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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of April 19 - 23, 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

Ikea Distribution Services, Inc.  (31-RC-266527; 370 NLRB No. 109)  Lebec, CA, April 19, 2021.

The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised substantial issues warranting review.  On review, the Board affirmed the Regional Director’s decision.  The Employer was precluded from litigating whether the petitioned-for unit must include additional employees under step two of the Board’s three-step analysis set forth in The Boeing Co., 368 NLRB No. 67 (2019), because it had failed to timely serve its statement of position on the petitioner.  A majority (Members Kaplan and Ring) found that a regional director is not free to disregard Boeing step two simply because the party was precluded from presenting evidence on that issue where the record as a whole indicates that the inclusion of particular employees is required to make a unit appropriate.  In this case, the majority found that the Regional Director conducted the inquiry required under Section 102.66(b) of the Board’s Rules and Regulations.  Chairman McFerran concurred in the result but would find no Boeing step 2 analysis is required where an employer is precluded by the Board’s election rules from raising the issue.

Petitioner—United Maintenance Technicians of Tejon.  Chairman McFerran and Members Kaplan and Ring participated.

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Lhoist North America of Alabama, LLC, a Subsidiary of Lhoist North America  (10-CA-221731; 370 NLRB No. 112)  Calera, AL, April 21, 2021.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging an employee for engaging in union activity when participating by telephone during work time in an unemployment compensation hearing.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 563.  Administrative Law Judge Sharon Levinson Steckler issued her decision on May 21, 2020.  Members Kaplan, Emanuel, and Ring participated.

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Mountaire Farms, Inc.  (05-RD-256888; 370 NLRB No. 110)  Selbyville, DE, April 12, 2021.

On review, the Board (Chairman McFerran and Members Kaplan and Emanuel; Member Ring, dissenting in part) reversed the Regional Director.  The majority found the union-security clause in the parties’ collective bargaining agreement was capable of lawful interpretation and not “unlawful on its face” under Paragon Products Corp., 134 NLRB 662 (1961), and therefore did not prevent the agreement from being a bar to the petition.  Accordingly, the case was remanded to the Regional Director for further processing consistent with the Board’s order.  Dissenting, Member Ring would have found the clause unlawful on its face.

The Board also considered whether it should undertake a general review of its contract bar-doctrine in response to the Petitioner’s request that it do so and the subsequent notice and invitation to file briefs.  After considering the briefs filed by the parties and the amici, a Board majority (Chairman McFerran and Members Kaplan and Ring) found a “sufficiently compelling case has not been made for any particular proposed modification” and decided not to modify the contract-bar doctrine at this time.  In doing so, the Board expressed concern that the current “window period” provided by the doctrine may not be readily ascertainable, thereby negating the window period’s efficacy, but stated that a sufficiently compelling case had not been made for any proposed modification to the window period (Chairman McFerran did not join these observations, but agreed no changes to the window period are appropriate at this time; she also took no position on whether a shorter or longer contract bar period might be appropriate).  Member Emanuel separately stated that he would have reduced the duration of the contract-bar period from 3 years to 2 years and that he would have expanded the “window period” from 30 days to 60 days.

Petitioner—an individual.  Union—United Food and Commercial Workers Union, Local 27, a/w United Food and Commercial Workers International Union, AFL-CIO.  Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.

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Arakelian Enterprises, Inc. d/b/a Athens Services  (31-CA-223801, et al.; 370 NLRB No. 111)  Pacoima, CA, April 22, 2021.

The Board adopted most of the Administrative Law Judge’s dismissals of various allegations that the Respondent violated Section 8(a)(5), (3), and (1).  The Board reversed the judge to find that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with notice and an opportunity to bargain over its decision to prohibit employees from using the training room during breaks.  In reversing the judge’s finding, the Board agreed that the closure of the training room where employees had regularly taken breaks with the Respondent’s approval was a material, substantial, and significant change to terms and conditions of employment.  The Board found that the Respondent was required to give the Union a chance to bargain about the change, and that none of the situations that would have excused bargaining existed.

Chairman McFerran would find that the closure of the training room also violated Section 8(a)(3) and (1).  She noted that the Respondent locked it immediately after employees used it for a union meeting and the Respondent’s proffered justification was not credible.  Chairman McFerran therefore would find the Respondent acted with discriminatory animus and did not show it would have taken the same action absent the protected conduct.

Charges filed by Teamsters Local 396.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on December 30, 2019.  Chairman McFerran and Members Kaplan and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Cazanove Opici Wine Group d/b/a Opici Family Distributing of New York  (29-RC-270372)  Brooklyn, NY, April 19, 2021.  The Board denied the Employer’s Request to Stay the election.    Petitioner—United Food and Commercial Workers, Local 2D.  Members Kaplan, Emanuel, and Ring participated. 

Allied Power Services, LLC  (13-RC-252563)  Braidwood, IL, April 23, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election (finding that the Employer had not established that its Lead Electrical Planners and Superintendents are Section 2(11) supervisors) as it raised no substantial issues warranting review.  Petitioner—International Brotherhood of Electrical Workers, Locals 145, 146, 176, 364, and 601.  Members Kaplan, Emanuel, and Ring participated.

 C Cases

 Cargill, Inc.  (07-CA-270555)  St. Clair, MI, April 20, 2021.  The Board denied the Respondent’s Request for Special Permission to Appeal an order of the Chief Administrative Law Judge which granted in part the Motions in Limine filed by the Acting General Counsel and the Union.  The Board found that the Respondent failed to establish that the judge abused his discretion.  Charge filed by Local 867, International Chemical Workers Union, Council of the United Food and Commercial Workers International Union, AFL-CIO.  Members Kaplan, Emanuel, and Ring participated.

Capitol Transportation, Inc.  (12-CA-180495, et al.)  San Juan, PR, April 20, 2021.  Correction April 21, 2021.  The Board denied Exordium Logistics Solutions, LLC’s Petitions to Revoke an investigative subpoena duces tecum and an investigative subpoena ad testificandum, and Capitol Transportation, Inc.’s former vice-president’s Petition to Revoke an investigative subpoena ad testificandum, as the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Petitioners failed to establish any other legal basis for revoking the subpoenas.  Charges filed by de Unión Tronquistas de Puerto Rico, Local 901, International Brotherhood of Teamsters and individuals.  Members Kaplan, Emanuel, and Ring participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Harbor Freight Tools USA, Inc. (28-CA-232596; JD(SF)-03-21) Flagstaff, AZ, April 20, 2021.  Errata to March 12, 2021 decision of Administrative Law Judge Gerald M. Etchingham.  Errata   Amended Decision.

The Atlantic Group, Inc.  (16-CA-260413, et al.; JD-17-21)  Glen Rose, TX.  Administrative Law Judge Michael A. Rosas issued his decision on April 20, 2021.  Charges filed by International Brotherhood of Electrical Workers, Local Union 220.

NCRNC, LLC d/b/a Northeast Center for Rehabilitation and Brain Injury  (03-CA-252090, et al.; JD-16-21)  Lake Katrine, NY.  Administrative Law Judge Ira Sandron issued his decision on April 21, 2021.  Charges filed by 1199 SEIU United Healthcare Workers East and an individual.

Michael Stapleton Associates d/b/a MSA Security  (15-CA-232136; JD-18-21)  Memphis, TN.  Administrative Law Judge Arthur J. Amchan issued his decision on April 23, 2021.  Charge filed by an individual.

Thryv, Inc.  (20-CA-250250 and 20-CA-251105; JD(SF)-06-21)  San Francisco, CA.  Administrative Law Judge John T. Giannopoulos issued his decision on April 23, 2021.  Charges filed by International Brotherhood of Electrical Workers, Local 1269.

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