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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of August 23 - 27, 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

Qawasmi Trading Inc. d/b/a Green Way Glass & Mirror & Woodworking d/b/a Temp Tech Glass and Green Way Glass & Mirror & Woodworking and Temp-Tech Industries, Inc. (13-CA-226275 and 13-CA-228751; 371 NLRB No. 20) Chicago, IL, August 24, 2021.

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondents’ failure to file an answer to the compliance specification.  Accordingly, the Board ordered the Respondents to make whole an affected employee due to the Respondents’ cancellation of employees’ health insurance, and to make whole unit employees for payments due the named pension fund, by paying the employee and the pension fund, respectively, the amounts set forth in the compliance specification with interest.  

Charges filed by Glaziers Architectural Metal Workers Local 27.  Chairman McFerran and Members Kaplan and Ring participated.

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St. Mary’s Medical Center, Inc. (09-CA-269032; 371 NLRB No. 17) Huntington, WV, August 24, 2021.

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s withdrawal of its answer to the complaint.  The Board found that the Respondent violated Section 8(a)(3) and (1) by rescinding an offer of employment and refusing to employ an individual because she formed, joined, and assisted the Union and engaged in concerted activities.

Charge filed by Service Employees International Union (SEIU), District 1199, WV/KY/OH, the Health Care and Social Services Union.  Chairman McFerran and Members Kaplan and Ring participated.

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Cabell Huntington Hospital, Inc. (09-CA-265186 and 09-CA-272730; 371 NLRB No. 21) Huntington, WV, August 24, 2021.

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s withdrawal of its answer to the consolidated complaint.  The Board found that the Respondent violated Section 8(a)(1) by implying that employees would not be rehired because of their social media posts criticizing employment conditions; and violated Section 8(a)(3) and (1) by refusing to employ an individual because she formed, joined, and assisted the Union and engaged in concerted activities.

Charges filed by Service Employees International Union (SEIU), District 1199, WV/KY/OH, the Health Care and Social Services Union.  Chairman McFerran and Members Kaplan and Ring participated.

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Constellium Rolled Products Ravenswood, LLC (09-CA-116410; 371 NLRB No. 16) Ravenswood, WV, August 25, 2021.

On remand from the D.C. Circuit Court, the Board unanimously affirmed its previous conclusion that the Respondent violated Section 8(a)(3) and (1) by suspending and terminating an employee.   In its initial decision, the Board had found that the employee engaged in protected conduct concerning the Respondent’s overtime procedures when he wrote “whore board” on the Respondent’s overtime signup sheets; that the Respondent disciplined him for the protected conduct of his writing; and that his conduct was not so egregious as to cause him to lose the protection of the Act.  The Court remanded the proceeding to the Board to address the limited issue of the potential conflict between the Board’s interpretation of the NLRA in its underlying decision and the Respondent’s obligations under state and federal equal employment opportunity laws.  On remand, a Board majority (Members Kaplan and Emanuel) explained that the analytical framework set forth in General Motors LLC, 369 NLRB No. 127 (2020), represents the Board’s reconciliation of the precise issue remanded by the court: potential conflict between an employer’s duties under the NLRA and under antidiscrimination laws.  The majority thus found it appropriate to apply the General Motors test to resolve the issue remanded by the Court, and, applying that test, concluded that the Respondent failed to show that it would have suspended and discharged the employee for misconduct under antidiscrimination laws even absent his protected Section 7 activity.

Chairman McFerran concurred in the result, agreeing that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging the employee.  Chairman McFerran observed that she did not participate in General Motors LLC, and she took no position on whether that decision was correctly decided and whether it is appropriate to apply that decision on remand.  Instead, Chairman McFerran found that the Board’s underlying Decision and Order did not create any conflict—actual or potential—with the Respondent’s obligations under equal employment opportunity laws, stating that the employee’s conduct could not plausibly constitute a basis for establishing a claim under federal and state anti-discrimination precedent.  Chairman McFerran further stated that the Board’s Order would not have required the Respondent to tolerate hostile work conditions or forgo its obligations under equal employment opportunity laws.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 5668.  Administrative Law Judge Keltner W. Locke issued his decision on September 29, 2016.  Chairman McFerran and Members Kaplan and Emanuel 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; 371 NLRB No. 15) San Francisco, CA, August 25, 2021.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(1)(A) by failing to notify a Charging Party employee that he had misdirected his Beck objection to it rather than to the national union, or to otherwise respond to or honor his objection and reduce his dues accordingly.  The Board reversed the judge to find that the Respondent violated Section 8(b)(1)(A) by sending the Charging Party employee two evidence-preservation letters because they reasonably tended to restrain or coerce employees in the exercise of their right to avail themselves of the Board’s processes.

Charges filed by an individual.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on December 3, 2020.  Chairman McFerran and Members Emanuel and Ring participated.

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The Voorhees Care and Rehabilitation Center a/k/a The Pines at Voorhees Rehabilitation & Healthcare Center, LLC a/k/a The Lakewood of Voorhees Operator, LLC (04-CA-219938; 371 NLRB No. 22) Voorhees, NJ, August 25, 2021.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally terminating employees’ health insurance coverage in November 2017 and then unilaterally implementing a new health insurance plan in May 2018 in contravention of the parties’ collective-bargaining agreement.  The Board reversed the judge to find that the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing another new health insurance plan in February 2019.  In addition, the Board modified the remedy to require the Respondent to reimburse employees for all costs incurred by them because of the unilateral implementation of new health insurance plans, medical expenses that they paid directly to medical providers in whole or in part because of their lack of health insurance coverage, and insurance premiums paid by them for coverage they never received, in addition to requiring the Respondent to pay any still unpaid medical bills directly to the medical providers instead of as reimbursement to the affected employees.  Chairman McFerran and Member Ring also noted their willingness, in a future appropriate case, to invite the public to brief whether the Board should award consequential damages, and under what circumstances, to ensure that employees are made whole for economic losses in cases in which the Board’s traditional make-whole relief is inadequate to fully remedy the employer’s unfair labor practice violations.

Charge filed by District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on January 28, 2021.  Chairman McFerran and Members Emanuel and Ring participated.

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YP Midwest Publishing, LLC d/b/a Dex YP (07-CA-218455; 371 NLRB No. 23) Maryland Heights, MO, August 26, 2021.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(5) and (1) by failing to make matching retirement contributions at a maximum rate of 5 percent, notwithstanding that the final collective-bargaining agreement it had drafted in relevant part, executed, and publicized to the bargaining unit specified that amount.  The Board noted that the earlier Memorandum of Understanding on which the final agreement was based “was silent on what any specific 401(k) benefit to be included in the contract would be,” and found that accordingly “the parties never reached any agreement in that regard.”  The Board also noted that, during the previous negotiations over the contract, the Respondent had rejected the Union’s proposal to increase the maximum contribution rate to 5 percent.  That earlier rejection “was more than sufficient to have made it obvious to the Union that the inclusion of the 5 percent paragraph in the new collective-bargaining agreement was a drafting error,” despite the Respondent not attempting to correct its mistake after it made the error while the parties were still reviewing and finalizing their contract.

Charge filed by District 4, Communications Workers of America (CWA), AFL–CIO.  Administrative Law Judge Melissa M. Olivero issued her decision on June 18, 2020.  Members Kaplan, Emanuel, and Ring participated.

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International Brotherhood of Electrical Workers, Local 98 (Shree Sai Siddhi Spruce, LLC, d/b/a Fairfield Inn & Suites by Marriott) (04-CC-223346; 371 NLRB No. 19) Philadelphia, PA, August 27, 2021.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(b)(4)(ii)(B) by posting large inflatable rats near the entrance of the Charging Party’s hotel, along with handbilling and related activity.  In so doing, Members Ring and Kaplan cited their concurrence in the Board’s recent decision in Operating Engineers Local 150 (Lippert Components, Inc.), 371 NLRB No. 8 (2021).  The Board also adopted the judge’s conclusion that, on a separate occasion, the Respondent violated Section 8(b)(4)(ii)(B) by using a bullhorn at a high volume in front of the hotel and an adjacent restaurant.

Charge filed by Shree Sai Siddhi Spruce, LLC, d/b/a Fairfield Inn & Suites by Marriott.  Administrative Law Judge Robert A. Giannasi issued his decision on May 28, 2019.  Chairman McFerran and Members Kaplan and Ring participated.

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International Union of Operating Engineers, Local Union No. 150, a/w International Union of Operating Engineers, AFL–CIO (Maglish Plumbing, Heating & Electric, LLC) (25-CC-230368; 371 NLRB No. 18) South Bend, IN, August 27, 2021.

The Board, applying its recent decision in Operating Engineers Local 150 (Lippert Components, Inc.), 371 NLRB No. 8 (2021), adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(b)(4)(i) or (ii)(B) by displaying banners and a 12-foot inflatable rat near two neutral sites. 

Charge filed by Maglish Plumbing, Heating & Electric, LLC.  Administrative Law Judge Kimberly Sorg-Graves issued her decision on October 16, 2019.  Chairman McFerran and Members Kaplan and Ring participated.

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All Steel Iron Works, Inc. d/b/a ASIW, LLC and ASIW, Inc. (13-CA-274040; 371 NLRB No. 24) Joliet, IL, August 27, 2021.

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union and thereafter refusing to bargain with the Union, and by refusing to provide the Union with requested, relevant information.

Charge filed by Iron Workers Regional Local Union No. 853.  Chairman McFerran and Members Kaplan and Ring participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Planned Building Services, Inc., and Planned Lifestyle Services, Inc., Part of and Related to Planned Companies (02-RD-274535) New York, NY, August 27, 2021.  The Board (Members Kaplan and Emanuel; Member Ring, dissenting in part) granted the Union’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised substantial issues warranting review.  On review, applying Aspirus Keweenaw, 370 NLRB No. 45 (2020), the Board found that the Regional Director erred in finding that the existence of COVID-19 variants satisfied Aspirus factor 6.  The Board majority (Members Kaplan and Emanuel) further found that in the narrow circumstances presented in this case—where the Union requests a manual election and, the Employer, which does not own or control the premises upon which employees work, requests a mail ballot election—the Regional Director also misapplied Aspirus factors 4 and 5.  Specifically, the majority found that it was not sufficient for the Regional Director to direct a mail-ballot election based on the Employer’s putative inability to comply with the Aspirus factor 4 and 5 certifications or its inability or refusal to provide certain items (e.g., plexiglass barriers) or certifications concerning the presence of COVID-19 on the premises.  The Board directed that, on remand, the Regional Director contact the entity that owns or controls the premises to determine whether it will allow access to the premises for the purposes of conducting a manual election and assist the parties in complying with General Counsel Memorandum 20-10’s and Aspiruss requirements if the Regional Director directs a manual election.  Member Ring, dissenting in part, found that the majority’s modification of Aspirus was unwarranted, at least at this time, and concluded that the Regional Director did not abuse his discretion in directing the mail-ballot election.  Petitioner—an individual.  Union—Service Employees International Union, Local 32BJ. Members Kaplan, Emanuel, and Ring participated.

C Cases

Owens Corning Insulating Systems, LLC (16-CA-266880) Waxahachie, TX, August 25, 2021.  No exceptions having been filed to the July 13, 2021 decision of Administrative Law Judge Keltner W. Locke’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.

JT4, LLC (28-CA-268697 and 28-CA-271230) Las Vegas, NV, August 25, 2021.  No exceptions having been filed to the July 14, 2021 decision of Administrative Law Judge Dickie Montemayor’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.  Charges filed by an individual.

Curaleaf Massachusetts, Inc. (01-CA-262554) Hanover, MA, August 27, 2021.  No exceptions having been filed to the July 15, 2021 decision of Administrative Law Judge Ira Sandron’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 United Food and Commercial Workers Union Local 328.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

People United for Sustainable Housing, Inc. (03-CA-271788 and 02-CA-271790; JD-50-21) Buffalo, NY.  Administrative Law Judge Arthur J. Amchan issued his decision on August 27, 2021.  Charges filed by individuals.

H & M International Transportation, Inc. (05-CA-241380; JD-49-21) Iselin, NJ.  Administrative Law Judge Sharon Levinson Steckler issued her decision on August 27, 2021.  Charge filed by International Longshoremen’s Association, Local 1970, AFL-CIO, and Teamsters Local Union No. 822, a/w the International Brotherhood of Teamsters, Party in Interest.

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