Summary of NLRB Decisions for Week of January 23 - 27, 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
Johns Manville Corporation (08-CA-270764; 372 NLRB No. 45) Waterville and Maumee, OH, January 25, 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 the Union with information it requested relating to contracts and correspondence between the Respondent and certain third-party warehouses regarding the work being performed at those warehouses on the Respondent’s behalf. Member Wilcox noted that she would consider revisiting the Board's framework for analyzing union requests for non-unit information in a future appropriate proceeding.
Charge filed by International Brotherhood of Teamsters, Local Union No. 20. Administrative Law Judge Christine E. Dibble issued her decision on February 15, 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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases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
Starbucks Corporation (27-RC-289608) Denver, CO, January 27, 2023. 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—Chicago & Midwest Regional Joint Board, Workers United/SEIU. Members Kaplan, Wilcox, and Prouty participated.
C Cases
No Unpublished C Cases Issued.
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Appellate Court Decisions
Aakash, Inc., d/b/a Park Central Care and Rehabilitation Center, Board Case No. 32-CA-282957 (reported at 371 NLRB No. 46) (9th Cir. decided January 27, 2023).
In a published opinion that issued in this test-of-certification case, the Court enforced the Board’s bargaining order that issued against this skilled nursing facility in Fremont, California, after its registered nurses (RNs) and licensed vocational nurses (LVNs) voted in an October 2020 self-determination election to be included in an existing unit of nursing aides represented by Service Employees International Union, Local 2015. On the threshold issue, the Court agreed with the Board that the President lawfully removed former General Counsel Peter Robb and rejected the Employer’s contention that the General Counsel Jennifer Abruzzo lacked the authority to prosecute the unfair-labor-practice complaint. On the merits, the Court held that the Board did not abuse its discretion in rejecting the Employer’s claim of supervisory status.
In the underlying representation case, the Union filed a representation petition seeking a self-determination election to include the RNs and LVNs in the existing unit of nursing aides. In response, the Employer contested the eligibility of the RNs, asserting that they were the statutory supervisors of the nursing aides. After a hearing, the Regional Director issued a decision rejecting the claim of supervisory status because the Employer had not met its burden of proof, and directing that a mail-ballot election be conducted. After the RNs and LVNs voted to join the existing unit, the Regional Director certified the results. The Employer then filed a request for review, which was denied by the Board (Chairman McFerran, and Members Kaplan and Ring). Thereafter, the Employer refused to bargain in order to seek court review, and the General Counsel issued an unfair-labor-practice complaint. In the resulting decision, the Board found the bargaining violation and rejected the Employer’s contention that General Counsel Abruzzo lacked the authority to prosecute the unfair-labor-practice.
On review, the Court agreed with the Board’s rejection of the Employer’s challenge to the General Counsel’s authority to prosecute the unfair-labor-practice complaint. Specifically, the Court held that the Employer’s contention that the existence of a term of office implicitly carries with it a prohibition on removal without cause was rejected by the Supreme Court 125 years ago in Parsons v. United States, 167 U.S. 324 (1897). The Court further noted that, since then, the Supreme Court has cited Parsons for the proposition that fixed terms do not confer removal protection,” referencing among other cases, Myers v. United States, 272 U.S. 52 (1926). Also contrary to the Employer’s claims, the Court explained that neither Humphrey’s Executor v. United States, 295 U.S. 602 (1935), nor Wiener v. United States, 357 U.S. 349 (1958), lend any support to its argument. Further, the Court held that the statutory text of Section 3 “shows that Congress intended to constrain the President to specific reasons to remove Board Members but placed no limit on the President’s power of removal with respect to the General Counsel.” The Court noted that “Congress was aware of the Supreme Court’s long line of precedent establishing the presumption in favor of the President’s power of removal when it enacted Section [3](d) without incorporating any constraint on that power.” Rejecting the Employer’s remaining contentions, the Court reached “the same conclusion as, and agree[d] with, the Fifth Circuit’s opinion” in Exela Enterprise Solutions, Inc. v. NLRB, 32 F.4th 436 (5th Cir. 2022), stating that it saw “no reason to part ways with our sister circuit’s persuasive discussion.”
On the merits, the Court agreed with the Board that the Employer did not carry its burden of proof on its claims that the RNs are statutory supervisors on the bases that they assign, discipline, and responsibly direct nursing aides. On the assignment of work, the Court held that the Employer failed to present sufficient evidence to prove that the RNs assign work using independent judgment, and rather, “the record suggests that they simply pair nursing assistants to groups of patients using a schedule created by the Director of Staff Development.” On discipline, the Court stated that the Employer’s citation of one incident, where a RN found a nursing aide sleeping on the job and requested that management investigate, did not constitute the authority to discipline. Finally, the Court held that the Board reasonably concluded that the RNs do not responsibly direct the work of the nursing aides because they are not held accountable for their work.
The Court’s opinion is here.
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Administrative Law Judge Decisions
GE Appliances, a Haier Company (09-CA-284214 and 09-CA-298179; JD-04-23) Louisville, KY. Administrative Law Judge Kimberly Sorg-Graves issued her decision on January 26, 2023. Charges filed by International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers, AFL-CIO (IUE) Communications Workers of America, AFL-CIO (CWA), IUE/CWA, Local 83761.
PG Publishing Co., Inc., d/b/a Pittsburgh Post-Gazette (06-CA-248017, et al.; JD-05-23) Pittsburgh, PA. Administrative Law Judge Geoffrey Carter issued his decision on January 26, 2023. Charges filed by Newspaper Guild of Pittsburgh/CWA Local 38061.
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