Summary of NLRB Decisions for Week of June 20 - 23, 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
Starbucks Corporation (19-CA-289275 and 19-CA-289771; 372 NLRB No. 93) Seattle, WA, June 20, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by: (1) telling an employee that they must secure coverage for their shift before testifying pursuant to a Board subpoena; (2) threatening to discipline the employee if they testified prior to securing coverage for their shift; and (3) prohibiting all union distribution during paid break periods.
Charges filed by Workers United a/w Service Employees International Union. Administrative Law Judge John T. Giannopoulos issued his decision on November 3, 2022. Chairman McFerran and Members Kaplan and Wilcox participated in the decision.
***
Tec-Cast, Inc. (22-CA-277711; 372 NLRB No. 90) Newark, NJ, June 21, 2023.
The Board adopted the Administrative Law Judge’s conclusions, in the absence of exceptions, that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with notice and an opportunity to bargain over the effects of its decision to close one of its facilities, laying off the bargaining unit workers, and transferring the remaining bargaining unit work to another facility. The Board amended the Transmarine remedy to provide backpay to all employees that were laid off from the plant closure and to remove the award of search-for-work and interim employment expenses.
Charge filed by United Food & Commercial Workers Union, Local 360. Administrative Law Judge Kenneth W. Chu issued his decision on July 28, 2022. Chairman McFerran and Members Kaplan and Prouty participated.
***
Troy Grove, a Division of RiverStone Group, Inc., Vermilion Quarry, a Division of RiverStone Group, Inc. (25-CA-276061 and 25-CA-280390; 372 NLRB No. 94) Utica, IL, June 22, 2023.
The Board unanimously reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by laying off two employees when it issued them layoff notices but rescinded them before they took effect. Instead, the Board unanimously found that the issuance of the notices violated Section 8(a)(1). A Board majority, consisting of Members Wilcox and Prouty, adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) by failing and refusing to bargain collectively and in good faith by threatening to unilaterally implement its pension plan offer without having reached a valid impasse. Dissenting in part, Member Kaplan found that the Respondent’s threat constituted hard bargaining and, therefore, did not violate Section 8(a)(5). The Board majority ordered, among other things, notice reading and reimbursement of bargaining expenses.
Charges filed by International Operating Engineers, Local 150, AFL-CIO. Administrative Law Judge Michal A. Rosas issued his decision on March 29, 2022. Members Kaplan, Wilcox, and Prouty participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Opus Inspection, Inc., d/b/a Air Care Colorado (27-RC-294161) Denver, CO, June 20, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election and of her Decision on Challenges and Objections, Order on Challenged Ballots, and Certification of Representative as it raised no substantial issues warranting review. Petitioner—United Food and Commercial Workers International Union, AFL-CIO, Local 7. Chairman McFerran and Members Wilcox and Prouty participated.
Loma Linda Inland Empire Consortium for Healthcare Education, d/b/a Loma Linda University Health Education Consortium (31-RC-312064) Loma Linda, CA, June 21, 2023. The Board denied the Employer’s Request to Impound Ballots. Petitioner—Union of American Physicians and Dentists (UAPD). Chairman McFerran and Members Wilcox and Prouty participated.
New Vitae Wellness & Recovery (04-RC-310585) Philadelphia, PA, June 22, 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—District 1199C, National Union of Hospital and Health Care Employees, AFSCME, AFL-CIO. Chairman McFerran and Members Wilcox and Prouty participated.
C Cases
Hospital Menonita Ponce, Inc. (12-CA-308692) Ponce, PR, June 20, 2023. The Board denied the Petition to Revoke the investigative subpoena duces tecum filed by Hospital Menonita Ponce, Inc., finding that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. The Board also found that the Petitioner failed to establish any other legal basis for revoking the subpoena. Charges filed by Unidad Laboral de Enfermeras (os) y Empleados de la Salud. Chairman McFerran and Members Wilcox and Prouty participated.
Local 210, International Brotherhood of Teamsters (02-CB-298980) New York, NY, June 21, 2023. No exceptions having been filed to the May 3, 2023 decision of Administrative Law Judge Kenneth W. Chu’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 Perrigo New York, Inc.
***
Appellate Court Decisions
Xcel Protective Services, Inc., Board Case No. 19-CA-232786 (reported at 371 NLRB No. 134) (D.C. Cir. decided June 23, 2023).
In an unpublished judgment, the Court enforced the Board’s order that issued against this contractor that provides security for multiple federal government facilities, including the United States Navy base on Indian Island, near Seattle, Washington, where 50 security officers are represented by the International Union, Security, Police, and Fire Professionals of America, Local 5. The Board (Chairman McFerran and Member Wilcox; Member Ring, dissenting in part) found that Xcel violated Section 8(a)(1) by discharging a security officer for raising a shared workplace safety concern about Xcel’s failure to follow Navy weapons-qualification policies, and rejected Xcel’s defense that that he forfeited the Act’s protection by making maliciously false statements. In the absence of exceptions, the Board adopted the Administrative Law Judge’s conclusions that Xcel violated Section 8(a)(1) by telling employees they would not be allowed to go home early because someone had raised a pay-related complaint, and violated Section 8(a)(5) and (1) by failing to timely provide information requested by the Union.
Before the Court, Xcel challenged only the Board’s finding that it unlawfully discharged the security officer. However, in its defense, Xcel raised three arguments that it had not raised before the Board, which the Court therefore held were barred from review under Section 10(e) of the Act. On the arguments that were preserved for review, the Court held that the Board’s conclusions were amply supported by substantial evidence. For instance, on Xcel’s claim that the discharge was justified by the security officer’s maliciously untrue statements, the Court agreed with the Board that he was truthful in raising the workplace safety concerns about weapons qualification, including Xcel’s longstanding practice of using unauthorized locations to qualify guards and altering targets. The Court also rejected Xcel’s challenges to the Board’s Wright Line analysis, and held that the Board’s findings were supported by substantial evidence. Finally, the Court summarily enforced those portions of the Board’s order remedying the uncontested violations.
The Court’s judgment is here.
***
Administrative Law Judge Decisions
Commercial Solar Arizona, LLC (28-CA-288120 and 28-CA-291982; JD(SF)-16-23) Scottsdale, AZ. Administrative Law Judge Ariel L. Sotolongo issued his decision on June 20, 2023. Charges filed by an individual.
Apple, Inc. (02-CA-295979; JD(NY)-12-23) New York, NY. Administrative Law Judge Lauren Esposito issued her decision on June 20, 2023. Charge filed by Communications Workers of America, AFL-CIO.
Kirin Transportation, Inc., d/b/a Kirin Transportation (29-CA-270485, et al.; JD(NY)-13-23) Flushing, NY. Administrative Law Judge Benjamin W. Green issued his decision on June 21, 2023. Charges filed by individuals.
Starbucks Corporation (25-CA-292501, et al.; JD-38-23) Peoria, IL. Administrative Law Judge Paul Bogas issued his decision on June 23, 2023. Charges filed by Chicago and Midwest Regional Joint Board, Workers United/SEIU.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.