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Cases & Decisions

Summary of NLRB Decisions for Week of April 12 - 16, 2021

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

Temple University Hospital, Inc.  (04-CA-174336; 370 NLRB No. 106)  Philadelphia, PA, April 12, 2021.

On remand from the D.C. Circuit Court, the Board found that the doctrine of judicial estoppel is not available to defeat the Board’s jurisdiction.  Accordingly, the Board reaffirmed its finding in the underlying test-of-certification case that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union.

Charge filed by Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals.  Chairman McFerran and Members Emanuel and Ring participated.

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Circus Circus Casinos, Inc. d/b/a Circus Circus Las Vegas  (28-CA-120975; 370 NLRB No. 108)  Las Vegas, NV, April 15, 2021.

On remand from the D.C. Circuit Court, the Board unanimously dismissed the sole remaining allegation that the Respondent violated Section 8(a)(1) by suspending and later discharging an employee because of his safety-related complaints.  In so ruling, the Board concluded that, given the Court’s findings, the General Counsel could not meet his initial Wright Line burden.  The Board, therefore, found it unnecessary to consider whether the Respondent had met its Wright Line defense burden.

In a concurring opinion, Member Ring observed that, even without the Court’s rulings, the pretext evidence was insufficient to prove unlawful animus and that the Board’s pretext precedent was consistent with the D.C. Circuit’s two-pronged Wright Line defense analysis.

Charge filed by an individual.  Administrative Law Judge Mary Miller Cracraft issued her decision on December 30, 2014.  Chairman McFerran and Members Emanuel and Ring participated.

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Alcoa Corporation  (25-CA-219925; 370 NLRB No. 107)  Newburgh, IN, April 16, 2021.

The Board unanimously found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with the names of employees who provided witness statements during the Respondent’s disciplinary investigation and by delaying in providing the Union with the dates on which it interviewed the witnesses.

A majority (Members Kaplan and Ring) reversed the judge’s conclusion that the Respondent unlawfully instructed witnesses to keep their investigative interviews confidential, reasoning that, under the Board’s recent decision in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), confidentiality instructions that are limited to the duration of an investigation are categorically lawful.  For oral confidentiality instructions issued pursuant to a specific investigation, the Board will look at the surrounding circumstances to determine what employees would have reasonably understood concerning the duration of required confidentiality.  Watco Transloading, 369 NLRB No. 93 (2020).  The majority found that, in the circumstances of this case, the employees would reasonably understand the duration as limited to the investigation and as not restricting employees’ ability to communicate with their union representative.

Dissenting in part, Chairman McFerran reiterated her view that the analytical framework set forth in Apogee gave far too little weight to employees’ statutory rights and to the potential chilling effect of employer rules on those rights.  On the facts of this case, she disagreed with the majority’s conclusion that a reasonable employee would interpret oral instructions to include caveats that were never expressly stated and emphasized that here, in a unionized workforce, the interference with employees’ right to communicate with their designated representative was more tangible.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Local 104.  Administrative Law Judge Paul Bogas issued his decision on March 27, 2019.  Chairman McFerran and Members Kaplan and Ring participated.

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Portland Museum of Art  (01-RC-266534; 370 NLRB No. 113)  Portland, ME, April 16, 2021.

The Board granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election.  On review, the Board found, contrary to the Acting Regional Director, that the Employer’s Gallery Ambassadors are guards within the meaning of Section 9(b)(3) and that these employees are not included in the wall-to-wall unit.

Petitioner—Technical, Office & Professional Union Local 2110.  Members Kaplan, Emanuel, and Ring participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Henry Ford Wyandotte Hospital  (07-RC-273376)  Wyandotte, MI, April 14, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Board also denied the Employer’s request to stay the election or impound the ballots as moot.  Petitioner—Michigan Association of Police (MAP).  Members Kaplan, Emanuel, and Ring participated.

Able Rolling Steel Door, Inc.  (22-RC-265289)  South Hackens, NJ, April 15, 2021.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review.  Petitioner—International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO.  Members Kaplan, Emanuel, and Ring participated.

Fire Protection Design & Construction, Inc., d/b/a All Fire Solutions, Inc.  (25-RC-267772)  Greenwood, IN, April 16, 2021.  The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s Decision to Reject the Union’s Objections as it raised no substantial issues warranting review.  The Petitioner had requested review of the Acting Regional Director’s finding that the Petitioner failed to timely E-File its objections.  Petitioner—Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO.  Members Kaplan, Emanuel, and Ring participated.

C Cases

Sameh H. Aknouk Dental Services, P.C.  (02-CA-263564)  Bronx, NY, April 12, 2021.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 370 NLRB No. 78 (2021).  The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  Charge filed by Local 553, International Brotherhood of Teamsters.  Chairman McFerran and Members Kaplan and Emanuel participated.

ADT, LLC d/b/a ADT Security Services  (03-CA-250706)  Albany, NY, April 13, 2021.  In this case alleging Section 8(a)(5) and (1) violations, 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.  Charge filed by International Brotherhood of Electrical Workers, Local Union 43.  Chairman McFerran and Members Kaplan and Ring participated.

Service Employees International Union, United Service Workers West, Security Division (Professional Technical Security Services, Inc.)  (20-CB-271148)  San Francisco, CA, April 15, 2021.  In this case alleging Section 8(b)(1)(A) violations, 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.  Charge filed by an individual.  Members Kaplan, Emanuel, and Ring participated.

TYR Energy Logistics  (16-CA-262046)  Corpus Christi, TX, April 16, 2021.  No exceptions having been filed to the March 5, 2021 decision of Administrative Law Judge Robert A. Giannasi’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint.  Charge filed by an individual.

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Appellate Court Decisions

Nico Asphalt Paving, Inc. and its Successor in Interest and Alter Ego, City Wide Paving, Inc., Board Case No. 29-CA-186692 (reported at 368 NLRB No. 111) (2d Cir. decided April 14, 2021).

In an unpublished summary order, the Court enforced the Board’s order that issued against these two asphalt paving companies that perform work in the New York City area.  The Board (then-Member McFerran, and Members Kaplan and Emanuel) found that Nico and City Wide were alter egos because they share substantially identical management, business purpose, operations, equipment, and ownership, and had effectively admitted their intent to evade Nico’s statutory bargaining obligations.  The Board further found that Nico violated Section 8(a)(5) and (1) by transferring its business to City Wide and refusing to bargain with Construction Council Local 175, Utility Workers Union of America as the incumbent collective-bargaining representative of Nico’s employees.  Likewise, the Board found that City Wide violated the same section of the Act by refusing to apply the collective-bargaining agreement between its alter ego Nico and Local 175, and violated Section 8(a)(2) by recognizing IAM and Highway, Road and Street Construction Laborers Local 1010, LIUNA, as the collective-bargaining representative of its unit employees, when it was still bound by the agreement with Local 175.

On review, the Court held that substantial evidence supported the Board’s finding of alter-ego status.  Further, the Court noted that, before the Administrative Law Judge, Nico and City Wide had asserted that City Wide was created to comply with the new contractual requirements of Nico’s largest customer, Consolidated Edison, which required that Nico and its workers affiliate not with Local 175, but with a union belonging to the Building & Construction Trades Council of Greater New York, such as Local 1010.  The judge had concluded that the proffered justification “by definition” meant that City Wide was formed to avoid dealing with the recognized bargaining representative of Nico’s employees, and the Court agreed.  The Court recognized that the change “put Nico in a difficult position,” but that it did not justify Nico’s unilateral creation of City Wide as its alter ego.

The Court’s summary order is here.

The American Bottling Company d/b/a Keurig Dr Pepper, Board Case No. 13-CA-247183 (reported at 369 NLRB No. 19) (D.C. Cir. decided April 13, 2020).

In a published opinion in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this bottling and distribution center in Northlake, Illinois, after its account managers and sales service representatives (SSRs) voted 46 to 16 in a July 2019 election to be represented by International Food and Commercial Workers Union, Local 328.  In doing so, the Court held that the Board acted well within its discretion in denying the Employer’s Motion to Dismiss the election petition and in overruling its election objections.

In the underlying representation case, the Union petitioned to represent a unit consisting of 33 account managers and 35 SSRs.  At the ensuing hearing, the Employer sought to dismiss the petition, contending that it would not effectuate the purposes of the Act to hold an election because it planned to eliminate the SSR classification in July 2019.  Subsequently, the Regional Director issued a decision finding that the Employer’s intentions regarding the SSR classification did not render an immediate election inappropriate because it failed to establish that its plans were definite and imminent.  Thereafter, the Employer filed for a stay of the election, which the Board denied, and an accompanying Request for Review, which remained pending.  After the election, the Employer filed objections, repeating its claim that it planned to eliminate the SSR classification and adding claims that the election should be overturned because the Board agent improperly refused to permit it to challenge ballots cast by the SSRs, and permitted the Union to videotape the tallying of ballots.  Without holding a hearing, the Regional Director issued a decision overruling the Employer’s objections and certified the Union.  The Employer filed a Request for Review, which the Board (then-Member McFerran, and Members Kaplan and Emanuel), denied along with the Employer’s pre-election Request for Review.  The Employer then refused to bargain in order to seek court review.

On review, the Court held that the Board’s direction of an election in a unit containing the SSRs was supported by substantial evidence and consistent with precedent, and that the Employer failed to show that its plans to eliminate the SSR job classification were “definite and imminent.”  The Court explained that the evidence demonstrated that, due to a variety of circumstances, the Employer had already failed three times over a period of 18 months to meet its prior announced implementation dates, including dates when the evidence of the Employer’s commitment to eliminating the SSR classification was stronger than it was at the time of the election.  As such, the Court agreed with the Regional Director that the July 2019 “target” date was “an aspiration,” and not “set in stone.”

On the Employer’s election objection alleging that it should have been permitted to challenge the ballots cast by the SSRs, the Court noted that, as here, it is the Board’s long-established procedure “to deny any party to an election the opportunity to challenge the ballots of individuals in categories to which the Board has already ruled on eligibility, citing Amalgamated Clothing Workers, 217 NLRB 98 (1975).  Further, the Court noted that, “as then-Member McFerran had explained,” even if all 28 of the SSRs who voted in the election “were subtracted from the pro-Union votes, the final tally would still be 18 votes in favor of the Union and 16 votes against,” rendering the challenges not outcome determinative.  On the Employer’s objection alleging improper videotaping of the ballot count, the Court explained that “[t]he recording here took place after the polls had closed and could not conceivably have had any bearing on the results.”  Finding no merit in the Employer’s remaining contentions, the Court enforced the Board’s bargaining order.

The Court’s opinion is here.

T-Mobile USA, Inc., Board Case No. 14-CA-170229 (reported at 368 NLRB No. 81) (D.C. Cir. decided April 16, 2021).

In a published opinion, the Court granted the petition filed by the Communications Workers of America, AFL-CIO, for review of the Board’s dismissal of a complaint that had issued against this nationwide cell phone service provider, and remanded to the Board for further proceedings.  The complaint had alleged that the Employer violated Section 8(a)(2) by maintaining, dominating, and supporting “T-Voice,” a system which, it was alleged, operated as a labor organization within the meaning of Section 2(5) of the Act because it provided a vehicle for employees to log complaints to management through their “T-Voice representatives.”  The Board (Chairman Ring and Members Kaplan and Emanuel) dismissed the allegation after determining that T-Voice was not a statutory labor organization because it did not meet the necessary element of “dealing with” the Employer through a bilateral practice of employees making group proposals to management.  The Board also dismissed an allegation that the Employer violated Section 8(a)(1) by soliciting employee grievances with the promise of remedying them during an ongoing union campaign.

On review, the Court upheld the Board’s dismissal of the allegation that the Employer had solicited employee grievances.  On the Section 8(a)(2) allegation, the Court noted that the Board had rested its dismissal on the view that an organization does not engage in “dealing with” an employer unless it submits “group proposals.”  The Court stated, however, that the Board’s reliance on such a requirement “broke new ground,” because the Board had not previously held that “an organization in which employee representatives make proposals to management does not constitute a labor organization unless those proposals are adopted by the group.”  The Court also noted that CWA relied on two Board cases that did not impose a “group proposals” requirement: Dillon Stores, 319 NLRB 1245 (1995), and Reno Hilton Resorts Corp., 319 NLRB 1154 (1995).  Accordingly, the Court remanded the issue to the Board for further proceedings, explaining that the Board should “identify what standard the Board has adopted for separating ‘group proposals’ from proposals of employee representatives, like T-Voice representatives.”

The Court’s opinion is here.

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Administrative Law Judge Decisions

Community Counseling & Mentoring Services, Inc.  (05-CA-255979, et al.; JD-15-21)  Largo, MD.  Administrative Law Judge Paul Bogas issued his decision on April 13, 2021.  Charges filed by individuals.

ADT, LLC (18-CA-264654, et al.; JD-12-21) Janesville, WI, April 14, 2021.  Errata to March 29, 2021 decision of Administrative Law Judge Michael A. Rosas.  Errata   Amended Decision

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