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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of May 24 - 28, 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

New Vista Nursing and Rehabilitation Center  (22-CA-179497; 370 NLRB No. 130)  Newark, NJ, May 25, 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 compliance specification.  Accordingly, the Board ordered the Respondent to make the unit employees whole by paying the compensation due as stated in the compliance specification.

Charge filed by Service Employees International Union (SEIU), Local 1199.  Chairman McFerran and Members Kaplan and Ring participated.

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 Sinai Hospital of Baltimore, Inc. d/b/a VSP  (05-CA-265997; 370 NLRB No. 129)  Baltimore, MD, May 25, 2021.

The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the basis that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  The Board also rejected the Respondent’s argument that the complaint was untimely.  The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.

Charge filed by 1199 SEIU United Healthcare Workers East.  Members Kaplan, Emanuel, and Ring participated.

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 Frontier Communications Corp.  (09-CA-247015; 370 NLRB No. 131)  Charleston, WV, May 26, 2021.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union notice of, and an opportunity to bargain over the effects of its decision to require bargaining unit employees to provide new I-9 forms and supporting documentation.  The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the information requested by the Union.

Charge filed by the Communications Workers of America, AFL-CIO, District 2-13.  Administrative Law Judge Geoffrey Carter issued his decision on October 14, 2020.  Chairman McFerran and Members Kaplan and Ring participated.

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 Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Austin Maintenance & Construction, Inc.  (28-RC-266671)  Artesia, NM, May 28, 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.  The Employer was precluded from litigating the issue of the appropriateness of the petitioned-for unit because it had failed to file with the Region, and to serve on the Petitioner its Statement of Position as required by the Board’s Rules and Regulations.  The Regional Director found the petitioned-for unit to be appropriate. In granting review, the Board found that, although the Employer was precluded from litigating the propriety of the petitioned-for unit, the Regional Director was still obligated to find the unit appropriate based on some record evidence and had the discretion to do so under the Board’s Rules and Regulations.  In the absence of such evidence, the Board remanded the case to the Regional Director so that an adequate factual basis could be determined to support his unit determination.  Petitioner—International Union of Operating Engineers Local 351.  Chairman McFerran and Members Kaplan and Emanuel participated.

C Cases

International Brotherhood of Electrical Workers, Local 640, AFL-CIO (Sturgeon Electric Company, Inc.)  (28-CB-244943)   Phoenix, AZ, May 28, 2021.  The Board denied the Respondent’s Motion to Dismiss paragraph 5 of the complaint, finding that it provided sufficient information to satisfy the notice-pleading requirements of Section 102.15 of the Board’s Rules and Regulations.  In addition, the Board found that the Respondent’s denial that it made the statements alleged in paragraphs 5 and its argument that the statements involved the lawful enforcement of internal union rules warrant a hearing concerning the statements and rules at issue.  Finally, the Board rejected the Respondent’s argument that the complaint failed to allege that one of the statements violated the Act.  Charge filed by an individual.  Chairman McFerran and Members Kaplan and Emanuel participated.

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Appellate Court Decisions

Amnesty International USA, Board Case No. 05-CA-221952 (reported at 368 NLRB No. 112) (D.C. Cir. decided May 28, 2021).

In an unpublished judgment, the Court denied the petition filed by the Charging Party for review of the Board’s dismissal of the complaint that issued against this non-profit organization.  At its office in Washington, D.C., the organization employs about 25 employees and 15 unpaid interns.  The complaint alleged that the Executive Director made statements in violation of Section 8(a)(1) in response to receiving a petition signed by employees and interns that stated support for paying the interns, as well as later when she announced the terms of a new paid internship program and received a negative reaction from employees.  The Administrative Law Judge found the violations as alleged, and separately found that the employees engaged in concerted activity by supporting the interns in their pursuit for wages.

The Board (then-Chairman Ring and Member Kaplan; then-Member McFerran, concurring in the result) disagreed.  The Board noted that the Executive Director made her remarks at a time of surprise that the employees felt they needed to petition her to suggest a paid-internship program, and disappointment over their negative reaction to her announcement of a paid-internship program.  In this context, the Board found that the Executive Director’s statements did not convey that she was threatening them with reprisals, and her views that they could have simply come speak with her rather than formally petition, were at most suggestions, and not commands or even direct requests.  On the judge’s finding that the employees engaged in concerted activity, the Board stated that such activity advocating only for nonemployees is not for mutual aid or protection, and that, here, the interns were not employees covered by the Act because there was no evidence of an economic relationship.

On review, the Court held that the Board’s decision was supported by substantial evidence and consistent with law.  The Court explained that the Board permissibly concluded that the Executive Director’s statements “did not convey any threat of reprisal, but merely her sense that a pre-petition dialogue would have produced more careful consideration of the issues.”  Finally, the Court concluded that because the statements were non-coercive, there were sufficient grounds for the Board’s dismissal of the Section 8(a)(1) complaint.  Therefore, the Court held there was no occasion for it to consider the Board’s reasoning on the alternate ground that the interns and employees had not engaged in activity protected by Section 7.

The Court’s judgment is here.

Maine Coast Regional Health Facilities, d/b/a Maine Coast Memorial Hospital, the sole member of which is Eastern Maine Healthcare Systems, Board Case No. 01-CA-209105 (reported at 369 NLRB No. 51) (1st Cir. decided May 26, 2021).

In a published opinion, the Court enforced, with a minor modification, the Board’s order that issued against this hospital in Ellsworth, Maine, for unfair labor practices committed in 2017, after disputes over staffing levels arose among a unit of registered nurses and other professional staff represented by the Maine State Nurses Association/National Nurses Organizing Committee/National Nurses Union.

The Board (then-Chairman Ring and Members Kaplan and Emanuel) found that the Hospital violated both Section 8(a)(1) and Section 8(a)(3) by discharging an unrepresented employee after she wrote a letter to the editor of the local newspaper, The Ellsworth American, discussing work-related concerns and expressing support for her coworkers and their Union in the dispute over perceived staffing shortages.  The Board also found that the Hospital violated Section 8(a)(1) by maintaining an unlawfully overbroad media policy which, by its plain terms, prohibited employees from contacting the media regarding any issue involving the Hospital, which necessarily included protected efforts to publicize work-related disputes.

On review, the Court upheld the Board’s unfair-labor-practice findings, but struck a portion of the order requiring posting of a remedial notice at other facilities of the Hospital’s parent corporation.  On the discharge, the Court agreed with the Board that the employee’s letter submitted to the local newspaper constituted both concerted activity and union activity, and that, given the letter was the Hospital’s sole reason for the discharge, there was no need for a Wright Line mixed-motive analysis.  The Court rejected the Hospital’s contention that remand was required for the Board to apply Wright Line, on the basis of the recent decision in General Motors LLC, 369 NLRB No. 127 (2020), a case that extended the application of Wright Line to certain settings where employees engaged in abusive conduct during the course of otherwise protected activity.  The Court explained that the Board in General Motors “cabined its holding to cases involving abusive conduct, specifically exempting mere disparagement or disloyalty.”  Here, the Court stated, the employee’s letter contained “measured critiques [that] were not abusive, a term the Board has reserved for truly outrageous workplace conduct.”  Further, assessing the application of the Jefferson Standard framework that the Board used to assess the letter, the Court agreed that the letter’s criticism of hospital policy did not cause her to lose the Act’s protection.  As the Court put it, her “criticisms were not so disloyal or disparaging as to shed their Section 7 armor.”

Finding no merit to the Hospital’s remaining challenges to the letter’s protection, the Court upheld the Board’s findings that the discharge violated both Section 8(a)(1) and Section 8(a)(3).   The Court, however, agreed with the Hospital that the Board exceeded its authority by compelling posting at eight facilities of the Hospital’s parent corporation, which, the Court found, had never been properly added as a party to the case.

The Court’s decision is here.

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Administrative Law Judge Decisions

Noah’s Ark Processors, LLC d/b/a WR Reserve  (14-CA-255658; JD-26-21)  Hastings, NE, May 27, 2021.  Administrative Law Judge Robert A. Ringler issued his decision on May 27, 2021.  Charge filed by United Food and Commercial Workers Local Union No. 293.

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