Summary of NLRB Decisions for Week of May 1 - 5, 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
Lion Elastomers LLC (16-CA-190681, et al.; 372 NLRB No. 83) Port Neches, TX, May 1, 2023.
On remand from the Fifth Circuit, a Board majority (Chairman McFerran and Members Wilcox and Prouty; Member Kaplan, dissenting) overruled the prior Board’s decision in General Motors LLC, 369 NLRB No. 127 (2020), and returned to the long-established “setting specific” standards applicable to cases where employees are disciplined or discharged for misconduct that occurs during activity otherwise protected by the Act. Those setting-specific standards are: (1) the Atlantic Steel test, which governs employees’ conduct towards management in the workplace; (2) the totality-of-the-circumstances test, which governs social media posts and most cases involving conversations among employees in the workplace; and (3) the Clear Pine Mouldings standard, which governs picket-line conduct. Consistent with its overruling of General Motors, the Board reaffirmed its original Decision and Order in Lion Elastomers LLC, 369 NLRB No. 88 (2020), which applied the Atlantic Steel test to find that the Respondent had violated the Act.
Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 228. Administrative Law Judge Michael A. Rosas issued his decision on April 25, 2019. Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated.
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Constellis, LLC d/b/a Academi Training Center, LLC (05-CA-278218; 372 NLRB No. 81) Upper Marlboro, MD, May 3, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an employee for engaging in protected conduct relating to the Respondent’s COVID-19 policies and gun range repairs.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on July 19, 2022. Members Kaplan, Wilcox, and Prouty participated in the decision.
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Goddard College Corporation (03-CA-283012; 372 NLRB No. 85) Plainfield, VT, May 3, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by implementing a return-to-campus policy without first bargaining with the Union to agreement or an overall good-faith impasse and by unilaterally changing an employee’s full-time remote work status to in-person, thereby effectively terminating his employment.
Charge filed by United Auto Workers Local 2322. Administrative Law Judge Michael A. Rosas issued his decision on August 24, 2022. Chairman McFerran and Members Wilcox and Prouty participated.
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United Brotherhood of Carpenters and Joiners of America (Performance Contracting, Inc.) (10-CD-299205; 372 NLRB No. 84) Huntsville, AL, May 4, 2023.
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 United Brotherhood of Carpenters and Joiners of America, based on the factors of collective-bargaining agreements; employer preference, current assignment, and past practice; industry and area practice; and relative skills.
Charge filed by Performance Contracting, Inc. Chairman McFerran and Members Kaplan and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Southeast Alaska Conservation Council, Inc. (19-RC-309122) J uneau, AK, May 1, 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—Communications Workers of America, AFL-CIO. Chairman McFerran and Members Kaplan and Wilcox participated.
AEG Management Nassau, LLC (29-RC-314048) Hempstead, NY, May 3, 2023. The Board denied the Party in Interest’s Request for Review of the Regional Director’s denial of its Motion to Intervene. In denying review, the Board observed that the Party in Interest had not asked the Board to reconsider or overrule University of Chicago, 272 NLRB 873 (1984), but had instead limited its Request for Review to arguments regarding how that case should be interpreted, which the Board did not find persuasive. Chairman McFerran and Member Wilcox stated that they would be open to reconsidering University of Chicago in a future appropriate case. The Board also denied the Party in Interest’s request for a stay as moot. Petitioner—United Federation LEOS-PBA Law Enforcement Officers Security & Police Benevolent Association. Party in Interest—Local 32BJ, Service Employees International Union. Chairman McFerran and Members Kaplan and Wilcox participated.
Peco Foods, Inc. (15-RC-304092) West Point, MS, May 3, 2023. The Board denied the Employer’s Request for Review as it raised no substantial issues warranting review and denied the Employer’s Request for Extraordinary Relief in the representation case as moot. The Board did not rule on the Employer’s request for a stay of unfair-labor practice proceedings because that matter was not before the Board. Petitioner—United Food & Commercial Workers Union, Local 1529, AFL-CIO, CLC, Cordova, Tennessee. Chairman McFerran and Members Kaplan and Wilcox participated.
Detroit Education & Research (07-RC-314790) Detroit, MI, May 4, 2023. The Board granted the Employer’s Request for Review of the Regional Director’s decision to approve the withdrawal of its petition and also stayed the election hearing on the re-filed petition. The Board remanded the case to the Regional Director to provide a fuller explanation for why approval of the withdrawal request was warranted in the circumstances of this case. Petitioner—Alliance of Resident Physicians, AFT Michigan, AFT AFL-CIO. Chairman McFerran and Members Kaplan and Wilcox participated.
C Cases
Paycom Payroll, LLC, d/b/a Paycom (14-CA309573) Oklahoma City, OK, May 2, 2023. 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. The Board also denied the Employer’s request for a protective order for lack of a showing of good cause. Charge filed by an individual. Chairman McFerran and Members Kaplan and Wilcox participated.
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Appellate Court Decisions
Anheuser-Busch, LLC, Board Case No. 12-CA-094114 (reported at 367 NLRB No. 132) (11th Cir, decided May 3, 2023 under the name Teamsters Local 947 v. NLRB).
In a published opinion, the Court granted the petition for review filed by the International Brotherhood of Teamsters Local 947, which challenged the Board’s dismissal of an unfair-labor-practice complaint. The complaint alleged that, after an employee was discharged and filed Title VII claims of race discrimination and retaliation in district court, the Employer unlawfully moved to compel arbitration and dismiss the lawsuit. Specifically, the complaint alleged that the Employer violated Section 8(a)(5) and (1) by changing a mandatory subject of bargaining when it insisted that the employee must arbitrate his Title VII claims and failed to provide the Union with notice or an opportunity to bargain over applying its Dispute Resolution Program to the employee or any bargaining-unit employee.
After a hearing, the Administrative Law Judge found, in relevant part, that the motion to compel arbitration was unlawful as alleged, and issued a recommended order that the Employer be instructed to withdraw that portion of its defense in the district-court lawsuit in which it argued that the employee’s Title VII claims must be resolved in arbitration. In exceptions filed with the Board, the Employer argued that the recommended order was unconstitutional, citing to the Supreme Court’s discussion of the First Amendment right to petition in Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983) (stating the general rule that, absent certain exceptions, the Board may not enjoin a lawsuit unless it is both baseless and brought with a retaliatory motive). The General Counsel filed an answering brief that argued that the motion was not protected by the First Amendment because, under an exception stated in Bill Johnson’s, the motion had “an objective that is illegal under federal law.”
On review, the Board (Chairman Ring and Member Emanuel; then-Member McFerran, dissenting) reversed and held that the Employer’s motion to compel arbitration was protected by the First Amendment right to petition. The Board found that the Bill Johnson’s illegal-objective exception was inapplicable because there was no allegation that the Employer’s Dispute Resolution Program was facially unlawful, or that the motion to compel arbitration was otherwise preceded by some separate, unlawful “underlying act.” The dissent stated the view that because the motion to compel sought the district court’s aid to implement a unilateral change that it otherwise could not lawfully implement, the motion had an illegal objective that would result in a violation of federal law.
After an extensive review of Supreme Court and Board cases on the First Amendment’s right to petition, the Court concluded that the Board applied “an erroneously narrow standard” for determining whether the motion to compel arbitration had an illegal objective under federal law that was “at odds” with that precedent. Rather, the Court explained, to determine whether the illegal-objective exception has been satisfied, the inquiry is whether the result sought, if granted, would violate the NLRA. The Court then noted that the Board here made no such inquiry, and instead applied “a novel approach” which required an additional underlying act. That approach, the Court stated, added “a gloss that greatly narrowed—if not eviscerated—what had been understood to be Bill Johnson’s illegal-objective principle,” the logical import of which would be “to conclude that all types of litigation must be allowed to go forward, even if the relief sought would violate the NLRA.” Accordingly, the Court vacated the Board’s decision, and remanded for consideration of whether enforcement of the Dispute Resolution Program against the employee would violate the NLRA.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Starbucks Corporation (13-CA-296145, et al.; JD-28-23) Chicago, IL. Administrative Law Judge Geoffrey Carter issued his decision on May 2, 2023. Charges filed by Workers United a/w the Service Employees International Union (SEIU).
Dill Pickle Food Co-Op (13-CA-288925, et al.; JD-25-23) Chicago, IL, May 3, 2023. Errata to decision issued April 6, 2023. Errata Amended Decision.
Fred Meyers Stores, Inc., a subsidiary of The Kroger Company (19-CA-272795 and 19-CA-272796; JD(SF)-12-23) Seattle, Burien, and Bellingham, WA. Administrative Law Judge Mara-Louise Anzalone issued her decision on May 3, 2023. Charges filed by United Food and Commercial Workers Local No. 21, a/w United Food and Commercial Workers International Union.
Perrigo New York, Inc. (02-CB-298980; JD(NY)-09-23) New York, NY. Administrative Law Judge Kenneth W. Chu issued his decision on May 3, 2023. Charge filed by Local 210, International Brotherhood of Teamsters.
Starbucks Corporation (15-CA-290336, et al.; JD-30-23) Memphis, TN. Administrative Law Judge Paul Bogas issued his decision on May 4, 2023. Charges filed by Workers United.
Blue School (02-CA-292782; JD(NY)-08-23) New York, NY. Administrative Law Judge Jeffrey P. Gardner issued his decision on May 4, 2023. Charge filed by Local 2110, Technical, Office & Professional Union, UAW.
Borenstein Caterers, Inc. (29-CA-299367; JD(NY)-07-23) Jamaica, NY, May 4, 2023. Errata to decision issued on April 25, 2023. Errata Amended Decision.
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