Summary of NLRB Decisions for Week of October 24 -28, 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
CVS/Pharmacy (13-UC-266228; 372 NLRB No. 1) Chicago, IL, October 24, 2022.
The Board vacated its February 5, 2021 Order Granting Review and Remanding based on then-Member Emanuel’s improper participation. Relying on the rationale in Exxon Mobil Research & Engineering, 371 NLRB No. 128 (2022), the Board (Chairman McFerran and Member Wilcox; Member Ring, dissenting) noted that, as in Exxon, after the February 5 Order issued, the Board’s Designated Agency Ethics Official, based on the Inspector General’s investigation, determined that Member Emanuel was disqualified from participating because of a financial conflict of interest. In its order, the Board found that, as in Exxon, vacatur was the proper remedy for Member Emanuel’s violation of 18 U.S.C § 208(a), and also re-adjudicated the Employer/Petitioner’s Request for Review de novo. In recognition of the unique circumstances of the case, the Board entered its re-adjudicated order nunc pro tunc to February 5, 2021. Dissenting, Member Ring, relying on his Exxon dissent, would have found Member Emanuel’s participation to be harmless error.
Petitioner—CVS/Pharmacy. Union—Teamsters Local 272. Chairman McFerran and Members Ring and Wilcox participated.
Renew Home Health, a Division of Maxus Health Care Partners, LLC (16-CA-260038; 371 NLRB No. 165) Fort Worth, TX, October 28, 2022. Errata to Decision issued September 30, 2022. Errata Amended Decision.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Keolis Transit America, LLC (05-RM-275681) Leesburg, VA, October 24, 2022. The Board denied the Union’s Request for Review of the Regional Director’s Decision and Direction of Election and denied the Union’s request for expedited consideration as moot. In denying review, the Board noted that the Union took issue with the Regional Director’s rationale for directing the election but not the Regional Director’s issuance of the certification of representative, stated that it was not relying upon the Regional Director’s rationale for directing the election, and stated that “under the particular circumstances” of the case, Section 102.67(g) of the Board’s Rules and Regulations would not preclude the Union from raising its arguments in any pending related unfair labor practice proceedings. Union—Amalgamated Transit Union (ATU), Local 689 a/w Amalgamated Transit Union, AFL-CIO. Members Kaplan, Wilcox, and Prouty participated.
Hudson Institute of Process Research, f/k/a Hudson a Professional Corporation and HIPR PACSOFT Technologies, Inc., a Joint Employer (06-RC-281254) Pittsburgh, PA, October 26, 2022. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. Petitioner—United Electrical, Radio & Machine Workers of America. Members Ring, Wilcox, and Prouty participated.
21st Century Valet Parking, LLC, d/b/a Star Garden (31-RC-301557) North Hollywood, CA, October 28, 2022. 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—Actors’ Equity Association. Members Kaplan, Wilcox, and Prouty participated.
United States Postal Service (05-CA-267963, et al.) Hampton, VA, October 25, 2022. In this case alleging Section 8(a)(1) and (3) 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. Charges filed by National Association of Letter Carriers, Local Branch 247 a/w National Association of Letter Carriers, AFL-CIO. Members Kaplan, Wilcox, and Prouty participated.
IATSE Local 16 (20-CB-252132) San Francisco, CA, October 25, 2022. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 371 NLRB No. 100. The Board found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. The Board also granted the General Counsel’s Motion to Redact Respondent’s Motion for Reconsideration and ordered that parts of the Respondent’s Motion for Reconsideration and its Reply to the General Counsel’s Motion to Redact be redacted pursuant to a Protective Order issued in a prior case. Charge filed by an individual. Chairman McFerran and Members Kaplan and Prouty participated.
CannaCruz, Inc. and CBN Management, LLC (32-CA-291904) Santa Cruz, CA, October 28, 2022. The Board denied the petition to revoke an investigative subpoena duces tecum filed by CBH Management, LLC, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. The Board also found that CBH failed to establish any other legal basis for revoking the subpoena. Charge filed by United Food and Commercial Workers Union, Local 5, AFL-CIO, CLC. Members Kaplan, Wilcox, and Prouty participated.
Appellate Court Decisions
Logmet, LLC, Board Case No. 09-CA-247369 (reported at 371 NLRB No. 40) (D.C. Cir. decided October 28, 2022).
In an unpublished judgment, the D.C. Circuit enforced the Board’s order that issued against this company that provides labor at military installations for unfair labor practices committed at the Wright-Patterson Air Force Base in Dayton, Ohio, where a unit of 13 drivers are represented by Local Union No. 780, Motion Picture and Video Laboratory Technicians, Allied Crafts and Government Employees, IATSE. The Board (Members Kaplan, Wilcox, and Prouty) found that Logmet was a “perfectly clear” successor to the prior government contractor and violated Section 8(a)(5) and (1) by changing the drivers’ terms and conditions of employment without bargaining with the Union. In addition to the remedies in the Administrative Law Judge’s recommended order, the Board’s order required Logmet to remit payments it owed to the employees’ benefit funds.
Before the Court, Logmet challenged only the remedial requirement that it remit payments to the benefit funds. Dispensing with oral argument, the Court issued a judgment holding that, under Section 10(e), it had no jurisdiction to review the issue and dismissed the petition for review. The Court explained that “Logmet could have raised this objection before the Board by moving for reconsideration or rehearing,” and “its failure to do so deprives us of jurisdiction.” The Court summarily enforced the Board’s order in full.
The Court’s judgment is here.
Wismettac Asian Foods, Inc., Board Case No. 21-CA-207463 (reported at 371 NLRB No. 9) (9th Cir. decided October 26, 2022).
In an unpublished memorandum decision, the Court enforced the Board’s order that issued against this distributor of Japanese food products headquartered in Santa Fe Springs, California. In an earlier phase of the case, the Ninth Circuit upheld the Board’s determination that the Employer committed numerous unfair labor practices as part of an extensive anti-union campaign after the International Brotherhood of Teamsters, Local 630, filed a petition in 2017 to represent the warehouse workers and drivers at that location.
In that prior decision (370 NLRB No. 35), given that General Motors LLC, 369 NLRB No. 127 (2020), had issued in the interim, the Board severed and remanded an unlawful-discipline allegation, which the Administrative Law Judge had assessed under Atlantic Steel, 245 NLRB 814 (1979). Specifically, the allegation was that the Employer violated Section 8(a)(1) by disciplining an employee-member of the union organizing committee for raising the concern during a safety meeting that drivers were being told to drive overweight trucks. Applying Wright Line, the judge found the violation. After remand, the Board (Chairman McFerran and Members Kaplan and Ring) adopted the judge’s analysis and upheld the violation.
On review, the Court took the case on submission of the briefs and without oral argument. Reviewing the Board’s Wright Line analysis, the Court held that the unfair-labor-practice finding was fully supported by substantial evidence and enforced the Board’s order.
The Court’s opinion is here.
Administrative Law Judge Decisions
Kendall Healthcare Group, LTD., a limited partnership, and Columbia Hospital Corporation of Kendall, general partner, d/b/a HCA Florida Kendall Hospital (12-CA-282408, et al.; JD-68-22) Miami, FL. Administrative Law Judge Keltner W. Locke issued his decision on October 28, 2022. Charges filed by 1199 SEIU, United Healthcare Workers East, Service Employees International Union.
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