Summary of NLRB Decisions for Week of September 25 - 29, 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
West Shore Home, LLC (10-CA-260665; 372 NLRB No. 143) Wilmington, NC, September 26, 2023.
The Board (Chairman McFerran and Member Prouty; Member Kaplan, dissenting) remanded this case involving allegations that the Respondent’s Social Media Guidelines policy violated Section 8(a)(1), for the purpose of reopening the record, if necessary, and the preparation of a supplemental decision by the Administrative Law Judge to address the application of the Board’s recent decision in Stericycle, Inc., 372 NLRB No. 113 (2023), which adopted a modified version of the framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004)). Member Kaplan, dissenting, found it unnecessary to remand a purely legal question, and found insufficient guidance as to how a respondent could meet its rebuttal burden.
Charge filed by an individual. Administrative Law Judge Keltner W. Locke issued his decision on August 4, 2021. Chairman McFerran and Members Kaplan and Prouty participated.
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Aleph Maintenance, Inc., and its alter ego Janitorial Holdings LLC (20-CA-314072; 372 NLRB No. 144) West Sacramento, CA, September 28, 2023.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested relevant and necessary information.
Charge filed by Service Employees International Union – United Service Workers West. Chairman McFerran and Members Kaplan and Prouty participated.
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Rieth-Riley Construction Co., Inc. (07-CA-261954; et al.; 372 NLRB No. 142) Goshen, IN and Bloomfield Township, MI, September 28, 2023.
The Board adopted the Administrative Law Judge’s conclusions that the Employer violated Section 8(a)(5) and (1) by failing to respond to two information requests from the Union for relevant information related to employees’ terms and conditions of employment. The Board also adopted the judge’s conclusion that the Union violated Section 8(b)(1)(A) through the actions of its picketing member striking an employee crossing the picket line.
Charges filed by Rieth-Riley Construction Co., Inc., and Local 324, International Union of Operating Engineers. Administrative Law Judge Charles J. Muhl issued his decision on July 18, 2022. Chairman McFerran and Members Kaplan and Prouty participated in the decision.
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VTCU Corp. (27-CA-320744; 372 NLRB No. 148) Pocatello, ID, September 28, 2023.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the grounds that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. The Board found that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union. The Board severed for further consideration the issue of whether the Board should adopt a compensatory, make whole remedy for the Respondent’s refusal to bargain.
Charge filed by International Union of Operating Engineers, Local 302. Members Kaplan, Prouty, and Wilcox participated.
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Instituto de Educacion Popular del Sur de California (IDEPSCA) (31-CA-305795 and 31-CA-305804; 372 NLRB No. 146) Van Nuys, CA, September 28, 2023.
The Board granted the General Counsel’s Motion for Default Judgment on the basis that the Respondent failed to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(1) by discharging two employees for concertedly complaining about wages, hours, and working conditions and to discourage other employees from engaging in these or other concerted activities.
Charges filed by individuals. Chairman McFerran and Members Kaplan and Prouty participated.
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Coway USA, Inc. (31-RC-300668; 372 NLRB No. 145) Los Angeles, CA, September 29, 2023.
The Board denied the Employer’s Request for Review of the Regional Director’s Corrected Partial Decision on Objections and Notice of Hearing as it raised no substantial issues warranting review. Member Kaplan, dissenting in part, would have reversed the Regional Director and directed a hearing with respect to one of the Employer’s objection.
Petitioner—California Restaurant and Retail Workers Union. Chairman McFerran and Members Kaplan and Prouty participated.
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Starbucks Corporation (01-CA-302321 and 01-CA-307585; 372 NLRB No. 147) Vernon, CT, September 29, 2023.
The Board granted the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s order, but denied the appeal on the merits. Specifically, the Board found that the Respondent failed to establish that the judge abused her discretion in ruling that (1) the Respondent should produce its “Petition Store Playbook” or have its custodian(s) of records available to testify concerning the Respondent’s search for responsive documents; (2) if the Respondent elected to produce any additional documents in TIFF+ format, it must do so at least 4 business days before the hearing resumed; and (3) the General Counsel properly served subpoena ad testificandum. In so ruling, the Board emphasized that it was within the judge’s broad discretion, granted by the Board’s Rules and Regulations, to require the Respondent’s subpoena responses to be at a time and in a format that is reasonably usable at the start (or, as here, the resumption) of the hearing.
Charges filed by Workers United a/w Service Employees International Union. Chairman McFerran and Members Kaplan and Prouty participated.
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Integrity Defense Services, Inc. (25-CA-311769; 372 NLRB No. 151) Springville, IN, September 30, 2023.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(a)(1) by maintaining and discharging an employee pursuant to an unlawful rule that prohibits employees from discussing their wages.
Charge filed by an individual. Chairman McFerran and Members Kaplan and Prouty participated.
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Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras (12-CA-279497; 372 NLRB No. 149) San Juan, PR, September 30, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by subcontracting the work of its cleaning department without first providing the Union the opportunity to bargain over the decision to subcontract and its effects. Applying the contract-coverage test set forth in MV Transportation, 368 NLRB No. 66 (2019), the Board found that the collective-bargaining agreement did not authorize the Respondent to subcontract the work of entire departments unilaterally and that the Union did not otherwise waive its right to bargain.
Charge filed by Unidad Laboral de Enfermeras(os) and y Empleados de la Salud. Administrative Law Judge Ira Sandron issued his decision on September 8, 2022. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Spanish Broadcasting System of California, Inc. (31-RD-299877) Los Angeles, CA, September 25, 2023. The Board denied the Employer and Petitioner's Requests for Review of the Regional Director's Decision and Order Dismissing Petition and Canceling Ballot Count as they raised no substantial issues warranting review. Member Kaplan would have granted review and reversed. The Board noted that the petition is subject to reinstatement and made the Petitioner a party-in-interest to Case 31-CA-299378 for the purpose of receiving notification of the final outcome of that case. Petitioner— an individual. Union—SAG-AFTRA. Chairman McFerran and Members Kaplan and Prouty participated.
The Dutra Group (20-RC-322752) San Rafael, CA, September 26, 2023. The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner—International Organization of Masters, Mates & Pilots, AFL-CIO. Chairman McFerran and Members Kaplan and Prouty participated.
Chicagoland Games LLC (13-RC-323174) Chicago, IL, September 27, 2023. The Board denied the Employer’s Request for Review of the Regional Director’s decision not to postpone a scheduled election as it raised no substantial issues warranting review. Petitioner—United Food and Commercial Workers International Union, Local 1546. Chairman McFerran and Members Kaplan and Prouty participated.
C Cases
Siren Retail Corporation d/b/a Starbucks Reserve Roastery (02-CA-305984) New York, NY, September 26, 2023. The Board denied the Respondent’s Motion for Partial Summary Judgment, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. The Board’s denial was without prejudice to the Respondent’s right to raise its claims and defenses before the Administrative Law Judge and before the Board on any exceptions that may be filed to the judge’s decision, if appropriate. Charge filed by Workers United a/w Service Employees International Union. Chairman McFerran and Members Kaplan and Prouty participated.
HDI Power & Controls, LLC, d/b/a HDI Electrical Services (12-CA-300277) Screven, GA, September 27, 2023. No exceptions having been filed to the August 14, 2023 decision of Administrative Law Judge Christal J. Key’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
PG Publishing Co., Inc., d/b/a Pittsburgh Post-Gazette, Board Case No. 06-CA-233676 (reported at 371 NLRB No. 141) (3d Cir. Sept. 26, 2023).
In a published opinion, the Court granted the petition for review filed by this publisher of a daily newspaper in Pittsburgh, Pennsylvania, where for many years, the pressmen and paper handlers have been represented by Graphic Communications International Union Local 24M/9N. The most recent collective-bargaining agreement contained a list of named employees who were “guaranteed a five (5) shift markup each payroll week for the balance of the Agreement, ending March 31, 2017,” the date of contract expiration. In June 2018, the Employer informed the Union that it had decided to transition to a digital format and was going to soon eliminate two days of print operations. The parties bargained over the effects of that decision, but did not reach agreement. Thereafter, prior to the parties reaching a successor contract, the Employer laid off two of the employees who had been on the five-shift list.
On those facts, a complaint issued that alleged that the Employer violated the Act by unilaterally laying off the two employees without first bargaining to overall impasse on a new contract, and that it unlawfully failed to maintain the five-shift guarantee as part of the status quo post-contract expiration. The Administrative Law Judge analyzed the case as presenting the question of whether the layoffs violated the Employer’s duty to bargain over the effects of its decision to move to an all-digital format, and then recommended dismissal under his view that the overall-impasse requirement should not apply to effects bargaining.
The Board (Chairman McFerran and Members Wilcox and Prouty; Members Ring and Kaplan, dissenting) found that the Employer’s unilateral actions violated Section 8(a)(5) and (1). Specifically, the Board held that both the unilateral elimination of the five-shift guarantee and the layoffs were unlawful because the Employer was required to maintain the status quo until reaching a new agreement or impasse, and, unlike the judge, did not analyze the case as an effects-bargaining violation. The dissent would have concluded that the five-shift guarantee was not part of the post-expiration status quo and that, instead, what was required was bargaining over the effects of the Employer’s decision to move to an all-digital format.
On review, the Court viewed the case differently and applied ordinary contract principles to determine what the parties intended by the five-shift guarantee. It concluded that the guarantee, on its terms, expired with the contract and did not become part of the post-expiration status quo. However, the Court held that the Employer was nonetheless precluded from implementing the layoffs without first adequately bargaining over the effects of its decision. Accordingly, the Court remanded the case for the Board to determine whether the Employer engaged in adequate effects bargaining and, if not, to craft an appropriate remedy.
The Court’s opinion may be found here.
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Administrative Law Judge Decisions
Curaleaf NY, LLC (29-CA-298317; JD(NY)-16-23) Brooklyn, NY. Administrative Law Judge Michael P. Silverstein issued his decision on September 25, 2023. Charge filed by Local 338 RWDSU/UFCW, AFL-CIO.
3 Corners, LLC (28-CA-273948, et al.; JD(SF)-26-23) Las Vegas, NV. Administrative Law Judge John T. Giannopoulos issued his decision on September 25, 2023. Charges filed by Quality Logistics & Installation d/b/a QLI International and General Teamsters, Airline, Aerospace and Allied Employees, Warehousemen, Drivers, Construction, Rock and Sand, Local 986 a/w International Brotherhood of Teamsters.
Magnitude 7 Metals, LLC (15-CA-290389; JD-65-23) Marston, MO. Administrative Law Judge Christine E. Dibble issued her decision on September 28, 2023. Charge filed by United Steel, Paper, and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9014-04.
Starbucks Corporation (19-CA-294579, et al.; JD(SF)-29-23) Seattle, WA. Administrative Law Judge Mara-Louise Anzalone issued her decision on September 28, 2023. Charges filed by Workers United Laor Union International, a/w Service Employees International Union with All of the Joint Board affiliates of Workers United Labor Union International, Service Employees International Union Local 513, International Brotherhood of Teamsters, Local Union No. 30 and Central and Rock Partners Union.
Saint Joseph Health System, Inc., d/b/a Saint Joseph Health – Saint Joseph London (09-CA-297427; JD-66-23) London, KY. Administrative Law Judge Renee D. McKinney issued her decision on September 28, 2023. Charge filed by United Food and Commercial Workers, Local 227.
HSA Cleaning Inc. (22-CA-298853; JD(NY)-17-23) East Rutherford, NJ. Administrative Law Judge Jeffrey P. Gardner issued his decision on September 28, 2023. Charge filed by Service Employees International Union, Local 32BJ.
The American Bottling Company, d/b/a Keurig Dr. Pepper (13-CA-320094; JD-67-23) Northlake, IL. Administrative Law Judge Susannah Merritt issued her decision on September 29, 2023. Charge filed by an individual.
Pro Residential Services, Inc. (28-CA-239775, et al.; JD(SF)-28-23) Tucson, AZ. Administrative Law Judge Lisa D. Ross issued her decision on September 29, 2023. Charges filed by an individual.
Starbucks Corporation (10-CA-298974; JD-68-23) Covington, GA. Administrative Law Judge Michael A. Rosas issued his decision on September 29, 2023. Charge filed by Workers United, Southern Regional Joint Board.
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