Applying the clarified definition for union solicitation, the Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(3) and (1) in issuing the employee a written warning because she violated the Respondent’s lawful solicitation and distribution policy (Solicitation policy).  The Board also dismissed the allegation that the Respondent overbroadly applied its Solicitation policy to restrict the employee’s Section 7 activity in violation of Section 8(a)(1), noting that the judge did not analyze this allegation in his decision.  Additionally, the Board adopted the judge’s conclusions that the Respondent did not violate Section 8(a)(1) by: (1) unlawfully interrogating employees when it interviewed them about the employee’s solicitation of her coworker; (2) creating the impression of surveillance of the employee’s union activity; (3) orally promulgating a discriminatory directive that its employees could not promote the union while they were on duty; and (4) threatening its employees with unspecified reprisals because they engaged in union and other concerted activities.  The Board modified the judge’s rationale for these findings.  Finally, the Board dismissed the allegation that the Respondent’s application of the Solicitation policy to the employee violated Section 8(a)(3) and (1) because it was selectively and disparately applied.

Charges filed by individuals.  Administrative Law Judge Gerald M. Etchingham issued his decision on September 26, 2016.  Chairman Ring and Members Kaplan and Emanuel participated.

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Watco Transloading, LLC  (04-CA-136562, et al.; 369 NLRB No. 93)  Philadelphia, PA, May 29, 2020.

The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by disciplining and discharging employees during a union organizing campaign.  As to one such allegation, the Board found that the General Counsel failed to establish that protected conduct motivated the discipline.  As to the others, the Board found that serious accusations of harassment, threatening behavior, and obscenity against the employees, which were investigated and materially corroborated, established that the Respondent would have disciplined them even absent their union activity.  In addition, the Board concluded that the Respondent violated Section 8(a)(1) by promising and granting benefits during the organizing campaign, as well as by soliciting grievances, but did not unlawfully interrogate employees.  Finally, applying its recent precedent concerning investigative confidentiality rules, the Board found that an oral confidentiality instruction was lawful.

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC, and an individual.  Administrative Law Judge Susan A. Flynn issued her decision on April 5, 2017.  Chairman Ring and Members Kaplan and Emanuel participated.

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CP Anchorage Hotel 2, LLC, d/b/a Hilton Anchorage  (19-CA-215741; 369 NLRB No. 92)  Anchorage, AK, May 29, 2020.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(3) and (1) by discharging an employee as the Respondent established that it would have discharged that employee for covering up and failing to report mold even in the absence of his protected activity.

Charge filed by UNITE HERE! Local 878, AFL–CIO.  Administrative Law Judge Mara-Louise Anzalone issued her decision on November 14, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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Lion Elastomers LLC  (16-CA-190681, et al.; 369 NLRB No. 88)  Port Neches, TX, May 29, 2020.

A Board majority (Chairman Ring and Member Kaplan; Member Emanuel, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening an employee with discharge.  Member Emanuel would have found that the alleged unlawful statement was open to interpretation and too vague to constitute a threat of discharge.  In addition, the Board adopted the judge’s conclusion that the Respondent violated the Act by disciplining the employee for his conduct at an employee safety meeting.  Unlike the judge, the Board did not pass on whether the employee engaged in protected concerted activity at that meeting; instead, the Board found that the employee engaged in protected union activity at the meeting and that the Respondent violated Section 8(a)(3) and (1) by disciplining the employee for such activity.  Further, the Board adopted the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging the employee because he engaged in union activity.  Lastly, the Board denied the Charging Party’s request for a notice-reading remedy.

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 228.  Administrative Law Judge Michael A. Rosas issued his decision on April 25, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Roseland Community Hospital  (13-RC-256995) C hicago, IL, May 26, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Board also denied the Employer’s Request for Extraordinary Relief as moot.  Petitioner—Service Employees International Union (SEIU) Healthcare Illinois & Indiana.  Chairman Ring and Members Kaplan and Emanuel participated.

Arakelian Enterprises, Inc. d/b/a Athens Services  (31-RD-223309)  Pacoima, CA, May 27, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision to Block the RD Petition as it raised no substantial issues warranting review.  The Board also denied the Employer’s Request for Extraordinary Relief as moot.  Petitioner—an individual.  Union—Teamsters Local 396.  Chairman Ring and Members Kaplan and Emanuel participated.

Sinai Hospital of Baltimore, Inc. d/b/a VSP  (05-RC-244319)  Baltimore, MD, May 27, 2020.  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 also denied the Employer’s Request to Stay as moot.  Petitioner—1199 SEIU United Healthcare Workers East.  Chairman Ring and Members Kaplan and Emanuel participated.

DFWS Inc. d/b/a The Guild San Jose  (32-RC-248845)  San Jose, CA, May 27, 2020.  The Board denied the Employer’s Requests for Review of the Regional Director’s Decision Affirming the Hearing Officer’s Findings and Recommendations and Order to Open and Count Determinative Challenged Ballots and the Regional Director’s Certification of Representative as they raised no substantial issues warranting review.  The Board also denied the Employer’s Request to Stay the Certification as moot.  Petitioner—United Food & Commercial Workers Union, Local 5.  Chairman Ring and Members Kaplan and Emanuel participated.

Macy’s West Stores, Inc.  (32-RC-246415)  Santa Clara, CA, May 27, 2020.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision on Exceptions to Hearing Officer’s Report and Certification of Results of Election as it raised no substantial issues warranting review.  Petitioner—Teamsters Local 287.  Chairman Ring and Members Kaplan and Emanuel participated.

Balfour Beatty Communities, LLC  (28-RC-256955)  El Paso, TX, May 27, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Order Resuming Processing of Petition and Revoking Approval of Stipulated Election Agreement and Order to Show Cause as it raised no substantial issues warranting review.  Petitioner—International Union of Operating Engineers, Local No. 953.  Chairman Ring and Members Kaplan and Emanuel participated.

Seminole Electric Cooperative, Inc.  (12-RC-256815)  Tampa, FL, May 28, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  Due to the COVID-19 pandemic, the Regional Director had directed a mail-ballot election based on the “extraordinary circumstances” exception set forth in San Diego Gas & Electric, 325 NLRB 1143 (1998).  The Board also denied the Employer’s Request for Extraordinary Relief as moot.  Petitioner—International Brotherhood of Electrical Workers, Local 108, AFL-CIO.  Chairman Ring and Members Kaplan and Emanuel participated.

2101 LLC d/b/a Intercontinental Truck Body  (19-RC-258144)  Anaconda, MT, May 28, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Board also denied the Employer’s Request for Extraordinary Relief as moot.  Petitioner—International Association of Machinists and Aerospace Workers, Lodge 88, AFL-CIO.  Chairman Ring and Members Kaplan and Emanuel participated.

C Cases

No Unpublished C Cases Issued

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Appellate Court Decisions

East Valley Glendora Hospital, LLC d/b/a Glendora Community Hospital, Board No. 31-CA-229412 (reported at 367 NLRB No. 72) (9th Cir. decided May 29, 2020).

In an unpublished memorandum decision in this test-of-certification case, the Court enforced the Board’s bargaining order that issued against this acute-care hospital in Glendora, California, after its registered nurses voted 77 to 8 in a May 2018 election to be represented by SEIU Local 121RN.  In doing so, the Court held that the Board did not abuse its discretion in overruling the hospital’s election objections without conducting an evidentiary hearing.

In the underlying representation case, the election was held under the terms of a stipulated election agreement, which included the parties’ agreement to forego a preelection hearing.  After the election, the hospital filed numerous objections that included allegations that the Union used supervisors to assist its campaign.  In particular, the hospital claimed that its charge nurses were statutory supervisors, and that some of them engaged in prounion conduct during the organizing campaign that tainted the election.  That alleged conduct included signing and soliciting employees to sign authorization cards, wearing union paraphernalia, attending union meetings and directing employees to do the same, telling employees to support the Union, and posting union campaign literature.  Further, the hospital alleged that the election was tainted by the Union’s selection of a supervisor to serve as its observer during the election.

The Regional Director, finding that the hospital’s offer of proof woefully insufficient, issued a decision overruling the objections without holding a hearing.  The Regional Director stated, among other things, that the hospital proffered only “nebulous and declaratory assertions that contain no specific evidence of specific events from or about specific people,” and thus failed to raise any “substantial and material issues of fact sufficient to support a prima facie showing of objectionable conduct,” as required to obtain a hearing.  As to the claim that a supervisor improperly served as the Union election observer, the Regional Director found the matter precluded because the hospital had failed to raise it during the preelection conference, and, in any event, there was no evidence proffered to show that the observer was a supervisor.  The hospital filed a Request for Review, which was denied by the Board (Chairman Ring and Members McFerran and Kaplan).  The hospital refused to bargain in order to seek court review.

Before the Court (Judges Paez and Callahan; Judge Bumatay, dissenting), the Employer challenged the Board’s overruling of only a limited number of its election objections.  Concerning its various claims that the conduct of charge nurses coerced employees and interfered with their free choice, the Court held, in agreement with the Board, that the offer of proof was insufficient.  The Court explained that to warrant an evidentiary hearing, a prima facie showing of election interference “may not be conclusory or vague,” quoting NLRB v. Valley Bakery, Inc., 1 F.3d 769 (9th Cir. 1993).  Further, the Court held that, even if fully credited, the objections would not establish with sufficient specificity that the alleged supervisors’ conduct amounted to coercion or interference, or materially affected the outcome of the election under the terms of Harborside Healthcare, Inc., 343 NLRB 906 (2004).  On the issue of the Union election observer, the Court noted that the hospital did not contest the fact that it had not raised the issue at the preelection conference.  Further, the Court held that, even if the issue were adequately preserved, the offer of proof was insufficient because it did not identify the supervisor, nor did it list facts supporting the individual’s supervisory status or provide any specificity to the facts underlying the objection.  Finding that the remainder of the hospital’s objections had not been preserved for review, the Court enforced the Board’s order.

The Court’s decision is here.

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Administrative Law Judge Decisions

Apex Linen Service, Inc.  (28-CA-216351, et al.; JD(SF)-13-20)  Las Vegas, NV.  Administrative Law Judge John T. Giannopoulos issued his decision on May 28, 2020.  Charges filed by International Union of Operating Engineers, Local 501, AFL-CIO.

Bannum Place of Saginaw, LLC  (07-CA-207685, et al.; JD-24-20)  Saginaw, MI.  Administrative Law Judge Ira Sandron issued his decision on May 29, 2020.  Charges filed by Local 406, International Brotherhood of Teamsters (IBT) and an individual.

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