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Cases and Decisions

Cases & Decisions

Summary of NLRB Decisions for Week of September 12 - 16, 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

NRT Bus, Inc.  (01-RC-292628; 371 NLRB No. 136)  Framingham, MA, September 13, 2022.

The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision on Objections and Challenges, Order Directing Hearing and Notice of Hearing as it raised no substantial issues warranting review.  In denying review, the Board reaffirmed the rule that in mail ballot elections, individuals are eligible voters if they are in the unit on the payroll eligibility date and the date they mail their ballots. Dredge Operators, Inc., 306 NLRB 924, 924 (1992).  Consistent with his concurring position in KMS Commercial Painting, LLC, 371 NLRB No. 69 (2022), Member Ring dissented, and would have granted the Employer’s request for review in order to consider whether to adhere to or depart from the Dredge Operators rule.

Petitioner—International Brotherhood of Teamsters, Local 170.  Members Ring, Wilcox, and Prouty participated.

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Strategic Technology Institute, Inc. (15-CA-249872; 371 NLRB No. 137)  Jacksonville, AR, September 13, 2022.

The Board adopted the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging 17 employees.  A Board majority (Chairman McFerran and Member Prouty) additionally relied on the small plant doctrine to infer employer knowledge for the unlawful discharges and found merit in the General Counsel’s cross-exceptions that the Respondent additionally violated Section 8(a)(3) and (1) by issuing verbal counseling forms to 14 employees.  Member Kaplan found it unnecessary to additionally rely on the small plant doctrine because the record contained ample evidence of the Respondent’s knowledge of union activity.  Member Kaplan also found it unnecessary to pass on the General Counsel’s cross-exception because the judge’s recommended remedies for the discharges covered the verbal counseling forms as well.

Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO.  Administrative Law Judge Arthur J. Amchan issued his decision on December 9, 2021.  Chairman McFerran and Members Kaplan and Prouty participated.

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Troy Grove a Div. of Riverstone Group Inc., and Vermillion Quarry a Div. of Riverstone Group Inc.  (25-CA-234477, et al.; 371 NLRB No. 138)  Moline, IL, September 14, 2022.

The Board unanimously found that the Respondent violated Section 8(a)(1) of the Act by removing a union picket sign from public property; and by requiring Joe Ellena, a striking employee who made an unconditional offer to return to work, to sign a preferential hiring list at the workplace in order to return to work.  The Board also unanimously found that the Respondent violated Section 8(a)(1) by refusing employee Matt Kelly’s request, per NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), that his steward be present at an investigative meeting that led to his suspension and discharge.  The Board also unanimously found that the Respondent violated Section 8(a)(5) by implementing a new punch-in policy for unit employees without first notifying the Union and giving it an opportunity to bargain.  The Board found this violation only with respect to the Respondent’s employees who had gone on strike in March 2018 or returned from the strike, on the ground that under Board precedent the Respondent was not obligated to bargain over its strike replacements’ terms of employment.

A panel majority consisting of Chairman Member McFerran and Member Ring found, contrary to the administrative law judge, that the Respondent did not violate Section 8(a)(3) by disciplining, suspending, and discharging Kelly, on the ground that the Respondent had born its Wright Line burden of showing that it would have taken those actions based on Kelly’s admitted infraction of its attendance rules even if he had not engaged in protected activity by wearing union insignia.  (Member Ring would also have found that the General Counsel failed to meet his initial Wright Line burden of showing that the Respondent acted with unlawful animus.)  In partial dissent, Member Wilcox would have found the Respondent’s actions against Kelly unlawful based on their timing after Kelly began to wear union insignia; on the Respondent’s failure to show Kelly several disciplinary notices he was given at the times they were issued; and on the significant number of disciplinary warnings the Respondent issued to Kelly in comparison to other employees.

The charges were filed by International Union of Operating Engineers Local 150, AFL–CIO.  Administrative Law Judge Melissa M. Olivero issued her decision on January 11, 2021.  Chairman McFerran and Members Ring and Wilcox participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Pier 55, Inc., d/b/a Little Island  (02-RC-278451)  Manhattan, NY, September 14, 2022.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Challenged Ballots and Objections and Order Directing the Opening and Counting of Certain Challenged Ballots as it raised no substantial issues warranting review.  Petitioner—Theatrical Protective Union, Local No. One, IATSE, AFL-CIO.  Chairman McFerran and Members Ring and Wilcox participated.

Starbucks Corporation  (19-RC-297140)  Seattle, WA, September 14, 2022.  The Board denied the Petitioner’s Request for Review of the Regional Director’s Order Granting Petitioner’s Motion to Block and Denying Petitioner’s Motion to Continue and the Regional Director’s Order Denying Petitioner’s Motion to Reconsider and/or Modify the Order as it raised no substantial issues warranting review.  Petitioner—Workers United.  Members Ring, Wilcox, and Prouty participated.

Starbucks Corporation  (19-RC-298772)  Springfield, OR, September 16, 2022.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election.  Petitioner—Workers United.  Members Ring, Wilcox and Prouty participated.

C Cases

 

Enision Physician Services, LLC, Arizona EM-I Medical Services, P.C., and Tucson Medical Center, Joint Employers, and Integrative Emergency Services, LLC, and IES Arizona, PLLC, Successors to Envision Physician Services, LLC and Arizona EM-I Medical Services, PC, and Joint Employers with Tucson Medical Center  (28-CA-284862)  Tucson, AZ, September 14, 2022.  The Board denied the motion for summary judgment filed by Respondents Integrative Emergency Services, LLC and IES Arizona, PLLC, finding that the Respondents had failed to demonstrate that there were no genuine issues of material fact warranting a hearing and that they were entitled to judgment as a matter of law.  Charge filed by an individual.  Chairman McFerran and Members Wilcox and Prouty participated.

Power Home Solar, LLC, d/b/a Pink Energy  (07-CA-287046 and 07-CA-288569)  Chesterfield, MI, September 15, 2022.  The Board denied the Respondent’s Motion to Remove and Motion to Dismiss the Consolidated Complaint, finding that the Respondent failed to establish that it was frivolous, premised upon requests for relief that have already been provided by settlement or by the actions of the parties, or filed for the sole purpose of harassing the Respondent. In addition, the respondent failed to establish that there are no genuine issues of material fact warranting a hearing.  Charges filed by Local 58, International Brotherhood of Electrical Workers, AFL-CIO.  Members Ring, Wilcox, and Prouty participated.

Four Seasons Fresh Transport, LLC  (21-CA-287923, et al.)  National City, CA, September 16, 2022.  The Board granted the Charging Party’s request for special permission to appeal the administrative law judge’s oral ruling approving an informal Board settlement agreement, but denied the appeal on the merits.  The Board found that the agreement satisfied the standard set forth in Independent Stave Co., 287 NLRB 740, 743 (1987), and the judge did not err in approving it.  Charges filed by International Longshore and Warehouse Union, ILWU.  Members Kaplan, Ring, and Wilcox 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

Good Samaritan Hospital  (31-CA-282566; JD(SF)-22-22)  Los Angeles, CA, September 14, 2022.  Errata to Administrative Law Judge Gerald M. Etchingham’s decision of August 30, 2022.  Errata   Amended Decision.

Phillips 66 Company  (15-CA-263723; JD-55-22)  Belle Chasse, LA.  Administrative Law Judge Andrew S. Gollin issued his decision on September 16, 2022.  Charge filed by an individual.

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