Summary of NLRB Decisions for Week of August 12 - 16, 2024
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 Corp. (02-CA-303077 and 02-CA-304431; 373 NLRB No. 83) New York, NY, August 14, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) by terminating an employee for engaging in union activities. Reversing the judge, the Board also found that the Respondent violated Section 8(a)(5) and (1) by failing to respond to the Union’s request for information. Finally, the Board severed for further consideration the remaining Section 8(a)(5) and (1) allegations, which the judge dismissed, including whether the Respondent unlawfully failed to engage in decisional and effects bargaining over the termination of a bargaining unit employee. In doing so, the Board stated that it will consider the General Counsel and Charging Party’s arguments that it should overrule 800 River Road Operating Co., LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020).
Charges filed by Workers United. Administrative Law Judge Benjamin W. Green issued his decision on July 24, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
***
Portillo’s Hot Dogs, LLC (13-RC-313847; 373 NLRB No. 86) Addison, IL, August 16, 2024.
The Board denied the Petitioner’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. In denying review, the Board declined to rely on Patient Care, 360 NLRB 637 (2014) or Polymers, Inc., 174 NLRB 282 (1968) as they are inapposite because they concern Board agent conduct during an election. The Board found it unnecessary to pass on whether the Employer failed to comply with the Board’s service requirements by serving its Request for Review on the Petitioner via its proprietary file system. In denying review, Member Kaplan stated that he would consider, in a future appropriate case, an exception to the critical-period requirement for party’s offer of material benefits contingent on voting for/against the union.
Petitioner—International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO. Members Kaplan, Prouty, and Wilcox participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
American Medical Response, Inc. (16-RC-338835) Temple, TX, August 13, 2024. The Board granted review of the Regional Director’s blocking determination and reversed the Regional Director, finding that the Regional Director’s decision to hold the petition in abeyance was not countenanced by the Board’s extant blocking-charge policies or the Board’s Casehandling Manual. Petitioner—Communications Workers of America, AFL-CIO. Members Kaplan, Prouty, and Wilcox participated.
International Paper Company, Inc. (21-RC-328076) Compton, CA, August 14, 2024. The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s letter dismissing the petition as it raised no substantial issues warranting review. Petitioner— Chauffeurs, Sales Drivers and Helpers Union, Local 572, International Brotherhood of Teamsters. Intervenor—Printing, Packaging, & Production Workers Union of North America, District Council 2, and its affiliated Local 388-M. Chairman McFerran and Members Kaplan and Wilcox participated.
Starbucks Corporation (03-RD-335500) Albany, NY, August 16, 2024. The Board (Members Prouty and 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. Members Kaplan, Prouty, and Wilcox participated.
Starbucks Corporation (03-RD-333238) Amherst, NY, August 16, 2024. The Board (Members Prouty and 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. Members Kaplan, Prouty, and Wilcox participated.
C Cases
No Unpublished C Cases Issued.
***
Appellate Court Decisions
Rieth-Riley Construction Co., Inc., Board Case No. 07-CA-261954 (reported at 372 NLRB No. 142) (6th Cir. Aug. 14, 2024).
In a published opinion, the Court enforced the Board’s order that issued against this highway construction contractor with several facilities in Michigan where its operating engineers are represented by Local 324, International Union of Operating Engineers. In doing so, the Court joined the Fifth and Ninth Circuits in holding that the Board’s General Counsel was removable at will, and rejected Rieth-Riley’s contention that the President’s removal of former General Counsel Robb was unlawful. See Exela Enterprise Solutions, Inc. v. NLRB, 32 F.4th 436 (5th Cir. 2022); NLRB v. Aakash, Inc., 58 F.4th 1099 (9th Cir. 2023).
The Board (Chairman McFerran and Members Kaplan and Prouty) found that, in the course of bargaining for a successor agreement, Rieth-Riley violated Section 8(a)(5) and (1) by refusing to provide the Union with information concerning bargaining unit employees’ terms and conditions of employment and the percentage of subcontracted work covered by the expired agreement. The Board also found that the Union, which went on strike in support of its contract positions, violated Section 8(b)(1)(A) when a striking employee assaulted a non-striking truck driver. Further, the Board denied Rieth-Riley’s request to “evaluate whether the Union’s conduct constituted any unpled violations” of the Act.
On review, the Court upheld the Board’s finding that Rieth-Riley unlawfully refused to provide the Union with the information on the unit employees’ terms and conditions, finding the information was presumptively relevant and that the Union needed it in order to draft a wage proposal. The Court rejected Rieth-Riley’s defense that the request contained an ambiguous term, explaining that once the Union had clarified the term’s definition, “Rieth-Riley was, at minimum, obligated to provide the presumptively relevant information to the Union within the boundaries of that definition.” Regarding information requested on subcontracting work, the Court noted that although it was not presumptively relevant because it pertained to non-unit employees, it was relevant to the Union’s ability to fulfill its bargaining duties because subcontracting was at issue in the parties’ negotiations. The Court rejected Rieth-Riley’s contentions that the subcontracting information was confidential and that it otherwise had no duty to provide it because the parties had not bargained for months.
Lastly, the Court recognized the settled principles that the General Counsel has the final authority regarding the filing, investigation, prosecution, or withdrawal of unfair-labor-practice complaints. Therefore, contrary to Rieth-Riley’s contention, the Court held that the decision not to prosecute certain allegations was within the Acting General Counsel’s prosecutorial discretion, and that “evidence without a supporting allegation cannot serve as the basis of a determination of an unfair labor practice.” The Court also rejected Rieth-Riley’s argument that the Board erred in finding that any additional violations would have been unnecessary because, as the Board had found, “the remedial notice regarding the assault violation was sufficient to apprise picketers of their other unlawful conduct.”
The Court’s opinion is here.
***
Administrative Law Judge Decisions
TransPerfect Remote Interpreting, Inc. (28-CA-297272; JD(SF)-24-24) Phoenix, AZ. Administrative Law Judge Robert A. Ringler issued his decision on August 13, 2024. Charge filed by an individual.
BJ’s Wholesale Club, Inc. (29-CA-317035 and 29-RC-314143; JD(NY)-20-24) Brooklyn, NY. Administrative Law Judge Michael P. Silverstein issued his decision on August 15, 2024. Charge and Petition filed by United Food and Commercial Workers Union, Local No. 342.
American Civil Liberties Union, Inc. (05-CA-300367 and 05-CA-302762; JD-48-24) Washington, DC, August 16, 2024. Supplemental Errata to decision issued August 7, 2024. Supplemental Errata Amended Decision.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.