National Labor Relations Board
The Summary of NLRB decisions for the week of February 26 – March 1, 2024 is now available on the NLRB’s website. The summary can be accessed by clicking the links below.
Summary of NLRB Decisions for Week of February 26 - March 1, 2024 | National Labor Relations Board
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
Collins Building Services, Inc. (29-RD-319570; 373 NLRLB No. 32) Long Island City, NY, February 27, 2024.
The Board denied the Petitioner’s Request for Review of the Regional Director’s Order Dismissing Petition as it raised no substantial issues warranting review. The Regional Director found that the decertification petition was contract-barred. Writing separately, Member Kaplan stated that, in a future appropriate case, he would seek public input on whether contracts ratified by employees should be treated differently from contracts not ratified by employees under the contract bar doctrine.
Petitioner—an individual. Union—Production and Service Employees International Union, Local 143. Chairman McFerran and Members Kaplan and Prouty participated.
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Sunrise Operations, LLC, a wholly owned subsidiary of The Pasha Group (20-CA-219534, et al.; 373 NLRB No. 30) San Francisco, CA, February 27, 2024.
On remand from the D.C. Circuit Court, the Board found that the Respondent failed to establish that at least some of the Licensed Deck Officers (LDOs) are supervisors under Section 2(11) of the Act and, accordingly, that the LDO unit constituted at least a “mixed” unit of statutory employees and statutory supervisors. The Board concluded that it has jurisdiction in this proceeding and that the Respondent, having voluntarily recognized the “mixed” unit of LDOs, could not invoke the “mixed” nature of the unit as a defense to the unfair labor practice allegations in this case. Thus, by refusing to provide the information requested by the Union or to arbitrate pursuant to the terms of the collective-bargaining agreement, the Respondent violated Section 8(a)(5) and (1).
Charges filed by International Organization of Masters, Mates & Pilots, ILA/AFL–CIO. Administrative Law Judge Lisa D. Ross issued her decision on May 11, 2020. Chairman McFerran and Members Kaplan and Prouty participated.
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The Healing Healthcare 3, Inc. d/b/a Curaleaf Camelback Dispensary (28-CA-329732; 373 NLRB No. 31) Phoenix, AZ, February 29, 2024.
The Board granted the General Counsel’s Motion for Summary Judgment in this test-of-certification case on the ground 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.
Charge filed by United Food and Commercial Workers Union, Local 99. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Medieval Knights, LLC (22-RD-323558) Lyndhurst, NJ, February 27, 2024. The Board granted the Petitioner’s and Employer’s Requests for Review of the Acting Regional Director’s Decision and Order Dismissing the Petition for Decertification and remanded the case to the Acting Regional Director to apply Master Slack, 271 NLRB 78 (1984), and, if the Acting Regional Director deems it necessary, to conduct a hearing pursuant to Saint Gobain Abrasives, Inc., 342 NLRB 434 (2004). Member Kaplan, concurring, would have also instructed the Acting Regional Director to conduct a Saint Gobain hearing. Petitioner—an individual. Union—American Guild of Variety Artists. Members Kaplan, Prouty, and Wilcox participated.
C Cases
No Unpublished C Cases Issued.
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Appellate Court Decisions
NCRNC, LLC d/b/a Northeast Center for Rehabilitation and Brain Injury, Board Case No. 03-CA-252090 (reported at 372 NLRB No. 35) (D.C. Cir. decided March 1, 2024).
In a published opinion, the Court enforced the Board’s order that issued against this operator of a long-term, in-patient rehabilitation facility in Lake Katrine, New York, for unfair labor practices committed after an organizing campaign initiated in June 2019 by 1199SEIU United Healthcare Workers East among the Employer’s 415 employees. In doing so, the Court disagreed with one basis upon which a finding of unlawful surveillance was made, but found it fully supported on other record evidence, and enforced the Board’s order in full.
The Union filed a petition for representation in the fall of 2019, and thereafter the Employer’s senior managers, led by outside union-avoidance consultants, commenced a campaign to quash the union drive. In the span of three weeks, the Employer began coercively surveilling employees in an attempt to identify union supporters, called known union supporters into meetings to threaten and interrogate them about the Union, and discharged two prominent union supporters. When one manager refused to unlawfully surveil employees, she was discharged as well. And when the Union filed unfair-labor-practice charges, the Employer informed the employees that it was withholding a wage increase because the Union was “still organizing.” After complaint issued, the Board petitioned for interim injunctive relief under Section 10(j), which was granted.
On those facts, the Board (Chairman McFerran and Member Prouty; Member Ring, dissenting in part) found that the Employer committed numerous violations of Section 8(a)(1) and (3). In finding unlawful surveillance, the Board relied on credited evidence that the Employer implemented a policy at the suggestion of its union-avoidance consultants in which senior managers began appearing at the facility at times outside their customary schedules to walk throughout the facility, observe employees, and report back on how employees reacted to the managers’ presence or to being handed anti-union fliers. That policy also required managers to start coming in on their off hours to “monitor” employees and to look for “suspicious activities” related to the union campaign.
On review, the Court held that substantial evidence supported the Board’s determinations that the Employer unlawfully suspended and discharged two employees for their union activities, one of whom was also threatened and coercively interrogated, and for discharging the supervisor for refusing to commit unlawful surveillance. The Court noted, however, that the Board should not have relied on the distribution of flyers and observation of employee reactions “because the flyers were a protected exercise of Northeast’s free speech rights under Section 8(c) of the NLRA.” Nevertheless, the Court found that the Board’s other factual findings provided substantial evidence of unlawful surveillance and enforced on those grounds. Finally, the Court summarily enforced the remaining unfair labor practices, which were uncontested and thus barred from review under Section 10(e) of the Act.
The Court’s opinion is here.
J.G. Kern Enterprises, Inc., Board Case No. 07-CA-231802 (reported at 371 NLRB No. 91) (D.C. Cir. decided March 1, 2024).
In a published opinion, the Court enforced the Board’s order that issued against this operator of a facility engaged in the manufacture, machining, and non-retail sale of automotive parts in Sterling Heights, Michigan, where its employees voted in an October 2018 election to be represented by Local 228, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL–CIO. Two weeks after certification, the Union contacted the Employer to initiate negotiations for a first contract. Thereafter, the Employer engaged in conduct that the Board found unlawful. The Board (Chairman McFerran and Members Ring and Wilcox) found that the Employer violated Section 8(a)(5) and (1) by delaying bargaining for three months at the start of the certification year, refusing to furnish cost information about employee benefits to the Union that it needed for negotiations, and notifying the Union that it intended to keep its existing benefit plans and would not consider any proposal for union-administered benefits.
To remedy the Employer’s initial refusal to bargain and other bargaining violations that deprived the Union of its full year of good-faith bargaining, the Board determined that a 3-month extension of the certification was warranted, given it was a period of time comparable to the Employer’s unlawful delay. The Board then applied its twin precedents of Whisper Soft Mills, Inc., 267 NLRB 813 (1983), and New Madrid Nursing Center, 325 NLRB 897 (1998), to find that the withdrawal of recognition was unlawful because it occurred during the extended certification year. Therefore, the Board ordered a 6-month extension of the certification year and, among other remedies, required the parties to meet and bargain for at least 40 hours per month, and 8 hours per session, until they reach either an agreement or a good-faith impasse.
On review, the Court held that substantial evidence supported the Board’s unfair labor practice findings, and rejected the Employer’s challenges to the extension of the certification year. Consistent with settled law, the Court recognized that under the Board’s certification-year bar a newly certified union enjoys a conclusive presumption of majority status for one year following its certification, citing Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987), and that where an employer takes from the union a substantial part of that year through its refusal to bargain, the Board may remedy that deficit by extending the certification year, citing Mar-Jac Poultry Co., 136 NLRB 785 (1962).
The Court then rejected the Employer’s challenges to the Board’s determination to extend the certification year by 6 months. First, the Court held that the Board reasonably chose to apply Whisper Soft Mills and New Madrid in finding that the Employer unlawfully withdrew recognition based on a retroactive extension of the original certification year. The Court noted that in both cases the Board had extended the certification year by the length of time the Employer refused to bargain, and found that the withdrawal of recognition that occurred during the extended year was a prima facie violation of the Act. The Court acknowledged that the Board had a choice of precedent to apply, and rejected the Employer’s argument that the Board was required to apply the taint factors of Master Slack Corp., 271 NLRB 78 (1984), to find the withdrawal unlawful. The Court noted that the remedial approach in Master Slack has a different purpose, while Whisper Soft and New Madrid are “directly on point.” Finally, the Court held that the Board acted within its remedial discretion in ordering the certification-year extension in this case, which it explained is the “standard remedy” when an employer refuses to bargain for a significant part of the certification year.
The Court’s opinion is here.
Hospital Menonita de Guayama, Inc., Board Case No. 12-CA-214830 (reported at 371 NLRB No. 108) (D.C. Cir. decided February 27, 2024).
In a published opinion, the Court enforced the Board’s order that issued against this Hospital in Guayama, Puerto Rico for unfair labor practices committed after it purchased Hospital San Lucas and offered employment to all employees in five bargaining units represented by Unidad Laboral de Enfermeras (OS) y Empleados de la Salud. In doing so, the Court rejected the Hospital’s challenge to the Board’s successor-bar rule, upheld the Board’s unfair-labor-practice findings, and found the remedies the Board ordered to be within its remedial discretion.
The Board (Chairman McFerran and Member Wilcox; Member Ring, dissenting in part) found that the Hospital, an undisputed successor, violated Section 8(a)(5) and (1) in numerous ways. The Board found that the Hospital conditioned the scheduling of bargaining sessions on first receiving written proposals from the Union, delayed submitting its own proposals, and unilaterally granted bonuses. Thereafter, the Board found, the Hospital unlawfully withdrew recognition from each of the five units before any bargaining sessions had taken place, failed to respond to the Union’s request for information, and made additional unilateral changes. Among other remedies, the Board ordered the Hospital to bargain in good faith, adhere to a bargaining schedule, comply with reporting requirements, upon request rescind the unilateral changes, and furnish the requested information to the Union.
Before the Board, the Hospital’s sole defense to its withdrawals of recognition was that it should have been permitted to challenge the Union’s majority status based on its belief that a majority of employees no longer supported the Union. It argued that the Board should overrule UGL-UNICCO Service Co., 357 NLRB 801 (2011), which held that a union enjoys an irrebuttable presumption of majority status for a reasonable period of time following successorship. Instead, the Hospital argued that the Board should return to the prior rule of MV Transportation, 337 NLRB 770 (2002), under which an incumbent union in a successorship relationship is entitled only to a rebuttable presumption of majority support. The Board declined, and applied UGL-UNICCO to find the Hospital’s withdrawals of recognition unlawful.
On review, the Court held that the Board properly adhered to UGL-UNICCO, its established precedent, in reaching its withdrawal-of-recognition findings, and rejected the Hospital’s suggestion that the case was a fragile precedent because it had resulted from a change in the Board’s policy regarding the successor bar 13 years earlier. The Court noted it is well settled that “[a]gencies are free to change their existing policies as long as they provide a reasoned explanation for the change,” Encino Motorcars, LLC v. Navarro, 579 U.S. 211 (2016), and that they “do not establish rules of conduct to last forever; they are supposed, within the limits of the law and of fair and prudent administration, to adapt their rules and practices to the Nation’s needs in a volatile, changing economy,” American Trucking Ass’ns v. Atchison, Topeka & Santa Fe Railway Co., 387 U.S. 397 (1967). In that vein, the Court recognized that the Supreme Court has “explicitly blessed the NLRB’s refusal to stand by decisions that no longer serve appropriate policy ends,” referencing NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), in which the Supreme Court explained: “To hold that the Board’s earlier decisions froze the development of . . . the national labor law would misconceive the nature of administrative decisionmaking.”
Here, the Court held, there is no question that, in UGL-UNICCO, the Board permissibly changed its policy by acknowledging that it was overruling existing precedent and by providing a sound explanation for its decision. Therefore, the Court applied its “normal deference” to reasoned Board policy choices, and, on the record evidence, concluded that the case “fell easily within the compass of the successor bar rule.” Lastly, the Court held that the Hospital’s remaining contentions were without merit because substantial evidence supported the challenged Board findings, or because the contentions were barred from review under Section 10(e) of the Act.
The Court’s opinion is here.
Coreslab Structures (Tulsa) Inc., Board Case No. 14-CA-248354 (reported at 372 NLRB No. 31) (10th Cir. decided February 28, 2024).
In a published opinion, the Court remanded after granting, in part, the petition for review of the Board’s order that issued against this manufacturer of concrete bridge beams and slabs at its facility in Tulsa, Oklahoma, where its production and maintenance employees have been represented by the International Union of Operating Engineers Local 627 since 2004. This case arose from events surrounding the parties’ bargaining for a successor contract in 2019.
The Board (Chairman McFerran and Member Prouty; Member Ring, dissenting in part) found that prior to the contract’s expiration the Employer violated Section 8(a)(5) and (1) by unilaterally modifying the parties’ agreement when it failed to pay contractually required pension contributions. After contract expiration, the Board found, the Employer further violated its bargaining duty by unilaterally changing its profit-sharing payments by providing them only to non-union members, ceased all pension contributions, failed to provide requested information, and unlawfully withdrew recognition from the Union. Among other findings, the Board found that the Employer violated Section 8(a)(3) and (1) by discriminatorily ceasing payment of pension contributions and making profit-sharing payments based on union membership.
Among other remedies, the Board’s order required the Employer to make all delinquent payments to the pension fund for employees who were excluded from such payments because of their non-union member status, and also on behalf of all employees after it had ceased making all pension contributions. The order also required the Employer to make employees whole who were excluded from the profit-sharing plan because of their union-member status, and, among other unilateral changes, cease excluding union members from the profit-sharing plan.
On review, the Court upheld the Board’s unfair-labor-practice findings as a product of reasoned decisionmaking and discerned no reason to disturb them. While the Court also upheld the bulk of the Board’s remedies, it took issue with two. First, the Court found that ordering the Employer to provide full back-pension contributions, and full back-profit-sharing payments, without offset for the compensation already provided to employees, were remedies not sufficiently tailored to the actual harms the employees had suffered. Second, the Court took issue with requiring the Employer to retain the profit-sharing plan, stating that whether to continue it is “a decision for the parties to make during the bargaining process the Act protects.” Accordingly, the Court remanded the case to the Board for further proceedings consistent with its opinion.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Lancaster Coffee Co. & Café LLC (03-CA-306479; JD-11-24) Buffalo, NY. Administrative Law Judge Michael A. Rosas issued his decision on February 26, 2024. Charge filed by an individual.
Starbucks Corporation (19-CA-296356, et al.; JD(SF)-09-24) Everett, WA. Administrative Law Judge Ariel L. Sotolongo issued his decision on February 28, 2024. Charges filed by Workers United Labor Union International a/w Service Employees International Union.
Starbucks Corporation (12-CA-308848 and 12-CA-308905; JD-12-24) Tallahassee, FL. Administrative Law Judge Arthur J. Amchan issued his decision on February 29, 2024. Charges filed by Workers United, Southern Regional Joint Board a/w Service Employees International Union.
Starbucks Corporation (10-CA-305149; JD-13-24) Birmingham, AL. Administrative Law Judge G. Rebekah Ramirez issued her decision on February 29, 2024. Charge filed by Workers United, Southern Regional Joint Board.
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