Summary of NLRB Decisions for Week of November 25 - 29, 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
United States Postal Service (06-CA-277831; 373 NLRB No. 138) Pittsburgh, PA, November 27, 2024.
The Board (Members Prouty and Wilcox; Member Kaplan, dissenting), affirmed the Administrative Law Judge’s remedy ordering the Respondent to compensate an employee for any direct or foreseeable pecuniary harms incurred as a result of his unlawful constructive discharge. Member Kaplan, dissenting, would not order this “extraordinary make-whole remedy.”
Charge filed by Branch 84, National Association of Letter Carriers, AFL-CIO. Administrative Law Judge G. Rebekah Ramirez issued her decision on May 8, 2024. Members Kaplan, Prouty, and Wilcox participated.
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Siren Retail Corporation, d/b/a Starbucks Reserve Roastery (02-CA-305984; 373 NLRB No. 140) New York, NY, November 27, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by maintaining a policy that prohibits employees from wearing pins or buttons that advocate for a political, religious, or personal issue, and by maintaining and enforcing a policy that prohibits employees from wearing shirts or tops that have logos, writings, or designs. The Board also adopted the judge’s conclusions that the Respondent violated Section 8(a)(1) by instructing several employees to remove their union T-shirts and by threatening one employee with discipline if she did not remove her union T-shirt.
However, the Board reversed the judge’s dismissal of the allegation that the Respondent’s policy prohibiting employees from wearing more than one union button or pin violated Section 8(a)(1). The judge found that the General Counsel was “collaterally estopped” from challenging the single-pin policy by a 2012 Second Circuit decision permitting such a ban at several Starbucks neighborhood stores. The Board found that collateral estoppel (issue preclusion) does not apply and that the single-pin policy violated the Act.
Charge filed by Workers United, a/w Service Employees International Union. Administrative Law Judge Michael P. Silverstein issued his decision on December 6, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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Amazon.com Services, LLC (13-CA-275270, et al.; 373 NLRB No. 96) Chicago, IL, Joliet, IL and Staten Island, NY, November 29, 2024. Errata to September 10, 2024 Decision. Errata Amended Decision.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
DVA Renal Healthcare, Inc., d/b/a DaVita Vallejo (20-RC-346835) Vallejo, CA, November 27, 2024. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Order to Open and Count Determinative Challenged Ballots as it raised no substantial issues warranting review. Petitioner—SEIU, United Healthcare Workers – West. Members Kaplan, Prouty, and Wilcox participated.
Total Renal Care, Inc., d/b/a DaVita Valencia Dialysis Center (31-RC-337248) Santa Clarita, CA, November 27, 2024. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order to Open and Count Challenged Ballot Without Hearing as it raised no substantial issues warranting review. Petitioner—Service Employees International Union, United Healthcare Workers – West. Members Kaplan, Prouty, and Wilcox participated.
C Cases
Trinity Health Corporation (THC) and Trinity Health-Michigan, d/b/a Trinity Health Ann Arbor Hospital (THAA), a subsidiary of Trinity Health Corporation (THC) (07-CA-294351) Ypsilanti, MI, November 26, 2024. The Board granted the Respondents’ Request for Special Permission to Appeal the Administrative Law Judge’s order denying its petition to revoke a portion of the General Counsel’s subpoena duces tecum. The Respondents sought review of the judge’s ruling that documents supporting the Charging Party’s discharge be produced. On the merits, the Board denied the appeal, finding that the Respondents had failed to establish that the judge abused his discretion in concluding that the documents are not protected from disclosure. Charge filed by an individual. Members Kaplan, Prouty, and Wilcox participated.
Amazon.com Services, LLC (13-CA-275270, et al.) Chicago, IL, Joliet, IL and Staten Island, NY, November 29, 2024. The Board granted the General Counsel’s “Motion to Clarify Default Judgment” of the Board’s Decision and Order reported at 373 NLRB No. 96 (2024) with respect to the General Counsel’s unopposed request to correct certain dates in the Board’s decision. The Board denied the General Counsel’s Motion for Clarification in all other respects, as the General Counsel did not demonstrate that further clarification was warranted. Charges filed by individuals. Chairman McFerran and Members Prouty and Wilcox participated.
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Appellate Court Decisions
Capstone Logistics LLC and Associated Wholesale Grocers, as Joint Employers, Board Case No. 15-CA-257443 (reported at 372 NLRB No. 124) (5th Cir. decided November 25, 2024).
In a published opinion, the Court enforced the Board’s order that issued against this company that provides labor to other companies, including Associated Wholesale Grocers (AWG), a national grocery distributor with a food-distribution warehouse in Pearl River, Louisiana. In doing so, the Court upheld the Board’s finding that Capstone violated Section 8(a)(1) by discharging an employee, but did so on only one of two rationales the Board provided in finding the unfair labor practice.
In 2019, Capstone began providing auditors at the facility who use scan guns to ensure the accuracy of large customer orders destined for grocery chains. One auditor began raising safety and wage concerns to AWG officials, who then expressed annoyance to Capstone managers, one of whom then instructed the employee to raise such concerns only to Capstone managers. Thereafter, the employee sent a LinkedIn message to an AWG customer raising concerns about the auditors’ wages and implicitly asking him to intervene on their behalf. The next day, a Capstone manager learned of the message, and it was decided that the employee should be fired. The manager then telephoned the employee and told her that she was being discharged because of what had transpired the day before and for disrupting Capstone’s relationship with AWG.
The Board (Chairman McFerran and Members Wilcox and Prouty) found that Capstone unlawfully discharged the employee for engaging in protected concerted activity by appealing to a third party for assistance in improving the auditors’ wages, or in the alternative, she was discharged because Capstone believed that she had done so during the conversation in which she was told to discuss wage issues only with Capstone managers. The Board also found that Capstone violated the Act by informing her that she was discharged for engaging in protected concerted activity.
On review, the Court held that there was insufficient evidence to support the Board’s conclusion that the employee was discharged for her LinkedIn message. In its view, even assuming the message was protected, the Court found there was a lack of evidence that the Capstone manager who discharged her knew of the message at that time. Turning to the Board’s alternative rationale, the Court agreed with the Board’s finding that Capstone was motivated by its belief that the employee had raised protected group wage and safety complaints during the earlier interaction with one of its managers who instructed her to raise wage concerns only to Capstone managers. Lastly, noting that Capstone’s challenge to the remaining finding depended on a holding that the discharge was lawful, the Court enforced the Board’s order in full.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Virginia Mason Franciscan Health, d/b/a St. Elizabeth Hospital (19-CA-267892, et al.; JD-33-24) Enumclaw, Burien, and Tacoma, WA. Administrative Law Judge Mara-Louise Anzalone issued her decision on November 26, 2024. Charges filed by SEIU Healthcare 1199NW.
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