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Summary of NLRB Decisions for Week of December 5 - 9, 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

New York Presbyterian Hudson Valley Hospital  (02-CA-258244; 372 NLRB No. 15)  Cortland Manor, NY, December 5, 2022.

The Board (Chairman McFerran and Member Prouty; Member Ring, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging an employee, an operating room nurse, for engaging in protected activity and that the employee did not lose protection of Act by leaving the operating room to engage in union activity. Dissenting, Member Ring found that the General Counsel failed to establish anti-union animus toward the employee and that the employee lost the protection of the Act because she left a patient in the operating room during surgery.

Charge filed by New York State Nurses Association.  Administrative Law Judge Jeffrey P. Gardner issued his decision on August 11, 2021.  Chairman McFerran and Members Ring and Prouty participated.

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GHG Management LLC d/b/a Windy City Cannabis  (13-CA-295623; 372 NLRB No. 13)  Chicago, IL, December 5, 2022.

The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the grounds that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union. 

Charge filed by United Food & Commercial Workers Local 881.  Members Kaplan, Wilcox, and Prouty participated.

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Siren Retail Corporation d/b/a Starbucks  (19-CA-299478; 372 NLRB No. 10)  Seattle, WA, December 6, 2022.  Errata to November 30, 2022 decision.  Errata   Amended decision.

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Bakery, Confectionery, Tobacco Workers & Grain Millers International Union, Local No. 37  (31-CB-279889; 372 NLRB No. 17)  Los Angeles, CA, December 6, 2022.

On a stipulated record, the Board concluded that the Respondent had violated Section 8(b)(3) by cutting off negotiations with the Employer over a successor collective-bargaining agreement.  The Board rejected the Respondent’s contention that the complaint’s allegations should be deferred to the parties’ grievance-arbitration procedure.

Charge filed by Frisco Baking Company.  Chairman McFerran and Members Kaplan and Ring participated.

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International Brotherhood of Teamsters, Local 70 (United Parcel Service (UPS))  (32-CB-279104; 372 NLRB No. 19)  Oakland, CA, December 6, 2022.

The Board (Chairman McFerran and Member Kaplan; Member Ring, dissenting), adopted the Administrative Law Judge’s conclusion that the Union violated Section 8(b)(1)(A) by threatening employees with bodily harm or other unspecified reprisals in response to an employee’s protected comments.  Dissenting, Member Ring would find that the employee’s comments were purely individual gripes and therefore, the Union official’s comments did not restrain or coerce employees in the exercise of the Section 7 rights.

Charge filed by an individual.  Administrative Law Judge Eleanor Laws issued her decision on January 14, 2022.  Chairman McFerran and Members Kaplan and Ring participated.

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ArrMaz Products, Inc.  (12-CA-294086; 372 NLRB No. 12)  Mulberry, FL, December 6, 2022.

The Board (Chairman McFerran and Member Wilcox; Member Ring, dissenting in part) granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  The Board severed for further consideration the issue of whether the Board should overrule Ex-Cell-O-Corp., 185 NLRB 107 (1970), and adopt a compensatory remedy for the Respondent’s refusal to bargain. Dissenting in part, Member Ring joined the panel as to the refusal to bargain issue, but would have taken up the compensatory remedy issue rather than sever it. Member Ring would have held that Ex-Cell-O-Corp was correctly decided and would have declined to award a compensatory remedy.

Charge filed by International Chemical Workers Union Council of the United Food and Commercial Workers International Union, AFL–CIO, CLC.  Chairman McFerran and Members Ring and Wilcox participated.

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Blue School  (02-CA-294227 and 02-CA-292782; 372 NLRB No. 18)  New York, NY, December 8, 2022.

The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the grounds that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.  The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.  The Board severed for further consideration the issue of whether the Board should adopt a compensatory, make whole remedy for the Respondent’s refusal to bargain and an independent Section 8(a)(1) allegation.

Charges filed by Local 2110, Technical, Office & Professional Union, UAW.  Chairman McFerran and Members Kaplan and Ring participated.

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Absolute Healthcare d/b/a Curaleaf Arizona  (28-CA-267540; 372 NLB No. 16)  Gilbert, AZ, December 8, 2022.

The Board (Members Wilcox and Prouty; Member Ring, dissenting) adopted the Administrative Law Judge's conclusion that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for engaging in protected activity. The Board found that the General Counsel met its initial Wright Line burden and went on to find that the Respondent failed to meet its rebuttal burden.  Dissenting, Member Ring found that, even assuming the General Counsel satisfied her initial Wright Line burden, the Respondent met its rebuttal burden by showing that it would have discharged the employee even absent her union activity.

Charge filed by an individual.  Administrative Law Judge Dickie Montemayor issued his decision on February 8, 2022.  Members Ring, Wilcox, and Prouty participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Pier 55, Inc., d/b/a Little Island  (02-RC-278451)  Manhattan, NY, December 9, 2022.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objection and Certification of Representative as it raised no substantial issues warranting review.  Petitioner—Theatrical Protective Union, Local No. One, IATSE, AFL-CIO, CLC.  Chairman McFerran and Members Ring and Wilcox participated.

Virtua Health, Inc.  (04-UC-292217)  Marlton, NJ, December 9, 2022.  The Board denied the Petitioner’s Request for Review of the Regional Director’s dismissal of its unit clarification petition, finding it raised no substantial issues warranting review.  Petitioner—JNESO District Council 1, International Union of Operating Engineers, AFL-CIO.  Chairman McFerran and Members Kaplan and Wilcox participated.

C Cases

Starbucks Corporation  (21-CA-296716)  La Quinta, CA, December 5, 2022.  The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order granting the General Counsel and Charging Party’s separate petitions to revoke subpoenas duces tecum served by the Respondent on two of its employees.  The Board found that the Respondent failed to establish that the judge’s order could not be appropriately addressed at a later stage of the proceeding and denied the request without prejudice to the Respondent’s right to renew its objections before the Board on exceptions, if appropriate.  Charge filed by Workers United a/w Service Employees International Union.  Chairman McFerran and Members Kaplan and Prouty participated.

Texas TransEastern and Robert Half International, as joint employers  (16-CA-280275)  Pasadena, TX, December 8, 2022.  The Board granted the General Counsel’s Request for Special Permission to Appeal the Administrative Law Judge’s approval of a settlement agreement, revoked the approval, and remanded the proceeding to the judge for further processing, without prejudice to further settlement negotiations consistent with its Order.  Charge filed by an individual.  Members Kaplan, Wilcox, and Prouty participated.

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Appellate Court Decisions

Frontier Communications Corp., Board Case No. 09-CA-247015 (reported at 370 NLRB No. 131) (4th Cir. decided December 7, 2022).

In an unpublished opinion, the Court enforced the Board’s order that issued against this telecommunications company that provides services to customers in West Virginia and parts of Virginia, and employs 1,300 technicians and other employees who are represented by Communications Workers of America, District 2-13.  For compliance with the Immigration Reform and Control Act of 1986 (IRCA), Frontier is required to obtain I-9 forms and supporting documentation from employees to verify their identity and eligibility for employment in the United States.  After an attempt at compliance had failed several years earlier, Frontier determined that it lacked proper documentation for over 90 percent of employees who were hired after November 6, 1986, when IRCA went into effect, and before March 31, 2018, when Frontier implemented I-9 software for new hires.

To obtain the missing I-9 forms and supporting documentation, Frontier directly emailed employees with detailed instructions on how to proceed without first notifying the Union.  After the Union became aware that Frontier had implemented a compliance plan, it requested bargaining and lists of employees whose I-9 materials were either missing or deficient and related information.  In response, Frontier replied that it had no duty to bargain or provide the information.  On those facts, the Board (Chairman McFerran and Members Kaplan and Ring) found that Frontier violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with an opportunity to bargain over the effects of its compliance plan, and by refusing to provide the Union with the requested information.

On review, the Court held that the Board’s decision was supported by substantial evidence and consistent with law.  Relying on settled principles, the Court rejected Frontier’s argument that because it had no choice but to adhere to the IRCA’s recordkeeping requirements, it accordingly had no duty to bargain with the Union over its compliance plan or provide information.  In agreement with the Board, the Court noted that Frontier had “ample room to negotiate,” and that “the discretionary elements of Frontier’s I-9 request are not extraneous, inconsequential details — they have direct ‘effects’ on employees’ terms and conditions of employment.”  Further, the Court held that Frontier was required to provide the Union with the requested information related to its compliance plan, and unlawfully refused to do so.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Starbucks Corporation  (21-CA-296716; JD(SF)-32-22)  La Quinta, CA.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on December 6, 2022.  Charge filed by Workers United a/w Service Employees International Union.

CenturyTel of Montana, Inc., a subsidiary of Lumen Technologies, Inc., f/k/a CenturyLink, Inc.  (19-CA-283839; JD(SF)-31-22)  State of Montana.  Administrative Law Judge Mara-Louise Anzalone issued her decision on December 6, 2022.  Charge filed by International Brotherhood of Electrical Workers, Local 768.

John Gore Theatrical Group, Inc.  (02-CA-286802; JD(NY)-13-22)  New York, NY.  Administrative Law Judge Jeffrey P. Gardner issued his decision on December 6, 2022.  Charge filed by Actors Equity Association.

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