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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of June 7 - 11, 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

Tito Contractors, Inc. (05-CA-119008, et al.; 370 NLRB No. 133) Washington, DC, June 8, 2021.

In this compliance proceeding, the Board granted the General Counsel’s Motion for Partial Summary Judgment as to those paragraphs of the compliance specification where the Respondent gave insufficient answers or attempted to relitigate matters that had been decided in the underlying unfair labor practice proceeding, and as to those paragraphs where the Respondent either admitted or improperly failed to deny with the specificity required under the Board’s Rules and Regulations.  The Board remanded the case for a hearing limited to the discriminatees’ interim earnings and expenses.

Charges filed by International Union of Painters and Allied Trades, District Council 51, AFL-CIO.  Chairman McFerran and Members Kaplan and Ring participated.

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Indiana Bell Telephone Company, Inc. (25-CA-218405; 370 NLRB No. 135) Indianapolis, IN, June 9, 2021.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by unilaterally assigning premises technicians to perform the pulling and/or pre‑wiring of fiber optic cable during the final phase of building the IP network in multi‑dwelling unit structures without first bargaining with the Union.

Charge filed by Communications Workers of America, Local 4900.  Administrative Law Judge Michael A. Rosas issued his decision on December 11, 2019.  Chairman McFerran and Members Kaplan and Emanuel participated.

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Professional Transportation, Inc. (32-RC-259368; 370 NLRB No. 132) Fresno, CA, June 9, 2021.

On review, the Board (Chairman McFerran and Members Kaplan and Ring; Member Emanuel, dissenting in part) affirmed the Regional Director’s Decision Overruling Objections and Certification of Representative as the Employer’s offer of proof, which alleged that representatives of the Petitioner solicited the mail ballots of two eligible voters, failed to provide a description of evidence that, if credited at a hearing, would warrant setting aside the election.

In affirming the Regional Director, a full Board unanimously held that the solicitation of mail ballots constitutes objectionable conduct.  A majority (Chairman McFerran and Members Kaplan and Ring) would set aside an election based on such conduct if the evidence shows that a determinative number of voters were affected by it.  To calculate the number of affected voters, the majority would consider evidence of the number of unit employees whose ballots were solicited and evidence demonstrating that a party engaged in a pattern or practice of solicitation.  The majority would also consider the number of unit employees who were aware of ballot solicitation, although Members Kaplan and Ring would consider all unit employees aware of the solicitation while Chairman McFerran would consider only the unit employees made aware of the solicitation by a solicited employee.

Applying the new rule retroactively, the majority found that, although the Employer’s offer of proof was sufficient to show the Petitioner solicited the mail ballot of at least one employee, at most it could establish that the Petitioner’s mail-ballot solicitations affected two voters and therefore could not have affected the outcome of the election, in which the Petitioner prevailed by a minimum of ten votes.

Dissenting in part, Member Emanuel agreed that the solicitation of mail ballots is objectionable but would establish a bright-line rule setting aside elections whenever a party is shown to have collected or solicited mail ballots, irrespective of the number of such incidents or the number of voters affected.

Petitioner—United Electrical, Radio, and Machine Workers of America (U.E.), Local 1077.  Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.

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United Pulse Trading, d/b/a AGT Foods (18-CA-242003; 370 NLRB No. 134) Minot, ND, June 10, 2021.

The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) when it stopped giving annual performance reviews after the Union filed a representation petition.  The Board found that the General Counsel had not shown sufficient evidence that the Respondent had a regular practice of giving annual performance reviews.  The Board adopted the judge’s conclusion that the Respondent did not violate Section 8(a)(3) and (1) by ceasing to give annual merit pay increases based on the performance reviews, and accordingly, dismissed the complaint.

Charge filed by Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, AFL-CIO, Local No. 167G.  Administrative Law Judge Arthur J. Amchan issued his decision on March 31, 2020.  Chairman McFerran and Members Kaplan and Emanuel participated.

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University Rehabilitation Center of C-U, LLC (25-CA-256418 and 25-CA-261222; 370 NLRB No. 136) Urbana, IL, June 10, 2021.

The Board granted the Acting 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, a successor employer, violated Section 8(a)(3) and (1) by discharging an employee because she joined, formed, or assisted the Union, or to discourage employees from engaging in such activities; and violated Section 8(a)(5) and (1) by changing the weekend shift pay of unit employees without providing notice to and bargaining in good faith with the Union to agreement or impasse; by failing and refusing to meet with the Union at reasonable times for bargaining, including by canceling bargaining sessions and by failing for over four months to meet at all; and by failing and refusing to provide written contract proposals to the Union.

Charges filed by American Federation of State, County and Municipal Employees, Council 31, AFL-CIO.  Chairman McFerran and Members Kaplan and Emanuel participated.

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Brinker International Payroll Company L.P. (27-CA-110765; 370 NLRB No. 137) Denver, CO, June 11, 2021.

On remand from the Fifth Circuit Court, the Board affirmed its finding that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that, when reasonably interpreted, interferes with employees’ access to the Board and its processes.  The Board noted that the agreement’s broad reference to “an employee’s ability to complete any external administrative remedy (such as with the EEOC)” did not serve as a sufficient savings clause under extant Board precedent.

Charge filed by the Sawaya & Miller Law Firm.  Chairman McFerran and Members Emanuel and Ring participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

WideOpenWest Illinois, LLC (13-RC-274653) Warrenville, IL, June 9, 2021.  The Board denied the Petitioner’s request for a stay of the election.  Petitioner—International Brotherhood of Electrical Workers Local Union 21.  Chairman McFerran and Members Emanuel and Ring participated.

C Cases

Stern Produce Company, Inc. (28-CA-258619) Phoenix, AZ, June 7, 2021.  In this case alleging Section 8(a)(3) and (1) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the Acting General Counsel, and specified actions the Respondent must take to comply with the Act.  Charge filed by United Food and Commercial Workers Union, Local 99.  Chairman McFerran and Members Emanuel and Ring participated.

BlitzMetrics, Co. (28-CA-248901 and 28-CA-249571) Albany, CA, June 10, 2021.  No exceptions having been filed to the April 28, 2021 decision of Administrative Law Judge Arthur J. Amchan’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order.  Charges filed by individuals.

International Brotherhood of Teamsters Local 878 (United Parcel Service) (15-CB-251221) Little Rock, AR, June 11, 2021.  The Board denied the Respondent’s Motion to Dismiss the Complaint, or, in the alternative Motion for Summary Judgment finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law.  Charge filed by an individual.  Chairman McFerran and Members Kaplan and Emanuel participated.

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Appellate Court Decisions

NP Palace LLC d/b/a Palace Station Hotel & Casino, Board Case No. 28-CA-218622 (reported at 368 NLRB No. 148) (D.C. Cir. decided June 8, 2021).

In a published opinion, the Court denied in part, and dismissed in part, the petition for review filed by International Union of Operating Engineers Local 501, AFL-CIO, and enforced in full the Board’s unfair-labor-practice order issued against this operator of a casino in Las Vegas, Nevada.  Previously, in the test-of-certification proceeding, the Court entered a consent judgment upholding the Board’s certification of the Union and enforcing the Board’s bargaining order.  In the instant case, the Union petitioned for review of the Board’s determinations regarding information-request allegations that the Board had severed in the prior proceeding.

In the decision currently on review, the Board (then-Chairman Ring and Members Kaplan and Emanuel, then-Member McFerran, concurring in part and dissenting in part) found, among other things, that the Casino violated Section 8(a)(5) and (1) by failing to provide the Union with information that was presumptively relevant to bargaining and over which the Casino did not assert a confidentiality interest.  With regard to the information over which the Casino claimed a confidentiality interest, the Board revised its traditional remedy.  Previously, the Board had required an employer that violates Section 8(a)(5) and (1) by refusing to bargain for the purpose of seeking court review of the certification to provide relevant information a union has requested.  Specifically, the Board announced that when such an employer articulates a “specific confidentiality interest in particular requested information,” the Board will determine whether that confidentiality interest is “legitimate on its face.”  If it is, the Board will find a violation, but will only order the employer to engage in “accommodative bargaining.”  Applying that test, the Board found that the Casino violated the Act by failing to engage in accommodative bargaining over policies requested by the Union that related to “the security and integrity of gaming machines and precautions it takes to combat illegal gaming and money laundering.”  Applying its new remedy, the Board ordered the Casino to bargain with the Union toward an accommodation that satisfies both the Union’s need for the information and the Casino’s confidentiality interests.

Before the Court, the Union challenged the Board’s new remedial rule and its application, which limited the remedy to accommodative bargaining.  On review, the Court stated that the Board used its broad discretion to craft a remedy that protects confidential information, and held that the resulting rule “is both reasonable and consistent with the Act, so we will not disturb it.”  Regarding the Union’s challenge to the Board’s application of the rule, the Court held that it was reasonable for the Board to have applied it to the parties in this case.  The Court further stated that, under the Board’s rule, employers need only “articulate a specific confidentiality interest,” and here the Casino did so and the Board reasonably found the claim legitimate.  Regarding the Union’s challenge to the Board’s remand of an additional allegation for further proceedings, the Court dismissed, noting that the remand ruling was not a “final order” within the meaning of Section 10(f) of the Act.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Nexstar Broadcasting, Inc. d/b/a KOIN-TV (19-CA-248735, et al.; JF(SF)-08-21) Portland, OR.  Administrative Law Judge Amita Baman Tracy issued her decision on June 11, 2021.  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.

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