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Today’s Labor Update, February 12, 2018

The NLRB Signals Significant Shift On Permissible Picketing Techniques.

February 8, 2018

The National Labor Relations Board found that a union committed an unfair labor practice by repeatedly blocking ingress and egress to a hotel for periods of one to four minutes. The opinion provides details about the union’s picketing efforts as a part of an organizing campaign. The blockage occurred during at least ten separate occasions over the course of more than a month. The Board adopted the ALJ’s decision holding that the picketers’ actions of standing in front of vehicles for minutes at a time, many driven by hotel valets, attempting to enter and/or exit the hotel violated Section 8(b)(1)(A) of the National Labor Relations Act.

As the dissent notes, this decision is significant because there were no allegations of violence and because the blockage lasted such short periods of time. Regardless, the Board determined that the union’s repeated, intentional blockage of drivers, including employees, would reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights.

Although injunctive relief was not sought in this situation, the NLRB’s decision in Unite Here! Local 5 (Acqua-Aston Hospitality, LLC) provides management with support for prompt relief in similar circumstances.

Employers Take Note: Labor Board Poised to Reverse Additional Obama-Era Work Rule Interpretations

Article By: Philip B. Rosen Howard M. Bloom

The National Labor Relations Board has taken another giant step toward repudiating the Obama-era Board’s highly restrictive interpretations of work rules, set forth in Lutheran Heritage-Livonia,343 NLRB 646 (2004).

In Grill Concepts Services, Inc. v. NLRB, Nos. 16-1238, 1287, at the Board’s request, the U.S. Court of Appeals for the District of Columbia Circuit remanded to the Board for consideration of the legality of several work rules the Board had determined violated the National Labor Relations Act (NLRA). Grill Concepts Services, Inc., 364 NLRB No. 36 (2016). The remand for reconsideration was based on the Board’s December 2017 decision in The Boeing Co., 365 NLRB No. 154.

Under The Boeing Co., the NLRB announced it had rescinded its test for determining the legality of facially neutral work rules (asking whether those rules can be “reasonably construed” by an employee to prohibit the exercise of concerted, protected activity). Instead, the Board will consider whether facially neutral rules, when reasonably interpreted, potentially would interfere with NLRA Section 7 rights to engage in “concerted activities.” The Board will analyze (i) the nature and extent of the potential impact on employees’ NLRA rights, and (ii) the employer’s legitimate justifications for maintaining the rules.

The remand bears close watching because the rules the NLRB will be reconsidering under The Boeing Co. test are similar to those that many employers maintain now or modified or eliminated because of the Obama Board’s crackdown pursuant to the “reasonably construed” standard articulated in Lutheran Heritage-Livonia.

Legality of Rules

The Board will review the legality of the following rules (or portions thereof), various versions of which the Obama Board often found unlawful. (The specific language to be reviewed is shown in italics):

Team Member Relations/Positive Culture

[The Employer] believes that the working conditions, wages, and benefits offered to Team Members are competitive with those offered by other employers in this area and in this industry. If Team Members have concerns about working conditions, wages or benefits, they are encourage[d] to voice these concerns openly, respectfully and directly to their General Managers or if necessary, the Regional/Area Director or with the People Department.

The Timekeeping Rule

Please DO NOT loiter on restaurant property when not working. While off the clock and waiting to punch in, Team Members should not be in the restaurant earlier than 15 minutes prior to their scheduled starting time nor should they remain more than 15 minutes after they clock out.

Team Member Conduct While Representing the Restaurant

Team Members must refrain from any negative behaviors (as listed in this manual) off the property while representing the Restaurant. The Restaurant reserves the right to counsel any Team Member who jeopardizes the welfare and/or reputations of the Restaurant up to and including termination of employment.

Online Communications

  1. Accurate Information…. Team Members and other company representatives may not knowingly communication information that is untrue or deceptive.
  2. Protection of Confidential and Proprietary Information…. Team members and other company representatives must maintain the confidentiality of information [Employer] considered confidential, including the company data, Guest data, partner and/or supplier data, personal Team Member data, and any information not generally available to the public.

Progressive Discipline: Gross Misconduct

A Team Member may be terminated for cause without prior warning for committing any conduct issues as listed as Gross Misconduct. Gross Misconduct issues include … failure to participate in or intentional falsification of a statement during a formal company investigation; … unauthorized disclosure of confidential or privileged information concerning company or Team Members.

The Court of Appeals also remanded the Board’s finding that a provision in the employer’s Dispute Resolution Arbitration Agreement subjecting “employment-related disputes” to arbitration violated Section 8(a)(1) because it could be reasonably construed to require arbitration of unfair labor practice charges.

Legitimate Employer Interests

In many instances, the Obama-era Board appeared to disregard legitimate employer interests in maintaining work rules similar to those above. Therefore, many employers weakened their work rules to an extent that their continuing usefulness was questionable. The Boeing Co. decision and the Board’s remand request in Grill Concepts Services signals that employers once again may maintain work rules that will serve their legitimate interests.

While we expect the Board to pursue a balanced approach when considering the validity of work rules, this remains a complicated, highly fact-intensive area of the law. Employers should seek appropriate legal review of any work rule that may implicate employee rights under Section 7 of the Act.

Summary of NLRB Decisions for Week of January 29 – February 2, 2018

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

EYM King of Missouri, LLC d/b/a Burger King  (14-CA-188832; 366 NLRB No. 5)  Kansas City, MO, January 29, 2018.

The Board adopted the Administrative Law Judge’s dismissal of the complaint alleging that the Respondent violated Section 8(a)(1) by threatening to discharge employees for engaging in a protected strike and threatening to falsify the reasons for the discharges.

Charge filed by Workers Organizing Committee – Kansas City.  Administrative Law Judge Christine E. Dibble issued her decision on September 29, 2017.  Members Pearce, McFerran, and Emanuel participated.


Pro Works Contracting, Inc. (21-CA-120477 and 21-CA-121946; 366 NLRB No. 1) El Cajon, CA, January 30, 2018.  Errata to January 4, 2018 Supplemental Decision and Order.  Errata.  Amended Supplemental Decision and Order.


Ashford TRS Nickel, LLC, a subsidiary of Ashford Hospitality Trust, Inc.  (19-CA-032761; 366 NLRB No. 6)  Anchorage, AK, February 1, 2018.

The Board affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by filing and maintaining a state-law based lawsuit against the Union in response to the Union’s statutorily protected encouragement of a consumer boycott of the Respondent’s hotel.  The Respondent is a real estate investment trust that purchased the Sheraton Anchorage Hotel and contracted with Remington Lodging and Hospitality to operate the hotel.  When the collective bargaining agreement expired, Remington and the Union began contentious contract negotiations that have resulted in multiple unfair labor practice cases before the Board.

In this case, as a preliminary matter, the Board affirmed the judge’s finding that the Respondent was liable for interfering with employees’ protected rights even though it was not the proximate employer of the employees.  On the question of whether the lawsuit constituted unlawful interference with protected activity, first, the judge found it was a federally preempted lawsuit that targeted activity that is protected under the National Labor Relations Act.  See Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731, fn. 5 (1983).  Members Pearce and McFerran affirmed the judge’s decision in this respect, while Chairman Kaplan found it unnecessary to rely on this rationale.  Second, the judge found that the lawsuit violated the Act because it was baseless and retaliatory.  See BE & K Construction Co.,351 NLRB 451 (2007).  The Board panel unanimously affirmed this finding.  In so doing, the Board found that the lawsuit was baseless because the Respondent failed to plead an essential element of its claims and relied on conduct that did not concern the Sheraton Anchorage Hotel.  In affirming that the lawsuit was filed with a retaliatory motive, the Board relied on the fact that the lawsuit targeted protected conduct and that the widespread unfair labor practices were probative of the Respondent’s motive.  Members Pearce and McFerran also relied on the fact that the lawsuit was objectively baseless to support a finding that the motive was retaliatory.

Charge filed by UNITE HERE! Local 878.  Administrative Law Judge Gerald Etchingham issued his decision on November 18, 2013.  Chairman Kaplan and Members Pearce and McFerran participated.


The Grove at Irwin  (06-CA-201738; 366 NLRB No. 11)  North Huntington, PA, February 1, 2018.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(5) and (1) by unreasonably delaying in providing the Union with certain requested information.

Charge filed by Service Employees International Union, Healthcare Pennsylvania, CTW, CLC. Chairman Kaplan and Members McFerran and Emanuel participated.


Costco Wholesale Corporation  (05-CA-169958; 366 NLRB No. 9)  Glen Allen, VA, February 2, 2018.

The Board adopted the Administrative Law Judge’s ruling granting the General Counsel’s motion to amend the complaint at the hearing.  In so doing, the Board applied the test in Redd-I, Inc., 290 NLRB 1115 (1988), to find that the timely allegation and the untimely allegation were sufficiently closely related to allow the untimely allegation to be added to the complaint.  The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) when it instructed an employee not to talk to anyone about an ongoing disciplinary investigation.  The Board clarified that the violation found was an unlawful statement, not the promulgation of an unlawful work rule.

Charge filed by Teamsters Local 592, International Brotherhood of Teamsters.  Administrative Law Judge Donna N. Dawson issued her decision on February 24, 2017.  Chairman Kaplan and Members Pearce and McFerran participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Covanta Essex Co.  (22-RD-199469)  Newark, NJ, January 30, 2018.  The Board denied the Employer’s Request for Review of the Regional Director’s determination to dismiss the petition subject to reinstatement as the request did not raise any substantial issues warranting review.  Petitioner – an individual.  Chairman Kaplan and Members Pearce and Emanuel participated.

Community Health Services, Inc.  (01-RD-202558)  Hartford, CT, January 31, 2018.  The Board denied review of the Petitioner’s and Employer’s Requests for Review of the Regional Director’s Report on Objections and Recommendation to Count Ballot (in a Sonotone election where the ballot in question did not answer the question regarding inclusion in a unit with non-professionals but voted in favor of representation) as the Requests did not raise any substantial issues warranting review.  Petitioner – an individual.  Chairman Kaplan and Members Pearce and Emanuel participated.

Bronx Lobster Place, LLC  (02-RC-191753)  Bronx, NY, February 2, 2018.  The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative, vacating the election and ordering a second election be directed.  The Board found, contrary to the Regional Director, that the late opening of the polls, combined with the possible disenfranchisement of potentially dispositive voters, warranted setting the election aside.  Member Pearce would have denied review, finding, in agreement with the Regional Director, that the testimony of the Employer’s witnesses affirmatively established that employees could not have been disenfranchised by the late opening of the polls.  Petitioner – International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 15.  Members Pearce, McFerran, and Emanuel participated.

C Cases

Nippon Dynawave Packaging Co.  (19-CA-194956)  Longview, WA, January 29, 2018.   No exceptions having been filed to the December 12, 2017 decision of Administrative Law Judge Amita Baman Tracy’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order.  Charge filed by Association of Western Pulp and Paper Workers.

James Mulligan Printing Company  (14-CA-201194 and 14-CA-204833)  St. Louis, MO, January 29, 2018.  No exceptions having been filed to the December 15, 2017 decision of Administrative Law Judge Melissa M. Olivero’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order.  Charges filed by Graphic Communications Conference International Brotherhood of Teamsters, Local 6-505M.

Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville  (13-CA-187272, et al.)  Libertyville, IL, January 29, 2018.  The Board denied the Respondent’s request for special permission to appeal from the Administrative Law Judge’s order applying his sequestration ruling to the Respondent’s counsel because the counsel would be called as a witness at the hearing.  In so doing, the Board found that the judge had not abused his discretion.  Charges filed by International Association of Machinists & Aerospace Workers, AFL-CIO, and an individual.  Chairman Kaplan and Members Pearce and Emanuel participated.

Interior Specialists, Inc.  (28-CA-196627 and 28-CA-203706)  Phoenix, AZ, February 1, 2018.  The Board denied the Respondent’s Motion to Dismiss the claims raised in the consolidated complaint’s paragraphs 4(b), 4(c), 4(k), and 4(h).  The Board noted that the Region issued an amendment to the consolidated complaint which deleted certain of the allegations at issue in the Respondent’s motion.  Regarding the remaining allegations in the consolidated complaint, the Board found that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  Charges filed by an individual.  Chairman Kaplan and Members Pearce and Emanuel participated.


Appellate Court Decisions

Grill Concepts Services, Inc. d/b/a The Daily Grill, Board Case No. 31-CA-126475 (reported at 364 NLRB No. 36) (D.C. Cir. Decided January 29, 2018)

In an unpublished per curiam judgment, the D.C. Circuit summarily enforced those portions of the Board’s order related to several uncontested unfair-labor-practice violations, and remanded the remainder of the case, which includes numerous work rule findings, to the Board for reconsideration in light of The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).  In Boeing, the Board (Chairman Miscimarra, Members Kaplan and Emanuel; Members Pearce and McFerran, dissenting) overruled one prong of its previous test, announced in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), under which a “facially neutral” rule (one not explicitly restricting Section 7 activity) was unlawful if employees would “reasonably construe” it as prohibiting protected activity.

Boeing issued after briefing was completed in this review proceeding but before oral argument had been held.  In its judgment, after granting partial summary enforcement, the Court remanded not only with respect to the seven violations affected by Boeing, but also with respect to the remaining disputed violations that were unaffected by Boeing.  The Court explained that “[a]lthough these determinations are unaffected by the new Boeing test, we believe it would waste judicial resources to hear and decide them now while, at the same time, a substantial part of the case is remanded.”

The Circuit Court judgment that issued on January 29, 2018 is here.


Administrative Law Judge Decisions

Saxon Hall Management LLC, and its successors Silverstone Property Group, LLC, 62-60 99th Street Owner II, LLC, and California Crown Energy Services, Inc. d/b/a Able Services, as joint employers  (29-CA-167016; JD(NY)-02-18)  Brooklyn, NY.  Administrative Law Judge Jeffrey P. Gardner issued his decision on January 29, 2018.  Charge filed by an individual.

Huber Specialty Hydrates, LLC  (15-CA-168733, et al.; JD-07-18)  Bauxite, AR.  Administrative Law Judge Christine E. Dibble issued her decision on January 29, 2018.  Charges filed by United Steel Workers, Local 4880, and an individual.

American Sales and Management Organization, LLC d/b/a Eulen America  (12-CA-163435 and 12-CA-176653; JD-08-18)  Fort Lauderdale, FL.  Administrative Law Judge Ira Sandron issued his decision on January 30, 2018.  Charges filed by Service Employees International Union, Local 32BJ.

Mitsubishi Hitachi Power Systems Americas, Inc.  (12-CA-188952; JD-06-18)  Lake Mary, FL.  Administrative Law Judge Geoffrey Carter issued his decision on February 1, 2018.  Charge filed by an individual.

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