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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of July 6 - 9, 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

No Published Board Decisions Issued.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Curaleaf Massachusetts, Inc.  (01-RC-259277)  Hanover, MA, July 6, 2021.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Supplemental Decision on Objections and Certification of Representative as it raised no substantial issues warranting review.  Petitioner—United Food and Commercial Workers Union Local 328.  Chairman McFerran and Members Kaplan and Ring participated.

Bombardier Transportation Holding USA, Inc.  (04-RC-271607)  Camden, NJ, July 6, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  Petitioner—American Train Dispatchers Association.  Chairman McFerran and Members Emanuel and Ring participated.

C Cases

Active Capital Company, B.V.; Laundry Los Angeles, Inc.; and Mobile Spanish Staffing Customer Services, Inc.  (21-CA-256739 and 21-CA-258844)  Bell Gardens, CA, July 7, 2021.  The Board denied the Respondents’ Motion to Dismiss the Complaint, finding that the Respondents failed to demonstrate that the complaint fails to state a claim upon which relief can be granted.  The Board also found no merit in the Respondents’ contentions that the Board lacks jurisdiction over the alleged unfair labor practices.  Charges filed by Western States Regional Joint Board, Local 52, Workers United/SEIU.  Chairman McFerran and Members Emanuel and Ring participated.

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Appellate Court Decisions

Atlantic City Electric Company, Board Case No. 04-CA-224253 (reported at 369 NLRB No. 33) (3d Cir. decided July 7, 2021).

In a published opinion in this test-of-certification case, the Court enforced the Board’s bargaining order that issued against this electric utility (Utility), which distributes power to roughly the southern third of New Jersey.  In doing so, the Court upheld the Board’s determination that the Utility’s system operators who voted in the June 2018 self-determination election to join an existing craft unit were not supervisors within the meaning of Section 2(11) of the Act.

The International Brotherhood of Electrical Workers, Local 210, has long represented a craft unit at the Utility comprised of 375 operating, production, and maintenance employees.  In an earlier representation proceeding held in 2017, the Union had petitioned for a self-determination election among the system operators, and after a hearing was held, the Regional Director found that the Utility had not carried its burden of proving its claim that the operators were statutory supervisors.  The Regional Director further determined that the operators shared a community of interest with the employees in the existing craft unit, and that they constituted a distinct segment of the Utility’s employees, findings that rendered them an appropriate voting group for an Armour-Globe self-determination election.  In the resulting election, the Union did not prevail.

In the current representation proceeding, the Union again petitioned for a self-determination election among the system operators, and the Utility again claimed the operators were statutory supervisors.  After the parties stipulated that there were no new facts or legal arguments, the Acting Regional Director adopted the determinations made in the earlier proceeding and directed an election.  The Union won the election on a vote of 9 to 7, and the Acting Regional Director certified the Union.  The Utility then filed a Request for Review.  The Board (then-Member McFerran, and Members Emanuel and Kaplan) granted review solely on the supervisory issues of whether the operators assign field employees to places, and whether they responsibly direct field employees using independent judgment.  In its subsequent Decision on Review, the Board (Member Emanuel, dissenting) adopted the Acting Regional Director’s findings in full.  The Board explained that the Utility provided insufficient evidence that operators wielded either form of supervisory authority, noting that the evidence it presented was “unclear,” and “at best, conflicting.”  Thereafter, the Utility refused to bargain in order to seek court review.

In its comprehensive opinion, the Court held that the Board’s findings were supported by substantial evidence, and rejected the Utility’s claims that the system operators were statutory supervisors on the asserted bases that they assign and responsibly direct field employees.  On the Utility’s assertion that the operators assign field employees to places, the Court agreed with the Board, explaining that although the operators “determine the need for work at a given location, then they or the dispatchers request that a field supervisor send a crew to that location.”  Also, regarding the claim of assignment to places, the Court rejected the Utility’s reliance on Entergy Mississippi, Inc., 367 NLRB No. 109 (2019).  Similarly, the Court agreed with the Board on the claim that operators assign field employees to a time, noting that the record evidence demonstrates that the operators “do not schedule shifts or assign overtime, which is the purview of field supervisors,” nor can they require field employees to stay to finish work.  Regarding responsible direction, the Court held the claim failed because there was no evidence that system operators are held accountable for the performance of field employees or that they suffer adverse consequences if the field employees perform poorly.

Finding no merit in the Utility’s remaining arguments, and holding that the Utility’s multiple challenges to the burden of proof on claims of supervisory status were jurisdictionally barred from review by Section 10(e) of the Act, the Court enforced the Board’s Order in full.

The Court’s opinion is here.

United Parcel Service, Inc., Board Case No. 06-CA-143062 (reported at 369 NLRB No. 1) (3d Cir. decided under the name Atkinson v. NLRB, July 8, 2021).

In an unpublished opinion, the Court denied in part the petition filed by the individual Charging Party for review of a Board order dismissing an unfair-labor-practice complaint against his Employer, the United Parcel Service, that had alleged that he was discharged in violation of Section 8(a)(3) and (1).  In its decision, issued after a public invitation for briefs, the Board (then-Chairman Ring and Members Kaplan and Emanuel) returned to its prior standard for determining when to defer to the decision of an arbitrator or grievance panel that was provided for in a collective-bargaining agreement.  Specifically, the Board overruled Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014), and restored the deferral standard for discharge and discipline cases set forth in Spielberg Manufacturing Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984).  Under that standard, the Board will defer to an arbitral decision if the arbitration proceedings were fair and regular, the parties agreed to be bound, the contractual issue was factually parallel to the unfair-labor-practice issue, the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice, and the decision was not clearly repugnant to the purposes and policies of the Act.  

This case arose at the Employer’s New Kensington facility in North Apollo, Pennsylvania, where its package-delivery drivers are represented by International Brotherhood of Teamsters, Local 538, under a collective-bargaining agreement containing a grievance and arbitration procedure.  In 2014, after issuing multiple disciplines to the Charging Party, who among other things, served as shop steward and ran for principal officer of Local 538, UPS discharged him two separate times for not following its methods and procedures.  The Charging Party filed grievances, and in January 2015, the grievance panel denied them and upheld his discharge.  After he filed an unfair-labor-practice charge, the General Counsel issued a complaint alleging that the Employer violated Section 8(a)(3) and (1) by discharging the Charging Party.  The Employer argued that the Board should defer to the grievance panel’s determination that upheld his discharge.  After a hearing, the Administrative Law Judge applied the Board’s then-existing standard for deferral under Babcock & Wilcox, declined to defer, and found the Charging Party’s discharge unlawful.  On review, the Board, applying its newly-readopted standard, reversed, deferred to the decision of the grievance panel, and dismissed the complaint.

Before the Court, the Charging Party challenged both the Board’s readopted standard and its application.  Regarding the standard, the Court held that “the Board’s reasoning is ‘rational and consistent with the Act,’ so we will affirm the Board’s re-adoption of the Olin standard.”  Regarding the application of the standard, the Charging Party contended that the Board should not have deferred to the decision of the grievance panel because the proceeding was not “fair and regular.”  The Board had rejected that argument on the principle that it was not a theory alleged by the General Counsel.  The Court, however, viewed it differently.  Thus, the Court explained, “we remand in part so that the Board can address [the Charging Party’s] argument that the dispute-resolution-panel proceeding was not fair and regular.”

The Court’s opinion is here.

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Administrative Law Judge Decisions

Bardon, Inc., d/b/a Aggregate Industries  (05-CA-248026; JD-32-21)  Millville, WV, July 7, 2021.  Errata to Administrative Law Judge Paul Bogas’ July 2, 2021 decision.  Errata   Amended Decision

Security Walls, LLC  (15-CA-224596 and 15-CA-255865; JD-34-21)  Knoxville, TN.  Administrative Law Judge Arthur J. Amchan issued his decision on July 7, 2021.  Charges filed by an individual.

Johnston Fire Services, LLC  (10-CA-254411, et al.; JD-35-21)  Paducah, KY.  Administrative Law Judge Michael A. Rosas issued his decision on July 7, 2021.  Charges filed by United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Local Union 669 Road Sprinkler Fitters.  Errata issued July 9, 2021.  Errata   Amended Decision.

Amerinox Processing, Inc.  (04-CA-268380, et al.; JD-33-21)  Camden, NJ.  Administrative Law Judge Andrew S. Gollin issued his decision on July 8, 2021.  Charges filed by International Association of Sheet Metal, Air, Rail & Transportation Workers, Sheet Metal Workers Local 19.

New York Paving, Inc.  (29-CA-254799; JD(NY)-06-21)  Brooklyn, NY.  Administrative Law Judge Lauren Esposito issued her decision on July 8, 2021.  Charge filed by Construction Council Local 175, Utility Workers Union of America, AFL-CIO.

Law Enforcement Officers Security Unions a/w the Law Enforcement Officers Security and Police (Paragon Systems, Inc.)  (09-CB-268971; JD-36-21)  Herndon, VA.  Administrative Law Judge Arthur J. Amchan issued his decision on July 9, 2021.  Charge filed by an individual.

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