Summary of NLRB Decisions for Week of April 22 - 26, 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
Starbucks Corporation (07-CA-293742 and 07-CA-293748; 373 NLRB No. 44) Ann Arbor, MI, Clinton Township, MI, April 25, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) when, in the midst of organizing drives at two of its Michigan stores, it solicited grievances at one and made threats and took down supportive customer postings from a community bulletin board at the other.
Charges filed by Workers United. Administrative Law Judge Christal J. Key issued her decision on February 9, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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Amalgamated Transit Union, Local 689 a/w Amalgamated Transit Union, AFL–CIO, CLC (Transdev Services, Inc.) (05-CB-286354 and 05-CB-286964; 373 NLRB No. 49) Forestville, MD, April 26, 2024.
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(b)(1)(A) when the Union shop steward slapped the individual Charging Party after he repeatedly insulted her. The Board found that the shop steward’s reaction was personal and unrelated to her role as a steward or the Charging Party’s union dissidence. A Board majority (Members Prouty and Wilcox) reversed the judge and found that the Respondent did not violate Section 8(b)(2) when another Union steward told the general manager that the Employer should discharge the Charging Party if it discharges the shop steward. The Board majority found that the Union steward’s’ statement was an attempt to convince the Employer not to terminate the Union shop steward rather than an attempt to cause the Charging Party’s termination in breach of its duty of fair representation. The majority also stated that it would reach the same result applying a Wright Line analysis because the General Counsel failed to establish the requisite animus and dismissed the complaint. Dissenting, Member Kaplan found that the Union steward’s remark was an attempt to cause the Charging Party’s termination because of his dissidence and that it constituted a violation of Section 8(b)(2) under both a duty of fair representation analysis and a Wright Line analysis.
Charges filed by an individual. Administrative Law Judge Christal J. Key issued her decision on September 29, 2022. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Lee Publications, Inc., d/b/a The Daily News of Longview (19-RC-309505) Longview, WA, April 25, 2024. The Board (Chairman McFerran and Member Wilcox; Member Kaplan, dissenting) 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. The Regional Director found that the petitioned-for employees had a sufficient community of interest with employees in the existing unit to warrant a self-determination election. Dissenting, Member Kaplan would have granted review and reversed the Regional Director’s Decision. Petitioner—Pacific Northwest Newspaper Guild, TNG-CWA 37082. Chairman McFerran and Members Kaplan and Wilcox participated.
C Cases
Starbucks Corporation (01-CA-299987, et al.) Biddeford, ME and Brookline, MA, April 25, 2024. No exceptions having been filed to the March 14, 2024 decision of Administrative Law Judge Charles J. Muhl’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. Charges filed by Workers United Labor Union International, a/w Service Employees International Union.
Wilton Rancheria, d/b/a Sky River Casino (20-CA-331192) Elk Grove, CA, April 26, 2024. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, finding that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by UNITE HERE International Union. Chairman McFerran and Members Kaplan and Wilcox participated.
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Appellate Court Decisions
Siren Retail Corporation d/b/a Starbucks, Board Case No. 19-CA-299478 (reported at 372 NLRB No. 10) (9th Cir. decided April 24, 2024).
In a published opinion, the Court enforced the Board’s bargaining order in this test-of-certification case against the operator of a retail coffeehouse, known as its Reserve Roastery in Seattle, Washington, where its employees voted 38 to 27 in a March 2022 mail-ballot election to be represented by Workers United. In doing so, the Court held that the Board acted within its discretion in ordering a mail-ballot election, and rejected the Employer’s contention that the Board’s severance of a remedial issue had undermined the Court’s jurisdiction.
In the underlying representation case, the Union proposed that the election be conducted by mail and the Employer requested an in-person election. After the parties submitted position statements, the Regional Director issued a decision applying Aspirus Keweenaw, 370 NLRB No. 45 (2020), in which the Board established guidelines for the regional directors to apply in deciding whether to conduct a mail or manual election during the COVID-19 pandemic. Applying that guidance, the Regional Director consulted the county-level data published on the Johns Hopkins University website, and determined that a mail-ballot election would be appropriate because "the 14-day trend in [the] number of new confirmed [COVID-19] cases in [King County] is increasing.” The Employer filed a Request for Review, which was denied by the Board (Chairman McFerran and Member Wilcox; Member Kaplan, dissenting).
After the election, the Employer filed an objection repeating its position that the Regional Director’s decision to hold the election by mail was erroneous. The Regional Director issued a decision finding, among other things, that the objection was procedurally inappropriate because it challenged the method of election, rather than any objectionable conduct committed during the election. The Regional Director therefore overruled the objection, and certified the Union. The Employer then refused to bargain, and the General Counsel filed a Motion for Summary Judgment. The Board found the violation of Section 8(a)(5) and (1), and also severed and retained for further consideration the General Counsel’s request to overrule Ex-Cell-O Corp., 185 NLRB 107 (1970), and to adopt an additional, compensatory remedy requiring the Employer to make unit employees whole for the lost opportunity to bargain.
Before the Court, the Employer argued that the Court lacked jurisdiction over the Board’s application for enforcement because, it contended, the Board’s severance of the remedial issue rendered the Board’s order non-final under Section 10(e) of the Act. Rejecting the contention, the Court cited in-circuit cases where it had enforced Board orders that also “sever[ed] or reserve[d] judgment on a separate issue.” Further, the Court noted that the D.C. Circuit recently “made short work” in reaching a similar conclusion on the Board’s severance of the Ex-Cell-O remedial issue, citing Longmont United Hospital v. NLRB, 70 F.4th 573 (D.C. Cir. 2023). Turning to the merits, the Court held that the Board did not abuse its discretion in upholding the Regional Director’s ordering of a mail-ballot election. Specifically, the Court noted that the Employer had failed to put forth sufficient evidence to undermine the Regional Director’s application of Aspirus, or his conclusion that the 14-day trend in COVID-19 pandemic cases was increasing.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Starbucks Corporation (14-CA-306625; JD-24-24) St. Louis, MO. Administrative Law Judge Sarah Karpinen issued her decision on April 25, 2024. Charge filed by Chicago and Midwest Regional Joint Board, Workers United/Service Employees International Union.
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