Summary of NLRB Decisions for Week of December 18 - 22, 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
Flow Service Partners OP-CO, LLC d/b/a Perfection Heating, Air Conditioning, and Refrigeration, LLC (25-CA-292574 and 25-CA-293162; 373 NLRB No. 4) Evansville, IN, December 19, 2023.
In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by instructing two employees to wear their company-issued T-shirts rather than their union organizer T-shirts. The Board also adopted the judge’s conclusion that the General Counsel failed to prove that the Project Manager is a statutory supervisor, and therefore dismissed all allegations related to the Project Manager.
Finally, the Board adopted the judge’s dismissal of allegations that the Respondent violated Section 8(a)(3) and (1) by laying off the two employees. The Board found that, even assuming the General Counsel sustained her initial burden under Wright Line of demonstrating that the union activity of the two employees was a motivating factor in the decision to lay them off, the Respondent nevertheless met its WrightLine defense burden of demonstrating that it would have laid them off because of a lack of work even in the absence of their union activity.
Charges filed by Sheet Metal Workers, Air, Rail, and Transportation Workers Local Union No. 20 a/w International Association of Sheet Metal, Air, Rail, and Transportation Workers. Administrative Law Judge Charles J. Muhl issued his decision on April 18, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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East Freight Logistics, LLC d/b/a Ortiz Services (19-CA-296059; 373 NLRB No. 7) Salem, OR, December 22, 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(a)(1) by refusing to pay employees their unpaid back wages; assaulting an employee because they and two other employees requested their unpaid back wages; and constructively terminating the three employees because of their protected, concerted activity and to discourage other employees from engaging in protected, concerted activities.
Charge filed by individuals. Chairman McFerran and Members Kaplan and Wilcox participated.
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ExxonMobil Global Services Company (16-CA-269606; 373 NLRB No. 5) Spring, TX, December 22, 2023.
The Board (Chairman McFerran and Member Prouty; Member Kaplan, dissenting) remanded allegations that the Respondent violated Section 8(a)(1) by maintaining an overly broad confidentiality policy and further violated Section 8(a)(1) by discharging an employee for violating that policy and for engaging in protected concerted activity. The Board directed the Administrative Law Judge, on remand, to reopen the record, if necessary, and to prepare a supplemental decision applying the legal framework recently announced in Stericycle, Inc., 372 NLRB No. 113 (2023), where the Board adopted a modified version of the framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Member Kaplan, dissenting, found it unnecessary to remand the case to the judge.
Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on April 12, 2022. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Universal Protection Service, LLC, d/b/a Allied Universal Security Services (12-RC-286390) Florida City, FL, December 19, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and Certification of Representative as it raised no substantial issues warranting review. Petitioner—International Union, Security, Police and Fire Professionals of America. Chairman McFerran and Members Kaplan and Wilcox participated.
Fresenius Management Services, Inc. (20-RC-315035) Elk Grove, CA, December 22, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election. The Board found that the Employer’s Social Workers and Dieticians share a sufficient community of interest to constitute an appropriate unit. While the Board agreed with the Regional Director determination, the Board weighed the community-of-interest factors somewhat differently. Petitioner—Service Employees International Union, United Healthcare Workers-West. Chairman McFerran and Members Kaplan and Wilcox participated.
Universal Intermodal Services, Inc. (13-RC-317558) Harvey, IL, December 22, 2023. The Board denied the Employer's Request for Review of the Regional Director's Decision Overruling Objection and Certification of Representative as it raised no substantial issues warranting review. The Board noted that even if it were to credit the testimony of the Employer's election observer about what the Board agent did and said during the first voting session over the testimony of the Petitioner's witnesses, the Board would find that the observer's testimony taken as a whole did not establish grounds for setting aside the election. Petitioner—Teamsters Local Union No. 705. Chairman McFerran and Members Kaplan and Wilcox participated.
C Cases
Harper Holdings, LLC, d/b/a Juvly Aesthetics (09-CA-300239, et al.) Cincinnati, OH, December 22, 2023. The Board denied the Respondent’s Motion to Partially Dismiss portions of specified paragraphs of the consolidated complaint. The Respondent had not demonstrated that the complaint fails to state a claim upon which relief can be granted and that it is entitled to judgment as a matter of law. Charges filed by individuals. Chairman McFerran and Members Kaplan and Wilcox participated.
Southwest Key Programs, Inc. (28-CA-298718 and 28-CA-298719) El Paso, TX, December 22, 2023. The Board denied the Respondent’s Motion to Dismiss specified paragraphs of the Second Consolidated Complaint because the Respondent did not demonstrate that they were deficient. The Board further found that the complaint provided sufficient information to satisfy the notice-pleading requirements of Section 102.15 of the Board’s Rules. Charges filed by International Union of Operating Engineers, Local 351. Chairman McFerran and Members Kaplan and Wilcox participated.
Starbucks Corporation (18-CA-295458 and 18-CA-297433) Madison, WI, December 22, 2023. The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s determination that additional evidentiary sanctions and adverse inferences were warranted against the Respondent for its continued noncompliance with the General Counsel’s subpoena, its duty to provide a privilege log, and several rulings of the judge and special master. Because the hearing had already closed, the Board found no need for interlocutory relief. The Board noted that its denial of permission to appeal was without prejudice to the Respondent’s right to renew its objections before the Board on exceptions, if appropriate. Charges filed by United Food and Commercial Workers, Local 1473. Chairman McFerran and Members Kaplan and Wilcox participated.
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Appellate Court Decisions
New York Presbyterian Hudson Valley Hospital, Board Case No. 02-CA-258244 (reported at 372 NLRB No. 15) (2nd Cir. decided on December 18, 2023).
In an unpublished summary decision, the Second Circuit enforced the Board’s order that issued against this hospital in Cortlandt Manor, New York, for unlawfully discharging a registered nurse who was an active union supporter. After the Hospital’s registered nurses voted in a December 2018 election to be represented by the New York State Nurses Association, the parties held multiple bargaining sessions with little progress over the next year. A group of nurses, frustrated with the Hospital’s bargaining positions, planned to approach their manager after an employer-convened town-hall meeting to invite her to attend negotiations and to present her with signed cards urging the Hospital to resume giving annual merit increases. To join the group, a nurse, who was an active union supporter and a member of the Union’s negotiating team, left the operating room, where she was serving as a preceptor, or trainer, working with an experienced RN orientee. After arranging backup and explaining how she could be reached immediately, she joined the group and returned to the operating room 28 minutes later. As a result of the group meeting and the manager’s angry reaction to it, the hospital opened an investigation and fired the nurse days later. Applying Wright Line, and finding a violation of Section 8(a)(3) and (1), the Board (Chairman McFerran and Member Prouty; Member Ring, dissenting) determined that the nurse’s union activity was a motivating factor in the Hospital’s decision to discharge her, and that the Hospital’s stated justification for her discharge was pretextual.
On review, the Court held that the Board’s findings were supported by substantial evidence. Rejecting the Hospital’s contention that its animus towards the nurse’s union activity had not been established, the Court held that the Board properly found animus based on statements made by the manager, the immediacy of the investigation into the nurse’s conduct, and the timing of her discharge. With regard to the Hospital’s argument that it discharged the nurse for misconduct for leaving the operating room without obtaining coverage from a qualified nurse, the Court held the contention was contrary to the record evidence. The Court noted that the record did not contain written guidelines of any such requirement, and that, in fact, it demonstrated that preceptor nurses were permitted to judge whether orientees were ready to serve without them nurse in the operating room. Here, the Court noted, the nurse determined that the orientee was qualified based on his previous experience, and further, that she confirmed that he knew how to reach her, or other nurses, if he needed assistance.
Lastly, the Court rejected the Hospital’s contention that it had not received a fair hearing because the Administrative Law Judge, due to the COVID-19 pandemic, had held the unfair-labor-practice proceedings by remote video. The Court noted that video testimony is provided for under the Board’s rules “upon a showing of good cause based on compelling circumstance,” and upheld the Board’s finding that the pandemic qualified as such “compelling circumstances” warranting a remote hearing.
The Court’s decision is here.
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Administrative Law Judge Decisions
Starbucks Corporation (27-CA-307542; JD-82-23) Superior, CO. Administrative Law Judge Ira Sandron issued his decision on December 19, 2023. Charge filed by Workers United – Chicago and Midwest National Joint Board (SEIU), Local 304.
Whole Foods Markets, Inc. (01-CA-263079, et al.; JD(SF)-39-23) various locations. Administrative Law Judge Ariel L. Sotolongo issued his decision on December 20, 2023. Charges filed by individuals.
Starbucks Corporation (19-CA-301179; JD(SF)-42-23) Seattle, WA. Administrative Law Judge Dickie Montemayor issued his decision on December 20, 2023. Charge filed by Workers United Labor Union International, a/w Service Employees International Union.
Penske Truck Leasing Co., L.P. (09-CA-302248; JD-83-23) Cincinnati, OH. Administrative Law Judge G. Rebekah Ramirez issued her decision on December 20, 2023. Charge filed by International Association of Machinists and Aerospace Workers, District No. 34, Lodge No. 804.
Starbucks Corporation (19-CA-292276 and 19-CA-307871; JD(SF)-41-23) Seattle, WA. Administrative Law Judge Dickie Montemayor issued his decision on December 20, 2023. Charges filed by Workers United Labor Union International, a/w Service Employees International Union.
Big Green (27-CA-276068, et al.; JD(SF)-40-23) Broomfield, CO. Administrative Law Judge Dickie Montemayor issued his decision on December 20, 2023. Charges filed by an individual and Denver Newspaper Guild-Communications Workers of America, Local 37074, AFL-CIO.
United Food and Commercial Workers Union Local 135, AFL-CIO, et al. (21-CE-300089, JD(SF)-43-23) Los Angeles, CA. Administrative Law Judge Amita Baman Tracy issued her decision on December 21, 2023. Charge filed by Ralphs Grocery Company.
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