Summary of NLRB Decisions for Week of April 18 - 22, 2022
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
J.G. Kern Enterprises, Inc. (07-CA-231802, et al.; 371 NLRB No. 91) Sterling Heights, MI, April 20, 2022.
The Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by: (1) delaying bargaining for a period of almost three months at the start of the certification year, (2) refusing to furnish requested employer cost information regarding the existing benefit plans for unit employees, and (3) notifying the Union that it would not consider any proposal for a union-administered benefit plan and would stick with its present benefit plan. A Board majority (Chairman McFerran and Member Wilcox) also adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union, but did not rely on the judge’s reasoning. Unlike the judge, who had applied the Master Slack analytical framework, the Board majority found that the Respondent was not permitted to withdraw recognition when it did, regardless of whether the Union retained majority support and regardless of whether employee disaffection from the Union was caused by the Respondent’s unfair labor practices, because the withdrawal of recognition occurred during an insulated period when a union’s majority status may not be challenged: the extended certification year made necessary by the Respondent’s unlawful delay in bargaining following Board certification, as well as its other bargaining violations. Dissenting, Member Ring concluded that Master Slack was the appropriate analysis, and that the General Counsel had not established specific proof of a causal relationship between the Respondent’s unfair labor practices and the disaffection petition. Accordingly, Member Ring would have severed the withdrawal-of-recognition allegation and remanded it to the judge to determine whether the signatures on the disaffection petition established that the Union had actually lost majority status.
Charges filed by Local 228, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) AFL-CIO. Administrative Law Judge Paul Bogas issued his decision on October 6, 2020. Chairman McFerran and Members Ring and Wilcox participated.
Collier County Education Association, Inc. d/b/a Collier County Education Association (12-CA-283928; 371 NLRB No. 92) Naples, FL, April 20, 2022.
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 unit-clarification proceeding, in which the Board concluded that there was insufficient evidence to show that the Respondent’s executive director was a statutory supervisor. The Board found that the Respondent violated Section 8(a)(5), (1), and (d) by removing the executive director position from the bargaining unit without the Union’s consent and failing and refusing to recognize the Union as the exclusive collective-bargaining representative of the executive director position.
Charge filed by Collier Staff Organization, a/w Florida Staff Organization. Chairman McFerran and Members Kaplan and Ring participated.
GHG Management LLC d/b/a Windy City Cannabis (13-RC-271360; 371 NLRB No. 93) Chicago, IL, April 21, 2022.
The Board granted the Employer’s Request for Review of the Acting Regional Director’s Decision and Certification of Representative as it raised substantial issues warranting review. On review, the Board affirmed the Acting Regional Director’s overruling of the objection, finding that the Board agent’s conduct had not raised a reasonable doubt as to the outcome of the election.
Petitioner—United Food and Commercial Workers Local 881. Members Kaplan, Wilcox, and Prouty participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Starbucks Corporation (13-RC-288995) La Grange, IL, April 19, 2022. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner—Chicago and Midwest Regional Joint Board, Workers United/Service Employees International Union (SEIU). Members Kaplan, Wilcox, and Prouty participated.
Starbucks Corporation (22-RC-288780) Hopewell, NJ, April 19, 2022. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner—Workers United. Members Kaplan, Wilcox, and Prouty participated.
Maple-Drake Real Estate LLC, d/b/a Notting Hill of West Bloomfield (07-CA-282548, et al.) West Bloomfield, MI, April 18, 2022. The Board granted Maple-Drake Real Estate LLC, d/b/a Notting Hill of West Bloomfield’s Request for Special Permission to Appeal the Deputy Chief Administrative Law Judge’s order, but denied the appeal on the merits. The Board found that Maple-Drake failed to show that the judge abused his discretion in denying its motion to sever Case 07-CA-282548 from Cases 07-CG-284431 and 07-RD-282049. Charges filed by an individual and SEIU Healthcare of Michigan. Members Kaplan, Wilcox, and Prouty participated.
Big Green (27-CA-283572) Boulder, CO, April 19, 2022. The Board denied the Employer’s Petition to Revoke two investigative subpoenas duces tecum, finding that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoenas. Charge filed by Denver Newspaper Guild-Communications Workers of America, Local 37074, AFL-CIO. Members Kaplan, Wilcox, and Prouty participated.
ArtClass Content Production (31-CA-286481) Burbank, CA, April 19, 2022. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum as untimely. Additionally, the Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by Motion Picture Studio Grips, Crafts Service and First Aid Local 80. Members Kaplan, Wilcox, and Prouty participated.
Rev-A-Shelf Company, LLC (09-CA-270793) Louisville, KY, April 21, 2022. No exceptions having been filed to the March 9, 2022 decision of Administrative Law Judge Keltner W. Locke’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 General Drivers, Warehousemen and Helpers, Local Union No. 89, a/w the International Brotherhood of Teamsters.
Appellate Court Decisions
McDonald's USA, LLC, a joint employer, et al., Board Case No. 02-CA-093893 (reported at 368 NLRB No. 134) (D.C. Cir. decided April 22, 2022).
In a published opinion, the Court dismissed the petition filed by two unions, the Fast Food Workers Committee and Service Employees International Union, for review of the Board’s decision to accept settlement agreements entered into by the former General Counsel, McDonald’s USA, LLC, and nearly 30 McDonald’s franchisees. The settlement resolved complaints that issued in 2014 alleging, among other things, that the entities were a joint employer. On review, the Court held that the Board reasonably assessed the factors of Independent Stave Co., 287 NLRB 740 (1987), and acted within its discretion in approving the settlements. Additionally, the Court determined that the issue of whether Member Emanuel should have been recused from the case was not properly before the Court.
The Court’s opinion is here.
Exela Enterprise Solutions, Inc., Board Case. No. 22-CA-272676 (reported at 370 NLRB No. 120) (5th Cir. decided April 22, 2022).
A unanimous three-judge panel of the Fifth Circuit enforced the Board’s bargaining order in this test-of-certification case. In doing so, the Court rejected the Employer’s argument that the President’s removal of former NLRB General Counsel Peter Robb was improper. The Court held that the President had the authority to remove and replace the NLRB’s General Counsel and thus, the NLRB’s complaint, issued by Acting General Counsel Peter Sung Ohr, was valid.
In the decision authored by Judge Clement, and joined by Judges Stewart and Elrod, the Court explained that the President’s power to remove derives from Article II of the Constitution and that no provision of the Act curbed that power with respect to the NLRB General Counsel. This is in stark contrast to Congress’s clear and unequivocal provision of removal protection for NLRB Members.
The Court also rejected the notion that the four-year term specified in Section 3(d) of the Act indicated that an NLRB general counsel could not be removed before the end of the statutory term. Citing Myers v. United States, 272 U.S. 52 (1926), the Court noted that the President’s power to remove derives from Article II of the Constitution, rather than from Congress. Further, the Court explained that the four-year term that Congress specified for the General Counsel in Section 3(d) sets the outside limit of service time and does not grant immunity from removal, citing Parsons v. United States, 167 U.S. 324 (1897). Therefore, the Court concluded, “President Biden lawfully removed former-General Counsel Robb without cause,” and “[t]he prosecution brought by then-Acting General Counsel Ohr against Exela was proper.”
On the merits, the Court held that the Board did not abuse its discretion in overruling the Employer’s objections to the March 2019 election, in which the Union had prevailed in an 8-6 vote. Rejecting the Employer’s allegation that a union member’s conversation with employees within 24 hours of the election had violated the Board’s Peerless Plywood rule, the Court agreed with the Board’s determination that the speaker was not an agent of the Union. Additionally, the Court rejected the Employer’s improper-electioneering objection, explaining that the mere presence of two union representatives far outside of the entrance to the polling place was insufficient to warrant setting aside the election.
The Court’s opinion is here.
Noah's Ark Processors, LLC d/b/a WR Reserve, Board Case No. 14-CA-217400 (reported at 370 NLRB No. 74) (8th Cir. decided April 22, 2022).
In a published opinion, the Court enforced in full the Board’s order that issued against this meat-packing plant in in Hastings, Nebraska, for a litany of unfair labor practices committed after United Food and Commercial Workers Union Local No. 293, requested bargaining for a successor contract for a unit of 250 plant employees. The consolidated complaint alleged that the Employer committed numerous violations of Section 8(a)(1) and (5). While the case was pending before an Administrative Law Judge, the Regional Director filed, in the District Court for the District of Nebraska, a petition for Section 10(j) injunctive relief seeking to restore the status quo ante pending the Board’s resolution of the case. The District Court granted the petition, stating that an injunction was necessary to address the Employer’s “blatant failure to engage in good-faith collective bargaining, and refusal as a practical matter to recognize the Union at all.” Perez v. Noah’s Ark Processors, LLC, 2019 WL 2076793 (D. Neb. May 10, 2019).
After the injunction issued, the Administrative Law Judge issued a decision finding, among other things, that the Employer violated Section 8(a)(5) and (1) during contract bargaining by refusing to bargain in good faith, refusing to furnish the Union with requested information, unlawfully declaring impasse and implementing its final offer, and by insisting to impasse and implementing a permissive subject of bargaining when it removed maintenance employees from the unit. The judge further found that the Employer violated Section 8(a)(5) and (1) away from the bargaining table by refusing to deduct and remit union dues, bypassing the Union and dealing directly with employees, unilaterally granting wage increases and implementing a new wage system, and changing employees’ hourly wage rates contrary to the parties’ collective-bargaining agreement and without the Union’s consent. Additionally, the judge found that the Employer committed numerous acts of coercion in violation of Section 8(a)(1), several of which stemmed from the finding that employees engaged in a protected work stoppage in March 2018 to protest wage disparities. That unlawful conduct included threatening employees with discharge, threatening to call the police, and discharging 10 employees for their participation in the work stoppage.
On review, the Board (Members Kaplan and Ring; Member Emanuel, dissenting in part) agreed with those findings by the Administrative Law Judge, and noted that the Employer failed to except to all but two of the Section 8(a)(5) and (1) findings—failure to bargain in good faith over the successor agreement and unlawful implementation of its final offer. With respect to the Section 8(a)(1) violations, the Board agreed with the judge that the employees’ work stoppage was protected and that the Employer unlawfully discharged and threatened employees in response to their protected activity. Among other remedies, the Board ordered the 10 employees reinstated, a notice reading, reimbursement of the Union’s dues and negotiating expenses, and the good-faith bargaining requirements that the Employer engage in contract negotiations for a minimum of 24 hours per month, with each session lasting at least six hours, or another schedule agreed to by the Union, and to submit written progress reports every 30 days to the Board.
Before the Court, the Employer contested only a few of the Board’s findings, and the Court summarily affirmed the bulk of the unfair labor practices, many of which were barred from review by Section 10(e). Regarding the unauthorized work stoppage, the Court, after undertaking a comprehensive assessment of the relevant law, agreed with the Board’s determination that the 10 employees had engaged in protected activity and therefore had been unlawfully discharged. On the issues of impasse and implementation of unilateral terms, the Court held that substantial evidence clearly supported the Board’s findings that the Employer’s declaration of impasse was invalid, and therefore its resulting unilateral changes were unlawful. Finally, the Court rejected the Employer’s belated challenges to the Board’s notice reading and reimbursement of negotiating expenses remedies. The Court held that the Board did not exceed its remedial authority in ordering those remedies, and that nonetheless the challenges were barred by Section 10(e) for not having been raised to the Board.
The Court’s judgment is here.
Administrative Law Judge Decisions
List Industries, Inc. (13-CA-278248, et al.; JD-22-22) Munster, IN. Administrative Law Judge Sharon Levinson Steckler issued her decision on April 18, 2022. Charges filed by International Brotherhood of Teamsters Local Union No. 142.
Amazon.com Services LLC (29-CA-261755; JD(NY)-05-22) Staten Island, NY. Administrative Law Judge Benjamin W. Green issued his decision on April 18, 2022. Charge filed by an individual.
List Industries, Inc. (13-CA-278248, et al.; JD-22-22) Munster, IN, April 19, 2022. Errata to Administrative Law Judge Sharon Levinson Steckler’s decision issued on April 18, 2022. Errata Amended Decision.
Riverside Nursing and Rehabilitation Center (22-CA-269463, et al.; JD(NY)-06-22) Newark, NJ. Administrative Law Judge Kenneth W. Chu issued his decision on April 22, 2022. Charges filed by 1199 SEIU United Healthcare Workers East.
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