Summary of NLRB Decisions for Week of February 8 - 12, 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
Rieth-Riley Construction Co. (07-RD-257830; 370 NLRB No. 85) Wyoming, MI, February 8, 2021.
The Board (Members Kaplan, Emanuel, and Ring; Chairman McFerran, dissenting) granted the Employer’s and Petitioner’s Requests for Review of the Regional Director’s Decision and Order and Supplemental Decision and Order as they raised substantial issues warranting review. Chairman McFerran would have denied the Requests for Review because the Board’s prior blocking-charge policies should apply to the petitions, or, alternatively, because the Regional Director’s dismissal appears to be consistent with the Board’s policies and procedures.
Petitioner—an individual. Union—Local 324, International Union of Operating Engineers (IUOE), AFL-CIO. Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.
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Cascades Containerboard Packaging—Niagara, a Division of Cascades Holding US Inc. (03-CA-242367, et al.; 370 NLRB No. 76) Niagara Falls, NY, February 9, 2021.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by unilaterally laying off employees for two weeks, unilaterally subcontracting unit janitorial work, unilaterally changing the manner in which it calculated profit-sharing-plan payments and reducing the amount of the June or July 2019 payments to unit employees, and failing to provide the Union with requested information regarding the profit-sharing plan. Further, the Board adopted the judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by reducing the June or July 2019 profit-sharing-plan payments and ceasing to share monthly profit information with employees, and violated Section 8(a)(1) by telling employees that the profit-sharing payments had been reduced and changed because of the union situation at the facility.
Regarding the backpay remedy, the Board ruled that, in addition to the backpay-allocation report already required to be furnished to the Regional Director under AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent must file with the Regional Director a copy of each backpay recipient’s corresponding W-2 form(s) reflecting the backpay award. The Board explained that the requested remedy of furnishing appropriate W-2 forms to the Regional Director is warranted and will effectuate the purposes of the Act. The Board further stated that it will award this remedy in all pending and future cases that require a respondent employer to make one or more employees whole.
Charges filed by International Association of Machinists and Aerospace Workers, District Lodge 65, AFL-CIO. Administrative Law Judge Paul Bogas issued his decision on March 17, 2020. Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.
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Swyear Amusements, Inc. (01-CA-130018; 370 NLRB No. 82) New Athens, IL, February 9, 2021.
The Board granted the General Counsel’s Motion for Summary Judgment based on the Respondent’s failure to file a sufficient answer to the compliance specification’s allegations. Accordingly, the Board ordered the Respondent to pay the discriminatees the backpay amounts owed as alleged in the compliance specification.
Charge filed by Comite de Apoyo a los Trabajadores Agricolas (CATA). Chairman McFerran and Members Emanuel and Ring participated.
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All Steel Iron Works, Inc. (13-CA-261682; 370 NLRB No. 81) Bedford Park, IL, February 9, 2021.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union, and by failing and refusing to furnish the Union with requested relevant and necessary information.
Charge filed by Iron Workers Regional Local No. 853. Chairman McFerran and Members Kaplan and Emanuel participated.
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Phoenix New Times, LLC (28-RC-254936; 370 NLRB No. 84) Phoenix, AZ, February 10, 2021.
The Board granted in part the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and found, contrary to the Regional Director, that the petitioned-for Fellows are temporary employees who may not be appropriately included in the unit. The Board denied the Request for Review in all other respects.
Petitioner—The NewsGuild, CWA. Members Kaplan, Emanuel, and Ring participated.
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CP Anchorage Hotel 2, LLC, d/b/a Hilton Anchorage(19-CA-193656, et al.; 370 NLRB No. 83) Anchorage, AK, February 10, 2021.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by: unilaterally barring the Union’s interns from the Hilton Anchorage Hotel; failing to timely provide the Union with requested information; prematurely declaring a single-issue impasse over its proposal to change the union access provision in the parties’ expired collective-bargaining agreement to, among other things, eliminate the Union’s access to the employee cafeteria; unilaterally implementing its union access proposal in the absence of a valid impasse in the negotiations for a successor collective-bargaining agreement as a whole; failing and refusing to bargain in good faith with the Union for a successor collective-bargaining agreement; calling the police to report trespass by the Union’s representatives when they continued to visit the employee cafeteria in accordance with the terms of the expired collective-bargaining agreement after the Respondent unilaterally implemented its access proposal; and bypassing the Union and engaging in direct dealing by soliciting unit employees’ grievances and impliedly promising to remedy them. The Board also adopted the judge’s dismissals of allegations that the Respondent engaged in unlawful surveillance and unilaterally changed terms and conditions of employment by increasing the number of managers in the employee cafeteria at times when union representatives were there meeting with unit employees, and violated Section 8(a)(4) by proposing to eliminate the Union’s access to the cafeteria in retaliation for the Union filing the unfair labor practice charge about the increased presence of managers in the cafeteria.
Charges filed by UNITE HERE! Local 878, AFL–CIO. Administrative Law Judge Andrew S. Gollin issued his decision on March 4, 2020. Chairman McFerran and Members Kaplan and Ring participated.
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SW Design School, LLC, d/b/a Interns4Hire.com, K-12 Coders, and SW Design School, L3C, a single integrated business enterprise and employer (05-CA-243576; 370 NLRB No. 77) Capitol Heights, MD, February 10, 2021.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee for challenging an unlawful rule that prohibited employees from discussing their wages. Instead of relying on precedent about discharges pursuant to unlawful rules, as the judge had, the Board reasoned that the employee’s discharge was at least partially motivated by his protected refusal to waive his rights and the Respondent offered no legitimate alternative.
Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on June 8, 2020. Members Kaplan, Emanuel, and Ring participated.
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Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery and FPR-II, LLC d/b/a Leadpoint Business Services (32-CA-160759 and 32-RC-109684; 370 NLRB No. 86) Milpitas, CA, February 11, 2021.
The Board (Members Kaplan and Ring; Chairman McFerran, dissenting) denied the Charging Party’s Motion for Reconsideration of the Board’s Supplemental Decision and Order, reported at 369 NLRB No. 139 (2020). The Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Chairman McFerran would have granted the Motion for Reconsideration.
Charge and Petition filed by Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters. Chairman McFerran and Members Kaplan and Ring participated.
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Medina General Construction, LLC(25-CA-224263 and 25-CA-225180; 370 NLRB No. 87) Lafayette, IN, February 11, 2021.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(1) by interrogating employees, and Section 8(a)(3) by discharging two employees because they engaged in union activities.
Charges filed by Laborers Local 645, a/w Laborers International Union of North America. Chairman McFerran and Members Emanuel and Ring participated.
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Tesla, Inc. (32-CA-197020, et al.; 370 NLRB No. 88) Fremont, CA, February 12, 2021.
The Board (Members Kaplan, Emanuel, and Ring; Chairman McFerran, dissenting) issued a Notice and Invitation to File Briefs, inviting the parties and interested amici to file briefs addressing the following questions: (1) Does Stabilus, Inc., 355 NLRB 836 (2010), specify the correct standard to apply when an employer maintains and consistently enforces a nondiscriminatory uniform policy that implicitly allows employees to wear union insignia (buttons, pins, stickers, etc.) on their uniforms; and (2) if Stabilus does not specify the correct standard to apply in those circumstances, what standard should the Board apply? In dissent, Chairman McFerran stated that she sees no need to revisit Stabilus. The parties and amici may file briefs with the Board by March 15, 2021; parties may file responsive briefs by March 30, 2021.
Charges filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL–CIO, and individuals. Chairman McFerran and Members Kaplan, Emanuel, and Ring participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
NP Lake Mead LLC d/b/a Fiesta Henderson Casino Hotel (28-RC-245493) Henderson, NV, February 12, 2021. The Board denied the Employer’s Request for Review of the Regional Director’s Order Denying Motions to Dismiss Petition and Postpone Hearing Indefinitely as it raised no substantial issues warranting review. In this regard, the Board noted that the case was distinguishable from the Board’s decision in NP Texas LLC d/b/a Texas Station Gambling Hall and Hotel, 370 NLRB No. 11 (2020), because in NP Lake Mead, the election had already occurred before the Employer laid off its entire complement of employees. The Board also declined to dismiss the petition under its cessation-of-operations precedent because there was no evidence that the Employer’s closure was permanent or definite. Petitioner—Local Joint Executive Board of Las Vegas a/w UNITE HERE International Union. Chairman McFerran and Members Kaplan and Ring participated.
Dillon Companies, Inc. d/b/a King Soopers (27-RC-264824) Loveland, CO, February 12, 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 petitioned-for unit employees share a sufficient community of interest with employees in the existing bargaining unit and directed an Armour-Globe self-determination election. Petitioner—United Food and Commercial Workers International Union, Local 7. Chairman McFerran and Members Emanuel and Ring participated.
C Cases
Lehigh University (04-CA-243399 and 04-CA-247234) Bethlehem, PA, February 11, 2021. The Board granted the General Counsel’s Request for Special Permission to Appeal and found, on the merits, that the Deputy Chief Administrative Law Judge abused his discretion by approving a formal settlement agreement between the Respondent and the Charging Party without permitting the General Counsel to review it and by remanding the proceeding to the Regional Director after approving the withdrawal of the charges and the dismissal of the complaint, with no direction concerning the purpose of the remand. The Board remanded the proceeding to the judge for further appropriate action. Charges filed by an individual. Chairman McFerran and Members Emanuel and Ring 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
Coreslab Structures (Tulsa) Inc. (14-CA-248354 and 14-CA-248812; JD-4-21) Tulsa, OK. Administrative Law Judge Robert A. Ringler issued his decision on February 11, 2021. Charges filed by International Union of Operating Engineers, Local 627, AFL-CIO.
NBCUniversal Media, LLC (02-CA-262640; JD(NY)-02-21) New York, NY. Administrative Law Judge Kenneth W. Chu issued his decision on February 12, 2021. Charge filed by NewsGuild of New York, Local 31003, TNG/CWA.
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