Key NLRB Decisions January 14-25, 2019; Christine K. D. Belcaid

Tegna, Inc. d/b/a KGW-TV, 367 NLRB No. 71 (Jan. 17, 2019)

The employer, a broadcast television station, violated Section 8(a)(5) and (1) by failing and refusing to provide certain information related to its market share, ratings, and indicia of viewership; reports, analyses, data, or other documents concerning competition from other media outlets, in Portland and nationally; reports, analyses, data, or other documents concerning changes in advertising placement and revenue for television stations, including the employer; a list of media content providers the employer views as its primary competitors; documents, reports, and analyses concerning the employer’s ratings and viewership; viewer/consumer comments and complaints relating to the employer’s programming and service; and advertiser comments and complaints relating to the employer’s programming and service because that information would help the union evaluate the employer’s claims that it needed more flexibility to remain competitive in a changing media landscape.

The employer did not violate Section 8(a)(5) and (1) by failing and refusing to provide specific details on its advertising pricing structure and clients because the employer never stated it had experienced any particular increase or decrease in its advertising revenue in recent years, and this information would not provide the union with any guidance as to how the employer’s proposals would affect its ability to compete in the modern Internet age.

The employer did not violate Section 8(a)(5) and (1) by failing and refusing to provide the employer’s general revenue and operating expenses because the employer did not claim “inability to pay.”

Michigan Bell Telephone Company, 367 NLRB No. 74 (Jan. 24, 2019)

The employer violated Section 8(a)(5) and (1) by failing and refusing to provide the union with a description of the information that a unit-employee informant provided to the employer about a possible concerted refusal to work overtime.  The employer did not violate Section 8(a)(5) and (1) by failing and refusing to provide the union with the informant’s identity and a list of people to whom the employer distributed the information provided by the informant because that information is not relevant to the union’s representational duties.  The employer violated Section 8(a)(5) and (1) by failing to respond in a timely manner to the union’s request for the distribution list because an employer has a duty to respond timely to a union’s request for presumptively relevant information, even if the employer ultimately rebuts the presumption of relevance.

Dissenting in part, Member McFerran would have found the distribution list and the informant’s identity are relevant to the union’s representational duties but the employer established a legitimate confidentiality interest in the informant’s identity.

Walt Disney Parks and Resorts U.S. d/b/a Walt Disney World Co., 367 NLRB No. 80 (Jan. 25, 2019)

The Board granted the employer’s request to review the Regional Director’s Decision and Order Clarifying Bargaining Unit, in which he found the unit includes Ride Service Associates (RSAs).  RSAs provide ridesharing or ride-hailing services to guests at the employer’s parks and resorts. The Regional Director found the RSAs perform the same basic functions historically performed by unit employees and thus are included in the unit under Premcor, Inc.  The Board reversed and found the Regional Director erred in applying Premcor, Inc.  The Board applied its “restrictive” accretion analysis and found the differences between RSAs and unit employees showed the RSAs had a separate group identity and the evidence did not establish the RSAs shared an overwhelming community of interest with the unit employees, particularly given there was no evidence of temporary interchange between, or shared day-to-day supervision among, RSAs and bargaining unit employees.

SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019)

The Board majority reversed FedEx Home Delivery, 361 NLRB 610 (2014), and returned to the traditional common-law agency test to determine whether a worker is an employee (covered by NLRA) or independent contractor (not covered by NLRA).  The FedEx standard severely limited the significance of a worker’s entrepreneurial opportunity for economic gain.  Applying the old standard, the Board in SuperShuttle DFW, Inc. concluded the SuperShuttle franchisees are not statutory employees under the NLRA but rather independent contractors, and accordingly dismissed the representation petition at issue.

Schuff Steel, 367 NLRB No. 76 (Jan. 25, 2019)

The employer did not unlawfully layoff an employee.  The General Counsel failed to prove a factor motivating the employer to lay off the employee was animus based on his protected concerted activities.

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