Summary of NLRB Decisions for Week of February 6 - 10, 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
United Scrap Metal PA, LLC (04-CA-268183, et al.; 372 NLRB No. 49) Philadelphia, PA, February 8, 2023.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by interrogating employees, soliciting grievances and impliedly promising improved benefits, assisting and encouraging an anti-union petition, and permitting employees’ anti-union activity at its facility while barring employees’ pro-union activity, and violated Section 8(a)(5) by unilaterally reducing employees’ work hours. The Board additionally concluded that the Respondent’s schedule reduction violated Section 8(a)(3) and (1). Among other remedies, a Board majority (Members Wilcox and Prouty) adopted the judge’s recommendation to order a notice reading based on the judge’s conclusion that a large portion of the work force could not read a posted notice. Member Kaplan would decline to order a notice reading, noting the judge’s conclusion that the unfair labor practices were not “so pervasive and egregious” under the Board’s usual criteria.
The Board also adopted the judge’s recommendation to overrule the Employer’s election objections. Accordingly, the Board issued a Certification of Representative.
Charges and Petition filed by Laborers' International Union of North America, Local 57. Administrative Law Judge Robert A. Ringler issued his decision on February 16, 2022. Members Kaplan, Wilcox, and Prouty participated.
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Marathon Petroleum Co., d/b/a Catlettsburg Refining, LLC (09-CA-162710; 372 NLRB No. 53) Catlettsburg, KY, February 9, 2023.
The Board vacated its June 23, 2020 Order Remanding this case to the Regional Director, based on then-Member Emanuel’s improper participation. Relying on the rationale in Exxon Mobil Research & Engineering, 371 NLRB No. 128 (2022), the Board (Chairman McFerran and Member Wilcox; Member Kaplan, dissenting) noted that, as in Exxon, after the June 23 Order issued, the Board’s Designated Agency Ethics Official, based on the Inspector General’s investigation, determined that Member Emanuel was disqualified from participating because of a financial conflict of interest. In its order, the Board found that, as in Exxon, vacatur was the proper remedy for Member Emanuel’s violation of 18 U.S.C § 208(a), and also re-adjudicated the General Counsel’s Motion to Remand de novo. In order to avoid unnecessary litigation and injustice to the parties, the Board entered its re-adjudicated order nunc pro tunc to June 23, 2020. Dissenting, Member Kaplan would have found that the Board lacked jurisdiction to vacate and re-adjudicate the order, because the case had been remanded to the General Counsel.
Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO and its Local 8-719. Administrative Law Judge Thomas M. Randazzo issued his decision on September 1, 2016. Chairman McFerran and Members Kaplan and Wilcox participated.
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The Permanente Medical Group, Inc. (28-CA-273219; 372 NLRB No. 51) Oakland, CA, February 9, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish and by delaying in furnishing the Union with requested information.
Charge filed by National Union of Healthcare Workers. Administrative Law Judge John T. Giannopoulos issued his decision on June 16, 2022. Chairman McFerran and Members Wilcox and Prouty participated.
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Lush Cosmetics, LLC (20-CA-272392; 372 NLRB No. 54) San Francisco, CA, February 9, 2023.
The Board found that the Respondent violated Section 8(a)(1) by its letter threatening an employee with unspecified reprisals if he engaged in protected concerted activity. The Board found that the Respondent’s statements should have been analyzed as an allegedly unlawful threat under the Board’s totality-of-circumstances standard, and not under the Board’s Boeing analysis used for work rules. Applying that standard here, the Board found that the Respondent’s statements in the letter constituted an unlawful threat of unspecified reprisals for engaging in protected activity.
Charge filed by Workers United Canada Council, SEIU. Administrative Law Judge Dickie Montemayor issued his decision on March 24, 2022. Chairman McFerran and Members Kaplan and Wilcox participated.
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Sameh H. Aknouk Dental Services, P.C. (02-CA-263564; 372 NLRB No. 56) Bronx, NY, February 10, 2023.
The Board granted the General Counsel’s Motion for Default Judgment based on Respondent’s failure to file an answer to the compliance specification. The Board found that the net backpay due was as stated in the compliance specification and ordered the Respondent to pay the amount specified, plus interest accrued to the date of payment.
Charge filed by Local 553, International Brotherhood of Teamsters. Members Kaplan, Wilcox, and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Via 313 Pizza Restaurant II, LLC (16-RC-300851) Austin, TX, February 9, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner—Restaurant Workers United. Chairman McFerran and Members Wilcox and Prouty participated.
C Cases
Stephens Media Group – Massena, LLC (03-CA-290582) Massena, NY, February 3, 2023. No exceptions having been filed to the December 27, 2022 decision of Administrative Law Judge Charles J. Muhl’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. Charge filed by National Association of Broadcast Employees & Technicians – Communications Workers of America, AFL-CIO.
ExxonMobil Corporation, Beaumont Refinery (16-CA-276089, et al.) Beaumont, TX, February 10, 2023. The Board denied the Respondent’s Motion for Partial Summary Judgment, finding 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. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, AFL-CIO/CLC. Chairman McFerran and Members Wilcox and Prouty participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Michael Cetta, Inc., d/b/a Sparks Restaurant (02-CA-142626 and 02-CA-144852; JD(NY)-02-23) New York, NY. Administrative Law Judge Kenneth W. Chu issued his supplemental decision on February 6, 2023. Charges filed by United Food and Commercial Workers Local 342.
Starbucks Corporation LLC (27-CA-290551, et al.; JD(SF)-03-23) Denver, CO. Administrative Law Judge Amita Baman Tracy issued her decision on February 6, 2023. Charges filed by Chicago and Midwest Regional Joint Board, Workers United/SEIU.
Starbucks Corporation (07-CA-293742 and 07-CA-293748; JD-09-23) Ann Arbor, MI. Administrative Law Judge Christal J. Key issued her decision on February 9, 2023. Charges filed by Workers United.
Ascension Borgess Hospital (07-CA-283117; JD-10-23) Kalamazoo, MI. Administrative Law Judge Arthur J. Amchan issued his decision on February 9, 2023. Charge filed by Michigan Nurses Association.
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