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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of April 26 - 30, 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

Rush University Medical Center and Health Care, Professional, Technical, Office, Warehouse and Mail Order Employees Union Local 743 affiliated with The International Brotherhood of Teamsters  (13-RC-272731; 370 NLRB No. 115) Chicago, IL, April 27, 2021.

The Board granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election (ordering a mail-ballot election due to the circumstances related to the COVID-19 pandemic) as it raised substantial issues warranting review.  The Board clarified that, with respect to factor 5 set out in Aspirus Keweenaw, 370 NLRB No. 45 (2020), Regional Directors should determine whether the COVID-19 cases at the facility would reasonably be expected to affect the conduct of a manual election.  The Board found that the Centers for Disease Control’s determination that new variants of COVID-19 exist does not, at this juncture, constitute a “similarly compelling circumstance” within the meaning of Aspirus factor 6.  The Board therefore reversed the Acting Regional Director’s mail ballot determination and remanded the case to the Acting Regional Director for further proceedings, taking into account any changed circumstances since the Regional Director’s decision issued.  Chairman McFerran, concurring in the result, agreed that it was appropriate to remand the case to the Acting Regional Director to reconsider the mail-ballot determination in light of any changed circumstances, but reiterated her position that mail ballot elections should serve as the default during the COVID-19 pandemic.

Petitioner—Health Care, Professional, Technical, Office, Warehouse and Mail Order Employees Union Local 743.  Chairman McFerran and Members Kaplan and Ring participated.

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RAV Truck & Trailer Repairs, Inc., and Concrete Express of NY, LLC, a single employer  (02-CA-265683; 370 NLRB No. 116)  New York, NY, April 29, 2021.

The Board granted the General Counsel’s Motion for Summary Judgment, finding there were no material issues of fact warranting a hearing, and, as a matter of law, that the Respondent, a single employer, violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information that was relevant and necessary to the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit.  The Respondent’s refusal to furnish the requested information was based solely on its contention that, until the D.C. Circuit Court enforces the Board’s Order in RAV Truck & Trailer Repairs, Inc., 369 NLRB No. 36 (2020), the Union is not yet the exclusive bargaining representative of the unit.

Charge filed by Teamsters Local 456, International Brotherhood of Teamsters.  Chairman McFerran and Members Emanuel and Ring participated.

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Ampersand Publishing, LLC d/b/a Santa Barbara News-Press  (31-CA-028589, et al.; 370 NLRB No. 119)  Santa Barbara, CA, April 29, 2021.

The Board issued a Correction to its Supplemental Decision and Order that issued on January 25, 2021.  The Board revised Paragraph 4 to provide for the ongoing losses from the Respondent’s discontinuation of merit increases.

Charges filed by Graphic Communications Conference, International Brotherhood of Teamsters.  Administrative Law Judge Dickie Montemayor issued his decision on September 4, 2020.  Members Kaplan, Emanuel, and Ring participated.

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Bannum Place of Saginaw, LLC  (07-CA-207685, et al.; 370 NLRB No. 117 Saginaw, MI, April 30, 2021.

The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3), (4), and (1) by discharging an employee; Section 8(a)(3) and (1) by discharging another employee and engaging in adverse actions against that employee; and Section 8(a)(1) by interrogating several employees and threatening an employee with facility closure.  A majority (Chairman McFerran and Member Ring) found it unnecessary to pass on the judge’s finding of three independent threat violations—decreased wages from union dues, facility closure, and stricter enforcement of rules—and, instead, found that the Respondent generally threatened adverse consequences if employees unionized, in violation of Section 8(a)(1).  Member Emanuel found that one of the three alleged threats—decreased wages from union dues—was not an unlawful threat, but he agreed to consider the other allegations together and found that the Respondent generally threatened adverse consequences.

Charges filed by International Brotherhood of Teamsters (IBT) and an individual.  Administrative Law Judge Ira Sandron issued his decision on May 29, 2020.  Chairman McFerran and Members Emanuel and Ring participated.

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District Hospital Partners, L.P. d/b/a The George Washington University Hospital, A Limited Partnership, and UHS of D.C., Inc., General Partner  (05-CA-216482, et al.; 370 NLRB No. 118)  Washington, DC, April 30, 2021.

The Board (Members Emanuel and Ring; Chairman McFerran, dissenting) reversed the Administrative Law Judge to find that the Respondent did not violate Section 8(a)(5) and (1) by failing and refusing to bargain in good faith with the Union.  The majority noted that none of the Respondent’s bargaining proposals were unlawful; the Respondent never insisted on any of its proposals to impasse or presented them as part of a last, best, and final offer; and the Union repeatedly declined to test the Respondent’s willingness to bargain over its proposals.  In the absence of bad-faith bargaining, the majority also concluded that the Respondent did not violate Section 8(a)(5) and (1) by withdrawing recognition from, and refusing to bargain with, the Union and by subsequently implementing unilateral changes to the unit employees’ terms and conditions of employment after it received a disaffection petition signed by a majority of the unit employees.  Dissenting, Chairman McFerran found that the Respondent unlawfully engaged in bad-faith bargaining through the combination of bargaining proposals that it made and adhered to that would have left unit employees with fewer rights than they would have had without a contract, which the Respondent relied upon to frustrate the reaching of an agreement and ultimately to oust the Union.

Charges filed by 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Region.  Administrative Law Judge Michael A. Rosas issued his decision on September 4, 2019.  Chairman McFerran and Members Emanuel and Ring participated.

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National Association of Broadcast Employees and Technicians—The Broadcasting and Cable Television Workers Sector of the Communication Workers of America, AFL–CIO, Local 51 (American Broadcasting Companies, Inc.)  (19-CB-244528 and 19-CB-247119; 370 NLRB No. 114)  New York, NY, April 30, 2021.

The Board granted the Acting General Counsel’s Motion to Withdraw Exceptions.  To support the motion, the Acting General Counsel asserted that, since his installment as Acting General Counsel, he revisited this case and determined that he no longer wished to prosecute it.  In opposition, the Charging Party challenged the validity of the Acting General Counsel’s designation.  In granting the motion, the Board noted that the Board members are all in agreement that reviewing the actions of the President is ultimately a task for the federal courts.  In addition, the Board found that, because this case is also pending on the Charging Party’s exceptions, granting withdrawal of the Acting General Counsel’s motion will not affect the Board’s ability to address the underlying Administrative Law Judge’s decision.

Charges filed by an individual.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on December 4, 2020.  Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases          

Granada Wellness & Rehabilitation Center, LLC  (20-RC-268518)  Eureka, CA, April 26, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision Overruling Election Objection and Certification of Representative as it raised no substantial issues warranting review.  The Board acknowledged that this mail-ballot election was conducted during a severe COVID-19 outbreak at the Employer’s facility, but found that the Employer had not presented sufficient evidence that the Regional Director’s refusal to postpone the election prejudiced the Employer’s ability to present its campaign message to employees, and the Employer had not claimed that the conditions at the facility had prevented any employee from voting by mail.  Petitioner—Service Employees International Union, Local 2015.  Members Kaplan, Emanuel, and Ring participated.

Ranger American Armored Services, Inc.  (12-RD-269202)  San Juan, PR, April 29, 2021.  The Board, citing Mountaire Farms, Inc., 370 NLRB No. 110 (2021), denied the Petitioner’s Request for Review of the Regional Director’s administrative dismissal of the petition as it raised no substantial issues warranting review.  Petitioner—an individual.  Union—Union de Profesionales de la Seguridad Privada y Transporte de Valores.  Members Kaplan, Emanuel, and Ring participated.

Transdev Services, Inc.  (05-RD-268864)  Herndon, VA, April 29, 2021.  The Board, citing Mountaire Farms, Inc., 370 NLRB No. 110 (2021), denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order as it raised no substantial issues warranting review.  The Board also denied the Petitioner’s Motion to Substitute Petitioner as moot.  Petitioner—an individual.  Union—Office and Professional Employees International Union, Local 2, AFL-CIO, CLC.  Members Kaplan, Emanuel, and Ring participated.

Paradise Valley Hospital  (21-RC-255197)  National City, CA, April 29, 2021.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Certification of Results as it raised no substantial issues warranting review.  Petitioner—United Nurses Associations of California/Union of Health Care Professionals, NUHHCE, AFSCME.  Members Kaplan, Emanuel, and Ring participated.

Kumho Tires  (10-RC-246475)  Macon, GA, April 20, 2021.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review.  Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union AFL-CIO, CLC.  Members Kaplan, Emanuel, and Ring participated.

C Cases

Logmet, LLC (09-CA-247369)  Dayton, OH, April 26, 2021.  The Board granted the special appeals of the Acting General Counsel and the Charging Party to the Administrative Law Judge’s February 10, 2021 Order, which granted in part and denied in part their motions to quash subpoenas issued by the Respondent.  The Board found that the judge abused his discretion in ordering that the documents requested by the Respondent’s subpoenas duces tecum be produced.  Charge filed by Local Union No. 780, Motion Picture and Video Laboratory Technicians, Allied Crafts and Government Employees, IATSE.  Chairman McFerran and Members Emanuel and Ring participated.

United States Postal Service  (14-CA-195011)  Norman, OK, April 30, 2021.  No exceptions having been filed to the March 18, 2021 supplemental 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 judge’s recommended Order.  Charge filed by an individual.

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Appellate Court Decisions

Preferred Building Services, Inc. and Rafael Ortiz d/b/a Ortiz Janitorial Services, Joint Employers, Board Case No. 20-CA-149353 (reported at 366 NLRB No. 159) (9th Cir. decided April 28, 2021).

In a published opinion, the Court granted the petition filed by the Service Employees International Union Local 87 for review of the Board’s dismissal of a complaint that issued against these joint employers, Preferred Building Services and Ortiz Janitorial Services.  The complaint alleged that the Employers unlawfully discharged employees in retaliation for picketing outside a building where they worked as janitors in San Francisco, California.  The Board (then-Chairman Ring and Members Kaplan and Emanuel) dismissed the complaint, finding merit in the Employers’ affirmative defense that the employees lost the Act’s protection because their picketing was coercive and targeted businesses located in the building that were not involved in their labor dispute.  Among other things, the Board found that the employees’ picket signs and leaflets failed to clearly disclose that their dispute was with their Employers and not neutral building tenants, including one statement on a leaflet asking KGO Radio for assistance.  The Board found that, by obfuscating the target of their labor dispute, the employees sought to enmesh neutral employers in their dispute and cause them to cease doing business with their Employers in violation of Section 8(b)(4)(ii)(B), rendering their picketing unprotected.

On review, the Court held that the Board’s finding that an object of the employees’ picketing was to coerce neutral employers, including KGO Radio, to cease doing business with their Employers, was not supported by substantial evidence.  The Court found that the Board had not considered the record evidence as a whole and instead relied in isolation on one sentence on one of the leaflets.  The Court stated that, although the Board found that the signs carried by the employees disclosed that their dispute was with their primary employers, that the Board’s finding that the message was obfuscated by language on a leaflet distributed to passersby during the picketing was insufficient to support its conclusion.  The statement on the leaflet read: “We are calling on KGO radio to take corporate responsibility in ensuring that their janitors receive higher wages, dignity on the job.”  The Court rejected the Board’s reasoning that, by using the word “their” in the sentence, “the picketers ‘led the public to believe that KGO—who was not involved in the dispute—was their employer and had the ability to adjust their working conditions.’”  Rather, the Court stated that the “most important” evidence relating to the identity of the party with whom the employees had a dispute was “the message displayed prominently on the signs the picketers were carrying: ‘PREFERRED BUILDING SERVICES UNFAIR!’”  Finally, the Court held that the Board failed to identify substantial evidence rebutting the presumption that the employees’ picketing was lawful.  Accordingly, the Court remanded the case to the Board for further proceedings.

The Court’s opinion is here.

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Administrative Law Judge Decisions

The Atlantic Group, Inc.  (16-CA-260413, et al.; JD-17-21)  Glen Rose, TX, April 26, 2021.  Errata to the April 20, 2021 decision of Administrative Law Judge Michael A. Rosas.  Errata.   Amended Decision.

Wilkes-Barre Hospital Company LLC d/b/a Wilkes-Barre General Hospital  (04-CA-259936 and 04-CA-260035; JD-19-21)  Wilkes-Barre, PA.  Administrative Law Judge Donna N. Dawson issued her decision on April 27, 2021.  Charges filed by Wyoming Valley Nurses Association/Pennsylvania Association of Staff and Nursing Professionals.

BlitzMetrics, Co.  (28-CA-248901 and 28-CA-249571; JD-20-21)  Albany, CA.  Administrative Law Judge Arthur J. Amchan issued his decision on April 28, 2021.  Charges filed by individuals.

Haven Salon + Spa, Inc.  (18-CA-266091 and 18-CA-267818; JD-21-21)  Muskego, WI.  Administrative Law Judge Sharon Levinson Steckler issued her decision on April 30, 2021.  Charges filed by an individual.

XPO Cartage, Inc.  (21-CA-150873 et al; JD-22-21)  Commerce, CA.  Administrative Law Judge Christine E. Dibble issued her decision on April 30, 2021.  Charges filed by International Brotherhood of Teamsters.

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