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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of July 11 - 15, 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

Penske Truck Leasing Co., LP  (09-UC-281192; 371 NLRB No. 113)  Piqua, OH, July 12, 2022.

The Board (Chairman McFerran and Member Ring; Member Prouty, dissenting) denied the Union’s Request for Review of the Regional Director’s Decision and Order Granting Unit Clarification as it raised no substantial issues warranting review.  The Board found that because the issue presented by the Employer’s unit-clarification petition was one of accretion, deferral was inappropriate under extant Board precedent.  Dissenting, Member Prouty stated his agreement with then-Member Liebman’s dissent in Tweddle Litho, Inc., 337 NLRB 686, 687 (2002), and would have deferred the issue to the parties’ grievance-arbitration procedure.

Petitioner—Penske Truck Leasing Co., LP.  Union—International Brotherhood of Teamsters, Local No. 957.  Chairman McFerran and Members Ring and Prouty participated.

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Indiana Michigan Power Company  (07-RD-293425; 371 NLRB No. 114)  Bridgman, MI, July 12, 2022.

The Board (Chairman McFerran and Member Ring; Member Prouty, dissenting) denied the Union’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Board agreed with the Regional Director that the duration clause of the operative Extension Agreement failed to provide clear notice to individuals or other parties as to its expiration date.  Dissenting, Member Prouty stated that he would grant review, reverse the Regional Director, and dismiss the decertification petition on the basis that the expiration date is readily apparent from the four corners of the operative agreements.

Petitioner—an individual.  Union—Local 1392, International Brotherhood of Electrical Workers, AFL-CIO.  Chairman McFerran and Members Ring and Prouty participated.

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Time Warner Cable New York City, LLC  (02-CA-126860; 371 NLRB No. 116)  New York, NY, July 15, 2022.

The Board (Members Wilcox and Prouty; Member Ring, dissenting) granted the Joint Motion to Vacate Order and to Remand based on the non-Board resolution of this matter.  Based on the non-Board settlement agreement, the Board’s Decision and Order of June 22, 2018, reported at 366 NLRB No. 116, was vacated and the case remanded to the Regional Director.  Dissenting, Member Ring noted that that Board should vacate the decision and order for all purposes, including as precedent.

Charge filed by Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO.  Members Ring, Wilcox, and Prouty participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Amazon.com Services, LLC  (29-RC-288020)  Staten Island, NY, July 11, 2022.  The Board (Chairman McFerran and Member Prouty; Member Ring, dissenting) denied the Employer’s Request for Review of the Regional Director’s Order Denying Motion to Exclude Region 29’s Participation in the Post-Election Objections Hearing as it raised no substantial issues warranting review.  In denying review, the Board emphasized that the appointment of a representative for a regional director is a well-established practice that has been codified in Board’s Casehandling Manual.  Member Ring, dissenting, would have granted the Employer’s Request for Review.  Petitioner—Amazon Labor Union. Chairman McFerran and Members Ring and Prouty participated.

MVM, Inc.  (28-RC-288965)  Phoenix, AZ, July 12, 2022.  The Board denied the Employer’s Motion for Stay of Election and Expedited Consideration.  Petitioner—International Union, Security, Police and Fire Professionals of America (SPFPA).  Chairman McFerran and Members Kaplan and Ring participated.

Bob’s Discount Furniture of New York, LLC  (29-RD-284944)  Brooklyn, NY, July 13, 2022.  The Board denied the Union’s Request for Review of the Regional Director’s Decision and Certification of Results of Election as it raised no substantial issues warranting review.  Petitioner—an individual.  Union—United Food and Commercial Workers, Local 888.  Chairman McFerran and Members Kaplan and Ring participated.

Starbucks Corporation  (28-RC-291280)  Phoenix, AZ, July 13, 2022.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review.  Petitioner—Workers United a/w Service Employees International Union.  Chairman McFerran and Members Kaplan and Ring participated.

Pathway Vet Alliance, LLC, Veterinary Specialists & Emergency Services  (03-RC-281879)  Rochester, NY July 13, 2022.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  Petitioner—International Association of Machinists and Aerospace Workers.  Chairman McFerran and Members Kaplan and Ring participated.

STG Cartage, LLC, d/b/a XPO Logistics  (21-RC-289115)  Los Angeles, CA, July 13, 2022.  The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised substantial issues warranting review.  The Regional Director found that the petitioned-for drivers were employees, not independent contractors, and that the petitioned-for two-facility unit was an appropriate unit.  With respect to the independent contractor issue, the Board stated that it was taking administrative notice of the briefs filed in response to the Notice and Invitation to File Briefs in The Atlanta Opera, Inc., 371 NLRB No. 45 (2021).  Members Kaplan and Ring noted that no party to this case had asked the Board to revisit SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), and stated that they jointly dissented to the solicitation of briefs in The Atlanta Opera and that they adhered to the views stated there.  Petitioner—Wholesale Delivery Drivers, General Truck Drivers, Chauffeurs, Sales, Industrial and Allied Workers, Teamsters Local 848, International Brotherhood of Teamsters & Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 542, International Brotherhood of Teamsters.  Chairman McFerran and Members Kaplan and Ring participated.

Starbucks Corporation  (14-RC-290942)  Nicholas Hills, OK, July 14, 2022.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision on Challenged Ballots as it raised no substantial issues warranting review.  Petitioner—Chicago and Midwest Regional Joint Board, Workers United/SEIU.  Chairman McFerran and Members Kaplan and Ring participated.

C Cases

No Unpublished C Cases Issued.

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Appellate Court Decisions

Bannum Place of Saginaw, LLC, Board Case No. 07-CA-207685 (reported at 370 NLRB No. 117) (6th Cir. decided July 14, 2022).

In a published opinion, the Court enforced the Board’s order that issued against this operator of a halfway house for federal inmates in Saginaw, Michigan, which provides its services under contract with the federal Bureau of Prisons.  The Board’s order remedies numerous unfair labor practices committed before and after employees at the halfway house voted in a November 2017 election to be represented by Teamsters Local 406.  In upholding the Board’s findings, the Court rejected Bannum’s defense that it was exempt from the Board’s jurisdiction because it was a joint employer with the Bureau of Prisons, a governmental entity not covered by under Section 2(2) of the Act.

After complaint issued in the underlying proceeding, Bannum filed a Motion to Dismiss in which it repeated arguments that it was exempt from the Board’s jurisdiction that it had raised unsuccessfully in the prior representation case and for which it failed to seek Board review.  The Administrative Law Judge denied the motion and, after holding a hearing, found the bulk of the alleged unfair labor practices.  On exceptions, the Board (Chairman McFerran and Members Emanuel and Ring) found that Bannum committed numerous violations of Section 8(a)(1), (3), and (4).  Specifically, the Board found, among other violations, that Bannum discharged two employees because of their support for the organizing campaign, one of whom was also unlawfully discharged for attending a Board hearing, and by coercively interrogating and threatening employees regarding their support for the union.  Applying its “non-relitigation rule,” the Board affirmed the judge’s denial of Bannum’s Motion to Dismiss, noting that the joint-employer issue had been considered and rejected in the representation case.

Before the Court, Bannum did not contest the merits of the unfair-labor-practice findings, arguing only that the Board lacked jurisdiction over it because it is a joint employer with an exempt governmental entity.  As a threshold matter, the Court agreed with the Board’s application of the non-relitigation rule and concluded that the merits of Bannum’s joint-employer argument were not preserved for court review because Bannum failed to exhaust the available administrative processes by not seeking Board review in the representation case.  The Court also rejected Bannum’s contention that because its joint-employer argument implicated the Board’s jurisdiction, the argument could nonetheless be raised at any time.  The Court concluded that regardless of the answer to that question, “we need not examine this problem further,” because “the text of [Section] 2(2) and our precedents firmly establish that the Board has statutory jurisdiction over the Bannum.”  Consistent with that conclusion, the Court noted that “every other circuit of which we are aware that has considered the issue has held that contractors are not exempt from the definition of ‘employers’ in [Section] 2(2) merely because a contract vests substantial control with a governmental entity over the contractor’s daily operations.”  Accordingly, the Court held that the Board was entitled to summary enforcement of its unfair-labor-practice order.

The Court’s opinion is here.

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Administrative Law Judge Decisions

DT Management LLC, d/b/a Doubletree by Hilton Ontario Airport Hotel  (31-CA-280761; JD(SF)-17-22)  Ontario, CA.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on July 12, 2022.  Charge filed by UNITE HERE Local 11.

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