Summary of NLRB Decisions for Week of November 29 - December 3, 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
Logmet, LLC (09-CA-247369; 371 NLRB No. 40) Dayton, OH, December 1, 2021.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent was a perfectly clear successor and violated Section 8(a)(5) and (1) by unilaterally setting terms and conditions of employment that differed from those of the predecessor employer. The Board severed and remanded to the judge the allegations that the Respondent unlawfully changed the workweek and pay date of its unit employees.
Charge filed by Motion Picture and Video Laboratory Technicians, Allied Crafts and Government Employees, Local 780, IATSE. Administrative Law Judge Arthur J. Amchan issued his decision on April 5, 2021. Members Kaplan, Wilcox, and Prouty participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
No Unpublished R Cases Issued.
Golden Mile Hotels, LLC, d/b/a Eurostars Magnificent Mile Hotel (13-CA-250520) Chicago, IL, November 29, 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 UNITE HERE, Local 1. Members Kaplan, Wilcox, and Prouty participated.
Strongsteel of Alabama, LLC (15-CA-189655) Andalusia, AL, November 30, 2021. The Board denied the Employer and an individual’s Motion to Quash an investigative subpoena duces tecum as untimely. The Board also found that the motion lacked merit, even if it were timely filed. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the movants failed to establish any other legal basis for quashing the subpoena. Charge filed by individuals. Members Kaplan, Wilcox, and Prouty participated.
Twin Rivers Pine Bluff LLC (15-CA-268541) Pine Bluff, AR, December 1, 2021. No exceptions having been filed to the October 15, 2021 decision of Administrative Law Judge Melissa M. Olivero’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 United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers, Local 13-935.
Liberty Transit Mix, LLC (07-CA-271762 and 07-CA-273754) Shelby Township, MI, December 1, 2021. No exceptions having been filed to the October 18, 2021 decision of Administrative Law Judge Paul Bogas’ 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. Charges filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.
PHCC Holdings, LLC (29-CA-281145) East Norwich, NY, December 3, 2021. The Board denied PHCC Holdings, LLC’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Petitioner failed to establish any other legal basis for revoking the subpoena. Charge filed by Service Employees International Union, Local 32BJ. Members Kaplan, Ring, and Wilcox participated.
Appellate Court Decisions
New York Party Shuttle, LLC, Board Case No. 02-CA-073340 (reported at 370 NLRB No. 19) (5th Cir. decided November 22, 2021).
In a published opinion, the Court enforced, in part, the Board’s supplemental order that issued against this operator of sightseeing bus tours in New York City as a single employer along with four non-New York bus tour companies—On Board Tours, Washington DC Party Shuttle, LLC, On Board Las Vegas Tours, LLC, NYC Guided Tours, LLC, and Party Shuttle Tours, LLC. The Court reversed and remanded a portion of the backpay awarded to an employee who was unlawfully discharged in violation of Section 8(a)(3) and (1). Further, the Court rejected challenges to the Board’s single-employer determination, and found no merit to the Employer’s belated challenge to the validity of the underlying court-enforced unfair-labor-practice order, which had been issued by a Board panel that included two members who were improperly recess-appointed under Noel Canning v. NLRB, 573 U.S. 513 (2014).
Previously, in the unfair-labor-practice phase of the case, the Fifth Circuit issued a default judgment enforcing the Board’s order after New York Party Shuttle failed to file an opening brief. Thereafter, a compliance proceeding ensued in which the individual bus tour companies were alleged to constitute a single employer. The Administrative Law Judge issued a decision finding single-employer status, determining the amount of backpay owed to the employee who had been unlawfully discharged in 2012, and rejecting challenges to the employee’s reasonable job-search efforts and its Noel Canning contention. On review, the Board (then-Chairman Ring and Members Kaplan and Emanuel) adopted the judge’s recommended decision. On the Noel Canning claim, the Board held there was no basis to challenge the validity of the unfair-labor-practice order after court enforcement.
On review, the Court held that the Board’s single-employer determination was supported by substantial evidence. The Court agreed that the record demonstrated that the individual bus tour companies shared common ownership and financial control; that an interrelation of operations existed between them; that “a common cast of characters, who operate on a ‘readily fungible’ team, manage the companies”; and that centralized control is asserted over labor relations. On the backpay issues, the Court held that for one period—from October 2014 through 2018—the Board had abused its discretion by relying on what the Court characterized as speculation in determining what comparator information to use for calculating backpay. Accordingly, the Court reversed and remanded that issue to the Board.
On the Employer’s Noel Canning challenge, the Court explained that the issue of the validity of the Board’s underlying order did not implicate the Court’s jurisdiction, which instead is predicated on the filing of a petition for review under Section 10(e) of the Act. Further, the Court rejected the Employer’s claim that its Appointments Clause objection could not have been waived. The Court explained that, having never raised the challenge before the Court in the prior review proceeding, the Employer cannot now litigate this issue given it could have been raised in the prior review proceeding. The Court also noted that the principles of res judicata further supported that conclusion.
The Court’s opinion is here.
GADecatur SNF LLC d/b/a East Lake Arbor, Board Case No. 10-CA-262818 (reported at 370 NLRB No. 34) (D.C. Cir. decided November 30, 2021).
In an unpublished judgment that issued in this test-of-certification case, the Court enforced the Board’s bargaining order that issued against this operator of a skilled nursing facility in Decatur, Georgia, after a unit of its employees voted 22 to 17 in a November 2019 election to be represented by the Retail, Wholesale and Department Store Union–Southeast Council. In doing so, the Court held that the Board acted well within its discretion in overruling the Employer’s one remaining election objection.
In the underlying representation case, the Union petitioned to represent a unit of certified nursing assistants, licensed practical nurses, and activity and maintenance employees who work at the nursing facility. The parties entered into a stipulated election agreement, and, after the election was held, the Employer filed three objections, but withdrew two at the hearing. In the third objection alleging Union misconduct, the Employer cited an incident during which union representatives accompanied a recently discharged unit employee to the polls after the Employer had barred her from accessing them, and the Union and company representatives argued over her eligibility in a hallway outside the voting room during the final minutes of the last voting session. After a hearing was held, the Hearing Officer concluded that the Employer had not established its claim.
On exceptions, the Acting Regional Director issued a decision applying the Board’s objective multi-factor test for determining whether the conduct of a party has “the tendency to interfere with employees’ freedom of choice,” and on that basis overruled the election objection and certified the Union. The Acting Regional Director concluded that there was no basis to overturn the election because the argument was short-lived, and, significantly, there was no credited evidence that eligible voters witnessed the argument, or, given that it occurred in the final minutes of the last voting session, that the argument could have persisted in voters’ minds or been disseminated among voters and impacted their preferences. The Acting Regional Director also noted that the Employer’s representatives themselves precipitated the incident by refusing to allow an eligible voter to cast a ballot and were equally engaged in the same potential misconduct for which the Employer faulted the Union. The Employer then filed a Request for Review, which was denied by the Board (then-Chairman Ring and Members Kaplan and Emanuel). Thereafter, the Employer refused to bargain in order to seek court review.
On review, the Court held that the Board did not abuse its discretion in overruling the election objection and certifying the Union. The Court noted that the Board considered the limited duration of the dispute which involved only one voter, the lack of any other unlawful action, the engagement of both parties in the potentially disruptive behavior, and the small-if-unknown number of unit employees aware of or affected by the hallway argument. Weighed against factors such as the close vote count and the fact that the incident occurred when the polls were open, the Court found that the Board reasonably held that the Union’s conduct did not reasonably tend to interfere with the voters’ free choice. In conclusion, the Court stated: “Given the tenuous character of [the employer]’s challenge and the great deference we owe the Board’s well-supported findings, we reject the petition as baseless.”
The Court’s judgment is here.
Administrative Law Judge Decisions
Renew Home Health, a Division of Maxus Health Care Partners, LLC (16-CA-260038; JD-71-21) Forth Worth, TX. Administrative Law Judge Robert A. Ringler issued his decision on November 30, 2021. Charge filed by an individual.
Troutbrook Company, LLC, d/b/a Brooklyn 181 Hospitality, LLC (29-CA-275229; JD(NY)-14-21) Brooklyn, NY. Administrative Law Judge Lauren Esposito issued her decision on December 1, 2021. Charge filed by New York Hotel and Motel Trades Council, AFL-CIO.
Island Hospitality Management II, d/b/a Hampton Inn – Long Island Brookhaven (29-CA-274600; JD(NY)-12-21) Farmingville, NY. Administrative Law Jeffrey P. Gardner issued his decision on December 1, 2021. Charge filed by New York Hotel and Motel Trades Council, AFL-CIO.
Ascension Borgess Hospital (07-CA-273489; JD-72-21) Kalamazoo, MI. Administrative Law Judge Melissa M. Olivero issued her decision on December 3, 2021. Charge filed by Michigan Nurses Association.
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