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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of August 15 - 19, 2022

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

Arbah Hotel Corp. d/b/a Meadowlands View Hotel  (22-CA-257539 and 22-CA-259975; 371 NLRB No. 126)  Newark, NJ, August 15, 2022.

The Board unanimously affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by disparaging and undermining the Union.  A unanimous Board also found that the Respondent violated Section 8(a)(3) and (1) by selecting only its union-represented employees for discharge at the outset of the COVID-19 pandemic and violated Sections 8(a)(5) and (1) by laying off employees and subcontracting their work without providing notice and opportunity to bargain and by failing to provide relevant information requested by the Union.  In addition, a Board majority consisting of Members Wilcox and Prouty found that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition of the Union.  Member Kaplan noted that he would decline to find that the Respondent unlawfully withdrew recognition from the Union because doing so would not affect the remedy in this case.  Finally, Member Prouty noted that he would order that the Respondent’s Vice President read the notice aloud to employees.

Charges filed by New York Hotel and Motel Trades Council, AFL-CIO.  Administrative Law Judge Jeffrey P. Gardner issued his decision on September 30, 2021.  Members Kaplan, Wilcox, and Prouty participated.

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International Longshore and Warehouse Union and International Longshore and Warehouse Union, Local 4  (19-CC-092816, et al.; 371 NLRB No. 125)  Vancouver, WA, August 18, 2022.

On remand from the Ninth Circuit, the Board concluded that the Respondent established a valid work preservation defense and thus did not act unlawfully by disputing the assignment of electrical maintenance and repair work performed for Kinder Morgan by employees represented by the International Brotherhood of Electrical Workers, Local 48 at the Vancouver Bulk Terminal.  The Board found that the Respondent had established the two elements of a work preservation defense.  Specifically, the Board found that the Respondent established a valid work preservation objective and that Kinder Morgan had the right of control over the disputed work.  Thus, the Board concluded, contrary to its decision in the underlying proceeding, that the Respondent did not violate Section 8(b)(4)(ii)(D) and (B) as alleged.  The Board thus vacated its Decision and Order in Cases 19-CC-092816, et al. and dismissed the complaint.  In addition, the Board found, contrary to its decision in the underlying Section 10(k) proceeding, that the work dispute at issue involved a contractual work preservation dispute, not a jurisdictional dispute within the scope of Sections 8(b)(4)(D) and 10(k).  As a result, the Board also vacated its Decision and Determination of Dispute in Case 36-CD-000236 and quashed the notice of hearing.

Charges filed by International Brotherhood of Electrical Workers, Local 48.  Administrative Law Judge William Schmidt issued his decision on August 13, 2014.  Chairman McFerran and Members Kaplan and Prouty participated.

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Enright Seeding, Inc.  (25-CA-210670; 371 NLRB No. 127)  Davenport, IA, August 19, 2022.

A Board majority (Members Wilcox and Prouty; Member Ring, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by refusing to provide information requested by the Union.  The majority found that the bargaining relationship between the Respondent, a construction-industry employer, and the Union was governed by Section 9(a) rather than Section 8(f) because their agreement met the requirements of Staunton Fuel & Material, 335 NLRB 717 (2001), and that the Respondent’s challenge to the Union’s Section 9(a) status was untimely under Casale Industries, 311 NLRB 951, 953 (1993).  Finding the information relevant to the Union’s duties as the exclusive bargaining representative of the Respondent’s employees, the majority concluded that the Respondent’s refusal to provide the information was unlawful.  Dissenting, Member Ring would have overruled Staunton Fuel and adopted a new standard under which a party asserting the existence of a 9(a) bargaining relationship between a union and a construction-industry employer must present positive evidence that the union unequivocally demanded recognition as the Section 9(a) exclusive bargaining representative and that the employer unequivocally recognized it as such based on a contemporaneous showing of support from a majority of employees in an appropriate unit.  Under this new standard, Member Ring would have found the Union’s bargaining relationship governed by Section 8(f), that the Respondent repudiated its Section 8(f) relationship with the Union, and that the Union was therefore not entitled to the information it requested.

Charge filed by the International Union of Operating Engineers, Local 150, AFL-CIO.  Administrative Law Judge Keltner W. Locke issued his decision on May 10, 2021.  Members Ring, Wilcox, and Prouty participated.

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ExxonMobil Research & Engineering Company, Inc.  (22-CA-218903, et al.; 371 NLRB No. 128)  Annandale, NJ, August 19, 2022.

The Board vacated its Decision and Order reported at 370 NLRB No. 23 (2020), based on the improper participation of then-Member Emanuel.  After that decision issued, the Board’s Designated Agency Ethics Official, based on an investigation conducted by the Inspector General, determined that Member Emanuel was disqualified because of a financial conflict of interest.  The Board then issued a Notice to Show Cause to the parties, disclosing Member Emanuel’s disqualification, which asked whether the decision and order should be vacated.  In its decision, the Board (Chairman McFerran and Member Wilcox; Member Ring, dissenting) found it appropriate to vacate its Decision and Order to preserve public confidence in the integrity of the Board’s decision-making process.  Dissenting, Member Ring would have found that Member Emanuel’s participation was harmless error, absent a showing of actual bias.  The case will now be re-adjudicated by the Board.

Charges filed by Independent Laboratory Employees Union, Inc.  Administrative Law Judge Michael A. Rosas issued his decision on June 12, 2019.  Chairman McFerran and Members Ring and Wilcox participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Duke University  (10-RC-276475)  Durham, NC, August 17, 2022.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review.  Petitioner—Washington-Baltimore News Guild, Local 32035.  Chairman McFerran and Members Kaplan and Ring participated.

C Cases

No Unpublished C Cases Issued.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

No Administrative Law Judge Decisions Issued.

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