Summary of NLRB Decisions for Week of February 13 - 17, 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
Starbucks Corporation d/b/a Starbucks Coffee Company (04-CA-252338, et al.; 372 NLRB No. 50) Philadelphia, PA, February 13, 2023.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by threatening, interrogating, and surveilling employees for engaging in protected concerted activities; by telling an employee that her scheduled work hours were reduced because of her protected concerted activities; and by prohibiting employees from concertedly complaining about management and their terms and conditions of employment. The Board also found that the Respondent violated Section 8(a)(3) and (1) by withholding training opportunities from an individual; by depriving another individual of work hours; and by disciplining and ultimately discharging both employees for engaging in protected union activities. Finally, the Board found that the two individuals were not barred from the full remedy of reinstatement and backpay due to having secretly recorded conversations they had with their supervisors prior to their discharges in purported violation of the Respondent’s no-recording policy and Pennsylvania state law, since the Respondent was aware of those recordings but did not discharge the employees at the times they were made; since the recordings, under the circumstances were protected by Section 7; and since the state law, assuming it was applicable, was therefore preempted by the Act. Member Wilcox, concurring, would have found that, in the circumstances of this case, the Respondent should be required to post its remedial notices at all of its facilities in the city of Philadelphia, not just at the two stores at issue.
Charges filed by Philadelphia Baristas United and individuals. Administrative Law Judge Andrew S. Gollin issued his decision on June 21, 2021. Chairman McFerran and Members Wilcox and Prouty participated.
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National Rural Letter Carriers Association (USPS) (19-CB-245120; 372 NLRB No. 52) Bend, OR, February 13, 2023.
The Board (Members Wilcox and Prouty; Member Kaplan, dissenting) reversed the Administrative Law Judge’s conclusion that the Union’s agent violated Section 8(b)(1)(A) by threatening the Charging Party with workplace discipline. The Board majority found that the steward’s mere expression of disapproval of the Charging Party’s protected activity at a pre-disciplinary meeting was not unlawful, as an objective listener in the Charging Party’s position would not reasonably believe that the steward was adopting or delivering a threat at the meeting. Dissenting, Member Kaplan would have affirmed the judge’s conclusion that the steward’s conduct at the meeting violated Section 8(b)(1)(A). In Member Kaplan’s view, the totality of the context and circumstances surrounding the meeting were such that a reasonable employee would understand the steward to be delivering a threat at the meeting.
Charge filed by an individual. Administrative Law Judge Gerald M. Etchingham issued his decision on December 10, 2021. Members Kaplan, Wilcox, and Prouty participated.
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Frazer & Jones Company (03-CA-274530 and 03-CA-276401; 372 NLRB No. 55) Solvay, NY, February 17, 2023.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by delaying in responding to the Union’s January 13, 2021 information request and by failing and refusing to provide additional information requested by the Union on April 2 and 15, 2021. In so doing, the Board found that the relevancy of the information requested was established by the fact that the Respondent placed the information at issue in a grievance discussion with the Union. The Board further found that the Respondent’s explanation for its failure to provide a complete response timely to the January 13 request—that the information sought was “not reliable”—did not indicate that the information sought did not exist or that the Respondent did not rely upon it and, thus, did not undercut the Respondent’s obligation to promptly provide it.
Charges filed by IUE-CWA, AFL-CIO, Local 813000. Administrative Law Judge Christine Dibble issued her decision on July 5, 2022. Chairman McFerran and Members Wilcox and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Kissena Glatt Farms, LLC, d/b/a Aron’s Kissena Farms (29-RD-306918) Queens, NY, February 15, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Order Dismissing Petition and Withdrawing Notice of Hearing as it raised no substantive issues warranting review. The Board noted that an automatically-renewed contract may bar a petition from being processed during its term. Petitioner—an individual. Union—United Food and Commercial Workers Union, Local 17-18. Chairman McFerran and Members Wilcox and Prouty participated.
Envision Hospice of Washington, LLC (19-RC-303650) Federal Way, WA, February 17, 2023. The Board denied the Petitioner’s Request for Review of the Regional Director’s Report on Objections as it raised no substantial issues warranting review. Petitioner—International Association of Machinists & Aerospace Workers, District Lodge 751. Chairman McFerran and Members Wilcox and Prouty participated.
C Cases
Motor Appliance Corporation (14-CA-290327, et al.) Washington, MO, February 14, 2023. No exceptions having been filed to the January 3, 2023 decision of Administrative Law Judge Robert A. Ringler’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 District Lodge 9, International Association of Machinists and Aerospace Workers, AFL-CIO.
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Appellate Court Decisions
Laborers' International Union, Local Union No. 91, Board Case No. 03-CB-202698 (reported at 370 NLRB No. 42) (2d Cir. decided February 15, 2023).
In an unpublished summary order, the Court enforced the Board’s order that issued against this Union that represents 240 employee-members in the construction industry in Western New York who work under collective-bargaining agreements with area contractors. The Union operates a hiring hall for the benefit of both its members and the employers with whom it has signed agreements. The Board (then-Chairman Ring and Members Kaplan and Emanuel) found that the Union committed a number of violations of Section 8(b)(1)(A) in retaliation for three employee-members’ protected activities.
Among those violations, the Board found that the Union threatened to sue one member for recovery of legal fees associated with his filing of an unfair-labor-practice charge, and by discriminatorily removing him from the hiring-hall referral list and keeping him off the list for several months in 2017. The Board also found that the Union, under the under the guise of imposing internal union discipline, unlawfully manipulated its referral rules to bar that member, and another, from the referral list for extended periods of time in retaliation for openly opposing the Union’s decisions. Further, the Board found that, after one of those employees was returned to the referral list, the Union then discriminatorily refused to refer him for work.
On review, the Court found no basis to disturb the Board’s findings. In doing so, the Court rejected the Union’s arguments that one of the underlying unfair-labor-practice charges was barred as untimely under Section 10(b), and that the General Counsel was required to prove under Wright Line that one of discriminatees was in fact eligible for the referrals that he was refused. Among the remaining arguments, the Court rejected them as inconsistent with the credited evidence, jurisdictionally barred from review by Section 10(e), or otherwise meritless.
The Court’s summary order is here.
YP Midwest Publishing, LLC, Board Case No. 07-CA-218455 (reported at 371 NLRB No. 23) (D.C. Cir. decided February 14, 2023).
In a published opinion, the Court denied the petition for review filed by District 4, Communications Workers of America, AFL-CIO, and affirmed the Board’s dismissal of the underlying complaint, which had alleged that the Employer, YP Midwest Publishing, LLC, violated Section 8(a)(5) and (1) by unilaterally changing the formula for its contributions to unit employees’ 401(k) plans.
In 2016, during negotiations for a successor contract, the parties used their 2013 contract as the baseline from which to bargain for some new terms. That earlier contract included a 401(k) plan that matched unit employees’ contributions up to 4.8 percent. In September 2016, the parties signed a memorandum of agreement (MOA) containing the new agreed-upon terms. The MOA acknowledged the provision of a 401(k) benefit, but was silent on the amount of matching contribution given that the parties had failed to reach agreement on the issue. Both parties then completed their ratification processes, and the MOA became effective. However, the terms of the MOA still needed to be merged into the text of the 2013 contract to create a single updated contract. After multiple rounds of editing, the new contract incorporating the revisions from the MOA was completed in September 2017. Subsequently, the Union became aware that the final contract contained language specifying a 5-percent matching contribution, and filed a charge alleging an unlawful unilateral change to the formula for matching contributions.
The Board (Members Kaplan, Emanuel, and Ring) dismissed the complaint. Looking to the language of the MOA, the Board found that it unambiguously reflected the parties’ understanding that the 2016 contract would do nothing more than “acknowledge the provision of a 401(k) benefit.” The Board found that the MOA’s silence about the specifics of the matching contribution, together with the fact that the parties never reached an agreement on that issue, should have made it obvious to the Union that the inclusion of a 5-percent match in the 2016 contract was a drafting error. The Board found that, under the circumstances, it was proper to consider parol evidence in determining the parties’ intent regarding the matching contribution.
In a comprehensive and exacting decision, the Court (Chief Judge Srinivasan and Circuit Judge Pillard; Senior Circuit Judge Sentelle, dissenting) concluded that “the Board acted in accordance with the law, including its own precedent, and that substantial evidence supports its findings.” The Court held that the Board reasonably identified the 2016 MOA as the binding agreement that constituted the parties’ “meeting of the minds” under Board precedent, and that therefore the inclusion of the 5-percent matching contribution in the 2017 contract was a drafting error. The Court acknowledged that to decide when the parties agreed to material terms, the Board may look to “mutual expressions of satisfaction about the successful negotiation of a contract as hallmark indications that a binding agreement has been reached,” citing, among other Board cases, ABM Parking Services, 360 NLRB 1191 (2014). Here, the Court noted, the Board had no need “to look for handshakes or email acceptances,” given the direct evidence of their agreement as expressed in the MOA, which was further supported by evidence of the parties’ conduct and subsequent communications. The Court also recognized the principle that, as here, after parties reach an agreement, the ensuing back-and-forth may be merely to facilitate converting the agreement into a complete, written contract.
Turning to the Union’s contention that the Board improperly relied on parol evidence in rendering its decision, the Court noted that the Board long ago recognized that “the parol-evidence does not operate to exclude testimony offered to establish that in fact no agreement was reached in the first place,” quoting Apache Powder Co., 223 NLRB 191 (1976). Further, the Court noted that the Board has consistently relied on Apache Powder to hold that the “mistake exception” to the parol-evidence rule applies “where the mistake is so obvious as to put the other party on notice of an error.” Further, noting the deference with which the Court reviews the Board’s factual findings on bargaining history, the Court upheld the Board’s conclusion that the 2017 revised version of the collective-bargaining agreement “contained an unenforceable unilateral mistake.”
Writing in dissent, Judge Sentelle expressed his views that the Board erred in accepting parol evidence, that the parties had the right to rely on the language of the 2017 contract after the attorneys on both sides had reviewed it, and that the “majority here tautologically uses parol evidence to prove it needs parol evidence.”
The Court’s opinion is here.
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Administrative Law Judge Decisions
Treasure Island, LLC (28-CA-257678, et al.; JD(SF)-04-23) Las Vegas, NV. Administrative Law Judge Ariel L. Sotolongo issued his decision on February 14, 2023. Charges filed by International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, Local 3555.
Ascension Borgess Hospital (07-CA-283117; JD-10-23) Kalamazoo, MI. Errata to the Administrative Law Judge decision issued February 9, 2023. Errata Amended decision.
Garten Trucking, LLC (10-CA-279843, et al.; JD-12-23) Covington, VA. Administrative Law Judge Charles J. Muhl issued his decision on February 17, 2023. Charges filed by Association of Western Pulp and Paper Workers.
Acumen Capital Partners LLC (29-CA-291981 and 29-RC-289979; JD(NY)-03-23) Brooklyn, NY. Administrative Law Judge Lauren Esposito issued her decision on February 17, 2023. Charges filed by International Union of Operating Engineers, Local 30, AFL-CIO.
Intertape Polymer Corp. (07-CA-291784; JD-13-23) Maryville, MI. Administrative Law Judge Arthur J. Amchan issued his decision on February 17, 2023. Charge filed by an individual.
GE Appliances, a Haier Company (09-CA-284214 and 09-CA-298179; JD-04-23) Louisville, KY, February 17, 2023. Errata to the Administrative Law Judge decision on January 26, 2023. Errata Amended decision.
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