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Cases and Decisions


Summary of NLRB Decisions for Week of June 12 - 16, 2023

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

The Atlanta Opera, Inc.  (10-RC-276292; 372 NLRB No. 95)  Atlanta, GA, June 13, 2023.

The Board (Chairman McFerran and Members Wilcox and Prouty; Member Kaplan, dissenting in part and concurring in part) revised its approach to assessing whether workers are employees covered under Section 2(3) of the Act or, instead, are independent contractors, excluded from coverage.  The Board reinstated the framework set forth in FedEx Home Delivery, 361 NLRB 610 (2014), thereby overruling the standard articulated in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019).  Specifically, the Board explained the place of “entrepreneurial opportunity” in its independent-contractor analysis.  The Board held that, in the context of weighing all relevant, traditional common-law factors, including those identified in the Restatement, the Board will also consider whether the evidence tends to show that the putative independent contractor is, in fact, rendering services as part of an independent business.  Applying this reinstated standard, the Board found that the workers at issue—makeup artists, wig artists, and hairstylists—are employees under Section 2(3) of the Act and not independent contractors. Member Kaplan agreed that the workers at issue are statutory employees, but would have adhered to the standard set forth in SuperShuttle DFW, Inc.

Petitioner— Make-Up Artists and Hair Stylists Union, Local 798, IATSE.  Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated.


Woman’s Hospital Foundation  (15-CA-270505; 372 NLRB No. 92)  Baton Rouge, LA, June 14, 2023.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(1) by suspending, discharging, and marking the Charging Party ineligible for rehire.  The Board also, in the absence of exceptions, adopted the judge’s findings that the Respondent violated Section 8(a)(1) by threatening employees through informing them they should keep their disciplines and related investigations confidential, maintaining an unlawful confidentiality rule, and requesting from employees a copy of their Board-prepared affidavits.

Charge filed by an individual.  Administrative Law Judge Christine E. Dibble issued her decision on September 30, 2022.  Chairman McFerran and Members Kaplan and Wilcox participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Nexstar Media Inc., Authorized to Operate Television Station WROC-TV  (03-RC-309322)  Rochester, NY, June 16, 2023.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order Overruling Objections as it raised no substantial issues warranting review.  The Regional Director found that the Employer failed to establish that any party involved in the election committed misconduct that would warrant setting aside the election.  Petitioner—National Association of Broadcast Employees and Technicians–Communications Workers of America, AFL-CIO.  Chairman McFerran and Members Wilcox and Prouty participated.

Akron General Medical Center  (08-UC-287785)  Akron, OH, June 16, 2023.  The Board denied the Petitioner-Union’s Request for Review of the Regional Director’s Decision and Order dismissing its petition to clarify the existing collective-bargaining unit of staff nurses to include a new classification of RNS-MET nurses as it raised no substantial issues warranting review.  Petitioner— Ohio Nurses Association, AFT, AFL-CIO.  Chairman McFerran and Members Wilcox and Prouty participated.

C Cases

No Unpublished C Cases Issued.


Appellate Court Decisions

Longmont United Hospital, Board Case No. 27-CA-296153 (reported at 371 NLRB No. 162) (D.C. Circuit, decided June 13, 2023).

In a published opinion that issued in this test-of-certification case, the D.C. Circuit enforced the Board’s bargaining order that issued against this acute-care hospital in Longmont, Colorado, after its registered nurses voted in a July 2021 mail-ballot election to be represented by National Nurses Organizing Committee/National Nurses United.  In doing so, the Court held that the Board did not abuse its discretion in overruling the Employer’s challenge to one ballot, and overruling its election objection alleging ballot solicitation without holding a hearing.  The Court also held that the Board’s severance of a remedy for further consideration did not affect its jurisdiction to review the case.

In the underlying representation case, the Employer challenged the ballot of one voter, and filed an election objection claiming that the Union had “solicited employee ballots” and filed an offer of proof.  The Regional Director issued a decision overruling the objection without a hearing after determining that the offer of proof failed to present evidence that, if true, would warrant setting aside the election.  A Hearing Officer issued a report recommending that the ballot challenge be overruled.  On exceptions, the Regional Director issued a supplemental decision in which she agreed and ordered that the ballot be opened and counted.  Specifically, the Regional Director noted that there was no dispute about the voter’s eligibility and that the ballot in question was cast.  Further, the Regional Director concluded that the voter had signed, and not merely printed, her name on the ballot envelope, relying in part on the voter’s testimony that with the Employer’s signature exemplars she was in a hurry and used a different signature style from that on the ballot envelope.  The Employer filed a Request for Review, which was denied by the Board (Chairman McFerran and Members Kaplan and Wilcox).  After the ballot was opened, and the final tally showed that the Union prevailed on a vote of 94 to 93, the Regional Director certified the Union.

The Employer then refused to bargain in order to seek court review.  In the resulting unfair-labor-practice case, the General Counsel argued that the Board should order an additional remedy for the Employer’s refusal to bargain that would compensate employees for the value of that lost opportunity.  The Board severed and retained the issue for further consideration.

On review, as a threshold matter, the Court held that the Board’s severance of a remedial issue for future consideration did not affect its jurisdiction to adjudicate issues that the Board had resolved, citing Stephens Media, LLC v. NLRB, 677 F.3d 1241 (D.C. Cir. 2012).  On the merits, the Court rejected the Employer’s contention that the Regional Director improperly departed from precedent in considering the voter’s post-election testimony, explaining that none of the Employer’s proffered authorities involved the Board’s signature requirement.  Further, the Court rejected the Employer’s challenge to the Hearing Officer’s finding that the voter’s testimony was credible, and held that substantial evidence supported the Board’s overruling of the ballot challenge.  In upholding the Regional Director’s decision not to hold a hearing on the claim of ballot solicitation, the Court agreed that the offer of proof was insufficient.  The Court recognized that parties engage in ballot solicitation if they make a statement to a voter that could be reasonably interpreted as an offer to collect and mail their ballots.  But here, the Court noted, the Employer offered only a Union text message that assisted employees with understanding election instructions, by stating how to properly sign ballot envelopes and reminding them to drop their ballots in the mail.  Finally, the Court found no merit in the Employer’s contention that the Board erred in proceeding with summary judgment in the unfair-labor-practice proceeding in the face of the undecided and severed remedial issue.  Further, it explained that because the Board did not adjudicate the General Counsel’s request for compensatory relief, “any challenge to the fact or measure of compensatory damages is premature.”

The Court’s opinion may be found here.


Administrative Law Judge Decisions

Giving Tree Café, LLC  (28-CA-278213; JD(SF)-15-23)  Phoenix and Scottsdale, AZ.  Administrative Law Judge Brian D. Gee issued his decision on June 13, 2023.  Charge filed by an individual.

MJ Melo Painting Ltd.  (29-CA-278541, et al.; JD(NY)-11-23)  Brooklyn, NJ.  Administrative Law Judge Jeffrey P. Gardner issued his decision on June 14, 2023.  Charges filed by Local Union 1439, International Brotherhood of Electrical Workers.


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