Summary of NLRB Decisions for Week of December 19 -23, 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
Valley Health System, LLC d/b/a Desert Springs Hospital Medical Center, and Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center (28-CA-184993, et al.; 372 NLRB No. 33) Las Vegas, NV, December 16, 2022.
On remand from the Ninth Circuit Court, which granted the Union’s Request for Review of the Board’s January 30, 2020 decision, the Board (Members Wilcox and Prouty; Member Ring, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondents violated Section 8(a)(5) and (1) by unilaterally ceasing to deduct dues after the expiration of the parties’ collective-bargaining agreements. In accordance with Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center (Valley Hospital II), 371 NLRB No. 160 (2022), the Board majority found that the Respondents were obligated to continue to honor the dues-checkoff arrangements established in their expired collective-bargaining agreements with the Union until they either reached successor collective-bargaining agreements or valid overall impasses in bargaining. The Board majority noted that the Labor Management Relations Act (LMRA) is silent on what must be expressly stated in the employees’ written assignment and that, even though the authorization forms signed by the unit employees did not explicitly reference employees’ right to revoke their authorizations at the termination of the applicable collective-bargaining agreement, this omission neither invalidated the authorizations nor permitted the Respondents to unilaterally decide not to honor them. The Board majority noted that, with the signed authorization forms in their possession, and without any indication of unit employees seeking to revoke their authorizations, the Respondents were obligated under Section 8(a)(5) to maintain the status quo created under the expired collective-bargaining agreements and that, to the extent they were genuinely concerned about continuing to deduct union dues pursuant to what they alleged were the Union’s invalid authorization forms, the Respondents had several options that would have demonstrated their good-faith efforts to honor their statutory obligation instead of unilaterally ceasing the dues deductions in contravention of Section 8(a)(5).
In dissent, Member Ring noted that he continued to adhere to his dissent in Valley Hospital II and would have found that the Respondents did not violate Section 8(a)(5) and (1) because an employer’s obligation to check off union dues ended when their collective-bargaining agreements containing the dues-checkoff provisions expired. In addition, Member Ring argued that Section 302 of the LMRA compelled the Respondents to cease the dues checkoff because the dues-checkoff authorization forms executed by the Respondents’ unit employees did not provide them the opportunity to revoke their authorizations “upon the termination of the collective-bargaining agreement” as Section 302(c)(4) mandates. Member Ring posited that, once the Respondents knew they were not shielded from liability under Section 302(c)(4) if they continued to check off dues pursuant to the invalid authorization forms, the Respondents had to stop dues checkoff, and did not violate Section 8(a)(5) by doing so without bargaining with the Union, because whether to continue checking off dues pursuant to Section 302(c)(4)-noncompliant authorizations would have been an illegal subject of bargaining and exposed the Respondents to criminal sanctions under Section 302(d). Member Ring also took issue with the Board majority’s views that Section 302(c)(4) does not require that the written assignment use any specific language or reflect the statutory periods during which employees can revoke their authorizations and that the Respondents failed to demonstrate any good-faith efforts to honor their statutory obligation.
Charges filed by Service Employees International Union, Local 1107. Administrative Law Judge Dickie Montemayor issued his decision on September 28, 2018. Members Ring, Wilcox, and Prouty participated.
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Coreslab Structures (Tulsa) Inc. (14-CA-248354 and 14-CA-248812; 372 NLRB No. 31) Tulsa, OK, December 16, 2022.
The Board unanimously found that the Respondent violated Section 8(a)(3) and (1) by not providing contractual pension contributions to bargaining unit employees who were not members of the Union and by making profit-sharing benefits available to them, but not to the Union members. On the same facts, a Board majority (Chairman McFerran and Member Prouty) adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by making midterm contract modifications to its pension provision, by failing to give the Union notice and an opportunity to bargain over profit-sharing benefits, and by failing to bargain in good faith for a successor collective-bargaining agreement. Dissenting in part, Member Ring would find that the Respondent did not violate Section 8(a)(5) and (1) based on the Union’s knowledge of the pension and profit-sharing practices, and would also find no bad faith bargaining violation.
The Board unanimously adopted the judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union based on a disaffection petition tainted by its discriminatory benefits practices, by failing to fully respond to the Union’s request for information on the Respondent’s profit-sharing practices, and by subsequently ceasing to contribute pension benefits for all employees. The Board also unanimously adopted the judge’s conclusions that the Respondent violated Section 8(a)(1) by prohibiting an employee from talking to the Union during non-working time in a non-working area.
Charges filed by International Union of Operating Engineers, Local 627, AFL-CIO. Administrative Law Judge Robert A. Ringler issued his decision on February 11, 2021. Chairman McFerran and Members Ring and Prouty participated.
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MVM, Inc. (28-RC-288965; 372 NLRB No. 32) Phoenix, AZ, December 16, 2022.
The Board (Members Kaplan and Ring; Chairman McFerran, dissenting) granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Second Election, as it raised substantial issues warranting review. Applying the three-factor test set forth in Woodman’s Food Markets, 332 NLRB 503 (2000), the Board found that the Employer did not act in bad faith or with gross negligence and that it had substantially complied with the voter list requirement when it failed to include home phone numbers for the five out of 92 employees who had them on the voter list because the employee compiling the list mistakenly believed that each of the Employer’s 92 employees had only his or her cell phone number listed in the home phone number data category.
Dissenting, Chairman McFerran concluded that the Employer’s conduct amounted to gross negligence and that it did not substantially comply with the voter list requirement, and therefore would have affirmed the Regional Director’s direction of a second election.
Petitioner—International Union, Security, Police and Fire Professionals of America (SPFPA). Chairman McFerran and Members Kaplan and Ring participated.
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NCRNC, LLC d/b/a Northeast Center for Rehabilitation and Brain Injury ( 03-CA-252090 et al. ; 372 NLRB No. 35) Lake Katrine, NY, December 16, 2022.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(3) and (1) by discharging two employees because of their union activities and violated Section 8(a)(1) by: discharging a statutory supervisor for refusing to commit an unfair labor practice; surveilling employees; creating the impression that employees’ union activities were under surveillance; blaming the Union for a wage freeze; and threatening and coercively interrogating an employee. However, the Board reversed the judge’s conclusion that the Respondent violated Section 8(a)(1) by instructing its managers to surveil employees. Dissenting in part, Member Ring would have dismissed the complaint’s allegations that the Respondent unlawfully surveilled employees’ union activities, discharged a supervisor for refusing to commit an unfair labor practice, and threatened and coercively interrogated an individual whom Member Ring found to be a statutory supervisor.
Charges filed by 1199 SEIU United Healthcare Workers East and by an individual. Administrative Law Judge Ira Sandron issued his decision on April 21, 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 20, 2022. Errata to December 16, 2022 decision. Errata Amended Decision.
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Cintas Corporation No. 2 (28-CA-258167; 372 NLRB No. 34) Phoenix, AZ, December 16, 2022.
The Board (Chairman McFerran and Member Wilcox; Member Ring, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening an employee with loss of promotional opportunities after the employee had engaged in protected concerted activity. Member Ring, dissenting, would find that under the totality of the circumstances, the Respondent’s statement did not have a reasonable tendency to coerce employees in the exercise of their Section 7 rights.
The Board majority also found that the Respondent violated Section 8(a)(1) by refusing to rescind the employee’s purported resignation/termination. The majority found animus against the employee’s protected concerted activities based on the timing of the discharge, management communications about the employee, and pretextual justifications for the discharge, and found no reason to overrule any of the judge’s credibility determinations. Dissenting, Member Ring would find that the General Counsel did not meet her initial burden of proof, as he would find insufficient evidence of animus.
Charge filed by an individual. Administrative Law Judge Lisa D. Ross issued her decision on December 27, 2021. Chairman McFerran and Members Ring and Wilcox participated.
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International Longshoremen’s Association, AFL–CIO, CLC (United States Maritime Association, Ltd.) (10-CE-271053, et al.; 372 NLRB No. 36) Charleston, SC, December 16, 2022.
The Board adopted the Administrative Law Judge’s conclusion that the ILA, ILA Local 1422, and USMX did not violate Section 8(e) by maintaining language in their collective-bargaining agreement requiring USMX to “formally notify any port authority contemplating the development of or intending to develop a new container handling facility that USMX members may be prohibited from using that new facility if the work at that facility is not performed by Master Contract-bargaining-unit employees.” (Emphasis added.) The Board majority (Members Wilcox and Prouty) reversed the judge’s conclusion that ILA violated Sections 8(e) and 8(b)(4(4)(ii)(A) and (B) because its lawsuit had a secondary objective of acquiring the lift work at the new terminal or requiring USMX and carrier members to cease doing business there. The majority reasoned that the lawsuit had a lawful primary, work-preservation objective, i.e., preserving longshore work throughout the coastal unit and that USMX carrier members controlled which ports they called at. Dissenting, Member Ring would find that in filing the lawsuit, ILA sought to acquire the lift work for the employees it represents—an unlawful secondary objective because USMX had no power to assign that work to ILA-represented employees.
Charges filed by International Longshoremen’s Association, AFL-CIO, CLC, Local 1422, United States Maritime Alliance, Ltd., State of South Carolina, and South Carolina State Ports Authority. Administrative Law Judge Andrew S. Gollin issued his decision on September 16, 2021. Members Ring, Wilcox, and Prouty participated.
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KM Building Care, Inc. (05-CA-279016; 372 NLRB No. 38) Centreville, VA, December 21, 2022.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file a timely answer to the complaint. The Board found that the Respondent violated Section 8(a)(1)by threatening, interrogating, and making coercive statements to employees. The Board further found that the Respondent violated Section 8(a)(3) and (1) by laying off or discharging four employees and those similarly situated and by refusing to recall from layoff or, in the alternative, hire one employee and those similarly situated.
Charge filed by Service Employees International Union, Local 32BJ a/w Service Employees
International Union. Chairman McFerran and Members Kaplan and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Burrtec Kern, LLC (31-UD-303553) Bakersfield, CA, December 23, 2022. The Board denied the Union’s Request for Review of the Regional Director’s letter directing a deauthorization election as it raised no substantial issues warranting review. Petitioner—an individual. Union—Teamsters Local 87. Chairman McFerran and Members Kaplan and Wilcox participated.
Starbucks Corporation (19-RC-295849) Seattle, WA, December 23, 2022. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Certain Objections as it raised no substantial issues warranting review. Petitioner—Workers United a/w Service Employees International Union. Chairman McFerran and Members Kaplan and Wilcox participated.
C Cases
Starbucks Corporation (19-CA-294579, et al.) Seattle, WA, December 19, 2022. Errata to December 15, 2022 decision. Errata Amended Decision.
Liquor, Wine Sales Representatives, Warehousemen, Clerical, Distillery, Rectifying, Tire, Plastic and Allied Workers Union, Local 3 (Sazerac Company, Inc.) (09-CC-298028, et al.) Louisville, KY, December 19, 2022. The Board granted United Food and Commercial Workers International Union, CLC (UFCW) Local 2D’s Request for Special Permission to Appeal from the Regional Director’s Order, but denied the appeal on the merits. The Board found that UFCW Local 2D failed to show that the Regional Director abused his discretion in denying its motion to relocate the hearing to the New York metropolitan area or to Cincinnati, Ohio, or in denying its alternative request for a remote hearing. Charges filed by Sazerac Company, Inc. Chairman McFerran and Members Kaplan and Prouty participated.
Elm Community Charter School (29-CA-285334 and 29-CA-290857) Brooklyn, NY, December 20, 2022. No exceptions having been filed to the November 3, 2022 decision of Administrative Law Judge Jeffrey P. Gardner’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charges filed by United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO.
Vision Battery USA, Inc. (16-CA-271723) Plano, TX, December 22, 2022. No exceptions having been filed to the November 9, 2022 supplemental decision of Chief Administrative Law Judge Robert A. Ginnasi’s finding that the Respondent had not met its burden of establishing eligibility under the Equal Access to Justice Act, the Board adopted the judge’s findings and conclusions, and his Order becomes the Order of the Board. Charge filed by an individual.
Big Green (27-CA-299716) Bloomfield, CO, December 23, 2022. The Board denied the Respondent’s Motion to Dismiss the Complaint, finding that the Respondent failed to demonstrate that the complaint fails to state a claim upon which relief can be granted. Charge filed by Denver Newspaper Guild - Communications Workers of America, Local 37074, AFL-CIO. Charmain McFerran and Members Kaplan and Wilcox participated.
United States Postal Service (16-CA-280632) Galveston, TX, December 23, 2022. In this case alleging Section 8(a)(5) and (1) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charges filed by American Postal Workers Union, Houston Area Local 185, a/w American Postal Workers Union, AFL-CIO. 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
Hospital Espanol Auxilio Mutuo de Puerto Rico, Inc. (12-CA-285457 and 12-CA-298868; JD-74-22) Hato Rey, PR. Administrative Law Judge Arthur J. Amchan issued his decision on December 20, 2022. Charges filed by Unidad Laboral de Enfermeras (OS) y Empleados de la Salud.
ADT, LLC (09-CA-286214, et al.; JD-73-22) Louisville and Lexington, KY. Administrative Law Judge Andrew S. Gollin issued his decision on December 23, 2022. Charges filed by International Brotherhood of Electrical Workers, Local Union No. 369, AFL-CIO.
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