Summary of NLRB Decisions for Week of November 4 - 8, 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
Hiran Management, Inc. d/b/a Hungry Like the Wolf (16-CA-303914; 373 NLRB No. 130) Houston, TX, November 4, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by threatening employees with discharge and other unspecified reprisals, and by discharging employees, because they engaged in a protected walkout and strike.
Charge filed by an individual. Administrative Law Judge Sharon Levinson Steckler issued her decision on February 13, 2024. Chairman McFerran and Members Prouty and Wilcox participated.
***
Vermont Information Processing, Inc. (03-CA-301055; 373 NLRB No. 131) Colchester, VT, November 5, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging four employees because of their protected concerted activities, which include creating and disseminating a salary spreadsheet and engaging in online communications about workplace conditions. The Board rejected the Respondent’s argument that the judge failed to adequately address a purported violation of the sequestration order at the hearing.
Charge filed by individuals. Administrative Law Judge Arthur J. Amchan issued his decision on July 31, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
***
Omnisource, LLC (08-RD-348156; 373 NLRB No. 134) Toledo, OH, November 7, 2024.
The Board (Members Kaplan and Wilcox; Member Prouty, dissenting) denied the Union's Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. The Board also denied the Union’s request to stay the election as moot. Dissenting, Member Prouty would have granted review for the Board to reconsider the standards that Regional Directors should apply in exercising their discretion to designate the location of an election. Petitioner—an individual. Union—International Brotherhood of Teamsters Local 20. Members Kaplan, Prouty, and Wilcox participated.
***
Siren Retail Corp. d/b/a Starbucks (19-CA-290905; 373 NLRB No. 135) Seattle, WA, November 8. 2024.
A full Board unanimously affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by threatening employees that unionization would cause them to lose certain benefits and would cause the Respondent to prioritize giving new benefits to employees at its nonunionized stores over giving benefits to employees at its unionized stores. A full Board also unanimously affirmed the judge’s dismissal of the allegation that the Respondent unlawfully held captive-audience meetings. A full Board majority consisting of Chairman McFerran and Members Prouty and Wilcox affirmed the judge’s conclusion that the Respondent violated Section 8(a)(1) by making additional threatening statements that unionization would cause employees to lose certain benefits. The Board majority also affirmed the judge’s conclusion that the Respondent threatened the futility of unionization, in violation of Section 8(a)(1), by implying that collective bargaining could not redress the employees’ inability to receive tips from customers’ credit card payments. The Board majority also found it unnecessary to pass on whether the Respondent threatened the futility of unionization by its statements concerning the duration of collective bargaining. The Board majority also reversed the judge to find that the Respondent violated Section 8(a)(1) by threatening employees about their strike- and union membership-related obligations if they chose to unionize.
Finally, the Board majority overruled Tri-Cast, Inc., 274 NLRB 377 (1985) and its progeny, in which the Board had deemed categorically lawful nearly any employer statement to employees touching on the impact that unionization would have on the relationship between individual employees and their employer. The Board reasoned the purposes of the Act are better served if the content and context of such statements are analyzed on a case-by-case basis, under the principles of the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) that the Board generally uses when analyzing whether allegedly threatening or coercive statements violate Section 8(a)(1). The Board explained that Tri-Cast and its progeny had categorically immunized employer campaign statements that, based on their content and context, could reasonably be understood to threaten employees with the loss of an established workplace benefit. The Board further explained that Section 9(a) expressly provides that, following unionization in certain specified circumstances, individual employees have the right to raise individualized issues with their employer and the employer is permitted to resolve such issues without engaging in unlawful direct dealing. Accordingly, the Board explained, when an employer, during a campaign, makes a statement that a reasonable employee would understand to mean that the employer would be obligated to discontinue such individualized treatment following unionization, the employer may be found to have unlawfully threatened to discontinue an employee benefit as a consequence of unionization.
Because employers have reasonably come to rely on the fact that they could lawfully make such statements concerning the employer-employee relationship, however anomalous that may have been under the Act’s standards otherwise governing their conduct, the Board decided to apply its overruling of Tri-Cast only prospectively. Because of the prospective nature of this overruling, the full Board unanimously affirmed the judge’s finding that the Respondent’s campaign statements to employees concerning the impact unionization would have on the relationship between employer and employee were lawful.
Dissenting, Member Kaplan contended that only certain of the Respondent’s statements unlawfully threatened that unionization would cause employees to lose certain benefits. Member Kaplan also contended that the Respondent did not threaten the futility of unionization by implying that collective bargaining could not redress the employees’ inability to receive tips from customers’ credit card payments or by its statements concerning the duration of collective bargaining. Member Kaplan also contended that the Respondent did not threaten employees about their strike- and union membership-related obligations if they chose to unionize. Member Kaplan also contended that the Board’s overruling of Tri-Cast is dicta. Specifically, in his view, the overruling is dicta because: Tri-Cast could only be overruled in a representation case, not an unfair labor practice case; the Board has not actually or hypothetically applied the new standard to the facts of this case; the Board plans to apply its new standard to other unidentified statements not currently before the Board; it was not necessary to address Tri-Cast to decide the relevant issue; and Section 9(a) does not permit employers to address individualized grievances following employees’ unionization.
Charge filed by Workers United a/w Service Employees International Union. Administrative Law Judge John T. Giannopoulos issued his decision on January 31, 2023. Chairman McFerran and Members Kaplan, Prouty, and Wilcox participated.
***
Davis Defense Group, Inc. (10-CA-284049; 373 NLRB No. 132) North Charleston, SC, November 8, 2024.
A Board majority (Chairman McFerran and Member Kaplan) affirmed the Administrative Law Judge's dismissal of the allegation that the Respondent violated Section 8(a)(1) by disciplining and discharging the Charging Party. In affirming the judge’s conclusion that the General Counsel failed to sustain her initial burden under Wright Line, this Board majority agreed with the judge that the General Counsel failed to establish, as a threshold matter, that the Charging Party engaged in protected concerted activity. This Board majority also affirmed the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(1) when its manager emailed employees a memo on COVID-19 Executive Orders directing further questions to the manager and not the entire email distribution. The majority found that the email was not sent in response to employees’ protected concerted activity or to preempt such activity, nor would employees have reasonably perceived the email as limiting their right to engage in protected concerted activities going forward.
Dissenting in part, Member Wilcox would find that the Charging Party was engaged in protected concerted activity for the purpose of mutual aid or protection and that the Respondent violated Section 8(a)(1) by disciplining and discharging the Charging Party for that conduct. Member Wilcox would also find that the Respondent violated Section 8(a)(1) by promulgating a rule requiring employees to raise any questions regarding COVID-19 executive orders solely through the Respondent’s internal processes because she finds that, by its plain language, the rule explicitly restricts Section 7 activity by prohibiting employees from communicating about terms and conditions of employment with coworkers and third parties.
A separate majority (Chairman McFerran and Member Wilcox) reversed the judge to find that the Respondent violated Section 8(a)(1) in its reprimand letter by instructing the Charging Party to obtain approval from her supervisor before emailing her coworkers and representatives of the Respondent's government client. This majority found that, regardless of whether the Charging Party had previously engaged in protected concerted activity by raising her scheduling concerns in various communications, the Charging Party would have reasonably understood the instructions in the reprimand letter to generally restrict her Section 7 right to discuss terms and conditions of employment with her coworkers and third parties by requiring her to first receive approval for such communications from her supervisor.
Dissenting in part, Member Kaplan agreed with the judge that the Respondent did not violate Section 8(a)(1) when its manager issued the letter of reprimand Based on the context and the specific references to the Respondent's government client's complaints about the Charging Party in the letter, he found that a reasonable employee in the Charging Party's place would not reasonably speculate that the directive went beyond the specific nature of the communications for which the Charging Party was reprimanded, nor that it conveyed a broader message restricting her Section 7-protected activity.
Charge filed by an individual. Administrative Law Judge Robert A. Giannasi issued his decision on August 8, 2022. Chairman McFerran and Members Kaplan and Wilcox participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
DIY Bar (19-RC-345216) Portland, OR, November 7, 2024. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Order as it raised no substantial issues warranting review. Petitioner–Craft Tenders Union. Members Kaplan, Prouty, and Wilcox participated.
Warrior Met Coal Mining, LLC (10-RD-315651) Brookwood, AL, November 7, 2924. The Board (Chairman McFerran and Member Prouty) denied the Employer’s and Petitioner’s Requests for Review of the Regional Director’s Decision and Order Dismissing Petition as they raised no substantial issues warranting review. The Board also denied the Employer’s request for extraordinary relief as moot. Member Kaplan, dissenting in part, agreed with the denial of the request for extraordinary relief but would have granted the Requests for Review. Petitioner—an individual. Union—International Union, United Mine Workers of America. Chairman McFerran and Members Kaplan and Prouty participated.
Chippendales Las Vegas, LLC (28-RC-352347) Las Vegas, NV, November 8, 2024. The Board denied the Employer’s Requests for Review of the Regional Director’s decision denying its request to file post-hearing briefs and of the Regional Director’s Order Denying the Employer’s Motion for Special Permission to File Post-Hearing Briefs as they raised no substantial issues warranting review. The Employer’s requests to stay the election were denied as moot. Petitioner —Actors’ Equity Association. Members Kaplan, Prouty, and Wilcox participated.
C Cases
YAPP USA Automotive Systems, Inc. (07-CA-320369 and 07-CA-336485) Romulus, MI, November 8, 2024. The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order denying the Respondent’s motion to allow a witness to testify by videoconferencing. On the merits, the Board denied the appeal, finding that the Respondent failed to establish that the judge abused his discretion in denying the motion. Charge filed by Local 174, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Chairman McFerran and Members Prouty and Wilcox participated.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Trader Joe’s East, Inc. (02-CA-306679; JD-68-24) New York, NY. Administrative Law Judge Arthur J. Amchan issued his decision on November 5, 2024. Charge filed by United Food and Commercial Workers International Union.
Amazon.com Services, LLC (10-CA-290944, et al.; JD(NY)-22-24) Birmingham, NY. Administrative Law Judge Michael P. Silverstein issued his decision on November 5, 2024. Charges filed by Retail, Wholesale and Department Store Union,
Hawaii Pacific Health (20-CA-309614, et al.; JD(SF)-31-24) Honolulu, HI, November 6, 2024. Errata to the October 22, 2024 Decision. Errata Amended Decision.
Advanced Marine Concepts, LLC, d/b//a Atlas Docks (14-CA-326677; JD-69-24) Camdenton, MO. Administrative Law Judge Christal J. Key issued her decision on November 8, 2024. Charge filed by an individual.
Trader Joe’s East, Inc. (01-CA-296847, et al.; JD-70-24) Hadley, MA and Minneapolis, MN. Administrative Law Judge Charles J. Muhl issued his decision on November 8, 2024. Charges filed by individuals and Trader Joe’s United.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.