Summary of NLRB Decisions for Week of December 12 -16, 2022
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
American Postal Workers Union, Local 3067 (United States Postal Service) (15-CB-292874; 372 NLRB No. 20) New Iberia, LA, December 12, 2022.
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 and/or refusing to process a grievance concerning the Employer threatening to issue discipline to the Charging Party and by failing to respond to the Charging Party’s request to file a grievance.
Charge filed by an individual. Chairman McFerran and Members Kaplan and Prouty participated.
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Thryv, Inc. (20-CA-250250 and 20-CA-251105; 372 NLRB No. 22) San Francisco, CA, December 13, 2022.
The unanimous Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to respond to the Union’s request for necessary and relevant information. Reversing the judge’s conclusion that Respondent’s layoffs were lawful because the parties bargained to impasse, the unanimous Board found that the Respondent violated Section 8(a)(5) and (1) by laying off six employees without providing the Union notice and an opportunity to bargain. Chairman McFerran and Members Wilcox and Prouty found that the Respondent presented the layoff decision as a fait accompli and that the Respondent was precluded from declaring a lawful impasse because of the Respondent’s failure and refusal to respond to the Union’s requests for necessary and relevant information. The Respondent’s bargaining subsequent to the unilateral layoffs did not “cure” its unlawful conduct. Finally, Chairman McFerran and Members Wilcox and Prouty found that the Respondent was under an additional duty to refrain from making unilateral changes as it was in the midst of bargaining a successor contract with the Union, and therefore had to refrain from making unilateral changes unless it could establish that the parties reached impasse as to the agreement as a whole. Concurring in part, Members Kaplan and Ring would find that the Respondent’s unilateral layoffs were unlawful, as the decision was presented to the Union as a fait accompli.
After considering the arguments of the briefs submitted by the parties and interested amici in response to a Notice and Invitation to File Briefs on the issue of consequential damages, a Board majority (Chairman McFerran and Members Wilcox and Prouty) determined that in all pending and future cases the respondent must compensate affected employees for all direct or foreseeable pecuniary harms incurred as a result of the respondent’s unfair labor practices. The Board retroactively applied this standard to the current case.
Dissenting in part, Members Kaplan and Ring agreed with their colleagues in the majority that the Board should compensate affected employees for all losses suffered as a direct result of an unfair labor practice, and for losses indirectly caused by an unfair labor practice where the causal link between the loss and the unfair labor practice is sufficiently clear. Members Kaplan and Ring, however, would find the majority’s “direct or foreseeable” formulation overbroad and perhaps beyond the scope of the Board’s authority, and accordingly decline to join in the majority’s adoption of that standard. Members Kaplan and Ring would further find that one element of pecuniary harm sought by the Charging Party, a restoration of the laid-off sales peoples’ books of business, is an element of reinstatement rather than an aspect of make-whole relief.
Charges filed by International Brotherhood of Electrical Workers, Local 1269. Administrative Law Judge John T. Giannopoulos issued his decision on April 23, 2021. Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty participated.
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Blue School (02-CA-294227 and 02-CA-292782; 372 NLRB No. 18) New York, NY, December 14, 2022. Errata to December 8, 2022 Decision. Errata Amended Decision.
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American Steel Construction, Inc. (07-RC-269162; 372 NLRB No. 23) Livonia, MI, December 14, 2022.
The Board (Chairman McFerran and Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) revised the standard it applies in bargaining-unit determination cases where a union seeks to represent a unit that contains some, but not all, of the job classifications at a particular workplace. The Board majority reinstated the framework articulated in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), thereby overruling the standard articulated in PCC Structurals, Inc., 365 NLRB No. 160 (2017) and as revised in The Boeing Co., 368 NLRB No. 67 (2019). The Board majority remanded the case to the Regional Director for further action appropriate with its decision. Members Kaplan and Ring, dissenting, would have adhered to the standard articulated in PCC Structurals and Boeing.
Petitioner—Local 25, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers (Ironworkers), AFL-CIO. Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty participated.
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RAV Truck & Trailer Repairs, Inc. (02-CA-220395; 372 NLRB No. 25) Bronx, NY, December 14, 2022.
On remand from the D.C. Circuit Court, the Board unanimously reaffirmed its finding that the Respondent violated Section 8(a)(3) and (1) by closing RAV Truck and Trailer Repairs, Inc. with a purpose of chilling union activity at its other facility, Concrete Express of NY, LLC, and where it reasonably could have been foreseen that this partial closure would have a chilling effect. In addressing concerns raised by the Court that the underlying Board decision did not fully square with the requirements under Textile Workers v. Darlington, 380 U.S. 263 (1965), the Board found that the Respondent’s closure of RAV was motivated by the employees’ union organizing activity. A Board majority (Members Kaplan and Ring; Member Prouty, dissenting in part), addressing concerns raised by the Court about the feasibility of a restoration order, found that the prior restoration and bargaining orders were no longer appropriate because RAV’s lease expired, leaving it with no place in which to lawfully operate, and because four years had passed since its initial closure.
Dissenting in part, Member Prouty would have reaffirmed the Board’s Order requiring the Respondent to restore RAV and bargain with the Union. He would have found that the Respondent had adequate space in which to operate RAV, and that the Respondent failed to show that bringing the space into compliance with state law would be unduly burdensome or that passage of time would prevent it from operating successfully.
Charge filed by Teamsters Local 456, International Brotherhood of Teamsters. Administrative Law Judge Benjamin W. Green issued his decision on July 15, 2019. Members Kaplan, Ring, and Prouty participated.
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Volvo Group North America, LLC (15-CA-179071, et al.; 372 NLRB No. 27) Byhalia, MS, December 14, 2022.
The Board adopted the Administrative Law Judge’s conclusions that deferral to the grievance settlement regarding an employee’s suspension was appropriate and that deferral to the arbitrator’s decision upholding the employee’s discharge was not appropriate. A Board majority (Members Kaplan and Ring) reversed the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging the employee. The majority found that there was insufficient evidence of animus towards the employee’s protected activity. Dissenting in part, Member Prouty would have affirmed the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging the employee, finding there was sufficient evidence of both animus and pre-text.
Charges filed by an individual. Administrative Law Judge Sharon Levinson Steckler issued her decision on September 20, 2021. Members Kaplan, Ring, and Prouty participated.
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Sunbelt Rentals, Inc. (18-CA-236643, et al., 372 NLRB No. 24) Franksville, WI, December 15, 2022.
A full Board majority (Chairman McFerran and Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) reaffirmed the bright-line, per se standard set forth in Johnnie’s Poultry for evaluating whether employer interrogations of employees in preparation for Board proceedings are lawful. Applying Johnnie’s Poultry, the majority adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by interrogating two employees without providing the required assurances. The Board majority found that the Johnnie’s Poultry standard is rational and consistent with the Act, and that it appropriately balances the competing interests at stake. Contrary to the criticism of some courts, the majority found that such interrogations are not protected by Section 8(c), and that the totality of the circumstances test advanced by these courts has significant shortcomings compared to the Board’s per se approach.
Dissenting, Members Kaplan and Ring argued that the majority’s per se application of the Johnnie’s Poultry standard and refusal to consider other relevant circumstances is at odds with Supreme Court and circuit court precedent and the Act, and that it is also unenforceable in many of the Federal courts of appeals. Members Kaplan and Ring would adopt a rebuttable presumption standard, asserting that it resolves the problems identified by those courts while retaining all of the benefits of the current Johnnie’s Poultry standard. They would apply a rebuttable presumption standard retroactively here and remand the issue to the judge for further proceedings.
Charges filed by International Union of Operating Engineers, Local 139, AFL-CIO. Administrative Law Judge Michael A. Rosas issued his decision on May 13, 2020. Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty participated.
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American Steel Construction, Inc. (07-RC-269162; 372 NLRB No. 23) Livonia, MI, December 15, 2022. Errata to December 14, 2022 Decision. Errata Amended Decision.
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Spectrum Health Services, Inc. (04-CA-264558; 372 NLRB No. 21) Philadelphia, PA, December 15, 2022.
The Board granted the Respondent’s Motion for Summary Judgment and dismissed the complaint alleging an unlawful discharge. The Board deferred to an arbitration award that found the Respondent lawfully discharge an employee for violating the HIPAA Confidentiality Policy governing access to patient records. The arbitrator found that the employee was discharged for this confidentiality breach and not her protected activity. Because the arbitration award was not repugnant to the Act, deferral was warranted under the Board’s Spielberg/Olin deferral standard.
Charge filed by National Union of Hospital and Health Care Employees (NUHHCE), AFSCME, AFL-CIO and its affiliate District 1199C. Chairman McFerran and Members Kaplan and Ring participated.
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Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts (16-CA-193636; 372 NLRB No. 28) San Antonio, TX, December 16, 2022.
On remand from the D.C. Circuit Court, which granted the Union’s Request for Review of the Board’s decision, a full Board majority (Chairman McFerran and Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) found that the Respondent violated Section 8(a)(1) by barring off-duty San Antonio Symphony employees—who regularly work on property not owned by their Employer—from accessing the Respondent’s property to engage in Section 7 activity. The Board majority retroactively returned to the previous court-approved test announced in New York New York Hotel & Casino, 356 NLRB 907 (2011), that a property owner may lawfully exclude from its property off-duty employees, who regularly work on the property for an onsite contractor and who seek to engage in Section 7 activity on the property, only where the property owner is able to demonstrate that the contractor employees’ Section 7 activity significantly interferes with the use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline. The Board majority reasoned that the contractor employees seeking to exercise their own nonderivative Section 7 rights are much more closely aligned to those of the property owner’s own employees than to nonemployee union organizers whose Section 7 access rights derive from the rights of employees who work on the property. The Board majority also, in acknowledging that a property owner generally has the right to control access to and use of its property, noted that property owners have the legal right and practical ability to fully protect its interests through its contractual and working relationship with the contractor without barring off-duty contractor employees from accessing the property and depriving them of their Section 7 rights. Accordingly, the Board majority concluded that the New York New York Board reached a proper accommodation of the competing interests—the contractor employees’ Section 7 rights on the one hand and a property owner’s property rights on the other—by ensuring that a property owner, even after utilizing its contractual and working relationship with its contractor to protect their property rights, does not have to permit significant interference with its property for Section 7 activity, but that, in the absence of such interference, off-duty contractor employees—like all other statutory employees—are able to realize the rights granted to them under Section 7.
Dissenting, Members Kaplan and Ring noted that the Supreme Court articulated guiding principles in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), for determining the extent to which property owners are required to permit access to their private property by individuals seeking to engage in Section 7 activity, including that employees’ Section 7 rights are not absolute, that there is a distinction “of substance” between the union activities of employees versus those of nonemployees, and that nonemployees are not entitled to access private property to engage in Section 7 activity unless they have no reasonable alternative means of communicating their message. The dissent contended that the Board in this case granted contractor employees—nonemployees of the property owner—the same Section 7 access rights as the property owner’s own employees, subject to a nominal, and thus meaningless, exception. Moreover, the dissent argued that the majority’s decision cannot be reconciled with Supreme Court precedent by ignoring the Court’s directive that the yielding of private property rights to accommodate nonemployees is only necessary in certain contexts and that, by effectively equating contractor employees with property owners’ employees, the majority wrongfully promotes the near total deprivation of private property owners’ right to exclude nonemployees and fails to give any real acknowledgement of the rights of property owners.
Charge filed by Local 23, American Federation of Musicians. Administrative Law Judge Arthur J. Amchan issued his decision on December 5, 2017. Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty participated.
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Grill Concepts Services, Inc. d/b/a The Daily Grill (31-CA-276950; 372 NLRB No. 30) Los Angeles, CA, December 16, 2022.
The unanimous Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain in good faith with the Union. The Board rejected the Respondent’s claim that its duty to bargain was obviated by the COVID-19 pandemic. A Board majority (Members Wilcox and Prouty) found that the Respondent’s bad-faith bargaining violation dated back to, at the latest, November 11, 2020, six months before the unfair labor practice charge was filed. Both Members Wilcox and Prouty, however, agreed that the Respondent’s conduct before November 11, 2020 was relevant to determine what remedies were necessary and proper to rectify the Respondent’s unfair labor practice. As he dissented to the remedies imposed, Member Ring would find it unnecessary to determine the exact date the Respondent’s bad-faith bargaining began, finding it sufficient that the Respondent failed and refused to bargain on December 11, 2020 and thereafter.
Examining the seriousness of the Respondent’s extended bad-faith bargaining and the Respondent’s recidivist tendencies, the Board majority consisting of Members Wilcox and Prouty found that restitution of bargaining expenses incurred by the Union, compensation paid to employee negotiators for their hours spent negotiating with the Respondent, a notice-reading remedy in both English and Spanish, and a broad cease-and-desist order were warranted to rectify the Respondent’s unfair labor practice. Dissenting in part, Member Ring would decline to order these remedies, finding that traditional Board remedies would be sufficient. The unanimous Board agreed that an affirmative bargaining order and the imposition of a bargaining schedule was justified in this case.
Charge filed by UNITE HERE Local 11. Administrative Law Judge Dickie Montemayor issued his decision on March 15, 2022. Members Ring, Wilcox, and Prouty participated.
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Troutbrook Company, LLC d/b/a Brooklyn 181 Hospitality, LLC (29-CA-275229; 372 NLRB No. 26) Brooklyn, NY, December 16, 2022.
The Board (Chairman McFerran and Member Prouty; Member Ring, dissenting) adopted the Administrative Law Judge’s conclusion that that the Respondent violated Section 8(a)(5) and (1) by failing to bargain in good faith due to its refusal to discuss economic subjects of bargaining with the Union until all non-economic subjects were resolved. The Board also granted the Union’s request for an extension of the certification year pursuant to Mar-Jac Poultry Co., 136 NLRB 785 (1962). Dissenting, Member Ring would dismiss the allegation that the Respondent violated Section 8(a)(5) and (1) by failing to bargain in good faith and would also deny the Union’s request for an extension of the Union’s certification year.
Charge filed by New York Hotel and Motel Trades Council, AFL-CIO. Administrative Law Judge Lauren Esposito issued her decision on December 1, 2021. Chairman McFerran and Members Ring and Prouty participated.
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County Concrete Corporation (22-CA-238625; 372 NLRB No. 29) Newark, NJ, December 16, 2022.
The Board unanimously reversed the Administrative Law Judge’s conclusion that the Respondent’s midterm contract modification violated Section 8(d) and Section 8(a)(5) and (1) by unilaterally changing the administrator of its self-funded employee health insurance plan. The Board found that the Respondent had a sound arguable basis to believe that its contract with the Union did not prohibit it from making the change. Concurring, Chairman McFerran agreed with her colleagues that, applying Bath Iron Works, 345 NLRB 499 (2005), the Respondent did not violate the Act. In her view, the Board should consider revisiting Bath Iron Works in a future appropriate case, to examine points made in then-Member Liebman’s dissent there. She further noted that that the General Counsel could have potentially fared better under a unilateral change theory, however, the Board was not permitted to address that theory on due process grounds.
Charge filed by Local 863, International Brotherhood of Teamsters. Administrative Law Judge-Jeffrey P. Gardner issued his decision on September 17, 2021. Chairman McFerran and Members Kaplan and Ring participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Geodis Logistics, LLC (15-RD-217294 and 15-RD-231857) Memphis, TN, December 14, 2022. The Board denied the Petitioner’s Request for Review of the Regional Director’s Order denying Petitioner’s Request to Reinstate the decertification petitions as it raised no substantial issues warranting review. The Regional Director initially dismissed the petitions based on then-pending unfair labor practice charges and the Board’s blocking charge policy, and later approved a settlement of those charges, but then subsequently revoked the settlement and reissued consolidated complaints alleging pre- and post-settlement violations. In denying review, the Board noted that a Regional Director—acting on behalf of the General Counsel in unfair labor practice cases—may properly revoke approval of a settlement agreement and issue a complaint under certain circumstances. In such a procedural posture, the Administrative Law Judge in the unfair labor practice cases (and the Board if exceptions are filed) must decide whether the settlement was properly revoked and, if so, whether the respondent committed the various alleged unfair labor practices, both pre-and post-settlement. The Board cannot decide what are essentially unfair labor practice issues in the context of the representation cases. The Board also noted that the denial of review is without prejudice to the Petitioner’s reasserting her claim, if appropriate after disposition of the unfair labor practice proceedings, that the parties’ settlement agreement requires reinstatement of the petitions. Member Ring agreed that the propriety of the settlement revocation is not litigable in the representation case proceeding, but also adhered to the views expressed in his concurring opinion in Geodis Logistics, LLC, 371 NLRB No. 102 (2022). 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 Ring and Wilcox participated.
C Cases
Troy Grove a Div. of Riverstone Group Inc., and Vermillion Quarry a Div. of Riverstone Group Inc. (25-CA-234477, et al.) Moline, IL, December 14, 2022. The Board denied the Respondent’s Motion to Reopen the Record as the Respondent failed to show that extraordinary circumstances justified the motion or that the proffered evidence would require a different result. The Respondent’s motion addressed a remedial matter and the Board defers such matters to compliance. Charges filed by International Union of Operating Engineers Local 150. Chairman McFerran and Members Ring and Wilcox participated.
Starbucks Corporation (19-CA-294579, et al.) Seattle, WA, December 15, 2022. The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s Order denying its petition to revoke the General Counsel’s subpoena duces tecum. The Board found that the Respondent’s obligation to provide documents responsive to the subpoena was resolved by the “Joint Exhibits and Stipulations of Facts” previously executed by the parties. Charges filed by Workers United Labor Union International, a/w Service Employees International Union. Chairman McFerran and Members Kaplan and Wilcox participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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