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Cases & Decisions

Summary of NLRB Decisions for Week of September 27 - October 1, 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

International Union of Operating Engineers, Local 150, AFL–CIO (Donegal Services, LLC)  (13-CP-227526, et al.; 371 NLRB No. 28)  Lemont, IL, September 28, 2021.

The Board adopted the Administrative Law Judge’s conclusions that the Respondent did not violate Section 8(b)(4)(i) or (ii)(B) by displaying inflatable rats and stationary banners at the facilities of various persons with which it did not have a primary labor dispute or by ordering or directing employees of those persons not to perform work for the Charging Party.  The Board reversed the judge’s conclusions that the Respondent violated Section 8(b)(4)(i) and (ii)(B) and 8(b)(7)(C) by exhibiting secondary displays at two facilities in proximity to its lawful primary picketing of the Charging Party, and that it violated Section 8(b)(4)(ii)(B) by subsequently threatening to resume picketing at one of these facilities.

Charges filed by Donegal Services, LLC, and Ross Builders, Inc.  Administrative Law Judge Kimberly Sorg-Graves issued her decision on December 13, 2019.  Chairman McFerran and Members Kaplan and Ring participated.

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Kava Holdings, LLC, et al. d/b/a Hotel Bel Air (Kava II)  (31-CA-074675; 371 NLRB No. 27)  Los Angeles, CA, September 30, 2021.

In Kava Holdings, LLC, et al. d/b/a Hotel Bel Air (Kava I), 370 NLRB No. 73 (2021), the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by refusing to rehire 152 unit employees who were laid off when the hotel closed for renovations and who reapplied for their positions when the hotel reopened.  The judge, however, granted remedial relief to 139 unit employees, who were identified by the General Counsel by the close of the hearing.  The Board severed and remanded to the judge the issue of whether the other 13 unit employees should also be granted remedial relief.  Following reconsideration of this issue by the judge, the Board granted remedial relief to the 13 unit employees, provided the General Counsel identifies those additional unit employees, or any subset thereof, during compliance proceedings.

Charge filed by UNITE HERE Local 11.  Administrative Law Judge Lisa D. Ross issued her supplemental decision on June 17, 2021.  Chairman McFerran and Members Kaplan and Ring participated.

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Jam Productions, Ltd., Event Productions, Inc., Standing Room Only, Inc., and Victoria Operating Co., a single employer  (13-RC-160240; 371 NLRB No. 26) Chicago, IL, September 30, 2021.

On remand from the Seventh Circuit, the Board affirmed the Regional Director’s Supplemental Decision and Certification of Representative overruling the Employer’s objection alleging that the Petitioner granted job referrals to certain employees to induce their support in the election.  The Board found that, despite having ample opportunity to develop a factual record to support its objection upon remand to the Regional office, the Employer failed to meet its burden to prove that objectionable conduct occurred as alleged.  The Petitioner’s actions in referring certain voters for work via its non-exclusive hiring hall—for which the voters were already eligible, irrespective of the election—did not constitute a gratuitous grant of benefits under relevant Board and Seventh Circuit precedent.  And to the extent that the increases in referrals, which occurred during the relevant critical period, may have raised an inference of coercive timing under B & D Plastics, Inc., 302 NLRB 245 (1991), the Petitioner had given alternative explanations sufficient to rebut any such inference.  

Petitioner—Theatrical Stage Employees Union Local No. 2, I.A.T.S.E.  Chairman McFerran and Members Kaplan and Ring participated.

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Zacatacos Incorporated  (13-CA-261409 and 13-CA-261410; 371 NLRB No. 29)  Chicago, IL, September 30, 2021.

On limited exceptions not challenging the Administrative Law Judge’s conclusion that the Respondent had violated Section 8(a)(1) by discharging two employees for concertedly complaining about their work hours, the Board granted the General Counsel’s exception regarding the Board’s standard remedial language and corrected and updated the order and notice.  The Board denied the Respondent’s exception that the judge had not addressed backpay mitigation, an issue that is properly addressed in compliance proceedings.

Charges filed by an individual.  Administrative Law Judge Arthur J. Amchan issued his decision on June 23, 2021.  Members Ring, Wilcox, and Prouty participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Troy Grove Quarry, a Division of RiverStone Group, Inc., Vermilion Quarry, a Division of Riverstone Group, Inc.  (25-RD-269960)  Oglesby, IL, September 28, 2021.  The Board granted, in part, the Union’s Request for Review of the Regional Director’s Decision on Challenged Ballots and Objections, Order Directing Hearing and Notice of Hearing on Challenged Ballots and Objections.  The Board directed the Regional Director to open and count a challenged voter’s original ballot, which bore the earlier Regional Office date stamp, even though that voter also submitted a duplicate ballot in an envelope not containing a postmark.  The Board further reversed the Regional Director’s decision to hold a hearing with respect to potential ballot collection, as that objection related solely to the duplicate ballot without a postmark, which would not be counted.  The Board denied review in all other respects.  Petitioner—an individual. Union—International Union of Operating Engineers, Local 150, AFL-CIO.  Chairman McFerran and Members Kaplan and Ring participated.

Troy Grove Quarry, a Division of RiverStone Group, Inc., Vermilion Quarry, a Division of Riverstone Group, Inc.  (25-RD-269960)  Oglesby, IL, September 28, 2021.  The Board granted the Employer’s Request for Review of the Regional Director’s Supplemental Order Granting Union’s Request to Block Further Processing of Petition as it raised substantial issues warranting review.  The Board found that, under the Election Protection Rule, the Regional Director was obligated to continue processing the petition up to the point at which a certification would otherwise issue.  If, at that point, the charges remain pending, the Regional Director should hold the petition in abeyance pending a final disposition of the charges; if the charges reach final disposition in the interim, the Regional Director may determine the effect of the charges on the petition, if any, and proceed accordingly.  Petitioner—an individual.  Union—International Union of Operating Engineers, Local 150, AFL-CIO.  Chairman McFerran and Members Kaplan and Ring participated.

Ohio River Valley Environmental Coalition, Inc.  (09-RC-276218)  Huntington, WV, September 28, 2021.  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 Regional Director had concluded that the Director of Organizing was not a supervisor under Section 2(11) of the Act.  Petitioner—OVEC Union a/w with the Industrial Workers of the World.  Chairman McFerran and Members Kaplan and Ring participated.

Sysco Central California, Inc.  (32-RC-272441)  Modesto, CA, September 28, 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.  The Board found no merit in the Employer’s allegations that the petitioned-for unit was inappropriate and that the Regional Director denied it due process.  Chairman McFerran noted her dissent from the Board’s decision in PCC Structurals, Inc., 365 NLRB No. 160 (2017), but found that the petitioned-for unit would be appropriate under Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), which PCC overruled.  Members Ring and Kaplan noted that the record indicated that the petitioned-for unit fell within the Employer’s own administrative/operational lines and that interchange between the included and excluded employees was minimal.  Regarding the holding of the election by mail ballot, the Board found that the Regional Director had erred in finding that the mere presence of two variants of the COVID-19 virus satisfied the Board’s guidelines set out in Aspirus Keweenaw, 370 NLRB No. 45 (2020).  Nonetheless, the Board denied review because current pandemic conditions in the location of the workplace support holding a mail ballot election and because setting the election aside would have deleterious consequences.  Chairman McFerran noted her disagreement with the Board’s decision in Aspirus.  Petitioner—Teamsters Union Local 386, International Brotherhood of Teamsters.  Chairman McFerran and Members Kaplan and Ring participated.

Kandor Manufacturing, Inc.  (12-RC-277990)  Arecibo, PR, September 29, 2021.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Order Denying Request to Reschedule Hearing as it raised no substantial issues warranting review, and denied the Employer’s request for extraordinary relief as moot.  Petitioner—Laborers’ International Union of North America (LIUNA), District Council of Puerto Rico, AFL-CIO.  Chairman McFerran and Members Kaplan and Ring participated.

C Cases

powerHouse Cultural Entertainment, Inc.  (29-CA-271135 and 29-RC-271113)  Brooklyn, NY, September 28, 2021.  No exceptions having been filed to the August 10, 2021 decision of Administrative Law Judge Benjamin W. Green’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 Book Workers United.

NRT Bus, Inc.  (01-CA-268388)  Hudson, MA, September 28, 2021.  No exceptions having been filed to the August 12, 2021 decision of Administrative Law Judge Robert A. Ringler’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 International Brotherhood of Teamsters, Local 170.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

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, September 27, 2021.  Errata to Administrative Law Judge Michael A. Rosas’ decision of September 16, 2021.  Errata   Amended Decision.

Tracy Auto, L.P., d/b/a Tracy Toyota  (32-CA-260614, et al.; JD(SF)-18-21)  Tracy, CA.  Administrative Law Judge Mara-Louise Anzalone issued her decision on September 27, 2021.  Charges filed by Machinists and Mechanics Lodge No. 2182, District Lodge 190, International Association of Machinists and Aerospace Workers, AFL-CIO.

Southwest Displays & Events d/b/a SWXGlobal Design & Production  (16-CA-264618; JD-63-21)  Carrollton, TX.  Administrative Law Judge Arthur J. Amchan issued his decision on September 27, 2021.  Charge filed by Central South Carpenters Regional Council, Carpenters Local Union 429.

IATSE, Local 16  (20-CB-252132; JD(SF)-17-21)  San Francisco, CA.  September 29, 2021.  Errata to Administrative Law Judge Lisa D. Ross’ decision of September 24, 2021.  Errata   Amended Decision.

Cabell Huntington Hospital, Inc.  (09-CA-263390; JD-64-21)  Huntington, WV.  Administrative Law Judge Christine E. Dibble issued her decision on September 30, 2021.  Charge filed by Service Employees International Union (SEIU), District 1199, WV/KY/OH.

Arbah Hotel Corp., d/b/a Meadowlands View Hotel  (22-CA-257539 and 22-CA-259975; JD(NY)-11-21)  Newark, NJ.  Administrative Law Judge Jeffrey P. Gardner issued his decision on September 30, 2021.  Charges filed by New York Hotel and Motel Trades Council, AFL-CIO.

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