Summary of NLRB Decisions for Week of April 24 - 28, 2023
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
SJT Holdings, Inc., McDonald’s USA, LLC, and McDonald’s Corp. (20-CA-277353; 372 NLRB No. 82) San Francisco, CA, April 26, 2023.
The Board denied the Petitioners’ Petitions to Revoke investigative subpoenas duces tecum, as the subpoenas sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought, and the Petitioners failed to establish any other legal basis for revoking the subpoenas. The Board rejected Petitioner’s claim that the subpoena is defective because the structure of the National Labor Relations Board violates the Constitution. Member Kaplan joined the majority in denying the petitions to revoke but did not join in reaching the merits of the Petitioner’s constitutional argument. Further, Respondent’s motion to recuse Member Prouty was denied.
Charge filed by SEIU National Fast Food Workers Union. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Starbucks Corporation (06-RC-308635) Bethel Park, PA, April 27, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. Petitioner— Workers United a/w Service Employees International Union. Chairman McFerran and Members Kaplan and Wilcox participated.
C Cases
Poor Boy Woodworks, Inc. (07-CA-297220) Saginaw, MI, April 25, 2023. No exceptions having been filed to the March 13, 2023 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.
The Morning Call, LLC (04-CA-292410) Allentown, PA, April 25, 2023. No exceptions having been filed to the March 9, 2023 decision of Administrative Law Judge Robert A. Giannasi’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint. Charge filed by The NewsGuild-CWA.
United Parcel Service, Inc. (04-CB-288107) Lawnside, NJ, April 28, 2023. No exceptions having been filed to the March 16, 2023 decision of Administrative Law Judge Robert A. Giannasi’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint. Charge filed by an individual.
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Appellate Court Decisions
Jam Productions, Ltd., Event Productions, Inc., Standing Room Only, Inc., and Victoria Operating Co., Board Case No. 13-CA-284761 (reported at 371 NLRB No. 51) (7th Cir. decided April 27, 2023).
In a published opinion that issued in this test-of certification case, the Court, post-remand, enforced the Board’s bargaining order that issued against this producer of concerts, shows, and events at venues in the Chicago area after its stagehands voted in May 2016 to be represented by Theatrical Stage Employees Union Local No. 2, IATSE. In the prior review proceeding, the Court granted Jam’s petition for review and remanded for a hearing on its election objection after determining that the offer of proof presented sufficient evidence to warrant a hearing. Jam Productions, Ltd. v. NLRB, 893 F.3d 1037 (7th Cir. 2018), remanding 365 NLRB No. 75.
On remand, in the underlying representation case, the Board’s Regional Director held a hearing on Jam’s election objection, which alleged that in the weeks before the election, the Union provided employees with premium-pay work at union venues, which Jam claimed was an objectionable economic benefit with the purpose of inducing union support. At the hearing, Jam subpoenaed four witnesses and hiring hall records mostly limited to the springtime period close to the May 2016 election. The evidence showed that during that period, referrals for all categories of hiring-hall participants generally followed the same ebb-and-flow pattern, and that referrals were higher than during the slower winter months. After the hearing, the Regional Director issued a decision finding that Jam failed to meet its burden of proving objectionable conduct, overruled the objection, and certified the Union. Jam then filed a Request for Review.
The Board (Chairman McFerran and Members Kaplan and Ring) granted Jam’s Request for Review, but issued a decision that affirmed the Regional Director’s conclusions for the reasons stated in the Board’s decision. The Board detailed how cases featuring hiring-hall referrals, such as this one, should be analyzed to determine objectionable conduct. The Board began with the rules generally applicable to the preelection context, recognizing that while a union cannot make, or promise to make, a gift of tangible economic value as an inducement to win support in a representation election, not every grant during an election campaign requires a “per se finding” of objectionable conduct. The Board explained that the crux of the matter was “whether the donor’s conduct would reasonably have a ‘tendency to influence’ the outcome of the election.” Assessing the record evidence, the Board determined that the Union made the referrals in the course of its regular operation of the hiring hall and, as such, the referrals did not constitute an objectionable benefit. The Board also stated that even if the hiring-hall referrals could qualify as an objectionable benefit, the Union had provided persuasive, non-election-related reasons for the increased number of referrals. Jam then refused to bargain in order to seek court review.
In a comprehensive opinion, the Court held that the Board acted within its discretion in overruling the election objection and certifying the Union. In doing so, the Court surveyed the variety of approaches that have been used by the Board and the Court in addressing a promise or grant of benefits within the critical period. The Court then concluded that it was apparent from previous decisions that no single approach controls, and it rejected Jam’s argument that the Board, here, had not applied an approach consistent with precedent. Next, the Court, relying on that precedent, determined that the Board reasonably applied the law through its articulated legal framework. The Court explained that when examining whether benefits improperly influenced a representation election, the guiding question is whether “what is offered is sufficiently valuable and desirable in the eyes of the person to whom they are offered, to have the potential to influence that person’s vote.” Under that standard, the Court found no unreasonable application of law in the Board’s decision. And it commented that “access to hiring hall referrals is not a benefit offered in the critical period if it was available to voters on the same, routine terms all along.” Accordingly, it concluded, “not every hiring-hall benefit will taint the fairness of the election, and the Board need not automatically draw an inference of coercion just because a voter received hiring hall referrals during the critical period.
Finally, the Court held that substantial evidence supported the Board’s findings of fact, rejected Jam’s arguments to the contrary, and upheld the Board’s conclusion that Jam violated Section 8(a)(5) and (1) by refusing to bargain with the Union.
The Court’s opinion is here.
United Natural Foods, Inc., Board Case No. 19-CB-250856 (reported at 370 NLRB No. 127) (5th Cir. decided April 24, 2023).
In a published opinion, the Court denied the petition for review, and the Board’s Motion to Dismiss for lack of jurisdiction. In doing so, the Court held that the Board had permissibly rendered its order denying the Employer’s Request for Special Permission to Appeal a February 2021 order dismissing a complaint that issued during the tenure of Acting General Counsel Peter Sung Ohr. After determining that it had jurisdiction over the Petition for Review given the unique procedural posture of the case, the Court (Circuit Judges Higginbotham and Higginson, Circuit Judge Oldham, dissenting in part), rejected the two principal arguments advanced in the petition as inconsistent with Supreme Court law and settled principles.
The Court held that it was within the Acting General Counsel’s prosecutorial discretion to withdraw the complaint prior to hearing and at a time permissible under the Board’s rules. In doing so, the Court rejected the Employer’s argument that because it had also filed a Motion for Summary Judgment with the Board, the procedural stance of the case had been transformed from prosecutorial to adjudicative, thereby causing the Acting General Counsel to lose his discretion to withdraw the complaint. The Court explained that because the complaint was withdrawn before hearing, the withdrawal was “an unreviewable act of prosecutorial discretion under the express terms” of NLRB v. United Food & Com. Workers Union, Local 23, AFL-CIO, 484 U.S. 112 (1987) (UFCW). Further, the Court rejected the contention that in NLRB proceedings it should impose the requirements of Fed. R. Civ. P. 41(a)(1)(A)(i), which provide that a federal court plaintiff cannot unilaterally dismiss a complaint once the defendant has filed a Motion for Summary Judgment. Again quoting UFCW, the Court stated that “the Supreme Court has cautioned against ‘attempt[s] to analogize the role of the General Counsel in an unfair labor practice setting to other contexts,’ stating that such analogies are ‘of little aid.’” Moreover, the Court held that “the Board’s own conclusion that the General Counsel has discretion to withdraw unfair labor practice complaints in cases where a motion for summary judgment has been filed but no hearing has occurred,” is a determination that “fits squarely within the holding of UFCW, and as such, “it is a permissible interpretation of the NLRA.”
Following in-circuit precedent, the Court also rejected the Employer’s challenge to the Acting General Counsel’s authority based on the theory that his designation was invalid because the President had unlawfully removed the former General Counsel from office without cause before the end of his term. Noting that it “recently rejected an identical argument” in Exela Enterprise Solutions, Inc. v. NLRB, 32 F.4th 436 (5th Cir. 2022), the Court held the issue foreclosed.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Tesla, Inc. (12-CA-293359; JD-29-23) Orlando, FL. Administrative Law Judge Michael A. Rosas issued his decision on April 25, 2023. Charge filed by an individual.
Borenstein Caterers, Inc. (29-CA-299367; JD(NY)-07-23) Jamaica, NY. Administrative Law Judge Benjamin W. Green issued his decision on April 26, 2023. Charge filed by UNITE HERE Local 100.
Tesla, Inc. (12-CA-293359; JD-29-23) Orlando, FL, April 25, 2023. Errata to decision issued March 1, 2023. Errata Amended Decision.
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