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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of May 3 - 7, 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

Exela Enterprise Solutions, Inc. (22-CA-272676; 370 NLRB No. 120) New Brunswick, NJ, May 3, 2021.

The Board granted the Acting 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 declined to rule on whether the President lawfully removed the former General Counsel or legally appointed the Acting General Counsel.  Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL–CIO/CLC.  Members Kaplan, Emanuel, and Ring participated.

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AT&T Mobility, LLC (05-CA-178637; 370 NLRB No. 121) Washington, DC, May 3, 2021.

The full Board (Members Kaplan, Emanuel, and Ring; Chairman McFerran, dissenting in part) found that the Respondent did not violate Section 8(a)(1) by maintaining a Privacy in the Workplace policy (Policy) that forbade employees from recording telephone or other conversations without advance approval from the Respondent’s legal department.  The Board majority found that the Policy was a lawful Category 1(b) rule under The Boeing Co., 365 NLRB No. 154 (2017), because the Policy is similar to the lawful no-recording rules presented in Boeing and in two additional cases, Flagstaff Medical Center, 357 NLRB 659 (2011), and Rio All-Suites Hotel & Casino, 362 NLRB 1690 (2015), also addressed in Boeing.  As in those cases, the Policy serves legitimate employer interests while having a comparatively slight impact on protected activity.

The Board majority then found that the Respondent unlawfully relied on the Policy to threaten an employee for recording a unit employee’s termination meeting that he attended in his capacity as union steward.  The majority explained that the Act typically permits employers to warn employees about violations of their policies, but that the employee’s sole violation of the Policy was protected by Section 7.  As such, the Respondent’s threat to apply the Policy in response to the employee’s clearly protected conduct unlawfully interfered with his protected rights.

The majority then addressed and overruled the “applied to restrict” prong of the Lutheran Heritage-Livonia analysis in which the Board generally finds that work rules that have been enforced to interfere with employees’ Section 7 rights are also unlawful to maintain.  The majority concluded that this “applied to restrict” standard conflicts with the Boeing analysis by ignoring legitimate (and often compelling) interests of employers in maintaining lawful work rules.  As a result, this prong has been used to invalidate otherwise lawful work rules based on a single instance of unlawful application.  The majority further explained that the remedy for “applied to restrict” violations, i.e., rescission and republication of rules, is unnecessary and ineffective, given that the rules themselves are lawful under the Act.  Instead, the Board will order employers who apply lawful work rules to interfere with protected rights to address the violation directly through a posted notice informing employees that it will no longer apply that rule to interfere with Section 7 rights.

Dissenting in part, Chairman McFerran agreed that the Respondent unlawfully applied the Policy when it warned the employee for his protected activity but would find that the Policy is unlawfully overbroad.  Chairman McFerran explained that the Boeing decision is fundamentally flawed because it permits employers to maintain work rules that chill employees in their exercise of protected rights without narrowly tailoring those rules to serve demonstrated, legitimate interests.  The Chairman further explained that Boeing’s focus on categorization operates to designate broad classes of work rules as lawful under the Act without any individualized analysis of their impact on protected conduct.  As a result, under Boeing, employees are required to knowingly violate workplace rules (and possibly suffer job repercussions) when engaging in protected activity.  Chairman McFerran disagreed with the majority’s decision to overrule the “applied to restrict” prong of Lutheran Heritage Village, explaining that when a rule is used to commit an unfair labor practice, rescission of that rule provides an effective assurance to employees that it will not be used again to interfere with their rights.  Chairman McFerran would continue to apply the “apply to restrict” prong to find unlawfully applied rules are unlawful to maintain and order employers to rescind unlawfully-applied rules and republish them with an affirmative disclaimer that the rule will not be applied to statutorily protected activity.

Charge filed by an individual.  Administrative Law Judge Arthur J. Amchan issued his supplemental decision on July 1, 2019.  Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.

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2509 South Fourth Operating, LLC d/b/a St. Monica Center for Rehabilitation & Healthcare (04-CA-264458; 370 NLRB No. 122) Philadelphia, PA, May 5, 2021.

The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file a timely answer to the complaint.  The Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to provide, or unreasonably delaying in providing, the Union with requested information necessary for and relevant to its collective-bargaining duties and by refusing to timely respond to the Union’s request to meet concerning workplace health and safety.

Charge filed by National Union of Hospital and Healthcare Employees, AFSCME, AFL-CIO, and its Affiliate District 1199C.  Members Kaplan, Emanuel, and Ring participated.

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Cascades Containerboard PackagingNiagara, a Division of Cascades Holding US Inc. (03-CA-242367, et al.; 370 NLRB No. 125) Niagara Falls, NY, May 6, 2021.

In Cascades Containerboard Packaging—Niagara, a Division of Cascades Holding US Inc., 370 NLRB No. 76 (2021), the Board found that the Respondent violated Section 8(a)(5), (3), and (1) and ordered it to pay backpay to affected employees.  Additionally, at the General Counsel’s request, the Board adopted a new remedy requiring the Respondent to file with the Regional Director a copy of each backpay recipient’s appropriate W-2 form(s).  This was in addition to the existing remedy requiring respondent employers to submit backpay allocation reports to the Regional Director within 21 days.  The Acting General Counsel subsequently asked the Board to impose a deadline for the filing of W-2 forms.

Here, the Board 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 impose a deadline within which a respondent employer must furnish to a Regional Director a copy of each backpay recipient’s appropriate W-2 form(s), reflecting the backpay award?  If so, what should the deadline be?  (2) Should the Board modify the 21-day deadline, set forth in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), for submission of a report allocating the backpay award to the appropriate calendar year for each affected employee?  If so, what modification would be appropriate?  The parties and amici may file briefs with the Board by June 7, 2021, with the parties permitted to file responsive briefs by June 22, 2021.

Charges filed by International Association of Machinists and Aerospace Workers, District Lodge 65, AFL-CIO.  Administrative Law Judge Paul Bogas issued his decision on March 17, 2020.  Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.

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Boar’s Head Provisions Co., Inc. (07-CA-209874 and 07‒CA‒212031; 370 NLRB No. 124) Holland, MI, May 6, 2021.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening a loss of benefits if employees joined the Union, interrogating employees about their union support, threatening that bargaining would start from “zero to minimum,” stating that selecting a union would be futile, soliciting employee complaints and promising to remedy them if employees did not select the Union as their collective-bargaining representative, promising to improve employees’ benefits if they did not select the Union and then granting these benefits, surveilling employees’ Union activities, and maintaining an overbroad work rule prohibiting employees from wearing unauthorized badges or pins in non-production areas. 

Charges filed by United Food & Commercial Workers International Union (UFCW), AFL-CIO.  Administrative Law Judge Thomas M. Randazzo issued his decision on May 14, 2020.  Chairman McFerran and Members Emanuel and Ring participated.

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Confidence Management Systems (22-CA-269243; 370 NLRB No. 123) Linden, NJ, May 6, 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 complaint.  The Board found that the Respondent violated Section 8(a)(5) and (1) by bypassing the Union and discontinuing a wage increase implemented during the COVID-19 pandemic, without first notifying the Union or providing the Union an opportunity to bargain.

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

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Allied Universal Security Services (04-RC-269155) Philadelphia, PA, May 6, 2021.  The Board denied the Petitioner’s Request for Review of the Regional Director’s administrative dismissal of the petition as it raised no substantial issues warranting review.  In denying review, the Board did not rely on the Regional Director’s finding that the current collective-bargaining agreement did not constitute a premature extension because the parties had negotiated substantial changes to the prior agreement, but instead found that it was not a premature extension because the parties entered into it after the close of the “reasonable duration” period of the prior agreement.  The Board also found that the Petitioner’s arguments that the collective-bargaining agreement did not provide for the accretion of the petitioned-for employees to the existing unit or for the Employer’s voluntary recognition of Local 32BJ did not comply with the evidentiary requirements of Section 102.71(a)(3) of the Board's Rules and Regulations.  Petitioner—Philadelphia Security Officers Union.  Union—Service Employees International Union, Local 32BJ.  Chairman McFerran and Members Kaplan and Emanuel participated.

Planned Building Services, Inc., and Planned Lifestyle Services, Inc., Part of and Related to Planned Companies (02-RD-274535) New York, NY, May 7, 2021.  The Board (Members Kaplan and Emanuel; Chairman McFerran, dissenting) granted the Union’s Motion for Stay of Election so as to allow the Board time to fully consider the issues presented in the Union’s Request for Review of the Regional Director’s Decision and Direction of Election (wherein the Regional Director directed a mail-ballot election).  Petitioner—an individual.  Union—Service Employees International Union, Local 32BJ.  Chairman McFerran and Members Kaplan and Emanuel participated.

C Cases

Cervera Automotive Group, LLC d/b/a Veracom Ford (20-CA-264315) San Mateo, CA, May 4, 2021.  In this case alleging Section 8(a)(5) and (1) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act.  Charge filed by Peninsula Auto Machinists Local Lodge No. 1414, District Lodge 190, International Association of Machinists and Aerospace Workers, AFL-CIO.  Members Kaplan, Emanuel, and Ring participated.

Coca-Cola Consolidated, Inc. (09-CA-250571 and 09-CA-251021) Erlanger, KY, May 5, 2021.  The Board denied the Respondent’s Motion to Dismiss the Amended Consolidated Complaint due to the Acting General Counsel’s lack of authority to prosecute this case, or, in the alternative, to stay the instant proceeding.  The Board found that, even assuming it has jurisdiction to review the President’s removal of the former General Counsel, it would not effectuate the policies of the Act to exercise this jurisdiction.  Charges filed by International Brotherhood of Teamsters (IBT), Local Union No. 1199.  Members Kaplan, Emanuel, and Ring participated.

Union de Profesionales de la Seguridad Privada y el Transporte de Valores (MVM, Inc.) (12-CB-263294) Guaynabo, PR, May 6, 2021.  No exceptions having been filed to the March 25, 2021 decision of Administrative Law Judge Sharon Levinson Steckler’s 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.

Rev-A-Shelf Company, LLC (09-CA-270793) Louisville, KY, May 7, 2021.  The Board denied the Respondent’s Motion to Dismiss the Complaint on the basis that the Acting General Counsel was improperly appointed and therefore lacked authority to issue and prosecute complaints.  The Board found that, even assuming that it has jurisdiction to review the President’s authority to remove the former General Counsel and appoint the Acting General Counsel, the exercise of that authority would not effectuate the policies of the Act.  Charge filed by General Drivers, Warehousemen and Helpers, Local No. 89, a/w the International Brotherhood of Teamsters.  Members Kaplan, Emanuel, and Ring participated.

American Plumbing Contractors, Inc. (07-CA-255976) Lansing, MI, May 7, 2021.  The Board denied the Respondent’s Motion to Dismiss the Complaint due to the Acting General Counsel’s lack of authority to prosecute this case, or, in the alternative, to stay the instant proceeding.  The Board found that, even assuming it has jurisdiction to review the President’s removal of the former General Counsel, it would not effectuate the policies of the Act to exercise this jurisdiction.  Charge filed by Local 333, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, (UA), AFL-CIO.  Chairman McFerran and Members Kaplan and Emanuel participated.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

No Administrative Law Judge Decisions Issued.

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