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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of May 16 - 20, 2022

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

IATSE Local 16  (20-CB-252132; 371 NLRB No. 100)  San Francisco, CA, May 20, 2022.

The Board adopted the Administrative Law Judge’s conclusion that the Union violated Section 8(b)(1)(A) by maintaining its Workers Information Policy.  The Board clarified that the policy is unlawful because: 1) it requires users of its exclusive hiring hall to obtain a subpoena, or have other compelling reasons to request another user’s records; 2) provides that if a user of its exclusive hiring hall seeks contact information for another user from the Respondent, the Respondent will contact the other user first to determine whether they want to be contacted; and 3) prohibits users of its exclusive hiring hall from obtaining other users’ contact information, including their names, addresses, and telephone numbers from the Respondent. 

Charge filed by an individual.  Administrative Law Judge Lisa D. Ross issued her decision on September 24, 2021 and an Errata to her decision on September 29, 2021.  Chairman McFerran and Members Kaplan and Prouty participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued.

C Cases

No Unpublished C Cases Issued.

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Appellate Court Decisions

FDRLST Media, LLC, Board Case No. 02-CA-243109 (reported at 370 NLRB No. 49) (3d Cir. decided May 20, 2022).

In a published opinion, the Court denied enforcement of the Board’s order that issued against this publisher of websites, electronic newsletters, and satellite radio shows, with offices in Washington, D.C.  Based on an unfair-labor-practice charge filed by an individual who was not an employee of the publisher, the General Counsel issued a complaint alleging that the publisher, by its executive officer in June 2019, unlawfully threatened employees with unspecified reprisals if they engaged in protected union activity by tweeting: “first one of you tries to unionize I swear I’ll send you back to the salt mine.”  In response, the Employer filed a Motion to Dismiss based on lack of jurisdiction and improper venue because the charge was filed in New York by a non-employee.  The Board denied that motion, and after a hearing was held in New York, the Administrative Law Judge issued a decision finding the tweet an unlawful threat.  On review, the Board (then-Chairman Ring, then-Member McFerran, and Member Kaplan) found the unfair labor practice.

Addressing the first of the publisher’s jurisdictional contentions, the Court rejected the argument that the Board lacked authority to issue a complaint based on a charge filed by a person who was not “aggrieved” by the alleged unfair labor practice, explaining that “controlling precedent and the plain language of the Act affirm that the Board acted within its statutory authority.”  Undertaking a comprehensive review of those authorities, the Court recognized that the “NLRA is remarkably broad in scope and power,” and that Section 10(b) of the Act “places no limits on who may file a charge.”  As the Court commented, “the Act as written and interpreted empowers a politically-motivated busybody as much as a concerned employee or civic-minded whistleblower” to file an unfair-labor-practice charge.

The Court similarly found no merit to the publisher’s additional arguments that the Board’s Regional Office in New York lacked personal jurisdiction over the publisher and that its New York proceedings violated due process.  The Court explained that “the Board’s organization into regional offices for administrative convenience does not divest any individual office of the Board’s nationwide authority,” citing 29 U.S.C. §§ 155, 161(1).  Regarding the publisher’s due-process claim, the Court found it lacking because there was no showing of prejudice.

Reaching the merits of the unlawful threat, however, the Court held that the Board’s finding was not sufficiently supported by substantial evidence because, in its view, the Board had considered the text of the tweet in isolation and without assessing the totality of the circumstances.  Setting aside the finding, the Court explained that “from the words of the tweet alone, we cannot conclude that a reasonable FDRLST Media employee would view [the] tweet as a plausible threat of reprisal.” (emphasis provided by the Court).

The Court’s opinion is here.

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Administrative Law Judge Decisions

Spike Enterprise, Inc.  (14-CA-281652, et al.; JD-27-22)  Channahon, IL.  Administrative Law Judge Ira Sandron issued his decision on May 16, 2022.  Charges filed by International Union of Operating Engineers, Local 150, AFL-CIO.

Bonanza Ventures, LLC, d/b/a Sport Clips  (16-CA-274926; JD-29-22)  Houston/Meyerland, Montgomery and Willis, TX.  Administrative Law Judge Charles J. Muhl issued his decision on May 20, 2022.  Charge filed by an individual.

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