Summary of NLRB Decisions for Week of March 27 - 31, 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
United Parcel Service, Inc. (UPS) (02-CA-275560; 372 NLRB No. 70) New York, NY, March 28, 2023.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing to furnish the Union with information concerning the email addresses and/or cell phone numbers for seasonal helpers and report time information for seasonal helpers.
Charge filed by International Brotherhood of Teamsters, Local 804. Administrative Law Judge Benjamin W Green issued his decision on April 27, 2022. Chairman McFerran and Members Wilcox and Prouty participated.
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HCI, LLC (21-CA-301088; 372 NLRB No. 72) Riverside, CA, March 28, 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 and compliance specification. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain over the effects of its decisions to indefinitely furlough its unit employees and to cease operations, and by failing and refusing to furnish the Union with requested relevant and necessary information.
Charge filed by Communications Workers of America Local 9400. Chairman McFerran and Members Kaplan and Prouty participated.
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HR Restaurants L.C. d/b/a Burger King (27-CA-302403; 372 NLRB No. 69) Billings, MT, March 28, 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)(1) by instructing employees not to discuss wages, telling them that doing so was against company policy, and threatening them with discharge if they discussed wages.
Charge filed by an individual. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Valley Hospital Medical Center, Inc., d/b/a Valley Hospital Medical Center (28-RD-295263) Las Vegas, NV, March 29, 2023. The Board denied the Employer’s and Petitioner’s Requests for Review of the Regional Director’s Order Vacating Hearing and Dismissing Petition finding no substantial reasons warranting review. Union—Local Joint Executive Board of Las Vegas (Culinary Workers Union, Local 226 and Bartenders Union, Local 165) a/w Unite Here International. Chairman McFerran and Members Kaplan and Prouty participated.
Global Auto Logistics, LLC (21-RC-298400) El Cajon, CA, March 29, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision Disposing of Objections and Certification of Representative finding no substantial issues warranting review. Petitioner—Salesdrivers, Helpers and Dairy Employees, Teamsters Local 683, International Brotherhood of Teamsters. Members Kaplan, Wilcox, and Prouty participated.
C Cases
Smyrna Ready Mix Concrete, LLC (09-CA-251578, et al.) Louisville, KY, March 28, 2023. The Board denied the Charging Party’s Request for Review of the General Counsel’s decision affirming the Regional Director’s compliance determination. Charges filed by General Drivers, Warehousemen and Helpers, Local Union No. 89, a/w the International Brotherhood of the Teamsters. Chairman McFerran and Members Wilcox and Prouty participated.
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Appellate Court Decisions
Tesla, Inc., Board Case No. 32-CA-197020 (reported at 370 NLRB No. 101) (5th Cir. decided March 31, 2023).
In a published opinion, the Court enforced the Board’s order that issued against this manufacturer of electric vehicles at a plant in Fremont, California, where it committed numerous unfair labor practices during an organizing campaign initiated by employees seeking representation by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. In doing so, the Court denied Tesla’s petition for review, which disputed only an unlawful discharge and the Board’s finding that CEO Elon Musk threatened employees by tweeting that they would lose stock options if they unionized. Further, the Court denied the Union’s petition for review, which challenged the Board’s dismissal of an allegation that Tesla unlawfully solicited grievances, as well as the Board’s determination not to issue a notice-reading remedy.
The Board (Chairman McFerran and Members Emanuel and Ring) found that Tesla committed a litany of unfair labor practices when it unlawfully responded to its employees’ organizing efforts by repeatedly coercing, threatening, and discriminating against them. Among other violations, the Board found that Tesla violated Section 8(a)(1) by coercively interrogating employees on five occasions, threatening them with the loss of stock options if they unionized, and maintaining a confidentiality agreement that employees would reasonably interpret to interfere with protected activity, and restricting their use of the company’s messaging-and-data program in response to protected activity. The Board also found that Tesla violated Section 8(a)(3) and (1) by discharging one key employee organizer, and warning another. In the absence of exceptions, the Board adopted the Administrative Law Judge’s findings that Tesla violated Section 8(a)(1) by twice interfering with its employees’ distribution of union leaflets, prohibiting employees from distributing union materials, and threatening them with discharge if they did, and threatening that unionization would be futile. Further, the Board dismissed several allegations, including an unlawful discharge allegation, and declined to order a notice-reading remedy. Before the Court, Tesla conceded the bulk of those unfair-labor-practice violations.
In a comprehensive opinion, the Court rejected Tesla’s argument that its CEO’s tweet, which conveyed to employees that they would “give up stock options” if they voted for the Union, was speech protected by Section 8(c) of the Act. Relying on NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the Court explained that “a statement implying that unionization will result in the loss of benefits, without some explanation or reference to the collective-bargaining process, economic necessity, or other objective facts, is a coercive threat, while such a statement is not a threat if made in the context, for example, of explaining that existing benefits may be traded away during the bargaining process.” Here, the Court found that the tweet did not include any objective facts that would lead a reasonable employee to conclude that the statement was anything other than a threat. Moreover, the Court rejected Tesla’s argument that the Board erred in not taking into account later tweets and a press release, noting that such non-contemporaneous communications “cannot change whether the original tweet was a threat.” In so holding, the Court emphasized its view that “Tesla’s history of labor violations supports the NLRB’s finding that employees would understand Musk’s tweet as a threat to commit another violation by rescinding stock options as retaliation.” On the unlawful discharge finding, the Court held that substantial evidence supported the Board’s finding that union animus motivated, at least in part, Tesla’s decision to fire the employee, who in response to questioning during an investigation, had lied about union activity.
Turning to the issues raised by the Union’s petition, the Court upheld that the Board’s dismissal of the allegation that Tesla had unlawfully solicited grievances, finding it fully supported by the record evidence. Regarding the Board’s determination not to order a notice-reading remedy, the Court declined to disturb the Board’s determination, noting “the deferential standard of review and the ‘special respect’ given to the NLRB’s choice of remedy in light of its policy expertise and its broad, discretionary remedial powers.”
The Court’s opinion is here.
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Administrative Law Judge Decisions
Longmont United Hospital and Centura Health, as a single employer (27-CA-291664; JD(SF)-08-23) Denver, CO. Administrative Law Judge John T. Giannopoulos issued his decision on March 28, 2023. Charge filed by National Nurses Organizing Committee/National Nurses United (NNOC/NNU).
J. Ginger Masonry, LP (21-CA-289777; JD(SF)-07-23) Riverside, CA. Administrative Law Judge Gerald M. Etchingham issued his decision on March 29, 2023. Charge filed by Bricklayers and Allied Craftworkers Local No. 4, California.
Nefarious Movie, LLC (14-CA-287219; JD-22-23) Oklahoma City, OK, March 30, 2023. Errata to decision issued on March 24, 2023. Errata Amended Decision.
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