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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of May 31 - June 4, 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

No Published Decisions Issued.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

MERS Goodwill Industries  (14-RD-266711)  Festus, MO, June 4, 2021.  The Board denied the Employer’s Request for Review of the Acting Regional Directors Decision and Direction of Election and Decision on Objections and Certification of Representative as it raised no substantial issues warranting review.  The Board found it unnecessary to pass on the Employer’s objection regarding the Region’s alleged failure to send a voter a duplicate voter kit as that employee’s vote would not have changed the outcome of the election.  Petitioner—an individual.  Union—United Food & Commercial Workers Local 655.  Chairman McFerran and Members Emanuel and Ring participated.

Westside Plumbing LLC  (28-RC-263057)  Bernalillo, NM, June 4, 2021.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Second Election as it raised no substantial issues warranting review.  Member Emanuel would have granted review and reversed the Regional Director, finding that the Employer’s statement, in context, permissibly pointed out the risks of unionization.  Petitioner—United Association of Plumbers and Pipefitters Local 412.  Members Kaplan, Emanuel, and Ring participated.

C Cases

No Unpublished C Cases Issued.

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Appellate Court Decisions

Trinity Services Group, Inc., Board Case No. 28-CA-212163 (reported at 368 NLRB No. 115) (D.C. Cir. decided June 1, 2021).

In a published opinion, the Court denied enforcement of the Board’s order that issued against this food service contractor that provides meals to inmates at a state prison in Douglas, Arizona, where a unit of its employees are represented by the United Food and Commercial Workers Union, Local 99.

The Douglas state prison is the Employer’s only unionized facility, and the paid-time-off (PTO) plan for those unionized employees was different than the plan used at non-unionized facilities.  After implementing a new software system for keeping track of leave balances, the Employer experienced difficulty administering the two different time-off systems.  As a result, employees experienced problems getting approval for their leave, often because their pay stubs indicated that they had leave available while the software system indicated that they did not.  In 2018, during ongoing grievance proceedings on such leave issues, and negotiations for a new collective-bargaining agreement in which the PTO plan was a topic of negotiation, an employee who experienced such a discrepancy in leave balances was told by the unit manager “that is a problem that the Union created regarding PTO.  You need to fix that with the Union,” and “that’s the problem with the Union.”

The Board (then-Member McFerran and Member Kaplan; then-Chairman Ring, dissenting) found that the unit manager’s comments violated Section 8(a)(1), and rejected the Employer’s contention that they were statements of viewpoints protected by Section 8(c).  The Board explained that the “patently false” misrepresentations that blamed the Union for employees’ difficulty in taking leave under the PTO plan were made without an objective basis, and during ongoing contract negotiations and grievance proceedings.  Therefore, the Board explained, the comments “would undermine the Union’s status as bargaining representative and reasonably tend to cause an employee to lose faith in the Union’s representation on the [leave] issue” in contract negotiations.

On review, the Court disagreed and held that the comments were viewpoints protected by Section 8(c).  The Court stated that the comments contained no threats or promises that would render them unprotected, and that, in its view, “[s]ound or unsound,” such expressions would not constitute an unfair labor practice.  Distinguishing cases upon which the Board relied, the Court held that the finding was not supported by substantial evidence.

The Court’s opinion is here.

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Administrative Law Judge Decisions

No Administrative Law Judge Decisions Issued.

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