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Cases & Decisions

Summary of NLRB Decisions for Week of July 27 - 31, 2020

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

Tramont Manufacturing, LLC  (18-CA-155608; 369 NLRB No. 136)  Milwaukee, WI, July 27, 2020.

On remand from the D.C. Circuit Court, the Board clarified that a Burns successor may lawfully take actions that are reasonably encompassed by unilaterally implemented initial terms and conditions of employment, as such actions do not constitute a material change in the status quo requiring advance notice to and bargaining with an incumbent union under NLRB v. Katz, 369 U.S. 736 (1962).  Applying this standard, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union over the effects of its layoffs because its unilaterally implemented terms were silent as to the effects of any layoffs.

Charge filed by United Electrical, Radio and Machine Workers of America, Local 1103.  Administrative Law Judge Sharon Levinson Steckler issued her decision on January 28, 2016.  Chairman Ring and Members Kaplan and Emanuel participated.

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Shamrock Foods Company  (28-CA-150157; 369 NLRB No. 140)  Phoenix, AZ, July 29, 2020.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent did not violate Section 8(a)(1) by maintaining a provision in its Blogging Policy setting forth an employee’s duty to protect personal and confidential information, a policy restricting the disclosure of confidential information, and a policy governing requests by regulatory authorities.  The Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining a provision in its Blogging policy discouraging employees from linking to the Respondent’s website from personal blogs.

Charge filed by Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC.  Administrative Law Judge Jeffrey D. Wedekind issued his supplemental decision on October 7, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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NBC Universal Media LLC  (02-UC-000625; 369 NLRB No. 134)  New York, NY, Chicago, IL, Los Angeles, CA, July 29, 2020.

On remand from the D. C. Circuit Court, the Board, having remanded the case to the Regional Director, granted review of the Regional Director’s Supplemental Decision as it raised a substantial issue warranting review.  Upon review, the Board reaffirmed and reinstated the standard set forth in Board decisions such as American Can Co., 109 NLRB 1284 (1954), and Hygrade Food Products Corp., 85 NLRB 841 (1949), and held that, to demonstrate that a merger of units has occurred, the alleging party must show an “unequivocal manifestation of an intent” to merge the units.  The Board found that requiring an unequivocal manifestation of intent to merge brings clarity to this area of law, better balances employee rights and labor stability, and will afford far greater clarity and predictability with respect to the litigation of this issue.  The Board overruled any prior cases to the extent that they conflict with this standard.  The Board also determined that it was appropriate to apply the new standard retroactively.  Applying that standard here, the Board found that the evidence failed to establish that the parties unequivocally intended to merge the separately certified and recognized units into a single nationwide unit.  Accordingly, the Board reversed the Regional Director’s finding that the Petitioner represents a single, merged unit.

Petitioner—National Association of Broadcast Employees & Technicians-Communication Workers of America, AFL-CIO.  Chairman Ring and Members Kaplan and Emanuel participated.

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Silver Healthcare Center, a subsidiary of MIMA Health Management Corp. d/b/a MIMA Healthcare  (04-CA-252062; 369 NLRB No. 144)  Cherry Hill, NJ, July 29, 2020.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union with requested information necessary for and relevant to its collective-bargaining duties.

Charge filed by District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL‒CIO.  Chairman Ring and Members Kaplan and Emanuel participated.

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Wendt Corporation  (03-CA-212225, et al.; 369 NLRB No. 135)  Cheektowaga, NJ, July 29, 2020.

The Board reversed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by laying off unit employees and Section 8(a)(5) and (1) by unilaterally imposing discretionary discipline on employees.  The Board adopted the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by suspending an employee for alleged violation of its anti-harassment policy, assigning an employee to lower-skilled work and refusing him overtime, and failing to timely provide annual performance reviews and accompanying wage increases to unit employees.  The Board further adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by temporarily laying off employees and by removing bargaining unit work and transferring it to newly created supervisory positions.

Charges filed by Shopmen’s Local Union No. 576.  Administrative Law Judge Ira Sandron issued his decision on February 15, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery and FPR-II, LLC d/b/a Leadpoint Business Services  (32-CA-160759 and 32-RC-109684; 369 NLRB No. 139)  Milpitas, CA, July 29, 2020.

In this test-of-certification case on remand from the D.C. Circuit Court, the Board reversed in part its prior determination in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB 1599 (2015) (Browning-Ferris), to find that the Respondent, Browning-Ferris, is not a joint employer of employees in the petitioned-for unit, and, thus, did not violate Section 8(a)(5) and (1) by refusing to bargain with the Union.  In Browning-Ferris, the Board announced a new joint-employer standard and retroactively applied it to conclude that Browning-Ferris and Leadpoint Business Services were joint employers of the Leadpoint employees in the petitioned-for unit.  The Court affirmed in part and reversed in part the Board’s decision and remanded the case with directions to clarify the new standard and how it should be applied to the facts of this case.  The Court also suggested that the Board keep in mind that retroactive application of a rearticulated standard might be inappropriate in the circumstances of this case.

In light of the Court’s instructions, the Board found that retroactive application of any clarified variant of the new joint-employer standard in this case would be manifestly unjust.  The Board explained that, in the three decades prior to Browning-Ferris, the Board held that an entity must exercise direct and immediate control over essential terms and conditions of employment of another entity’s employees to be a joint employer under the Act.  The Board further explained that the new standard, articulated in Browning-Ferris, expressly overruled this longstanding, clear rule of law by holding that an entity’s indirect or unexercised contractually reserved control could, alone, warrant finding a joint-employer relationship.  Consistent with the Court’s expressed concerns, the Board found that Browning-Ferris substituted new law for old law that was reasonably clear, and, in turn, substantially affected reasonable, settled expectations for relationships established on the basis of the prior standard.  This outcome would thrust upon entities like Browning-Ferris unanticipated and unintended duties and liabilities under the Act.  Accordingly, the Board concluded that the new joint-employer standard should not have been applied to Browning-Ferris and reinstated the Regional Director’s initial determination that Browning-Ferris, under the longstanding standard, was not a joint employer of Leadpoint’s employees.  Based on that determination, the Board dismissed the Section 8(a)(5) and (1) failure-to-bargain allegation and amended the Certification of Representative to remove Browning-Ferris as a joint employer.

Charge filed by Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters.  Chairman Ring and Member Kaplan participated.  Member Emanuel was a member of the panel but did not participate in the decision on the merits.

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United Site Services of California, Inc.  (20-CA-139280 and 20-CA-149509; 369 NLRB No. 137)  Benicia, CA, July 29, 2020.

In a supplemental decision, the Board adopted the Administrative Law Judge’s conclusions that the Respondent effectively discharged economic strikers in violation of Section 8(a)(3) and (1) by falsely claiming that three replacements were permanent, failing to recall a striker when a replacement failed a background check, temporarily transferring a nonstriking unit employee into a new unit classification, and removing three strikers from consideration for preferential recall for failing to respond to or rejecting invalid offers of reinstatement.  The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union.  Additionally, ruling on an allegation that the judge failed to address, the Board found that the Respondent violated Section 8(a)(3) and (1) by failing to timely recall a striker to fill a vacancy created by the departure of a permanent replacement.

The Board reversed the judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by falsely claiming that 9 replacements were permanent and by removing 2 strikers from consideration for preferential recall.  Applying American Baptist Homes of the West d/b/a Piedmont Gardens, 364 NLRB No. 13 (2016), the Board also reversed the judge’s conclusions that the Respondent had an “independent unlawful purpose” for permanently replacing the strikers and that it therefore violated Section 8(a)(3) and (1) by refusing to immediately reinstate all of the strikers upon their unconditional offer to return to work.

Charges filed by Teamsters Local 315, IBT.  Administrative Law Judge Dickie Montemayor issued his supplemental decision on April 3, 2017.  Chairman Ring and Members Kaplan and Emanuel participated.

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David Saxe Productions, LLC and Vegas! The Show, LLC, Joint/Single Employers and Fab Four Live, LLC, Joint/Single Employers  (28-CA-075461 and 28-CA-084151; 369 NLRB No. 138)  Las Vegas, NV, July 29, 2020.

On remand from the D.C. Circuit Court, the Board reversed its prior finding in David Saxe Productions, LLC, 364 NLRB No. 100 (2016), and dismissed the complaint allegations that the Respondents violated Section 8(a)(1) by discharging the charging party from two Las Vegas shows.  The Board also severed and remanded to the Administrative Law Judge the issue of whether the Respondents violated Section 8(a)(1) by maintaining a nonunion provision in their employment agreements, requiring employees to acknowledge that their employment is not under the jurisdiction of any union, with penalties for breaching the provision.

Charges filed by an individual.  Administrative Law Judge Eleanor Laws issued her decision on May 7, 2013.  Chairman Ring and Members Kaplan and Emanuel participated.

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Ringo Services, Inc.  (07-CA-209485 and 07-CA-214290; 369 NLRB No. 143)  Detroit, MI, July 29, 2020.

The Board granted in substantial part the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the consolidated complaint and compliance specification.  The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain collectively and in good faith with the Union as the exclusive collective-bargaining representative of its employees.

The Board denied the Motion for Default Judgment with respect to the allegations in the compliance specification regarding amounts owed to the Union as a remedy for the Respondent’s unlawful failure to remit dues deducted from employees’ pay.  The Board instead severed and retained the relevant allegations and issued a Notice to Show Cause why the remedy for the dues deduction violation of Section 8(a)(1) should not be modified to comport with Betteroads Asphalt, 369 NLRB No. 114 (2020), where the Board held that the proper remedy for such a violation is an order requiring the employer to return the unlawfully retained dues to the employees, with interest.  The Board granted the Motion for Default Judgment with respect to all remaining allegations of the compliance specification.

Charges filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.  Chairman Ring and Members Kaplan and Emanuel participated.

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SolarCity Corp.  (32-CA-180523; 369 NLRB No. 141)  San Mateo, CA, July 29, 2020.

The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining mandatory arbitration agreements.  The Board found that a reasonable employee would interpret the agreements’ savings clauses to permit the filing of unfair labor practice charges.  Further, the Board found that the agreements’ class- and collective-action waivers did not affect the outcome of the case and that the agreements’ “exhaustion of administrative remedies” provisions did not detract from the clear import of the savings clauses.

Charge filed by an individual.  Administrative Law Judge Eleanor Laws issued her decision on September 8, 2017.  Chairman Ring and Member Kaplan participated.  Member Emanuel, who was recused, was a member of the panel but did not participate in the decision on the merits.

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SolarCity Corp(32-CA-128085; 369 NLRB No. 142)  San Mateo, CA, July 29, 2020.

On remand from the Fifth Circuit Court, the Board dismissed the complaint allegation that the Respondent violated Section 8(a)(1) by maintaining mandatory arbitration agreements.  The Board found that a reasonable employee would interpret the agreements’ savings clauses to permit the filing of unfair labor practice charges.  Further, the Board found that the agreements’ class- and collective-action waivers did not affect the outcome of the case.

Charge filed by an individual.  Administrative Law Judge Kenneth W. Chu issued his decision on March 31, 2015.  Chairman Ring and Member Kaplan participated.  Member Emanuel, who was recused, was a member of the panel but did not participate in the decision on the merits.

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Windsor Sacramento Estates, LLC d/b/a Windsor Care Center of Sacramento  (20-CA-196183; 369 NLRB No. 146)  Sacramento, CA, July 30, 2020.

The Board granted the Respondent’s Motion for Summary Judgment and dismissed the complaint, finding that the Respondent did not violate Section 8(a)(1) by maintaining its Alternative Dispute Resolution Policy because employees would not reasonably interpret the Policy to potentially interfere with their right of access to the Board and its processes.  The Board also denied the Charging Party’s Motion for Summary Judgment, and found it unnecessary to pass on the General Counsel’s Motion for Summary Judgment and the other arguments raised in the Charging Party’s, the General Counsel’s, and the Respondent’s filings.

Charge filed by Service Employees International Union, Local 2015.  Chairman Ring and Members Kaplan and Emanuel participated.

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Northstar Memorial Group, LLC d/b/a Skylawn Funeral Home, Crematory and Memorial Park  (20-CA-227245 and 20-CA-229015; 369 NLRB No. 145)  San Mateo, CA, July 30, 2020.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing its employees’ work schedules after the expiration of the parties’ collective-bargaining agreement.  The Board held, pursuant to Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 369 NLRB No. 61 (2020), that provisions in an expired collective-bargaining agreement do not cover post-expiration unilateral changes unless the agreement contains language explicitly providing that the relevant provision survives the contract’s expiration.  The Board found the parties’ collective-bargaining agreement lacked such language and therefore did not cover the changes at issue.  Thus, the Respondent had a duty to give the Union notice and an opportunity to bargain before making the change.

The Board, reversing the judge, concluded that the Respondent did not violate Section 8(a)(1) when its grounds superintendent asked an employee to remove a prounion sign from his motorcycle and later moved his own truck so that the sign would not be visible to mourners attending a burial service.  The Board held that funeral homes and cemeteries, like hospitals, constitute environments where the need for quiet and peace of mind can justify more stringent prohibitions on solicitation.  In dismissing these allegations, the Board additionally relied on the limited scope of the restrictions imposed by the Respondent on the employee’s Section 7 activity.

Charges filed by Cemetery Workers, Golf Courses and Green Attendants, SEIU Local 265.  Administrative Law Judge Sharon Levinson Steckler issued her decision on August 23, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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Nicholson Terminal & Dock Company  (07-CA-187907; 369 NLRB No. 147)  Ecorse, MI, July 30, 2020.

The Board, reversing the Administrative Law Judge, concluded that the Respondent did not violate Section 8(a)(1) by maintaining two workplace policies in its employee handbook.  Applying The Boeing Company, 365 NLRB No. 154 (2017), a majority (Members Kaplan and Emanuel) found that employees would not reasonably interpret the Respondent’s rule against “illegal strikes” and restrictions on outside employment to interfere with NLRA rights and that the policies thus fit within Boeing Category 1(a).  Concurring as to the “illegal strike” rule, Chairman Ring found that the rule had some tendency to interfere with employees’ NLRA rights but the Respondent’s legitimate interest in maintaining the rule outweighs the interference, and, accordingly, he would have placed the rule within Boeing Category 1(b).

Charge filed by an individual.  Administrative Law Judge Elizabeth M. Tafe issued her decision on May 16, 2018.  Chairman Ring and Members Kaplan and Emanuel participated.

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Badger Packaging Corporation  (18-CA-248224, et al.; 370 NLRB No. 1)  West Bend, WI, July 31, 2020.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint.  The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain with the Union, unilaterally changing the terms and conditions of employment of unit employees, and failing and refusing to provide relevant and necessary information to the Union.  In addition, the Board found that the Respondent violated Section 8(a)(5) and (1) and 8(d) by failing and refusing to continue in effect the terms of the collective-bargaining agreement by failing to make required benefit fund contributions.

Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC.  Chairman Ring and Members Kaplan and Emanuel participated.

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Dallas Airmotive, Inc.  (16-CA-192780; 370 NLRB No. 3)  Grapevine, TX, July 31, 2020.

The Board, reversing the Administrative Law Judge, found that the Respondent did not violate Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union after transferring employees from its Forest Park facility to the Respondent’s Dallas Fort Worth facility (“DFW”).  The Board noted that the complaint alleged only that the Respondent had failed and refused to bargain with the Union as the exclusive collective-bargaining representative of the unit employees who were transferred from Forest Park to DFW.  Based on the limited complaint allegations, the Board found that that the Respondent met its burden of demonstrating that the Forest Park bargaining unit failed to maintain its separate identity after consolidation with a group of unrepresented employees at the DFW facility, and, therefore, no longer constituted an appropriate unit for bargaining.

The Board adopted the judge’s dismissal of the Union’s unilateral change allegations, finding that the Union waived the right to apply the collective-bargaining agreement to the Forest Park employees upon transfer to DFW.

Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO, Aeronautical Industrial District Lodge 776.  Administrative Law Judge Sharon Levinson Steckler issued her decision on January 25, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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Nolan Enterprises, Inc. d/b/a Centerfold Club  (09–CA–220677; 370 NLRB No. 2)  Columbus, OH, July 31, 2020.

The Board adopted the Administrative Law Judge’s conclusion that under the common-law agency test, as restated in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), the Respondent failed to meet its burden of establishing that the Charging Party, a dancer at the Respondent’s club, was an independent contractor rather than an employee under the Act.  The Board further adopted the judge’s conclusion that, under Wright Line, the Respondent discharged the Charging Party in violation of Section 8(a)(4) and (1).

Charge filed by an individual.  Administrative Law Judge Andrew S. Gollin issued his decision on July 25, 2019.  Chairman Ring and Members Kaplan and Emanuel participated.

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Century Fast Foods, Inc(31-CA-116102;  370 NLRB No. 4)  Los Angeles, CA, July 31, 2020.

On remand from the Ninth Circuit Court, the Board concluded that the Respondent violated Section 8(a)(1) by maintaining its mandatory arbitration agreement that, when reasonably interpreted, interferes with employees’ access to the Board and its processes.  Applying The Boeing Company, 365 NLRB No. 154 (2017), Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), and Beena Beauty Holding, Inc., d/b/a Planet Beauty, 368 NLRB No. 91 (2019), among other cases, the Board found that the agreement makes arbitration the exclusive forum for the resolution of all claims, including claims arising under the Act, and that it imposes preconditions on the filing of unfair labor charges with the Board.  Accordingly, the Board placed the unlawful language in the agreement under Boeing Category 3.

The Board also concluded that the agreement’s requirement for “confidential . . . arbitration” is lawful under the standard it recently articulated in California Commerce Club, Inc., 369 NLRB No. 106 (2020).

Charge filed by an individual.  Administrative Law Judge Ariel L. Sotolongo issued his decision on April 24, 2015.  Chairman Ring and Members Kaplan and Emanuel participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Housing Works, Inc.  (29-RC-256430)  Brooklyn, NY, July 29, 2020.  The Board granted the Employer’s Request to Stay the Election to allow the Board time to consider the issue presented by the Employer’s Request for Review.  Petitioner—Retail, Wholesale and Department Store Union, UFCW.  Chairman Ring and Members Kaplan and Emanuel participated.

Planned Lifestyle Services affiliated with and related to Planned Companies  (22-RC-255558)  Hoboken, NJ, July 29, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative.  The Board also denied the Employer’s Request for Extraordinary Relief as moot.  Petitioner—Service Employees International Union, Local 32BJ.  Chairman Ring and Members Kaplan and Emanuel participated.

MHN Government Services, LLC (MHNGS)  (19-RC-242915)  Tacoma, WA, July 31, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision Affirming Hearing Officer’s Report on Objections and Certification of Representative as it raised no substantial issues warranting review.  In denying review, the Board assumed, without deciding, that the Employer’s witness’ account of an incident involving an unidentified intruder in the polling area was credible and that the Board agent’s response to the intruder’s statement (“You guys are the enemy” or “the bad guys”) was “No, they’re not,” which the witness understood to be a defense of unions.  Although the Board stated that it would not condone this type of comment by a Board agent, it found that it was not sufficiently partisan to impugn the Board’s neutrality or to “destroy confidence in the Board’s election process” under relevant precedent, especially given that the comment was made to an individual who was not a party to the election.  The Board also stated that, although the Board agent should have immediately taken steps to remove the intruder upon realizing the intruder was not present to vote, his failure to do so during the 3-5 minute conversation did not raise a reasonable doubt as to the election’s validity, given that the Employer submitted no evidence that any other voters were present in or near the polling site during the conversation.  The Board also denied the Employer’s Motion to Stay the Board’s action in this matter.  Petitioner—International Association of Machinists & Aerospace Workers, Local Lodge 47.  Chairman Ring and Members Kaplan and Emanuel participated.

C Cases

California Commerce Club, Inc.  (21-CA-149699)  Commerce, CA, July 31, 2020.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s June 19, 2020 Supplemental Decision and Order, reported at 369 NLRB No. 106 (2020), as it failed to identify any material error or demonstrate extraordinary circumstances warranting reconsideration.  The Board also denied the Motion to Intervene filed by an individual as untimely.  Charge filed by an individual.  Administrative Law Judge Amita Baman Tracy issued her decision on January 6, 2016.  Chairman Ring and Members Kaplan and Emanuel participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Castro Valley Animal Hospital, Inc.  (32-CA-251642 and 32-CA-254220; JD(SF)-16-20)  Castro Valley, CA.  Administrative Law Judge Amita Baman Tracy issued her decision on July 27, 2020.  Charges filed by individuals.

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