Summary of NLRB Decisions for Week of August 17 - 21, 2020
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
XPO Cartage, Inc. (21-CA-150873, et al.; 370 NLRB No. 10) Commerce, CA, August 20, 2020.
The Board granted the Respondent’s request for permission to file a special appeal of the Administrative Law Judge’s order requiring that the supplemental hearing in this case be conducted by videoconference hearing, but denied the appeal on the merits. Citing William Beaumont Hospital, 370 NLRB No. 9 (2020), the Board found that the Respondent failed to establish that conducting the hearing by videoconference would deny it due process. The Board further found that a party may raise any non-speculative concerns that arise during the video hearing to the judge in the first instance, without prejudice to its right to file exceptions with the Board to any adverse rulings.
Charges filed by International Brotherhood of Teamsters. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Antioch Tire, Inc. d/b/a TredRoc Tire Services (13-RC-263043) Elk Grove Village, IL, August 19, 2020. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Board also denied the Employer’s Request for Immediate Stay of Mail Ballot Election as moot. The Employer had asserted that the Acting Regional Director abused his discretion by ordering a mail-ballot election due to circumstances related to the COVID-19 pandemic and that the scheduling of the election interfered with its free-speech rights by denying it time to hold group meetings with employees. In finding that a mail-ballot election is warranted, the Board relied on the extraordinary circumstances resulting from the COVID-19 pandemic and noted that it would continue to consider whether to hold manual elections based on the circumstances prevailing in the relevant Board region, including the suggested protocols set forth in the General Counsel’s recent Memorandum 20-10. The Board stated that it is open to addressing the normal criteria for mail balloting in a future appropriate proceeding. Petitioner—Local Lodge 701, International Association of Machinists & Aerospace Workers, AFL-CIO. Chairman Ring and Members Kaplan and Emanuel participated.
Daylight Transport, LLC (31-RC-262633) Fontana, CA, August 19, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election (ordering a mail-ballot election due to the circumstances related to the COVID-19 pandemic) as it raised no substantial issues warranting review and further denied the Employer’s request for a stay of the election as moot. Petitioner—Teamsters Local 63. Chairman Ring and Members Kaplan and Emanuel participated.
C Cases
United Government Security Officers of America, Local 171 (Paragon Systems, Inc.) (22-CB-212804, et al.) Newark, NJ, August 20, 2020. The Board approved a formal settlement stipulation between the Respondents, the Charging Parties, and the General Counsel and specified actions the Respondents must take to comply with the Act. The complaint had alleged Section 8(b)(1)(A) violations. Charges filed by individuals. Chairman Ring and Members Kaplan and Emanuel participated.
LV CHC Holdings I, LLC d/b/a Consulate Health Care, etc. (12-CA-249715 and 12-CA-250209) Maitland, FL, August 20, 2020. The Board denied the Respondents’ Motion to Dismiss the Consolidated Complaint and to Defer the charges to the parties’ contractual grievance and arbitration procedure. The denial was without prejudice to the Respondents’ right to renew its deferral arguments to the Administrative Law Judge, after presenting evidence, and to raise the deferral issue before the Board on exceptions, if appropriate. Charges filed by 1199 SEIU, United Health Care Workers East, Florida Region and United Food and Commercial Workers Union, Local 1625. Chairman Ring and Members Kaplan and Emanuel participated.
National Association of Letter Carriers, Branch 343 (United States Postal Service) (14-CB-246743) St. Louis, MO, August 21, 2020. No exceptions having been filed to the July 6, 2020 decision of Administrative Law Judge Christine E. Dibble’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. Charge filed by an individual.
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Appellate Court Decisions
Ports America Outer Harbor, LLC, Currently Known as Outer Harbor Terminal, LLC, Board Nos. 32-CA-110280 and 32-CB-118735 (reported at 366 NLRB No. 76) (D.C. Cir. decided under the name International Longshore & Warehouse Union v. NLRB, August 21, 2020).
In a published opinion, the Court granted the petition filed by the International Longshore & Warehouse Union for review of the Board’s order which, in part, issued against the Union for violating Section 8(b)(1)(A) and (2). Among other determinations, the Board (Members Pearce, Kaplan, and Emanuel) found that, in 2013, the ILWU unlawfully accepted assistance and recognition as the representative of a unit of mechanics employed by Ports America Outer Harbor, LLC, at the Port of Oakland, California. Previously, under the predecessor to Ports America, the mechanics had been represented by International Association of Machinists & Aerospace Workers District Lodge 190, East Bay Automotive Machinists Lodge No. 1546, International Association of Machinists and Aerospace Workers, AFL/CIO-CLC.
In 2015, in a prior case involving the lengthy dispute between ILWU and the Machinists over representation of the mechanics unit, the Board (Chairman Pearce and Members Hirozawa and McFerran) found, in relevant part, that the Employer, which was a successor to a prior port operator, unlawfully withdrew recognition from the Machinists and recognized ILWU, and in turn, that ILWU violated Section 8(b)(1)(A) and (2) by accepting recognition at a time when it did not represent a majority of unit mechanics. On review, the D.C. Circuit agreed that the Employer had a duty to bargain with the Machinists. In doing so, the Court commented that any impermissible changes made unilaterally by the successor, which were cited by the ILWU in support of its position, should not be considered in determining the appropriateness of the unit because to hold otherwise would allow “the employer to benefit from its own unlawful conduct.” ILWU v. NLRB, 890 F.3d 1100 (D.C. Cir. 2018), enforcing PCMC/Pacific Crane Maintenance Company, Inc., 362 NLRB 988 (2015).
In the instant case, the Board relied in large part on the Court’s decision in ILWU v. NLRB, to find Ports America was a successor employer who had a duty to recognize and bargain with IAM, not ILWU. In finding the ILWU committed unfair labor practices, the Board affirmed the Administrative Law Judge’s procedural rulings that precluded ILWU from presenting evidence that the historical unit had been accreted into ILWU’s coast-wide unit, that ILWU held the uncoerced majority support of unit employees, and that Ports America had a good-faith doubt as to IAM’s continuing majority status—all matters that could have called into question Ports America’s duty to recognize IAM under the principles of NLRB v. Burns Security Services, 406 U.S. 272 (1972).
On review, the Court agreed that the Board had arbitrarily refused to consider ILWU’s arguments that the past bargaining unit was no longer appropriate. Although the Court acknowledged that the Board rightly will ignore workplace changes caused by a successor’s unfair labor practices in determining the appropriateness of a unit, the Court noted that here the Board extended that rule to ignore the unfair labor practices of the predecessor. The Court also stated that ILWU v. NLRB, upon which the Board relied, “d[id] not address whether an incoming employer may contest successorship obligations by citing workplace changes caused by unfair labor practices of the outgoing employer,” and that, unlike here, the successorship question had been resolved by stipulation. Concluding that the Board did not adequately explain its decision, the Court remanded the case for reconsideration, noting that the Board remains free to consider the various open issues and arguments remaining in this case.
Lastly, the Court rejected the ILWU’s attempt to challenge the Board’s refusal to set aside a partial settlement among the Machinists, Ports America, and another terminal services company. The Court held that ILWU lacked Article III standing to challenge a settlement to which it was not a party, that the settlement had not impaired ILWU’s defense, and in any event, the intervening distribution of funds mooted any objection to the settlement.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Fox Television Stations, LLC (02-CA-024371; JD(NY)-08-20) New York, NY. Administrative Law Judge Lauren Esposito issued her decision on August 20, 2020. Charge filed by Television Broadcasting Studio Employees Union, Local 794, I.A.T.S.E.
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