Summary of NLRB Decisions for Week of April 8 - 12, 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
Spike Enterprise, Inc. (13-CA-282513, et al.; 373 NLRB No. 41) Channahon, IL, April 10, 2024.
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for his union activity and Section 8(a)(1) by threatening employees with termination if they participate in an economic strike, announcing to an employee that it would more strictly enforce work rules because of the Union’s organizing drive, and indicating to that same employee that it would be futile for employees to select the Union as their bargaining representative. The Board also unanimously reversed the judge’s conclusions that the Respondent violated Section 8(a)(1) by telling an employee to remove a union sticker from his company truck and the judge’s sustaining of the Union’s objections to the election in which he directed the mail ballots of two employees not timely received by the Region be opened and counted.
A Board majority (Members Prouty and Wilcox; Member Kaplan, dissenting) adopted the judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by discharging a second employee for his union activity and Section 8(a)(1) by threatening employees with a pay cut if they chose the Union as their bargaining representative. The same Board majority also adopted the judge’s issuance of a category II Gissel bargaining order requiring the Respondent to bargain with the Union as the employees’ collective-bargaining representative and granted several of the General Counsel’s requests for additional remedies, including for the Respondent to reimburse the Union for the economic assistance it provided employees who participated in an unfair labor practice strike against the Respondent.
Dissenting in part, Member Kaplan would have found that the Respondent lawfully discharged the employee after he failed the new employee test, that the Respondent did not threaten employees with pay cuts because employees would reasonably understand that the Respondent was explaining the realities of the Respondent’s financial situation, and that the majority overstated the egregiousness of the Respondent’s violations to justify the awarding of the additional remedies.
Charges filed by International Union of Operating Engineers, Local 150, AFL-CIO. Administrative Law Judge Ira Sandron issued his decision on May 16, 2022. Members Kaplan, Prouty, and Wilcox participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Trustees of the University of Pennsylvania (04-RC-327396) Philadelphia, PA, April 10, 2024. The Board granted the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election and reversed the Regional Director’s finding that the Petitioner was precluded from litigating the employee status of certain Educational Fellowship Recipients because it had agreed not to include those employees in the petitioned-for unit in a prior representation case. The Board also permitted the disputed Educational Fellowship Recipients to vote subject to challenge in the election. Petitioner—Graduate Employees Together-University of Pennsylvania/International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (GETUP-UAW). Chairman McFerran and Members Kaplan and Wilcox participated.
FedEx Office and Print Services, Inc. (16-RC-328798) Austin, TX, April 11, 2024. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision Resolving Determinative Challenged Ballots and Order Directing the Opening and Counting of the Ballots as it raised no substantial issues warranting review. The Regional Director overruled the Petitioner’s challenges to 3 ballots, finding that the Petitioner failed to show that the 3 employees in question were temporary employees. Petitioner—Lone Star Labor Education. Chairman McFerran and Members Kaplan and Wilcox participated.
C Cases
BGM Co. Inc. and its affiliate Boyd Gaming Corporation (20-CA-331200) Elk Grove, CA, April 11, 2024. The Board denied the Petition to Revoke the investigative subpoena duces tecum filed by BGM Co. Inc. and its affiliate Boyd Gaming Corporation, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Petitioners failed to establish any other legal basis for revoking the subpoena. Charge filed by UNITE HERE International Union. Chairman McFerran and Members Prouty and Wilcox participated.
***
Appellate Court Decisions
Noah's Ark Processors, LLC d/b/a WR Reserve, Board Case No. 14-CA-255658 (reported at 372 NLRB No. 80) (8th Cir. decided April 8, 2024).
In a published opinion, the Court enforced the Board’s order that issued against this meat-packing plant in Hastings, Nebraska, for unfair labor practices committed while bargaining with United Food and Commercial Workers Union Local No. 293 for a successor contract covering 250 plant employees. This case arose while an earlier Board case (14-CA-217400) was being litigated which involved a litany of unfair labor practice and bad-faith bargaining allegations, the bulk of which were ultimately found by the Board and upheld on review. NLRB v. Noah’s Ark Processors, LLC, 31 F.4th 1097 (8th Cir. 2022), enforcing 370 NLRB No. 74.
While that earlier case was pending before an administrative law judge, the regional director filed a petition in district court for injunctive relief under Section 10(j) of the Act. The district court granted the petition, explaining that an injunction was necessary to address the Employer’s “blatant failure to engage in good-faith collective bargaining.” Perez v. Noah’s Ark Processors, LLC, 2019 WL 2076793 (D. Neb. 2019). With the imposition of the injunction, the Employer returned to the bargaining table, where its bargaining misconduct persisted and led to additional allegations that it violated Section 8(a)(5) and (1) by engaging in bad-faith bargaining and unilaterally changing working conditions when it implemented its final offer without reaching a valid impasse. Meanwhile, the district court held the Employer in contempt of the injunction Sawyer v. Noah’s Ark Processors, LLC, 2019 WL 5268639 (D. Neb. 2019).
In the decision currently on review, the Board (Chairman McFerran and Members Prouty and Kaplan) found that the Employer violated the Act by failing to bargain in good faith for a successor agreement and by changing employees’ terms and conditions of employment when it implemented its final offer without first bargaining to an overall good-faith impasse. The Board (Member Kaplan, dissenting in part) ordered a number of remedies to dissipate the chilling effect of the Employer’s repeated and egregious unfair labor practices. Specifically, the Board ordered the Employer to reimburse the Union for bargaining expenses, to reimburse employee negotiators for any lost earnings, to have the Employer’s CEO, or someone else in his presence, read aloud and distribute the remedial notice and an explanation of rights in both English and Spanish at all-employee meetings, and to mail and post for one year the remedial notices and explanations of rights signed by the CEO. Further, the Board’s order required the Employer to adhere to a bargaining schedule requiring at least 24 hours per month, for at least 6 hours per session, and to submit bargaining reports to the regional office every 15 days. Lastly, the Board’s order provided for a one-year visitation remedy, whereby a Board agent is permitted to enter the facility at reasonable times to ensure compliance with the posting and mailing requirements.
On review, the Court held that substantial evidence supported the Board’s unfair-labor-practice findings. The Court agreed with the Board that the Employer’s bad-faith tactics at the bargaining table included such actions as making a regressive opening offer that it never backed down from, rejecting union proposals covering working hours and vacation time without offering alternatives of its own, and refusing to sign something as simple as a pledge about workplace respect. The Court further agreed with Board’s finding that there was no good-faith impasse reached, as supported by the evidence that the renewed talks ended quickly after just two months, that the most recent round of negotiations did not cover major issues like wages, retirement benefits, and health insurance, suggesting that negotiations never got very far, and that the Employer had previously “jumped the gun in declaring an impasse.” On the Employer’s challenges to the Board’s remedial provisions, the Court held that they were jurisdictionally barred from review by Section 10(e) of the Act for not having been raised to the Board.
The Court’s opinion is here.
CP Anchorage Hotel 2, LLC d/b/a Hilton Anchorage, Board Case No. 19-CA-241411 (reported at 371 NLRB No. 151) (D.C. Cir. decided April 9, 2024).
In a published opinion, the Court enforced the Board’s order that issued against this operator of the Hilton Anchorage, a full-service hotel in downtown Anchorage, Alaska, where UNITE HERE! Local 878, AFL-CIO, represents the hotel’s housekeepers who clean the hotel’s 600 rooms under the terms of a collective-bargaining agreement. This case arose out of the Hotel’s renovation plans which impacted the housekeeper’s terms and conditions of employment.
In 2018, the Hotel undertook extensive renovations. After the Union learned of the planned work, it requested a description of the renovations, the start and completion dates, and whether there would be any change in work requirements for the housekeepers. In response, the Hotel stated there should be no changes to work requirements. During the renovations, glass shower doors were added to 300 rooms, which the Union was aware would lead to an increase in the housekeepers’ workloads because of the increased physical demands involved in cleaning them. The Union again requested information and a meeting to discuss the issue, but no meeting was held. Thereafter, the Hotel began to further upgrade rooms by adding sofa beds, which required additional linens, and larger more cumbersome pillows on the beds. The additional time spent in each room, in turn, made it more difficult for housekeepers to meet their required room quota and to earn extra-room bonus pay, and many experienced physical effects of the extra work. When some housekeepers met with the Director of Housekeeping to complain, they were presented with a document reminding them of the room-cleaning quota and warning that failure to comply would result in discipline, up to and including termination. They were instructed to sign and date the document.
On those facts, the Board (Members Ring, Wilcox, and Prouty) found that the Hotel violated Section 8(a)(5) and (1) by failing to provide requested information to the Union, and (Member Ring, dissenting) by unilaterally changing housekeepers’ working conditions without providing the Union an opportunity to bargain. The Board majority also found that the Hotel violated Section 8(a)(1) by threatening to discipline housekeepers who failed to comply with its unilaterally increased workload. Among other remedies, the Board ordered that the Hotel make the housekeepers whole for any loss of extra-room bonuses suffered because of its unilateral change to their working conditions.
On review, the Court agreed with the Board that, although the Hotel had no obligation to bargain with the Union over its choice to renovate the hotel, it had an obligation to provide information to the Union about the renovations—so that the Union could evaluate possible impacts on its members—and to bargain over increases in employee workloads following the renovations. The Court noted that “whether this case is framed as concerning a decision or an effect, the simple point is that the [Hotel]’s major renovations resulted in changes in the housekeepers’ terms and conditions of employment that were subject to collective bargaining,” and that the Hotel violated the Act by failing to meet those obligations. The Court also upheld the unlawful-threat violation on substantial-evidence grounds. Lastly, the Court held that the make-whole remedy “clearly was within the Board’s discretion,” and enforced the Board’s order in full.
The Court’s opinion is here.
***
Administrative Law Judge Decisions
Brown-Forman Corporation, d/b/a Woodford Reserve Distillery (09-CA-307806, et al.; JD-21-24) Versailles, KY. Administrative Law Judge Andrew S. Gollin issued his decision on April 8, 2024. Charges filed by International Brotherhood of Teamsters (IBT), Local 651.
Whole Foods Market, Inc. (01-CA-288032; JD-23-24) Cambridge, MA. Administrative Law Judge Susannah Merritt issued her decision on April 11, 2024. Charge filed by an individual.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.