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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of December 6 - 10, 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

American Steel Construction, Inc.  (07-RC-269162; 371 NLRB No. 41)  Livonia, MI, December 7, 2021.

The Board (Chairman McFerran and Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) issued a Notice and Invitation to File Briefs, inviting the parties and interested amici to address the following questions: (1) Should the Board adhere to the standard in PCC Structurals, Inc., 365 NLRB No. 160 (2017), as revised in The Boeing Company, 368 NLRB No. 67 (2019); and (2) If not, what standard should replace it?  Should the Board return to the standard in Specialty Healthcare, 357 NLRB 934 (2011), either in its entirety or with modifications?  The parties and amici may file briefs with the Board by January 21, 2022, with the parties permitted to file responsive briefs by February 7, 2022.

Petition filed by Local 25, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL–CIO.  Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty participated.

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Community Counseling & Mentoring Services, Inc.  (05-CA-255979, et al.; 371 NLRB No. 39)  Largo, MD, December 8, 2021.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent committed numerous Section 8(a)(1) violations, including unlawfully terminating the charging parties.  Addressing the unlawful terminations, the Board agreed with the judge that the record evidence “overwhelmingly” supported the conclusion that the Respondent failed to demonstrate that it would have discharged the employees absent their protected activity.    

Charges filed by individuals.  Administrative Law Judge Paul Bogus issued his decision on April 13, 2021.  Chairman McFerran and Members Ring and Wilcox participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Starbucks Corporation  (03-RC-282115, et al.)  Buffalo, NY, December 7, 2021.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Elections as it raised no substantial issues warranting review.  Petitioner—Workers United.  Members Kaplan, Wilcox, and Prouty participated.

Aclara Smart Grid Solutions, LLC  (05-RC-261239)  Richmond, VA, December 10, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction on Challenges as it raised no substantial issues warranting review.  Members Wilcox and Prouty agreed with the Regional Director’s finding that the challenged employees had a reasonable expectation of recall based on the Employer’s Notice of Temporary Furlough, statements to employees, and past practice of recalling laid-off employees, but expressed no view as to whether the Board’s decision in NP Texas LLC, d/b/a Texas Station Gambling Hall and Hotel, 370 NLRB No. 11 (2020), was correctly decided.  Petitioner—Local Union No. 666, International Brotherhood of Electrical Workers, AFL-CIO.  Members Ring, Wilcox, and Prouty participated.

C Cases

United States Postal Service  (10-CA-276686)  Port Royal, SC, December 8, 2021.  In this case alleging Section 8(a)(5) violations, the Board approved a formal settlement stipulation between the Respondent and the General Counsel and specified actions the Respondent must take to comply with the Act.  Charge filed by South Carolina American Postal Workers Union, AFL-CIO.  Members Kaplan, Wilcox, and Prouty participated.

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)  San Francisco, CA, December 9, 2021.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 371 NLRB No. 15 (2021), finding that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  Member Prouty did not participate in the previous Decision and Order but agreed that the Respondent had not established grounds for reconsideration.  Charges filed by an individual.  Chairman McFerran and Members Ring and Prouty participated.

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Appellate Court Decisions

New York Paving, Inc., Board Case No. 29-CA-233990 (reported at 370 NLRB No. 44) (D.C. Cir. decided December 10, 2021).

In an unpublished judgment, the Court enforced the Board’s order that issued against this construction company that performs asphalt and concrete paving to repair damage to roads and sidewalks resulting from underground utility work within the five boroughs of New York City.  Historically, the Construction Council Local 175, Utility Workers Union of America, AFL-CIO (Local 175), has represented workers who perform all permanent and temporary asphalt paving work for the Employer.  This case concerned allegations that the Employer unlawfully transferred three types of temporary asphalt paving assignments to workers instead represented by Highway Road and Street Construction Laborers Local Union 1010, District Council of Pavers and Builders, Laborers International Union of North America, AFL-CIO (Local 1010).  The Board (Members Kaplan and Emanuel, and then-Member McFerran) found that the Employer violated Section 8(a)(5) and (1) by unilaterally transferring that work to Local 1010 without notifying or bargaining with Local 175.

On review, the Court held that the Board’s findings were supported by substantial evidence and found the Employer’s challenges unavailing.  Regarding the Employer’s contention that Local 175’s unfair-labor-practice charge was filed outside the six-month period prescribed by Section 10(b) of the Act, the Court held that the Employer failed to establish that Local 175 had “clear and unequivocal notice” at the asserted time.  The Court also held that the Employer failed to support its argument that it had no liability for the unilateral changes because, it contended, the transfers of work were not material, substantial, and significant changes.  Nor did the Court find credence in the Employer’s argument that one of its utility contracts permitted it to take such unilateral actions without bargaining.  Concluding that the Employer’s remaining arguments were either contrary to the record evidence or did not warrant discussion, the Court enforced the Board’s order in full.

The Court’s judgment is here.

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Administrative Law Judge Decisions

Strategic Technology Institute, Inc.  (15-CA-249872; JD-73-21)  Rockville, MD.  Administrative Law Judge Arthur J. Amchan issued his decision on December 9, 2021.  Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO.

Thrifty Payless, Inc., d/b/a Rite Aid  (20-CA-255252; JD(SF)-21-21)  Roseville, CA.  Administrative Law Judge Dickie Montemayor issued his decision on December 9, 2021.  Charge filed by United Food and Commercial Workers Local 8-Golden State.

Troutbrook Company, LLC d/b/a Brooklyn 181 Hospitality, LLC  (29-CA-275229; JD(NY)-14-21)  Brooklyn, NY, December 10, 2021.  Errata to Administrative Law Judge Lauren Esposito’s decision of December 1, 2021.  Errata   Amended Decision.

Hood River Distillers, Inc.  (19-CA-260013, et al.; JD-74-21)  Hood River, OR.  Administrative Law Judge Geoffrey Carter issued his decision on December 10, 2021.  Charges filed by Teamsters, Local Union No. 670, Board of Trustees of the Oregon Processors Employees Trust Fund, and an individual.

National Rural Letter Carriers Association (USPS)  (19-CB-245120; JD(SF)-20-21)  Bend, OR.  Administrative Law Judge Gerald M. Etchingham issued his decision on December 10, 2021.  Charge filed by an individual.

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