Summary of NLRB Decisions for Week of October 4 - 8, 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

Cazanove Opici Wine Group d/b/a Opici Family Distributing of New York  (29-RC-270372; 371 NLRB No. 30)  Brooklyn, NY, October 8, 2021.

The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised substantial issues warranting review.  On review, the Board affirmed the Regional Director’s finding that the petitioned-for unit of the Employer’s sales representatives located in the Metropolitan New York area was an appropriate unit, and, contrary to the Employer’s argument, that it did not need to include the remainder of the Employer’s New York-based sales representatives, all of whom are based in Upstate New York.  In so doing, the Board, disavowing the Regional Director’s reliance on, and application of, PCC Structurals, Inc., 365 NLRB No. 160 (2017), explained that the appropriate test was the traditional multi-facility community of interest test and determined that the unit was appropriate under that analytical framework because the petitioned-for unit had a distinct community of interest from the excluded Upstate sales representatives.

Petitioner—United Food and Commercial Workers, Local 2D.  Chairman McFerran and Members Kaplan 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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases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No Unpublished R Cases Issued.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

VNS Federal Services, LLC  (09-CA-262035 and 09-CB-262047)  Piketon, OH, October 6, 2021. The Board denied the Union’s Request for Special Permission to Appeal the Administrative Law Judge’s order denying the Union’s motion to disqualify himself.  The Board found that the Union failed to establish that the judge abused his discretion in denying the motion.  Charges filed by an individual.  Chairman McFerran and Members Kaplan and Ring participated.

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Appellate Court Decisions

Seven Seas Union Square, LLC and Key Food Stores Co-Operative, Inc, joint employers, Board Case No. 29-CA-164058 et al. (reported at 368 NLRB No. 92) (2d Cir. decided October 5, 2021).

In an unpublished summary order, the Court enforced the Board’s order that issued against this cooperative whose corporate members own grocery stores in New York.  The Board’s order remedies almost three dozen unfair labor practices committed by seven of the member stores after the cooperative entered into an asset purchase agreement in 2015 with the bankrupt supermarket chain A&P.  At the time of the bankruptcy, employees at the stores were represented by United Food and Commercial Workers, Local 342, and covered by collective-bargaining agreements.

The Board (then-Chairman Ring, then-Member McFerran, and Member Emanuel) found that four of the stores were “perfectly clear” successors with an obligation to bargain with the Union over initial terms and conditions of employment, and thus violated Section 8(a)(5) and (1) by unilaterally laying off a dozen employees and reducing hours for all employees.  Among many other violations, the Board found that all member stores violated Section 8(a)(5) and (1) by refusing to bargain with Local 342 for a common contract in 2016, that individual member stores violated Section 8(a)(1) by promulgating no-solicitation, political-activity, loitering, and catch-all disciplinary rules in response to their employees’ union activity, and that some violated Section 8(a)(3) and (1) by laying off or refusing to hire union supporters.  Lastly, in finding the cooperative and member stores to be joint employers, the Board applied the standard of Browning-Ferris Industries of California, Inc., 362 NLRB 1599 (2015).

On review, the Court stated that it could “easily grant” enforcement of the Section 8(a)(1) and (3) violations because the Board’s conclusions were supported by substantial evidence and the Employers had only “dispute[d] those findings on what boils down to factual grounds.”  The Court also upheld the Board’s finding that the Employers were “perfectly clear successors” to A&P and rejected their contrary contentions.  On joint-employer status, the cooperative alone challenged the Board’s finding, arguing that the Board had only proved that it participated with the members stores in collective bargaining, which, it contended, was an insufficient basis for establishing that it had the necessary immediate control over the employees.  The Court, however, viewed that argument as contrary to the record, explaining that the Board’s joint-employer finding was additionally “supported by multiple significant pieces of factual evidence outside the collective bargaining context,” including evidence of actual involvement in the personnel decisions at the member stores.  Finding no merit to the Employers’ remaining contentions, the Court enforced the Board’s order in full.

The Court’s summary order is here.

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Administrative Law Judge Decisions

No Administrative Law Judge Decisions Issued.

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