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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of August 9 - 13, 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

No Published Decisions Issued.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Collier County Education Association (12-UC-269740) Punta Gorda, FL, August 11, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order as it raised no substantial issues warranting review.  The Regional Director had concluded that the Executive Director position is not supervisory under Section 2(11) of the Act.  Petitioner—Collier County Education Association.  Chairman McFerran and Members Kaplan and Ring participated.

Cornish College of the Arts (19-RC-273405) Seattle, WA, August 11, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  Petitioner—International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists, and Allied Crafts of the U.S.  Chairman McFerran and Members Kaplan and Ring participated.

Management & Training Corporation (01-RD-275435) Chicopee, MA, August 11, 2021.  The Board (Members Kaplan and Ring; Chairman McFerran, concurring) denied the Union’s Request for Review of the Acting Regional Director’s denial of its request to block the decertification election as it raised no substantial issues warranting review.  The Board found that the Acting Regional Director’s determination was consistent with the Board’s blocking charge policy and that the Union had not timely raised to the Acting Regional Director its argument that the petition should be dismissed altogether.  Concurring, Chairman McFerran noted her dissent to the current blocking charge policy at the time of its proposal, but agreed that the Acting Regional Director acted correctly under the current policy (as well as the prior policy).  Petitioner—an individual.  Union—IUE-CWA, The Industrial Division of the Communications Workers of America, AFL-CIO.  Chairman McFerran and Members Kaplan and Ring participated.

Colectivo Coffee Roasters, Inc. (18-RC-272212) Milwaukee, WI, August 13, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order Directing Opening and Counting of Challenged Ballots and Deferring Ruling on Objections as it raised no substantial issues warranting review and denied the Employer’s Motion to Stay Election Proceedings as moot.  Petitioner—International Brotherhood of Electrical Workers Local Unions 494 & 1220.  Chairman McFerran and Members Kaplan and Ring participated.

C Cases

Truck Drivers, Chauffeurs and Helpers, Local Union No. 100, a/w The International Brotherhood of Teamsters (Tea Shop Productions LLC d/b/a The Foundation) (09-CB-249487) Cincinnati, OH, August 10, 2021.  No exceptions having been filed to the June 25, 2021 decision of Administrative Law Judge Melissa M. Olivero’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.

United States Postal Service (28-CA-255991) Albuquerque, NM, August 11, 2021.  In this case alleging Section 8(a)(5) and (1) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the Acting General Counsel, and specified actions the Respondent must take to comply with the Act.  Charge filed by American Postal Workers Union, Local 380, AFL-CIO.  Chairman McFerran and Members Kaplan and Ring participated.

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Appellate Court Decisions

ADT LLC d/b/a ADT Security Services, Board Case No. 03-CA-184936 (reported at 369 NLRB No. 31) (2d Cir. decided under the name IBEW Local 43 v. NLRB, August 12, 2021).

In a published opinion, the Court granted the petition for review filed by the Charging Party, the International Brotherhood of Electrical Workers, Local Union 43, which challenged the Board’s dismissal of allegations that the Employer, which installs and services security systems, violated Section 8(a)(5) and (1) by unilaterally changing the schedules of its technicians to a temporary six-day workweek at facilities in Albany and Syracuse, New York.  The Board (then-Chairman Ring and Members Kaplan and Emanuel) applied MV Transportation, Inc., 368 NLRB No. 66 (2019), and found that the parties’ collective-bargaining agreements privileged the change.  Specifically, the Board found that the change was “covered by” two contractual provisions read in conjunction—one giving the Employer the exclusive right to determine the amount of work needed, and another contemplating unlimited overtime.

On review, the Court held that the Board’s decision in MV Transportation is “thorough and carefully reasoned,” and adopted its contract-coverage standard.  The Court then applied the standard de novo because the standard requires contract interpretation, a matter within the expertise of the courts.  In doing so, the Court agreed with the Union that the Board erred in identifying and analyzing the relevant contract provisions.  The Court explained that the hours-of-work provision contained “bargained-for restrictions on technicians’ hours and work schedules,” which limited the Employer’s right to act unilaterally, and thus the Employer was not privileged to make the change unilaterally.  Rejecting the Board’s remaining arguments, the Court concluded that the Employer violated the Act by failing to bargain with the Union before implementing the change.  Accordingly, the Court vacated the Board’s decision and remanded the case for further proceedings consistent with its opinion.

The Court’s opinion is here.

DuPont Specialty Products USA, LLC, as a successor to E.I. du Pont de Nemours and Company, Board Case No. 05-CA-222622 (reported at 369 NLRB No. 117) (3d Cir. decided August 13, 2021).

In an unpublished opinion, the Court enforced the Board’s order that issued against this manufacturer of synthetic fibers and related products at a plant near Richmond, Virginia, where a unit of 1,000 production and maintenance employees are represented by Ampthill Rayon Workers, Inc., Local 992, International Brotherhood of DuPont Workers.  For decades, the Employer operated a program through which unit employees volunteered to perform extra work as first-line responders to emergency situations at the plant and were paid overtime for that work.  In 2018, the Employer eliminated the program and contracted with an outside company to handle that emergency work, which resulted in a cost savings.  The Board (then-Chairman Ring and Members Kaplan and Emanuel) found that the Employer violated Section 8(a)(5) and (1) by refusing a request from the Union to bargain over the decision to eliminate emergency-services work for unit employees, by refusing to bargain in good faith over the effects of that decision, and by unilaterally implementing the change.

On review, the Court held that the Board’s findings were supported by substantial evidence and consistent with law.  Relying on First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), the Court held that the Employer’s decision to subcontract the emergency-safety work was a mandatory subject of bargaining over which it had a bargaining obligation.  The Court rejected the Employer’s claim that subcontracting decisions, as a matter of law, only require bargaining when labor cost is the sole motivating factor, arguing that its decision was instead based on safety concerns.  The Court explained that the defense failed because it was based on a misreading of precedent, and also because the Employer had not produced evidence that its decisionmakers were motivated by a safety rationale.  Further, noting that the parties’ collective-bargaining agreement was silent on the issue of subcontracting, the Court rejected the Employer’s contention that the contract-coverage standard of MV Transportation, Inc., 368 NLRB No. 66 (2019), privileged its decision.  Lastly, the Court rejected the Employer’s argument that two rulings by the Administrative Law Judge that excluded safety-related evidence were abuses of discretion, stating that the evidence “would have been cumulative and, more importantly, went to issues that were never in dispute and would have had minimal probative value.”

The Court’s opinion is here.

Ridgewood Health Care Center and Ridgewood Health Services, Inc., a single employer, Board Case No. 10-CA-113669 (reported at 367 NLRB No. 110) (11th Cir. decided August 13, 2021).

In a published opinion the Court granted the petition filed by this skilled nursing home facility in Jasper, Alabama, for review of the Board’s order finding that it committed unfair labor practices after it took over operations from its predecessor, but also enforced the Board’s order remedying one uncontested violation.  The Board (then-Chairman Ring and Members Kaplan and Emanuel, then-Member McFerran, dissenting in part) found, among other things, that the Employer was a successor-employer and violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the representative of its nursing staff, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.  The Board’s successorship finding was based, in large part, on its finding that the Employer’s refusal to hire four employees of its predecessor violated Section 8(a)(3) and (1), and that absent that discrimination, the Employer would have hired enough predecessor employees for the Union to have the requisite majority for successorship status under NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972).  The Board also found that the Employer violated Section 8(a)(1) by interrogating employees about their union membership, by notifying employees that they were no longer represented by the Union, and by threatening an employee with discharge for supporting the Union.

On review, the Court held that the Board’s finding that the Employer unlawfully refused to hire the four predecessor-employees was not supported by substantial evidence.  The Court noted that the Board’s finding that the employees’ union membership motivated its refusal to hire them was based largely on the Board’s findings that the Employer coercively interrogated employees, threatened to close the facility, and threatened to discharge an employee for her Union support.  The Court concluded that, in its view, each of the violations relied on for the finding of discrimination was not supported by substantial evidence or otherwise consistent with law.  Consequently, the Court held that the Board’s finding that the Employer unlawfully refused to hire the four employees was not supported by substantial evidence, and reversed the Board’s finding of successorship status.  Lastly, the Court summarily enforced those portions of the Board’s order remedying an additional unlawful threat that was uncontested on appeal.

The Court’s opinion is here.

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Administrative Law Judge Decisions

powerHouse Cultural Entertainment, Inc. (29-CA-271135 and 29-RC-271113; JD(NY)-07-21) Brooklyn, NY.  Administrative Law Judge Benjamin W. Green issued his decision on August 10, 2021.  Charges filed by Book Workers United.

Pro Custom Solar LLC d/b/a Momentum Solar (22-CA-254647; JD(NY)-09-21) Newark, NJ.  Administrative Law Judge Lauren Esposito issued her decision on August 11, 2021.  Charge filed by individuals.

American Federation for Children, Inc. (28-CA-246878 and 28-CA-262471; JD(SF)-14-21) State of Arizona.  Administrative Law Judge Ariel L. Sotolongo issued his decision on August 11, 2021.  Charges filed by an individual.

New York Presbyterian Hudson Valley Hospital (02-CA-258244; JD(NY)-08-21) New York, NY.  Administrative Law Judge Jeffrey P. Gardner issued his decision on August 11, 2021.  Charge filed by New York State Nurses Association.

NRT Bus, Inc. (01-CA-268388; JD-48-21) Hudson, MA.  Administrative Law Judge Robert A. Ringler issued his decision on August 12, 2021.  Charge filed by International Brotherhood of Teamsters, Local 170.

Audio Visual Services Group, LLP (28-CA-265596; JD(SF)-15-21) Las Vegas, NV.  Administrative Law Judge Eleanor Laws issued her decision on August 13, 2021.  Charge filed by International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories, and Canada, Local 720.

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