Summary of NLRB Decisions for Week of December 11 - 15, 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
Universal Protection Service, LLC d/b/a Allied Universal Security Services (04-RC-295105; 373 NLRB No. 3) Philadelphia, PA, December 13, 2023.
The Board granted the Petitioner’s Request for Review of the Regional Director’s Decision and Order as it raised substantial issues warranting review. The Board held that the Regional Director improperly dismissed the Petitioner’s petition on the grounds that the Petitioner also represents employees who are not guards within the meaning of Section 9(b)(3). The Board concluded that, in the Section 9(b)(3) context, the burden of establishing noncertifiability rests with the party asserting it; thus, the legal issue presented in this case was whether the Employer could establish, by definitive evidence, that the employees in contention are not guards. The Board found that the Employer failed to meet its burden and accordingly reinstated the petition and reversed and remanded to the Regional Director.
Petitioner—Philadelphia Security Officers Union. Chairman McFerran and Members Kaplan and Wilcox participated.
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Harbor Freight Tools USA, Inc. (28-CA-232596; 373 NLRB No. 2) Flagstaff, AZ, December 15, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the solicitation portion of Respondent’s “Solicitation/Distribution” rule violated Section 8(a)(1) as that portion was overbroad because it failed to clarify that the solicitation ban does not extend to employees’ working areas during their nonworking time. The Board rejected Respondent’s argument that, in a retail setting, an employer may permissibly ban employees from soliciting on the selling floor even during nonworking time. The Board found that the instant solicitation ban fails to clearly limit employee solicitation in the “selling areas” of the Respondent’s retail stores. Further, in light of the Board’s recent decision in Stericycle, Inc., 372 NLRB 113 (2023), which overruled Boeing, the Board severed and remanded to the judge, for further consideration under Stericycle, the allegation regarding the “Proprietary and Confidential Information” rule. Finally, as to the “Social Media and Networking Guidelines” rule, in the absence of exceptions, the Board affirmed the judge’s dismissal of this allegation without passing on whether this rule is lawful under Boeing.
Charge filed by an individual. Administrative Law Judge Gerald M. Etchingham issued his decision on March 12, 2021, and errata on April 20, 2021. Chairman McFerran and Members Prouty and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Laborforce, LLC (13-UC-322354) Summit, IL, December 13, 2023. The Board denied the Employer-Petitioner’s Request for Review of the Regional Director’s dismissal of the unit clarification petition as it raised no substantial issues warranting review. Petitioner—Laborforce, LLC. Union—Automobile Mechanics Local 701, International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman McFerran and Members Kaplan and Wilcox participated.
Starbucks Corporation (14-RC-289926) Overland Park, KS, December 15, 2023. The Board denied the Employer’s and Petitioner’s Requests for Review of the Regional Director’s Decision and Direction of Second Election as they raised no substantial issues warranting review. The Board also denied the Employer’s motion to reopen the record. The Board denied the Petitioner’s and Employer’s requests for extraordinary relief as moot, and did not rule on the Employer’s motion to strike the Petitioner’s Request for Review, as it had denied the Petitioner’s request. Petitioner—Chicago and Midwest Regional Joint Board, Workers United/SEIU. Chairman McFerran and Members Prouty and Wilcox participated.
C Cases
ExxonMobil Corp., Beaumont Refinery (16-CA-276089, et al.) Beaumont, TX, December 11, 2023. The Board denied the Respondent’s and the Union’s Requests for Special Permission to Appeal two evidentiary rulings in the Administrative Law Judge’s written order. The Board found that the Respondent and the Union failed to establish that the judge abused his discretion or that his rulings could not be appropriately addressed at a later stage of the proceeding. The Board’s denial was without prejudice to the parties’ right to renew their objections before the Board on any exceptions that may be filed to the judge’s decision, if appropriate. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO. Chairman McFerran and Members Prouty and Wilcox participated.
Starbucks Corporation (09-CA-300652) Louisville, KY, December 12, 2023. The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order but denied the appeal on the merits. The Board found that the Respondent had failed to establish that the judge abused her discretion by requiring it to provide subpoenaed documents in the format(s) requested; produce a custodian of records, if necessary, or risk the imposition of sanctions; and produce the cell phones, emails, or other social media accounts of its managers, supervisors, or agents if they were used to conduct company business. Charge filed by Chicago & Midwest Regional Joint Board, an affiliate of Workers United SEIU. Chairman McFerran and Members Prouty and Wilcox participated.
Ingersoll-Rand Industrial U.S., Inc. (25-CA-291614 and 25-CA-300604) Goshen, IN, December 12, 2023. The Board denied the Respondent’s Motion for Partial Summary Judgment, finding that the Respondent had 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. Charges filed by International Union of Operating Engineers, Local 150, AFL-CIO. Chairman McFerran and Members Prouty and Wilcox participated.
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Appellate Court Decisions
Oakrheem, Inc. d/b/a Hayward Convalescent Hospital, Board Case No. 32-CA-294577 (reported at 372 NLRB No. 7) (9th Cir. decided December 13, 2023).
In an unpublished memorandum decision, the Ninth Circuit enforced the Board’s bargaining order that issued in this test-of-certification case against this operator of a convalescent care facility in Hayward, California, after a unit of its nursing assistants and support staff voted 34 to 4 in a June 2021 election to be represented by Service Employees International Union Local 2015. In doing so, the Court held that the Board acted within its discretion in overruling the Employer’s sole election objection without holding a hearing.
In the underlying representation case, the Employer filed an objection claiming that setting aside the election was warranted because a statutory supervisor had passed out union cards to employees two weeks prior to the election. The Regional Director issued a decision finding the Employer’s offer of proof was insufficient on its face and did not warrant holding a hearing. The Regional Director noted that the offer of proof did not contain specific evidence of supervisory status, and that even assuming that status, it contained no specific evidence that the purported supervisor had in fact passed out cards or engaged in coercive conduct affecting the election. Accordingly, the Regional Director overruled the objection and certified the Union. The Employer filed a Request for Review, which was denied by the Board (Chairman McFerran and Members Kaplan and Wilcox). The Employer then refused to bargain in order to seek court review.
On review, the Court upheld the Board’s determination to overrule the election objection without holding a hearing. Agreeing with the Board, the Court held that the offer of proof contained “only vague and conclusory allegations,” and failed to identify supporting evidence, such as the identity of each witness to be called to testify and a summary of each witness’s testimony, as required by the Board’s rules. Instead, the Court stated, the offer of proof “only described a hearsay report and then promised it would establish the facts later.” The Court also noted that the offer of proof failed to identify any employee who was actually coerced or intimidated, and that, under settled law, a supervisor passing out union cards, without more, would not constitute inherently coercive conduct that would require an election to be set aside.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Atomic Fire Protection, LLC (13-CA-305638; JD-81-23) Riverwoods, IL. Administrative Law Judge Sarah Karpinen issued her decision on December 11, 2023. Charge filed by Sprinkler Fitters Local 281.
Starbucks Corporation (27-CA-296848, et al.; JD(SF)-38-23) Salt Lake City, UT. Administrative Law Judge John T. Giannopoulos issued his decision on December 12, 2023. Charges filed by Chicago and Midwest Regional Joint Board, Workers United/SEIU.
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