Summary of NLRB Decisions for Week of September 13 - 17, 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 Board Decisions Issued.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Marketplace APM/MPR (21-RC-270627) Los Angeles, CA, September 13, 2021. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner—Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA). Chairman McFerran and Members Kaplan and Ring participated.
Management & Training Corporation (01-CA-267261) Chicopee, MA, September 13, 2021. No exceptions having been filed to the August 2, 2021 decision of Administrative Law Judge Michael A. Rosas’ finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint. Charge filed by IUE-CWA, The Industrial Division of the Communications Workers of America, AFL-CIO.
International Brotherhood of Teamsters, Local 179 (13-CC-262182 and 13-CE-262185) Addison, IL, September 13, 2021. No exceptions having been filed to the August 2, 2021 decision of Administrative Law Judge David I. Goldman’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint. Charges filed by Crush Crete, Inc.
Appellate Court Decisions
Cadillac of Naperville, Inc., Board Case No. 13-CA-207245 (reported at 368 NLRB No. 3) (D.C. Cir. decided September 17, 2021).
In a published opinion, the Court enforced the Board’s order in all aspects, except on one issue for which the Board requested remand. To remedy numerous unfair labor practices committed after a strike in 2017, the Board issued its order against this operator of a car dealership in Naperville, Illinois, where its mechanics are represented by Automobile Mechanics Local 701, International Association of Machinists and Aerospace Workers, AFL-CIO.
Among other violations, the Board (then-Chairman Ring and then-Member McFerran; Member Emanuel, dissenting in part) found that the Employer made numerous threats and coercive statements to employees in violation of Section 8(a)(1), and unlawfully discharged a 15-year employee who was serving as shop steward for his union activity in violation of Section 8(a)(3) and (1). The Board also found that the Employer violated Section 8(a)(5) and (1) by unilaterally enacting new attendance policies, discontinuing benefits, and prohibiting union representatives’ access to employees, and adopted the Administrative Law Judge’s findings that the Employer unlawfully failed to immediately reinstate five former strikers.
In finding the unlawful discharge, the Board rejected the Administrative Law Judge’s application of Wright Line, and instead applied Atlantic Steel Co., 245 NLRB 814 (1979). In doing so, the Board rejected the Employer’s contention that the shop steward lost the protection of the Act by making a comment to the dealership’s owner during a heated discussion over recalling strikers. Among other examples of coarse talk, the owner called the employee the ringleader, blamed him for the strike, and told him to “get the fuck out before I get you the fuck out.” In response, the shop steward called the owner a “stupid jack off” in Greek while departing from the office.
After the Employer petitioned for review, and briefing was underway, the Board issued General Motors, LLC, 369 NLRB No. 127 (2020), overruling Atlantic Steel, and announcing that Wright Line instead was the appropriate test for analyzing employee misconduct that occurred in the course of protected activity. Thereafter, the Board requested that the Court proceed to decision, but remand the unlawful discharge allegation for reconsideration in light of changed precedent.
In its decision, the Court (Judges Millet and Pillard; Judge Katsas, dissenting in part) upheld the Section 8(a)(5) and (1) violations as supported by substantial evidence, and rejected the Employer’s numerous challenges. On the findings that the owner committed numerous threats to employees in retaliation for the strike and their other union activities, the Court unanimously upheld all but one threat finding, as to which Judge Katsas dissented, viewing it as speech protected by Section 8(c). Finding no prejudice, the Court further rejected the Employer’s claims that the Board erred in determining that the Administrative Law Judge did not abuse his discretion when he prevented its counsel from retaining witness affidavits after finishing cross-examination, and admitted a recording of a meeting where the owner made unlawful statements.
Finally, regarding the unlawful discharge, the Court granted the Board’s request to remand the issue for reconsideration after determining that the Board had provided a reasonable ground for remand and that the Employer would not be unduly prejudiced.
The Court’s opinion is here.
Newark Electric Corp. Newark Electric 2.0, Inc. and Colacino Industries, Inc., as a single employer and alter ego, Board Case No. 03-CA-088127, reported at 366 NLRB No. 145 (2018) (2d Cir. decided September 17, 2021).
In a published opinion, the Court enforced the Board’s order that issued against these three companies that provide electrical services and supplies in Newark, New York. In addition to upholding the Board’s unfair-labor-practice findings, the Court rejected the companies’ challenge to General Counsel Griffin’s ratification of the underlying complaint that issued in 2013 during the tenure of Acting General Counsel Solomon at a time his service in that acting capacity was held invalid under the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345, et seq. See NLRB v. Southwest General, Inc., 137 S. Ct. 929 (2017).
While the Board’s initial decision in this case, 362 NLRB 44 (2015), was pending on review before the D.C. Circuit, the D.C. Circuit issued SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. Aug. 7, 2015), reh’g denied (2016). Thereafter, the U.S. Solicitor General’s Office in the Department of Justice filed a petition for a writ of certiorari to contest that conclusion, which was granted. The D.C. Circuit then granted the Board’s motion for abeyance of the case pending the Supreme Court’s resolution of the FVRA issue. After the Supreme Court issued its decision in Southwest General, the D.C. Circuit, at the Board’s request, vacated the Board’s 2015 decision and remanded to the Board. While on remand, General Counsel Griffin ratified the complaint and its continued prosecution, the parties filed position statements, and the Board, reconsidering the earlier proceedings de novo, affirmed the Administrative Law Judge’s findings and conclusions, to the extent and for the reasons stated in the 2015 decision.
Thus, in the operative decision here, 366 NLRB No. 145 (2018), the Board (then-Chairman Ring and Members McFerran and Kaplan) found, based in part on a stipulation reached at hearing, that the three companies were a single employer and alter egos. Among other findings, the Board concluded that the companies violated Section 8(a)(5) and (1) by refusing to recognize and bargain with their electrical workers’ representative, International Brotherhood of Electrical Workers, Local 840. Specifically, the Board found that the companies unlawfully repudiated the terms of a letter of assent signed in 2011, under which Newark Electric agreed to be bound by the Union’s master collective-bargaining agreement and any automatic extensions. In finding the violation, the Board rejected the companies’ claims that a later letter of assent signed by Colacino Industries, which Colacino Industries eventually terminated, superseded and extinguished the letter of assent signed by Newark Electric. Additionally, the Board found that, on the heels of the unlawful repudiation of the agreement, the companies constructively discharged a 28-year electrician because he was a union member, thus violating Section 8(a)(3) and (1). The Board applied for enforcement of its order in the Second Circuit.
On review, the Court held that the Board’s unfair-labor-practice findings were supported by substantial evidence and consistent with law. On the issues of single employer and alter ego status, the Court found the tests relevant to both doctrines “easily satisfied,” and rejected the companies’ arguments as contrary to the record evidence. The Court likewise rejected the companies’ alternative argument that if they were deemed a single employer and alter egos, they should be relieved of liability because Colacino Industries timely terminated its letter of assent with the Union, thereby cancelling all obligations under the separate letter of assent signed by Newark Electric. The Court held that such an argument founded on principles of merger was inapplicable here, where the two letters were not executed by the same parties. Further, the Court stated: “To allow an employer to seize on such a post hoc finding and transform it into a shield that allows it to avoid its labor law obligations would conflict with the purposes of both the alter ego and the merger doctrines.” On the Board’s finding of an unlawful constructive discharge, the Court rejected the companies’ contentions because they were founded on discredited testimony.
On the challenge to the ratification, the Court concluded that it would “join the D.C. and Third Circuits, which have upheld ratifications made by General Counsel Griffin after the Supreme Court’s decision in Southwest General.” See Wilkes-Barre Hosp. Co., LLC v. NLRB, 857 F.3d 364 (D.C. Cir. 2017); Advanced Disposal Services East, Inc. v. NLRB, 820 F.3d 592 (3d Cir. 2016). In doing so, the Court rejected the claim that the ratification was invalid because it contained language that the companies viewed as “boilerplate” indicating that the ratification was undertaken with less than full knowledge of the facts. “Unless the record includes clear evidence to the contrary,” the Court explained, “agency action is entitled to a presumption of regularity,” citing National Archives & Records Administration v. Favish, 541 U.S. 157 (2004), and held that the companies’ “conclusory claims” were insufficient to overcome the presumption.
Finally, the Court rejected the companies’ contention that it suffered a due-process violation after remand from the D.C. Circuit. Specifically, they argued that the Board did not provide them with a full opportunity to present new legal arguments about laches, which the D.C. Circuit mentioned in its remand order, because they were only permitted to file a position statement, rather than a full brief. The Court explained that to prevail on such a claim, the companies would have had to show “some violation of established law or procedures or that [they were] specifically prejudiced.” The Court found neither here, emphasizing that “an element of confusion or novelty alone does not violate due process.”
The Court’s opinion is here.
Administrative Law Judge Decisions
Niagara Mohawk Power Corp., d/b/a National Grid (03-CA-255757; JD-54-21) Syracuse, NY. Administrative Law Judge Melissa M. Olivero issued her decision on September 13, 2021. Charge filed by International Brotherhood of Electrical Workers, AFL-CIO, Local 97.
Echo Transportation (16-CA-259171; JD-55-21) Dallas, TX. Administrative Law Judge Charles J. Muhl issued his decision on September 13, 2021. Charge filed by Amalgamated Transit Union, Local 1338.
Coca-Cola Consolidated, Inc. (09-CA-250571 and 09-CA-251021; JD-56-21) Erlanger, KY. Administrative Law Judge Geoffrey Carter issued his decision on September 15, 2021. Charges filed by International Brotherhood of Teamsters (IBT), Local Union No. 1199.
International Longshoremen’s Association, AFL-CIO, CLC (10-CC-276241 and 10-CE-271046, et al.; JD-57-21) Charleston, SC. Administrative Law Judge Andrew S. Gollin issued his decision on September 16, 2021. Charges filed by International Longshoremen’s Association, AFL-CIO, CLC, Local 1422, United States Maritime Alliance, Ltd., State of South Carolina and South Carolina State Ports Authority.
Pyramid Baltimore Mgt. LLC d/b/a Residence Inn by Marriott at the Johns Hopkins Medical Campus (05-CA-269799, et al.; JD-58-21) Baltimore, MD. Administrative Law Judge Michael A. Rosas issued his decision on September 16, 2021. Charges filed by UNITE HERE Local 7 and UNITE HERE Local 7 and International Union of Operating Engineers Local 37.
County Concrete Corporation (22-CA-238625; JD(NY)-10-21) Newark, NJ. Administrative Law Judge Jeffrey P. Gardner issued his decision on September 17, 2021. Charge filed by Local 863, International Brotherhood of Teamsters.
United States Postal Service (01-CA-263580; JD-59-21) Hampden, ME. Administrative Law Judge Donna N. Dawson issued her decision on September 17, 2021. Charge filed by American Postal Workers Union, Local 536, AFL-CIO.
Limousine of South Florida, Inc. d/b/a Transportation America (12-CA-257039; JD-60-21) Miami, FL. Administrative Law Judge Christine E. Dibble issued her decision on September 17, 2021. Charge filed by International Brotherhood of Teamsters, Local 769.
New York Presbyterian Hudson Valley Hospital (02-CA-258244; JD(NY)-08-21) New York, NY, September 17, 2021. Errata to Administrative Law Judge Jeffrey P. Gardner’s August 11, 2021 decision. Errata Amended Decision
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