Summary of NLRB Decisions for Week of July 5 - 8, 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
Southwest Regional Council of Carpenters (28-CA-262356 and 28-CA-262458; 371 NLRB No. 112) Las Vegas, NV, July 6, 2022.
The Board adopted the Administrative Law Judge’s conclusions and dismissed the allegations that the Respondent violated Section 8(a)(1) by laying off two employees. The Board agreed with the judge that the General Counsel failed to establish animus.
Member Wilcox joined her colleagues in adopting the judge’s dismissals of the allegations. Because she agreed with the judge’s conclusion that the General Counsel failed to establish animus toward the employees’ protected activity, she found it unnecessary to address the judge’s discussion of causation. Member Wilcox also noted her agreement with Chairman McFerran’s concurring opinion in Tschiggfrie Properties, Ltd. finding clarification of Wright Line principles unnecessary because the causal relationship concepts are already reflected in the Board’s body of cases.
Charges filed by individuals. Administrative Law Judge Arthur J. Amchan issued his decision on August 4, 2021. Chairman McFerran and Members Ring and Wilcox participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
No Unpublished R Cases Issued.
3 Corners, LLC (28-CA-273948, et al.) Las Vegas, NV, July 5, 2022. The Board granted the General Counsel’s Request for Special Permission to Appeal from the Administrative Law Judge’s ruling, directing that the hearing resume in person once the Region secured a location compliant with the Agency’s health and safety protocols. The Board denied the appeal on the merits, finding that the General Counsel failed to show that the judge abused his discretion. Charges filed by General Teamsters, Airline, Aerospace and Allied Employees, Warehousemen, Drivers, Construction, Rock and Sand, Local 986 a/w International Brotherhood of Teamsters. Chairman McFerran and Members Ring and Prouty participated.
Bonanza Ventures, LLC, d/b/a Sports Clips (16-CA-274926) Houston/Meyerland, Montgomery and Willis, TX, July 8, 2022. No exceptions having been filed to the May 20, 2022 decision of Administrative Law Judge Charles J. Muhl’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint. Charge filed by an individual.
Appellate Court Decisions
Temple University Hospital, Board Case No. 04-CA-174336 (reported at 370 NLRB No. 106) (D.C. Cir. decided July 8, 2022).
In a published opinion, the Court upheld the Board’s decision on remand and enforced the Board’s bargaining order against this private non-profit hospital for refusing to bargain with Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals, which the Board had certified as the representative of a unit of the hospital’s employees following an Armour-Globe self-determination election.
When it first certified the Union in 2017, the Board (Chairman Pearce and then-Member McFerran; Member Miscimarra, dissenting), applying the judicial-estoppel factors set forth in New Hampshire v. Maine, 532 U.S. 742 (2001), and assuming without deciding that judicial estoppel is available in Board proceedings, rejected the hospital’s argument that the Union was judicially estopped from invoking the Board’s jurisdiction because it had argued to the Pennsylvania Labor Relations Board (PLRB) in 2005 that the NLRB did not have jurisdiction over the hospital. Granting the hospital’s petition for review in a 2019 decision, the Court found the Board’s analysis of the New Hampshire v. Maine factors lacking and remanded the case to the Board to decide in the first instance whether the doctrine of judicial estoppel is available in Board proceedings and, if so, whether it would be appropriate to apply it in this case.
On remand, the Board (Chairman McFerran and Members Emanuel and Ring) concluded that, while judicial estoppel may be available in certain Board proceedings, it is not available in proceedings where the Board’s jurisdiction is in issue. The Board concluded that its jurisdictional powers should not turn upon the litigation choices of private parties. On review of that decision on remand, the Court affirmed that the Board had “permissibly concluded that Congress’s broad conferral of statutory authority to prevent ‘any person’ from committing ‘any unfair labor practice’ affecting commerce— notwithstanding the existence of ‘any other’ law—militated against enabling judicial estoppel to prevent the Board from exercising its authority in cases in which it could otherwise act.”
Turning to the hospital’s remaining arguments, which it had not been required to reach in its 2019 decision, the Court concluded that the Board reasonably rejected the hospital’s argument that it was a political subdivision of the Commonwealth of Pennsylvania and therefore exempt from the Act; that the Board did not abuse its discretion or act arbitrarily by refusing to discretionarily decline jurisdiction over the Hospital; and that the Board acted consistent with its healthcare rules and case law in extending comity to the Pennsylvania Board’s certification of the bargaining unit represented by the Union for over a decade.
The Court’s opinion is here.
Administrative Law Judge Decisions
Frazer & Jones Company (03-CA-274530 and 03-CA-276401; JD-40-22) Solvay, NY. Administrative Law Judge Christine E. Dibble issued her decision on July 5, 2022. Charges filed by IUE-CWA, AFL-CIO, Local 813000.
Solution One Industries, Inc. (09-CA-281081, et al.; JD-41-22) Lexington, KY. Administrative Law Judge Keltner W. Locke issued his decision on July 7, 2022. Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO.
Los Robles Regional Medical Center, d/b/a Los Robles Hospital & Medical Center (31-CA-261001, et al.; JD(SF)-16-22) Los Angeles, CA. Administrative Law Judge Lisa D. Ross issued her decision on July 8, 2022. Charges filed by Service Employees International Union Local 121 RN.
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