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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of March 1 - 5, 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

Sunbelt Rentals, Inc.  (18-CA-236643, et al.; 370 NLRB No. 94)  Franksville, WI, March 1, 2021.

The Board (Members Kaplan, Emanuel, and Ring; Chairman McFerran, dissenting) issued a Notice and Invitation to File Briefs, inviting the parties and interested amici to file briefs addressing the following questions: (1) Should the Board adhere to or overrule Johnnie’s Poultry Co., 146 NLRB 770 (1964); and (2) if the Board were to overrule Johnnie’s Poultry, what standard should the Board apply?  In dissent, Chairman McFerran stated that she sees no need to revisit Johnnie’s Poultry.  The parties and amici may file briefs with the Board by April 5, 2021; parties may file responsive briefs by April 20, 2021.

Charges filed by the International Union of Operating Engineers, Local 139, AFL-CIO.  Administrative Law Judge Michael A. Rosas issued his decision on May 13, 2020.  Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Cemex Construction Materials Florida, Inc.  (12-RC-257813)  Naples, FL, March 4, 2021.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review.  The Board also denied the Employer’s Request for Extraordinary Relief as moot.  Petitioner—International Brotherhood of Teamsters, Local 79.  Chairman McFerran and Members Kaplan and Ring participated.

C Cases

H&M International Transportation, Inc.  (05-CA-241380)  Norfolk, VA, March 1, 2021.  The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s Order denying its Motion to Dismiss the Complaint.  The Respondent had argued that the case could not be prosecuted because President Biden’s removal of former General Counsel Robb was invalid.  The Board found that the Respondent failed to establish that its objections cannot be appropriately addressed at a later stage in the proceeding, such as on exceptions to the Board in the event the Respondent receives an adverse ruling before the judge. Charge filed by International Longshoremen’s Association, Local 1970.  Chairman McFerran and Members Emanuel and Ring participated.

American Federation For Children, Inc.  (28-CA-246878 and 28-CA-262471)  Glendale, AZ, March 2, 2021.  The Board denied the Respondent’s Motion to Dismiss 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.  Charges filed by an individual.  Chairman McFerran and Members Emanuel and Ring participated.

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Appellate Court Decisions

Safeway, Inc., Board No. 20-CA-221482 (reported at 369 NLRB No. 30) (9th Cir. decided March 1, 2021).

In an unpublished memorandum decision, the Court enforced the Board’s order issued against this operator of supermarkets in Northern California that is party to two collective-bargaining agreements with United Food and Commercial Workers Union, Local 5, covering employees at supermarkets in Del Norte and Humboldt Counties, and some at other store locations.  The Board (then-Chairman Ring and Members Kaplan and Emanuel) found that Safeway violated Section 8(a)(5) and (1) by refusing to provide the Union with requested information that was relevant to grievances claiming that Safeway was permitting outside vendors to accomplish unit work.

The Union filed grievances after learning that employees of outside vendors were entering the supermarkets to shop and bag groceries for customers who ordered through a smartphone app, and, relatedly, requested copies of the vendor contracts.  The Board found that the minimal burden placed on the Union to establish relevance under a liberal discovery-type standard had been met, and Safeway had a duty to provide the vendor contracts to the Union.  The Board further found that, because the Union offered to negotiate over Safeway’s concerns that the vendor contracts contained confidential information, Safeway unlawfully refused to bargain over an accommodation.  The Board also found that Safeway unreasonably delayed responses to the Union’s information requests.

On review, the Court held that substantial evidence supported the Board’s finding that the Union had demonstrated the relevance of the vendor contracts to its obligation to represent the employees and enforce their rights under the collective-bargaining agreements.  Rejecting Safeway’s contention that the Union was simply engaged in speculation and had not established relevance, the Court noted that the Union indicated to Safeway that it had witness accounts of vendor employees seeming to perform bargaining-unit work, and that the requested information would allow the Union to determine whether the work of the vendor employees was “accidental and isolated” or “part of an intentional business plan.”  Lastly, the Court summarily enforced the uncontested portions of the Board’s order remedying what the Board found to be Safeway’s unlawful delay in responding to the Union’s information requests.

The Court’s decision is here.

Kroger Limited Partnership I Mid-Atlantic, Board No. 05-CA-155160 (reported at 368 NLRB No. 64) (D.C. Cir. decided under the name UFCW Local 400 v. NLRB, March 5, 2021).

In a published opinion, the Court dismissed the petition filed by United Food and Commercial Workers Union, Local 400, for review of the Board’s dismissal of the complaint that had issued against this retail grocery operating numerous stores in the Mid-Atlantic region for allegedly violating Section 8(a)(1).  The complaint had alleged that Kroger unlawfully denied a nonemployee union agent access to the parking lot of one of its Portsmouth, Virginia stores because he sought to solicit customers to sign a petition in support of a boycott of two other nearby Kroger stores.  On review, the court held that the jurisdictional bar of Section 10(e) of the Act prohibited it from reviewing the Union’s petition.

In dismissing the complaint, the Board (then-Chairman Ring and Members Kaplan and Emanuel; then-Member McFerran dissenting) overruled Sandusky Mall, 329 NLRB 618 (1999), enforcement denied, 242 F.3d 682 (6th Cir. 2001), and held that an employer discriminates within the meaning of the discrimination exception of NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956), when it treats nonemployee activities that are similar in nature disparately.  More specifically, the Board held that an employer may deny access to nonemployees who seek to engage in protest activities on its property, while allowing nonemployee access for a wide range of charitable, civic, and commercial activities, because they are not similar in nature to protest activities.  Applying the revised standard, the Board found that Kroger permissibly banned the nonemployee union agent from soliciting support for a consumer boycott on its premises.

On review, the Court held that none of the Union’s contentions were properly before the Court, citing Section 10(e) of the Act: “No objection that has not been urged before the Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”  29 U.S.C. § 160(e).  The Court explained that the complaint alleged only “discriminatory enforcement,” and charged Kroger with “selectively and disparately” enforcing a no-solicitation policy.  The Court emphasized that throughout the litigation, the General Counsel made clear that the case presented only that singular issue.  The Court noted that “[e]ven after the Board’s decision and Member McFerran’s discussion of a different theory, Local 400 did not seek reconsideration,” and “raised the Board dissenter’s theory for the first time in this court.  That was not enough.”  Rejecting the Union’s contrary contentions, the Court dismissed the petition for review.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Sunset Cultural Center  (32-CA-242555; JD(SF)-02-21)  Oakland, CA.  Administrative Law Judge Mara-Louise Anzalone issued her decision on March 2, 2021.  Charge filed by an individual.

11 West 51 Realty LLC d/b/a The Jewel Facing Rockefeller Center (02-CA-256884; JD(NY)-03-21) New York, NY, March 3, 2021.  Errata to Administrative Law Judge’s February 25, 2021 decision.  Errata   Amended Decision.

TYR Energy Logistics  (16-CA-262046; JD-07-21)  Corpus Christi, TX.  Administrative Law Judge Robert A. Giannasi issued his decision on March 5, 2021.  Charge filed by an individual.

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