Summary of NLRB Decisions for Week of October 16 - 20, 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
Maywood SNF Operations LLC d/b/a Atlas Healthcare at Maywood (22-CA-290363; 372 NLRB No. 152) Maywood, NJ, October 17, 2023. Errata to decision issued October 13, 2023. Errata Amended Decision.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Matson Siding, Inc. (19-RM-310277) Amboy, WA, October 16, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Order as it raised no substantial issues warranting review. The Board emphasized that an employer may file an RM petition under Section 9(c)(1)(B) of the Act only when one or more labor organizations have presented a claim to be recognized as the employees’ majority-supported representative under Section 9(a) of the Act. Petitioner—Pacific Northwest Regional Council of Carpenters. Members Kaplan, Prouty, and Wilcox participated.
Electric Boat Corporation (01-RC-306528) Groton, CT, October 18, 2023. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision on Order dismissing its petition to sever a unit of regular full-time and part-time firefighters and fire inspectors employed at the Employer’s shipyard. Petitioner—Southeastern CT Fire Professionals Union. Intervenors—Metal Trades Council of New London County and Laborers International Union, Local 547. Chairman McFerran and Members Kaplan and Wilcox participated.
The Center for Pan Asian Community Services, Inc. (10-RC-314646) Atlanta, GA, October 19, 2023. The Board denied the Employer’s Requests for Review of the Acting Regional Director’s Decision and Direction of Election and of the Regional Director’s Decision on Objections as they raised no substantial issues warranting review. Petitioner—Workers United, Southern Regional Joint Board. Chairman McFerran and Members Kaplan and Wilcox participated.
Starbucks Corporation (01-RC-312846 and 01-RC-313008) Somerville, MA, October 20, 2023. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Elections as it raised no substantial issues warranting review. Petitioner—Workers United a/w SEIU. Chairman McFerran and Members Kaplan and Prouty participated.
C Cases
MCD Plumbing, Inc., DMS Mechanical Services, LLC, Michael Stachowiak d/b/a DMS Services, and Michael Diebold (03-CA-076777) Rochester, NY, October 16, 2023. The Board denied Petitioner’s Petition to Revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the petitioner failed to establish any other legal basis for revoking the subpoena. Charge filed by United Association, Plumbers & Steamfitters Local Union #22. Members Kaplan, Prouty, and Wilcox participated.
Starbucks Corporation (19-CA-299573) Seattle, WA, October 16, 2023. The Board denied without prejudice the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order directing it to produce a custodian of records when the hearing resumed. The Respondent declined to do so and the hearing concluded later that day. The Board found that there was no need for interlocutory relief as the hearing had concluded and the record was closed. Charge filed by Workers United. Chairman McFerran and Members Kaplan and Prouty participated.
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Appellate Court Decisions
Kava Holdings, LLC, et al., d/b/a Hotel Bel Air, Board Case No. 31-CA-074675 (reported at 370 NLRB No. 73, and 371 NLRB No. 27), 9th Cir. decided, October 18, 2023.
In a published opinion, the Court enforced two Board orders that issued against this operator of the Hotel Bel-Air in Los Angeles, California, where a unit of housekeepers, garage and front-desk employees, food-service employees, gardeners, and maintenance workers were represented by UNITE HERE Local 11. In 2009, the Employer temporarily closed the hotel for renovations, laid off all unit employees, and began negotiating with the Union over the effects of the temporary closure. This case involves unfair labor practices that the Employer committed while reopening the hotel.
In a prior case involving the same parties, the Board found that after the hotel was temporarily closed, the Employer unlawfully ended effects bargaining with the Union. Specifically, the Board found that it unilaterally implemented some of its proposals without reaching a valid impasse, and bypassed the Union and dealt directly with the laid-off employees by sending them forms to waive their recall rights in exchange for severance payments. Hotel Bel-Air, 358 NLRB 1527 (2012) (“Hotel Bel-Air I”), adopted by 361 NLRB 898 (2014), enforced 637 F. App’x 4 (D.C. Cir. 2016).
In 2011, the Employer completed the renovations, conducted a hiring campaign, which included a job fair, and reopened the hotel. At the time of the job fair, the Company was hiring for about 306 positions. About 176 laid-off bargaining-unit employees applied for the openings, but the Employer rejected 152 of them. It also refused to bargain with the Union, and unilaterally changed the employees’ pre-closure employment terms. On those facts, the Board (Members Kaplan, Emanuel, and Ring) issued a decision (370 NLRB No. 73) finding that the Employer violated Section 8(a)(3) and (1) by refusing to rehire laid-off, unit-employee applicants because of their union affiliation and because of its desire to avoid bargaining with the Union. The Board also found that the Employer’s refusal to bargain and its unilateral changes violated Section 8(a)(5) and (1). Lastly, the Board severed and remanded a narrow remedial issue, which it later resolved in a supplemental decision (371 NLRB No. 27).
On review, the Court held that substantial evidence supported the Board’s findings. On the discriminatory refusals to rehire, the Court rejected the Employer’s argument that there was insufficient evidence to support a finding that union animus was “a substantial factor” in its decision to not rehire the union-affiliated former employees. Contrary to the Employer’s contentions, the Court held that the Employer’s unfair labor practices in the prior case were properly relied on by the Board, particularly because they were “connected and close in time to the events at issue here.” The Court stated that the Board had also reasonably relied on job-fair records demonstrating disparate treatment of the union-affiliated applicants, and that, from the testimony of a hotel manager, the Board had drawn a reasonable inference that the Employer planned to reopen a non-union hotel.
On the Employer’s claims that the Board had misapplied Wright Line, the Court, citing Intertape Polymer Corp., 372 NLRB No. 133 (2023), explained that the General Counsel’s burden was not heightened by Tschiggfrie Properties, Ltd., 368 NLRB No. 120 (2019), and that “Tschiggfrie did not revise the Wright Line framework by adding a requirement that the General Counsel must show particularized motivating animus towards an employee’s own protected activity.” As its affirmative defense, the Employer argued that it had a legitimate business reason for not rehiring the 152 former employees, claiming that upon reopening it intended to adopt a new luxury service model and wanted employees who were suited to that model. Noting that the Employer did not provide employee-specific reasons for its refusals to rehire, the Court agreed with the Board that the Employer’s explanation was pretextual.
On the refusal-to-bargain and unilateral-change findings, the Court rejected the Employer’s contention that its duty to bargain did not survive the temporary hotel closure because, it claimed, the employees had no reasonable expectation of reemployment. Citing Hotel Bel-Air I, the Court noted that the Board had already determined the issue, and that the Employer cannot now “collaterally attack the finding in Bel-Air I that the former employees enjoyed a reasonable expectation of rehire when the Hotel closed for renovations.” Among other contentions, the Court rejected the argument that any reasonable expectation of reemployment expired with the collective-bargaining agreement, explaining that “employees do not need a contractual or other legal right to reemployment to have a ‘reasonable’ expectation of reemployment,” quoting El Torito-La Fiesta Rests., Inc. v. NLRB, 929 F.2d 490 (9th Cir. 1991).
The Court’s opinion is here.
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Administrative Law Judge Decisions
RATP Dev USA, Inc. (05-CA-280582; JD-57-23) Washington, D.C., October 17, 2023 Errata to Administrative Law Judge Michael A. Rosas’ decision issued on August 30, 2023. Errata Amended Decision.
Starbucks Corporation (18-CA-298181; JD-71-23) West Allis, WI. Administrative Law Judge Charles J. Muhl issued his decision on October 17, 2023. Charge filed by Chicago & Midwest Regional Joint Board, Workers United/SEIU.
Starbucks Corporation (31-CA-299464, et al.; JD-72-23) Sylmar, CA. Administrative Law Judge Ira Sandron issued his decision on October 19, 2023. Charges filed by Workers United.
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