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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of December 27 - 31, 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

The Atlanta Opera, Inc.  (10-RC-276292; 371 NLRB No. 45)  Atlanta, GA, December 27, 2021.

The Board (Chairman McFerran and Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) issued an Order Granting Review and Notice and Invitation to File Briefs.  The Board  granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election finding that the Petitioner’s makeup artists, wig artists, and hairstylists are employees of the Employer, and not independent contractors.  The Board invited the parties and interested amici to address the following questions: (1) Should the Board adhere to the independent contractor standard in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)? and (2) If not, what standard should replace it?  Should the Board return to the standard in FedEx Home Delivery, 361 NLRB 610 (2014), either in its entirety or with modifications?  The parties and amici may file briefs with the Board by February 10, 2022, with the parties permitted to file responsive briefs by February 25, 2022.  Dissenting, Members Kaplan and Ring stated that they see no need for the Board to reconsider SuperShuttle, which was carefully considered and decided less than 3 years ago.

Petitioner—Make-Up Artists and Hair Stylists Union, Local 798, IATSE.  Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty participated.

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Davidson Hotel Company, LLC (Chicago Marriott at Medical District/UIC)  (13-CA-229523; 371 NLRB No. 44)  Chicago, IL, December 30, 2021.

On remand from the D.C. Circuit, the Board reaffirmed its prior finding in this test-of-certification proceeding that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union.  The Court had instructed the Board to address (1) the Respondent’s argument that the Regional Director’s dismissal of an earlier petition that sought a single unit of a hotel’s housekeeping employees and food and beverage employees that excluded front desk employees required dismissal of subsequent petitions that sought separate units of housekeeping employees and food and beverage employees, each of which still excluded front desk employees; and (2) prior Board decisions, cited by the Respondent, where the Board rejected separate units of hotel employees under ostensibly similar circumstances.  On remand, the Board concluded that the Regional Director’s decisions to dismiss the initial petition and direct elections pursuant to the subsequent petitions was logical, consistent, and in accord with the governing law and that the prior Board decisions are distinguishable from this case, where separate units of hotel employees were properly deemed appropriate. 

Petitioner—UNITE HERE, Local 1.  Chairman McFerran and Members Kaplan and Prouty participated.

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Aakash, Inc., d/b/a Park Central Care and Rehabilitation Center  (32-CA-282957; 371 NLRB No. 46)  Fremont, CA, December 30, 2021.

The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the grounds that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.

In doing so, the Board (Chairman McFerran and Members Wilcox and Prouty; Members Kaplan and Ring, concurring) rejected the Respondent’s contentions that neither the Acting General Counsel nor the General Counsel had the authority to issue and prosecute the complaint as a result of the President’s purportedly unlawful removal of the former General Counsel.  The Board found that although it had declined to exercise any jurisdiction to review the actions of the President in National Assn. of Broadcast Employees and Technicians—the Broadcasting and Cable Television Workers Sector of the CWA, AFL-CIO, Local 51, 370 NLRB No. 114 (2021) (NABET) and subsequent cases, the Supreme Court’s decision in Collins v. Yellen, __ U.S. __ (2021), foreclosed any reasonable argument that the President lacked the authority to remove the former General Counsel.  It further found that the General Counsel, as a Senate-confirmed and Presidentially-appointed General Counsel, validly exercised the powers of the General Counsel in issuing the complaint; and even if the Supreme Court’s Collins decision was not determinative, the statutory term of the former General Counsel had expired and he could not have continued to serve, even assuming he had not been lawfully removed before then. Concurring, Members Kaplan and Ring disagreed with their colleagues’ view that events since NABET counsel a different result.  In their view, the Board should continue to apply NABET until federal appellate courts have ruled on issues raised by the removal of the former General Counsel.

Charge filed by Service Employees International Union, Local 2015.  Chairman McFerran and Members Kaplan, Ring, 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

Ingalls Shipbuilding, Inc.  (15-CA-264863)  Pascagoula, MS, December 27, 2021.  The Board denied the Respondent’s Motion for Summary Judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  The denial was without prejudice to the Respondent’s right to renew its deferral arguments to the Administrative Law Judge, after presenting relevant evidence, and to raise the deferral issue before the Board on exceptions, if appropriate.  Charge filed by an individual.  Members Ring, Wilcox, and Prouty participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Cintas Corporation No. 2  (28-CA-258167; JD(SF)-26-21)  Phoenix, AZ.  Administrative Law Judge Lisa D. Ross issued her decision on December 27, 2021.  Charge filed by an individual.

Michell Enterprises, LLC, d/b/a McDonald’s  (01-CA-261495; JD-81-21)  Darien, CT.  Administrative Law Judge Donna N. Dawson issued her decision on December 30, 2021.  Charge filed by Service Employees International Union, Local 32BJ.

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