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