Summary of NLRB Decisions for Week of May 17 - 21, 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
National Nurses Organizing Committee-Texas/National Nurses United (Bay Area Healthcare Group, Ltd. d/b/a Corpus Christi Medical Center, an indirect subsidiary of HCA Holdings, Inc.) (16-CB-225123; 370 NLRB No. 128) May 20, 2021.
The Board (Members Emanuel and Ring; Chairman McFerran, dissenting) denied the Acting General Counsel’s Motion to Remand the complaint to the Regional Director for dismissal, or, alternatively, to dismiss the complaint. The Board found the matter ripe for adjudication given that the Administrative Law Judge previously issued his decision and exceptions and briefs had been filed, including an amicus brief. Further, the Board found that the case presented an opportunity for the Board to provide guidance on significant legal issues regarding the duty of fair representation and the appropriate framework for resolving allegations that a union breached that duty by failing to provide a requested copy of a pre-recognition agreement. Dissenting, Chairman McFerran would have granted the Acting General Counsel’s motion in light of her view that the prior investment of litigation resources did not justify expending further resources, and that it was unnecessary to provide legal guidance to the parties and the public in this case.
Charge filed by an individual. Administrative Law Judge Keltner W. Locke issued his decision on June 24, 2020. Chairman McFerran and Members Emanuel and Ring participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Impact Site Works, LLC (13-RC-271615) East Chicago, IN, May 18, 2021. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner—International Union of Operating Engineers, Local 150, AFL-CIO. Chairman McFerran and Members Kaplan and Emanuel participated.
Amentum Services, Inc. f/k/a AECOM Management Services, Inc. f/k/a URS Federal Services, Inc. (28-RC-249393) Las Vegas, NV, May 21, 2021. The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised substantial issues warranting review. Upon review, the Board reversed the Regional Director’s assertion of “extraterritorial jurisdiction.” The Petitioner had sought, and the Regional Director had directed, a mail-ballot election in a unit of employees employed by the Employer, a defense contractor, at the Kandahar Airfield in Afghanistan. The Board stated that it is bound by Supreme Court precedent holding that the Act’s language—including Section 2(6)’s references to commerce with or through a “foreign country”—does not suffice to rebut the presumption against applying federal statutes outside of U.S. territory without a “clear indication” that Congress intended to do so. The Board therefore vacated the Certification of Representative, set aside the election and dismissed the petition. Petitioner—International Association of Machinists and Aerospace Workers, Local Lodge SC711, AFL-CIO. Members Kaplan, Emanuel, and Ring participated.
SMART Sheet Metal Workers Local Union 9 (US Engineering) (27-CB-256117) Westminster, CO, May 17, 2021. No exceptions having been filed to the April 2, 2021 decision of Administrative Law Judge Eleanor Laws’ 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. Charge filed by an individual.
Nova Basement Systems, Inc. (25-CA-250547) LaPorte, IN, May 18, 2021. No exceptions having been filed to the March 10, 2021 decision of Administrative Law Judge Kimberly R. Sorg-Graves’ 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. Charge filed by an individual.
Appellate Court Decisions
Altura Communication Solutions, LLC, Board Case No. 13-CA-174605 (reported at 369 NLRB No. 85) (9th Cir. decided May 21, 2021).
In an unpublished memorandum decision, the Court enforced the Board’s order issued against this provider of enterprise telecommunications services. The Employer is headquartered in Fullerton, California, but employs field service technicians who provide on-site customer support nationwide. The technicians have long been represented by the International Brotherhood of Electrical Workers, Local 21, under successive collective-bargaining agreements, the more recent of which expired in July 2015. Two months prior to expiration, the parties began bargaining for a successor agreement. The Board (then-Chairman Ring and Members Kaplan and Emanuel) concluded that, during those negotiations, the Employer violated Section 8(a)(5) and (1) by engaging in overall bad-faith bargaining, and by later unilaterally implementing changes in the technicians’ terms and conditions of employment without first reaching a good-faith bargaining impasse.
In making a finding of overall bad-faith bargaining, the Board assessed the totality of the circumstances, which included evidence that, by its proposals, the Employer sought to transfer to itself unilateral control over employee wages, hours, and benefits—virtually all significant terms and conditions of employment—and that the proposals would have foreclosed any avenue for the Union to challenge or protest the Employer’s exercise of its unilateral authority in those critical areas. The Board concluded that the Employer’s proposals effectively called upon the Union to cede its bargaining rights and representational function, and that such a combination of proposals warranted an inference of bad faith. Moreover, the Board found bad faith evidenced by the Employer’s conduct during negotiations, which included repeatedly claiming that the parties were at impasse, when they were not; refusing to meet in person on the normal rotation of bargaining locations; demanding advance proposals from the Union; creating arbitrary deadlines for the Union to prepare proposals; and, when such proposals were received, unreasonably dismissing them as not warranting further bargaining. This conduct, the Board found, showed a bad-faith intent to avoid productive negotiations and frustrate agreement. Additionally, the Board concluded that the Employer’s later unilateral implementation of some aspects of its last contract offer was unlawful, given that the existence of a genuine, good-faith impasse in negotiations was foreclosed by its overall bad-faith bargaining.
On review, the Court held that the Board properly considered the totality of the parties’ bargaining conduct, including their contract proposals, and that substantial evidence supported the Board’s findings of overall bad-faith bargaining and unilateral implementation of portions of its final proposal in the absence of a good-faith impasse in negotiations.
The Court’s decision is here.
800 River Road Operating Company, LLC d/b/a CareOne at New Milford, Board Case No. 22-CA-204545 (reported at 369 NLRB No. 109) (D.C. Cir. decided May 21, 2021).
In an unpublished judgment, the Court enforced the Board’s order issued against this operator of a rehabilitation and nursing care facility in New Milford, New Jersey. In the prior test-of-certification case, the same Court enforced the Board’s order requiring that the Employer bargain with 1199 SEIU, United Healthcare Workers East, after its nonprofessional employees voted 122 to 81 for representation in 2012. See 800 River Road Operating Co., LLC d/b/a Woodcrest Health Care Center, 846 F.3d 378 (D.C. Cir. 2017). In the current case, the Board (then-Chairman Ring and Members Kaplan and Emanuel) found that the Employer violated Section 8(a)(5) and (1) by unilaterally changing the payroll hours of 20 unit employees from 40 to 37.5 hours per week, which the Board found was a material change to their terms of employment. Without bargaining with the Union, the Employer had implemented the reduction of weekly hours in a series of decreases by job classification spanning from February 2014 to March 2015.
On review, the Court held that the Board “stood on solid ground” in finding the violation, and rejected the Employer’s challenge to the Board’s factual finding of a material change. The Employer’s argument principally rested on cataloging routine variations in employees’ hours, and recharacterizing the status quo preceding the reduction in weekly payroll hours. Explaining that the Employer misunderstood the substantial-evidence standard of review, the Court stated that “it is not sufficient for [the Employer] to show that its theory is one interpretation of the record,” but rather it “bears the burden of demonstrating that the evidence is so compelling that no reasonable factfinder could fail to find to the contrary.”
The Court’s judgment is here.
Administrative Law Judge Decisions
Hawaii Nurses’ Association, OPEIU Local 50 (Bio-Medical Applications of California, Inc. and Liberty Dialysis-Hawaii, LLC) (20-CB-258306, JD(SF)-07-21) Honolulu, HI, May 21, 2021. Administrative Law Judge Gerald M. Etchingham issued his decision on May 21, 2021. Charge filed by Bio-Medical Applications of California, Inc. and Liberty Dialysis-Hawaii, LLC.
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