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Key NLRB Decisions January 1-11, 2019

Johnston Fire Svcs., LLC, 367 NLRB No. 49 (Jan. 3, 2019)

Under the Bourne test, the employer did not unlawfully interrogate an employee during a discharge interview.  The company owner did not interfere with, restrain, or coerce the employee in the exercise of his Section 7 rights because only one of the five Bourne factors militate towards finding that the question violated Section 8(a)(1) and the other four factors tip the scales in the other direction.  Of key importance is that the employee initiated the conversation with the owner prior to the owner asking him if he had seen a union organizer.

The employer did not violate Section 8(a)(3) and (1) by unlawfully discharging two employees for engaging in union activity, but rather discharged them for attendance issues prior to learning of their protected activity.  The protected activity consisted of participation in a meeting with a union organizer and two attorneys who accompanied him.  At the meeting, the employees discussed with the lawyers the prospect of filing a prevailing wage lawsuit against the employer.  The activity is protected because the employees were acting together for their mutual aid or protection concerning a matter central to the employment relationship.

After their discharges, the employees cast challenged ballots in a union election.  Because the discharges were lawful, the Board sustained the challenges and ordered the votes not be counted.  Without those two challenged ballots, the election resulted in a tie.  Thus, the union lost the election.

NP Sunset LLC d/b/a Sunset Station Hotel Casino, 367 NLRB No. 62 (Jan. 7, 2019)

The employer violated Section 8(a)(5) and (1) by failing and refusing to bargain with the union and refusing to furnish the union the requested relevant information; however, the employer did not violate the Act by refusing to furnish the union with employee social security numbers.  The Board has held employee social security numbers are not presumptively relevant and the requesting union must demonstrate the relevance of such information under Maple View Manor. Here, the union’s request did not specify why it wanted the social security numbers, and the union did not otherwise demonstrate its relevance.

The relevant information includes:  (1) a list of current employees including their names, dates of hire, rates of pay, job classification, last known address, phone number, and date of completion of any probationary period; (2) a copy of all current company personnel policies, practices or procedures; (3) a statement and description of all company personnel policies, practices or procedures other than those mentioned in number 2 above; (4) a copy of all company fringe benefit plans including pension, profit sharing, severance, stock incentive, vacation, health and welfare, apprenticeship, training, legal services, child care or any other plans which relate to the employees; (5) copies of all current job descriptions; (6) copies of any company wage or salary plans; (6) copies of all disciplinary notices, warnings or records of disciplinary personnel actions for the last year; (7) a copy of all witness statements for any such discipline; and (8) a statement and description of all wage and salary plans which are not provided under number 6 above.

With respect to the union’s request for copies of witness statements in disciplinary matters, the employer did not contend there is a confidentiality interest weighing against disclosure of such statements or raise any particularized defense, including that the applicable standard should be changed under Piedmont Gardens.  Chairman Ring and Member Kaplan applied Piedmont Gardens here as extant precedent absent any request to reconsider it.

With respect to the union’s request for wage or salary plans of unit employees, the employer referred to this information as confidential but provided no explanation or argument in support. The mere assertion of confidentiality does not, by itself, raise a material issue of fact warranting consideration under Mission Foods.

Waste Collection, Corp., 367 NLRB No. 63 (Jan. 8, 2019)

The employer violated Section 8(a)(1) by threatening its employees with job loss and plant closure (by threatening to cancel the employer’s waste collections contract with the Municipality unless its employees removed the union as their collective-bargaining representative), telling its employees that it would not bargain with the union, and interrogating its employees about their and other employees’ union membership, activities, and sympathies.

Alstate Maintenance, LLC, 367 NLRB No. 68 (Jan. 11, 2019)

The employer did not violate Section 8(a)(1) by discharging a skycap at Kennedy International Airport for engaging in alleged protected concerted activity where the employee, while waiting for the arrival of the van carrying a French soccer team, said, “We did a similar job a year prior and we didn’t receive a tip for it.”  The NLRB General Counsel contended because the employee spoke in the presence of other skycaps and a supervisor and included the word “we” in his statement, the statement qualifies as concerted activity.   The Board did not agree, found the statement was “mere griping,” and reversed WorldMark by Wyndham, 356 NLRB 765 (2011).  The Board explained WorldMark had deviated from longstanding precedent on protected concerted activity by blurring the distinction between protected group action and unprotected individual action.  Even if the activity here was concerted, it did not have mutual aid or protection as its purpose.

Member McFerran, dissenting, would find the employer violated Section 8(a)(1) by discharging the employee for his protected concerted activity, and would not have overruled WorldMark. She would find the employee’s complaint constituted an attempt to initiate a group objection over tips, and thus the employee was engaged in concerted activity for the mutual aid and protection of fellow employees.

Categories: Labor Law Blog