Summary of NLRB Decisions for Week of March 25 - 29, 2024
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
Universal Protection Services, LLC d/b/a Allied Universal Security Services (12-CA-305972; 373 NLRB No. 38) Homestead, FL, March 27, 2024.
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 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 International Union, Security, Police and Fire Professionals of America. Chairman McFerran and Members Kaplan and Wilcox participated.
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International Association of Machinists and Aerospace Workers, District Lodge No. 160 and SSA Terminals, LLC (19-CD-303801; 373 NLRB No. 39) Seattle, WA, March 29, 2024.
In this Section 10(k) jurisdictional dispute proceeding, the Board found reasonable cause to believe that Section 8(b)(4)(D) has been violated. The Board awarded the disputed work to employees represented by International Longshore and Warehouse Union, Local 19, based on the collective bargaining agreements, employer preference, and industry and area practice. The Board denied or found unnecessary to pass on several motions for administrative notice of other court proceedings, prior Board cases, a news report, and a bankruptcy petition.
Charge filed by SSA Terminals, LLC. Intervenor—Pacific Maritime Association. Chairman McFerran and Members Prouty and Wilcox participated.
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Amazon.com Services, LLC (09-CA-298870; 373 NLRB No. 40) Lebanon, KY, March 29, 2024.
The Board granted the General Counsel’s Motion for Summary Judgment and denied the Respondent’s Cross-Motion for Summary Judgment. The Board found that the Respondent violated Section 8(a)(5) and (1) by promulgating and maintaining an employee work rule which reserved to the Respondent the right to depart from the rule when deemed appropriate by it. The Board found the rule violated the test in Tri-County Medical Center, 222 NLRB 1089 (1976), because it grants the Respondent discretion to decide when and why off-duty employees may access its facilities to engaged in protected activity under the Act. The Board found without merit the Respondent’s defenses that it effectively repudiated the rule by promulgating a revised rule, and that the unlawful conduct in this case was de minimis.
Charge filed by an individual. Chairman McFerran and Members Prouty and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
International Brotherhood of Electrical Workers, Local 111, AFL-CIO (27-UC-312527) Denver, CO, March 25, 2024. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Order, as it raised no substantial issues warranting review. Petitioner/Employer —International Brotherhood of Electrical Workers, Local 111, AFL-CIO. Union—Union Professionals International. Chairman McFerran and Members Prouty and Wilcox participated.
Starbucks Corporation (10-RD-323234) Greenville, SC, March 27, 2024. The Board denied the Employer’s and Petitioner’s Requests for Review of the Regional Director’s Decision and Order Dismissing Petition as they raised no substantial issues warranting review. The Regional Director dismissed the decertification petition, subject to reinstatement, due to a pending unfair labor practice complaint against the Employer seeking an affirmative bargaining order and an extension of the certification year. Petitioner—an individual. Union—Workers United, Southern Regional Joint Board. Chairman McFerran and Members Prouty and Wilcox participated.
Blue Line Foodservice Distribution (32-RC-323289) Tracy, CA, March 28, 2024. The Board denied the Employer’s Request for Review of the Regional Director’s Decision on Election Objection and Certification of Representative as it raised no substantial issues warranting review. Petitioner—Teamsters Local 439. Chairman McFerran and Members Prouty and Wilcox participated.
C Cases
No Unpublished C Cases Issued.
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Appellate Court Decisions
Bannum Place of Saginaw, LLC, Board Case No. 07-CA-207685 (reported at 372 NLRB No. 97) (6th Cir. decided March 28, 2024).
In a published opinion, the Court enforced the Board’s supplemental order in this backpay case that issued against an operator of a halfway house for federal inmates in Saginaw, Michigan, which provides services under contract with the Federal Bureau of Prisons. In the underlying unfair-labor-practice case (370 NLRB No. 117), the Board found that Bannum violated the Act in numerous ways, both before and after its employees voted in a November 2017 election to be represented by Teamsters Local 406. Among other remedies, the Board ordered make-whole relief for two employees discharged in violation of Section 8(a)(4), (3), and (1).
Previously on review, the Court enforced the Board’s unfair-labor-practice order in full. Bannum Place of Saginaw, LLC v. NLRB, 41 F.4th 518 (6th Cir. 2022). Subsequently, on the Board’s petition, the Court issued a temporary protective restraining order under Section 10(e) of the Act restricting Bannum from disposing of assets. NLRB v. Bannum, Inc. and Bannum Place of Saginaw, LLC, 2023 WL 4842837, modified in part, 2023 WL 5167255 (6th Cir. 2023). In January 2024, the Board moved to hold Bannum in contempt for failing to comply with the Court’s protective restraining order, which the Court granted. NLRB v. Bannum, Inc., 93 F.4th 973 (6th Cir. 2024) (per curiam).
Meanwhile, in the compliance case, the Board (Members Kaplan, Wilcox, and Prouty) issued the backpay order in June 2023, which awarded one discharged employee net backpay, 401(k) contributions, medical expenses, and interim expenses, and awarded the other employee net backpay and 401(k) contributions. Further, the Board found that Bannum, Inc. was jointly liable with Bannum Saginaw for the specific amounts of backpay owed as either a parent company of Bannum Saginaw that directly participated in the unlawful discharges, or as a single employer with Bannum Saginaw. The Board then filed for enforcement of the backpay order.
Before the Court, Bannum did not contest the Board’s calculation of backpay owed to the two discriminatees, containing its defense primarily to contentions that the Board erred in finding single-employer status, that raising the allegation of joint liability during the compliance proceeding violated due process, and that the discriminatees failed to mitigate their damages. On single-employer status, the Court held that the Board properly found that all four factors relevant to the analysis—common ownership, common management, centralized control of labor relations, and interrelation of operations—supported that status. On the due-process claim, the Court noted that the record demonstrated that the two entities had were “sufficiently closely related,” and that Bannum, Inc. received notice and an opportunity to be heard by virtue of its single-employer relationship with Bannum Saginaw, which indisputably received notice and an opportunity to be heard during the compliance proceeding. Regarding the failure-to-mitigate claims, the Court found them unpersuasive and upheld the Board’s finding that Bannum had failed to carry its burden of proof, and instead finding no basis to disturb the Board’s backpay order. Finding no merit to Bannum’s remaining contentions, the Court enforced the Board’s order in full.
The Court’s opinion is here.
Cadillac of Naperville, Inc., Board Case No. 13-CA-207245 (reported at 371 NLRB No. 140) (D.C. Cir. decided March 27, 2024).
In an unpublished judgment, the Court enforced the Board’s supplemental order that issued against this operator of a car dealership in Naperville, Illinois, where its mechanics are represented by Automobile Mechanics Local 701, International Association of Machinists and Aerospace Workers, AFL-CIO. In doing so, the Court upheld the Board’s determination on remand that the Employer unlawfully discharged a shop steward in violation of Section 8(a)(3) and (1) following a strike in 2017.
In its initial decision (368 NLRB No. 3), the Board (Chairman Ring and then-Member McFerran, Member Emanuel, dissenting in part), found the discharge unlawful after rejecting the Administrative Law Judge’s application of Wright Line, and instead applied Atlantic Steel Co., 245 NLRB 814 (1979). The Board rejected the Employer’s contention that the shop steward lost the protection of the Act by making a single insult to the dealership’s owner during a heated discussion over recalling strikers. Further, the Board found that the Employer committed numerous acts of coercion, made a variety of unilateral changes, and failed to immediately reinstate five former strikers, all in violation of Section 8(a)(5) and (1).
After the Employer petitioned for review, and briefing was underway, the Board issued General Motors, LLC, 369 NLRB No. 127 (2020), overruling Atlantic Steel, and announcing that Wright Line instead was the appropriate test for analyzing employee misconduct that occurred in the course of protected activity. Thereafter, the Board requested that the Court proceed to decision, but remand the unlawful discharge allegation for reconsideration in light of changed precedent. In its decision, the Court enforced the Board’s order in all aspects, except with regard to the unlawful discharge, and remanded that issue for the Board’s reconsideration. Cadillac of Naperville v. NLRB, 14 F.4th 703 (D.C. Cir. 2021).
On remand, the Board (Members Kaplan, Ring, and Prouty), consistent with General Motors, analyzed the unlawful discharge under Wright Line, and again found that the Employer unlawfully discharged the shop steward. Specifically, the Board found ample evidence that the Employer was motivated by animus against his protected union activity, and rejected the Employer’s defense that it would have discharged him under its code of conduct even absent that activity. The Employer again petitioned for review, and while briefing was underway, the Board issued Lion Elastomers, 372 NLRB No. 83 (2023), which overruled General Motors and returned to the Atlantic Steel standard.
In its current opinion, the Court held that the Board’s application of the Wright Line standard was fully supported by substantial evidence. Further, the Court rejected the Employer’s arguments as contrary to the record evidence, and agreed with the Board that the surrounding circumstances suggested that the Employer’s stated reasons for the discharge were pretextual. Additionally, the Court noted that further support for the Board’s conclusion was that the shop steward’s single profane insult was made “in the context of a workplace where profanity was ‘common’—as demonstrated by [the owner]’s own statements” made during the discussion over recalling strikers.
Regarding the Board’s recent issuance of Lion Elastomers, the Court determined that it would not remand to the Board to apply the Atlantic Steel standard, despite the Board’s intervening decision. The Court stated that the Board had sought enforcement of its order under Wright Line, and that “Wright Line has not been overruled and remains a viable standard for finding a violation under Sections 8(a)(1) and (3) of the Act, even if the Board has indicated that it now intends Atlantic Steel to govern a situation like this one.” Among other points, the Court noted that the Board has already applied the Atlantic Steel standard to the record in this case, and reached the same conclusion that it did under Wright Line. Accordingly, the Court decided that remand would be “’an idle and useless formality’ as there is no possibility that the Board will change its conclusion on this record,” quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969).
The Court’s opinion is here.
Starbucks Corporation d/b/a Starbucks Coffee Company, Board Case No. 19-CA-289275 (reported at 372 NLRB No. 93) (D.C. Cir. decided March 28, 2024).
In an unpublished judgment, the Court enforced the Board’s order that issued against this provider of specialty coffee and coffee products to remedy unfair labor practices committed during a campaign by Starbucks employees to organize a store in Seattle, Washington, in an effort to join Workers United, an affiliate of Service Employees International Union. Specifically, the Board (Chairman McFerran and Members Kaplan and Wilcox) found that Starbucks violated Section 8(a)(1) by informing employees that they cannot testify pursuant to a Board subpoena without first securing coverage for their shifts, and by threatening employees with discipline if they did so. The Board also found that Starbucks violated Section 8(a)(1) by prohibiting all union solicitation and distribution of union buttons and pins during company break periods, which was a prohibition that employees would reasonably understand to improperly extend beyond the selling floor to the entire store, and include non-public areas, like the backroom, which employees frequented on break.
Before the Court, Starbucks did not challenge the Board’s findings that it unlawfully informed and threatened employees that they could not testify pursuant to a Board subpoena without first securing shift coverage. On the contested issue of the unlawful prohibition on union solicitation and distribution, the Court held that the Board’s findings were supported by substantial evidence, and that Starbucks’ arguments to the contrary “fail[ed] to overcome the demanding substantial evidence standard.” Further, the Court held that a newly raised challenge to the Board’s remedy was jurisdictionally barred under Section 10(e) of the Act, and summarily enforced those portions of the Board’s order that remedy the remaining uncontested violations.
The Court’s judgment is here.
Stern Produce Company, Inc., Board Case No. 28-CA-282577 (reported at 372 NLRB No. 74) (D.C. Cir. decided March 26, 2024).
In a published opinion, the Court granted the petition filed by this wholesale distributor of produce and food products to review the Board’s order that issued against it for unfair labor practices committed during a long-running campaign at its Phoenix, Arizona facility by warehouse employees and truck drivers seeking to be represented by United Food and Commercial Workers, Local 99. This case arose after two prominent union supporters had been reinstated under the terms of a formal Board settlement that resolved a number of prior allegations of antiunion discrimination against the Employer and resulted in an unpublished court-enforced consent judgment. See Order Granting Enforcement, NLRB v. Stern Produce Co., No. 21-71140 (9th Cir. June 25, 2021).
Thereafter, reversing the Administrative Law Judge, the Board (Chairman McFerran, Members Wilcox and Prouty) found that the Employer violated Section 8(a)(1)by creating an unlawful impression that it was surveilling one of the union supporters when a manager sent him a text message signaling that it was watching him through the camera installed in his truck—stating “you can’t cover the camera it’s against company rules.” Regarding the second organizer, the Board found that the Employer violated Section 8(a)(4), (3), and (1) by issuing him a second-step written warning for a first-time infraction involving offensive language in retaliation for his participation in union activities and Board proceedings.
On review, the Court noted that the Board’s surveillance finding was founded on “a single phrase in one text message on a subject the manager never mentioned again,” and on that basis, the Court viewed the record evidence as insufficient to sustain the finding. Further, the Court stated that there was evidence that the Employer “puts drivers on notice that cameras ‘must remain on at all times,’” and informs drivers that they have no expectation of privacy in their trucks. Regarding the Board’s Wright Line analysis in finding the discriminatory conduct against the second union supporter, the Court found the evidence of animus insufficient to sustain the findings. In particular, the Court was not persuaded that the Employer’s prior unfair labor practices could be used to support a finding of animus, and that allegations of unlawful conduct that were part of the settlement agreement carried no weight. Finally, with regard to disparate treatment potentially supporting an animus finding, the Court stated that the record did not contain enough evidence that the union supporter was “singled out” for harsher discipline. Accordingly, the Court denied enforcement.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Amazon.com Services, LLC (29-CA-297454; JD(NY)-06-24) Staten Island, NY. Administrative Law Judge Benjamin W. Green issued his decision on March 26, 2024. Charge filed by Amazon Labor Union.
Starbucks Corporation (03-CA-315203, et al.; JD-19-24) Buffalo, NY. Administrative Law Judge Geoffrey Carter issued his decision on March 26, 2024. Charges filed by Workers United.
Accel Logistics, Inc. (16-CA-291891; JD(SF)-11-24) Arlington, TX. Administrative Law Judge Robert A. Ringler issued his decision on March 27, 2024. Charge filed by an individual.
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