Summary of NLRB Decisions for Week of February 12 -16, 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
Borenstein Caterers, Inc. (29-CA-299367; 373 NLRB No. 23) Jamaica, NY, February 13, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with requested relevant information.
Charge filed by UNITE HERE Local 100. Administrative Law Judge Benjamin W. Green issued his decision on April 26, 2023. Chairman McFerran and Members Kaplan and Prouty participated.
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Starbucks Corporation (09-CA-300652; 373 NLRB No. 20) Louisville, KY, February 14, 2024.
The Board denied the Respondent’s Request for Special Permission to Appeal that portion of the Administrative Law Judge’s order in which the judge commented on the Respondent’s past noncompliance with her evidentiary rulings and cautioned that further disregard of her orders and instructions may result in a recommendation to the Board to admonish or reprimand counsel. The Board found that there was no need for interlocutory relief because the hearing had closed but 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. Member Kaplan agreed with his colleagues but stated that he believed that when judges threaten to refer counsel for misconduct, they should be as specific as possible in describing the purported misconduct and their reasons for doing so.
Charge filed by Chicago Midwest Regional Joint Board, an affiliate of Workers United, SEIU. Chairman McFerran and Members Kaplan and Prouty participated.
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Starbucks Corporation (12-CA-291151; 373 NLRB No. 21) Hialeah, FL, February 14, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by its manager’s statement, “I just don’t want this to turn into another Memphis,” referencing recent allegedly unlawful discharges at a Memphis location. The Board rejected the Respondent’s argument that the legislative history of Section 8(c) precludes the Board from finding the statement unlawful because it does not include an “explicit” threat.
Charge filed by Workers United, Southern Regional Joint Board, a/w Service Employees International Union. Administrative Law Judge Donna N. Dawson issued her decision on May 17, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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International Longshoremen’s Association, Local 1526 (Florida International Terminal, LLC) (12-CB-285734; 373 NLRB No. 22) Fort Lauderdale, FL, February 14, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(b)(1)(A) and 8(b)(2) by attempting to cause and causing the suspension of an individual from hiring hall referrals for 30 days because of his protected concerted activity.
Charge filed by an individual. Administrative Law Judge Brian D. Gee issued his decision on November 17, 2022. Chairman McFerran and Members Kaplan and Prouty participated.
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DAP Global, Inc. (09-UC-304153; 373 NLRB No. 24) Tipp City, OH, February 16, 2024.
The Board (Chairman McFerran and Member Kaplan; Member Prouty, dissenting) denied the Union’s Request for Review of the Acting Regional Director’s Decision and Order Clarifying Bargaining Unit as it raised no substantial issues warranting review. The Board found that the record fully supported the Acting Regional Director’s statement that the “paint side” employees were historically excluded from the bargaining unit; given the fact of the disputed employees’ historical exclusion, the Board found it unnecessary to pass on the Acting Regional Director’s conclusion that the disputed employees did not share an “overwhelming community of interest” with the unit employees. The Board agreed with the Acting Regional Director’s conclusion that, under Ziegler, Inc., 333 NLRB 949 (2001), it was not appropriate to defer this dispute to the parties’ grievance and arbitration procedure. Chairman McFerran noted that no party had requested that the Board revisit Ziegler and that she was applying it here as extant precedent. Dissenting, Member Prouty would have set aside the Acting Regional Director’s decision, overruled Ziegler, and deferred the instant petition to await the outcome of the parties’ grievance and arbitration process.
Petitioner—DAP Global, Inc. Union—International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) Region 29 and its Local Union No. 888. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
The William Vale Staffing, LLC (29-RC-300927) Brooklyn, NY, February 13, 2024. The Board granted the Employer’s Request for Review solely with respect to the Acting Regional Director’s Decision and Direction of Election in which the Acting Regional Director found that the petitioned-for unit was appropriate under PCC Structurals, Inc., 365 NLRB No. 160 (2017), and The Boeing Company, 368 NLRB No. 67 (2019), which was overturned by American Steel Construction, Inc., 372 NLRB No. 23 (2022), after the Acting Regional Director’s decision was issued. The Board found that the intervening change in law raised a substantial issue warranting review. On review, the Board affirmed the Acting Regional Director’s decision because the unit is also appropriate under the American Steel formulation. In all other respects, the Employer’s Request for Review was denied. Petitioner—Hotel and Gaming Trades Council, AFL-CIO. Chairman McFerran and Members Kaplan and Prouty participated.
Paragon Systems, Inc. (01-RC-309281 and 01-RC-309535) Boston, MA, February 15, 2024. The Board denied review of the Intervenor Security, Police and Fire Professionals of America, SPFPA International Union’s Request for Review of the Acting Regional Director’s Decision and Direction of Election and the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. Intervenor Union—Security, Police and Fire Professionals of America, SPFPA International Union. Petitioner/Intervenor—United Federation LEOS-PBA Law Enforcement Officers Security & Police Benevolent Association. Petitioner/Intervenor—United Government Security Officers of America International Union and its Local 273. Members Kaplan, Prouty, and Wilcox participated.
Panel Systems, Inc. (05-RM-333179) Woodbridge, VA, February 16, 2024. The Board denied the Union’s Request for Review of the Regional Director’s Order Directing Further Processing of the Petition as it raised no substantial issues warranting review. The Board also denied the Union’s request for extraordinary relief as moot. Union—Construction and Master Laborers’ Local Union 11, a/w Laborers’ International Union of North America, AFL-CIO. Members Kaplan, Prouty, and Wilcox participated.
C Cases
Starbucks Corporation (09-CA-300652) Louisville, KY, February 12, 2024. The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order requiring it to produce a custodian(s) of records or another knowledgeable person to testify about the steps take to comply with the General Counsel’s subpoena ad testificandum. The Board found that there was no need for interlocutory relief because the hearing had closed but 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. Charge filed by Chicago Midwest Regional Joint Board, an affiliate of Workers United, SEIU. Chairman McFerran and Members Kaplan and Prouty participated.
Starbucks Corporation (29-CA-305960) Staten Island, NY, February 13, 2024. The Board denied the Respondent’s Motion to Dismiss complaint, finding that the Respondent failed to demonstrate 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. The Board also found that the complaint provides sufficient information to satisfy due process and the notice-pleading requirements of Section 102.15 of the Board’s Rules and Regulations. Charge filed by Workers United, a/w Service Employees International Union. Chairman McFerran and Members Kaplan and Prouty participated.
Virginia Hospital Center Arlington Health System (05-CA-304834) Arlington, VA, February 13, 2024. No exceptions having been filed to the December 29, 2023 decision of Administrative Law Judge Michael A Rosas’ 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. Charge filed by an individual.
Patrick Aluminum, Inc., d/b/a Altec Aluminum Technologies (09-CA-300333) Jeffersonville, IN, February 14, 2024. The Board denied the Respondent’s Motion for Summary Judgment as 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.
Starbucks Corporation (19-CA-296765, et al.) Portland, OR, February 14, 2024. No exceptions having been filed to the November 27, 2023 decision of Administrative Law Judge Sharon Levinson Steckler’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 Workers United Labor Union International, a/w Service Employees International Union.
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Appellate Court Decisions
American Medical Response, Board Case No. 01-CA-263985 (reported at 371 NLRB No. 106) (D.C. Cir. decided February 16, 2024).
In a published opinion, the Court granted the petition for review filed by this provider of emergency medical services with divisions in New Haven and Bridgeport, Connecticut. While employees at the Bridgeport division are unrepresented, 125 full-time and 300 part-time paramedics, emergency medical technicians (EMTs), and HandiVan drivers at the New Haven facility are represented by the International Association of EMTs and Paramedics Local R1-999, NAGE/SEIU Local 5000. The Court concluded that the Board, in determining whether the Employer unlawfully failed to provide information to the Union in violation of Section 8(a)(5) and (1), failed to pass on the Employer’s contractual defense and remanded for reconsideration.
In March 2020, the Union received reports that non-unit, Bridgeport employees were handling emergency calls and transports in the New Haven area, and became concerned that the Employer was violating the collective-bargaining agreement by using non-unit employees at the Bridgeport division. The Union requested information, and later filed grievances and additional information requests. Despite the parties’ extensive discussions over the coming months, the Employer denied the grievances and refused to provide the information. About that same time, the Union received a letter from the Employer’s parent company declaring that, based on the COVID-19 crisis, it would be temporarily relieved of certain obligations listed in contractual provisions covering disasters or catastrophes that were outside the Employer’s control. That provision in the parties’ New Haven agreement specified that it would apply to “scheduled paid time off, job posting, shifts changes and transfers.”
On those facts, the Board (Chairman McFerran and Members Ring and Wilcox) found that the Employer violated Section 8(a)(5) and (1) by refusing to provide four categories of information relevant to the Union’s representational duties. In defense, the Employer argued that it was not required to provide the requested information that related to terms listed in the disaster provision in the parties’ collective-bargaining agreement. The Board declined to reach the defense, noting that interpreting the disaster provision would improperly require an assessment of the merits of the Union’s grievances.
On review, the Court viewed the Employer’s defense differently, instead considering it “a threshold contractual defense to the failure-to-bargain charge.” The Court stated that the Board was required to address the contractual defense on its merits in order to determine whether there was a duty to provide the information, and cited cases in which the Board had conducted that threshold inquiry in information cases. The Court held that the Board erred “by putting the cart before the horse” by concluding that the Employer failed to provide information before determining whether there was a contractual duty to provide it. Accordingly, the Court vacated the order and remanded the case to the Board for reconsideration.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Hiran Management, Inc., d/b/a Hungry Like the Wolf (16-CA-303914; JD(SF)-06-24) Houston, TX. Administrative Law Judge Sharon Levinson Steckler issued her decision on February 13, 2024. Charge filed by an individual.
USC Care Medical Group, Inc., Keck Medicine of USC (31-CA-307034 and 31-RC-299354; JD(NY)-03-24) Los Angeles, CA. Administrative Law Judge Kenneth W. Chu issued his decision on February 16, 2024. Charge and Petition filed by National Union of Healthcare Workers (NUHW).
Pacific Bell Telephone Company, d/b/a AT&T California (20-CA-314296 and 20-CA-318265; JD(SF)-07-24) Sacramento, CA. Administrative Law Judge Robert A. Ringler issued his decision on February 16, 2024. Charges filed by Communications Workers of America, District 9, Local 9421.
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