Summary of NLRB Decisions for Week of October 26 - 30, 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
Audio Visual Services Group, LLC (32-RC-257578; 370 NLRB No. 39) Monterey, CA, October 26, 2020.
The Board granted the Petitioner’s Request for Review of the Regional Director’s Decision and Order as it raised substantial issues warranting review. Reversing the Regional Director, the Board found that the petitioned-for unit of employees at the Employer’s four Monterey-area jobsites constitutes an appropriate multi-facility unit, and that the unit need not include additional employees from jobsites in Santa Clara, San Jose, and Half Moon Bay.
Petitioner—IATSE Local 611, International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators of the United States and Canada, AFL-CIO. Members Kaplan, Emanuel, and McFerran participated.
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International Union of Operating Engineers, Local Union No. 150 a/w International Union of Operating Engineers, AFL–CIO (25–CC–228342; 370 NLRB No. 40) South Bend, IN, October 27, 2020.
The full Board issued a Notice and Invitation to File Briefs, inviting the parties and interested amici to file briefs in a case where the Administrative Law Judge concluded that two large banners and a 12-foot inflatable rat on public property located near the entrance of a neutral trade show did not constitute picketing or otherwise coercive nonpicketing conduct that violated the Act. The Board asked the parties and amici to address, if it should depart from existing precedent, what its standards should be for determining when conduct constitutes proscribed picketing or otherwise coercive nonpicketing conduct. Further, if the Board were to find a violation of the Act here under any proposed standard, how would finding the violation not violate the Respondent’s First Amendment rights? Member McFerran dissented from inviting briefs and would not revisit extant precedent. Briefs by the parties and amici are due to be filed with the Board by November 27, 2020, and December 28, 2020, respectively, with the parties permitted to file responsive briefs by January 11, 2021.
Charge filed by Lippert Components, Inc. Chairman Ring and Members Kaplan, Emanuel, and McFerran participated.
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Laborers’ International Union of North America, Local Union No. 91 (Scrufari Construction Co., Inc.) (03‒CB‒202698, et al.; 370 NLRB No. 42) Niagara Falls, NY, October 28, 2020.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(b)(1)(A) by: (1) refusing to place an individual on its out-of-work referral list; (2) refusing to refer another individual from its out-of-work referral list; and (3) removing that individual from its out-of-work referral list and keeping him off the list. In adopting the judge’s conclusions, the Board explained that it did not rely on the judge’s analysis under Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417 (2000), but relied only on her Wright Line analysis. In addition, the Board indicated that the General Counsel met his burden of showing the Respondent’s animus toward the protected activities of these individuals under Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019). Finally, the Board adopted the judge’s conclusion that the Respondent violated Section 8(b)(1)(A) by threatening one of the individuals that it would sue him to recover legal fees if he made false statements or charges in connection with his protected Board charges.
Charges filed by individuals. Administrative Law Judge Donna N. Dawson issued her decision on June 28, 2019. Chairman Ring and Members Kaplan and Emanuel participated.
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The Ohio Bell Telephone Company (09-CA-233901; 370 NLRB No. 29) Columbus and Dublin, OH, October 28, 2020.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by issuing documented verbal warnings to employees because of their protected concerted and union activity of reporting to work in street clothes to protest a perceived shortage of required uniforms. The Board explained that the protest was protected by the Act because it constituted concerted activity for mutual aid and protection that did not fall within any category of unprotected misconduct, rejecting the Respondent’s arguments that the protest was an unprotected partial strike or work slowdown. However, the Board concluded that the protected concerted protest ended when employees dispersed either to change into uniforms and begin work or to retrieve uniforms pursuant to the Respondent’s lawful instruction. Accordingly, the Board reversed the judge’s conclusion that the Respondent unlawfully issued attendance infractions to employees who were not prepared to begin their scheduled shifts in uniform and on time, and the Board omitted the judge’s recommended remedial order that the Respondent pay these employees for the time it took them to retrieve their uniforms.
Charge filed by an individual. Administrative Law Judge Christine E. Dibble issued her decision on March 26, 2020. Chairman Ring and Members Kaplan and Emanuel participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Quickway Transportation, Inc. (09-RC-257491) Louisville, KY, October 26, 2020. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election and of the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. The Employer had sought to have the results of the mail-ballot election set aside alleging that a determinative number of ballots did not arrive in time for the tally. Petitioner—General Drivers, Warehousemen and Helpers, Local Union No. 89 a/w the International Brotherhood of Teamsters. Chairman Ring and Members Emanuel and McFerran participated.
McHenry Excavating, Inc. (25-RC-255764) McHenry, IL, October 27, 2020. The Board denied the Employer’s and Intervenor’s Requests for Review of the Regional Director’s Decision on Objections, Order Setting Aside Election, and Direction of Re-Run Election as they raised no substantial issues warranting review. Petitioner—International Union of Operating Engineers, Local 150, AFL-CIO. Intervenor—National Allied Workers Union, Local 831. Chairman Ring and Members Emanuel and McFerran participated.
C Cases
United States Postal Service (07-CA-248849) Utica, MI, October 28, 2020. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions that the Respondent must take to comply with the Act. Charge filed by Branch 4374, National Association of Letter Carriers (NALC), AFL-CIO. Chairman Ring and Members Emanuel and McFerran participated.
Audio Visual Services Group, LLC d/b/a PSAV (05-CA-254004) Washington, DC, October 28, 2020. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the petition sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by International Alliance of Theatrical and Stage Employees, Local 22 a/w International Alliance of Theatrical and Stage Employees, AFL–CIO. Chairman Ring and Members Emanuel and McFerran 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
International Brotherhood of Teamsters, (IBT) Local 957 (United Parcel Service) (09-CB-255762; JD-44-20) Dayton, OH. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on October 27, 2020. Charge filed by an individual.
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