Summary of NLRB Decisions for Week of August 21 - 25, 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
ADT, LLC (14-CA-281518; 372 NLRB No. 125) Maryland Heights, MO, August 22, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish relevant information requested by the Union.
Charge filed by International Brotherhood of Electrical Workers, Local 1, AFL-CIO. Administrative Law Judge Christine E. Dibble issued her decision on February 3, 2023. Chairman McFerran and Members Wilcox and Prouty participated.
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Capstone Logistics LLC and Associated Wholesale Grocers, Inc. as Joint Employers (15-CA-257443 and 15-CA-259712; 372 NLRB No. 124) Pearl River, LA, August 22, 2023.
The Board reversed the Administrative Law Judge and found that Respondent Capstone violated Section 8(a)(1) by discharging an employee because she engaged in protected concerted activity and/or because Respondent Capstone believed she engaged in protected concerted activity, and that Respondent Capstone further violated Section 8(a)(1) by informing the employee that she was discharged for engaging in protected concerted activity. The Board adopted the judge’s conclusion that neither Respondents violated Section 8(a)(1) by discharging another employee. Finally, the Board found it unnecessary to decide whether Respondents were a joint employer.
Charges filed by individuals. Administrative Law Judge Arthur J. Amchan issued his decision on May 10, 2022. Chairman McFerran and Members Wilcox and Prouty participated.
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Geodis Logistics, LLC (15-CA-218543, et al.; 372 NLRB No. 128) Memphis, TN, August 22, 2023.
The Board granted the General Counsel’s Request for Special Permission to Appeal the Administrative Law Judge’s order and granted the appeal on the merits. The Board found that the judge abused his discretion in finding that if the Regional Director elects to set aside the parties’ January 22, 2020 informal settlement agreement based on the Respondent’s alleged noncompliance, she must reissue the 2019 complaint in its entirety. The Board found the judge’s interpretation of the settlement agreement’s performance clause was unreasonable, inconsistent with the Board’s pro-settlement policy, and contrary to the Board’s decades-long approval of Regional Directors’ partial revocations of settlement agreements. The Board further noted that settlement agreements must be construed as consistent with and conforming to Board precedent.
Member Kaplan dissented. In his view, the judge did not abuse his discretion by relying on the literal terms of the settlement agreement and finding that, under those terms, the Regional Director’s sole recourse in the event of a breach was to reissue the 2019 complaint.
Charges filed by United Steel Workers Union. Chairman McFerran and Members Kaplan and Wilcox participated.
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Acumen Capital Partners, LLC (29-CA-291981 and 29-RC-289979; 372 NLRB No. 129) Brooklyn, NY, August 24, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by unlawfully discharging an employee for supporting the Union and for his other protected concerted activities. Accordingly, the Board ordered that the employee be reinstated and that the challenge to his ballot be overruled.
The Board also adopted the judge’s conclusion that the Respondent’s Chief Engineer was a Section 2(11) supervisor. The Board accordingly affirmed the judge’s decision to sustain the challenge to his ballot.
Petition and charge filed by International Union of Operating Engineers, Local 30, AFL-CIO. Administrative Law Judge Lauren Esposito issued her decision on February 17, 2023. Chairman McFerran and Members Kaplan and Wilcox participated.
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International Longshoremen’s Association, Local 1294 (Federal Marine Terminals, Inc.) (03-CB-310878; 372 NLRB No. 132) Albany, NY, August 24, 2023.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(b)(1)(A) by failing or refusing to process a unit employee’s grievance for reasons that are arbitrary, discriminatory, or in bad faith and by failing and refusing to refer that employee from its exclusive hiring hall for arbitrary or discriminatory reasons.
Charge filed by an individual. Chairman McFerran and Members Kaplan and Prouty participated.
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Hood River Distillers, Inc. (19-CA-260013, et al.; 372 NLRB No. 126) Hood River, OR, August 24, 2023.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by: unilaterally ceasing contractual dues checkoff following expiration of the collective-bargaining agreement; implementing its final offer and making unilateral changes to unit employees’ terms and conditions of employment in the absence of a valid impasse; thereafter unilaterally changing other terms and conditions of employment; and informing unfair labor practice strikers that it could or would permanently replace them and subsequently discharging and refusing to reinstate them. The Board also issued a Notice to Show Cause why allegations that the Employer unlawfully discharged two unit employees for purported picket line misconduct should not be remanded to the Administrate Law Judge for further proceedings in light of a recent change in controlling legal precedent.
Charges filed by Teamsters Local Union No. 670 and Board of Trustees of the Oregon Processors Employees Trust Fund. Administrative Law Judge Geoffrey Carter issued his decision on December 10, 2021. Chairman McFerran and Members Wilcox and Prouty participated.
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Cemex Construction Materials Pacific, LLC (28-CA-230115, et al.; 372 NLRB No. 130) Southern CA and Las Vegas, NV, August 25, 2023.
The full Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by suspending and discharging an employee because of her union activity and Section 8(a)(1) by: threatening employees with various repercussions including plant closure and job loss if they selected the Union as their bargaining representative or engaged in union activities; instructing employees not to speak with union representatives; disciplining an employee for speaking with union representatives on non-working time; interrogating employees about their union membership, activities, and sympathies; placing employees under surveillance while they engaged in union activities; threatening to investigate an employee because of their union activity; blaming the Union for delayed wage increases; and promising benefits to an employee if they opposed the Union or voted against representation. The Board unanimously reversed the judge’s conclusion that the Respondent violated Section 8(a)(1) making certain statements about the impact of selecting the Union on employees’ relationships with the Respondent. The Board also unanimously adopted the judge’s recommendation to set aside the election.
A Board majority (Chairman McFerran and Members Wilcox and Prouty; Member Kaplan, dissenting) adopted the judge’s conclusions that the Respondent additionally violated Section 8(a)(1) by: creating the impression that it was engaged in surveillance of its employees’ union activities; threatening employees with plant closure by telling them that, even if they unionized, the Respondent would retain the right to convert plants to "satellite” status at any time; threatening employees by implying that wage increases would be delayed indefinitely if they selected union representation; promulgating an overly broad directive not to talk with union representatives while on “company time” or “during working hours”; and hiring security guards to intimidate union supporters immediately before the election.
A Board majority (Chairman McFerran and Members Wilcox and Prouty) concluded that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union while engaging in conduct described above that undermined the Union’s support and prevented a fair rerun election, and ordered that the Respondent bargain with the Union under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Dissenting, Member Kaplan would not have ordered bargaining under Gissel because of the passage of time and employee and management turnover between the unfair labor practices and the Board’s order.
A Board majority (Chairman McFerran and Members Wilcox and Prouty) overruled Linden Lumber Division, Summer & Co., 190 NLRB 718 (1971), and announced a new framework for determining when employers are required to bargain with unions without a representation election. Under the new framework, when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain with the union. The Board majority concluded that the Respondent was subject to a bargaining order under both Gissel, above, and the newly announced standard, applied retroactively in this case.
Member Kaplan, dissenting, would not have overruled Linden Lumber and adopted the newly announced standard because he found that the new standard undermines employees’ statutory rights, is inadequately supported by reasoned explanation or justification, and conflicts with the Supreme Court’s decisions in Linden Lumber Division, Summer & Co. v. NLRB, 419 U.S. 301, 310 (1974), and Gissel, above. Member Kaplan further found that the majority erred by applying the new standard retroactively.
Charges filed by International Brotherhood of Teamsters. Administrative Law Judge John T. Giannopoulos issued his decision on December 16, 2021. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated.
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Quickway Transportation, Inc. (09-CA-251857, et al.; 372 NLRB No. 127) Louisville, KY, August 25, 2023.
A Board majority consisting of Members Wilcox and Prouty reversed the Administrative Law Judge and concluded that the Respondent violated Section 8(a)(3) and (1) under Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S. 263 (1965), by ceasing operations at its Louisville, Kentucky terminal and discharging all of the drivers in the bargaining unit represented by the Union for antiunion reasons and to chill unionism at its other terminals and at other affiliates of Paladin Capital, Inc. in circumstances where such a chilling effect was reasonably foreseeable. Because an employer’s decision to close part of its business is not exempt from bargaining when the employer was motivated by antiunion reasons in violation of Section 8(a)(3), the Board majority concluded that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union notice and an opportunity to bargain regarding its decision to cease operations at the Louisville terminal and discharge all the unit employees. The Board majority concluded that the Respondent also violated Section 8(a)(5) and (1) by failing to provide the Union notice and an opportunity to bargain regarding the effects of that decision.
In light of the postsettlement unfair labor practices discussed above, the Board majority reversed the judge and found that the General Counsel properly vacated and set aside two informal settlement agreements. The Board proceeded to analyze the allegations in the complaint covered by those settlement agreements and concluded that the Respondent violated Section 8(a)(1) by threatening employees with closure of the Louisville terminal if they selected the Union as their representative, by instructing an employee to provide it with a list of employees who were involved in the Union’s organizing campaign or who supported the Union, by threatening employees that it would lose its contract with The Kroger Company and be forced to discharge all the employees at the Louisville terminal if they selected the Union as their representative, and by threatening to cease making contributions to employees’ employee stock ownership plan accounts if they selected the Union as their representative, and independently violated both Section 8(a)(1) and (4) by threatening to take legal action against an employee because he filed an unfair labor practice charge. Additionally, the Board majority affirmed the judge’s conclusion that the Respondent violated Section 8(a)(1) by coercively interrogating employees about their union activities. Finally, the Board unanimously reversed the judge’s conclusion that the Respondent violated Section 8(a)(1) by condoning prior surveillance of employees’ union activities and sanctioning further surveillance.
To remedy the above unfair labor practices, the Board majority ordered, among other things, that the Respondent reopen and restore its business operations at the Louisville terminal as they existed on December 9, 2020, offer reinstatement to the unlawfully discharged unit employees to the extent that that their services are needed at the Louisville terminal to perform the work that the Respondent is able to attract and retain from Kroger or new customers after a good-faith effort, offer reinstatement to any remaining unit employees to any positions in its existing operations that they are capable of filling, with appropriate moving expenses, and place any unit employees for whom jobs are not now available on a preferential hiring list for any future vacancies that may occur in positions in its existing operations that they are capable of filling.
Dissenting, Member Kaplan would have affirmed the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(3) and (1) by ceasing operations at its Louisville terminal and discharging all of its Louisville drivers because the Respondent decided to cease operations at the Louisville terminal for a nondiscriminatory reason and was not motivated by a purpose to chill unionism in any of its remaining terminals. Member Kaplan would have affirmed the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union notice and an opportunity to bargain regarding its decision to cease operations at the Louisville terminal because that decision was exempt from bargaining under First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). Member Kaplan also would have dismissed the related effects bargaining allegation. Because Member Kaplan would have dismissed those allegations, he agreed with the judge that the General Counsel improperly vacated and set aside two informal settlement agreements and therefore would have affirmed the judge’s dismissal of the allegations in the complaint covered by those settlement agreements. Finally, Member Kaplan would have reversed the judge and dismissed the allegation that the Respondent violated Section 8(a)(1) by coercively interrogating employees about their union activities.
Charges filed by General Drivers, Warehousemen and Helpers, Local Union No. 89, a/w International Brotherhood of Teamsters, and individuals. Administrative Law Judge Arthur J. Amchan issued his decision on January 4, 2022. Members Kaplan, Wilcox, and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Manteca District Volunteer Ambulance Service (32-RC-318423) Sonora, CA, August 21, 2023. The Board denied the Union’s Request for Review of the Regional Director’s Decision and Direction of Election (in which she found that pursuant to Section 103.21 of the Board’s Rules and Regulations, the Employer’s voluntary recognition of the Union did not bar processing the decertification petition), finding that it raised no substantial issues warranting review. Chairman McFerran noted her dissent to the current blocking charge policy at the time of its proposal but agreed that the Regional Director acted correctly under the current blocking charge and voluntary recognition bar policies. Member Prouty noted that he did not participate in changes to the blocking charge policy, but agreed that the Regional Director acted correctly under the Board’s current law. Additionally, he noted that the Board may only revisit policies adopted via rulemaking through the adoption of new rules. Petitioner—an individual. Union—United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC. Chairman McFerran and Members Kaplan and Prouty participated.
C Cases
Amazon.com Services LLC (29-CA-261755) Staten Island, NY, August 29, 2023. The Board remanded this case, involving the alleged unlawful termination of an employee for misconduct in the course of protected concerted activity, for the purpose of reopening the record, if necessary, and preparation of a supplemental decision by the Administrative Law Judge addressing the application of the Board’s recent decision in Lion Elastomers, LLC, 372 NLRB No. 83 (2023), which reinstated various setting-specific standards that the Board has applied to evaluate whether misconduct in the course of protected activity loses the protection of the Act. The Board concluded that the grounds for remand were not outweighed by the goal of avoiding unnecessary delay and that the arguments raised by the General Counsel, in opposing the remand, did not compel the conclusion that remand was unnecessary or inappropriate here. Charge filed by an individual. Administrative Law Judge Benjamin W. Green issued his decision on April 18, 2022. Chairman McFerran and Members Wilcox and Prouty participated.
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Appellate Court Decisions
Pain Relief Centers, P.A., Board Case No. 10-CA-260563 (reported at 371 NLRB No. 70) (4th Cir. decided August 22, 2023).
In an unpublished opinion, the Court enforced the Board’s order that issued against this operator of two medical clinics in North Carolina that provide pain-management and addiction-treatment services. In May 2020, at the Employer’s clinic in Conover, North Carolina, a group of employees—a nurse practitioner and four medical assistants—joined together to protest the way that they were treated in the workplace by their manager. After an attempt to raise their concerns directly to the manager backfired, the manager confronted the medical assistants and asked which of them was talking about her behind her back and which had found her unapproachable. The next day, after the manager suspended the nurse practitioner during a related argument, all five employees spontaneously walked off the job in protest. The manager reacted by angrily firing all five employees on the spot. On those facts, the Board (Members Ring, Wilcox, and Prouty) found that the Employer violated Section 8(a)(1) of the Act by coercively interrogating employees about their protected concerted activity, and by discharging the five employees for initiating a protected walkout in protest of their manager’s abusive treatment.
On review, the Court (Judges Wilkinson and Harris; Judge Richardson dissenting in part) held that the Board’s findings were supported by substantial evidence. Regarding unlawful interrogation, the Court gave “considerable deference” to the Board’s “fact-intensive determination,” and agreed that the manager’s questioning would reasonably be understood by the employees as coercive and intimidating. Noting again the deferential standard of review, the Court reached “the same conclusion” concerning the Employer’s discharge of the five employees for their participation in the walkout. The Court rejected the Employer’s assertion that the employees had instead quit, finding the claim contrary to the credited evidence. The Court rejected the Employer’s remaining arguments as either barred from review or unpersuasive.
Judge Wilkinson authored a concurring opinion to emphasize the deferential standard that the Court applies in reviewing Board decisions, and to state his view that the Board’s finding of coercive interrogation was reasonable and well supported. Further, he commented: “I do not believe that our labor laws leave workers speechless or otherwise immobile in the face of the oppressive conditions found by the ALJ and Board. And the basic recognition of Section 7 is that collective responses are often more effective in working change than individual ones. Common oppression often begets common responses. That is at the heart of the NLRA.”
Judge Richardson, dissenting in part, would not have upheld the Board’s unlawful interrogation finding.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Qwest Corporation, a subsidiary of Lumen Technologies, Inc. f/k/a Centurylink, Inc. (19-CA-284277, et al.; JD(SF)-21-23) Seattle, WA. Administrative Law Judge Lisa D. Ross issued her decision on August 22, 2023. Charges filed by Communication Workers of America, Local 7800 and Communication Workers of America District 7.
Starbucks Corporation (09-CA-297286, et al.; JD-54-23) Clarksville, IN. Administrative Law Judge Arthur J. Amchan issued his decision on August 22, 2023. Charges filed by Chicago & Midwest Regional Joint Board, an affiliate of Workers United SEIU.
Rieth-Riley Construction Co., Inc. (07-CA-285321, et al.; JD-52-23) Goshen, IN. Administrative Law Judge Christine E. Dibble issued her decision on Augus 23, 2023. Charges filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO.
Starbucks Corporation (03-CA-296757, et al.; JD-55-23) Albany, NY. Administrative Law Judge Paul Bogas issued his decision on August 25, 2023. Charges filed by Workers United.
2H Mechanical, LLC (27-CA-299930; JD(SF)-22-23) Grand Junction, CO. Administrative Law Judge Gerald M. Etchingham issued his decision on August 25, 2023. Charge filed by Plumbers and Pipefitters, Local 145, a/w the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada.
Starbucks Corporation (19-CA-295014, et al.; JD(SF)-23-23) Eugene, OR. Administrative Law Judge Amita Baman Tracy issued her decision on August 25, 2023. Charges filed by Workers United Labor Union International, a/w Service Employees International Union.
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