Summary of NLRB Decisions for Week of March 6 - 10, 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
International Longshoremen’s Association, AFL–CIO, CLC (United States Maritime Association, Ltd.) (10-CE-271054, et al.; 372 NLRB No. 36) Charleston, SC, March 8, 2023. Errata to December 16, 2022 Decision. Errata Amended decision.
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American Postal Workers Union of Louisiana (United States Postal Service) (15-CB-286086; 372 NLRB 64) Leonville, LA, March 10, 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(b)(1)(A) by failing and/or refusing to process grievances that the Charging Party had requested the Respondent to file.
Charge filed by an individual. Chairman McFerran and Members Wilcox and Prouty participated.
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International Union of Operating Engineers, Local 14-14B, AFL–CIO (Tishman Construction Corporation) (02-CD-288369; 372 NLRB No. 65) Manhattan, NY, March 10, 2023.
The Board found that this case was not appropriate for resolution under Section 10(k) and quashed the notice of hearing. Tishman Construction Corporation had filed a charge alleging that the Union violated Section 8(b)(4)(D) by picketing a construction site with the object of forcing Tishman Construction to assign hoist work to employees represented by Local 14-14B rather than a non-union subcontractor.
The Board found that the evidence failed to establish a traditional jurisdictional dispute between two rival groups of employees claiming the same work, with an innocent employer caught in the middle. Rather, the Board concluded that Tishman had created a work preservation dispute by inserting a provision in its contract with a subcontractor that explicitly denied the work to the Union, in tension (if not direct conflict) with the subcontractor’s collective-bargaining obligation with the Union. Thus, the Board found that the conduct did not give rise to a jurisdictional dispute within the meaning of Sections 10(k) and Section 8(b)(4)(D).
Charge filed by Tishman Construction Corporation. Chairman McFerran and Members Wilcox and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Jetstream Ground Services, Inc. (10-RC-304155) Charlotte, NC, March 7, 2023. The Board denied the Intervenor’s Request for Review of the Regional Director’s letter setting forth the election details as it raised no substantial issues warranting review. The Board also denied the Intervenor’s Request for Extraordinary Relief as moot. Petitioner—International Association of Machinists and Aerospace Workers, AFL-CIO. Intervenor—Service Employees International Union, Local 32BJ. Chairman McFerran and Members Kaplan and Wilcox participated.
Foodland Super Market, Ltd. (20-RC-308657) Honolulu, HI, March 8, 2023. 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 Union, Local 480. Chairman McFerran and Members Kaplan and Prouty participated.
Please Touch Museum (04-RC-310946) Philadelphia, PA, March 9, 2023. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Order Denying Motion for Extension of Deadline for Filing Statement of Position and Request for Reconsideration of Preclusion Determination as it raised no substantial issues warranting review. The Board also denied the Employer’s Motion for Extraordinary Relief as moot. Petitioner — AFSCME District Council 47, Local 397. Chairman McFerran and Members Kaplan and Prouty participated.
STG Cartage, LLC, d/b/a XPO Logistics (21-CA-289115) Los Angeles, CA, March 10, 2023. The Board granted the Petitioner’s Motion to Open and Count Impounded Ballots, denied the Employer’s Motion to Impound Ballots, and remanded the case for further proceedings. In granting the Petitioner’s motion, the Board explained that, pursuant to the rules then in effect, the ballots had been automatically impounded due to the pendency (and then grant) of a Request for Review; that the automatic impoundment provision was subsequently found contrary to Section 3(b) of the Act in AFL-CIO v. NLRB, 57 F.4th 1023 (D.C. Cir. 2023); and that consistent with the Court’s decision the Board had published a Final Rule (effective immediately) that repealed the automatic impoundment provision. Based on these developments, the Board stated that it saw no basis for continuing to impound the ballots in this case and found that it would best effectuate the purposes of the Act to grant the Petitioner’s motion. Member Kaplan noted that, as discussed in his dissent to the Final Rule, he agreed with Judge Rao’s dissent in AFL-CIO v. NLRB (which would have upheld the automatic impoundment provision). Petitioner—Wholesale Delivery Drivers, General Truck Drivers, Chauffeurs, Sales, Industrial and Allied Workers, Teamsters Local 848, International Brotherhood of Teamsters & Teamsters, Chauffeurs, Warehousemen & Helpers Local Union No. 542, International Brotherhood of Teamsters. Chairman McFerran and Members Kaplan and Prouty participated.
The Atlanta Opera, Inc. (10-RC-276292) Atlanta, GA, March 10, 2023. The Board granted the Petitioner’s Motion to Open and Count Impounded Ballots and remanded the case for further proceedings. In granting the motion, the Board explained that, pursuant to the rules then in effect, the ballots had been automatically impounded due to the pendency (and then grant) of a Request for Review; that the automatic impoundment provision was subsequently found contrary to Section 3(b) of the Act in AFL-CIO v. NLRB, 57 F.4th 1023 (D.C. Cir. 2023); and that consistent with the Court’s decision the Board had published a Final Rule (effective immediately) that repealed the automatic impoundment provision. Based on these developments, the Board stated that it saw no basis for continuing to impound the ballots in this case and found that it would best effectuate the purposes of the Act to grant the Petitioner’s motion. Member Kaplan noted that, as discussed in his dissent to the Final Rule, he agreed with Judge Rao’s dissent in AFL-CIO v. NLRB (which would have upheld the automatic impoundment provision). Petitioner—Make-Up Artists and Hair Stylists Union, Local 798, IATSE. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated.
C Cases
Thryv, Inc. (20-CA-250250 and 20-CA-251105) San Francisco, CA, March 8, 2023. The Board denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order, reported at 372 NLRB No. 22. The Board unanimously found that the Respondent had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. The Board (Chairman McFerran and Members Wilcox and Prouty; Member Kaplan, dissenting in part) rejected the Respondent’s arguments that the parties were at impasse when the Respondent violated Section 8(a)(5) and (1) by unilaterally implementing layoffs. The Board majority further rejected the argument that the Respondent’s unilaterally-imposed Last, Best, and Final Offer privileged the layoffs. Finally, the Board majority rejected the Respondent’s argument that its conduct prior to the unilateral layoffs was not evidence of an unlawful fait accompli, reiterating that this conduct evidenced the Respondent’s intent to implement the layoff decision without first bargaining with the Charging Party. Member Kaplan, who dissented in part in the underlying decision, nevertheless denied the motion because the Respondent did not identify any material error or demonstrate extraordinary circumstances warranting reconsideration. Charges filed by the International Brotherhood of Electrical Workers, Local 1269. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated.
Menehune Water Company, Inc. (20-CA-301126) Alea, HI, March 9, 2023. The Board denied the Respondent’s Motion for Partial Summary Judgment finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Charge filed by an individual. Chairman McFerran and Members Kaplan and Prouty participated.
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Appellate Court Decisions
Hawaiian Dredging Construction Company, Inc., Board Case No. 37-CA-008316 (reported at 368 NLRB No. 7), affirmed under the name Boilermakers Local 627 v. NLRB (D.C. Cir. decided March 7, 2023).
In a published opinion, the Court denied the petition for review, which challenged the Board’s dismissal of the underlying complaint in its supplemental decision after remand. The complaint had alleged that this general contractor that employs 375 craft workers in Hawaii unlawfully discharged 13 union-represented workers after the parties’ Section 8(f) agreement expired.
As a member of the Association of Boilermakers Employers of Hawaii, the Employer performs its craft work pursuant to Section 8(f) pre-hire collective-bargaining agreements. For over 20 years, the parties had executed such agreements under which the Union provided the Employer with a variety of craft workers. In 2010, when their most recent agreement expired, the parties began negotiating for a next agreement. In 2011, after negotiations broke down, the Employer ended its relationship with the Union, discharged the 13 employees, and temporarily discontinued the welding operations where they had been working. A week later, the Employer entered into a Section 8(f) agreement with a different union, Local 675 of the Plumbers and Pipefitters Union. It made clear that the 13 employees could return to work once they became Pipefitter members, as required by the agreement.
In its initial decision (362 NLRB No. 10), the Board (Chairman Pearce and Member Hirozawa; Member Miscimarra, dissenting) found that the Employer violated Section 8(a)(3) and (1) because the discharges amounted to unlawful anti-union discrimination under both Wright Line, 251 NLRB 1083 (1980) and NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967). On review, however, the D.C. Circuit held, among other things, that the Board had not adequately considered the credited evidence of the Employer’s 20-year policy of only employing craft workers covered by Section 8(f) agreements, and remanded the case to the Board for further consideration. Hawaiian Dredging Constr. Co. v. NLRB, 857 F.3d 877 (D.C. Cir. 2017).
On remand, the Board (Chairman Ring and Member Emanuel; then-Member McFerran, dissenting) reconsidered the case in light of the Court’s opinion and found no violation. The Board found the discharges lawful under Wright Line based on the Employer’s longstanding policy of performing work only under the terms of a Section 8(f) agreement. The Board explained that once the parties’ agreement expired, the Employer ceased performing the work and had no need for the employees. Therefore, the Board stated, because protected activity was not a motivating factor for the discharges, and the employees would have been discharged even in the absence of protected activity, there was no violation under Wright Line. The Board also assessed the allegation under Great Dane, noting first that the Court’s opinion foreclosed a finding that the discharges were “inherently destructive” of employee rights. Then applying Great Dane’s additional standard for employer actions that instead have a “comparatively slight” impact on employee rights, the Board concluded that the record did not contain evidence of anti-union motivation, and that the Employer’s policy constituted a legitimate business justification for the discharges.
Back on review, the D.C. Circuit concluded that the Board’s supplemental decision correctly applied established law and was supported by substantial evidence. Citing settled precedent, the Court stated that when a Section 8(f) pre-hire agreement expires, a construction employer has no continuing obligation to maintain a bargaining relationship with the union, and that “either party can walk away.” Further, the Court explained that in such Section 8(f) relationships, “absent other evidence, there is nothing discriminatory about a policy that suspends work and discharges employees when the agreement expires.” After determining that substantial evidence supported the Board’s finding that the Employer discharged the 13 employees under such a policy, the Court commented that, “[i]f anything, the [Employer]’s policy promotes collective bargaining by ensuring that all of its welding work is done pursuant to a pre-hire agreement.” Finding no merit to the Union’s arguments, the Court denied the petition for review.
The Court’s opinion is here.
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Administrative Law Judge Decisions
American Postal Workers Union, Local 512 (05-CB-241037; JD-18-23) Emmitsburg, MD. Administrative Law Judge Arthur J. Amchan issued his decision on March 6, 2023. Charge filed by an individual.
Starbucks Corporation (03-CA-285671, et al.; JD-17-23) Buffalo, NY, March 7, 2023. Errata to Administrative Law Judge decision issued on March 1, 2023. Errata Amended Decision.
The Morning Call, LLC (04-CA-292410; JD-19-23) Allentown, PA. Administrative Law Judge Robert A. Giannasi issued his decision on March 9, 2023. Charge filed by The Newsguild – CWA.
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