Summary of NLRB Decisions for Week of November 12 - 15, 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
Amazon.com Services LLC (29-CA-280153, et al.; 373 NLRB No. 136) Staten Island, NY, November 13, 2024.
A full Board majority consisting of Chairman McFerran and Members Prouty and Wilcox overruled Babcock & Wilcox, 77 NLRB 577 (1948) and held that captive-audience meetings are unlawful. The Board explained that such meetings violate Section 8(a)(1) because they have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 right to freely decide whether or not to unionize, including the right to decide whether, when, and how they will listen to and consider their employer’s views concerning that choice. Specifically, the Board explained that this unlawful interference and coercion manifests itself in three independent ways. First, captive-audience meetings impinge on employees’ right to choose the degree to which they will participate in the debate concerning union representation. Second, captive-audience meetings serve as a mechanism for employers to observe and surveil employees as they address the exercise of employees’ Section 7 rights. And third, because the employer has compelled employees, either implicitly or explicitly, to attend captive-audience meetings on pain of discipline or discharge, the employer’s message in the meeting is reasonably likely to take on a similarly coercive character.
The Board further explained that neither Section 8(c) nor the First Amendment precludes it from deeming captive-audience meetings unlawful. Concerning Section 8(c), the Board explained that both the plain meaning of that provision’s statutory text and its legislative history support the conclusion that it permits employers and unions to non-coercively express their views concerning unionization to employees but does not permit employers to compel employees to listen to those views. Concerning the First Amendment, the Board explained that the Supreme Court has long recognized that in the unique “labor relations setting” an employer’s speech rights “cannot outweigh” the equal rights of employees to associate freely, and a prohibition on captive-audience meetings strikes the proper balance by not interfering with employers’ right to express their views on unionization while protecting employees’ right to decide, for themselves, whether, when, and how to engage with those views.
The Board further explained that because a voluntary workplace meeting concerning employees’ decision whether or not to unionize does not interfere with and coerce employees as to the exercise of their Section 7 rights, employers may still lawfully hold such genuinely voluntary meetings. To that end, the Board articulated basic and straightforward “safe harbor” assurances employers may provide to employees reasonably in advance of a meeting to ensure that the meeting does not violate Section 8(a)(1).
Because employers have reasonably come to rely on the fact that they could lawfully hold captive-audience meetings, however anomalous that may have been under the Act’s standards otherwise governing their conduct, the Board decided to apply its prohibition on captive-audience meetings only prospectively.
Dissenting, Member Kaplan contended that captive-audience meetings do not interfere with employees’ Section 7 rights. In his view, captive-audience meetings are not materially different from other mandatory workplace meetings, and, in his view, it is lawful for employers to require employees to listen to an employer’s views concerning the employees’ decision whether or not to unionize even if they do not want to listen to those views. He also contended that the text and legislative history of Section 8(c) support the conclusion that that provision protects captive-audience meetings. He also contended that the Board’s prohibition on captive-audience meetings is precluded on First Amendment constitutional avoidance grounds. In his view, the Board’s prohibition singles out meetings about unionization while permitting mandatory meetings on other subjects, which is a content-based regulation of speech that fails First Amendment strict scrutiny.
The Board also ruled on three subsidiary issues. First, it found that the Respondent had engaged in discriminatory enforcement of its Solicitation Policy in removing a post on its Voice of Associates or “VOA” board by an employee requesting that employees come to the Union tent to sign a petition in support of a paid Juneteenth holiday while leaving up an employee post asking employees to come to a break room and pick up a “VOTE NO” t-shirt. It further found that the Respondent had unlawfully threatened the employee in telling her that there would be “additional followup” if she reposted her message. Finally, it found that the Respondent had unlawfully solicited and impliedly promised to remedy grievances at the captive-audience meetings in continually telling employees to “escalate” their concerns up the chain of command until (presumably) they got the response they wanted. Member Kaplan dissented on all three of these issues.
Charges filed by an individual and Amazon Labor Union. Administrative Law Judge Benjamin W. Green issued his decision on January 30, 2023. Chairman McFerran and Members Kaplan, Prouty, and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Edgewood Properties, Inc. (22-RC-345133) South Plainfield, NJ, November 12, 2024. The Board denied the Employer’s Request for Review of the Regional Director’s Decision Overruling Objections and Certification of Representative as it raised no substantial issues warranting review. Petitioner—Edgewood Properties, Inc. Union—League of International Federated Employees, Local 719. Members Kaplan, Prouty, and Wilcox participated.
Cogent Waste Solutions LLC (29-RC-339367) Brooklyn, NY, November 14, 2024. The Board denied the Intervenor’s Request for Review of the Regional Director’s letter rejecting its objections as it raised no substantial issues warranting review. The Regional Director rejected the Intervenor’s objections as untimely. Petitioner—International Brotherhood of Teamsters, Local 813. Members Kaplan, Prouty, and Wilcox participated.
C Cases
International Brotherhood of Teamsters Local 959, a/w International Brotherhood of Teamsters (United Freight & Transport, Inc,) (19-CB-311844) Anchorage, AK, November 15, 2024. No exceptions having been filed to the October 3, 2024 decision of Administrative Law Judge Geoffrey Carter’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the judge’s recommended Order. Charge filed by an individual.
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Appellate Court Decisions
Blue School, Board Case No. 02-CA-294227 (reported at 372 NLRB No. 18) (2d Cir. decided November 12, 2024).
In an unpublished summary order in this test-of-certification case, the Court enforced the Board’s order that issued against this private educational institution in New York City requiring it to bargain with Local 2110, Technical, Office & Professional Union, UAW, AFL-CIO, after the Union prevailed in an election held in Summer 2021. In doing so, the Court rejected a challenge to the Board’s severance of a remedial issue, found no error in the Board’s pre-election determinations, and held that the Board did not abuse its discretion in overruling the School’s election objection without holding a hearing.
In the underlying representation case, after the Union filed a petition seeking to represent the School’s employees, the Regional Director determined that the Union’s showing of interest was sufficient and scheduled a pre-election hearing on contentions raised by the School. Thereafter, the Regional Director issued a decision finding that a mail-ballot election was appropriate due to the scattered nature of the employees’ summer schedules, and rejected the School’s challenge to the sufficiency of the showing of interest and its contention that the election should be delayed. During the election period, eight employees posted pictures or videos on Instagram of themselves holding their sealed ballot-return envelopes that included expressions of union support.
After the election, the School filed an objection claiming that the posts destroyed ballot secrecy and constituted improper electioneering. The Regional Director overruled the objection without a hearing, ordered the ballots opened and counted, and on a tally of 24 to 4, certified the Union. The School filed a Request for Review, which was denied by the Board (Chairman McFerran and Members Kaplan and Ring). After the School refused to bargain, the Board granted the General Counsel’s Motion for Summary Judgment, found its refusal violated Section 8(a)(5) and (1), but severed and retained for further consideration the General Counsel’s request that the Board order an additional remedy for the Employer’s refusal to bargain that would compensate employees for the value of that lost opportunity. Subsequently, the Board denied the School’s Motion for Reconsideration, and an enforcement proceeding was initiated.
As a preliminary matter, the Court rejected the School’s contention that it lacked jurisdiction because the Board’s severance of the remedial issue rendered the Board’s decision non-final, stating: “Like the other Circuits to consider this issue, we conclude that the Board’s severance of a discrete remedial issue does not impact our jurisdiction over the Board’s application for enforcement,” citing Longmont United Hospital v. NLRB, 70 F.4th 573 (D.C. Cir. 2023), NLRB v. Siren Retail Corp., 99 F.4th 1118 (9th Cir. 2024), and NLRB. v. United Scrap Metal PA, LLC, 116 F.4th 194 (3d Cir. 2024).
On the pre-election issues, the Court held that the adequacy of the Union’s showing of interest was not an issue for litigation, and found no error in the Regional Director’s determination to hold a mail-ballot election without the delay. On the election objection, the Court recognized that a claim that nonparties had engaged in objectionable conduct would lead to setting aside an election only if the conduct substantially impaired the employees’ exercise of free choice, and held that the School made no such showing. The Court also agreed with the Board that the School was not entitled to a hearing because its offer of proof was insufficient. Citing the long-settled standard for review of Board election matters, that “‘Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.’ NLRB v. A. J. Tower Co., 329 U.S. 324 (1946),” the Court enforced the Board’s order.
The Court’s opinion is here.
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Administrative Law Judge Decisions
No Administrative Law Judge Decisions Issued.
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