Summary of NLRB Decisions for Week of November 13 - 17, 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
Cemex Construction Materials Pacific, LLC (28-CA-230115, et al.; 372 NLRB No. 157) Southern CA and Las Vegas, NV, November 13, 2023.
A full-Board majority (Chairman McFerran and Members Prouty and Wilcox; Member Kaplan, dissenting) denied the Respondent’s Motion for Reconsideration of the Board’s Decision and Order reported at 372 NLRB No. 130 (2023). The majority noted that, for the most part, the Respondent’s motion reiterated arguments previously presented in briefing or by Member Kaplan’s partial dissent from the underlying decision. The majority rejected the Respondent’s contentions that the Board materially erred in the underlying decision by: (1) adopting a new standard that was not clearly authorized by the Act, and was, accordingly, precluded by the Supreme Court’s major-questions doctrine; (2) adopting the new standard in an adjudicative proceeding rather than by notice-and-comment rulemaking under the Administrative Procedure Act; and (3) retroactively applying the new standard in the underlying case.
Member Kaplan, dissenting, would have granted the Motion for Reconsideration because, in his view, the new standard conflicts with Supreme Court precedent and could not sustain the Board’s issuance of an affirmative bargaining order under the circumstances of this case.
Charges filed by the International Brotherhood of Teamsters. Chairman McFerran and Members Kaplan, Prouty, and Wilcox participated.
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Starbucks Corporation (03-RD-316974; 372 NLRB No. 156) Buffalo, NY, November 15, 2023.
The Board denied the Petitioner’s and Employer’s Requests for Review of the Regional Director’s Decision and Order Dismissing Petition as they raised no substantial issues warranting review. The Board found that the Regional Director correctly engaged in a merit-determination dismissal pursuant to the Board’s decision in Rieth-Riley Construction Co., Inc., 371 NLRB No. 109 (2022). Member Kaplan, dissenting, would have reversed the Regional Director and ordered an election.
Petitioner—an individual. Union—Workers United. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
3, LLC (22-RC-297330) Kearny, NJ, November 13, 2023. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election and of the Regional Director’s Decision and Order Directing the Opening and Counting of Determinative Challenged Ballots as it raised no substantial issues warranting review. The Board agreed with the Acting Regional Director that the Steiny-Daniel eligibility formula was appropriately applied under the circumstances but found it unnecessary to pass on whether the Petitioned-for employees performed construction work. The Board agreed with the Regional Director’s decision overruling the Employer’s ballot challenges for the reasons stated her decision. Petitioner —New Jersey Building Laborers District Council. Chairman McFerran and Members Prouty and Wilcox participated.
United Food and Commercial Workers Local 7 (27-RD-311324) Wheat Ridge, CO, November 17, 2023. The Board issued an Order denying the Employer’s Request for Review of the Acting Regional Director’s Supplemental Decision and Order Dismissing the Petition. The Petitioner had filed a decertification petition in a bargaining unit employed by the Employer, United Food and Commercial Workers Union Local 7. The Acting Regional Director dismissed the petition because of his administrative determination of merit in unfair labor practice charges alleging that the Employer violated Sections 8(a)(1), (3), and (5) amid bargaining for a successor collective-bargaining agreement, and additionally alleging unlawful discharge of a union supporter. The petition is subject to reinstatement, if appropriate, after final disposition of the unfair labor practice proceedings. Petitioner—an individual. Union—Federation of Agents & International Representatives. Chairman McFerran and Members Prouty and Wilcox participated in the decision.
C Cases
Magnitude 7 Metals, LLC (15-CA-290389) Marston, MO, November 13, 2023. No exceptions having been filed to the September 28, 2023 decision of Administrative Law Judge Christine E. Dibble’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 United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9014-04.
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Appellate Court Decisions
New York Paving, Inc., Board Case No. 29-CA-254799 (reported at 371 NLRB No. 139) (D.C. Cir. Nov. 14, 2023).
In an unpublished judgment, the D.C. Circuit enforced the Board’s order that issued against this asphalt and concrete paving company in New York City, where its asphalt-paving employees are represented by Construction Council Local 175, Utility Workers Union of America, AFL-CIO. The Board (Members Wilcox and Prouty; Member Ring, dissenting in part) found that the Employer violated Section 8(a)(3) and (1) by laying off 35 unit employees because the Union had pursued a grievance on their behalf. The Board also found that the Employer violated Section 8(a)(5) and (1) by suspending its asphalt-paving operations and laying off employees without affording the Union notice and an opportunity to bargain over the effects of its decision.
In 2018, the Union filed a grievance on behalf of the asphalt-unit employees alleging that the Employer was violating the crew-size requirements mandated by the parties’ collective-bargaining agreement, and had been doing so for 15-20 years. The grievance went to arbitration, which resulted in a liability award. In December 2019, without providing notice to the Union, the Employer distributed a written notice to all asphalt-unit employees announcing that it “decided to shutdown asphalt operations and lay off nearly all asphalt paving workers until March 2020 and possibly longer.” The notice expressly identified the Union’s successful prosecution of the crew-size grievance as the primary reason for the shutdown and layoffs, but also mentioned the retirement of a manager who coordinated that work. By late January 2020, the Employer had laid off 35 of 50 asphalt-unit employees. After the Union filed an unfair-labor-practice charge, the Employer sent a letter offering to engage in effects bargaining, and asserting two reasons for the mass layoff: a seasonal winter slowdown and the manager’s retirement, without mention of the liability award.
On review, the Court held that the Board’s findings were supported by substantial evidence. Regarding the lay-offs, the Court agreed with the Board that, under Wright Line, the General Counsel had met the burden of showing that the lay-offs were in retaliation for protected union activity, noting that in three portions of its letter to employees it specifically blamed the Union for the lay-offs. The Court also held that the Board’s finding of animus was properly bolstered by the Employer’s demonstrated animus against the Union in two prior Board cases, as well as by its shifting justifications for the layoffs. The Court rejected the Employer’s defensive contentions, finding them unpersuasive, contrary to the record evidence, or barred from review because they had not been raised before the Board. On similar bases, the Court also rejected the Employer’s challenges to the Board’s effect-bargaining finding.
The Court’s judgment may be found here.
Tesla, Inc., Board Case No. 32-CA-197020 (reported at 370 NLRB No. 131) (5th Cir. Nov. 14, 2023).
In a published opinion, the Fifth Circuit granted the petition for review of the Board’s supplemental order that issued against this manufacturer of electric vehicles at a plant in Fremont, California. At the plant, Tesla maintains a “team wear” policy that requires certain production employees to wear all-black clothing with a Tesla logo. The Board (Chairman McFerran and Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) found that Tesla violated Section 8(a)(1) by maintaining and enforcing its team-wear policy because it implicitly prohibited general-assembly employees from wearing black union t-shirts in place of the required black team-wear t-shirts, without establishing special circumstances that justified the restriction. The Board rejected Tesla’s argument that the policy did not restrict employees’ right to wear union insignia because they could affix union stickers to their team wear.
On review, the Court disagreed, finding that the cases the Board relied on “invariably lack one or more of the elements present here: content neutrality, nondiscrimination, and freedom to attach any expressive union insignia to any piece of the uniform.” The Court stated that “despite the special-circumstances test’s applicability in cases containing piecemeal components of the Team Wear policy, the test does not automatically apply when all components are present.” Further, the Court stated that to the extent that Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), applies, the Board failed to properly balance the employees’ interests in self-organization against the competing interests of employers to maintain discipline in their establishments. More specifically, the Court found that the Board improperly “elevated employee interests at the expense of legitimate employer interests” by failing to determine the extent to which a particular restriction “truly diminished” the ability to communicate a union message, and disregarding the various inherent benefits to employers of uniform policies. Thus, the Court concluded that the Board had exceeded its statutory authority in crafting the rule and vacated without remanding.
The Court’s opinion may be found here.
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Administrative Law Judge Decisions
Sephora USA, Inc. (19-CA-302507; JD(SF)-35-23) Seattle, WA. Administrative Law Judge Sharon Levinson Steckler issued her decision on November 13, 2023. Charge filed by an individual.
ILead Worldwide, Inc., d/b/a Legacy Oneway Consulting (16-CA-293382; JD-75-23) Houston, TX. Administrative Law Judge Kimberly Sorg-Graves issued her decision on November 16, 2023. Charge filed by an individual.
S.R. Key Plumbing and Mechanical LLC (10-CA-291436; JD-76-23) Hiram, GA. Administrative Law Judge Arthur J. Amchan issued his decision on November 17, 2023. Charge filed by Georgia Carolina Pipe Trades Associated a/w United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO.
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