Summary of NLRB Decisions for Week of February 22 - 26, 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
Douglas Emmett Management, LLC (31-CA-206052 and 31-CA-211448; 370 NLRB No. 92) Woodland Hills, CA, February 23, 2021. Errata Amended Decision issued February 24, 2021.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by soliciting grievances and making unspecified threats of reprisal during the Union’s organizing campaign. Additionally, the Board adopted the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(3) and (1) by implementing lower annual wage and bonus amounts during the parties’ bargaining for a first contract. The Board also adopted the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(1) by a manager’s remarks during employees’ performance reviews that the wage and bonus amounts could change as the parties continued to bargain.
Charges filed by International Union of Operating Engineers, Local 501, AFL-CIO. Administrative Law Judge Jeffrey D. Wedekind issued his decision on August 27, 2019. Chairman McFerran and Members Kaplan and Emanuel participated.
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Indiana Bell Telephone Company, Inc. (25-CA-218494; 370 NLRB No. 93) Indianapolis, IN, February 25, 2021.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by enforcing its appearance guidelines to ban the wearing of union buttons during collective bargaining. The Board rejected the Respondent’s argument that special circumstances justified enforcing its ban. Member Emanuel would also find that the Respondent lost its contractual right to ban buttons when it agreed to delete certain language from the guidelines in 2016. A Board majority (Members Emanuel and Ring; Member Kaplan, dissenting) reversed the judge’s finding, on due process grounds, that the Respondent unlawfully maintained the ban on union buttons in its appearance guidelines.
Charge filed by Communications Workers of America, Local 4900. Administrative Law Judge Michael A. Rosas issued his decision on September 17, 2019. Members Kaplan, Emanuel, and Ring participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Stericycle, Inc. (04-RC-260851) Wilkes Barre, PA, February 22, 2021. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election and the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. Petitioner—International Association of Sheet Metal, Air, Rail and Transportation Workers, Local Union #44. Chairman McFerran and Members Emanuel and Ring participated.
MidMichigan Medical Center – West Branch (07-RD-270474) West Branch, MI, February 25, 2021. The Board denied the Union’s Request for Extraordinary Relief. Union—SEIU Healthcare Michigan. Petitioner—an individual. Chairman McFerran and Members Emanuel and Ring participated.
Conco Quarries, Inc. (14-RC-267769) Springfield, MO, February 26, 2021. 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. Petitioner—Heavy Construction Laborers’ Local #663, a/w Laborers’ International Union of North America. Chairman McFerran and Members Emanuel and Ring participated.
C Cases
Cal Cartage Transportation Express, LLC (21-CA-247884) Wilmington, CA, February 24, 2021. The Board denied the Respondent’s Motion for Summary Judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. The Board also found that the Respondent failed to establish that summary judgment and dismissal of the complaint is appropriate because the alleged conduct was de minimis. Charge filed by International Brotherhood of Teamsters. Chairman McFerran and Members Emanuel and Ring participated.
Purple Communications, Inc. and its Successor and Joint Employer CSDVRS, LLC d/b/a ZVRS (21-CA-149635, et al.) Tempe, AZ, Denver, CO, and Oakland and San Diego, CA, February 24, 2021. The Board denied the Respondent’s Motion to Modify the Board’s Remedial Order in the Decision and Order reported at 370 NLRB No. 26 (2020). The Board found that the record did not support the Respondent’s claims and that, to the extent the Respondent requested to reopen the record to introduce additional evidence, its motion was untimely. Charges filed by Pacific Media Workers Guild, Local 39521, the Newspaper Guild, Communications Workers of America, AFL–CIO. Chairman McFerran and Members Kaplan and Ring participated.
Pro Custom Solar LLC d/b/a Momentum Solar ( 22-CA-254647) South Plainfield, NJ, February 26, 2021. The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s Order denying its motion for a bill of particulars. The Board found that the Respondent failed to establish that the judge abused her discretion in denying the motion. Charge filed by individuals. Chairman McFerran and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
National Hot Rod Association (NHRA), Board No. 29-CA-254128 (reported at 369 NLRB No. 60) (D.C. Cir. decided February 23, 2021).
In a published opinion, the Court granted the petition for review filed by this telecast producer of the Mello Yello Drag Racing Series after its production-crew employees working at remote locations voted in a mail-ballot election to determine whether they wished to be represented by the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, AFL-CIO. In granting the petition for review, and denying enforcement of the Board’s bargaining order, the Court concluded that the Board’s processing of the mail ballots prevented at least one of the unit employees from possibly casting the determinative vote in the close election.
In the underlying representation case, the Union petitioned to represent the employees in October 2016. Thereafter, the parties entered into a stipulated election agreement, which provided specific requirements for processing the mail-ballot election, which included procedures for employees to obtain duplicate ballots if they did not receive the original mailed ballot, and a specified time for the regional office to count the ballots received. The resulting amended tally of ballots showed 35 votes cast for representation, and 34 against, with two challenged ballots remaining determinative of the election outcome.
The Employer filed objections to the election alleging that four employees were denied the opportunity to vote due to purported flaws in the regional office’s handling of the election. Meanwhile, a complaint issued against the Employer alleging that it had committed unfair labor practices, which included two unlawful discharges. The Regional Director consolidated the cases, which went to hearing before an Administrative Law Judge, who issued a decision recommending that the Board overrule the objections and certify the Union. On exceptions, in July 2019, the Board (Chairman Ring and Members Kaplan and Emanuel) agreed with the judge’s recommendation to overrule the exceptions, and, noting the parties had resolved the remaining issues, certified the Union. Specifically, the Board agreed with the judge that the Employer “presented insufficient evidence to support its claims of Board agent misconduct in the handling of the mail ballot election.” Subsequently, the Employer refused to bargain in order to seek court review.
On review, the Court stated that the record showed that several employees did not receive ballots and requested replacements, and among those, at least three employees either did not return a ballot or returned a ballot after the count had taken place. Noting that “under the Board’s standard, it is only necessary for a challenger to an election to establish that it was possible for a Board irregularity to have caused a different voting result,” the Court held that the Employer met that burden.
The Court’s opinion may be found here.
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Administrative Law Judge Decisions
11 West 51 Realty LLC d/b/a The Jewel Facing Rockefeller Center (02-CA-256884; JD(NY)-03-21) New York, NY. Administrative Law Judge Benjamin W. Green issued his decision on February 25, 2021. Charge filed by New York Hotel and Motel Trades Council, AFL-CIO.
The Painting Contractor, LLC (09-CA-248716 and 09-CA-250898; JD-05-21) Cincinnati, OH. Administrative Law Judge Geoffrey Carter issued his decision on February 26, 2021. Charges filed by International Union of Painters and Allied Trades, AFL-CIO, CLC District Council 6.
International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), AFL-CIO (FCA US LLC) (07-CB-213726, et al.; JD-06-21) Detroit, MI. Administrative Law Judge Charles J. Muhl issued his decision on February 26, 2021. Charges filed by individuals.
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