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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of August 22 - 26, 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

Delaware County Memorial Hospital, a Division of Crozer-Keystone Health System and Crozer-Chester Medical Center, a Division of Crozer-Keystone Health System  (04-CA-172296 and 04-CA-172313; 371 NLRB No. 129)  Philadelphia, PA, August 23, 2022.

On remand from the Third Circuit Court, which affirmed the Board’s finding that the Respondents violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with requested information (an Asset Purchase Agreement) but found that the Board abused its broad remedial discretion by ordering the Respondent to provide all schedules and attachments, the Board (Chairman McFerran and Member Prouty; Member Ring, dissenting)) identified schedules and attachments that were either presumptively relevant or established as relevant and ordered the Respondents to provide that information to the Union.  Dissenting, Member Ring would order the Respondents to only provide the portions of the schedules and attachments that directly concern unit employees’ terms and conditions of employment as set forth in the Respondents’ letter about the then-pending sale.

Charges filed by Pennsylvania Association of Staff Nurses and Allied Professionals.  Administrative Law Judge Benjamin W. Green issued his decision on February 21, 2017.  Chairman McFerran and Members Ring and Prouty participated.

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Saint Alphonsus Medical Center—Ontario, Inc.  (19-RC-296056; 371 NLRB No. 130)  Ontario, OR, August 23, 2022.

The Board denied the Petitioner’s Request for Review of the Regional Director’s determination not to impound ballots under Section 103.20(c) of the Board’s Rules and Regulations as it raised no substantial issues warranting review.  The Board held that the Regional Director had appropriately declined to order impoundment of ballots because the Petitioner’s Request to Block failed to allege unfair labor practice violations concerning the circumstances surrounding the election petition as required by Section 103.20(c).  The Board also clarified that under Section 103.20(d), the Regional Director’s approval of the Petitioner’s Request to Block meant only that any appropriate certification would not issue until final disposition of the unfair labor practices charges filed in the proceeding and a determination of their effect on the election petition.

Petitioner—Oregon Nurses Association.  Chairman McFerran and Members Wilcox and Prouty participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

Falcon Trucking, LLC. and Ragle, Inc., a single employer and/or joint employer  (25-CA-132518, et al.)  Newburgh, IN, August 24, 2022.  The Board denied the Respondent’s Motion for Summary Judgment, finding that the Respondent failed to establish that there were no genuine issues of material fact warranting a hearing and that it was entitled to judgment as a matter of law.  Charges filed by Chauffeurs, Teamsters, and Helpers, Local Union No. 215 a/w International Brotherhood of Teamsters.  Members Kaplan, Wilcox, and Prouty participated.

BlitzMetrics, Co.  (28-CA-248901 and 28-CA-249571)  Chandler, AZ, August 25, 2022.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum as untimely filed.  In addition, the Board found that even assuming that the petition was timely filed, it would be denied as lacking in merit, as 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.  Charges filed by individuals.  Chairman McFerran and Members Wilcox and Prouty participated.

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Appellate Court Decisions

Everport Terminal Services, Inc., Board Case No. 32-CA-172286 (reported at 370 NLRB No. 28) (D.C. Cir. decided August 26, 2022).

In a published opinion, the Court granted the petitions for review filed by Everport Terminal Services, Inc., which operates the Ben E. Nutter Terminal at the Port of Oakland, and the International Longshore and Warehouse Union (ILWU).  This case arose from a dispute between two unions vying to represent two units of mechanics that perform maintenance-and-repair work at the Terminal.  Since the 1960s, the units have been represented by the International Association of Machinists and Aerospace Workers, District Lodge 190, Local Lodges 1546 & 1414, AFL-CIO (IAM).  In 2015, Everport severed its contracts with the units’ then-employers and took all maintenance-and-repair work in-house.  Thereafter, it joined the Pacific Maritime Association (PMA), a multiemployer bargaining association, which has a collective-bargaining agreement with the ILWU.  Everport then hired a new workforce of mechanics, the majority of whom came through the ILWU hiring hall, and applied the PMA-ILWU contract to those employees.  IAM responded by filing unfair-labor-practice charges.

The underlying complaint, among other things, alleged that Everport was the units’ successor employer that inherited the prior employers’ obligation to bargain with IAM, and violated Section 8(a)(3) and (1) by purposefully preventing the predecessors’ IAM-represented employees from constituting a majority of the new workforce.  The complaint further alleged that Everport violated Section 8(a)(5) and (1) by refusing to recognize IAM as the units’ bargaining representative, and instead unlawfully recognized the ILWU and assisted the ILWU in securing a majority of its maintenance-and-repair workforce in violation of 8(a)(2) and (1).  In turn, the complaint alleged that the ILWU violated Section 8(b)(1)(A) and (2) by demanding and accepting recognition, by seeking to enforce its contract with PMA, and by requiring Everport to discriminate against the IAM-represented employees through application of the PMA contract.  After holding a hearing, an Administrative Law Judge found that Everport and ILWU violated the Act as alleged.  On exceptions, the Board (Members Kaplan, Emanuel, and then-Member McFerran) affirmed the judge’s rulings, findings, and conclusions, and adopted her recommended order with modifications.

On review, the Court concluded that the Board had not reasonably explained its conclusion that Everport was a successor-employer with a duty to bargain with the IAM under NLRB v. Burns International Security Services, 406 U.S. 272 (1972).  Specifically, the Court disagreed with the Board’s finding that the two units of mechanics remained appropriate after Everport took over the Terminal’s operation.  That determination was largely based on the Court’s view that the Board had improperly not addressed Everport’s argument that, as a member of the PMA, it was bound by the ILWU contract, which could be read as covering all maintenance-and-repair work at the Terminal.  Further, the Court disagreed with the Board’s finding under Wright Line that Everport’s hiring process was distorted by animus towards the IAM, stating that if Everport’s interpretation of the ILWU contract was found to be correct, that might provide a valid business reason for preferring ILWU applicants over IAM-represented ones.  Further, the Court held that in finding that Everport prematurely recognized ILWU as the mechanics’ representative, and that the ILWU unlawfully accepted its recognition, the Board had not adequately explained its application of what the Court considered a “rigid view of the premature recognition test.”  Finally, based on its rejection of the Board’s successorship finding, the Court found no basis for finding that Everport unlawfully imposed the terms of the ILWU contract on the Terminal’s mechanics.

The Court’s opinion is here.

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Administrative Law Judge Decisions

MJB Specialty, LLC, Blockchains, Inc., and/or Jeffrey Berns, Sole Proprietor, Joint Employers  (19-CA-266693; JD-50-22)  Sparks, NV.  Administrative Law Judge Andrew S. Gollin issued his decision on August 22, 2022.  Charge filed by an individual.

Brinderson LLC (27-CA-270623 and 27-RC-268059; JD(SF)-19-22) Billings, MT, August 23, 2022.  Errata to Administrative Law Judge Lisa D. Ross’ decision of July 26, 2022 which was amended on August 4, 2022.  Errata   Amended Decision.

Goddard College Corporation  (03-CA-283012; JD-51-22)  Plainfield, VT.  Administrative Law Judge Michael A. Rosas issued his decision on August 24, 2022.  Charge filed by United Auto Workers Local 2322.

CVS Pharmacy  (21-CA-283397 and 21-RC-281619; JD(SF)-23-22)  Orange, CA.  Administrative Law Judge Dickie Montemayor issued his decision on August 26, 2022.  Charges filed by United Food and Commercial Workers, Local 324, International Union, AFL-CIO.

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