Summary of NLRB Decisions for Week of December 4 - 8, 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
International Longshoremen’s Association, Local 1294 (Federal Marine Terminals, Inc.) (03-CB-320712; 372 NLRB No. 160) Albany, NY, December 6, 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(b)(1)(A) by failing to refer a unit employee from its exclusive hiring hall for arbitrary or discriminatory reasons and by refusing to provide the employee with requested information. It further found that the Respondent violated Section 8(b)(2) by causing an employer to discriminate against its employees in violation of Section 8(a)(3).
Charge filed by an individual. Chairman McFerran and Members Prouty and Wilcox participated.
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Phillips 66 Company (15-CA-263723; 373 NLRB No. 1) Belle Chasse, LA, December 6, 2023.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by enforcing its camera rules to discipline employees for engaging in protected concerted activity. In light of the recent decision in Stericycle, Inc., 372 NLRB No. 113 (2023), the Board severed and remanded for further consideration the allegation that the Respondent violated Section 8(a)(1) by maintaining overly broad camera rules. The Board ordered notice-mailing due to changes to the Respondent’s facility resulting in most of its employees having been laid off.
Charge filed by an individual. Administrative Law Judge Andrew S. Gollin issued his decision on September 16, 2022. Chairman McFerran and Members Prouty and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Starbucks Corporation (03-RD-317482) Rochester, NY, December 5, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order Dismissing Petition as it raised no substantial issues warranting review. Member Kaplan, dissenting, would have granted review and found that the petition should be processed. Petitioner—an individual. Union—Workers United. Members Kaplan, Prouty, and Wilcox participated.
Starbucks Corporation (14-RC-292753) Kansas City, Mo, December 5, 2023. The Board denied the Petitioner’s Request for Review of the Regional Director’s letter denying its Motion to Block Re-Run Election as it raised no substantial issues warranting review. The Petitioner’s request for extraordinary relief was also denied. Petitioner—Chicago & Midwest Regional Joint Board—Workers United/SEIU. Chairman McFerran and Members Kaplan and Prouty participated.
Trinity Health Grand Haven Hospital (07-RD-323100) Grand Haven, MI, December 7, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Order on Objections and Certification of Representative as it raised no substantial issues warranting review. In denying review, the Board noted well-established precedent holding that an alleged postelection loss of majority support is not relevant to the question of whether a union should be certified as the result of a properly conducted Board election. The Employer’s Motion for Stay of Proceedings was also denied. Petitioner—an individual. Union—SEIU Healthcare Michigan. Chairman McFerran and Members Kaplan and Wilcox participated.
Raytheon Company (28-RC-298614) White Sands, NM, December 8, 2023. The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, finding it necessary to remand the case to the Regional Director to reopen the record to receive evidence to create a sufficient record under the new unit-determination framework instituted in American Steel Construction, Inc., 372 NLRB No. 23 (2022). Petitioner— International Association of Machinists & Aerospace Workers, Local Lodge 2515, AFL-CIO. Chairman McFerran and Members Kaplan and Wilcox participated.
C Cases
Medieval Times U.S.A., Inc. and Medieval Knights, LLC (22-CA-301865, et al.) Lyndhurst, NJ, December 5, 2023. The Board denied the Respondent’s Motion to Dismiss Paragraph 9 (and its cross-reference in Paragraph 16) of the third consolidated amended complaint on the basis that it is time-barred under Section 10(b) of the Act. The Respondent failed to demonstrate that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law on the timeliness issue. The Board’s denial was without prejudice to the Respondent’s right to raise its defense under Section 10(b) before the Administrative Law Judge and before the Board on any exceptions that may be filed to the judge’s decision, if appropriate. Charges filed by American Guild of Variety Artists. Chairman McFerran and Members Prouty and Wilcox participated.
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Appellate Court Decisions
Strategic Technology Institute, Inc., Board Case No. 15-CA-249872 (reported at 371 NLRB No. 137) (8th Cir. decided December 6, 2023).
In a published opinion, the Court granted the petition filed by this government contractor headquartered in Rockville, Maryland, for review of the Board’s order that issued to remedy unfair labor practices committed while it was under contract to provide aircraft maintenance services at the Little Rock Air Force Base. In September 2019, while a campaign to organize 60 employees working on the base was underway by International Association of Machinists and Aerospace Workers, the Employer discharged 3 employees for the stated reason that they were responsible for leaving a screwdriver in a jet engine, and another 14 employees just days later, because they were ranked as poor performers. The Board (Chairman McFerran and Members Kaplan and Prouty) found that the Employer violated Section 8(a)(3) and (1) by its mass discharge of the 17 employees. Further, the Board (Member Kaplan, dissenting) found that the Employer acted unlawfully by creating and placing verbal counseling forms into the files of 14 of the discharged employees for their union organizing activities.
On review, the Court viewed the record evidence differently and disagreed with the Board’s Wright Line analysis. With respect to the first 3 discharges, the Court held that there was an insufficient “connection or nexus” to infer unlawful motive because there was no direct link to union activity. Further, the Court rejected the Board’s finding that the stated reason for the discharges was pretextual and accepted the Employer’s contention that they were discharged for safety violations. Regarding the 14 subsequent discharges, the Court found that the Board’s use of the small-plant doctrine to infer knowledge of union activity was insufficient under circuit precedent without additional evidence, which the Court found lacking. On the Board’s finding that the falsified verbal counseling forms were evidence of pretext, the Court viewed them as insufficient to overcome evidence that the discharges were based on performance. Accordingly, the Court vacated the Board’s order and remanded for proceedings consistent with its opinion.
The Court’s opinion is here.
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Administrative Law Judge Decisions
DS Services of America, Inc. (32-CA-290045; JD-(SF)-36-23) Manteca, CA. Administrative Law Judge Brian D. Gee issued his decision on December 4, 2023. Charge filed by Teamsters Local 439, International Brotherhood of Teamsters.
Siren Retail Corporation, d/b/a Starbucks Reserve Roastery (02-CA-305984; JD(NY)-21-23) New York, NY. Administrative Law Judge Michael P. Silverstein issued his decision on December 6, 2023. Charge filed by Workers United, a/w Service Employees International Union.
Starbucks Corporation (19-CA-296765, et al.; JD(SF)-37-23) Portland, OR, December 5. Errata to decision issued on November 27, 2023. Errata Amended Decision.
Garten Trucking LC (10-CA-304929; JD-70-23) Covington, VA. Administrative Law Judge Geoffrey Carter issued his decision on December 7, 2023. Charge filed by Association of Wester Pulp and Paper Workers.
Comunicadores Graficos, Inc., d/b/a CG Printing Group (12-CA-304101; JD-80-23) Canovanas, PR. Administrative Law Judge Michael A. Rosas issued his decision on December 8, 2023. Charge filed by Union de Periodistas, Artes Graficas y Ramas Anexas.
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