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Cases and Decisions

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Summary of NLRB Decisions for Week of November 23 - 27, 2020

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

International Brotherhood of Teamsters, Local 385 (Freeman Decorating Services, Inc.)  (12-CB-208733; 370 NLRB No. 48)  Orlando, FL, November 23, 2020.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(b)(2) and (1)(A) by failing to provide the Charging Party with notice of her dues delinquency and an opportunity to cure her delinquency before removing her from the referral list for its exclusive hiring hall.  The Board found that the Respondent lawfully implemented its neutral, uniform, and fair referral system rules and doing so was necessary for its effective performance of its representative function.

Charge filed by an individual.  Administrative Law Judge Christine E. Dibble issued her decision on December 19, 2019.  Members Kaplan, Emanuel, and McFerran participated.

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FDRLST Media, LLC  (02-CA-243109; 370 NLRB No. 49)  New York, NY, November 24, 2020.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening employees with unspecified reprisals in a statement its agent posted to his private Twitter account.  The Board modified the judge’s recommended Order to require the Respondent to direct its agent to delete the coercive statement from his account, and to take appropriate steps to ensure the agent complied with its directive.

Charge filed by an individual.  Administrative Law Judge Kenneth W. Chu issued his decision on April 22, 2020.  Chairman Ring and Members Kaplan and McFerran participated.

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IGT d/b/a International Game Technology  (28-CA-166915, et al.; 370 NLRB No. 50)  Las Vegas, NV, November 24, 2020.

In a supplemental decision, the Board (Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining a non-disparagement provision in the standard separation agreement it gives to lawfully separated employees.  Applying Baylor University Medical Center, 369 NLRB No. 43 (2020), the majority found the non-disparagement provision lawful because the separation agreement was entirely voluntary, did not affect pay or benefits that were established as terms of employment, and had not been proffered coercively or in the context of a labor dispute.  Dissenting, Member McFerran expressed her view that Baylor University was wrongly decided and that the non-disparagement provision here is unlawful.

Charges filed by International Union of Operating Engineers Local Union 501, AFL-CIO.  Administrative Law Judge Jeffrey D. Wedekind issued his supplemental decision on January 29, 2020.  Members Kaplan, Emanuel, and McFerran participated.

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International Brotherhood of Electrical Workers, Local 98 (Post General Contracting, LLC d/b/a Post Brothers)  (04-CC-229379, et al.; 370 NLRB No. 51)  Philadelphia, PA, November 25, 2020.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent Union violated Section 8(b)(4)(ii)(B) by (1) playing an audio of a crying baby at a coercively high volume outside the entrance of the secondary construction employer’s worksite; and (2) threatening to set fire to a bar owned by the secondary employer’s security manager.  The Board found it unnecessary to reach the issue of whether the coercive broadcast also constituted unlawful picketing.

Charges filed by Post General Contracting, LLC d/b/a Post Brothers.  Chief Administrative Law Judge Robert A. Giannasi issued his decision on May 6, 2020.  Members Kaplan, Emanuel, and McFerran participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Flex-N-Gate Chicago, LLC  (13-RC-265966)  Chicago, IL, November 23, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Board found the direction of a mail-ballot election as a result of the COVID-19 pandemic was consistent with the guidelines set forth in Aspirus Keweenaw, 370 NLRB No. 45 (2020).  Member McFerran agreed to deny review for the reasons given in her separate opinion in Aspirus.  Petitioner—International Union, United Automobile, Aerospace and Agricultural Implement Workers of America-UAW.  Chairman Ring and Members Emanuel and McFerran participated.

Airgas USA, LLC  (16-RC-262896)  Grand Prairie, TX, November 24, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s unit determination as it raised no substantial issues warranting review.  The Board found that the Regional Director properly concluded that the Employer had failed to carry its burden of rebutting the single-facility presumption in favor of a multi-facility unit.  Regarding the Regional Director’s mail-ballot determination, upon review, the Board remanded the proceedings to the Regional Director to reconsider his determination based on the guidelines set forth in Aspirus Keweenaw, 370 NLRB No. 45 (2020).  Member McFerran noted her dissent in The Boeing Co., 368 NLRB No. 67 (2019), and her separate opinion in Aspirus Keweenaw.  The Board also lifted its stay.  Petitioner—International Brotherhood of Teamsters, Local 745.  Chairman Ring and Members Kaplan and McFerran participated.

Lazarus Energy Holdings, LLC  (16-RC-266439)  San Antonio, TX, November 24, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  The Board found the direction of a mail-ballot election as a result of the COVID-19 pandemic was consistent with the guidelines set forth in Aspirus Keweenaw, 370 NLRB No. 45 (2020).  Member McFerran agreed to deny review for the reasons given in her separate opinion in Aspirus.  Petitioner—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union AFL-CIO.  Chairman Ring and Members Emanuel and McFerran participated.

CR&R Incorporated  (21-RC-262469 and 21-RC-262474)  Perris, CA, November 24, 2020.  On review, the Board affirmed the Regional Director’s Decision and Direction of Election that ordered a mail-ballot election due to circumstances related to the COVID-19 pandemic.  Member McFerran concurred in the decision to affirm the Regional Director for the reasons given in her separate opinion in Aspirus Keweenaw, 370 NLRB No. 45 (2020).  Petitioner—Package & General Utility Drivers, Teamsters Local Union No. 396.  Chairman Ring and Members Emanuel and McFerran participated.

PromoWest Productions, Inc.  (09-RC-261089)  Columbus, OH, November 25, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Challenges and Objections and Certification of Representative as it raised no substantial issues warranting review.  The Employer sought to have the results of the mail-ballot election set aside alleging that a determinative number of votes were not included in the vote count.  Petitioner—International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, AFL-CIO (IATSE) Local 12.  Chairman Ring and Members Kaplan and McFerran participated.

Brink’s Global Services USA, Inc.  (29-RC-260969)  Queens, NY, November 25, 2020.  The Board denied the Employer’s and the Petitioner’s Requests for Review of the Regional Director’s Report on Challenges as they raised no substantial issues warranting review.  The Employer sought to have set aside a ballot because a voter marked and returned the sample ballot on the Notice of Election instead of the official ballot, and the Petitioner sought to have set aside one ballot that was not postmarked and another ballot postmarked after the postmark due date specified in the Regional Director’s Decision and Direction of Election, but not in the Notice of Election or the accompanying instructions mailed to employees.  Petitioner—Law Enforcement Officers Security Unions (LEOSU), Law Enforcement Officers Security and Police Benevolent Association (LEOS-PBA).  Chairman Ring and Members Kaplan and McFerran participated.

Bunge Milling, LLC  (25-RC-262150)  Worthington, IN, November 25, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review.  Petitioner—BCTGM, Local 280, a/w Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, AFL-CIO, CLC.  Chairman Ring and Members Kaplan and McFerran participated.

Shred Works, Inc.  (32-RD-262012)  Oakland, CA, November 25, 2020.  The Board denied the Employer’s Request for Review of the Regional Director’s blocking determination as it raised no substantial issues warranting review.  Petitioner—an individual.  Union—Teamsters Local 70.  Chairman Ring and Members Kaplan and McFerran participated.

C Cases

American Medical Response Mid-Atlantic, Inc.  (05-CA-221233)  Washington, DC, November 24, 2020.  The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 369 NLRB No. 125 (2020).  The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.  The Board also denied the Respondent’s Motion for Leave to File an Amended Answer.  Charge filed by an individual.  Chairman Ring and Members Kaplan and Emanuel participated.

United States Postal Service  (19-CA-234857, et al.)  Portland, OR, November 24, 2020.  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.  The complaint had alleged Section 8(a)(5) and (1) violations.  Charges filed by American Postal Workers Union, Portland Area Local 128, AFL-CIO.  Chairman Ring and Members Kaplan and McFerran 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

United Steel, Paper and Forestry Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union Local 5668 (Constellium Rolled Products Ravenswood, LLC)  (09-CB-257509; JD-48-20)  Ravenswood, WV.  Administrative Law Judge Arthur J. Amchan issued his decision on November 23, 2020.  Charge filed by Constellium Rolled Products Ravenswood, LLC.

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