Summary of NLRB Decisions for Week of July 31 - August 4, 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
Import Motors II, Inc. dba Audi Concord (32-CA-281627; 372 NLRB No. 112) Concord, CA, July 31, 2023.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the grounds that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. 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 Machinists Automotive Trades District Lodge No. 190, Machinist Local 1173. Chairman McFerran and Members Kaplan and Wilcox participated.
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United States Postal Service (16-CA-279233 and 16-CA-287594; 372 NLRB No. 110) San Antonio, TX, July 31, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing to produce information requested by the Union, and instead requiring the Union to redirect its requests for information to each local station for which a violation was alleged. The Board found that the Respondent had not timely articulated a legitimate defense for its failure to respond, or offered to negotiate a mutually acceptable accommodation with the Union.
Charges filed by American Postal Workers Union, Alamo Area Local 0195. Administrative Law Judge Donna N. Dawson issued her decision on September 29, 2022. Chairman McFerran and Members Wilcox and Prouty participated.
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Tracy Auto, L.P. d/b/a Tracy Toyota (32-CA-260614, et al.; 372 NLRB No. 101) Oakland, CA, July 31, 2023. Errata to decision issued July 6, 2023. Errata Amended Decision.
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John Gore Theatrical Group, Inc. (02-CA-286802; 372 NLRB No. 114) New York, NY, July 31, 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 relevant information requested by the Union.
Charge filed by Actors’ Equity Association. Administrative Law Judge Jeffrey P. Gardner issued his decision on December 6, 2022. Chairman McFerran and Members Wilcox and Prouty participated.
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Art to Frames, Inc. (29-CA-266298; 372 NLRB No. 116) Brooklyn, NY, August 1, 2023.
In this compliance proceeding, the Board granted in part and denied in part the General Counsel’s Motion for Default Judgment. The Board granted the motion as to those paragraphs of the compliance specification where Respondent admitted or gave inadequate answers. However, the Board found that the Respondent’s general denials with respect to the General Counsel’s allegations regarding interim earnings were adequate. The Board therefore denied default judgment on allegations in the compliance specification on interim earnings and those other allegations that are dependent on the calculation of interim earnings. The Board remanded the case for a hearing limited to the paragraphs of the compliance specification as to which the motion was not granted.
Charge filed by Catholic Migration Services. Chairman McFerran and Members Wilcox and Prouty participated.
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Tackl-It, LLC (10-CA-291054; 372 NLRB No. 118) Savannah, GA, August 1, 2023.
The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of a bilateral informal settlement agreement. The Board found that the Respondent failed to comply with the terms of the settlement agreement, deemed the allegations in the reissued complaint to be true, and ordered appropriate remedies. The Board noted that although the Respondent asserted in its response to the Notice to Show Cause that it had substantially complied with the terms of the agreement, the Respondent did not dispute the General Counsel’s specific assertions of noncompliance, nor did it provide support for its claims of compliance. Accordingly, the Board found that the Respondent violated Section 8(a)(1) by issuing various coercive statements, maintaining a confidentiality policy that infringed on Section 7 rights, and discharging or constructively discharging an employee.
Charge filed by an individual. Chairman McFerran and Members Kaplan and Prouty participated.
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International Longshoremen’s Association, Local 1294 (Federal Marine Terminals, Inc.) (03-CB-304129; 372 NLRB No. 117) Albany, NY, August 2, 2023.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file a timely or appropriate answer to the complaint. The Board found that the Respondent violated Section 8(b)(1)(A) by failing or refusing to process a unit employee’s grievance for reasons that are arbitrary, discriminatory, or in bad faith.
Charge filed by an individual. Chairman McFerran and Members Kaplan and Prouty participated.
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Stericycle, Inc. (04-CA-137660, et al.; 372 NLRB No. 113) Morgantown, WV, August 2, 2023.
A Board majority consisting of Chairman McFerran and Members Wilcox and Prouty adopted a new legal standard for evaluating employer work rules challenged as facially unlawful under Section 8(a)(1). In so doing, the Board overruled Boeing Co., 365 NLRB No. 154 (2017), LA Specialty Produce Co., 368 NLRB No. 93 (2019), and the work rules cases relying on them. The new standard builds on and revises the standard from Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
The majority reasoned that the standard under Boeing and LA Specialty Produce was problematic because it permitted employers to adopt overbroad work rules that chill employees’ exercise of their rights under Section 7 of the Act. That standard did not require employers to narrowly tailor their rules to further their business interests without unnecessarily burdening employee rights. Under the new standard, a challenged rule is deemed presumptively unlawful if the General Counsel proves that it has a reasonable tendency to chill employees’ exercise of their rights. The employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer cannot advance that interest with a more narrowly tailored rule. If the employer makes that showing, the rule will be found lawful to maintain.
The majority also rejected Boeing’s categorical approach to work rules. Under that approach, certain types of rules were held to be always lawful to maintain regardless of how they were specifically drafted or what specific interests a particular employer cited as being furthered by the maintenance of those rules. The majority reasoned that this was an arbitrary and capricious approach to the analysis of work rules and replaced it with a case-by-case approach that will allow for consideration of the specific wording of a challenged rule, the specific industry and workplace context in which it is maintained, the specific employer interests it may advance, and the specific statutory rights it may infringe.
The majority remanded the case to the Administrative Law Judge to allow the parties to present arguments and introduce any relevant evidence under the new standard.
Dissenting, Member Kaplan would have adhered to the standard set forth in Boeing and LA Specialty Produce. He reasoned that that standard accommodates the reality that work rules must be worded generally and accords sufficient weight to both employee rights and employer interests so that they are balanced against each other in a meaningful way. In his view, the majority’s standard gives effectively dispositive weight to the employee rights side of the balance.
Petitioner—Teamsters Local 628. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated.
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UPS Supply Chain Solutions, Inc. (32-CA-309933; 372 NLRB No. 121) Tracy, CA, August 4, 2023.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board severed for further consideration the issue of whether the Board should adopt a compensatory, make whole remedy for the Respondent’s failure to bargain.
Charge filed by International Brotherhood of Teamsters, Local 439. Chairman McFerran and Members Kaplan and Wilcox participated.
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Serta Simmons Bedding, LLC (04-CA-266838, et al.; 372 NLRB No. 115) Hazelton, PA, August 4, 2023.
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by threatening to fire employees for engaging in protected concerted activity. A Board majority (Members Wilcox and Prouty) also adopted the judge’s conclusions that the Respondent violated Section 8(a)(1) by: (1) firing 13 employees for engaging in a protected in-plant work stoppage; (2) informing employees that they were fired because of their protected concerted activity; and (3) summoning police to have employees removed from the cafeteria for engaging in protected concerted activity. Dissenting, Member Kaplan concluded that the work stoppage had lost the protection of the Act by the time the employees were discharged, and that the Respondent therefore did not violate Section 8(a)(1) in any other manner.
Charges filed by individuals. Administrative Law Judge Robert A. Ringler issued his decision on December 17, 2021. Members Kaplan, Wilcox, and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Shimmick Construction Company (22-RC-311933) Jersey City, NJ, August 2, 2023. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order Dismissing Representation Petition as it raised no substantial issues warranting review. Petitioner—National Association of Transportation Supervisors, Local 352. Chairman McFerran and Members Kaplan and Prouty participated.
Hannam Chain USA, Inc. (31-RC-312241) Los Angeles, CA, August 3, 2023. The Board denied the Employer’s Request for Extraordinary Relief. In doing so, the Board explained that the impoundment provision that formerly appeared in Section 102.67(c) had been invalidated in AFL-CIO v. NLRB, 57 F.4th 1023 (D.C. Cir. 2023), and subsequently rescinded by the Board. See 88 FR 14908-14913 (Mar. 10, 2023). Member Kaplan noted that he would have upheld the impoundment provision consistent with Judge Rao’s dissent in AFL-CIO v. NLRB. Petitioner—California Restaurant and Retail Workers Union. Chairman McFerran and Members Kaplan and Prouty participated.
C Cases
No Unpublished C Cases Issued.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Vermont Information Processing, Inc. (03-CA-301055; JD-49-23) Colchester, VT. Administrative Law Judge Arthur J. Amchan issued his decision on July 31, 2023. Charge filed by individuals.
Starbucks Corporation (20-CA-298282; JD(SF)-18-23) San Francisco, CA. Administrative Law Judge Gerald M. Etchingham issued his decision on July 31, 2023. Charge filed by Workers United.
Compania Cervecera de Puerto Rico (12-CA-295428 and 12-CA-301300; JD-49-23) Mayaguez, PR. Administrative Law Judge Kimberly Sorg-Graves issued her decision on August 1, 2023. Charges filed by Union Independiente de Trabajadores de Cerveceria India.
Union Tank Car Company (08-CA-240492 and 08-CB-243472; JD-47-23) Marion, OH. Administrative Law Judge Geoffrey Carter issued his decision on August 3, 2023. Charges filed by an individual.
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