Summary of NLRB Decisions for Week of December 9 - 13, 2024
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
Endurance Environmental Solutions, LLC (09-CA-273873; 373 NLRB No. 141) Florence, KY, December 10, 2024.
A full Board majority (Chairman McFerran and Members Prouty and Wilcox; Member Kaplan, dissenting) reconsidered the standard to be applied in unfair labor practice cases arising under Section 8(a)(5) and (1) to evaluate an employer’s affirmative defense that employees, through their union representative, contractually surrendered the fundamental statutory right “to bargain collectively” with respect to wages, hours, or other terms and conditions of employment. The Board overruled MV Transportation, Inc., 368 NLRB No. 66 (2019), in which an earlier Board majority had adopted the contract coverage test for evaluating such defenses. Under the contract coverage test, the Board examined the plain language of the parties’ collective-bargaining agreement to determine whether a disputed change or subject matter was within the compass or scope of any contractual provision granting the employer a right of unilateral action. If so, the Board would find that the contract authorized the employer’s failure or refusal to bargain, even if the contract did not specifically mention, refer to, or address the employer decision or subject matter at issue.
The Board found that the contract coverage test adopted in MV Transportation undermines the Act’s central policy of promoting industrial stability by encouraging collective bargaining. It also conflicts with Supreme Court precedent affirming that contractual waivers of statutorily protected rights must be “explicitly stated” and “clear and unmistakable.”
The Board therefore restored the clear and unmistakable waiver standard, which was followed by the Board for more than 70 years and endorsed by the Supreme Court in 1967. Under the clear and unmistakable standard, the Board will not lightly infer a waiver of the statutory right to bargain. The Board will instead look to the precise wording of relevant contract provisions, and management rights clauses couched in general terms and which do not refer to any particular subject will not be construed as waivers. A waiver of bargaining rights may also be evidenced by bargaining history, but the evidence must show that the specific issue was “fully discussed and consciously explored” during negotiations and that “the union consciously yielded or clearly and unmistakably waived its interest in the matter.”
The Board explained that the clear and unmistakable waiver standard better effectuates the Act’s central goal of reducing and eliminating the causes of industrial strife by encouraging the practice and procedure of collective bargaining. It also better achieves consistency with Supreme Court and Board precedent and with the test applied by the majority of the federal Courts of Appeals.
The Board found it appropriate to apply the restored standard retroactively in the case, but it left open the question of whether to apply the standard retroactively in all pending cases. Applying the restored standard, the Board found that the management rights clause in the parties’ collective-bargaining agreement lacked the degree of specificity required to constitute a clear and unmistakable waiver of the Union’s right to bargain over the Respondent’s decision to install cameras to monitor and potentially discipline unit employees or the effects of that decision on unit employees’ terms and conditions of employment. The Board also found no evidence of waiver in the parties’ bargaining history. Accordingly, the Board held that the Respondent violated the Act by failing to provide the Union with notice and opportunity to bargain over the decision and its effects, and by failing and refusing to bargain over those subjects on request by the Union.
In dissent, Member Kaplan asserted that the majority’s overruling of MV Transportation was dicta. In his view, the Board’s finding of a failure to bargain over the decision to install the security system in unit employees’ trucks was neither consistent with the violations alleged by the General Counsel in her complaint nor supported by the record facts. Accordingly, he would have dismissed the complaint on that basis alone. Member Kaplan also indicated that he continued to believe that the contract coverage test was the proper test to be applied, noting that the Board had adopted that test in MV Transportation in part because the clear and unmistakable waiver standard had been soundly rejected by several federal Courts of Appeals, including the D.C. Circuit. He further explained that he agreed with the view expressed both in MV Transportation and in those courts that the contract coverage test better effectuates the policies of the Act, aligns with ordinary principles of contract interpretation, and respects the parties’ negotiated agreements. Finally, Member Kaplan noted that, because any party can challenge a Board decision in the D.C. Circuit, the unavoidable result of the majority’s decision was that future Board decisions applying the clear and unmistakable waiver standard would be, for all intents and purposes, unenforceable.
Charge filed by Teamsters Local No. 100, an affiliate of the International Brotherhood of Teamsters, AFL–CIO. Administrative Law Judge Paul Bogas issued his decision on February 8, 2022. Chairman McFerran and Members Kaplan, Prouty, and Wilcox participated.
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Commonwealth Flats Dev. Corp. d/b/a/ Seaport Hotel Boston (01-CA-335996; 373 NLRB No. 142) Boston, MA, December 10, 2024.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the basis 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 UNITE HERE Local 26. Chairman McFerran and Members Prouty and Wilcox participated.
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Swissport Cargo Services, LP (22-RC-292717; 373 NLRB No. 144) Newark, NJ, December 10, 2024.
The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, which had found that the Employer was subject to the National Labor Relations Act, rather than the Railway Labor Act (RLA). While the Request for Review was pending, the Board had referred the case to the National Mediation Board (NMB) for an advisory opinion on whether the Employer’s operations in question were subject to the RLA. On review, the Board noted that in its advisory opinion, the NMB had discarded the jurisdictional test applied by the Regional Director, instead held that the RLA does not apply to contractors of common carriers by air, and concluded that the Employer is not subject to the RLA because the Employer is not a common carrier by air. Consistent with its policy of giving substantial deference to NMB opinions, the Board found that the Employer is not a common carrier by air and, consistent with the NMB’s revised position on the reach of the RLA, is therefore not subject to the RLA. The Board therefore affirmed the Regional Director’s Decision and Direction of Election.
Petitioner—International Association of Machinists and Aerospace Workers, AFL-CIO. Intervenor—Service Employees International Union, Local 32BJ. Chairman McFerran and Members Kaplan and Wilcox participated.
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B & L, Inc., d/b/a Boyds Drug Mart (18-CA-321513; 373 NLRB No. 143) Rapid City, SD, December 11, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by impliedly threatening to discharge employees, telling employees that it was not appropriate and disruptive for them to discuss other employees’ wages, telling employees that their way of communicating created a problem and must stop, and issuing a written warning to, and discharging, an employee for engaging in protected concerted activity.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on July 26, 2024. Chairman McFerran and Members Kaplan and Wilcox participated.
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Garten Trucking LC (10-CA-279843, et al.; 373 NLRB No. 147) Covington, VA, December 12, 2024.
The Board granted in part and denied in part the Charging Party’s Motion for Reconsideration of the Board’s Decision, Order, and Order Remanding in Part, reported at 373 NLRB No. 94 (2024). The Board agreed that its underlying Order did not specifically list the allegation regarding the employee handbook’s rule prohibiting employees’ personal use of the internet for remand and reconsideration under Stericycle, Inc., 372 NLRB No. 113 (2023), so the Board modified the Order to clarify that this rule should also be remanded. As to the remaining grounds for requesting reconsideration, the Board found that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration.
Charges filed by Association of Western Pulp and Paper Workers. Chairman McFerran and Members Kaplan and Wilcox participated.
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List Industries, Inc. (13-CA-278248, et al.; 373 NLRB No. 146) Munster, IN, December 12, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening to discharge employees because of their union activity; telling them that it would be futile to select union representation; threatening employees with job loss if they went on strike, and promising wage increases to discourage union support. The Board also adopted the judge's conclusions that the Respondent violated Section 8(a)(3) and (1) by announcing that it would strictly enforce its cell-phone policy and prohibiting cell phones and related devices on the shop floor because of employees' support for the Union; more closely supervising its employees because of their support for the Union; and suspending and discharging two employees because of their union activity. However, the Board reversed the judge’s finding that the Respondent violated Section 8(a)(1) by maintaining an overly broad distribution policy in its employee handbook and by creating the impression that union activity was under surveillance. Dissenting in part, Member Kaplan would remand the threat of job loss for going on strike allegation and would not find that the Respondent more closely supervised employees in violation of Section 8(a)(3) and (1). The Board affirmed the judge’s finding that the Respondent’s unlawful conduct before the election requires setting aside the results of the election and affirmatively ordering the Respondent to bargain with the Union.
Charges filed by International Brotherhood of Teamsters Local Union No. 142. Administrative Law Judge Sharon Levinson Steckler issued her decision on April 18, 2022, and on April 19, 2022, issued an Erratum. Chairman McFerran and Members Kaplan and Wilcox participated.
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Rieth-Riley Construction Co., Inc. (07-CA-285321, et al.; 373 NLRB No. 149) Goshen, IN, December 13, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by: 1) unilaterally changing employee compensation in June 2021 and in June 2022; 2) refusing to furnish information requested by the Union related to employee compensation; and 3) refusing to bargain with the Union. The Board also adopted the judge’s conclusion that the Respondent unlawfully withdrew recognition from the Union. A Board majority (Chairman McFerran and Member Prouty) ordered the Respondent to mail the notice to current and former employees. Member Kaplan would not order this remedy. Charges filed by Local 324, International Union of Operating Engineers (IUOE), AFL-CIO. Administrative Law Judge Christine E. Dibble issued her decision on August 23, 2023. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Jetstream Ground Services, Inc. (10-RC-304155) Charlotte, NC, December 11, 2024. The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, in part, and affirmed the Regional Director’s assertion of jurisdiction in light of the National Mediation Board’s advisory opinion. The Board denied review with respect to the Regional Director’s unit determination. Petitioner—International Association of Machinists and Aerospace Workers, AFL-CIO. Intervenor—Service Employees International Union, Local 32BJ. Chairman McFerran and Members Kaplan and Wilcox participated.
C Cases
ABC Priority Care Transport, LLC (16-CA-311627) La Porte, TX, December 12, 2024. The Board denied the Respondent’s Motion to Dismiss, finding the allegations in the complaint, if true, sufficient to establish the Board’s jurisdiction. To the extent the Respondent’s motion could be construed as asking for summary judgment, the Board found that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charge filed by an individual. Members Kaplan, Prouty, and Wilcox participated.
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Appellate Court Decisions
Alaris Health at Boulevard East, Board Case No. 22-CA-268083 (reported at 372 NLRB No. 6) (3d Cir. decided December 9, 2024).
In a published opinion, the Court enforced the Board’s order that issued against this nursing home in Guttenberg, New Jersey, where 65 certified nursing assistants, dietary employees, housekeepers, and recreational aides were represented by 1199 SEIU United Healthcare Workers East prior to the Home’s closure in November 2020. In April 2020, in the face of operational challenges created by the COVID-19 pandemic, and without providing the Union with notice and an opportunity to bargain, the Home unilaterally implemented a 25 percent bonus for hours worked, and then unilaterally increased the bonus to 100 percent for nursing and respiratory employees. Between May and July 2020, the Home unilaterally reduced or discontinued the bonuses, and disregarded the Union’s repeated requests to bargain before implementing changes.
The Board (Chairman McFerran and Members Kaplan and Ring) found that the Home violated Section 8(a)(5) and (1) by unilaterally rescinding, reducing, and discontinuing the employee bonuses. In doing so, the Board determined the bonuses were wages subject to mandatory bargaining because, among other things, they were considered “a form of hazard pay.” The Board rejected the Home’s argument that a management-rights clause in the parties’ long-expired collective-bargaining agreement survived the contract’s expiration and authorized its unilateral actions. The Board also granted partial summary judgment on the specific amounts of backpay alleged in the complaint because the Home had failed to adequately answer the allegations. The Home filed a Motion for Reconsideration, which the Board denied.
In a comprehensive and thorough opinion, the Court held that the Board’s factual findings were supported by substantial evidence, and that the Board had reached “the right answer” regarding the parties’ expired collective-bargaining agreement. As a preliminary matter, the Court discussed the traditional standards of review applicable to those issues, explaining that it has long recognized the Board’s “special expertise” in classifying bargaining subjects as terms and conditions of employment. Accordingly, the Court explained it has “traditionally deferred to the Board’s interpretations of the Act so long as they are ‘reasonable.” Noting there is “somewhat of an open question” whether that deference survives the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the Court commented: “It would appear to us, however, that judicial deference to the Board’s classifications of the ‘terms and conditions of employment’ under the Act is distinct from Chevron deference, as the Supreme Court’s decisions developing that deference to the Board predate Chevron. In fact, the Court noted, “Loper Bright distinguished Chevron deference from prior cases where it deferred to the Board’s interpretation of the Act.” Ultimately, however, the Court explained that it was not necessary to decide the deference issue because, even applying de novo review, it would reach the same conclusions as the Board. Lastly, the Court granted summary enforcement of the Board’s specific amounts of backpay.
The Court’s decision is here.
Capitol Street Surgery Center LLC, Board Case No. 25-CA-271204 (reported at 372 NLRB No. 8) (7th Cir. decided December 12, 2024).
In a published opinion, the Court denied enforcement of the Board’s order that issued against this ambulatory outpatient surgery center in Indianapolis, Indiana, where it employs, among others, interventional radiologic technologists (IR techs) to assist in operating room procedures. The Board (Chairman McFerran and Members Kaplan and Ring) found that the Center violated Section 8(a)(1) by discharging an IR tech who, during a staff meeting, had objected to Capitol assigning unlicensed personnel to operate a device called a C-Arm that is used for imaging during surgical procedures. Days later, Capitol discharged the IR tech without providing a reason, although it subsequently claimed he was fired for misconduct.
Before the Court, it was uncontested that the IR tech’s objection at the staff meeting constituted protected activity. In the Court’s view, however, there was insufficient evidence that the manager who discharged the IR tech had knowledge of his protected activity. Specifically, the Court explained that the decisionmaker testified that he was unaware of the IR tech’s comment at the staff meeting when he discharged him, that his testimony was corroborated by two other managers, and that the General Counsel presented no direct or circumstantial evidence undermining their consistent testimony. Accordingly, the Court denied enforcement.
The Court’s opinion is here.
Metrohealth, Inc. d/b/a Hospital Metropolitano Rio Piedras, Board Case No. 12-CA-279497 (reported at 372 NLRB No. 149) (D.C. Cir. decided December 13, 2024).
In an unpublished judgment, the Court enforced the Board’s order that issued against this acute-care hospital in San Juan, Puerto Rico, where the employees in its Environmental Control Department have been represented for many years by Unidad Laboral de Enfermeras(os) y Empleados de la Salud under the terms of a collective-bargaining agreement. The Board (Chairman McFerran and Members Kaplan and Prouty) found that the Employer violated Section 8(a)(5) and (1) by failing to bargain with the Union about its decision to subcontract the department’s work and lay off all unit employees. In doing so, the Court rejected the Employer’s contentions that it was not required to bargain because its decision to subcontract involved “core entrepreneurial concerns,” and was otherwise removed from the scope of mandatory bargaining under a contract-coverage theory.
On review, the Court dispensed with oral argument and took the case on the submission of briefs. In its judgment, the Court recognized that the type of subcontracting involved in this case—"the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment—is a statutory subject of collective bargaining,” and upheld the Board’s finding as supported by substantial evidence. Further, the Court found that the credited record evidence did not support the Employer’s claim that its decision fell within the “core entrepreneurial concerns” exception to mandatory bargaining. Then, in assessing the Employer’s contract-coverage claim, the Court evaluated several provisions, including those pertaining to layoffs and downsizing, the use of independent contractors and contract personnel, and the management-rights clause, but did not find the requisite provision that would “affirmatively permit” the Employer to have taken such a unilateral action. Lastly, the Court held that Employer’s claim that the Union waived its right to bargain by engaging in dilatory tactics was not supported by the record evidence.
The Court’s judgment is here.
Acumen Capital Partners LLC, Board Case No. 29-CA-291981 (reported at 372 NLRB No. 129) (D.C. Cir. decided December 13, 2024).
In a published opinion, the Court enforced the Board’s order that issued against this real-estate management agent for an office building in Brooklyn, New York. The Board (Chairman McFerran, Member Kaplan, and then-Member Wilcox) found that Acumen violated Section 8(a)(3) and (1) when it discharged one of its building engineers within two weeks of a petition to represent the building engineers was filed by International Union of Operating Engineers, Local 30, AFL-CIO. Acumen’s proffered justification for the discharge was that the engineer had not received the COVID-19 vaccine mandated by New York City. Even though the engineer was vaccinated the next day, Acumen refused to reconsider his discharge. On review, the Court upheld the Board's Wright Line findings that Acumen knew of the engineer’s union activity, was motivated by anti-union animus in discharging him, and that its stated reason for discharging him was pretextual.
In a comprehensive opinion, the Court detailed the principles and precedent in support of the Board’s Wright Line analysis and upheld the Board’s findings. In particular, the Court agreed with the Board’s assessment that the timing of the discharge, the pretextual nature of Acumen’s proffered explanation, and the unexplained disproportionality of the discharge, taken together, provided substantial evidence of anti-union animus. The Court also agreed with the Board’s finding that the animus established under the first step of the Wright Line test demonstrated that, absent its unlawful motive, Acumen would not have discharged the engineer. In framing the Board’s overall authority to decide such matters, the Court noted that “[t]he Supreme Court has long ‘recognize[d] without hesitation the primary function and responsibility of the Board’ . . . ‘of applying the general provisions of the Act to the complexities of industrial life,’” quoting Ford Motor Co. v. NLRB, 441 U.S. 488 (1979), and that the “’balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the [NLRB], subject to limited judicial review,’” quoting NLRB v. Insurance Agents’ Int’l Union, AFL-CIO, 361 U.S. 477 (1960).
The Court’s opinion is here.
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Administrative Law Judge Decisions
Forepeak Steel, LLC (04-CA-340084 and 04-CA-351200; JD-79-24) Point Pleasant Borough, NJ. Administrative Law Judge Michael A. Rosas issued his decision on December 9, 2024. Charges filed by International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers.
Nu Way Fab, LLC (14-CA-331222 and 14-RC-331217; JD-78-24) Troy, IL. Administrative Law Judge Arthur J. Amchan issued his decision on December 9, 2024. Charges filed by International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers.
Permobil, Inc. (19-CA-324895; JD-77-24) Pasco, WA. Administrative Law Judge Robert A. Giannasi issued his decision on December 9, 2024. Charge filed by an individual.
National Technology and Engineering Solutions of Sandia, d/b/a Sandia National Laboratories (28-CA-285428; JD(SF)-37-24) Albuquerque, NM. Administrative Law Judge Dickie Montemayor issued his decision on December 9, 2024. Charge filed by Office & Professional Employees International Union (OPEIU), Local 251.
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