Summary of NLRB Decisions for Week of July 25 - 30, 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
Northwestern Corporation d/b/a Northwestern Energy (19-UC-261685; 371 NLRB No. 12) Butte, MT, July 27, 2021.
On review, the Board reversed the Regional Director’s Decision and Order Clarifying Unit and dismissed the petition seeking to clarify the existing unit to include those employees working in the newly-created controller position at the centralized control facility. The Regional Director, applying the principles articulated in Premcor, Inc., 333 NLRB 1365 (2001), had found that, because the controllers perform the “same basic functions” historically performed by unit employees (i.e., the Outage Management System (“OMS”) dispatchers), they should be included in the unit. In reversing and dismissing, the Board found that Premcor and its progeny do not support clarifying the unit to include controllers, noting that the two distinct job classifications use different technology, receive different training, and have contrasting degrees of decision-making authority. In these circumstances, the Board found that the controller position does not perform the same basic functions as the OMS dispatcher position, despite some broad job similarities.
Petitioner—International Brotherhood of Electrical Workers, Local 44. Members Kaplan, Emanuel, and Ring participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
Cascades Containerboard Packaging – Piscataway, a Division of Cascades Holdings US Inc. (22-CA-240134, et al.) Piscataway, NJ, July 27, 2021. No exceptions having been filed to the June 15, 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. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO/CLC.
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Appellate Court Decisions
Alaska Communications Systems Holdings, Inc., Board Case No. 19-CA-241609 (reported at 369 NLRB No. 17) (D.C. Cir. July 30, 2021).
In a published opinion in this test-of-certification case, the Court enforced the Board’s bargaining order that issued against this telecommunications provider that operates in Alaska from its headquarters in Anchorage, and has a facility in Hillsboro, Oregon. In 2018, its cable operations and maintenance employees who work in Oregon, and two who work in Alaska, voted 9-4 in a self-determination election to join the existing Alaska bargaining unit represented by the International Brotherhood of Electrical Workers, Local 1547, AFL-CIO. In enforcing the Board’s order, the Court upheld the Board’s determinations that employees in the voting group shared a community of interest with the Alaska unit, and that the Board did not abuse its discretion by including in the voting group the two employees based in Alaska whom the Union had not petitioned to represent.
In the underlying representation case, the Union filed a petition seeking an Armour-Globe, self-determination election among the Oregon employees to determine whether they wished to be represented by the Union, and whether they wished to be included in the existing Alaska unit. Among other contentions, the Employer opposed the petition by arguing that the employees lacked a community of interest with the Alaska unit, and elicited testimony at the hearing suggesting that the petitioned-for unit would be inappropriate without the inclusion of the two Alaska-based employees. The Regional Director issued a decision determining that the petitioned-for employees constituted an appropriate voting group for a self-determination election, and that they share a community of interest with the Alaska unit. Assessing the evidence that the Employer provided at hearing regarding the two employees based in Alaska, the Regional Director found that they should be added to the voting group. The Regional Director then directed an election, and the Employer filed a Request for Review, which was denied by the Board (then-Chairman Ring and Members Kaplan and Emanuel). After the employees voted in favor of representation, and for inclusion in the Alaska unit, the Regional Director certified the Union. Thereafter, the Employer refused to bargain in order to seek court review.
On review, the Court held that the Board “permissibly adjusted the composition of the voting group and permissibly determined that the group shares a community of interest with the preexisting bargaining unit it voted to join.” On the inclusion of the two Alaska employees, the Court stated that “the Act calls for the Board, not the parties, to ‘decide in each case’ a ‘unit appropriate for the purposes of collective bargaining,” quoting Section 9(b) of the Act. Rejecting the Employer’s contention that it suffered a violation of due process, the Court explained that a representation hearing is a non-adversarial proceeding that is “designed primarily to enable the Board to fulfill its statutory function with respect to the certification of bargaining representatives.” In that setting, the Court stated, “the Board was not obligated to provide explicit notice to the [employer] of every possible alternate unit it might consider, especially when the [employer] itself introduced evidence relating to the alternate unit ultimately chosen by the Board.” Regarding the community-of-interest finding, the Court rejected the Employer’s evidentiary challenges and held that the Board “appropriately considered the full record in concluding that the voting group shares a community of interest with the existing bargaining unit, and the Board took account of evidence that tended to cut against its finding.” The Court therefore held that the Board’s determination was supported by substantial evidence.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Barons Bus, Inc. (09-CA-266622 and 09-CA-269462; JD-41-21) Middletown, OH. Administrative Law Judge Geoffrey Carter issued his decision on July 26, 2021. Charges filed by Eastern States Joint Board, Local 322, AFL-CIO.
Willamette Valley Medical Center (19-CA-265597; JD(SF)-13-21) McMinnville, OR. Administrative Law Judge Eleanor Laws issued her decision on July 26, 2021. Charge filed by Oregon Nurses Association.
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 14581 (Central Bridge Co., LLC) (09-CB-255776; JD-40-21) Jackson and Owsley Counties, KY. Administrative Law Judge Paul Bogas issued his decision on July 27, 2021. Charge filed by an individual.
American Postal Workers Union, Local 4321 (United States Postal Service) (05-CB-265030; JD-42-21) Washington, DC. Administrative Law Judge Arthur J. Amchan issued his decision on July 27, 2021. Charge filed by an individual. July 29, 2021 Errata to the July 27, 2021 decision. Errata Amended Decision.
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