Summary of NLRB Decisions for Week of October 28 - November 1, 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
Michael Cetta, Inc. d/b/a Sparks Restaurant (02-CA-142626 and 02-CA-144852; 373 NLRB No. 129) New York, NY, November 1, 2024.
In this compliance case, the Board ordered the Employer to pay discriminatees the backpay amounts in the General Counsel’s compliance specification as amended. The Board remanded the issue of one discriminatee’s backpay for a determination of whether he received interim earnings not included in his backpay calculation.
Charges filed by United Food and Commercial Workers Local 342. Chairman McFerran and Members Prouty and Wilcox participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Miller Painting Co. (19-RD-348685) Savannah, GA, October 28, 2024. The Board denied the Union’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner—an individual. Union—International Union of Painters and Allied Trades 1169 District 77. Members Kaplan, Prouty, and Wilcox participated.
Segerstrom Center for the Arts (21-RM-327048) Costa Mesa, CA, October 31, 2024. The Board denied the Union’s Request for Review of the Acting Regional Director’s Order Impounding Ballots as moot. Petitioner—International Alliance of Theatrical Stage Employees Local 504. Members Kaplan, Prouty, and Wilcox participated.
C Cases
VHS Acquisition Subsidiary Number 7, Inc., d/b/a Saint Vincent Hospital (01-CA-290852, et al.) Worchester, MA, October 30, 2024. The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order denying in part the Respondent’s petition to revoke a subpoena duces tecum. On the merits, the Board denied the appeal. The Board found that the Respondent failed to establish that the judge abused her discretion in denying in part the Respondent’s petition to revoke the subpoena. Charges filed by Massachusetts Nurses Association. Members Kaplan, Prouty, and Wilcox participated.
VHS Acquisition Subsidiary Number 7, Inc., d/b/a Saint Vincent Hospital (01-CA-290852, et al.) Worchester, MA, October 30, 2024. The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order granting in part the Massachusetts Nurses Association’s petition to revoke a subpoena duces tecum. The Board found that the Respondent failed to establish that the judge’s rulings could not be appropriately addressed at a later stage of the proceeding. The denial was without prejudice to the Respondent’s right to renew its objection before the Board on any exceptions that may be filed to the judge’s decision, if appropriate. Charges filed by Massachusetts Nurses Association. Members Kaplan, Prouty, and Wilcox participated.
VHS Acquisition Subsidiary Number 7, Inc., d/b/a Saint Vincent Hospital (01-CA-290852, et al.) Worchester, MA, October 30, 2024. The Board denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order granting in part the Labor Relation Connection’s petition to revoke a subpoena duces tecum. The Board found that the Respondent failed to establish that the judge’s rulings could not be appropriately addressed at a later stage of the proceeding. The denial was without prejudice to the Respondent’s right to renew its objection before the Board on any exceptions that may be filed to the judge’s decision, if appropriate. Charges filed by Massachusetts Nurses Association. Members Kaplan, Prouty, and Wilcox participated.
United Food and Commercial Workers Union, Local 135, AFL-CIO (Ralphs Grocery Company) (21-CE-300089) Los Angeles, CA, October 31, 2024. The Board denied the Respondents’ Motion for Reconsideration of the Board’s Decision and Order reported at 373 NLRB No. 77 (2024) on the basis that the Respondents have not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Charge filed by Ralphs Grocery Company. Chairman McFerran and Members Prouty and Wilcox participated.
***
Appellate Court Decisions
John Gore Theatrical Group, Inc., Board Case No. 02-CA-286802 (reported at 372 NLRB No. 114) (2d Cir. decided October 28, 2024).
In an unpublished summary decision, the Court enforced the Board’s order that issued against this theater production company that maintains relationships with venues across North America and assists with booking touring productions. As a member of a multi-employer organization, the Employer was bound by a master collective-bargaining agreement executed between the Broadway League and the Actors’ Equity Association, the Union representing its theater professionals. In 2021, while investigating whether the Employer had violated the agreement by diverting productions to a third party that was not a party to the agreement, the Union requested information about the Employer’s business relationships, which the Employer refused to provide.
The Board (Chairman McFerran and Members Wilcox and Prouty) found that the Employer violated Section 8(a)(5) and (1) by failing and refusing to furnish the information relevant and necessary to the Union’s performance of its collective-bargaining duties. In doing so, the Board rejected the Employer’s asserted confidentiality defenses and found that the Employer had not established that it had a legitimate and substantial interest that outweighed the Union’s need for the information.
Before the Court, the Employer did not dispute that the requested information was relevant to the Union’s attempt to determine whether productions had been diverted in violation of the collective-bargaining agreement. Thus, the Court recognized that the Union was immediately entitled to the requested information unless the Employer established a legitimate and substantial confidentiality interest. “Affording the Board the deference required,” the Court found no error in the Board’s determination that the Employer failed to meet that burden.
The Court’s decision is here.
Import Motors II, Inc. d/b/a Audi Concord, Board Case No. 32-CA-281627 (reported at 372 NLRB No. 112) (9th Cir. decided October 29, 2024).
In an unpublished memorandum decision in this test-of-certification case, the Court held that the Board did not abuse its discretion in certifying the Machinists Automotive Trades District Lodge No. 190, Machinist Local 1173, as the bargaining representative of a unit of service providers employed at this seller and servicer of automobiles in Concord, California.
In the underlying representation case, the Union prevailed in a mail-ballot election, and the Employer thereafter filed a single objection claiming that the Union demanded on a video call that voters appear at a restaurant for a “ballot-signing meeting” to ensure their ballots were marked “Yes.” A Hearing Officer held a hearing on the objection and issued a report finding that the Employer had not met its burden of proving that the alleged objectionable conduct had occurred. On exceptions, the Regional Director agreed, overruled the objection, and certified the Union. The Employer filed a Request for Review, which was denied by the Board (Chairman McFerran and Members Kaplan and Wilcox). The Employer then refused to bargain in order to seek court review.
Taking the case on the briefs without oral argument, the Court held that the Employer’s claim of objectionable conduct was contrary to the record evidence. Further, the Court rejected the Employer’s claim that the video call constituted unlawful electioneering under Milchem, Inc., 170 NLRB 362 (1968). As the Court stated, in Milchem the Board established a “strict rule” against “prolonged conversations between representatives of any party to the election and voters waiting to cast ballots.” The Court also explained that subsequent Board decisions “emphasized that the Milchem rule against electioneering applies only where . . . the conversations occurred at the polling place itself or while the employees were waiting in line,” circumstances not present in this mail-ballot case. Accordingly, the Court concluded that the Board acted within its discretion in overturning the Employer’s objection to the election and in certifying the Union.
The Court’s decision is here.
***
Administrative Law Judge Decisions
Nitro Construction Services (09-CA-313296 and 09-CA-323836; JD-64-24) Nitro, WV. Administrative Law Judge Geoffrey Carter issued his decision on October 30, 2024. Charges filed by an individual.
Starbucks Corporation (18-CA-307276; JD-67-24) Seattle, WA. Administrative Law Judge Kimberly Sorg-Graves issued her decision on November 1, 2024. Charge filed by Workers United, a/w Service Employees’ International Union.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.