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National Labor Relations Board

Summary of NLRB Decisions for Week of August 26 - 30, 2024

09/04/2024 03:06 PM EDT

Summary of NLRB Decisions for Week of August 26 - 30, 2024 mmeyers Wed, 09/04/2024 - 15:06

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

Starbucks Corporation  (18-CA-299560; 373 NLRB No. 90)  Minneapolis, MN, August 28, 2024.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) when, after employees filed an election petition, the Respondent coercively interrogated an employee by text message and made several threatening statements.  Additionally, the Board adopted the judge’s dismissal of an allegation that the Respondent violated Section 8(a)(1) by expressing its views about unionization during a mandatory meeting.

Charge filed by Chicago & Midwest Regional Joint Board, Workers United/SEIU.  Administrative Law Judge Andrew S. Gollin issued his decision on April 6, 2023.  Chairman McFerran and Members Kaplan and Prouty participated.

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Amazon.com Services LLC  (29-RC-288020; 373 NLRB No. 92)  Staten Island, NY, August 29, 2024.

The Board (Chairman McFerran and Member Prouty; Member Kaplan, dissenting) denied the Employer’s Requests for Review of the Regional Director’s Decision and Certification of Representative and Order Denying Employer’s Motions to Reopen the Record as they raised no substantial issues warranting review.  Member Kaplan, dissenting, would have granted review and found that the Petitioner engaged in objectionable conduct that required a rerun election.

Petitioner—Amazon Labor Union.  Chairman McFerran and Members Kaplan and Prouty participated.

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Starbucks Corporation  (13-CA-300739; 373 NLRB No. 85)  Peoria, IL, August 29, 2024.

The Board affirmed the Administrative Law Judge’s dismissals of the complaint allegations that the Respondent violated Section 8(a)(3) and (1) by twice refusing an employee’s requests to transfer from one of its stores to another.

Charge filed by Chicago & Midwest Regional Joint Board, Workers United/SEIU.  Administrative Law Judge Keltner W. Locke issued his decision on September 7, 2023. Members Kaplan, Prouty, and Wilcox participated.

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Nexstar Media Inc., Authorized to Operate Television Station WROC-TV  (03-CA-332930; 373 NLRB No. 88)  Rochester, NY, August 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 National Association of Broadcast Employees & Technicians - Communications Workers of America, AFL–CIO.  Chairman McFerran and Members Prouty and Wilcox participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Starbucks Corporation  (12-RD-332171)  Jacksonville, FL, August 26, 2024.  The Board (Chairman McFerran and Member Wilcox; Member Kaplan, dissenting) denied the Employer’s and Petitioner’s Requests for Review of the Regional Director’s Decision and Order Dismissing Petition as they raised no substantial issues warranting review.  The Regional Director dismissed the decertification petition, subject to reinstatement, due to a pending unfair labor practice complaint against the Employer seeking an affirmative bargaining order and an extension of the certification year.  Member Kaplan would have granted review, reversed the Regional Director's decision to dismiss the decertification petition, and ordered an election because he believed that the Regional Director erred in relying on the refusal-to-bargain allegations in the complaint dismissing the petition.  Petitioner—an individual.  Chairman McFerran, Members Kaplan and Wilcox participated.

Coway USA, Inc.  (31-RC-300668)  Los Angeles, CA, August 29, 2024.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision on Challenges finding no substantial issues warranting review.  Petitioner—California Restaurant and Retail Workers Union.  Chairman McFerran and Members Kaplan and Wilcox participated.

C Cases

Servicios Legales de Puerto Rico, Inc.  (12-CA-301971, et al.)  San Juan, PR, August 30, 2024.  The Board denied the Respondent’s Motion to Dismiss the consolidated complaint.  The Board found that subsequent amendments to the complaint mooted some of the Respondent’s claims.  As for the remainder, the Board found that the Respondent failed to show that the underlying charge(s) are insufficient to support those challenged complaint allegations. Charges filed by Union de Abogados y Abogados de Servicios Legales and Union Independiente de Trabajadores de Servicios Legales.  Chairman McFerran and Members Kaplan and Wilcox participated.

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Appellate Court Decisions

United Parcel Service, Inc., Board Case No. 02-CA-275560 (reported at 372 NLRB No. 70) (11th Cir. decided August 30, 2024).

In an unpublished opinion, the Court enforced in part, and remanded in part, the Board’s order that issued against UPS, a transporter of packages and freight.  In doing so, the Court enforced certain requirements of the Board’s order that UPS provide requested information to the International Brotherhood of Teamsters, Local 804, but remanded for the Board to consider, in the first instance, UPS’s defensive claim that under the contract-coverage standard of MV Transportation, 368 NLRB No. 66 (2019), it had no contractual duty to provide some employee contact information.

This case involves UPS facilities in Westchester, Long Island, and New York City, where a unit that includes drivers and package handlers is represented by Local 804 under the combined terms of a national master agreement and a local supplemental agreement.  A dispute arose after Local 804 suspected that, for the approximately 10,000 seasonal employees employed during the annual peak season from October 15, 2019, through January 15, 2020, UPS was not complying with the contractual provisions governing seasonal-employee start times and wages.  Specifically, the Union suspected that rather than physically posting their start times and paying them from the time they reported to work, as the contract required, UPS was instead paying them from when their first package delivery was electronically recorded.  Because the seasonal employees were so often on the road, Local 804 requested that UPS provide their cell phone numbers and email addresses, and additionally all documents reflecting their report time.  UPS did not provide the requested information.

The Board (Chairman McFerran and Members Wilcox and Prouty) found that UPS violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with requested contact information and report times for seasonal employees.  Concerning the report-time information, the Board rejected UPS’s claims that the information did not exist and could not be provided, and that the Union had requested the information for some purpose other than its representational duties.  Regarding the Union’s request for the seasonal employees’ cell phone numbers and email addresses, the Board rejected UPS’s defenses that it was unduly burdensome to collect that information for 10,000 employees, and that the information was beyond the scope of the parties’ collective-bargaining agreement, which only required UPS to provide the Union with other types of contact information for the seasonal employees.

On review, the Court upheld the Board’s conclusion that UPS unlawfully withheld the report-time information finding it supported by substantial evidence and consistent with law.  Regarding UPS’s claim that the employee-information request was unduly burdensome, the Court agreed with the Board that UPS had not made the required showing.  However, the Court held that the Board failed to engage in reasoned decisionmaking with respect to UPS’s contract defense to the request for additional contact information.  The Court explained that “when an employer makes a contractual defense that its duty to provide information was excused by the contract, the Board first ‘must determine whether a collective bargaining agreement relieves the employer of the duty to provide information,’” quoting American Medical Response of Conn., Inc. v. NLRB, 93 F.4th 491 (D.C. Cir. 2024).  Accordingly, the Court remanded for the Board to consider that defense, and enforced those portions of the Board’s order remedying the unlawful refusal to provide the seasonal employees’ report-time information.

The Court’s decision is here.

Metro Man IV d/b/a Fountain Bleu Health and Rehabilitation Center, Inc., Board Case No. 07-CA-264407 (reported at 372 NLRB No. 37) (6th Cir. decided August 29, 2024).

In a published opinion, the Court enforced in part, and reversed in part, the Board’s order that issued against this nursing home in Livonia, Michigan, where its licensed practical nurses (LPNs), certified nursing assistants (CNAs), and other staff are represented by SEIU Healthcare Michigan.  In March 2020, residents at the facility began contracting COVID, and many of the staff, including CNAs, stopped reporting to work.  The Home responded by unilaterally implementing a $2-per-hour hazard pay while residents continued to have COVID.  Further, consistent with a federal emergency waiver of licensing requirements for nursing assistants, the Home hired “non-certified aides” to perform work normally done by the CNAs without notifying the Union.  In June, when the facility was free of COVID, the Home ended the hazard pay, again without notice to the Union, and by November, all non-certified aides had been discharged.

The Board (Members Kaplan, Wilcox, and Prouty) found that the Home’s decisions to implement hazard pay and hire the uncertified employees to perform CNA work were not unlawful because the COVID pandemic presented an extraordinary and unforeseen imminent threat to human life that required it to take immediate action.  However, the Board (Member Kaplan, dissenting) found that having made those decisions, the Home was obliged to promptly notify the Union and offer to bargain about the decisions’ effects on the unit, and that its failure to do so violated Section 8(a)(5) and (1).  Lastly, the Board (Member Kaplan, dissenting) found that the Home’s unilateral ending of the hazard pay was an independent unlawful action that required notice and bargaining.

Before the Court, the Home did not contest that it had a duty to engage in effects bargaining over its decision to hire the non-certified aides, but argued that it had done so, a contention that the Court found was contrary to the record evidence and upheld the violation.  However, with regard to a duty to bargain over the effects of ending the hazard pay, the Court disagreed with the Board and held that the decision to grant the hazard pay was temporary and limited to the period of time that COVID was present at the facility.  Therefore, in the Court’s view, the Home “was excused from its decisional-bargaining obligations when it implemented the pay raise and had none when it rescinded it because those actions constituted one decision.”

The Court’s decision is here.

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Administrative Law Judge Decisions

Methodist Hospitals  (13-CA-316990; JD-50-24)  Merrillville, IN.  Administrative Law Judge Paul Bogas issued his decision on August 27, 2024. Charge filed by an individual.

Memphis Public Employees Union, Local 1733, of the American Federation of State, County, and Municipal Employees, AFL-CIO  (15-CA-304298 and 15-CA-315523; JD-51-24)  Memphis, TN. Administrative Law Judge Keltner W. Locke issued his decision on August 27, 2024.  Charges filed by an individual.

Starbucks Corporation  (10-CA-291616, et al.; JD-52-24)  Seattle, WA.  Administrative Law Judge Kimberly Sorg-Graves issued her decision on August 28, 2024.  Charges filed by Workers United, Southern Regional Joint Board.

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Explore eCommerce eCommerce is a great way to find new customers in international markets. Our trade.gov eCommerce resource center is full of helpful information, from getting started to keeping up with trends.   Check out these updated articles to help you make the most of global opportunities. They include forecasts for the upcoming year. Learn about the European region's eCommerce B2B market. Curious what is happening with the European region's eCommerce retail market?  Make the most of Social Media channels to support a strong website presence.  News   Deadline Approaching: Grad Students Apply for CS Fellowship by 9/7 Graduate students are invited to explore a career in international trade. Apply for an opportunity to live and work abroad in Summer 2025 at a U.S. Embassy or Consulate. The Fellowship provides up to 20 eligible graduate students with up to $35K in financial assistance to increase their interest in pursuing a career in the U.S. Foreign and Commercial Service via learning and living overseas.   For more information, visit our website, the Fellowship listing on Grants.gov, or email CSFellowship@trade.gov. Export Nation Podcast: Entire "Seven Deadly Sins of Exporting" Series Available Find out the remaining exporting wisdom our Trade Specialists share in the third/final episode of the series: "The Seven Deadly Sins of Exporting". Listen at https://trade.gov/export-nation or wherever you get your podcasts.  Upcoming Webinars Export Opportunities for You around the World!   9/11 - Selling Health Supplements on Coupang - South Korea (ITA Strategic Partner) 9/13 - Taiwan Cybersecurity Series: Cybersecurity for Critical Infrastructure 9/18 - Business Opportunities in Trinidad and Tobago 9/18 - Business Opportunities in Hong Kong 9/19 - U.S. Environmental Technologies Market Intelligence Series: Brazil  9/24 - Learn the Harmonized Classification System (HS) for Exports 9/24 - Strategies for Rural Small Business Growth & Expansion 9/26 - Free Trade Agreements: Rules of Origin & Certification Upcoming Exporter Events   Export Compliance Roadshow  Understanding U.S. Government export compliance regulations and putting a proactive export compliance plan in place is critical to mitigating risk. Join us to get a solid understanding of compliance, with experts from the Bureau of Industry & Security, U.S. Customs & Border Protection, and local industry experts. Learn more and get details on the roadshow, such as these upcoming events: September 17-18 - Cleveland, OH October 16 - Chicago, IL November 13-14 - Tampa, FL December 4-5 - Charlotte, NC continuing in 2025 Discover Global Markets events are one-day business forums featuring opportunities to connect with industry leaders, schedule one-on-one meetings with U.S. commercial diplomats from select Americas markets, and network with fellow exporters. Join us at a location near you! Learn more and register.  October 8 –  Austin, TX October 10 – Buffalo, NY October 17 – Portland, OR October 22 – Columbia, SC October 24 – Omaha, NE Building Bridges to Global Markets brings export expertise to your community. Our events address issues most common to diverse businesses seeking international sales expansion. You'll get introductions to reliable contacts, accurate information, and ready-to-use resources that will place you firmly on the road to exporting success.  September 12: Rural Building Bridges at the Mississippi Delta in Greenville, MS October 29-30: National Veterans Business Matchmaking Conference in Detroit, MI

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Today, the Social Security Administration (SSA) announced progress this year to reduce customer burden by transitioning wet (physical) signature requirements to digital signatures for over 30 forms as well as removing the signature requirements altogether for 13 forms.  These actions simplify application processes for people, including removing a potential reason for claims to be sent back or denied.   For more information, please visit www.ssa.gov/news/press/releases.

PRESS RELEASE | SEPTEMBER 5, 2024 FDIC-INSURED INSTITUTIONS REPORTED NET INCOME OF $71.5 BILLION Net Income Increased From the Prior Quarter, Driven By Lower Noninterest Expense and One-Time Gains Community Bank Net Income Increased Quarter Over Quarter The Net Interest Margin Declined Slightly, Driven by the Largest Banks Domestic Deposits Decreased From the Prior Quarter Asset Quality Metrics Remained Generally Favorable, Though Charge-Offs Increased Loan Balances Increased Modestly From the Prior Quarter and a Year Ago The Deposit Insurance Fund Reserve Ratio Increased Four Basis Points to 1.21 Percent _______________________________ “The banking industry continued to show resilience in the second quarter.  Net income increased and asset quality metrics remained generally favorable.  However, the banking industry still faces significant downside risks from uncertainty in the economic outlook, market interest rates, and geopolitical events.  In addition, weakness in certain loan portfolios, particularly office properties, credit cards, and multifamily loans, continues to warrant monitoring.” — FDIC Chairman Martin J. Gruenberg _______________________________ WASHINGTON— Reports from 4,539 commercial banks and savings institutions insured by the Federal Deposit Insurance Corporation (FDIC) reported aggregate net income of $71.5 billion in second quarter 2024, an increase of $7.3 billion (11.4 percent) from the prior quarter.  A decline in noninterest expense and one-time gains on equity security transactions contributed to the quarterly increase.  These and other financial results for second quarter 2024 are included in the FDIC’s latest Quarterly Banking Profile released today. The Industry’s Net Income Increased From the Prior Quarter, Driven By Lower Noninterest Expense and One-Time Gains:  Second quarter net income for the 4,539 FDIC-insured commercial banks and savings institutions increased $7.3 billion (11.4 percent) from the prior quarter to $71.5 billion.  A decline in noninterest expense (down $3.6 billion, or 2.4 percent) along with higher noninterest income (up $1.2 billion, or 1.5 percent) and higher gains on the sale of securities (up $937 million) were the primary factors driving the increase in net income.  Higher provision expenses offset some of the increase in net income. The quarterly increase in net income was largely driven by nonrecurring items including an estimated $4 billion reduction in reported expense related to the FDIC special assessment, approximately $10 billion in gains on equity security transactions by large banks, and the sale of an institution’s insurance division that resulted in an after-tax $4.9 billion gain.[1] These increases were partially offset by several large banks selling bond portfolios at a loss and a $2.7 billion increase in provision expense. The banking industry reported an aggregate return-on-assets ratio (ROA) of 1.20 percent in second quarter 2024, up 12 basis points from first quarter 2024 but down one basis point from first quarter 2023. Community Bank Net Income Increased Quarter Over Quarter:  Quarterly net income for the 4,104 community banks insured by the FDIC was $6.4 billion in the second quarter, an increase of $72.6 million (1.1 percent) from first quarter 2024.  Higher net interest income (up $546.4 million, or 2.7 percent) and higher noninterest income (up $253.9 million, or 5.0 percent) more than offset higher noninterest expense (up $365.7 million, or 2.1 percent) and higher provision expenses (up $140.5 million, or 18.2 percent).  The community bank pretax ROA increased one basis point from last quarter to 1.14 percent. The Net Interest Margin Declined Slightly, Driven by the Largest Banks: The industry’s net interest margin (NIM) declined one basis point to 3.16 percent in the second quarter as the growth in funding costs slightly exceeded the growth in earning-asset yields.  The industry’s second quarter NIM was nine basis points below the pre-pandemic average NIM after falling below that level last quarter.[2]  The NIM increased quarter over quarter for all size groups except for the largest banks, those with assets over $250 billion, who in aggregate reported a four basis-point decline in the NIM.  The community bank NIM of 3.30 percent increased seven basis points quarter over quarter, reversing a five-quarter declining trend, but was still 33 basis points lower than the pre-pandemic average. Asset Quality Metrics Remained Generally Favorable, Though Charge-Offs Increased:  Noncurrent loans, or loans that are 90 days or more past due or in nonaccrual status, remained unchanged from the prior quarter at 0.91 percent of total loans and well below the pre-pandemic average of 1.28 percent.  Despite the stability in overall noncurrent loans, the noncurrent rate for non-owner occupied commercial real estate loans of 1.77 percent was at its highest level since third quarter 2013, driven by office portfolios at the largest banks.  However, these banks tend to have lower concentrations of such loans in relation to total assets and capital than smaller institutions, mitigating the overall risk. The industry’s net charge-off rate increased three basis points to 0.68 percent from the prior quarter and was 20 basis points higher than the year-ago quarter.  This ratio was also 20 basis points above the pre-pandemic average and remained the highest quarterly rate reported by the industry since second quarter 2013.  The credit card net charge-off rate was 4.82 percent in the second quarter, up 13 basis points quarter over quarter and the highest rate reported since third quarter 2011. Loan Balances Increased Modestly From the Prior Quarter and a Year Ago: Total loan and lease balances increased $125.8 billion (1.0 percent) from the previous quarter.  The increase was driven by higher loans to nondepository financial institutions (NDFIs) (up $76.0 billion, or 9.6 percent) and consumer loans (up $25.8 billion, or 1.2 percent). Much of the growth in NDFI lending appears to be due to reclassification from other existing loan categories.  The majority of banks (75.1 percent) reported quarterly loan growth, and all major loan categories except construction and development loans showed quarter-over-quarter growth. Total loan and lease balances increased by $244.5 billion (2.0 percent) from the prior year.  The annual increase was also led by loans to NDFIs (up $77.5 billion, or 9.8 percent), likely due to reclassifications in the second quarter, as well as credit card loans (up $77.0 billion, or 7.5 percent) and adjustable rate 1-4 family residential mortgage loans (up $69.3 billion, or 7.5 percent).  A large majority of banks (82.9 percent) reported annual loan growth. Community banks reported a 1.7 percent increase in loan and lease balances from the previous quarter and a 6.3 percent increase from the prior year.  Growth in nonfarm, nonresidential CRE loans and 1-4 family residential mortgage loans drove both the quarterly and annual increases in loan and lease balances.  Loan growth was broad based across community banks with over three quarters of such banks reporting higher loan balances from the prior quarter. Domestic Deposits Decreased From the Prior Quarter:  Domestic deposits decreased $197.7 billion (1.1 percent) from first quarter 2024, well below the pre-pandemic average second-quarter growth of 0.2 percent.  Both savings and transaction deposits declined from the prior quarter, with growth in small time deposits partially offsetting the declines.  Brokered deposits decreased for the second straight quarter, down $10.1 billion (0.8 percent) from the prior quarter.  Banks with over $250 billion in assets drove the quarterly decline in deposits. Estimated insured deposits decreased $96.0 billion (0.9 percent) and estimated uninsured domestic deposits decreased $50.4 billion (0.7 percent) during the quarter.  Banks with assets greater than $250 billion reported lower uninsured deposits in the second quarter, while banks with assets less than $250 billion reported higher uninsured deposit levels. The Deposit Insurance Fund Reserve Ratio Increased Four Basis Points to 1.21 Percent: In the second quarter, the Deposit Insurance Fund (DIF) balance increased $3.9 billion to $129.2 billion. The reserve ratio increased four basis points during the quarter to 1.21 percent. The Total Number of Insured Institutions Declined:  The total number of FDIC-insured institutions declined by 29 during the quarter to 4,539.  Three banks were sold to credit unions and 26 institutions merged with other banks during the quarter.  One bank failed in the second quarter but did not file a call report in the first quarter, and no banks opened. # # # ATTACHMENTS: Quarterly Banking Profile Home Page (includes previous reports and press conference webcast videos) Charts and Data Chairman Gruenberg’s Press Statement MEDIA CONTACT:  Julianne Breitbeil 202-340-2043 JBreitbeil@FDIC.gov FDIC: PR-76-2024 [1] Estimated losses attributable to the protection of uninsured depositors pursuant to the systemic risk determination for Silicon Valley Bank and Signature Bank, and that will be recovered through the FDIC special assessment, were $19.2 billion as of June 30, 2024, unchanged from March 31, 2024. The industry reported approximately $4 billion in additional expense for the special assessment in first quarter 2024, and no expense in the second quarter. [2] The “pre-pandemic average” refers to the period of first quarter 2015 through fourth quarter 2019 and is used consistently throughout this press release. The FDIC does not send unsolicited e-mail. If this publication has reached you in error, or if you no longer wish to receive this service, please unsubscribe. STAY CONNECTED

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