Summary of NLRB Decisions for Week of November 16 - 20, 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
DFWS, Inc. d/b/a The Guild San Jose (32-CA-261075; 370 NLRB No. 47) San Jose, CA, November 20, 2020.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the basis that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.
Charge filed by United Food and Commercial Workers Union, Local 5. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Milwaukee Art Museum, Inc. (18-RC-265466) Milwaukee, WI, November 16, 2020. 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. Petitioner—District Lodge 10, International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman Ring and Members Kaplan and McFerran participated.
Union Tank Car Company (12-RC-221465) Valdosta, GA, November 18, 2020. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Second Election by Mail Ballot as it raised no substantial issues warranting review. Applying the factors set forth in Aspirus Keweenaw, 370 NLRB No. 45 (2020), to the conditions prevailing at the time the Regional Director made his determination, the Board found that the Regional Director did not abuse his discretion in ordering a mail-ballot election here. Member McFerran agreed to deny the Employer’s Request for Review and Motion to Stay for the reasons given in her separate opinion in Aspirus, but further agreed that, even under the majority opinion in Aspirus, the request and motion should be denied. Petitioner—International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART). Chairman Ring and Members Emanuel and McFerran participated.
Ecolab Production LLC (16-RC-264667) Garland, TX, November 18, 2020. On review, the Board remanded this mail-ballot election case to the Regional Director to reconsider his mail-ballot determination based on the guidelines set forth in Aspirus Keweenaw, 370 NLRB No. 45 (2020), and in light of any changed circumstances. The Board also lifted the stay it had previously granted. Member McFerran separately noted that she adhered to her dissent from the Board’s earlier grant of a stay and review in this case because the Employer did not establish that the Regional Director abused his discretion in directing a mail-ballot election, but that she agrees this case should be remanded to the Regional Director to once again exercise his discretion to determine the appropriate manner of conducting the election. Petitioner—Retail, Wholesale, and Department Store Union. Chairman Ring and Members Kaplan, Emanuel, and McFerran participated.
Perdue Foods LLC d/b/a Draper Valley Farms (19-RC-263822) Chehalis, CA, November 18, 2020. The Board remanded this representation case to the Regional Director to reconsider his mail-ballot determination based on the COVID-19 pandemic-era guidelines recently set forth in Aspirus Keweenaw, 370 NLRB No. 45 (2020), and in light of any changed circumstances. The Board’s prior stay was lifted. Petitioner—Teamsters Local Union No. 252, a/w the International Brotherhood of Teamsters. Chairman Ring and Members Kaplan, Emanuel, and McFerran participated.
IKEA Distribution Services, Inc. (31-RC-266527) Lebec, CA, November 18, 2020. The Board denied the Employer’s Motion for Stay of Election regarding the Regional Director’s direction of a mail-ballot election. The Board stated that it was not ruling at this time on the Employer’s Request for Review of the Regional Director’s determination of the appropriate unit. Petitioner—United Maintenance Technicians of Tejon. Chairman Ring and Members Kaplan and McFerran participated.
C Cases
Full-Fill Industries, LLC (25-CA-249830, et al.) Henning, IL, November 17, 2020. The Board denied the Respondent’s Motion to Dismiss the Consolidated Complaint on the basis that the Respondent failed to demonstrate that the consolidated complaint fails to state a claim upon which relief can be granted. The Board found the Respondent’s alternative request for a more definite complaint was not properly before the Board. Charges filed by International Brotherhood of Electrical Workers, Local Union 538. Chairman Ring and Members Emanuel and McFerran participated.
AT&T Services, Inc. (07-CA-228413) Southfield, MI, November 20, 2020. The Board granted the Motion to Intervene filed by Communication Workers of America, AFL-CIO/CLC (CWA) and denied CWA’s Motion to Remand and Reopen the Record. The Board found that CWA did not identify any basis under Section 102.48(c) warranting reconsideration of the Board’s July 28, 2020 Order Approving Stipulation, Granting Motion, and Transferring Proceeding to the Board or reopening of the record. The Board also found that CWA failed to show that it has been prejudiced by the parties’ stipulations. Charge filed by an individual. Chairman Ring and Members Kaplan and Emanuel participated.
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Appellate Court Decisions
Bob’s Tire Co., 368 NLRB No. 33, Board Case No. 01-CA-183476 (D.C. Cir. decided November 20, 2020).
In a published opinion enforcing the Board’s order in full, the Court upheld the Board’s findings that the Employer unilaterally subcontracted bargaining unit work and that it unilaterally implemented and then discontinued a performance-based employee bonus program, all in violation of Section 8(a)(5) and (1).
With respect to the subcontracting, the Court found it “clear” from the record that the subcontracted work otherwise would have been performed by bargaining-unit employees; that the subcontracting did not reflect “a change in the scope and direction of [its] enterprise” over which the Employer was not required to bargain; and that the Employer’s claim that the layoff had no economic impact on existing unit members was beside the point because the absence of such impact would not vitiate the duty to bargain. The Court agreed with the Board and the Administrative Law Judge that “[a] bargaining unit is adversely affected whenever bargaining unit work is given away to nonunit employees regardless of whether the work would have been done by employees already in the unit or by employees who would have been hired into the unit.” The Court also questioned the factual basis for the Employer’s claim that employees were not harmed. Further, the Court rejected the Employer’s “specious claim” that it was a joint employer with the subcontractor and that the subcontractor’s workers should have been considered part of the bargaining unit.
In enforcing the Board’s order remedying changes to the bonus program, the Court explained that it was without jurisdiction to consider the Employer’s challenges because it had failed to dispute the ALJ’s unfair-labor-practice findings before the Board.
The Court’s decision may be found here.
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Administrative Law Judge Decisions
International Brotherhood of Teamsters, Local 251 (01-CB-219768, et al.; JD-47-20) Boston and Westborough, MA. Administrative Law Judge Elizabeth M. Tafe issued her decision on November 20, 2020. Charges filed by International Brotherhood of Teamsters, Local 25 and DHL Express (USA) Inc.
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