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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of February 28 - March 4, 2022

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases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

No Unpublished R Cases Issued.

C Cases

United Scrap Metal, Inc.  (13-CA-268797, et al.)  Cicero, IL, March 1, 2022.  No exceptions having been filed to the January 18, 2022 decision of Administrative Law Judge Michael A. Rosas’ 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.  Charges filed by individuals.

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Appellate Court Decisions

Wendt Corporation, Board Case No. 03-CA-212225 (reported at 369 NLRB No. 135) (D.C. Cir. decided March 1, 2022).

In a published opinion, the Court enforced the Board’s order, except for one finding that it remanded for reconsideration.  In its decision, the Board found that Wendt, a manufacturer of scrap-metal-recycling equipment at a facility in Cheektowaga, New York, committed numerous unfair labor practices after a unit of its production and warehouse employees voted in a June 2017 election to be represented by Shopmen’s Local Union No. 576.

Specifically, the Board (then-Chairman Ring and Members Kaplan and Emanuel) found that the Employer interrogated and threatened employees for their union support, created the impression of surveillance, refused an employee’s request for a union representative to be present at his disciplinary meeting, and implied in another employee’s written evaluation that he should focus on work rather than union activity, all in violation of Section 8(a)(1).  The Board further found that the Employer violated Section 8(a)(3) and (1) by discriminatorily suspending an employee, assigning a leading union proponent exclusively to low-skill work and denying his requests for overtime, and delaying performance reviews and wage increases for unit employees while not doing so for non-unit employees.  The Board also found that the Employer violated Section 8(a)(5) and (1) by unilaterally requiring overtime work, removing work from the bargaining unit, temporarily laying off 10 employees, and delaying evaluations and wage increases from November 2017 to April 2018, refusing to bargain over the retroactivity of wage increases later conferred in 2018, and refusing to provide requested information relevant to the retroactivity bargaining.

On review, the Court summarily enforced many of the unfair-labor-practice findings on the basis that they were either uncontested or barred from review under Section 10(e) of the Act.  On the contested finding that the Employer unlawfully refused an employee’s request for union representation at his disciplinary meeting, the Court held that it was supported by substantial evidence and that the Employer’s argument to the contrary was belied by the record evidence.  On the Board’s removal-of-unit-work finding, the Court rejected the Employer’s arguments that the change was not material and substantial enough to trigger its obligation to bargain and that the change was otherwise consistent with past practice.  On substantial-evidence grounds, the Court also upheld the Board’s findings that the Employer unlawfully failed to provide annual performance reviews and accompanying wage increases to unit employees, which deprived them of wage increases for six months, and failed to afford the Union an opportunity to bargain.

Similarly, the Court upheld the Board’s application of Wright Line in finding that the Employer discriminatorily assigned a leading union proponent exclusively to low-skill work and denied his requests for overtime.  Contrary to the Employer’s contention, the Court held that ample evidence supported the Board’s conclusion that the General Counsel had made a showing that anti-union animus was a motivating factor for the adverse actions.  The Court rejected the Employer’s claim that anti-union animus had not been proven because none of the plant manager’s threats to pro-union employees were made directly to this particular employee.  Citing Parsippany Hotel Management Co. v. NLRB, 99 F.3d 413 (D.C. Cir. 1996), the Court noted that it had previously held that a manager’s anti-union speech is “clearly sufficient to establish anti-union animus on the part of that company.”  Therefore, the Court held in finding that the Employer acted with anti-union animus that it was appropriate for the Board to rely on the plant manger’s statements which had “expressed a general threat to all employees.”  Further, the Court agreed with the Board that the Employer discriminatorily “singled out” this employee for disparate treatment on the basis of his union activities.

However, regarding the Board’s finding that the Employer unlawfully laid off 10 employees on a temporary basis, the Court found that the Board had not adequately addressed the Employer’s argument that the layoffs were consistent with its past practice of laying off employees during economic slowdowns.  The Court explained that “the Board considered only a subset of the layoffs Wendt identified without adequately explaining the materiality of its distinctions between those considered and those excluded,” and remanded the issue for the Board’s reconsideration.  .

The Court’s opinion is here.

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Administrative Law Judge Decisions

Atlantic Veal and Lamb, LLC  (29-CA-272677; JD(NY)-03-22)  Brooklyn, NY, February 28, 2022.  Errata to Administrative Law Judge Lauren Esposito’s decision on February 15, 2022.  Errata   Amended Decision.

International Longshore and Warehouse Union  (19-CD-269624 and 19-CD-269637; JD-13-22)  Seattle, WA.  Administrative Law Judge Michael A. Rosas issued his decision on March 4, 2022.  Charges filed by International Longshore and Warehouse Union, Local 19; International Association of Machinists and Aerospace Workers, District Lodge 160, Local Lodge 289; SSA Terminals, LLC; and Pacific Maritime Association.

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