Summary of NLRB Decisions for Week of March 4 - 8, 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
Trustees of Dartmouth College (01-RC-325633; 373 NLRB No. 34) Hanover, NH, March 5, 2024.
The Board denied the Employer’s Request for Extraordinary Relief, finding that the Employer had not made a “clear showing” that extraordinary relief was “necessary under the particular circumstances of the case,” as required by Section 102.67(j)(2) of the Board’s Rules and Regulations. Member Kaplan, dissenting, would have ordered a stay of the election.
Petitioner—Service Employees International Union, Local 560. Chairman McFerran and Members Kaplan, Prouty, and Wilcox participated.
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Valladares Landscaping Artists, LLC (15-CA-306672 and 15-CA-306769; 373 NLRB No. 29) Houma, LA, March 6, 2024.
The Board denied the General Counsel’s Motion for Default Judgment and remanded the proceeding to the Regional Director for further appropriate action. The Board found that given the Respondent’s pro se status, default was not appropriate here. The Board found the Respondent’s letter sufficient to deny the substance of the Section 8(a)(1) allegations; however, all other complaint allegations, including jurisdiction, agency, and service, were deemed admitted.
Charges filed by individuals. Chairman McFerran and Members Kaplan and Wilcox participated.
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North Atlantic States Regional Council of Carpenters and SAMAP USA, Corp. (01-CD-312891; 373 NLRB No. 27) Boston, MA, March 6, 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 the North Atlantic States Regional Council of Carpenters, based on the of the collective-bargaining agreements, the employer preference and current assignment, and the economy and efficiency of operations.
Charge filed by SAMAP USA, Corp. Chairman McFerran and Members Kaplan and Wilcox participated.
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Starbucks Corporation (31-CA-299257; 373 NLRB No. 33) Los Angeles, CA, March 6, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by interrogating an employee and by threatening her with economic reprisals as well as the judge’s dismissal of the Section 8(a)(1) captive-audience meeting allegation. The Board declined to order the extraordinary remedies recommended by the judge.
Charge filed by Worker’s United. Administrative Law Judge Eleanor Laws issued her decision on May 12, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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3484, Inc., and 3486, Inc., as alter egos and/or single employer (27-CA-278463, et al.; 373 NLRB No. 28) Salt Lake City, UT, March 7, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent 3484, Inc., violated Section 8(a)(1) by interrogating an employee and by directing her to keep the interrogation confidential. The Board also adopted the judge’s conclusions that the Respondent 3486, Inc. violated (1) Section 8(a)(1) by both interrogating an employee and by threatening him with relocation of the business; and (2) Section 8(a)(3) and (1) by unlawfully refusing to reinstate nine unfair labor practice strikers.
Charges filed by International Brotherhood of Teamsters Locals 399 and International Brotherhood of Teamsters Locals 222. Administrative Law Judge Gerald M. Etchingham issued his decision on February 27, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Leo Marine Services, Inc. (19-RC-330385) Portland, OR, March 5, 2024. The Board denied the Employer’s Request to Stay the election. Petitioner—International Organization of Masters, Mates & Pilots. Chairman McFerran and Members Prouty and Wilcox participated.
Grow Op Farms, LLC (19-RC-315337) Spokane Valley, WA, March 7, 2024. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner—United Food and Commercial Workers Local 3000. Chairman McFerran and Members Prouty and Wilcox participated.
Northeastern University (01-RC-313126) Boston, MA, March 8, 2024. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner—American Coalition of Public Safety. Chairman McFerran and Members Prouty and Wilcox participated.
C Cases
Embraer Executive Jets (12-CA-318088) Melbourne, FL, March 4, 2024. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, finding that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by an individual. Members Kaplan, Prouty, and Wilcox participated.
American Civil Liberties Union, Inc. (05-CA-300367 and 05-CA-302762) Washington, DC, March 6, 2024. The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order denying its Motion to Defer the proceeding to the grievance and arbitration procedure set forth in the Respondent’s personnel policy. The Board denied the appeal on the merits and found that the Respondent had failed to establish that the judge abused his discretion in denying the Motion to Defer. The Board found that the public policy considerations underlying its deferral policies do not extend to a unilaterally imposed dispute-resolution procedure such as the one at issue in this case. Charges filed by Nonprofit Professional Employees Union (NPEU), International Federation of Professional & Technical Engineers (IFPTE) Local 70 a/w International Federation of Professional & Technical Engineers, AFC-CIO, CLC. Members Kaplan, Prouty, and Wilcox participated.
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Appellate Court Decisions
New Concepts for Living, Inc., Board Case No. 22-CA-187407 (reported at 371 NLRB No. 157) (3d Cir. decided March 4, 2024).
In a published opinion, the Court granted the petition for review filed by this operator of residential group homes and a day facility for developmentally disabled individuals in northern New Jersey, where Communications Workers of America Local 1040 has represented 90 employees since 2007. In late 2015, the Union launched an effort to more actively represent the employees, and in 2016, requested bargaining for a successor contract. Reversing the Administrative Law Judge’s dismissal of the complaint, the Board (Chairman McFerran and Member Prouty; Member Ring, dissenting) found that in response to the stepped-up union activity the Employer violated Section 8(a)(1) by soliciting employees to resign from the Union and to revoke their dues-deduction authorization, and by polling employees regarding their views on the Union. The Board also found that the Employer violated Section 8(a)(3) and (1) by failing to bargain in good faith and later withdrawing recognition.
On review, the Court viewed the case differently. After deciding to reach some issues that the Board had considered forfeited, the Court concluded that the Board’s decision was not supported by substantial evidence. In so holding, the Court agreed with the Administrative Law Judge that the position of the General Counsel that was accepted by the Board “ignore[d] the fundamental truth underlying this case, that it was the Union’s own absence over the span of multiple years that ultimately led to its loss of support.”
The Court’s opinion is here.
Renew Home Health, A Division of Maxus Healthcare Partners, LLC, Board Case No. 16-CA-260038 (reported at 371 NLRB No. 165) (5th Cir. decided March 7, 2024).
In a published opinion, the Court enforced, in part, the Board’s order that issued against this provider of in-home nursing, therapy, and aide services out of its branch in Fort Worth, Texas, for unfair labor practices committed in 2020 after its employees began discussing and collectively raising pandemic-related workplace concerns. The Board (Chairman McFerran and Members Kaplan and Prouty) found that the Employer violated Section 8(a)(1) in numerous ways. Specifically, the Board held that the Employer had coercively interrogated employees, maintained and enforced an oral workplace rule prohibiting employees from discussing their workplace grievances and requiring them to bring such concerns directly to management, and threatening and ultimately discharging one of its registered nurses (RNs) for engaging in such discussions. In doing so, the Board rejected the Employer’s defense that its RNs were exempt from the Act’s coverage because they were supervisors under Section 2(3), and that on that basis, the Employer contended, it had no liability for several of the unfair-labor-practice allegations.
On review, the Court agreed with the Board that the Employer had failed to carry its burden of proving that its RNs are statutory supervisors on the claimed bases that they assign work, discipline employees, recommend hires, and address grievances. The Court explained that: “At best, the RNs’ exercise of any supervisory function is limited to a purely clerical or reportorial nature, which is insufficient to establish supervisory status,” citing NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). Rather, the Court found that such decisions “rest with branch managers and other senior leadership.”
Having affirmed that the RNs are employees within the coverage of the Act, the Court then reviewed the Board’s unfair-labor-practice findings. The Court concluded that the findings that the Employer unlawfully conducted coercive investigations and unlawfully discharged the RN for engaging in protected concerted activities were supported by substantial evidence. However, the Court stated that it could not uphold the threat finding because it was too conclusory to be evaluated. Regarding the findings involving the oral workplace rule, the Court found them inconsistent with Board precedent, which the Court read as requiring that “an employer’s policy is only a workplace rule if it is communicated to more than one employee or otherwise conveyed with instructions to disseminate the policy to other employees.” The Court held that neither requirement was established on the record in this case.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Lancaster Coffee Co. & Café LLC (03-CA-306479; JD-11-24) Buffalo, NY, March 4, 2024. Errata to Administrative Law Judge Michael A. Rosas’ decision of February 26, 2024. Errata Amended Decision.
Starbucks Corporation (21-CA-295845 and 21-CA-312405; JD(SF)-08-24) Los Angeles, CA, March 4, 2024. Errata to Administrative Law Judge Jeffrey D. Wedekind’s decision of February 22, 2024. Errata Amended Decision.
South Nassau Communities Hospital, d/b/a Mount Sinai South Nassau (29-CA-312425; JD(NY)-05-24) Oceanside, NY. Administrative Law Judge Benjamin W. Green issued his decision on March 5, 2024. Charge filed by an individual.
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