Summary of NLRB Decisions for Week of October 30 - November 3, 20233
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
No Published Decisions Issued.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
No Unpublished R Cases Issued.
C Cases
United States Postal Service (15-CA-279353) Wewahitchka, FL, November 1, 2023. No exceptions having been filed to the September 20, 2023 decision of Administrative Law Judge Donna N. Dawson’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 an individual.
International Longshoremen’s Association, Local 1526 (Florida International Terminal LLC) (12-CB-295349) Fort Lauderdale, FL, November 3, 2023. No exceptions having been filed to the September 18, 2023 decision of Administrative Law Judge Michale A. Rosas’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 an individual.
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Appellate Court Decisions
T-Mobile USA, Inc., Board Case No. 14-CA-155249 (reported at 371 NLRB No. 163) (D.C. Cir. Nov. 3, 2023).
In an unpublished judgment, the D.C. Circuit enforced the Board’s second supplemental order that issued against this nationwide telecommunications business with a call center in Wichita, Kansas, after the Court remanded the case to the Board for further consideration. In a pair of decisions in prior proceedings, the Board (Chairman Ring and Members Kaplan and Emanuel) applied Caesars Entertainment, 368 NLRB No. 143 (2019), and concluded that the Employer had not discriminatorily enforced its written policies when it reprimanded an employee for sending union-related emails using its proprietary system. Specifically, the Board held that the Employer did not restrict access to its email system in a discriminatory manner, because it had never previously permitted emails that were “similar in character” to the employee’s union-related emails. The Board also held that the Employer had not violated the Act because its actions were taken in response to the employee’s “impermissible use” of the Employer’s email system pursuant to a “lawful” and non-discriminatory restriction on access to that system.
The Communications Workers of America filed petitions for review of both Board decisions. On review, the Court held that the Employer engaged in discrimination by disparately enforcing restrictions on the use of its email system and by singling out the employee’s emails based on their union content. Having granted the Union’s petition on the discrimination issue, the Court further held that workplace rules issued in response to the employee’s union-related emails were impermissibly promulgated in response to Section 7 activity. The Court remanded the case to the Board for further proceedings. Communications Workers of America v. NLRB, 6 F.4th 15 (D.C. Cir. 2021), remanding 369 NLRB No. 50, and 369 NLRB No. 90. Thereafter, the Employer filed a petition for rehearing en banc, which was denied.
On remand, the Board (Members Kaplan, Ring, and Prouty) issued a second supplemental decision. In accordance with the Court’s holding that the Employer discriminated against the employee’s use of the email system to send union-related emails, the Board found that the Employer violated Section 8(a)(1) by reprimanding the employee, by promulgating its new workplace rules in response to her union-related emails, and by telling her that employees could not send union-related messages to coworkers at work email addresses.
Back on review, the Court upheld the Board’s unfair-labor-practice findings. The Employer limited its contentions to arguing that the Board improperly accepted the Court’s finding of discrimination as law of the case, arguing that discrimination remained an open question for the Board to decide on remand in conjunction with assessing its defense that a work rule applied to the employee’s mass emails. Rejecting that argument, the Court stated that the Employer had misread its prior decision, which conclusively determined that the Employer had engaged in discrimination, and that “the Board properly adopted our holding in CWA as the law of the case.” Given that the Employer otherwise raised “no challenge whatsoever to the Board’s rulings” on the remanded issues, the Court enforced the Board’s order in full.
The Court’s judgment may be found here.
Thrifty Payless, Inc. dba Rite Aid, Board Case No. 20-CA-255252 (reported at 371 NLRB No. 124) (D.C. Cir. decided November 3, 2023).
In a published opinion the Court upheld the Board’s finding that this operator of drug stores and pharmacies committed an unfair labor practice during negotiations for a successor agreement with United Food and Commercial Workers Local 8-Golden State, which represents employees at stores throughout northern California and parts of Nevada. The Board (Members Kaplan, Wilcox, and Prouty) found that the Employer violated Section 8(a)(5) and (1) by unilaterally implementing its bargaining proposals without first reaching a valid overall impasse.
Before the Board, the Employer did not contest that it unilaterally implemented its proposals, which included substituting an employer-sponsored healthcare plan for the parties’ long participation in the UFCW Northern California and Drug Employers Health and Welfare Trust Fund. On the Employer’s claimed defenses, the Board found that it had not carried its burden of showing that the parties were at impasse, or that an economic exigency excused it from its obligation to bargain. Among other remedies, the Board ordered the Employer to make all required contributions to the healthcare fund that it failed to make since its unilateral implementation.
On review, the Court, in a comprehensive opinion, reviewed the record evidence in support of the Board’s finding that the parties were not at impasse at the time the Employer unilaterally implemented its proposals. In particular, the Court held that substantial evidence supported the Board’s conclusion that the parties’ process of negotiating over proposals to address the healthcare fund’s long-term viability, the issue upon which the Employer claimed impasse, “was not yet exhausted.” Among other things, the Court explained that given “the complexity of the issues and their undisputed importance to the parties, the Board reasonably concluded that [the Employer] was unjustified in walking away from the bargaining process after less than an hour of negotiations” over a new proposal by the Union that demonstrated significant movement towards agreement.
On the Employer’s defense that an economic exigency required it to implement the new healthcare plan, the Court acknowledged that an employer is entitled to take unilateral action to stave off “a dire financial emergency,” one “in which time is of the essence and which demands prompt action,” but found no such circumstances. Rather, the Court noted that the prospects for the long-term viability of the healthcare fund had actually improved at the time of the unilateral change, and that therefore the Board reasonably concluded that the Employer was not “compelled” to take unilateral action at that time.
However, the Court took issue with the Board’s remedial requirement that the Employer make all required contributions to the healthcare fund that it failed to make since its unilateral implementation. The Court stated that because this was a situation where the Employer had provided alternative benefits, in-circuit precedent provided that compelling reimbursement is unwarranted to the extent that it results in a windfall for the healthcare fund. Accordingly, although the Court affirmed the Board’s unfair-labor-practice finding, it remanded the case so the Employer could demonstrate the extent to which its remedial obligations should be reduced to account for the benefits it had provided in the employer-sponsored plan.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Harvard Maintenance Inc. (02-CA-254451 and 02-CA-258382; JD(NY)-19-23) New York, NY. Administrative Law Judge Jeffrey P. Gardner issued his decision on November 1, 2023. Charges filed by an individual.
International Longshoremen’s Association, Local 1526 (Florida International Terminal LLC) (12-CB-295349; JD-63-23) Ft. Lauderdale, FL, November 2, 2023. Errata to decision issued on September 18, 2023. Errata Amended Decision.
Starbucks Corporation (21-CA-304228; JD(SF)-34-23) La Quinta, CA. Administrative Law Judge Amita Baman Tracy issued her decision on November 2, 2023. Charge filed by Workers United Labor Union International, a/w Service Employees International Union.
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