Summary of NLRB Decisions for Week of May 31 - June 3, 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
Island Hospitality Management II, LLC d/b/a/ Hampton Inn—Long Island Brookhaven (29-CA-274600; 371 NLRB 103) Farmingville, NY, May 31, 2022.
The Board (Chairman McFerran and Member Ring; Member Wilcox, dissenting) adopted the Administrative Law Judge’s recommended dismissal of allegations that the Respondent violated Section 8(a)(5) and (1) by unilaterally withdrawing recognition from the Union as the unit employees’ exclusive collective-bargaining representative based on a petition, signed by a majority of the unit employees, that stated, in most relevant part in English, “we disagree with a union being brought in” and, in most relevant part in Spanish, “no estamos de acuerdo con la incorporación de un sindicato.” Dissenting, Member Wilcox would reverse the judge and find that the Respondent violated Section 8(a)(5) and (1) by its withdrawal of recognition. In her view, the petition lacked sufficient clarity to constitute objective evidence of an actual loss of majority support.
Charge filed by New York Hotel and Motel Trades Council, AFL-CIO. Administrative Law Judge Jeffrey P. Gardner issued his decision on December 1, 2021. Chairman McFerran and Members Ring and Wilcox participated.
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Paragon Systems, Inc. (13-CA-274000; 371 NLRB No. 104) Chicago, IL, June 2, 2022.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with provisions of the terms of the bilateral settlement agreement. The complaint alleged that the Respondent violated Section 8(a)(5) and (1) by failing to provide information necessary for bargaining. Additionally, the Board (Chairman McFerran, Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) modified its standard remedial language applicable when an employer has not yet reopened its facility (due to COVID-19) or where a substantial complement of employees has not returned to work, and the employer is communicating with employees by electronic means.
Under prior law, both physical and any electronic notice posting were deferred in either circumstance to within 14 days of the facility’s reopening and staffing by a substantial complement of employees, as prescribed in Danbury Ambulance Service, 369 NLRB No. 68 (2020). The majority here held that any required electronic notice posting must occur within 14 days after service by the Region, while retaining the Danbury schedule as to physical posting of the notice. The majority found that advancing the timing of the electronic notice posting to more promptly notify employees of unfair labor practices committed against them, and the steps that would be taken to remedy those violations, would better effectuate the purposes of the Act. Dissenting on this issue, Members Kaplan and Ring would have adhered to Danbury in its entirety.
Charge filed by the Committee for Fair and Equal Representation. Chairman McFerran and Members Kaplan, Ring, Wilcox and Prouty participated.
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Amerinox Processing, Inc. (04-CA-268380, et al.; 371 NLRB No. 105) Camden, NJ, June 3, 2022.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by: (1) prohibiting employees from discussing a union during working time while permitting them to discuss other subjects unrelated to work; (2) threatening employees with discharge if they supported the Union or engaged in union activity; (3) telling an employee that the employee was being removed prior to the time of his resignation because of his support for the Union; (4) creating the impression among its employees that their union activities were under surveillance by the Respondent; and (5) maintaining work rules that prohibit employees from disclosing information about wages, benefits, and other terms and conditions of employment. In addition, the Board adopted the judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by: (1) removing an employee and not allowing him to work his final two weeks because of his union activities, and to discourage other employees from supporting the Union; (2) discharging an employee; and (3) laying off four employees because of the renewed organizing campaign, and to discourage employees from supporting the Union.
Finally, in light of the number and severity of the Respondent’s violations and its recidivist history, the Board agreed with the judge that extraordinary remedies were warranted, and ordered several additional special remedies. In affirming the judge’s recommendation for a notice-reading provision, a Board majority (Chairman McFerran and Member Prouty) ordered that the notice be read by the Respondent’s president or by an agent of the Board with the Respondent’s president present. Concurring, Member Kaplan cited the D.C. Circuit’s discussion of the First Amendment implications of the Board's notice-reading remedy. Reversing the judge, the majority (Chairman McFerran and Member Prouty; Member Kaplan, dissenting) ordered a notice-mailing. The Board reasoned that a notice mailing was warranted based on the Respondent’s numerous and egregious unfair labor practices, its recidivist conduct, and the fact that its president previously mocked a prior notice required by an informal settlement agreement based on the Respondent’s earlier unfair labor practices. The majority further observed that a notice mailing was necessary to reach individuals who did not have access to the Respondent’s facility. Dissenting, Member Kaplan found that there was no evidence that traditional notice posting was insufficient. He reasoned that a notice-mailing remedy that is not contingent on the Respondent’s having gone out of business or having closed the facility involved in the proceeding is seldom granted and that the Board has not traditionally ordered notices to be mailed to unlawfully discharged employees. Reversing the judge, the Board (Chairman McFerran and Member Prouty; Member Kaplan, dissenting in part) also ordered other access remedies for the Union. Member Prouty noted that he would order additional access remedies, including requiring the Respondent to provide the Union with reasonable access to employees in nonwork areas during nonwork time, the opportunity to respond to any address made by the respondent to its employees concerning union representation, and access to deliver a 30-minute speech to employees during work time prior to a Board election in which the Union is a participant. Dissenting in part, Member Kaplan observed that he disagreed that the access remedy of ordering an employer to provide a union with employees’ contact information should also include the employees’ telephone numbers and personal email addresses.
Charges filed by the International Association of Sheet Metal, Air, Rail & Transportation Workers, Sheet Metal Workers Local 19. Administrative Law Judge Andrew S. Gollin issued his decision on July 8, 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
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Miller Plastic Products, Inc. (06-CA-266234; JD-32-22) Burgettstown, PA, June 2, 2022. Errata to Administrative Law Judge Michael A. Rosas’ decision of May 27, 2022. Errata Amended Decision.
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