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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of August 30 - September 3, 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

Cascades Containerboard Packaging—Niagara, a Division of Cascades Holding US Inc. (03-CA-242367, et al.; 371 NLRB No. 25) Niagara Falls, NY, August 27, 2021.

In Cascades Containerboard Packaging – Niagara, a Division of Cascades Holding US Inc., 370 NLRB No. 76 (Cascades I), the Board found that the Respondent violated the Act and ordered it to pay backpay to affected employees.  Additionally, at the General Counsel’s request, the Board adopted a new remedy requiring the Respondent to file with the Regional Director a copy of each backpay recipient’s appropriate W-2 form(s).  This was in addition to the existing remedy requiring respondent employers to submit backpay allocation reports to the Regional Director within 21 days.

Subsequently, the Acting General Counsel, in a Motion for Clarification and Modification of Order Requiring Submission of W-2 Forms, asked the Board to impose a 21-day deadline for the filing of W-2 forms.  In Cascades Containerboard Packaging – Niagara, a Division of Cascades Holding US Inc., 370 NLRB No. 125 (Cascades II), the Board issued a Notice and Invitation to File Briefs (NIFB), inviting the parties and interested amici to address whether:  (1) the Board should impose a deadline (and, if so, what) within which a respondent employer must furnish to a Regional Director a copy of each backpay recipient’s appropriate W-2 form(s), reflecting the backpay award; and (2) the Board should modify the 21-day deadline (and, if so, how), set forth in AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), for submission of a report allocating the backpay award to the appropriate calendar year for each affected employee.

Here, the full Board, having reviewed the briefs submitted in response to the NIFB, granted the Acting General Counsel’s motion and modified its Order in Cascades I accordingly.  Under this modification to the W-2 remedy, the Respondent, and respondent employers in all pending and future cases that require a respondent employer to make one or more employees whole, must, within 21 days of the date the amount of backpay is fixed either by agreement or Board order, or such additional time as the Regional Director may allow for good cause shown, file with the Regional Director a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award.  The Board also decided to maintain the 21-day deadline in AdvoServ, above, for the submission of backpay-allocation reports.

Charges filed by International Association of Machinists and Aerospace Workers, District Lodge 65, AFL-CIO.  Administrative Law Judge Paul Bogas issued his decision on March 17, 2020.  Chairman McFerran and Members Kaplan, Emanuel, Ring, and Wilcox participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

Tri-County Electric Cooperative, Inc. (16-CA-260485) Azle, TX, September 1, 2021.  No exceptions having been filed to the June 17, 2021 decision of Administrative Law Judge David I. Goldman’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 International Brotherhood of Electrical Workers, Local 220.

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Appellate Court Decisions

Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, Board Case No. 16-CA-193636 (reported at 368 NLRB No. 46) (D.C. Cir. decided under the name Local 23, American Federation of Musicians v. NLRB, August 31, 2021).

In a published opinion, the Court granted the petition for review filed by the Charging Party, Local 23, American Federation of Musicians, which challenged the Board’s dismissal of an unfair-labor-practice complaint against this private, nonprofit organization that owns and operates a complex of performance and exhibition spaces in San Antonio, Texas.  Specifically, the complaint alleged that the Center unlawfully denied property access to off-duty union-represented musicians of the San Antonio Symphony, who performed and rehearsed at the Center at least part of the time during 22 weeks annually.  In dismissing the complaint, the Board (then-Chairman Ring and Members Kaplan and Emanuel; then-Member McFerran, dissenting) concluded that the Center did not violate Section 8(a)(1) by prohibiting the employees from distributing leaflets to the general public on the Center’s property.

In its decision, the Board revisited the standard to be applied to the access rights of employees of an on-site contractor or licensee, and overruled New York New York Hotel & Casino, 356 NLRB 907 (2011), and Simon DeBartolo Group, 357 NLRB 1887 (2011).  The Board held that such third-party employees are only entitled to access for Section 7 purposes when they “work both regularly and exclusively on the property,” and “the property owner fails to show that they have one or more reasonable non-trespassory alternative means to communicate their message.”  Applying that revised standard, the Board found that the Center lawfully denied the musicians access to its property because they did not work there regularly and exclusively, and even assuming that they did, that they had a “reasonable alternative non-trespassory channel of communicating their concerns to the theater-going public.”

On review, the Court agreed with the Union that “the Board’s new approach is arbitrary, both on its own terms and as applied in this case.”  The Court began by surveying the development of law in this case, and noted that it had previously approved the Board’s standard for the access rights of an onsite contractor’s employees in New York New York, LLC v. NLRB, 676 F.3d 193 (D.C. Cir. 2012), under which a property owner could exclude contractor employees from conducting organizing activity on the premises “only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason.”

Moving to the Board’s revised standard, the Court held that the requirement that contractor employees work “regularly” on the premises is essentially a measure of “the frequency of the work,” which it stated, “might work as an abstract matter,” but “cannot be squared with statements the Board makes elsewhere in its decision.”  Thus, the Court found that “defining regularity by way of frequency . . . renders the Board’s decision internally inconsistent, and, as a result, arbitrary.”  Like the regularity requirement, the Court found that the Board’s exclusivity requirement, although properly aimed at covering employees who have a sufficiently strong connection to the property owner’s property to warrant access rights, “is an ill-suited proxy for connection to the property,” and thus arbitrary.  Lastly, the Court held that the Board’s application of the second step of the Board’s revised standard—which required the Employer to prove that there were no reasonable alternative means for the employee communications—“was itself arbitrary,” in large part because “the Board applied its new test without hearing any presentation of competing views or eliciting any record submissions addressed to whether the Tobin Center could carry its (previously unknown) burden.”  Rather, the Court stated, the Board “simply deemed the requisite showing to have been made without requiring the Tobin Center to carry its burden to make it.”

Accordingly, the Court remanded the case to the Board for further proceedings consistent with its opinion.  The Court also stated that “[o]n remand, the Board may decide whether to proceed with a version of the test it announced and sought to apply in this case or to develop a new test altogether.”  Concurring, Judge Henderson wrote separately to state her views that the Board “misapplied its new framework for contractor employees’ access rights to this dispute,” but that “the Board’s new framework is neither arbitrary nor capricious per se.”

The Court’s opinion is here.

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Administrative Law Judge Decisions

AJNC Industries LLC d/b/a Clark Welding and Fabricating (28-CA-266358; JD(SF)-16-21) Las Vegas, NV.  Administrative Law Judge Gerald M. Etchingham issued his decision on August 30, 2021.  Charge filed by 5 State Pipe Trades Association.

McLaren Macomb (07-CA-263041; JD-51-21) Mount Clemens, MI.  Administrative Law Judge Robert A. Ringler issued his decision on August 31, 2021.  Charge filed by Local 40 RN Staff Council, Office and Professional Employees International Union (OPEIU), AFL-CIO.

Metro Man IV, LLC d/b/a Fountain Bleu Health and Rehabilitation Center, Inc. (07-CA-264407; JD-51-21) Livonia, MI.  Administrative Law Judge Ira Sandron issued his decision on August 31, 2021.  Charge filed by SEIU Healthcare Michigan.

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