Summary of NLRB Decisions for Week of April 30 – May 4, 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
Whole Foods Market, Inc. (01-CA-096965, et al.; 366 NLRB No. 77) Cheshire, CT and Chicago, IL, May 1, 2018.
The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 363 NLRB No. 87 (2015). The Board’s decision was enforced by the United States Court of Appeals for the Second Circuit on June 1, 2017. 691 Fed. Appx. 49 (2d Cir. 2017). The Board noted that it has no jurisdiction to modify an Order that has been enforced by a court of appeals.
Charges filed by United Food and Commercial Workers, Local 919 and Workers Organizing Committee of Chicago. Administrative Law Judge Steven Davis issued his decision on October 30, 2013 and the Board issued its decision in 363 NLRB No. 87 on December 24, 2015. Members Pearce, McFerran, and Kaplan participated.
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Southern Bakeries, LLC (15-CA-169007, et al.; 366 NLRB No. 78) Hope, AR, May 1, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) when it issued a last chance agreement to, discharged, and marked ineligible for rehire an employee based on prior discipline that violated Section 8(a)(3) and (1). The Board reversed the judge’s unsupported conclusions that the Respondent also violated Section 8(a)(4) through the same discipline and that the Respondent violated Section 8(a)(3), (4), and (1) by suspending that employee pending an investigation. The Board additionally adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by telling an employee not to discuss her discipline with other employees and, later, that she was being discharged for doing so. The Board severed and retained for future consideration the judge’s findings regarding the Respondent’s maintenance of seven work rules.
Charges filed by individuals and Bakery, Confectionery, Tobacco Workers, and Grain Millers Union. Administrative Law Judge Arthur J. Amchan issued his decision on May 11, 2017. Members McFerran, Kaplan, and Emanuel participated.
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Ingredion, Inc. d/b/a Penford Products Co. (18-CA-160654 and 18-CA-170682; 366 NLRB No. 74) Cedar Rapids, IA, May 1, 2018.
The Board adopted the Administrative Law Judge’s finding that Respondent violated Section 8(a)(5) by implementing a final contract offer without having reached impasse in bargaining with the Union. A panel majority (Members McFerran and Emanuel) found it unnecessary to pass on the judge’s additional findings that the Respondent violated Section 8(a)(5) by engaging in surface bargaining before the unlawful implementation and making additional unilateral changes to employees’ terms of employment after the implementation, as finding those violations would not have affected the remedy. In addition, the Board found that the Respondent engaged in direct dealing with employees and delayed providing presumptively relevant information requested by the Union in violation of Section 8(a)(5), and denigrated the Union to employees in violation of Section 8(a)(1). Member Pearce would have found that the Respondent unlawfully engaged in surface bargaining, made unilateral changes, and engaged in direct dealing and denigrated the Union to employees on additional occasions. The Board’s remedial order included requirements that the remedial notice be read aloud to the unit employees in order to dissipate the lingering effects of the Respondent’s violations; and that the Respondent’s chief labor negotiator, either read the notice or be present at the notice-reading given his dominating role in negotiations and his direct responsibility for most of the violations found. Member Emanuel would not have required a remedial notice-reading. Administrative Law Judge Mark Carissimi issued his decision on August 26, 2016. Charges filed by BCTGM Local 100G, affiliated with Bakery, Confectionary, Tobacco Workers, and Gain Millers International Union, AFL-CIO. Members Pearce, McFerran, and Emanuel participated.
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Pro Works Contracting, Inc. (21-CA-120477 and 21-CA-121946; 366 NLRB No. 1) El Cajon, CA, May 2, 2018. Errata to January 4, 2018 Supplemental Decision and Order. Errata Amended Decision.
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Ports America Outer Harbor, LLC, currently known as Outer Harbor Terminal, LLC (32-CA-110280 and 32-CB-118735; 366 NLRB No. 76) Oakland, CA, May 2, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent Employer, a successor employer, violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Machinists as the representative of its bargaining-unit maintenance and repair employees; and Section 8(a)(2) and (1) for recognizing the Respondent Union (ILWU) when ILWU did not represent an unassisted and uncoerced majority of the unit employees and applying the terms of its collective-bargaining agreement with the ILWU (PMA-ILWU Agreement), including its union-security provisions, to the unit employees. The Board also adopted the judge’s conclusion that the Respondent Union violated Section 8(b)(1)(A) and (2) by accepting assistance and recognition from the Respondent Employer when it did not represent an unassisted and uncoerced majority of the unit employees and by agreeing to application of the PMA-ILWU Agreement, including its union-security provisions, to those employees at a time when it did not represent an unassisted and uncoerced majority.
Charges filed by International Association of Machinists and Aerospace Workers, District Lodge 190, East Bay Automotive Machinists Lodge No. 1546, International Association of Machinists and Aerospace Workers, AFL-CIO/CLC. Administrative Law Judge Mary Miller Cracraft issued her decision on December 1, 2016. Members Pearce, Kaplan, and Emanuel participated.
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Coral Harbor Rehabilitation and Nursing Center (22-CA-167738; 366 NLRB No. 75) Neptune City, NJ, May 2, 2018.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of the Respondent’s Licensed Practical Nurses (LPNs) and by making unilateral changes to the LPNs’ terms and conditions of employment. The Board clarified that the judge only mistakenly referred to the Respondent as a “perfectly clear Burns successor,” but actually found that the Respondent was a normal successor under NLRB v. Burns International Security Services, 406 U.S. 272 (1972). Additionally, the Board adopted the judge’s findings that the Respondent failed to establish that the LPNs possess the Section 2(11) supervisory authority to discipline or effectively recommend discipline or to adjust grievances, and observed that the same result would be obtained under the standards employed by the United States Court of Appeals for the Third Circuit. See NLRB v. New Vista Nursing & Rehabilitation, 870 F.3d 113 (3d Cir. 2017); see also NLRB v. Attleboro Associates, 176 F.3d 154 (3d Cir. 1999).
Charge filed by 1199 SEIU United Healthcare Workers East. Administrative Law Judge Kenneth W. Chu issued his decision on July 13, 2017. Members Pearce, Kaplan, and Emanuel participated.
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JBM Janitorial Maintenance, Inc. (16-CA-201387; 366 NLRB No. 79) Houston, TX, May 4, 2018.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s withdrawal of its answer to the complaint. The Board found that the Respondent violated Section 8(a)(3) and (1) by discharging an employee who filed a wage theft complaint against the Respondent with the city of Houston and spoke at a Houston City Council meeting about the wages, hours, and working conditions of the Respondent’s employees. The Board ordered the Respondent to offer the discharged employee full reinstatement to her former position if the Respondent resumes operations.
Charge filed by Service Employees International Union Texas. Chairman Ring and Members Pearce and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Marathon Petroleum Logistics Services, LLC (14-RD-210506) Wood River, IL, May 3, 2018. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Order, as the Employer did not raise any substantial issues warranting review. Petitioner— an individual. Union— United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC. Members Pearce, McFerran, and Kaplan participated.
C Cases
North Star Seafood, LLC (12-CA-208362) Pompano Beach, FL, April 30, 2018. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, finding that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. The Board rejected the Region’s assertion that the Employer’s Petition to Revoke should be denied because it had not been filed with the Regional Director, as required by Sec. 102.31(b) of the Board’s Rules and Regulations. The Board found that no party showed that it was prejudiced by the Employer’s procedural error. Charge filed by International Brotherhood of Teamsters, Local Union No. 769. Members Pearce, McFerran, and Emanuel participated.
Sysco Grand Rapids, LLC (07-CA-197034, et al.) Grand Rapids, MI, April 30, 2018. The Board denied the Respondent’s Motion to Dismiss the consolidated complaint, finding 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. The Board noted that in light of the Erratum issued by the Administrative Law Judge in Case 07-CA-146820 et al., which corrected an inadvertent typographical error in the identity of the Charging Party Union in those cases, there is no merit to the Respondent’s assertion, based on that misidentification, that the Section 8(a)(5) allegations in this case must be dismissed because the Respondent had not been found to have any obligation to recognize or bargain with the Charging Party. Charges filed by General Teamsters Local Union No. 406, International Brotherhood of Teamsters (IBT). Members Pearce, McFerran, and Kaplan participated.
United States Postal Service (10-CA-200017) Augusta, GA, May 1, 2018. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. The complaint had alleged Section 8(a)(5) unreasonable delay-in-providing relevant information violations. Member Emanuel noted that he would not approve the parts of the Order that require the Respondent to take action with respect to “any other labor organizations” or “any other such union,” because no violations against other unions are alleged as part of this case. Charge filed by National Association of Letter Carriers Branch 263. Members Pearce, McFerran, and Emanuel participated.
Saxon Hall Management LLC, and its successors Silverstone Property Group, LLC 6260 99th Street Owner II, LLC and California Crown Energy Services, Inc. d/b/a Able Services, as joint employers (29-CA-167016) Brooklyn, NY, May 4, 2018. No exceptions having been filed to the January 29, 2018 decision of Administrative Law Judge Jeffrey P. Gardner’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 judge’s recommended Order. Charge filed by an individual.
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Appellate Court Decisions
PruittHealth-Virginia Park, LLC, Board Case 10-CA-173537 (reported at 364 NLRB No. 125) (D.C. Cir. decided May 1, 2018)
In a published opinion in this test-of-certification case, the Court enforced the Board’s order issued against this operator of a nursing home in Atlanta, Georgia, for its refusal to bargain after its nursing assistants, aides, and maintenance employees voted 35 to 31 in an August 2015 election to be represented by Retail, Wholesale and Department Store Union/UFCW Southeast Council.
In the underlying representation case, the Employer filed objections to the election that included allegations that, in the week before the election, Union demonstrators handbilling in front of the premises blocked employees from coming and going to work in a threatening manner, that the Union threatened two employees with physical violence if they did not vote for the Union, and that the Union unlawfully photographed employees. After a hearing was held and the Hearing Officer recommended overruling the objections, the Regional Director issued a decision adopting the Hearing Officer’s recommendation and certified the Union. The Employer requested review of all its objections except the photography allegation. The Board (then-Chairman Pearce and Members Hirozawa and McFerran) denied the Request for Review. Thereafter, the Employer refused to bargain in order to seek court review.
On review, the Court noted that the bulk of the Employer’s contentions were based on unsubstantiated disagreements with the Hearing Officer’s credibility determinations and thus, were “at best specious,” and “border[ing] on the frivolous.” Regarding the Employer’s attempt to reassert its objection alleging that the Union unlawfully photographed employees, the Court held that under the Board’s Rules and Regulations the Employer had waived the allegation by not raising it to the Board in its Request for Review. Rejecting the Employer’s argument to the contrary, the Court held that the Employer’s “unspecified, generalized objection” to the Hearing Officer’s conclusions was insufficient to preserve the allegation.
Finally, the Court rejected the Employer’s arguments that the cumulative impact of the Union’s objectionable conduct and the closeness of the election warranted overturning the election. The Court explained that a challenger to an election “may not use a cumulative-impact argument to turn a number of insubstantial objections to an election into a serious challenge.” Further, the Court stated that if there is no substantiated misconduct, “a close election is simply an indication of divided views among the employees,” and “any suggestion to the contrary is specious.”
The Court’s opinion is here (link is external).
David Saxe Productions, LLC and Vegas! The Show, LLC, Joint Employers, Board Case 28-CA-075461 (reported at 364 NLRB No. 100) (D.C. Cir. decided May 4, 2018)
In a published opinion, the Court enforced in part, and remanded in part, the Board’s order issued against these two companies that produce and manage live theatrical productions in Las Vegas, Nevada. Among the uncontested issues, the Court summarily enforced the findings of the Board (Members Hirozawa, Miscimarra, and McFerran) that the companies, as a single employer, violated Section 8(a)(1) by prohibiting and discouraging its dancers from engaging in protected concerted activity through threats, disparagement, and discrimination. Further, at the Board’s request, and in light of the issuance of The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the Court remanded additional Section 8(a)(1) violations based on the terms of an employment contract.
Before the Court, the Employer challenged only the Board’s rejection (Member Miscimarra, dissenting) of its Wright Line defense in finding that it violated Section 8(a)(1) of the Act by discharging a dancer after she raised concerns about wages, hours, and working conditions at a staff meeting. The Administrative Law Judge had dismissed the allegation after crediting the testimony of three managers that they had prior concerns about the dancer’s performance and attitude, and finding that the Employer thus met its burden of showing it would have discharged the dancer even absent her protected activity. The Board reversed, noting that the three managers who testified had earlier expressed similar concerns but recommended renewing the dancer’s contract in prior years, and that they recommended discharging her only after the staff meeting without further explanation.
On review, the Court held that remand to the Board for clarification was necessary for two reasons. Specifically, the Court stated that the Board “functionally rejected a key credibility finding . . . without acknowledging that it was doing so,” and that the Board “appears not to account for evidence detracting from” its rejection on the Employer’s defense.
The Court’s opinion is here (link is external).
StaffCo of Brooklyn, LLC, Board Case No. 29-CA-134148 (reported at 364 NLRB No. 102) (D.C. Cir. decided May 4, 2018)
In a published opinion, the Court enforced the Board’s order issued against this Employer that is a registered New York State Professional Employer Organization. The Board (Chairman Pearce and Member Hirozawa; Member McFerran, dissenting) found that the Employer violated Section (a)(5) and (1) by unilaterally ceasing contributions to a Union pension plan after contract expiration.
In 2011, the Employer contracted with the State University of New York Downstate Medical Center to hire and employ non-physician staff at Long Island College Hospital, and recognized the New York State Nurses Association as the representative of the registered nurses and nurse practitioners working at the hospital and its nearby clinics. Thereafter, the Employer and Union entered into a collective-bargaining agreement under which the Employer agreed to make contributions to the Union’s pension plan and to be bound by the pension plan’s policy for continuation of coverage upon expiration of a collective-bargaining agreement.
In 2012, after expiration of their initial contract, the parties agreed to three extensions and two interim agreements to continue pension coverage. Meanwhile, due to budget deficits, the hospital was scheduled to close in May 2012, and accordingly, the employment of most unit employees would end. At a meeting that month, the parties discussed the upcoming layoff of many (but not all) remaining unit employees, and the Union asked the Employer to execute another contract extension and to remain current on pension contributions. The Employer declined to discuss the issue. Later that month, the last contract extension expired. The Employer continued to employ 39 unit employees, but ceased making pension contributions, while maintaining all other terms and conditions of the expired contract. Multiple times over the coming months, the Union requested that the Employer make pension contributions for continuing employees. On those facts, the Board found the Employer’s unilateral change in ceasing pension contributions violated its statutory duty to bargain.
Before the Court, the Employer admitted that it ceased the pension contributions, but raised three affirmative defenses, all of which the Court rejected. First, the Court held that the Union had not expressly waived its right to bargain over contributions under the plan’s continuation policy, which stated that “participation in and status” as an Employer under the plan would “terminate” at contract expiration. The Court explained that no precedent supported the Employer’s argument that such language amounted to “a unilateral right to cease making pension plans.” The Court thus concluded that under the clear and unmistakable waiver standard, which places the burden on the party asserting waiver, the policy language did not establish waiver. Second, contrary to the Employer’s contention, the Court held that substantial evidence supported the Board’s finding that the Union had, in fact, requested bargaining. Third, the Court rejected the Employer’s impossibility defense, explaining that the Employer had not shown that the pension contributions, if submitted, would have been rejected.
The Court’s opinion is here (link is external).
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Administrative Law Judge Decisions
Savera Industries, Inc., Superior Building Services, Inc. d/b/a Savera Industries, Inc., Superior Cleaning Services d/b/a Savera Industries, Inc., a single employer and Industrial Steam Cleaning of Long Island, a joint employer (29-CA-193068; JD(NY)-09-18) Brooklyn, NY. Administrative Law Judge Benjamin W. Green issued his decision on May 1, 2018. Charge filed by an individual.
CSC Holdings, LLC (29-CA-190108; JD(NY)-10-18) Brooklyn, NY, May 3, 2018. Errata and Order Modifying the CSC Holdings, LLC Decision of Administrative Law Judge Kenneth W. Chu issued on April 27, 2018. Errata Amended Decision.
Pruitthealth Veteran Services-North Carolina, Inc. (10-CA-191492; JD-28-18) Black Mountain, NC. Administrative Law Judge Keltner W. Locke issued his decision on May 4, 2018. Charge filed by an individual.
Central KY Branch 361, National Association of Letter Carriers, AFL-CIO (NALC)(United States Postal Service) (09-CB-202214; JD-29-18) Lexington, KY. Administrative Law Judge Andrew S. Gollin issued his decision on May 4, 2018. Charge filed by an individual.
The New Sick Leave Law in New Jersey – What Employers Need to Know
USA May 10 2018 Flaster Greenberg PC – Adam Gersh and Annie Kelley Kernicky
On Wednesday, May 2, 2018, Governor Phil Murphy signed a new law requiring all private-sector employers in New Jersey to provide paid sick time off, regardless of the size of the business or the number of hours an employee works. The new law becomes effective in 180 days, and makes New Jersey as one of the few states to enact such a far reaching law. Under the new sick leave law, all New Jersey workers must accrue, at a minimum, one hour of sick leave for every 30 hours worked, and employers must pay employees for earned sick leave at the same pay rate – including the same benefits – that the employee would normally earn. After its effective date on October 29, 2018, local laws that mandated sick leave will be preempted.
Under the new law, employees can carry forward up to 40 hours of unused, earned sick time to the next benefit year; but, employers do not need to permit employees to accrue, use, or carry forward, more than 40 hours. Unless an employee has accrued sick leave prior to the effective date, the earned sick leave will begin to accrue on the effective date. As for new employees, after its effective date, an employee will able to use the earned sick leave beginning on the 120th day after his or her employment starts, unless the employer agrees to an earlier date.
To limit employees from carrying over hours, the law permits employers to offer payment for unused earned sick leave in the final month of the benefit year. Employers should note, however, if the employee declines a payment for unused earned sick leave, or agrees to a partial payment, the employee may carry up to 40 hours of leave forward to the following year. If the employee accepts the full payment of unused earned sick leave, the employer must make the entire accrual for the following year available to that employee at the beginning of the next benefit year.
For employers with unions, the benefits of the law are waivable during collective bargaining negotiations.
The law also prohibits retaliatory actions against an employee for using or requesting to use earned sick leave, or for filing a complaint about an employer violation of the law’s provisions.
When can an employee use the new sick leave?
The new law provides that employees may use earned sick leave for these purposes:
- Diagnosis, care, treatment, or recovery related to the employee’s mental or physical illness;
- Care of a family member during diagnosis, care, treatment, or recovery related to a family member’s illness;
- Certain absences resulting from the employee or a family member being a victim of domestic or sexual violence;
- Time during which the employee is not able to work because of a closure of the employee’s workplace, or the school or place of care of a child of the employee, in connection with a public health emergency or a determination that the presence of the employee or child in the community would jeopardize the health of others; or
- Attending school-related conferences, meetings, or events, or to attend other meetings regarding care for the employee’s child.
“Family member” is broadly defined to include a child, grandchild, sibling, spouse, domestic partner, civil union partner, parent, or grandparent of an employee, or a spouse, domestic partner, or civil union partner of a parent or grandparent of the employee, or a sibling of a spouse, domestic partner, or civil union partner of the employee, or any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship.
Are there any exceptions?
The law allows employers to black out certain dates that cannot be taken off, and exempts per-diem hospital employees and construction workers under contract pursuant to a collective bargaining agreement. Employers are also permitted to require “reasonable documentation” when an employee seeks leave for three or more consecutive days. Employers can also require advance notice when the need to use earned sick leave is foreseeable.
What else do employers need to know?
Importantly, employers are in compliance with the new law if the employer offers paid time off (PTO), which is fully paid and includes, but is not limited to, personal days, vacation days, and sick days that is accrued at a rate equal to or greater than the rate described above. If, however, an employer limits the use of the paid time off for personal days and/or vacations pursuant to a policy that makes that time unavailable for illnesses (e.g., the employer’s policy prohibits the use of such time without advanced notice), then the paid time off subject to that policy will not be considered in evaluating compliance.
Employers must retain records documenting hours worked by employees and earned sick leave taken by employees for a minimum of five years. Violations of any provision of the new law will be regarded as a failure to meet the requirements of the New Jersey State Wage and Hour Law, which includes damages suffered by the employee plus an equal amount of liquidated damages.
Frequent 15-Minute Breaks Under FMLA Are Non-Compensable USA May 10 2018
Vinson & Elkins LLP – Robert Sheppard
While a small number of states require employers to give non-exempt employees breaks, there is no such requirement under federal law. However, if an employer decides to allow employees to take short rest breaks, they must compensate them during the time. (Employers do not have to compensate employees for longer meal breaks so long as the employees are completely relieved from duty).
But what happens if an employee has a note from a doctor stating that the employee has a serious medical condition that requires the employee to take a 15-minute break every hour? Does an employer really need to compensate short breaks that occur so often?
The Department of Labor, Wage and Hour Division recently issued an advisory opinion addressing this question. In the facts presented in the employer letter to the DOL, the employee requested under the Family Medical Leave Act (“FMLA”) that the employer allow him to take 15-minute breaks every hour because of his serious medical condition. The question presented was whether such FMLA-protected breaks were compensable. The DOL advised that they were not. They differentiated these types of breaks from short compensable breaks because short compensable breaks generally benefit the employer by promoting efficiency and boosting productivity, while these breaks predominantly benefited the employee as an accommodation. In short, the DOL advised that these breaks are governed under the FMLA — which does not require compensation for leave — as opposed to the FLSA. But the letter emphasized the importance of equal treatment; if compensable rest breaks are offered, then the employee requesting FMLA-protected breaks is still entitled to the same number of compensable rest breaks as his co-workers.
Moving forward, this advisory opinion provides some clarity on the interaction between the FMLA and FLSA when it comes to breaks. First, if an employee requests frequent short breaks under the FMLA above and beyond what is normally offered, then the employer is not required to pay for those breaks. But second, if an employer decides to offer compensable short rest or coffee breaks to employees, those breaks need to be provided equally to all non-exempt employees.