Summary of NLRB Decisions for Week of January 30 - February 3, 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
Central States, Southeast and Southwest Areas Health & Welfare and Pension Funds (13-CA-277915; 372 NLRB No. 46) Chicago, IL, January 31, 2023.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent did not violate Section 8(a)(5) and (1) by failing to notify and bargain with the Union about the change to the Salaried Unit’s flexible scheduling, but violated Section 8(a)(5) and (1) by failing to bargain with the Union over the effects of this change.
In agreeing with the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(5) by failing and refusing to bargain with the Union about schedule changes for unit employees, Chairman McFerran noted that she would reach the same result applying the contract coverage standard set forth in MV Transportation, 368 NLRB No. 66 (2019), or the clear and unmistakable waiver standard. Therefore, she found it unnecessary to pass on the General Counsel’s request that the Board overrule MV Transportation and return to prior precedent. Member Wilcox noted that MV Transportation is governing law and joined her colleagues in applying that decision for institutional reasons. Member Wilcox further noted that she was not a member of the Board when MV Transportation issued and expressed no view regarding whether it was correctly decided.
Charge filed by the Health Care, Professional, Technical, Office, Warehouse and Mail Order Employees’ Union, Local 743, a/w the International Brotherhood of Teamsters. Administrative Law Judge Sharon Levinson Steckler issued her decision on June 24, 2022. Chairman McFerran and Members Kaplan and Wilcox participated.
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Nissan North America, Inc. (10-RC-273024; 372 NLRB No. 48) Smyrna, TN, February 2, 2023.
The Board granted Petitioner’s Request for Review of the Acting Regional Director’s Decision and Direction of Election and the administrative dismissal of the petition. On review, the Board reversed the Acting Regional Director and held that the petitioned-for bargaining unit of tool and die maintenance technicians was an appropriate unit. Applying the standard in Burns & Roe Services Corp., 313 NLRB 1307 (1994), the Board found that the tool and die maintenance technicians qualify as craft employees and that the petitioned-for unit is an appropriate craft unit. The Board reinstated the petition and remanded the case to the Regional Director for further appropriate action.
Petitioner—International Association of Machinists and Aerospace Workers (IAM), District Lodge 1888. Chairman McFerran and Members Wilcox and Prouty participated.
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Freeport McMoRan Bagdad Inc. (28-CA-257171; 372 NLRB No. 47) Bagdad, AZ, February 2, 2023.
The Board adopted the Administrative Law Judge’s conclusions and dismissed the allegations that the Respondent violated Section 8(a)(4) and (1) by discharging an employee and Section 8(a)(1) by providing that employee with a copy of the termination notice. The Board agreed with the judge that the General Counsel failed to establish animus.
Member Wilcox joined her colleagues in adopting the judge’s dismissals of the allegations. Because she agreed with the judge’s conclusion that the General Counsel failed to establish animus toward protected activity, she found it unnecessary to address the judge’s discussion of causation. Member Wilcox also noted her agreement with Chairman McFerran’s concurring opinion in Tschiggfrie Properties, Ltd. finding clarification of Wright Line principles unnecessary because the causal relationship concepts are already reflected in the Board’s body of cases.
Charge filed by an individual. Administrative Law Judge Amita Baman Tracy issued her decision on June 24, 2022. Chairman McFerran and Members Wilcox and Prouty participated.
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ArrMaz Products Inc. (12-CA-294086; 372 NLRB No. 12) Mulberry, FL, February 3, 2023. Errata to the December 6, 2022. Errata Amended Decision.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Providence Health System – Southern California, d/b/a Providence Saint Joseph Medical Center (31-RC-303296) Burbank, CA, February 2, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision Disposing of Determinative Challenged Ballot as it raised no substantial issues warranting review. Petitioner—International Union of Operating Engineers Local 501. Members Kaplan, Wilcox, and Prouty participated.
Starbucks Corporation (14-RC-295709) Wichita, KS, February 3, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Objections and Certification of Representative as it raised no substantial issues warranting review. Petitioner—Central and Rock Partners Union. Chairman McFerran and Members Wilcox and Prouty participated.
C Cases
Kaiser Foundation Hospital and Kaiser Foundation Health Plan, Inc., d/b/a Kaiser Permanente (32-CA-282834 and 32-CA-287206) Oakland, CA, January 30, 2023. The Board denied the General Counsel’s Request for Expedited Special Permission to Appeal the Administrative Law Judge’s order permitting the Respondent to delay its cross-examination of the General Counsel’s witnesses. The Board found that because the week ended without the General Counsel having completed the direct examination of any witnesses and the trial was continued to February 6, 2023, the special appeal was moot. The Board’s denial was without prejudice to the General Counsel’s right to renew its objection before the Board on exceptions, if appropriate. Charges filed by International Union of Operating Engineers, Stationary Engineers, Local 39. Members Kaplan, Wilcox, and Prouty participated.
ASARCO LLC (28-CA-255235, et al.) Tucson, AZ, February 1, 2023. The Board denied the General Counsel’s Request for Special Permission to Appeal the Administrative Law Judge’s rulings (1) sustaining the Respondent’s objection to testimony that the General Counsel asserted would have established the Respondent’s motive for reassigning unit work to salaried employees during a strike; and (2) denying the General Counsel’s motion to amend the complaint to include the allegation that the Respondent’s permanent replacement of employees during the strike violated the Act. The Board found that the General Counsel failed to establish that the judge’s rulings could not be appropriately addressed at a later stage of the proceeding. The Board’s denial was without prejudice to the General Counsel’s right to renew its objection before the Board on exceptions, if appropriate. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC; General Teamsters (Excluding Mailers), State of Arizona Local Union No. 104, a/w International Brotherhood of Teamsters; International Brotherhood of Electrical Workers, Local 518; International Union of Operating Engineers, Local 428; The United Association of Journeyman & Apprentices of the Plumbing, Pipefitting & Sprinkler Fitting Industry of the U.S. and Canada, Local 469; International Association of Machinists and Aerospace Workers; International Brotherhood of Boilermakers, Local 627; and two individuals. Members Kaplan, Wilcox, and Prouty participated.
Ellis Mechanical, Inc. (25-CA-300343) Indianapolis, IN, February 2, 2023. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by Indiana State Pipe Trades Association. Members Kaplan, 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
Amazon.Com Services LLC (29-CA-280153, et al.; JD(NY-01-23) Staten Island, NY. Administrative Law Judge Benjamin W. Green issued his decision on January 30, 2023. Charges filed by an individual and Amazon Labor Union.
Century Linen & Uniform, Inc. (03-CA-283806 and 03-CA-288979; JD-07-23) Johnstown, NY. Administrative Law Judge Arthur J. Amchan issued his decision on January 30, 2023. Charges filed by Rochester Region Joint Board, Local 368.
Siren Retail Corp., d/b/a Starbucks (19-CA-290905; JD(SF)-02-23) Seattle, WA. Administrative Law Judge John T. Giannopoulos issued his decision on January 31, 2023. Charge filed by Workers United a/w Service Employees International Union.
International Longshoremen’s Association, Local 1526 (Southeast Florida Employers Port Association, Inc., and its employer-members) (12-CB-272549; JD-06-23) Fort Lauderdale, FL. Administrative Law Judge Keltner W. Locke issued his decision on January 31, 2023. Charge filed by an individual.
ADT, LLC (14-CA-281518; JD-08-23) Maryland Heights, MO. Administrative Law Judge Christine E. Dibble issued her decision on February 3, 2023. Charge filed by International Brotherhood of International Brotherhood of Electrical Workers, Local 1, AFL-CIO.
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