Summary of NLRB Decisions for Week of November 9 - 13, 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
New York Paving, Inc. (29-CA-233990 and 29-CA-234894; 370 NLRB No. 44) Long Island City, NY, November 9, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by transferring bargaining unit work to non-unit employees without providing the Union with notice and an opportunity to bargain. The Board found this violation based on the Respondent’s past practice without relying on the collective-bargaining agreement between the Respondent and the Union.
Charges filed by Construction Council Local 175, Utility Workers Union of America, AFL-CIO, and an individual. Administrative Law Judge Lauren Esposito issued her decision on January 27, 2020. Members Kaplan, Emanuel, and McFerran participated.
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Michael Cetta, Inc. d/b/a Sparks Restaurant (02-CA-142626 and 02-CA-144852; 370 NLRB No. 46) New York, NY, November 9, 2020.
In this compliance case, the Board granted the General Counsel’s Motion for Partial Summary Judgment as to those paragraphs of the compliance specification that the Respondent either admitted or improperly failed to deny with the specificity required under the Board’s Rules and Regulations. The Board rejected the Respondent’s unsupported defense that it was precluded from accessing its facility for a period of time due to mandatory closures related to the COVID-19 pandemic.
Charges filed by United Food and Commercial Workers Local 342. Administrative Law Judge Lauren Esposito issued her decision on November 18, 2016. Chairman Ring and Members Kaplan and Emanuel participated.
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Aspirus Keweenaw (18-RC-263185; 370 NLRB No. 45) Calumet, MI, November 9, 2020.
In this decision on review, the full Board remanded the case to the Regional Director for application of the guidelines set forth in the decision. The Board reiterated its preference for manual elections but also outlined six situations resulting from the COVID-19 pandemic where a Regional Director should consider directing a mail-ballot election. Member McFerran concurred in the result but would adopt a default presumption that mail-ballot elections are appropriate until the pandemic is over and questions whether it is time to move beyond the Board’s preference for manual elections in general.
Petitioner—Michigan Nurses Association. Chairman Ring, Members Kaplan, Emanuel, and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
United States Postal Service (10-CA-223776) Ludowici, GA, November 10, 2020. No exceptions having been filed to the September 29, 2020 decision of Administrative Law Judge Michael A. Rosas’ 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. Charge filed by an individual.
Murray American Energy, Inc. and Monongalia County Coal Company (06-CA-254520) Brave, PA, November 10, 2020. No exceptions having been filed to the September 29, 2020 decision of Administrative Law Judge David I. Goldman’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. Charge filed by United Mine Workers of America, District 31, Local 1702, AFL-CIO, CLC.
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Appellate Court Decisions
Wyman Gordon Pennsylvania, LLC, Board Case No. 04-CA-182126 (reported at 368 NLRB No. 150) (D.C. Cir. decided November 13, 2020).
In an unpublished judgment, the Court enforced the Board’s order issued against this manufacturer of aircraft engine parts at its plant in Plains, Pennsylvania, for unfair labor practices committed while bargaining for a first contract after its production and maintenance employees voted in a May 2014 election to be represented by United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers Union, AFL-CIO-CLC. Specifically, the Board (Chairman Ring and Members McFerran and Emanuel) found that the Employer violated Section 8(a)(5) and (1) by unilaterally changing its past practice of increasing unit employees’ wages in August of each year, by failing to grant unit employees a wage increase in August 2016, by unilaterally abandoning its established practice of assigning light-duty work to employees on workers’ compensation, all without giving the Union notice and an opportunity to bargain, and by refusing to provide information to the Union. Additionally, the Board found that the Employer’s withdrawal of recognition from the Union was unlawful because the Employer failed to establish that the Union had lost majority support at the time recognition was denied, and that the Employer had maintained an unlawful confidentiality provision in its employee handbook in violation of Section 8(a)(1).
The Court held that many of the issues raised by the Employer had not been properly preserved for review and summarily enforced those portions of the Board’s order. Further, the Court reviewed and upheld the Board’s findings that the Employer violated the Act by its failure to negotiate prior to delaying an annual wage increase, its refusal to provide information to the Union that was pertinent to the bargaining unit and bargaining subjects, and its improper withdrawal of recognition from the Union. The Court concluded that “the Board’s resolution of each of those issues was consistent with the law and supported by substantial evidence.” Finally, the Court rejected the Employer’s challenge to the Board’s issuance of an affirmative bargaining order, explaining that the Board “adequately considered and balanced” the factors required under Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000).
The Court’s judgment may be found here.
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Administrative Law Judge Decisions
Alstate Maintenance, LLC (29-CA-252004 and 29-CB-252635; JD(NY)-09-20) Queens, NY. Administrative Law Judge Benjamin W. Green issued his decision on November 12, 2020. Charges filed by an individual.
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