Key NLRB Decisions – November 2016; Christine K. D. Belcaid

Weavexx, LLC, 364 NLRB No. 141 (November 2, 2016)

The Board reversed the Administrative Law Judge’s finding that the employer violated Section 8(a)(5) and (1) by making unilateral changes to the pay cycle and payday without offering the union notice and an opportunity to bargain.  The Administrative Law Judge should have deferred to the arbitrator’s prior decision because the arbitrator found the management rights clause in the collective bargaining agreement allowed the employer to make the unilateral changes.  The arbitral proceedings were not repugnant to the Act but rather fair and regular, and all parties agreed to be bound by the arbitrator’s award – even if the Board would not have necessarily reached the same result.

Empire Janitorial Sales & Service, LLC, 364 NLRB No. 138 (November 3, 2016)

The employer violated Section 8(a)(5) and (1) by failing and refusing to bargain with the union because the employer is a legal successor, demonstrated by the substantial continuity between the employer and the competitor for whom the employer took over custodial, janitorial, and maintenance services.

Trump Ruffin Commercial, LLC d/b/a Trump International Hotel Las Vegas, 364 NLRB No. 143 (November 3, 2016)

The Board granted the General Counsel’s motion for summary judgment in this refusal-to-bargain case in which the employer contested the union’s certification as bargaining representative because the employer did not raise any issues that were not or could not have been litigated in the representation proceeding.

Andronaco, Inc. d/b/a Andronaco Industries, 364 NLRB No. 142 (November 4, 2016)

The employer violated Section 8(a)(1) by: (1) maintaining a handbook rule prohibiting “[d]isclosure of confidential Company information”; (2) maintaining a handbook rule prohibiting solicitation “of any kind … in working areas” and prohibiting distribution of any and all non Company literature”; (3) maintaining a handbook rule prohibiting employees from wearing clothing with words, slogans, and/or pictures that may be offensive to other employees or guests; (4) maintaining a handbook rule that prohibits internet usage during company time, defines “spam” to include solicitations, prohibits emails including “copyright infringing material,” and directs employees to report any emails in violation of the rule to their supervisor and the company president (the reporting requirement is unlawful because the other sections infringe upon Section 7 rights); (5) informing employees that they are disloyal to the company for participating in protected concerted activities; and (6) discharging an employee because the employer believed she engaged in protected concerted activity.  The Board passed on determining whether the discharged employee actually engaged in the protected activity.

Component Bar Products, Inc.,  364 NLRB No. 140 (November 8, 2016)

The employer violated Section 8(a)(1) by: (1) maintaining a handbook rule that prohibits “[i]nsubordination and other disrespectful conduct”; (2) maintaining a handbook rule that prohibits “boisterous and other disruptive conduct”; (3) telling employees that they or other employees were discharged because they engaged in protected activity; and (4) discharging an employee for engaging in protected activity pursuant to the unlawful handbook rule prohibiting insubordination and other disrespectful conduct.  The discharged employee called a coworker to warn him that his job was in jeopardy and tried to help the coworker retain his employment.

Lifeway Foods, Inc.,  364 NLRB No. 145 (November 9, 2016)

The employer did not violate Section 8(a)(5) and (1) by failing to provide the union with notice and an opportunity to bargain over three discharges.  Although an employer presently has a duty to engage in pre-imposition discipline bargaining under Total Security Mgmnt., 364 NLRB No. 106 (2016), the instant case was pending when the Total Security Mgmnt. decision issued; thus, the holding of that decision, which only applies prospectively, does not apply here.

The Wang Theatre, Inc. d/b/a Citi Performing Arts Center, 364 NLRB No. 146 (November 10, 2016)

The Board granted the General Counsel’s motion for summary judgment in this refusal-to-bargain case in which the employer contested the union’s certification as bargaining representative because the employer did not raise any issues that were not or could not have been litigated in the representation proceeding.

McDonald’s USA, LLC, a joint employer, et al.,  364 NLRB No. 144 (November 10, 2016)

The Board granted the employer’s request for special permission to appeal the Administrative Law Judge’s order granting in part and denying in part the General Counsel’s motion for additional production of documents from McDonald’s USA, LLC but denied the appeal on the merits.  The employer failed to establish that the judge abused her discretion by requiring it to conduct searches of all identified sources for the original 28 custodians of record, as well as for 20 additional operations custodians, and an executive added to the custodian list in the district court proceeding enforcing the subpoena.

Spectrum Juvenile Justice Services, 364 NLRB No. 149 (November 22, 2016)

The Board granted the General Counsel’s motion for summary judgment in this refusal-to-bargain case in which the employer contested the union’s certification as bargaining representative because the employer did not raise any issues that were not or could not have been litigated in the representation proceeding.

Categories: Labor Law Blog