Summary of NLRB Decisions for Week of April 15 - 19, 2024
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
North Mountain Foothills Apartments, LLC (28-CA-286885; 373 NLRB No. 26) Phoenix, AZ, April 17, 2024. Errata to February 21, 2024 Decision. Errata Amended Decision.
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Chemtrade West US LLC (32-CA-282594; 373 NLRB No. 43) Richmond and Bay Point, CA, April 16, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by questioning an employee about protected concerted conduct during a deposition related to a federal wage-and-hour lawsuit against the Respondent. Applying the three-part test set forth in Guess?, Inc., 339 NLRB 432 (2003), the Board concluded that the Respondent had not proven that its interests in obtaining the information outweighed the employee’s confidentiality interest under Section 7 of the Act. The Board found it unnecessary to pass on the Respondent’s argument that the judge erred in finding some of the deposition questions were not relevant to the wage-and-hour lawsuit because, even if they were relevant, the Board agreed with the judge that the Respondent had not satisfied the third part of the Guess? analysis.
Charge filed by International Association of Machinists and Aerospace Workers, Local Lodge 1584. Administrative Law Judge Amita Baman Tracy issued her decision on November 17, 2022. Chairman McFerran and Members Prouty and Wilcox participated.
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Starbucks Corporation (20-CA-296184; 373 NLRB No. 45) Mililani, HI, April 17, 2024.
A unanimous Board (Members Kaplan, Prouty, and Wilcox) adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by soliciting and promising to remedy grievances if employees voted against the Union, and by threatening employees with the loss of a pay raise and loss of benefits—specifically, the ability to pick up shifts at other stores—if employees voted for the Union. A Board majority (Members Prouty and Wilcox) also adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening employees with the loss of benefits—specifically, the ability to share products with other stores—if employees voted for the Union. Member Kaplan, dissenting on this issue, would find that the record fails to establish that employees’ ability to share products with other stores constitutes a benefit to employees.
Charge filed by Workers United Labor Union International, a/w Service Employees International Union. Administrative Law Judge Eleanor Laws issued her decision on August 8, 2023. Members Kaplan, Prouty, and Wilcox participated.
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HSA Cleaning Inc. (22-CA-298853; 373 NLRB No. 46) East Rutherford, NJ, April 19, 2024.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by terminating one employee for engaging in union organizing activity and Section 8(a)(1) by terminating a second employee for engaging in protected concerted activity by speaking out on behalf of employees at a shift meeting. A Board majority (Chairman McFerran and Member Wilcox) thus found it unnecessary to pass on the judge’s conclusion that the Respondent’s discharge of the second employee also violated Section 8(a)(3). Member Kaplan would have reversed the judge’s finding that the second employee’s discharge also violated Section 8(a)(3).
Charge filed by SEIU Local 32BJ. Administrative Law Judge Jeffrey P. Gardner issued his decision on September 28, 2023. Chairman McFerran and Members Kaplan and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Skid Row Downtown Limited Liability Company (02-RC-332821) New York, NY, April 16, 2024. The Board denied the Petitioner’s Request for Review of the Regional Director’s Order Rescheduling Hearing and the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as they raised no substantial issues warranting review. Petitioner—International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its territories and Canada, AFL-CIO, CLC. Chairman McFerran and Members Kaplan and Wilcox participated.
New Flyer of America (KGM Fabrication) (09-RD-320437) Shepherdsville, KY, April 16, 2024. The Board granted the Petitioner’s Request for Review of the Regional Director’s dismissal of the decertification petition based on the alleged insufficiency of the Petitioner’s showing of interest and, on review, reversed the dismissal and remanded the case for further investigation. Under the particular facts involved—including the Petitioner’s unsuccessful attempt to fax several pages of additional signatures by the relevant deadline—the Board found that the Petitioner made an honest, good-faith effort to comply with the procedural requirements, and therefore that those additional signatures should be accepted and counted as timely. The majority declined to pass on an underlying legal issue—whether, after an employer voluntarily recognizes a union under Section 103.21 of the Board’s Rules, the showing of interest in support of a decertification petition may include signatures which pre-date the recognition—because if the Petitioner here submitted a sufficient number of post-recognition signatures, then the legal issue would be moot. In a concurring footnote, Member Kaplan stated his view that the Board’s adoption of Section 103.21 in 2020 substantially reinstated the holding in Dana Corp., 351 NLRB 434 (2007), that both pre- and post-recognition signatures may properly support a petition. Finally, the Board stated that it did not address, or preclude the parties from raising, any other basis for dismissing the petition. Petitioner—an individual. Union—Communications Workers of America, AFL-CIO. Members Kaplan, Prouty, and Wilcox participated.
C Cases
Starbucks Corporation (14-CA-321382) Affton, MO, April 17, 2024. The Board denied the Respondent’s Motion to Dismiss the Section 8(a)(3) allegation, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. The Board further found that the complaint provides sufficient information to satisfy due process and the notice-pleading requirements of Section 102.15 of the Board’s Rules and Regulations. Charge filed by Chicago & Midwest Regional Joint Board of Workers United/SEIU. Chairman McFerran and Members Prouty and Wilcox participated.
Amazon.com Services, LLC (09-CA-298870, et al.) Lebanon, KY, April 18, 2024. The Board granted the General Counsel’s Request for Special Permission to Appeal from the Administrative Law Judge’s order approving a non-Board settlement agreement over the General Counsel’s objection. On the merits, the Board denied the appeal, finding that the settlement satisfied the standards set forth in Independent Stave Co., 287 NLRB 740 (1987), and that the Administrative Law Judge did not abuse his discretion in approving the settlement. Charges filed by Amazon Labor Union and by an individual. Chairman McFerran and Members Prouty and Wilcox participated.
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Appellate Court Decisions
The Permanente Medical Group Inc., Northern California Region, Board Case No. 28-CA-273219 (reported at 372 NLRB No. 51) (9th Cir. decided April 16, 2024).
In an unpublished memorandum decision, the Court enforced the Board’s order that issued against this medical group that manages health-care practitioners at Kaiser Hospital facilities in California. In doing so, the Court upheld the findings of the Board (Chairman McFerran and Members Wilcox and Prouty) that the Group violated Section 8(a)(5) and (1) by refusing and unreasonably delaying the provision of relevant information requested by the National Union of Healthcare Workers, the union representing the Group’s psychologists, social workers, and clinical therapists.
In 2020, the parties’ collective-bargaining agreement established a joint labor-management committee to improve the model of care for the delivery of behavioral health services. The Committee’s stated objectives were to develop specific recommendations identifying existing and emerging best practices for improving the delivery of care in the initial and return access for psychotherapy and the availability of evidence-based psychotherapy treatments. The Committee was to run for six months, with an update to the executive steering group within three months of its first meeting. The Committee began meeting in August 2020, and was expected to provide an update sometime before January. On December 8, the Union sent the Group a letter noting that the time for the update was approaching and requesting information in two broad categories of the behavioral health services—access and utilization, and subcontracting and referrals—which the Union stated it would use in its evaluation of the Committee’s recommendations. On December 9, the Committee presented its update. By early January, the Union again requested the information, which the Group said would be forthcoming. After subsequent requests, and the filing of an unfair-labor-practice charge, the Group provided the information on March 10, three months after the Union’s initial request.
On review, the Court held the Board’s findings were supported by substantial evidence and consistent with law. The Court agreed with the Board that the Union demonstrated that the requested information would allow it to establish a baseline for assessing forthcoming recommendations and supported its request by objective evidence that information was relevant to the committee’s objectives and purpose, as created by the collective bargaining agreement. The Court further stated that seeking the information one day before the committee was to present the update, and a few months before the final report was due, was not premature, as the Group had argued. The Court also noted that the information should have been provided at the time of the Union’s request, and the Group failed to justify its three-month delay.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Navistar, Inc. (07-CA-304439; JD-22-24) Springfield, OH. Administrative Law Judge Christine E. Dibble issued her decision on April 19, 2024. Charge filed by International Union, United Automobile, and Agricultural Workers of America.
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