Summary of NLRB Decisions for Week of July 24 - 28, 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
District Hospital Partners, L.P. d/b/a The George Washington University Hospital, a Limited Partnership, and UHS of D.C., Inc., General Partner (05-CA-216482, et al.; 372 NLRB No. 109) Washington, DC, July 25, 2023.
The Board vacated its Decision and Order reported at 370 NLRB No. 118 (2021), based on the improper participation of then-Member Emanuel. After that decision issued, the Board’s Designated Agency Ethics Official (DAEO), based on an investigation conducted by the Inspector General (IG), determined that Member Emanuel was disqualified because of a financial conflict of interest. The Board then issued a Notice to Show Cause to the parties, disclosing Member Emanuel’s disqualification, which asked whether the Decision and Order should be vacated. Consistent with its prior decisions in ExxonMobil Research and Engineering, 371 NLRB No. 128 (2022), and other cases involving Member Emanuel’s improper participation, the Board (Chairman McFerran and Member Prouty; Member Kaplan, dissenting) found it appropriate to vacate its Decision and Order, primarily to preserve public confidence in the integrity of the Board’s decision-making process. Dissenting, Member Kaplan contended that the Board majority erred by not independently reviewing the DAEO’s and IG’s conclusions and, based on his own review, concluded that Member Emanuel’s participation was harmless error, absent a showing of actual bias. The case will now be re-adjudicated by the Board.
Charges filed by 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Region. Administrative Law Judge Michael A. Rosas issued his decision on September 4, 2019. Chairman McFerran and Members Kaplan and Prouty participated.
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Drs. Mesh, P.C. (07-CA-308836; 372 NLRB No. 106) Fenton, MI, July 25, 2023.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union.
Charge filed by an individual. Chairman McFerran and Members Wilcox and Prouty participated.
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Local 242 of the Laborers International Union of North America (LIUNA!), a/w the Washington and Northern Idaho District Council of Laborers and the Laborers Northwest Regional Organizing Coalition (19-CA-275836; 372 NLRB No. 111) Seattle, WA, July 28, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(1) by discharging an employee and dismissed the complaint. Applying the Board’s mixed-motive analysis under Wright Line, 251 NLRB 1083 (1980), the Respondent demonstrated that it would have discharged the employee even in the absence of his protected conduct because the Respondent successfully proved that the discharge was because of the Respondent’s legitimate and substantial concerns about the employee’s poor job performance and unacceptable behavior, all of which were unrelated to his protected concerted activity.
Charge filed by an individual. Administrative Law Judge Brian D. Gee issued his decision on January 6, 2023. Members Kaplan, Wilcox, and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Baseball Club of Seattle, LLP, d/b/a Seattle Mariners (19-RD-316179) Seattle, WA, July 25, 2023. The Board denied the Union’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Board found that the Regional Director’s determination was consistent with the Board’s blocking charge and voluntary recognition bar policies. Chairman McFerran noted her dissent to the current blocking charge policy at the time of its proposal, but agreed that the Regional Director acted correctly under the current blocking charge and voluntary recognition bar policies. Member Prouty noted that he not participate in changes to the blocking charge and voluntary recognition bar policies, but agreed that the Regional Director acted correctly under the Board’s current law. Thus, he found no basis for granting the Union’s Request for Review in the circumstances presented in this case and noted that the Board may only revisit policies adopted via rulemaking through the adoption of new rules.
Petitioner—an individual. Union—United Food and Commercial Workers, Local 3000. Chairman McFerran and Members Kaplan and Prouty participated in the decision.
The Healing Healthcare 3, Inc., d/b/a Curaleaf Camelback Dispensary (28-RC-296310) Phoenix, AZ, July 27, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and Report on Objections and Certification of Representative as it raised no substantial issues warranting review. The Board also denied the Employer’s request for a stay of the certification as moot. Petitioner—United Food and Commercial Workers, Local 99. Chairman McFerran and Members Kaplan and Prouty participated.
C Cases
Giving Tree Café, LLC (28-CA-278213) Phoenix and Scottsdale, AZ, July 27, 2023. No exceptions having been filed to the June 13, 2023 decision of Administrative Law Judge Brian D. Gee’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 an individual.
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Appellate Court Decisions
International Longshoremen's Association, AFL-CIO, CLC, Board Case No. 10-CC-276241 (reported at 372 NLRB No. 36) (4th Cir. decided under the name South Carolina State Ports Authority v. NLRB, July 28, 2023).
In a published opinion, the Court denied the petition for review filed by the South Carolina State Ports Authority challenging the Board’s dismissal of complaints issued against the International Longshoremen’s Association, its Local Union 1422, and the United States Maritime Alliance, Ltd. In the underlying decision, the Board (Members Ring, Wilcox, and Prouty) concluded that those three entities did not enter into an unlawful agreement to stop doing business with the Ports Authority as prohibited by Section 8(e) of the Act. The Board (Member Ring, dissenting) further held that a lawsuit brought by the ILA against the Maritime Alliance to enforce provisions of their contract had a lawful work-preservation objective and thus did not constitute unlawful secondary activity.
The ILA and its affiliated local unions represent a coastwide bargaining unit of longshoremen at East and Gulf Coast ports from Maine to Texas. Local 1422 represents the members of the coastwide unit who work at the Port of Charleston in South Carolina. The ILA, its locals, and the Maritime Alliance, which is a multi-employer association consisting of shipping carriers and stevedoring companies, have executed successive Master Contracts. To address the effect of containerization on unit work, the Master Contracts have included a Containerization Agreement recognizing the existing work jurisdiction of ILA employees over all container work historically performed the ports, including “loading and discharging of containers on and off ships.”
For over 50 years, ILA-represented employees have performed that loading and unloading work for all Maritime Alliance signatories across the East Coast. The South Carolina Ports Authority, which is not a signatory to the Master Contract, operates ports for the State at three terminals at the Port of Charleston. Carrier-members of the Maritime Alliance have a long history of using two of them, the North Charleston Terminal and the Wando Terminal. For decades, the Ports Authority has used a “hybrid” work model, under which non-unionized state employees operate cranes and lift-equipment, and all other longshore work is performed by ILA members. In 2012, after the Ports Authority had announced that it was building a third terminal at the Port of Charleston, the Hugh K. Leatherman Terminal, the ILA and Maritime Alliance bargained over contract language to address the erosion of unit work as a result of the hybrid model. Eventually they agreed to add Article VII, Section 7(b) to the Master Contract, which includes a requirement that the Maritime Alliance notify any port authority planning to develop a new container-handling facility that they “may be prohibited from using that new facility if the work at that facility is not performed by Master Contract-bargaining-unit employees.” In 2020, the Maritime Alliance informed several of its carrier-members that it planned to operate the Leatherman Terminal using the hybrid model, and a dispute over the meaning of Article VII, Section 7 ensued. After the Leatherman Terminal began operating, a carrier-member called at the new terminal, and the ILA responded by bringing a lawsuit alleging breaches of the Master Contract. The lawsuit alleged that ILA bargaining-unit employees were not being used for all container-related work at the Leatherman Terminal, and vessels would need instead to call to terminals where ILA-represented employees performed such work. Over the next month, all carrier-members of the Maritime Alliance ceased calling at the Leatherman Terminal.
The General Counsel issued two complaints. The first, based on charges filed by the State and the Ports Authority, alleged that the Maritime Alliance, ILA, and Local 1422 violated Section 8(e) of the Act by entering into and reaffirming Article VII, Section 7(b) of the Master Contract, calling it an illegal hot-cargo provision that prohibited carrier-members from doing business with the Ports Authority at the Leatherman Terminal. The second complaint, based on charges filed by the Ports Authority, the State, and the Maritime Alliance, alleged that ILA violated Section 8(b)(4)(ii)(A) and (B), and Section 8(e), by suing to enforce an unlawful agreement and to coerce carrier-members into ceasing business with the Ports Authority at the Leatherman Terminal.
The Board dismissed both complaints. On the first, the Board found that Section 7(b) of the Master Contract was facially valid, and there was no implied agreement that it should be applied to bar business with the Ports Authority at the Leatherman Terminal. On the second, the Board found that ILA’s lawsuit did not violate the Act’s proscription against secondary activity. Rather, the Board found, the lawsuit had a valid primary objective to preserve work for the coastwide unit of ILA-represented employees which was imperiled by containerization. Relying on NLRB v. Int’l Longshoremen’s Ass’n, 447 U.S. 490 (1980), and NLRB v. Int’l Longshoremen’s Ass’n, 473 U.S. 61 (1985), the Board held that, as in those seminal cases, ILA was seeking to preserve the traditional work of unit employees in the face of technological advances affecting the coastwide unit.
On review, the Court (Chief Judge Diaz and Senior Judge Motz; Judge Niemeyer, dissenting in part) upheld the Board’s determinations. The Court concluded that the Board rationally held that the ILA’s lawsuit against the Maritime Alliance sought to preserve its coastwide jurisdiction over the loading and unloading work, and in doing so, did not violate the Act. Further, the Court held that the Board correctly concluded that Section 7(b) of the Master Contract did not constitute an illegal hot-cargo provision, whether by its text or by tacit agreement.
The Court’s opinion is here.
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Administrative Law Judge Decisions
The Saldivar Group, LLC (16-CA-291455; JD-46-23) Raymondville, TX. Administrative Law Judge Robert A. Ringler issued his decision on July 24, 2023. Charge filed by an individual.
Starbucks Corporation (02-CA-303077 and 02-CA-304431; JD(NY)-15-23) New York, NY. Administrative Law Judge Benjamin W. Green issued his decision on July 24, 2023. Charges filed by Workers United.
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