PSLabor News

PSLabor News

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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 U.S. Cosmetics Corporation  (01-CA-135282 and 01-CA-139115; 368 NLRB No. 21)  Dayville, CT, July 8, 2019. The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by interrogating an employee about union activities and by offering employees legal assistance during the Board’s investigation.  However, a Board majority (Chairman Ring and Member Kaplan; Member McFerran, dissenting in part) reversed the judge to find that the Respondent did not violate Section 8(a)(1) by timing the announcement and implementation of a planned wage increase, and questioning production employees about communication with Union supporters and requesting to see their cell phones.  The majority also dismissed the allegations that the Respondent discharged two employees because of their union activities in violation of Section 8(a)(3) and (1).  Dissenting in part, Member McFerran would find the Section 8(a)(1) violation of the accelerated wage increase, a second interrogation, and the Section 8(a)(3) discharge of one of the two alleged employees. Charges filed by individuals.  Administrative Law Judge Ira Sandron issued his decision on May 17, 2016.  Chairman Ring and Members McFerran and Kaplan participated. *** Unpublished Board Decisions in Representation and Unfair Labor Practice Cases R Cases The Transportation Corporation d/b/a The Used Car Club  (22-RC-232474)  Newton, NJ, July 11, 2019.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Report on Objections and Certification of Representative as it raised no substantial issues warranting review.  The Acting Regional Director had overruled the Employer’s objection related to a mail ballot that was postmarked by the due date but not received until after the tally of ballots.  Petitioner—World Association of Motorcar Inspectors, WAMI, New York City Regional Local.  Chairman Ring and Members McFerran and Kaplan participated. The American Bottling Company d/b/a Keurig Dr. Pepper (13-RC-243320) Northlake, IL, July 12, 2019.  The Board denied the Employer’s Request to Stay the Election.  Petitioner—International Brotherhood of Teamsters Local 727.  Chairman Ring and Members McFerran and Emanuel participated. C Cases Pfizer, Inc.  (10-CA-175850 and 07-CA-176035)  Birmingham, AL, July 11, 2019.  The Board granted the Motion of the American Federation of Labor and Congress of Industrial Organizations to file an amicus curiae brief. Delta Western, Inc.  (19-CA-217975)  Dutch Harbor, AK, July 12, 2019.  No exceptions having been filed to the May 30, 2019 decision of Administrative Law Judge Gerald M. Etchingham’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint.  Charge filed by an individual. *** Appellate Court Decisions St. Paul Park Refining Co. LLC d/b/a Western Refining, Board Case No. 18-CA-187896 (reported at 366 NLRB No. 83) (8th Cir. decided July 8, 2019). In a published opinion, the Court enforced the Board’s order that issued against this operator of an oil refinery with 450 employees in St. Paul Park, Minnesota, where the International Brotherhood of Teamsters Local No. 120 represents a unit of refinery workers.  Among other rulings, the Court upheld the findings by the Board (Members Pearce, McFerran, and Kaplan) that the Employer violated Section 8(a)(1) by suspending, issuing a final warning, and denying a quarterly bonus to a Union shop steward who engaged in protected concerted activity when he refused to perform work based on safety concerns he shared with a coworker. Given the heightened safety concerns in the refinery industry, the parties’ collective-bargaining agreement, along with the Employer’s handbook and workplace rules, provide detailed safety procedures.  Among those is a “safety stop” policy that gives any employee the authority to stop a job to discuss potential risks and protects employees from retaliation for calling a safety stop.  One morning in November 2016, an employee was assigned a job under a new procedure that would require him to inject hydrochloric acid from pressurized cylinders into a machine using steam heat.  He became very nervous about the procedure, thought it was unsafe, and consulted the shop steward, who thought similarly.  Both employees discussed their safety concerns with their supervisors at length in a series of conversations.  That afternoon, the supervisors reassigned the job to the shop steward, who continued to state the job was unsafe.  Ultimately, he called a safety stop, but the supervisors continued to pressure him to complete the job, and he repeatedly refused, pointing out that they were acting contrary to the safety rules.  The next day, he was placed on an unpaid 10-day suspension for insubordination and, and, after an investigation was conducted that amounted to a collection of statements from management, he was issued a final written warning. On review, the Court held that the Board’s findings of discrimination against the shop steward were supported by substantial evidence and that the Board had properly applied its Wright Line test.  The Court agreed with the Board that the shop steward’s expression of concern over the assigned job, although stated on an individual basis that afternoon, “was a ‘logical outgrowth’ of his morning discussions with [his co-worker] about the same assignment and safety concerns and therefore was protected concerted activity,” quoting NLRB v. RELCO Locomotives, Inc., 734 F.3d 764 (8th Cir. 2013).  The Court also agreed that the record contained multiple indications of discriminatory motive.  Those factors included abruptly sending the shop steward home and suspending him, the pretextual reason of insubordination, which the Administrative Law Judge discredited, the investigation’s reliance on the supervisors’ own accounts of interactions that day, and the shifting reasons the Employer later provided for the discipline. On the remaining issues, the Court summarily enforced the Board’s findings that the Employer violated Section 8(a)(1) by threatening employees with discharge and stricter enforcement of work rules due to their union activities.  Lastly, regarding the Employer’s motions to reopen the record that had been denied, the Court found one motion barred from review under Section 10(e) of the Act because the Employer had filed only “bare exceptions” to the judge’s denial of the motion, and that the second motion was properly denied by the Board because the evidence the Employer sought to have added to the record was an arbitration award not issued until after hearing. The Court’s opinion is here. Erickson Trucking Service, Inc., Board Case No. 07-CA-178824 (reported at 366 NLRB No. 171) (6th Cir. decided July 10, 2019). In a published opinion, the Court enforced the Board’s order that issued against this provider of construction cranes that maintains offices in Grand Rapids and Muskegon, Michigan.  The Employer’s crane operators have been represented for decades by Local 324, International Union of Operating Engineers, AFL-CIO (OPEIU).  In mid-2016, the Union began more aggressively advocating on the employees’ behalf with efforts to obtain wage increases and to resolve payroll issues that commonly arise due to wage variations that apply when employees work in other jurisdictions.  In response, the Employer took actions that the Board (Members Pearce, Kaplan, and Emanuel) found violated Section 8(a)(1), by threatening employees with discharge because of the Union’s increased advocacy, by telling employees that it was discharging them because of that advocacy, and by implicitly promising employees that they can get their jobs back if they got the Union to change the way it represents them.  The Board also found that the Employer violated Section 8(a)(3) and (1) by discharging six of the crane operators because of the Union’s increased advocacy on their behalf. On review, the Court upheld the Board’s findings that the six employees were unlawfully discharged due to the Union’s increased advocacy, “most notably because that’s how the [employer] explained the matter to the discharged workers.”  Citing in detail the quantity of statements that the Employer made that constituted direct evidence of anti-union animus, the Court held that it was “relatively straightforward to say that the General Counsel permissibly made a threshold showing that the discharges were unlawful.”  In doing so, the Court rejected the Employer’s contention that three employees were not unlawfully discharged because they had not requested the Union’s assistance with payroll issues.  The Court explained that “the General Counsel need not show that each discharged employee engaged in protected activity where the employer fired a group in order to discourage union activity in the workforce generally.” Further, the Court upheld the Board’s finding that the Employer’s purported justification for the discharges—the market’s diminished demand for small cranes operated by those employees—was pretextual.  The Court stated that the credited testimony “undermines the [employer]’s version of events,” and that its justification that market forces drove its discharge decisions “ring[s] hollow,” particularly given its contemporaneous statements of hostility toward the Union.  The Court noted that, although the Board had credited the Employer’s description of market trends and its business goals as a general matter, it reasonably concluded that the Employer “had one motive, not two, for firing the workers, and the one motive was anti-union animus.”  Accordingly, the Court enforced the Board’s order in full. The Court’s opinion is here. Shamrock Foods Company, Board Case Nos. 28-CA-169970 and 28-CA-150157 (reported at 366 NLRB No. 107, and 366 NLRB No. 117) (D.C. Cir. decided July 12, 2019). In an unpublished judgment, the Court enforced two Board orders, consolidated for decision, that issued against this wholesale food distributor for myriad unfair labor practices committed during two organizing campaigns in 2015 at two different facilities—one campaign by Bakery, Confectionary, Tobacco Workers and Grain Millers Local 232 to organize warehouse workers at the Employer’s Phoenix, Arizona distribution center, and the other by the International Brotherhood of Teamsters to organize drivers at the Employer’s warehouse in southern California. Taken together, the two decisions by the same Board panel (Members Pearce, McFerran, and Kaplan) found that the Employer violated Section 8(a)(1) by making threats and other coercive statements, soliciting grievances, promising and granting benefits, coercively interrogating employees about their union views, surveilling and creating the impression of surveilling employees’ union activity, telling employees to report their co-workers’ union activity, promulgating a new rule in response to union activity and telling employees to report violations for prosecution, confiscating union flyers, discharging a key organizer for engaging in protected activity and offering him a separation agreement containing an unlawful waiver.  The Board further found that the Employer violated Section 8(a)(3) by disciplining three other known organizers for engaging in union activity, and by more strictly enforcing its break policy and more closely supervising one of those organizers in response to union activity. In addition to its usual remedies, in one case (366 NLRB No. 117), the Board ordered a notice-reading remedy. On review, the Court held that the Employer’s arguments were either “barred or without merit.”  Rejecting the Employer’s challenges to the findings undergirding the Board’s unfair-labor-practice conclusions, the Court found the Board’s conclusions were supported by substantial evidence, and that the Employer had failed to show that the Administrative Law Judge’s credibility determinations were “patently unsupportable.”  Regarding the separation-agreement violation, the Court held that it was barred from review by Section 10(e) of the Act, because the Employer had not preserved the issue for appeal by filing a Motion for Reconsideration with the Board. Further, the Court rejected the Employer’s contention that, despite its failure to provide subpoenaed documents relevant to the issues litigated at hearing, the judge should not have imposed evidentiary sanctions against it.  Those sanctions included prohibiting testimony from certain witnesses, limiting cross-examination of the General Counsel’s witnesses, and granting an adverse inference that the subpoenaed documents would have corroborated testimony contrary to the Employer’s position.  In doing so, the Court held that the judge did not abuse his discretion in imposing sanctions, which, the Court stated, were “proportionate to” the Employer’s failure to comply with the subpoena. Lastly, on the notice-reading remedy, the Court noted that the Board had explained that it was an appropriate remedy here, given the severity and scope of the unfair labor practices, and given that many were committed by high-level officials and at mandatory meetings.  The Court stated that the notice-reading remedy “falls within the Board’s broad discretionary power, and we see no reason to disturb that aspect of the order.” The Court’s opinion is here. Temple University Hospital, Board Case No. 04-CA-174336 (reported at 366 NLRB No. 88) (D.C. Cir. decided July 9, 2019). In a published opinion, the Court granted the Petition for Review of the Board’s order issued against this private non-profit hospital in Philadelphia, Pennsylvania, for refusing to bargain with Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals after the Board asserted jurisdiction over the hospital and certified the Union as the representative of a unit of its employees.  In doing so, the Court remanded the case to the Board for proceedings consistent with its opinion. In the underlying representation case, among other rulings, the Regional Director rejected the hospital’s argument that the Union was judicially estopped from invoking the Board’s jurisdiction by filing a representation petition because, in 2005, the Union had argued to the Pennsylvania Labor Relations Board (PLRB) that the NLRB did not have jurisdiction over the hospital.  The Employer filed a Request for Review of the Regional Director’s decision, which the Board (Chairman Pearce and Member McFerran, Member Miscimarra dissenting) granted in part, but let stand the Regional Director’s ruling on judicial estoppel.  On that issue, the Board found that, even assuming for purposes of argument that the doctrine would apply in a Board proceeding, it would affirm the Regional Director’s conclusion under the factors set forth in New Hampshire v. Maine, 532 U.S. 742 (2001) (those factors are: (1) whether the party’s later position is clearly inconsistent with its earlier position, (2) whether the party has succeeded in persuading a court to accept its earlier position, and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped).  The Regional Director found that, although the first factor related to inconsistent positions was present here, with regard to the second factor, “there is no evidence that the [union] misled the PLRB, and there is an inadequate basis to believe the PLRB would have reached a different result had the [union] taken some contrary position before the PLRB.”  On the third factor, the Regional Director stated that the unfair detriment alleged by the hospital was not of the type the Supreme Court was concerned with in New Hampshire v. Maine.  The Board adopted the Regional Director’s application of those factors. On review, the Court assessed the Board’s application of the New Hampshire v. Maine factors and found it lacking.  In particular, the Court held that the Board had misunderstood the second factor because, it stated, nothing in New Hampshire v. Maine suggested that the previously asserted inconsistent position “must be a but-for cause of the first tribunal’s decision.”  Rather, the Court stated, it was enough that the earlier position had been accepted.  On the third factor, the Court noted that the Board had not provided explanations for why the hospital’s asserted detriment “fell short,” or “what ‘type’ of detriment of advantage would suffice.”  Accordingly, the Court remanded the case to the Board to decide, in the first instance, whether the doctrine of judicial estoppel is available in Board proceedings, and if so, whether it would be appropriate to apply it here under the New Hampshire v. Maine factors. The Court’s opinion is here. *** Administrative Law Judge Decisions Safeway, Inc.  (20-CA-221482; JD(SF)-20-19)  Eureka, CA.  Administrative Law Judge Amita Baman Tracy issued her decision on July 9, 2019.  Charge filed by United Food and Commercial Workers, Local 5, United Food and Commercial Workers, AFL-CIO. ADT, LLC  (19-CA-216379; JD(SF)-21-19)  Seattle, WA.  Administrative Law Judge John T. Giannopoulos issued his decision on July 9, 2019.  Charge filed by International Brotherhood of Electrical Workers, Locals 46 and 76. New York Party Shuttle, LLC, d/b/a Onboard Tours, Washington DC Party Shuttle, LLC, d/b/a Onboard Tours, Onboard Las Vegas Tours, LLC, d/b/a Onboard Tours, NYC Guided Tours, LLC, and Party Shuttle Tours, LLC, a Single Employer, and New York Party Shuttle, LLC, d/b/a Onboard Tours and its Alter Ego and/or Golden State Successor, NYC Guided Tours, LLC  (02-CA-073340; JD(NY)-11-19)  New York, NY.  Administrative Law Judge Kenneth W. Chu issued his decision on July 9, 2019.  Charge filed by an individual. Janus of Santa Cruz  (32-CA-226320; JD(SF)-19-19)  Santa Cruz, CA.  Administrative Law Judge Gerald M. Etchingham issued his decision on July 12, 2019.  Charge filed by National Union of Healthcare Workers. *** To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here. Read Story
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