January through Mid-April 2018 Update on Key NLRB Decisions: Christine K. D. Belcaid

PROTECTED EMPLOYEE ACTIVITY

ORGANIZATIONAL AND PRE-ELECTION ACTIVITY

Employees’ inability to represent themselves.  Hendrickson USA, LLC, 366 NLRB No. 7 (Jan. 25, 2018) (Employer lawfully told employees signing authorization cards or electing the union would negatively impact their ability to individually represent themselves. Democratic panel majority held employer unlawfully told employees if they were to elect the union the culture would definitely change, relationships would suffer and flexibility would be replaced by inefficiency. Republican minority member dissented, saying the statements were lawful.)

Equal credibility.  EVM King of Missouri, LLC, 366 NLRB No. 5 (Jan. 29, 2018) (General counsel failed to meet his burden to establish employer violated Act, because administrative law judge found employer and employee witnesses were equally credible on issue of whether employer made threatening statements about strike and there was little to nothing in record to indicate employees’ testimony is likely to be more credible than employer’s or vice versa.)

Summoning officers.  Venetian Casino Resort, LLC, 366 NLRB No. 14 (Feb. 5, 2018) (Board declined to decide that employer violated Act when summoned police officers to remove individuals engaged in peaceful human union demonstration from sidewalk situated on employer’s property, in light of long time, proceedings and remedies for other conduct that had passed.)

Finding pretext.  Apex Linen Service, Inc., 366 NLRB No. 12 (Feb. 6, 2018) (Employer violated Act by warning, suspending and discharging an employee who engaged in protected activity. Employer knew of employee’s union activity. It imposed three kinds of discipline for same offense, gave employee no chance to explain, provided false explanations for discipline, and imposed less severe discipline for same kind of misconduct.)

Intentional misuse of security password.  KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018) (Employer lawfully discharged employee who intentionally used a security password to lead a group of employees and nonemployees into secured area of employer’s hotel in process of presenting petition to management.)

Surveillance.  Charter Communications, LLC, 366 NLRB No. 46 (March 27, 2018) (Employer violated Section 8(a)(1) by creating impression that employee’s hand-billing and other union activities were under surveillance on two separate occasions, interrogating employee about his union activities, closely monitoring employee because of his union activities, threatening employee with discharge for his union activities, surveilling employee’s union activities, threatening employee with closer supervision because of his union activities, and soliciting grievances from employee; and violated Section 8(a)(3) by reassigning three employees to rural areas and discharging three employees.)

 

OTHER CONCERTED ACTIVITY

Baseless and retaliatory lawsuit.  Ashford TRS Nickel, LLC, 366 NLRB No. 6 (Feb. 1, 2018) (Employer violated Act by maintaining lawsuit in response to union’s consumer boycott of employer’s hotel, because Act preempted some of employees’ claims, and all claims were baseless and retaliatory.)

Directing not to speak to witnesses.  Costco Wholesale Corp., 366 NLRB No. 9 (Feb. 2, 2018) (Employer violated Act by directing employee not to speak with anyone about an incident of his misconduct under investigation.)

Sex stereotypes and bias.  International Longshoremen’s Association, Local 28, 366 NLRB No. 20 (Feb. 20, 2018) (Board reversed decision by administrative law judge dismissing complaint by female employee and referred rehearing of her complaint to different judge, because original judge made credibility determinations based on sex stereotypes and demonstrated by bias. Some reasons administrative law judge gave for discrediting female employee’s harassment allegations were implausibility of a tough woman meekly allowing a man to harass her repeatedly without an utterance, her tolerating such misconduct to preserve job with low pay, her allowing repeated violations despite having relatives in influential positions, alleged harasser treating her well after she allegedly rejected him, and her complaining about other less embarrassing comments.)

Deliberate or maliciously false statements during investigation. Omnisource Corp., 366 NLRB No. 23 (Feb. 27, 2018) (Employer violated Act by discharging employees for statements made during grievance process.  Employer failed to show it had honest belief any of discharged employees made deliberate or maliciously false statements during investigation process that would warrant removal of their protection.  Awarded former employees search for work and interim employment expenses separately from back pay.)

Insubordination insufficient to waive protection.  Meyer Tool, Inc., 366 NLRB No. 32 (March 9, 2018) (Employee repeatedly refusing, after several direct orders to leave employer’s human resources office, was not serious enough conduct to remove it from protection of the Act, because his exchange occurred in human resources office, away from the production office, was about what happened in workplace, and was in response to harassment in response to him raising concerns.)

Misconduct provoked by unfair labor practice.  U.S. Postal Service, 366 NLRB No. 39 (March 15, 2018) (Reversed and remanded administrative law judge dismissing complaint alleging employer discriminated against employee by discharging him for failure to cooperate during presentation of his performance evaluation, because judge did not refer to allegation employer discriminated against employee by issuing performance evaluation; explained that  “misconduct provoked by an employer’s unfair labor practice is not grounds for discharge” because employers should not be “permitted to take advantage of their unlawful actions, even if employees may have engaged in conduct that—in other circumstances—might justify discipline.”)

Constructive discharge. Village Red Restaurant Corp., 366 NLRB No. 42 (March 20, 2018) (adopted administrative law judge’s findings employer retaliated against employees by discharging, constructively discharging, or reducing hours of employees for filing FLSA lawsuit and NLRB charge.)

Complaints about animosity.  Natural Life Inc., 366 NLRB No. 353 (March 30, 2018 (Employer violated Section 8(a)(1) by discharging sales department because they engaged in protected concerted activity by complaining about manager’s sexist and racial animosity.)

Adverse actions.  Tito Contractors, Inc., 366 NLRB No. 47 (March 29, 2018) (Employer violated Act by promulgating and discriminatorily enforcing an overtime policy requiring employees to obtain advance management approval for overtime because employees engaged in protected concerted activities; discharging six employees because they engaged in protected concerted activities; and encouraging Maryland Environmental Services to request the removal of employees from a jobsite because they engaged in protected concerted activities. Employer also violated Act by equating employee’s protected concerted activities with disloyalty; telling employee that, under an overtime policy memo, those who joined an overtime lawsuit cannot work overtime; interrogating employees individually about their union activities and support; threatening employees with immigration-related consequences and discharges for engaging in union activities; soliciting employees’ grievances and promising to no longer disregard them; and disparaging an employee during a meeting for his support of union.)

Disrupting dispatch.  SSA Pacific, Inc., 366 NLRB No. 51 (April 3, 2018) (Employer lawfully discharged employee for disrupting dispatch process, not for requesting dispatch records nor based on application of potentially overbroad rule.)

 

REPRESENTATION PROCESS

APPROPRIATE BARGAINING UNITS

Faculty and Students of Private Universities.  GC Memo 10-02 (Dec. 1, 2017) (Rescinded Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context.)

Independent contractors and political subdivision.  Pennsylvania Interscholastic Athletic Association Inc., 366 NLRB No. 10 (Jan. 26, 2018) (Association refused to bargain with union to test on appeal representation questions whether lacrosse officials were independent contractors rather than employees and association was a political subdivision instead of an employer.

Supervisor participation and objectionable conduct.  Cranesville Block Co., Inc., 366 NLRB No. 18 (Feb. 13, 2018) (Company refused to bargain with union to test representation questions whether supervisor participated in the vote and engaged in objectionable conduct during a critical period of the election.)

Catholic University.  Duquesne University of the Holy Spirit, 366 NLRB No. 27 (Feb. 28, 2018) (University refused to bargain to test on appeal representation decision board had jurisdiction over a Catholic University and whether the Board’s test for asserting jurisdiction was an unconstitutional intrusion into the university’s religious liberty.)

Religious university.  Saint Xavier University, 366 NLRB No. 31 (March 9, 2018) (University refused to bargain to test on appeal representation decision Board had jurisdiction over part-time faculty members at self-identified religious university.)

Managerial employees.  Wolf Creek Nuclear Operating Corporation, 366 NLRB No. 30 (March 13, 2018) (Employer, in refusal-to-bargain case where employer contested validity of Union’s certification, did not raise any representation issue properly litigable in unfair labor practice proceeding because it did not offer any newly discovered and previously unavailable evidence that some positions were managerial or that record evidence shows other positions are managerial.)

Charter school jurisdiction.  LTTS Charter School, Inc., 366 NLRB No. 38 (March 15, 2018) (Charter school in Texas was exempt from Board’s jurisdiction because its governing body is responsible to public officials.  State statute explicitly granted state commissioner on education authority, in reconstituting governing body of an open-enrollment charter school, to appoint new members and retain incumbent members, and provides commissioner’s decision must be upheld by a judge from  state office of administrative hearings unless arbitrary and capricious or clearly erroneous.  Case was distinct from assertion of jurisdiction over charter school in New York, where state statute permitted the state board of regents to remove for malfeasance trustee of any corporation it created, which included private educational institutions that clearly fell under Act’s jurisdiction.)

Pre-election litigation whether intermittently employed are eligible.  Reed College, 19 RC-213177 (March 22, 2018) (Regional Director has discretion to allow pre-election litigation over questions of eligibility, when questions of frequency and recentness of work by intermittent employees are involved.)

Joint employers.  Retro Environmental, Inc., 366 NLRB No. 45 (March 26, 2018) (Employers refuse to bargain to test on appeal representation decision they were joint employers and unit was appropriate.)

Guards and no cell phone ban.  Station GVR Acquisition, LLC, 366 NLRB No. 58 (April 12, 2018) (Employer refused to bargain to test on appeal representation decision employees in unit were not guards and refusal to ban cell phone and other electronic devices in voting area.)

 

COMMUNITY OF INTEREST

Excluding Employees from Unit.  PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017) (In representation election, employees in unit must share a community of interest sufficiently distinct from excluded employees.  In determining whether excluded employees meet the requirement, assess whether they are in separate departments, have distinct job functions and perform distinct work, have certain amounts and types of jobs which overlap with included employees, are functionally integrated with included employees, have frequent contact with them, interchange with them, have distinct terms and conditions of employment, and are separately supervised.  Reversed Specialty Healthcare, 357 NLRB 934 (2011), which held employers seeking to challenge scope of unit had to show employees excluded from a petitioned for unit must share an “overwhelming” community of interest with the included employees.)

 

WITHDRAWAL OF RECOGNITION WITHOUT AN ELECTION

No statement of employee desires.  Liberty Bakery Kitchen, Inc., 366 NLRB No. 19 (Feb. 16, 2018) (Employer unlawfully withdrew recognition from union because document relied on contained no statement of employees’ desires concerning union representation.)

 

COLLECTIVE BARGAINING PROCESS

GOOD FAITH REQUIREMENT

Duty to sign agreement.  International Union of Operating Engineers, Local 501, 366 NLRB No. 3 (Jan. 23, 2018) (Union was required to sign collective-bargaining agreement, because it had a meeting of the minds with employer on all substantive issues and material terms of agreement, and document union refused to execute accurately reflected the agreement.)

 

DUTY TO FURNISH INFORMATION

No duty to furnish information union agrees is irrelevant.  IronTiger Logistics, Inc., 366 NLRB No. 2 (Jan. 9, 2018) (Employer had no duty to respond to request for information which union conceded was irrelevant by agreeing request was “bullshit.”)

No blanket refusal of request covering non-bargaining unit; employer must show burden.  L.I.F. Industries, 366 NLRB No. 4 (Jan. 24, 2018) (Employer violated Act by refusing to furnish and by delaying to furnish requested information. Where request can be construed to cover non-bargaining unit employees, employer may not make blanket refusal.  Employer failed to show request for information covering seven year period was unduly burdensome.)

Bargaining unit employees’ names, addresses and telephone numbers.  Poudre Valley Rural Electric Association, Inc., 366 NLRB No. 21 (Feb. 20, 2018) (Employer violated Act by refusing to furnish Union with bargaining unit employees’ names, addresses, and telephone numbers. No evidence of fear or concern about retribution.  Even if information was confidential, employer failed to offer accommodations such as limiting the use of the information by time, who from union could view information, or making it subject to protective order or a confidentiality agreement.)

Asset purchase agreement.  Delaware County Mem’l Hospital, 366 NLRB No. 28 (March 7, 2018) (Employer obligated to provide entire Asset Purchase Agreement, because it did not support its claim of confidentiality or offer an accommodation to union at time of request.)

Home service provider agreementDirectSat USA, LLC, 366 NLRB No. 40 (March 20, 2018) (Employer obligated to provide full, unredacted Home Service Provider agreement to union so union could evaluate extent of work covered by employer’s proposal to integrate agreement into collective bargaining agreement.)

Test results.  AT&T Services, Inc., 366 NLRB No. 48 (March 27, 2018) (Employer violated Act by refusing to furnish union with information it requested as to bargaining unit employees’ results on the employer-administered test (rather than a copy of test and answer sheet or results employees had been assured would remain confidential), which affected their contractual entitlement to layoff protection.  Information was presumptively relevant and employer failed to show that it had legitimate and substantial confidentiality interest in test’s integrity that would genuinely be placed at risk by providing information.)

Individual over scale contracts.  Colorado Symphony Association, 366 NLRB No. 60 (April 13, 2018) (Employer violated Act by refusing to provide union copies of individual over scale contracts of bargaining unit musicians in brass and woodwinds sections, in light of allocation of gender discrimination in pay.  Difference in panel if request was only to help other employees in individual negotiations.)

 

BARGAINING IMPASSE

Remedy when no impasse.  Mike-Sell’s Potato Chip Co., 366 NLRB No. 29 (March 7, 2018) (Board awards back pay and benefits based on prior agreement until parties reach new contract or bargaining leads to good faith impasse.)

 

CHANGE IN EMPLOYING UNIT AND SUCCESSORSHIP

Clear announcement of initial terms.  First Student Inc., 366 NLRB No. 13 (Feb. 6, 2018) (Employer violated Act by failing to provide union with notice and opportunity to bargain before instituting new terms and conditions of employment, because it was a “perfectly clear” successor.  Employer did not clearly announce intent to establish new set of conditions before or simultaneously with expressing intent to retain all sellers’ unit employees; saying previous conditions would be subject to negotiation was insufficient.  New employer must make clear employees’ employment is conditioned on acceptance of new terms.  Employer also violated Act by conditioning beginning of bargaining on union’s agreement to withdraw unfair labor practice charge.)

Hiring “substantial and representative complement.”  Ride Right, LLC, 366 NLRB No. 16 (Feb. 8, 2018) (Successor employer violated Act because it refused to bargain with union after it hired a “substantial and representative complement” of employees, the majority of whom were represented by union under predecessor.  A “substantial and representative complement” does not equate with a “full employee complement.”  Successor attained a “substantial and representative complement” when it assumed predecessor’s operations, substantially filled job classifications, provided normal service in same manner as a predecessor, and had no definite plans to expand. (Majority of predecessor’s employees worked for successor at that time.))

Perfectly clear successor.  Walden Security, Inc., 366 NLRB No. 44 (March 23, 2018) (Employer was “perfectly clear” successor and violated Section 8(a)(5) and (1) by failing to provide union with notice and opportunity to bargain before imposing initial terms and conditions of employment for unit employees, because it expressed an intent to retain predecessor’s employees without making it clear that employment would be conditioned on acceptance of new terms and conditions of employment.)

 

JURISDICTIONAL DISPUTES

Threat to wobble job site.  Electrical Workers Local 332, 365 NLRB No. 171 (Jan. 8, 2018) (Threatening owner to ‘wobble’ jobsite, subject it to retaliatory job actions, including slowdowns, strikes, and walkouts, unless contractors working their reassigned work violated Section 8(b)(4)(D) and justified Board deciding competing claims for work because there was no voluntary method for adjusting dispute.)

Adjustment.  New England Regional Council of Carpenters Local 33, 366 NLRB No. 24 (Feb. 27, 2018) (Carpenters’ union entitled to disputed work, because carpenters used threats of job action to claim the work, no method of voluntary adjustment of dispute, and work assignment factors favored awarding work to carpenters’ union instead of glaziers’ union.)

 

NLRB ORDERS AND REMEDIES

Joint employer standard.  Hy-Brand Industrial Contractors, Ltd., 366 NLRB No. 26 (Feb. 26, 2018) (Set aside recent decision requiring joint employer to share actual control rather than potential control, based on ethical concerns regarding Board member participating in case.)

Alter egos and single employer.  RDM Concrete & Masonry, LLC, 366 NLRB No. 34 (March 13, 2018) (Nonunion companies were alter ego of and single employer with union company all bound by union company’s collective-bargaining agreement.)

 

 

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