Summary of NLRB Decisions for Week of August 28 - September 1, 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
Intertape Polymer Corp. (07-CA-273203 and 07-CA-273901; 372 NLRB No. 133) Marysville, MI, August 25, 2023.
The Board unanimously found that the Respondent violated Section 8(a)(3) and (1) by disciplining two employees because of their union activity. In so doing, the Board declined the General Counsel’s request to overrule Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019). A Board majority (Chairman McFerran and Members Wilcox and Prouty; Member Kaplan, concurring) acknowledged that Tschiggfrie Properties has caused significant confusion for parties before the Board. The majority clarified that Tschiggfrie Properties did not change the General Counsel’s burden of proof, but rather merely reaffirmed the principle, already embedded in the Wright Line framework, that the General Counsel is required to establish that protected activity was a “motivating factor” in an alleged unlawful employment action. The majority also clarified that where the evidence in the record as a whole supports a reasonable inference that protected activity was a “motivating factor” in the challenged employment action, the General Counsel is not required to produce separate or additional evidence of a connection or nexus between the employer’s animus toward protected activity and the challenged employment action, nor is the General Counsel required to show that the employer harbored particularized animus toward an alleged discriminatee’s own protected activity.
Concurring, Member Kaplan agreed that Tschiggfrie Properties did not change the General Counsel’s burden under Wright Line. However, Member Kaplan would not have clarified Tschiggfrie Properties. In his view, the majority’s clarification was neither necessary nor relevant to the holding in the case.
The full Board also issued a Notice to Show Cause why allegations that the Respondent unlawfully suspended and disciplined two employees because of their protected conduct during a discussion with management should not be remanded to the judge for further proceedings consistent with the Board’s decision in Lion Elastomers LLC, 372 NLRB No. 83 (2023).
Charges filed by Local 1149 International Union, United Automobile, Aerospace and Agricultural Workers of America (UAW), AFL-CIO. Administrative Law Judge Robert A. Giannasi issued his decision on November 2, 2021. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated.
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ExxonMobil Research & Engineering Company, Inc. (22-CA-218903, et al.; 372 NLRB No. 138) Annandale, NJ, August 25, 2023.
After the Board vacated an earlier decision in this case, a majority (Chairman McFerran and Members Wilcox and Prouty) affirmed the judge’s findings that the Respondent violated Section 8(a)(1) by suggesting employees would receive paid parental leave only if they walked away from the Union, and that it violated Section 8(a)(5) and (1) by refusing to bargain over personal leave in retaliation for Union unfair labor practices.
The Board reversed all of the judge’s other findings. It concluded that the Respondent did not unlawfully insist on bargaining over subcontracting of unit positions, holding instead that such subcontracting is a well-established mandatory subject that the Respondent could lawfully insist on. The Board further found that the Respondent did not unlawfully disparage the Union’s bargaining conduct because its criticisms did not include misleading or otherwise coercive language. Finally, the Board found that the judge incorrectly concluded there was overall bad faith and instead found that the Respondent’s conduct signified a desire to reach agreement.
With Member Prouty dissenting in part, the Board also found that the Respondent’s changes to employee evaluations, prior to the expiration of the parties’ agreement, were not an unlawful unilateral change because the changes were encompassed by the parties’ contract. Member Prouty contended that the Respondent had not satisfied the conditions the parties had agreed to as prerequisite to any such unilateral change. As to a direct-dealing allegation, the Board held that even assuming there was such direct dealing, it was effectively repudiated by a bulletin the Respondent sent to unit employees. Member Prouty disagreed and, in his partial dissent, argued that the repudiation was inadequate and that the Board should have found that an offer of time off for ratification voting, made directly to employees, was unlawful direct dealing.
Member Kaplan, in dissent, stated his belief that the original decision, which dismissed all the allegations, was wrongly vacated and should have been allowed to stand.
Charges filed by the Independent Laboratory Employees Union, Inc. Administrative Law Judge Michael A. Rosas issued his decision on June 12, 2019. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated.
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Stericycle, Inc. (04-CA-277775; 372 NLRB No. 131) Southampton, PA, August 25, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) within the meaning of Section 8(d) by unilaterally modifying the collective-bargaining agreement by assessing disciplinary points to unit employees for the use of their paid sick days and by imposing discipline based on accrued points that included those for paid sick days. The Board further adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with requested information regarding previously filed grievances. The Board severed for further consideration the issue of whether the Board should overrule Stericycle, Inc., 370 NLRB No. 89 (2021), and find that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide bargaining notes in response to the Union’s information request.
Charge filed by Teamsters Union Local No. 628. Administrative Law Judge Michael A. Rosas issued his decision on September 30, 2022. Chairman McFerran and Members Wilcox and Prouty participated.
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Wendt Corporation (03-CA-212225, et al.; 372 NLRB No. 132) Cheektowaga, NY, August 26, 2023.
On remand from the D.C. Circuit Court, the Board reaffirmed its finding that the Respondent violated Section 8(a)(5) and (1) by temporarily laying off 10 unit employees. The Board found that the Respondent has failed to establish under Raytheon Network Centric Systems, 365 NLRB No. 161 (2017), that it had a longstanding past practice of layoffs which occurred with sufficient regularity and frequency to privilege the Respondent to unilaterally implement the layoffs. The Board further overruled Raytheon insofar as it held that an employer may lawfully make a unilateral change in terms and conditions of employment informed by substantial discretion, so long as the change is similar in kind and degree to the changes made in connection with the employer’s past practice of such changes. The Board determined that that holding of Raytheon was incompatible with long-established past-practice jurisprudence under the Supreme Court’s controlling decision in NLRB v. Katz, 369 U.S. 736 (1962), and failed to promote the Act’s policy of promoting collective bargaining. The Board further overruled Mike-Sell’s Potato Chip Co., 368 NLRB No. 145 (2019), because the factual showing in that case falls outside the ambit of caselaw requiring that an employer’s successful past practice defense must establish that the unilateral conduct is part of a regular and consistent past practice.
Member Kaplan, concurring in the result, found the layoffs to be unlawful because the Respondent has failed to meet its burden to establish that it had an established past practice that privileged it to act unilaterally. Member Kaplan would not overrule Raytheon or Mike-Sell’s, however, finding the validity of those cases to be beyond the scope of the court’s remand. Member Kaplan further would adhere to those cases as correctly articulating the Board’s past practice standard.
Charges filed by Shopmen’s Local Union No. 576. Administrative Law Judge Ira Sandron issued his decision on February 15, 2919. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated in the decision.
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Tecnocap LLC (06-CA-265111, et al.; 372 NLRB No. 136) Glen Dale, WV, August 26, 2023.
The Board found that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing the work schedules of unit employees to mandatory 12-hour and 11-hour work shifts. The Board rejected the Respondent’s defense that its unilateral conduct was privileged because it had a past practice of changing employee work shifts. The Board found the Respondent’s defense meritless under long-established past practice jurisprudence pursuant to the Supreme Court’s controlling decision in NLRB v. Katz, 369 U.S. 736 (1962). The Board explained that in Wendt Corp., 372 NLRB No. 132 (2023), it had reaffirmed the Board’s commitment to the bedrock principle set forth in Katz that a unilateral change made during collective-bargaining negotiations “must of necessity obstruct bargaining . . . [and] will rarely be justified by any reason of substance,” and thus, the narrow past-practice defense to such unilateral action applies only when the employer proves its action is consistent with a longstanding past practice and is not informed by a large measure of discretion. The Board in Wendt had accordingly overruled Raytheon Network Centric Systems, 365 NLRB No. 161 (2017), to the extent it had departed from the mandate of Katz, and the Board in Tecnocap reaffirmed and applied its principles and those of Katz to find that the Respondent’s unilateral change during bargaining to 12-hour and 11-hour mandatory work shifts is precisely the type of discretionary, irregular unilateral conduct that the Supreme Court forbade in Katz. The Board in Tecnocap further overruled Raytheon’s holding (which Wendt did not address) that a past practice developed under or pursuant to a collectively bargained management-rights clause authorizing discretionary unilateral employer action constitutes a term and condition of employment that permits such continued unilateral conduct following expiration of the agreement containing the clause.
Member Kaplan dissented. He maintained his adherence to Raytheon. He disagreed with the majority that Raytheon is contrary to the Supreme Court's holding in Katz, and asserted the majority articulated an impossibly restrictive past-practice standard that will make it virtually impossible for an employer to justify a unilateral action based on a past practice. Applying the Raytheon standard, Member Kaplan would affirm the judge’s finding that the Respondent demonstrated that it acted consistently with an established past practice in adjusting employees’ work schedules to include 12-hour and 11-hour work shifts, and accordingly would dismiss the complaint.
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC. Administrative Law Judge Kimberly Sorg-Graves issued her decision on August 30, 2022. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated in the decision.
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American Federation for Children, Inc. (28-CA-246878 and 28-CA-262471; 372 NLRB No. 137) State of Arizona, August 26, 2023.
The Board (Chairman McFerran and Members Wilcox and Prouty; Member Kaplan, dissenting) reversed the Administrative Law Judge’s conclusion that an employee had not engaged in protected concerted activity by her advocacy among her fellow employees for the rehire of a former colleague. In doing so, the Board held that the former colleague, whose re-application for employment was pending (and contingent on a determination of her eligibility to work in the United States), was an employee under established Board precedents holding that applicants are employees under the Act. Because she was an employee, the majority concluded, efforts taken by an employee for the former colleague’s benefit fall within Section 7’s coverage of activities for employees’ “mutual aid or protection.”
Alternatively, the Board held, even if the former colleague was not an employee, the employee’s advocacy for such a nonemployee is nonetheless protected by Section 7 because (1) this case implicates the well-established solidarity principle, where aid to a nonemployee may reasonably be expected to ultimately lead to some reciprocal benefit to employees; and (2) the Respondent’s employees would likely benefit from the reinstatement of a valued colleague whose work would tend to benefit all of them. In so holding, the Board reversed its decision in Amnesty International of the USA, Inc., 368 NLRB No. 112 (2019), which had held that advocacy for nonemployees (interns who worked alongside statutory employees, in that particular case) was not “for … mutual aid or protection” of employees.
Having found that the employee engaged in protected concerted activity, the Board thus remanded the case to the judge to revisit the allegation (that the judge had dismissed) that the employee was unlawfully discharged in retaliation for such activity. The Board also remanded several other allegations dismissed by the judge (including Section 8(a)(4) post-discharge retaliation, threats, and other interference with Section 7 rights), that turned on whether the employee had engaged in protected concerted activity or where the judge had otherwise failed to take account of relevant considerations.
The Board also found, in the absence of exceptions to the judge’s finding, that the Respondent violated Section 8(a)(1) by its maintenance of the “Confidentiality” and “Solicitation and Distribution of Literature” provisions in its employee handbook.
Dissenting, Member Kaplan argued that Amnesty International did not apply here because the former colleague was found to be an employee (unlike the interns in Amnesty International) and because, even if the former colleague were a nonemployee, the employee’s advocacy for the former colleague was found to have been undertaken to improve other employees’ working conditions (unlike the advocacy for the interns in Amnesty International). As such, Member Kaplan contended, the overruling of Amnesty International here was nonprecedential dicta.
Member Kaplan further argued, in his dissent, that the Board had departed from the theory of the case as alleged by the General Counsel, by basing its finding of protected concerted activity on the employee’s interactions with individuals whom the General Counsel had alleged to be supervisors. Member Kaplan also contended that the employee’s discharge was for conduct separate from her advocacy for a former colleague–calling her supervisor a “racist” – that was unprotected, and therefore not unlawful. Member Kaplan therefore would affirm the judge’s dismissal of her unlawful discharge and would similarly affirm, rather than remand, the judge’s dismissal of the other contested allegations in the case.
Charge filed by an individual. Administrative Law Judge Ariel L. Sotolongo issued his decision on August 11, 2021. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated.
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Miller Plastic Products, Inc. (06-CA-266234; 372 NLRB No. 134) Burgettstown, PA, August 25, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee for raising concerns about the Respondent’s COVID protocols and its decision to remain open for business. In doing so, the Board unanimously agreed with the judge that the employee’s COVID-related complaints constituted concerted activity under extant law, including the Board’s decision in Alstate Maintenance, LLC, 367 NLRB No. 68 (2019).
A Board majority (Chairman McFerran and Members Wilcox and Prouty) further found that Alstate Maintenance invited unwarranted restrictions on what constitutes concerted activity under Section 7. Accordingly, the majority overruled Alstate Maintenance and returned to the Board’s traditional approach, which examines the totality of the record evidence. Applying this standard to the facts of this case, the majority adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging the employee.
Member Kaplan, concurring in the result, disagreed with the majority's decision to reach the holding in Alstate Maintenance. He also contended that Alstate Maintenance was correctly decided and did not need to be overruled.
Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on May 27, 2022. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Hannam Chain USA, Inc. (31-RC-312241) Los Angeles, CA, August 30, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting a hearing. Petitioner—California Restaurant and Retail Workers Union. Chairman McFerran and Members Kaplan and Prouty participated.
Charter Communications Operating, LLC (20-RD-322396) Honolulu, HI, September 1, 2023. The Board denied the Employer’s Request for Review of the Acting Regional Director’s mail ballot determination as it raised no substantial issues warranting review. The Board also denied the Employer’s request for a stay of the election as moot. Petitioner—an individual. Union—International Brotherhood of Electrical Workers, Local Union 1186. Chairman McFerran and Members Kaplan and Prouty participated.
C Cases
United States Postal Service (07-CA-301929) Grand Rapids, MI, August 29, 2023. The Board denied the Respondent’s Motion to Dismiss the Complaint or for Summary Judgment. The Board found that the Respondent had not demonstrated that the complaint fails to state a claim upon which relief can be granted and 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. Charge filed by an individual. Chairman McFerran and Members Kaplan and Prouty participated.
United Food and Commercial Workers Local 540 (Tyson Foods) (16-CB-247294 and 16-CB-290440) Center, TX, August 30, 2023. No exceptions having been filed to the July 18, 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. Charges filed by individuals.
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Appellate Court Decisions
Xcel Protective Services, Inc., Board Case No. 19-CA-232786 (reported at 371 NLRB No. 134) (D.C. Cir. decided June 23, 2023).
In an unpublished judgment, the Court enforced the Board’s order that issued against this contractor that provides security for multiple federal government facilities, including the United States Navy base on Indian Island, near Seattle, Washington, where 50 security officers are represented by the International Union, Security, Police, and Fire Professionals of America, Local 5. The Board (Chairman McFerran and Member Wilcox; Member Ring, dissenting in part) found that Xcel violated Section 8(a)(1) by discharging a security officer for raising a shared workplace safety concern about Xcel’s failure to follow Navy weapons-qualification policies, and rejected Xcel’s defense that that he forfeited the Act’s protection by making maliciously false statements. In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusions that Xcel violated Section 8(a)(1) by telling employees they would not be allowed to go home early because someone had raised a pay-related complaint, and violated Section 8(a)(5) and (1) by failing to timely provide information requested by the Union.
Before the Court, Xcel challenged only the Board’s finding that it unlawfully discharged the security officer. However, in its defense, Xcel raised three arguments that it had not raised before the Board, which the Court therefore held were barred from review under Section 10(e) of the Act. On the arguments that were preserved for review, the Court held that the Board’s conclusions were amply supported by substantial evidence. For instance, on Xcel’s claim that the discharge was justified by the security officer’s maliciously untrue statements, the Court agreed with the Board that he was truthful in raising the workplace safety concerns about weapons qualification, including Xcel’s longstanding practice of using unauthorized locations to qualify guards and altering targets. The Court also rejected Xcel’s challenges to the Board’s Wright Line analysis and held that the Board’s findings were supported by substantial evidence. Finally, the Court summarily enforced those portions of the Board’s order remedying the uncontested violations.
The Court’s judgment is here.
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Administrative Law Judge Decisions
RATP Dev USA, Inc. (05-CA-280582; JD-57-23) Washington, D.C. Administrative Law Judge Michael A. Rosas issued his decision on August 30, 2023. Charge filed by an individual.
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