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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of July 12 - 16, 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

Sunrise Operations, LLC, a wholly owned subsidiary of The Pasha Group  (20-CA-219534, et al.; 371 NLRB No. 4)  San Francisco, CA, July 12, 2021.

The Board (Members Emanuel and Ring; Chairman McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to furnish and/or unreasonably delaying the production of requested information, and by failing and/or refusing to abide by a provision in a Memorandum of Understanding that specified the location of arbitration proceedings.  The majority found that the Respondent had voluntarily recognized the Union as the representative of a unit consisting entirely of supervisors excluded from coverage under the Act.  Accordingly, the majority concluded that the Board lacked jurisdiction in the proceeding and dismissed the complaint.  Chairman McFerran, dissenting, would affirm the judge’s conclusions that the Respondent voluntarily recognized the Union as the representative of employees in a “mixed” bargaining unit that includes both statutory employees and statutory supervisors, that the Board therefore maintained jurisdiction over the proceeding, and that the Respondent violated the Act as alleged.

Charges filed by International Organization of Masters, Mates & Pilots, ILA/AFL-CIO.  Administrative Law Judge Lisa D. Ross issued her decision on May 11, 2020.  Chairman McFerran and Members Emanuel and Ring participated.

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Healthy Minds, Inc.  (15-CA-231767; 371 NLRB No. 6)  Bastrop, LA, July 15, 2021.

The Board reversed the Administrative Law Judge and concluded that the Respondent violated Section 8(a)(1) by coercively interrogating two employees and by discharging one of them for engaging in protected concerted activity.  Contrary to the judge, the Board found that the discharged employee engaged in protected concerted activity by soliciting the other employee’s assistance with her pursuit of a legal claim for unpaid overtime wages owed to employees of the Respondent and a related employer, even though the solicited employee declined the request and reported it to the Respondent.  Because the Respondent has ceased operations, the Board ordered the Respondent to reinstate the discharged employee if it resumes the same or similar business operations and to mail the notice to its former employees.

Charge filed by an individual.  Administrative Law Judge Michael A. Rosas issued his decision on December 21, 2020.  Chairman McFerran and Members Emanuel and Ring participated.

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NBCUniversal Media, LLC  (02-CA-262640; 371 NLRB No. 5)  New York, NY, July 15, 2021.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally rescinding recent merit wage increases of represented employees prior to reaching an overall impasse in bargaining a first collective-bargaining agreement with their union.

Charge filed by Union NewsGuild of New York, Local 31003, TNG/CWA.  Administrative Law Judge Kenneth W. Chu issued his decision on February 12, 2021.  Chairman McFerran and Members Kaplan and Ring participated.

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Wismettac Asian Foods, Inc.  (21-CA-207463, et al.; 371 NLRB No. 9)  Santa Fe Springs, CA, July 16, 2021.

This case was remanded by the Board (Wismettac Asian Foods, 370 NLRB No. 35 (2020)) to analyze the complaint allegation that the Respondent violated Section 8(a)(1) by issuing an individual a verbal counseling record under the Wright Line standard rather than the Atlantic Steel test pursuant to the Board’s recent decision in General Motors LLC, 369 NLRB No. 127 (2020).  The Board unanimously adopted the Administrative Law Judge’s conclusion that, under Wright Line, the Respondent violated Section 8(a)(1) by issuing the individual a verbal counseling record.  The Board also found it unnecessary to pass on the judge’s analysis under the framework established in Burnup & Sims, 379 U.S. 21 (1964).

Members Kaplan and Ring explained that, in adopting the judge’s Section 8(a)(1) finding under Wright Line and Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019), they additionally relied on the ample evidence of the Respondent’s hostility towards protected activity set forth in the Board’s prior decision in this proceeding.  Chairman McFerran indicated that she affirmed the judge’s finding of a violation under Wright Line for institutional reasons, explaining that she does not agree with General Motors, and that this case illustrates some of her concerns in applying Wright Line to allegations concerning discipline for conduct in the course of Section 7 activity.

Charges filed by International Brotherhood of Teamsters, Local 630, and an individual. Administrative Law Judge Eleanor Laws issued her decision on remand on January 19, 2021.  Chairman McFerran and Members Kaplan and Ring participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

ISS Action, Inc.  (16-RC-271479)  Laredo, TX, July 12, 2021.  The Board denied the Petitioner’s Request for Review of the Regional Director’s administrative dismissal of the petition as it raised no substantial issues warranting review.  Petitioner—Law Enforcement Officers Security Unions (LEOSU-CA).  Chairman McFerran and Members Emanuel and Ring participated.

Neises Construction Corp.  (13-RD-271580)  Crown Point, IN, July 14, 2021.  The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s Decision and Order Dismissing as it raised no substantial issues warranting review.  Petitioner—an individual.  Union—The Indiana/Kentucky/Ohio Regional Council of Carpenters.  Chairman McFerran and Members Emanuel and Ring participated.

C Cases

Cascades Containerboard Packaging – Niagara, a Division of Cascades Holding US Inc.  (03-CA-242367, et al.)  Niagara Falls, NY, July 12, 2021.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 370 NLRB No. 76 (2021).  The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  The Board further denied the Respondent’s alternative Motion to Remand, explaining that the Respondent had not identified any grounds warranting rehearing or reopening of the record.  Charges filed by International Association of Machinists and Aerospace Workers, District Lodge 65, AFL-CIO.  Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.

All Steel Iron Works, Inc.  (13-CA-261682)  Bedford Park, IL, July 13, 2021.  The Board denied the Acting General Counsel’s Motion for Reconsideration of the Board’s Decision and Order, reported at 370 NLRB No. 81 (2021).  The Board found that the first amended complaint does not set forth a sufficiently clear or specific factual basis to determine whether the allegation that the Respondent laid off certain named employees violated Section 8(a)(5) and (1).  Charge filed by Iron Workers Regional Local Union No. 853.  Chairman McFerran and Members Kaplan and Emanuel participated.

United States Postal Service  (12-CA-271025)  Tallahassee, FL, July 14, 2021.  The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  Charge filed by an individual.  Chairman McFerran and Members Kaplan and Ring participated.

Club Quarters Grand Central  (02-CA-268840)  New York, NY, July 15, 2021.  The Board denied the Employer’s Petition to Revoke and Objections to an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena.  The Board further held that, with respect to any requested information not in the Employer’s possession, the subpoena compels the Employer to seek such information from other persons or companies, if necessary.  Charge filed by New York Hotel and Motel Trades Council, AFL-CIO.  Chairman McFerran and Members Kaplan and Ring participated.

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Appellate Court Decisions

Nexstar Broadcasting, Inc. d/b/a KOIN-TV, Board Case No. 19-CA-219985 (reported at 369 NLRB No. 61) (9th Cir. decided July 12, 2021).

In a published opinion, the Court enforced the Board’s order that issued against this television station in Portland, Oregon.  The Board (then-Chairman Ring and Members Kaplan and Emanuel) found that the Employer violated Section 8(a)(5) and (1) by unilaterally implementing two policy changes after expiration of the parties’ collective-bargaining agreement without providing notice and a bargaining opportunity to the representative of its production and creative-service employees, the National Association of Broadcast Employees & Technicians, the Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL-CIO.

In June 2017, the parties began negotiations for a successor collective-bargaining agreement.  After the contract expired three months later, the Employer made two changes to the employees’ terms and conditions of employment—modifying the required driving background check, and shortening its work schedule posting period from four months to two weeks.  Before the Board, the Employer admitted it made the unilateral changes, but argued that the expired contract granted it the right to take those unilateral actions under the contract-coverage standard that the Board first applied to existing contracts in MV Transportation, 368 NLRB No. 66 (2019).  Rejecting that contention, the Board held that the relevant question for assessing those unilateral changes, post-contract expiration, was whether the Union clearly and unmistakably waived its statutory right to bargain over them.  The Board concluded that the Union had not waived that statutory right.

On review, the Court held that the Board’s decision was rational and consistent with the Act, and agreed that the Employer’s entitlement to make the unilateral changes was properly assessed under the clear and unmistakable waiver standard.  The Court relied on the principle that terms and conditions of employment continue in effect after contract expiration by operation of the Act.  Citing Litton Financial Planning Division v. NLRB, 501 U.S. 190 (1991), the Court explained that “[w]hen contractual obligations cease, the NLRA replaces ‘agreed-upon terms’ with ‘terms imposed by law’; the statute requires the employer to preserve the ‘status quo’ terms and conditions of employment during negotiations,” and the expired contract “defines those terms and conditions.”  In other words, the Court stated, “contract rights only survive expiration if the [contract] explicitly so provides,” citing Litton at 206, and here there was no such explicit provision.  Finding no merit in the Employer’s remaining arguments, the Court enforced the Board’s order in full.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Owens Corning Insulating Systems, LLC  (16-CA-266880; JD-37-21)  Waxahachie, TX.  Administrative Law Judge Keltner W. Locke issued his decision on July 13, 2021.  Charge filed by an individual.

JT4, LLC  (28-CA-268967 and 28-CA-271230; JD(SF)-11-21)  Las Vegas, NV.  Administrative Law Judge Dickie Montemayor issued his decision on July 14, 2021.  Charges filed by an individual.

Curaleaf Massachusetts, Inc.  (01-CA-262554; JD-38-21)  Hanover, MA.  Administrative Law Judge Ira Sandron issued his decision on July 15, 2021.  Charge filed by United Food and Commercial Workers Union Local 328.

Encore Event Technologies, LLC  (28-CA-234207 and 28-CA-246253; JD(SF)-12-21)  Las Vegas, NV.  Administrative Law Judge Dickie Montemayor issued his decision on July 15, 2021.  Charges filed by an individual.

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