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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of July 25 -29, 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

Nexstar Broadcasting, Inc. d/b/a KOIN-TV  (19-CA-248735, et al.; 371 NLRB No. 118)  Portland, OR, July 27, 2022.

The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain in good faith with the Union about health insurance and delaying responding to the Union’s health care proposal; engaging in bad-faith bargaining and overall surface bargaining; withdrawing recognition from the Union; unilaterally assigning bargaining unit work to non-bargaining unit employees; and unilaterally changing the vacation policy.  The Board also adopted the judge’s conclusion that the Respondent violated the Act by disparaging and denigrating the Union; however, a Board majority consisting of Chairman McFerran and Member Kaplan grounded that finding in Section 8(a)(1).  Member Prouty would have affirmed the judge’s analysis grounding this violation in Section 8(a)(5) and (1).

Finally, in light of the number and severity of the Respondent’s violations and its recidivist history, the Board agreed with the judge that extraordinary remedies were warranted, and ordered several additional special remedies.  A Board majority (Chairman McFerran and Member Prouty; Member Kaplan, dissenting) found that the remedy of making employee-negotiators whole for loss earnings was warranted.  Dissenting, Member Kaplan would not order this remedy.

Charges filed by National Association of Broadcast Employees & Technicians, the Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL–CIO.  Administrative Law Judge Amita Baman Tracy issued her decision on June 11, 2021.  Chairman McFerran and Members Kaplan and Prouty participated.

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The Atlantic Group, Inc.  (16-CA-260413, et al.; 371 NLRB No. 119)  Glen Rose, TX, July 27, 2022.

The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by threatening employees with job loss if they selected the Union as their bargaining representative, and Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union and by failing to provide and/or by unreasonably delaying in providing requested information to the Union.  A Board majority consisting of Members Wilcox and Prouty also adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by laying off two unit employees without providing the Union prior notice and an opportunity to bargain.  Dissenting in part, Member Kaplan would have dismissed this allegation.

Charges filed by International Brotherhood of Electrical Workers, Local Union 220.  Administrative Law Judge Michael A. Rosas issued his decision on April 20, 2021.  Members Kaplan, Wilcox, and Prouty participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Starbucks Corporation  (20-RC-290481)  Mililani, HI, July 26, 2022.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Supplemental Decision on Objections, Order Overruling Objections and Certification of Results of Election 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.

Prime Healthcare Anaheim, LLC d/b/a West Anaheim Medical Center  (21-RC-294677)  Anaheim, CA, July 26, 2022.  The Board denied the Petitioner’s Request for Review of the Decision and Direction of Election and denied the request for a stay of the proceedings as moot.  Chairman McFerran and Members Kaplan and Ring participated.  Union—California Nurses Association/National Nurses Organizing Committee (CNA/NNOC).

Hudson a Professional Corporation and HIPR Pacsoft Technologies, Inc., a Joint Employer  (06-RC-281254)  Pittsburgh, PA, July 28, 2022.  The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Order on Certain Challenged Ballots as it raised no substantial issues warranting review.  Consistent with his concurrence in KMS Commercial Painting, LLC, 371 NLRB No. 69 (2022), Member Ring stated his willingness to reconsider the eligibility standard for mail-ballot elections specified in Dredge Operators, Inc., 306 NLRB 924 (1992), in a future appropriate case.  Petitioner—United Electrical, Radio, & Machine Workers of America.  Members Ring, Wilcox, and Prouty participated.

C Cases

Pfanstiehl, Inc.  (13-CA-247694)  Waukegan, IL, July 26, 2022.  The Board denied the Respondent’s Motion to Dismiss the Complaint as untimely.  Even had the motion been timely filed, the Board found that the Respondent had not demonstrated that the complaint fails to state a claim upon which relief can be granted.  The denial was without prejudice to the Respondent’s right to renew its dismissal argument pertaining to the parties’ non-Board settlement agreement before the Administrative Law Judge and the Board on exceptions, if appropriate.  Charge filed by United Electrical, Radio and Machine Workers of America.  Chairman McFerran and Members Kaplan and Ring participated.

Atlantic Veal & Lamb, LLC and Ohio Farms Packing Co., Ltd., as a Single Employer and/or Alter Egos  (29-CA-290971)  Brooklyn, NY, July 28, 2022.  The Board denied the Respondents’ Motions for Clarification of the Board’s June 7, 2022 Order denying their petitions to revoke subpoenas duces tecum.  The Board found that the Respondents failed to demonstrate that further clarification was warranted.  Charge filed by United Food and Commercial Workers Local 342.  Members Ring, Wilcox, and Prouty participated.

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Appellate Court Decisions

CP Anchorage Hotel 2, LLC, d/b/a Hilton Anchorage, Board Case No. 19-CA-193656 (reported at 370 NLRB No. 83) (9th Cir. decided July 29, 2022).

In an unpublished memorandum decision, the Court enforced the Board’s order that issued against this operator of a hotel in Anchorage, Alaska, for unfair labor practices committed while bargaining for a successor collective-bargaining agreement.  Additionally, the Court denied the petition for review filed by the Charging Party, UNITE HERE! Local 878, AFL-CIO, which challenged the Board’s dismissal of two unfair-labor-practice allegations.  In its decision, the Board (Chairman McFerran and Members Kaplan and Ring) found that Hilton violated Section 8(a)(5) and (1) by dealing directly with employees by soliciting their grievances and implicitly promising to remedy them, unilaterally implementing a new property-access policy, calling the police to enforce the policy, barring union interns from hotel property, and failing to timely provide requested information.  Further, the Board dismissed allegations that Hilton unilaterally changed past practice by having managers present in the hotel cafeteria at times the Union was meeting there with employees, and had engaged in unlawful surveillance.

Before the Court, Hilton did not dispute the merits of the Board’s numerous unfair-labor-practice findings, and the Court held that the Board was entitled to summary enforcement.  In doing so, the Court cited long-settled precedent in rejecting a number of related challenges to the Board’s filing of the application for enforcement, including that it was procedurally premature under the Board’s rules, and unnecessary based on partial compliance and previous agreements to settle the case that were never finalized.

On the issues raised by the Union in its petition for review, the Court affirmed the Board’s dismissal of the two allegations.  Regarding the unilateral-change allegation, the Court concluded that there was substantial testimonial support for the Board’s finding that there was no past practice or reasonable expectation that the Union would be able to meet with employees in the cafeteria at the exclusion of management.  Similarly, on the surveillance allegation, the Court noted that because there was no unusual increase in management presence during union representatives’ visits, the Board reasonably concluded there was nothing “out of the ordinary” in their presence that would create an impression of surveillance.

The Court’s decision may be found here.

Browning-Ferris Industries of California, Inc., Board Case No. 32-CA-160759 (reported at 369 NLRB No. 139) (D.C. Cir. July 29, 2022).

In a published opinion, the Court granted the petition filed by the Charging Party, Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters, vacated the Board’s supplemental decision and order, and its order denying reconsideration, and remanded for the Board to conduct further proceedings consistent with the Court’s opinion.  In its supplemental decision, the Board (then-Chairman Ring and Members Kaplan and Emanuel) accepted the D.C. Circuit’s prior remand of the underlying joint-employer and refusal-to-bargain issues.  See Browning-Ferris Industries of California, Inc. v. NLRB, 911 F.3d 1195 (D.C. Cir. 2018) (reviewing 362 NLRB 1599 (2015), and 363 NLRB 883 (2016)).

In that prior review proceeding, the Court had reviewed the Board’s 2015 test for determining joint-employer status.  The Court upheld the Board’s consideration of reserved right to control and indirect control over terms and conditions of employment in the joint-employer analysis.  It found both factors were grounded in the common-law definition of an employment relationship.  However, the Court remanded for the Board to confine its indirect-control inquiry to evidence of indirect control that bears on essential terms and conditions of employment in applying the joint-employer test to the facts of this case.  The Court also sought clarification and application of the test’s second prong, which asked “whether the putative joint employer possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining.”  In light of its finding that the Board insufficiently explained the scope of the indirect-control element’s operation and how a properly limited test would apply in this case, the Court determined that it would be premature to decide Browning-Ferris’s challenge to the Board’s retroactive application of its test.

In its supplemental decision on remand, the Board determined that “retroactive application of any clarified variant of the new joint-employer standard in this case would be manifestly unjust.”  Given that conclusion, the Board found that Browning-Ferris’s status “must be resolved under the prior longstanding standard requiring proof of direct and immediate control.”  Relying on the Regional Director’s findings under the direct-and-immediate-control standard, the Board found that the record evidence failed to demonstrate that Browning-Ferris was a joint-employer, and it dismissed the unfair-labor-practice complaint.  The Union filed a motion for reconsideration, which was denied, and subsequently filed a petition for review with the D.C. Circuit.

On review, the Court vacated the Board’s supplemental decision and its order denying the Union’s motion for reconsideration.  The Court concluded that it “need not decide whether the Board properly heeded our remand instructions,” because “the Board made multiple overlapping errors in its retroactivity analysis in its orders on remand that require vacatur.”  For example, the Court disagreed with the Board’s statement that the 2015 test for determining joint-employer status was a “sea change,” given that the Board’s precedent on the joint-employer standard in prior decades had been “anything but static.”  In this regard, the Court pointed out that in the Board’s “recent 2020 rulemaking,” it had “explained that it in fact had never actually ceased considering indirect and reserved control, even though it did not consider those factors dispositive standing alone.”  Given the terms of the 2020 rule, and the fact that the Board itself had found evidence of “reserved, direct, and indirect control” in the underlying representation proceeding, the Court did not accept the Board’s statement that there is “no variation or explanation” of the 2015 test that would not result in manifest injustice.

Turning to the Board’s application of the pre-2015 joint-employer test, the Court stated that in its prior decision remanding the case to the Board, it had taken “great pains to inform the Board that the failure to consider reserved or indirect control is inconsistent with the common law of agency.”  The Court concluded that, on remand, the Board had not “colored within the common-law lines identified by the judiciary, “because it adopted “wholesale” and without explanation a Regional Director’s decision that “essentially ignored both indirect and reserved control.”

The Court’s opinion may be found here.

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Administrative Law Judge Decisions

Brinderson, LLC  (27-CA-270623 and 27-RC-268059; JD(SF)-19-22)  Billings, MT.  Administrative Law Judge Lisa D. Ross issued her decision on July 26, 2022.  Charges filed by Plumbers and Pipefitters Union Local 30, a/w United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO.

Tec-Cast, Inc.  (22-CA-277711; JD(NY)-09-22)  Newark, NJ.  Administrative Law Judge Kenneth W. Chu issued his decision on July 28, 2022.  Charge filed by United Food and Commercial Workers Union, Local 360.

Art Directors Guild, Local 800, IATSE  (31-CA-268924; JD(SF)-20-22)  West Los Angeles, CA.  Administrative Law Judge Gerald M. Etchingham issued his decision on July 29, 2022.  Charge filed by an individual.

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