Summary of NLRB Decisions for Week of August 19 - 23, 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 Corporation (10-CA-300921 and 10-CA-302699; 373 NLRB No. 87) Andersen, SC, August 20, 2024.
The Board (Chairman McFerran and Member Wilcox; Member Kaplan, dissenting) denied the Respondent’s Request for Special Permission to Appeal the Administrative Law Judge’s ruling granting the General Counsel’s request to present just and proper evidence during the administrative hearing. The Board found that the Respondent failed to comply with the promptness requirement set forth in Section 102.26 of the Board’s Rules and Regulations. Dissenting, Member Kaplan noted that there was no pending proceeding in which that evidence would have been relevant and, in these circumstances, would have granted the Respondent’s Request for Special Permission to Appeal and granted the appeal on the merits.
Charges filed by Workers United, Southern Regional Joint Board a/k/a Workers United a/w SEIU. Chairman McFerran and Members Kaplan and Wilcox participated.
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SFR, Inc. d/b/a Parkside Café (10-CA-268413; 373 NLRB No. 84) Birmingham, AL, August 21, 2024.
The Board adopted the Administrative Law Judge’s dismissal of allegations that the Respondent violated 8(a)(1) by threatening to discharge and by constructively discharging employees because they participated in Black Lives Matter (BLM) protests. Specifically, the Board agreed with the judge that the employees’ participation in BLM protests was not shown to be for mutual aid or protection in the context of the facts of this case and under extant law. Concurring, Member Wilcox observed that the judge’s articulation of the relevant standard was unduly narrow: as the Board has explained, an employee’s concerted actions are protected by Section 7 so long as an objective is protected, and the fact that the employee’s actions may have other objectives, or even that those objectives may predominate, is immaterial.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on March 21, 2022. Members Kaplan, Prouty, and Wilcox participated.
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Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras (12-CA-284984; 373 NLRB No. 89) San Juan, PR, August 22, 2024.
The Board (Chairman McFerran and Members Prouty and Wilcox; Member Kaplan, dissenting) granted the General Counsel’s Request for Special Permission to Appeal the Administrative Law Judge’s order approving a consent order and granted the appeal on the merits. In doing so, the majority ended the practice of accepting consent orders in all pending and future cases, reasoning that the Board’s Rules and Regulations did not authorize consent orders and the practice of approving consent orders over the opposition of the General Counsel and the charging party created administrative challenges, interfered with the General Counsel’s statutory prosecutorial authority, and failed to effectuate the policies of the Act. As a result, the majority overruled UPMC and its subsidiary, UPMC Presbyterian Shadyside, 365 NLRB 1418 (2017) (UPMC). The majority set aside the consent order and remanded to the judge for further action.
Dissenting, Member Kaplan would have denied the General Counsel’s Request for Special Permission to Appeal because the consent settlement agreement was reasonable under the current standard of UPMC and Independent Stave, 287 NLRB 740 (1987). In his view the majority’s position is not supported by the Act, the Board’s Rules and Regulations, or longstanding practice, and will not conserve agency resources.
Charge filed by Unidad Laboral de Enfermeras(os) y Empleados de la Salud. Chairman McFerran and Members Kaplan, Prouty, and Wilcox participated.
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Intertape Polymer Corp. (07-CA-291784; 373 NLRB No. 82) Detroit, MI, August 23, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by maintaining certain unlawful work rules prohibiting unauthorized posting and distribution and loitering/off-duty access but reversed the judge’s conclusion that a rule prohibiting unauthorized use of the company telephone was unlawful. In so doing, the Board relied on Board precedent predating the Board’s decisions in Boeing Co., 365 NLRB No. 154 (2017) and Stericycle, Inc., 372 NLRB No. 113 (2023), which overruled Boeing and adopted a modified version of the Board’s prior framework for evaluating the lawfulness of work rules set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). The Board remanded several other alleged unlawful work rules because those rules implicated Stericycle, for further consideration consistent with Stericycle. Finally, the Board reversed the judge’s deferral of Section 8(a)(3) allegations regarding the alleged unlawful discipline and discharge of an employee for violating the Respondent’s no unauthorized posting and distribution rule to arbitration and remanded those allegations to the judge along with a Section 8(a)(1) allegation involving removal of one of the employee’s postings, which the Board found was inextricably intertwined with the Section 8(a)(3) allegations.
Charge filed by an individual. Administrative Law Judge Arthur J. Amchan issued his decision on February 17, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Sofidel America Corp. (09-RC-345188) Circleville, OH, August 23, 2024. The Board denied the Employer’s Request for Review of the Regional Director’s preclusion decision as it raised no substantial issues warranting review. The Board also denied the Employer’s request for extraordinary relief as moot. Petitioner—Teamsters Local No. 413. Chairman McFerran and Members Kaplan and Wilcox participated.
C Cases
Hudson Institute of Process Research Incorporated, f/k/a Hudson, a Professional Corporation and HIPR Pacsoft Technologies, Inc.; Pacston; and Corporate Immigration Partners, P.C., a Joint and/or Single Employer (06-CA-329753) Pittsburgh, PA, August 20, 2024. The Board denied the Employer’s Petition to Revoke an investigative subpoena duces tecum, finding 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 United Electrical, Radio and Machine Workers of America. Chairman McFerran and Members Kaplan and Wilcox participated.
Starbucks Corporation (12-CA-321037) Jacksonville, FL, August 21, 2024. The Board denied as moot the Respondent’s Motion to Dismiss Dress Code Maintenance Claim as the intervening amended complaint, which superseded the original, no longer alleges such claim as an independent violation of the Act. Charge filed by Workers United, Southern Regional Joint Board. Members Kaplan, Prouty, and Wilcox participated.
Prinkipas LLC, d/b/a Lola Taverna (02-CA-311240) New York, NY, August 22, 2024. No exceptions having been filed to the May 2, 2024 decision of Administrative Law Judge Benjamin W. Green’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.
MMC UWS, Inc. and Harlem Baking Co., Inc., a single employer d/b/a Make My Cake (02-CA-290095) New York, NY, August 23, 2024. No exceptions having been filed to the July12, 2024 decision of Administrative Law Judge Lauren Esposito’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
Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, Board Case No. 13-CA-209951 (reported at 369 NLRB No. 56) (7th Cir. decided August 20, 2024).
In an unpublished judgment, the Court enforced the Board’s order that issued against this automotive dealership in Libertyville, Illinois, where its service technicians are represented by Automobile Mechanics Local 701, International Association of Machinists and Aerospace Workers, AFL-CIO. After the Union prevailed in a representation election in 2016, the parties began negotiations for a first contract, which stalled the next year, and the Union went on strike in support of its bargaining positions. While the strike was ongoing, the parties completed negotiations and agreed to the terms of a collective-bargaining agreement. The employees ratified the contract and the strikers submitted unconditional offers to return to work. Napleton then refused to sign the contract and refused to reinstate the strikers or place them on a preferential hiring list. And after the strike had converted to an unfair-labor-practice strike, Napleton refused to immediately rehire strikers who made unconditional offers to return to work. On those facts, the Board (then-Chairman Ring and Members Kaplan and Emanuel) found that Napleton violated Section 8(a)(5) and (1) by refusing to execute the agreement. The Board also found that Napleton violated Section 8(a)(3) and (1) by refusing to place the economic strikers on a preferential hiring list and to reinstate them before hiring other employees, and by refusing to immediately reinstate the unfair-labor-practice strikers who made unconditional offers to return to work.
Before the Court, Napleton did not contest the Board’s unfair-labor-practice findings, arguing instead that the enforcement proceeding was moot because it had substantially complied with the Board’s order. Rejecting that contention, the Court explained that “asserted compliance with the Board’s remedial orders, even if true, does not render an enforcement proceeding moot,” citing NLRB v. Raytheon Co., 398 U.S. 25 (1970), because “the cease-and-desist order imposes a ‘continuing obligation’ to refrain from its unfair labor practices,” quoting NLRB v. Mexia Textile Mills, 339 U.S. 563 (1950). Otherwise, the Court explained, “future violations would require the Board to begin proceedings from scratch with a new complaint and its past ‘orders would have no force at all,’” quoting NLRB v. P*I*E Nationwide, Inc., 894 F.2d 887 (7th Cir. 1990). Accordingly, the Court enforced the Board’s order in full.
The Court’s judgment is here.
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Administrative Law Judge Decisions
Patrick Aluminum, Inc., d/b/a Altec Aluminum Technologies (09-CA-300333; JD-49-24) Cincinnati, OH. Administrative Law Judge Lisa Friedheim-Weis issued her decision on August 21, 2024. Charge filed by an individual.
American Civil Liberties Union, Inc. (05-CA-300367 and 05-CA-302762; JD-48-24) Washington, DC, August 21, 2024. Supplemental Errata to decision issued August 7, 2024. Supplemental Errata Amended Decision.
MVM, Inc. (16-CA-288823, et al.; JD(SF)-25-24) San Antonio, TX. Administrative Law Judge Jeffrey D. Wedekind issued his decision on August 23, 2024. Charges filed by International Union, Security, Police and Fire Professionals of America (SPFPA).
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