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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of May 10 - 14, 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

United Natural Foods, Inc., d/b/a United Natural Foods, Inc. and Supervalu Inc.  (19-CA-249264 and 19-CB-250856; 370 NLRB No. 127)  Tacoma, WA, May 11, 2021.

The Board denied the Respondent’s Request for Special Permission to Appeal the Regional Director’s order severing cases, withdrawing the complaint in Case 19–CB–250856, and dismissing the charge in Case 19–CB–250856.  The Board found that the request was not properly before it because the Regional Director retained unreviewable prosecutorial discretion, on behalf of the Acting General Counsel, to withdraw the complaint.  The Board declined to consider the Respondent’s claims as to the propriety of the President’s removal of the former General Counsel and his appointment of the Acting General Counsel.

Charges filed by International Brotherhood of Teamsters, Local 117 and Local 313 and United Natural Foods, Inc., d/b/a United Natural Foods, Inc. and Supervalu Inc.  Chairman McFerran and Members Kaplan and Ring participated.

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 Family Attractions Amusements Co., LLC  (01-CA-130086; 370 NLRB No. 126)  Upton, ME, May 12, 2021.

The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file a timely answer to the compliance specification, and found that the net backpay due was as stated in the compliance specification.  The Board ordered the Respondent to pay the amounts specified, plus interest accrued to the date of payment.

Charge filed by Comité de Apoyo a Los Trabajadores Agricolas (CATA).  Members Kaplan, Emanuel, and Ring participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Exelon Nuclear Security, LLC  (13-RC-270906)  Warrenville, IL, May 13, 2021.  The Board denied the Intervenor’s Request for Review of the Acting Regional Directors Decision on Objections and Certification of Representative as it raised no substantial issues warranting review.  The Board also denied the Intervenor’s request to stay the Certification of Representative as moot.  Petitioner—National Union of Nuclear Security Officers a/w LEOS-PBA.  Intervenor—International Union, Security, Police and Fire Professionals of America (SPFPA).  Chairman McFerran and Members Kaplan and Emanuel participated.

C Cases

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), AFL-CIO (FCA US LLC)  (07-CB-213726, et al.)  Detroit, MI, May 11, 2021.  No exceptions having been filed to the February 26, 2021 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.  Charges filed by individuals.

United Natural Foods, Inc., d/b/a United Natural Foods, Inc. and Supervalue Inc.  (19-CA-249264 and 19-CB-250856)  Tacoma, WA, May 11, 2021.  The Board denied the Respondent’s Request for Special Permission to Appeal the Regional Director’s order granting the Union’s request for a 30-day continuance and rescheduling the hearing in Case 19–CB–250856.  The Regional Director subsequently withdrew the complaint and dismissed the charge in that case, and the Board, in a separate order, denied the Respondent’s Request for Special Permission to Appeal that dismissal.  The Board therefore found that the request to appeal the rescheduling order was moot.  The Board additionally noted that Section 102.16 of the Board’s Rules and Regulations permit the Regional Director to extend the hearing date when, as in this case, more than 21 days remain before the scheduled hearing.  Charges filed by International Brotherhood of Teamsters, Local 117, and United Natural Foods, Inc., d/b/a United Natural Foods, Inc. and Supervalu Inc.  Chairman McFerran and Members Kaplan and Ring participated.

United Natural Foods, Inc., d/b/a United Natural Foods, Inc. and Supervalue Inc.  (19-CA-249264 and 19-CB-250856)  Tacoma, WA, May 11, 2021.  The Board dismissed as moot the Respondent’s Motion to Sever Case 19-CA-249264, to Transfer Case 19-CB-250856 to the Board, and for Summary Judgment in Case 19-CB-250856.  The motion was rendered moot by the Regional Director’s order withdrawing the complaint and dismissing the charge in Case 19-CB-250856, which the Board found was a valid exercise of the Regional Director’s prosecutorial discretion on behalf of the Acting General Counsel.  Charges filed by International Brotherhood of Teamsters, Local 117 and United Natural Foods, Inc., d/b/a United Natural Foods, Inc. and Supervalu Inc.  Chairman McFerran and Members Kaplan and Ring participated.

Michael Cetta, Inc. d/b/a Sparks Restaurant  (02-CA-142626 and 02-CA-144852)  New York, NY, May 14, 2021.

The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s Order directing that the compliance hearing be conducted by videoconference, but denied the appeal on the merits.  The Board found that the Respondent failed to establish that the judge abused his discretion in relying on the ongoing COVID-19 pandemic as a compelling circumstance necessitating a remote hearing in this witness-heavy case.  The Board also found that the Respondent did not show that a hearing held by videoconference would deny it due process, stating that the Respondent may raise any nonspeculative concerns that arise during the video hearing to the judge in the first instance, without prejudice to its right to file exceptions with the Board to any adverse rulings.  Finally, the Board rejected the Respondent’s challenge to the Board’s “Courtroom Deputy” program.  

Charges filed by United Food and Commercial Workers Local 342.  Chairman McFerran and Members Kaplan and Emanuel participated.

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Appellate Court Decisions

RAV Truck & Trailer Repairs Inc., and Concrete Express of NY, LLC, a single employer, Board Case No. 02-CA-220395 (reported at 369 NLRB No. 36) (D.C. Cir. decided May 11, 2021).

In a published opinion, the Court enforced in part the Board’s order that issued against these two companies, which occupy the same building in the Bronx, New York, and are undisputedly a single employer, and remanded to the Board for further proceedings.  At the building, which has dual addresses of 3771 and 3773 Merritt Avenue, the companies shared a single open internal space, in which RAV Truck operated a truck-repair business, and Concrete Express parked its concrete delivery trucks.  RAV Truck first moved into the building in February 2018, after losing its lease at another location.  In May, after learning that employees of Concrete Express were seeking union representation, the two mechanics of RAV Truck signed authorization cards, and Teamsters Local 456, International Brotherhood of Teamsters, filed a petition to represent them.  Days later, RAV Truck discharged one of the mechanics and laid-off the other, and closed its business altogether later that month.

The Board (then-Chairman Ring and Members Kaplan and Emanuel), applying Wright Line, found that the discharge violated Section 8(a)(3) and (1), and that the layoff was unlawful.  The Board further found that the Employer violated Section 8(a)(3) and (1) by closing the RAV portion of its business, finding that the intention of the closing was to chill union activity by Concrete Express’s employees based on the timing of the closure.  In addition to the reinstatement and make-whole remedies for the two discriminatees, the Board ordered the restoration of RAV’s business operations as they existed on May 14, 2018, the day before the first unfair labor practice.

On review, the Court held that the Board’s unlawful discharge and layoff findings were supported by substantial evidence, and enforced those portions of the Board’s order.  The Court, however, remanded the case for further consideration regarding whether the closing of RAV Truck was unlawful, and for the Board to assess the appropriateness of the restoration remedy.  Explaining its view of the record, the Court stated that, after the loss of the lease at the prior location, RAV Truck moved to “an unsuitably small, temporary space which the Company used to finish repairs from the previous location,” and “then shut down RAV for good.”  Given this record, the Court stated, “we cannot decipher . . . how the Board determined that the closure of RAV constituted an unfair labor practice.”  On the restoration remedy, the Court stated that “[t]he space was neither adequate in size nor properly registered under New York law to accommodate a third-party repair shop.”  The Court then instructed the Board on remand to address what authority supports the restoration of an operation that no longer exists, and “for which there is no adequate space to house the operation within any of the company’s existing facilities.”

The Court’s opinion is here.

DH Long Point Management LLC, Board Case No. 31-CA-226377 (reported at 369 NLRB No. 18) (D.C. Cir. decided May 14, 2021).

In an unpublished judgment, the Court enforced the Board’s order issued against this 600-room hotel and resort in Rancho Palos Verdes, California, which operates nine on-site kitchens.  In doing so, the Court upheld the findings by the Board (then-Chairman Ring and Members Kaplan and Emanuel) that a junior sous chef, who was a high-profile supporter of the campaign by UNITE HERE Local 11 to organize the resort employees, was not a statutory supervisor as the Employer claimed, and that the Employer violated Section 8(a)(3) and (1) by issuing him a final written warning and later discharging him.

On the supervisory issue, the Court rejected the Employer’s claim that the junior sous chef assigned work to the hourly and temporary kitchen workers, agreeing with the Board that, although he oversaw the cooking line, he did so by “following detailed instructions that stripped him of independent judgment.”  On the unlawful discipline and discharge issues, the Court noted that there was no dispute that he had engaged in extensive union activities and did so with the Employer’s knowledge, particularly given that he had spoken with the media about the campaign, been featured in news articles, and participated in a Union delegation that sought to meet with the resort president.  The Court agreed with the Board that substantial evidence supported its findings that the Employer had an unlawful motive in disciplining and discharging him, and that the Employer failed to prove that it would have taken the same actions, absent his protected union activities.

The Court’s judgment is here.

305 West End Avenue Operating, LLC and Ultimate Care Management Assisted Living Management, LLC, Board Case No. 02-CA-188405 (reported at 369 NLRB No. 62) (2d Cir. decided May 14, 2021).

In an unpublished summary order, the Court enforced the Board’s order that issued against the owner and operator of a senior independent living residence which provides nonmedical services to its residents at 305 West End Avenue in New York City.  In doing so, the Court upheld the determinations of the Board (then-Chairman Ring and Members Kaplan and Emanuel) that the two entities were joint employers, and after their purchase of the residence in 2016 from Esplanade Partners Ltd., they were the successor under Burns Int’l Security Services, Inc. v. NLRB, 406 U.S. 272 (1980).  The Court also upheld the Board’s finding that the Employers refused to hire the Union shop steward in violation of Section 8(a)(3) and (1), and that the release she signed with Esplanade, to which the Employers were not signatories, did not bind the Board, nor provide an excuse for its liability.

In determining successorship, the Board held that the Employers voluntarily chose to hire predecessor employees, and rejected their contention that the New York Displaced Building Service Workers Protection Act (DBSWPA)—a local ordinance obligating covered employers to hire and retain certain employees of a predecessor employer for at least a 90-day transition period—had precluded a finding that they had voluntarily hired a substantial and representative complement of employees before the transition period expired.  The Board based that finding on two independent grounds: (1) regardless of the DBSWPA hiring restrictions, the Employers voluntarily chose to hire the predecessor employees, and (2) even assuming the DBSWPA played a role in their hiring, the ordinance required the Employers to hire only certain predecessor employees, while predecessor employees not covered by the DBSWPA alone would have constituted a majority of the initial workforce.  Therefore, the Board concluded that the Employers violated Section 8(a)(5) and (1) by refusing to bargain with the employees’ Union, United Food & Commercial Workers Union Local 2013.

On review, the Court held that the Board’s findings were supported by substantial evidence and consistent with law.  On successorship, the Court noted that the Union, under these circumstances, was entitled to a presumption of majority support among the employees, and rejected the Employers’ attempted reliance on a limited exception to that presumption where the collective-bargaining agreement was “clearly intended as merely an administrative arrangement for the benefit of union members only.”  The Court held that, to the contrary, the record evidence demonstrated that the Union had secured equal benefits, including a pay raise, for all employees, including those who did not pay Union dues.  On joint-employer status, the Court held that relevant factors had been established.  On the Employers’ asserted defense against their refusal to hire the Union shop steward, the Court concluded:  “We see no reason to disturb the NLRB’s conclusion that the release does not protect the [Employers] from liability for their own independent violations of law, and instead [the release] covers only claims arising out of Esplanade’s conduct.”  Finding no merit in the Employers’ remaining arguments, the Court enforced the Board’s order in full.

The Court’s summary order is here.

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Administrative Law Judge Decisions

Enright Seeding, Inc.  (25-CA-210670; JD-23-21)  Davenport, IA.  Administrative Law Judge Keltner W. Locke issued his decision on May 10, 2021.  Charge filed by International Union of Operating Engineers, Local 150, AFL-CIO.

Gavilon Grain, LLC  (25-CA-264907 and 25-CA-265798; JD-24-21)  Maceo, KY.  Administrative Law Judge Geoffrey Carter issued his decision on May 12, 2021.  Charges filed by Laborers’ International Union of North America, Local 1392.

Pain Relief Centers, P.A.  (10-CA-260563, et al.; JD-25-21)  Conover, NC.  Administrative Law Judge David I. Goldman issued his decision on May 13, 2021.  Charges filed by individuals.

Medical Diagnostic Laboratories, Genesis  (22-CA-250467; JD(NY)-04-21)  Newark, NJ.  Administrative Law Judge Kenneth W. Chu issued his decision on May 13, 2021.  Charge filed by District 119J, National Union of Hospital & Healthcare Employees, AFSCME, AFL-CIO.

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