Summary of NLRB Decisions for Week of February 20 - 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
Home Depot USA, Inc. (18-CA-273796; 373 NLRB No. 25) Minneapolis, MN, February 21, 2024.
A full-Board majority (Chairman McFerran and Members Prouty and Wilcox; Member Kaplan, dissenting in part), reversing the Administrative Law Judge, found that the Respondent violated Section 8(a)(1) by requiring an employee to remove a BLM (Black Lives Matter) insignia from their work apron, constructively discharging the employee when they engaged in Section 7-protected activity by declining to remove the insignia, and applying its apron and dress code policies to prohibit the employee from displaying a BLM marking on their work apron. Further, in light of the Board’s recent decision in Stericycle, Inc., 372 NLRB No. 113 (2023), the Board severed and remanded to the judge, for further consideration under Stericycle, the allegation regarding the Respondent’s asserted direction that the employee keep a workplace investigation confidential.
Dissenting, Member Kaplan argued that the employee’s display of a BLM marking was not “concerted” for purposes of Section 7 because it was neither preceded by protected concerted activity nor fairly within the Board’s “logical outgrowth” precedent. Further, Member Kaplan asserted that, even if the employee’s BLM display was concerted, it was not for “mutual aid or protection” because a reasonable person would conclude that it concerned police violence against Black individuals rather than improving terms and conditions of employment.
Charge filed by an individual. Administrative Law Judge Paul Bogas issued his decision on June 10, 2022. Chairman McFerran and Members Kaplan, Prouty, and Wilcox participated.
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North Mountain Foothills Apartments, LLC (28-CA-286885; 373 NLRB No. 26) Phoenix, AZ, February 21, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by making several coercive statements to and then discharging an employee after learning that he shared information about his compensation with coworkers.
Charge filed by an individual. Administrative Law Judge Andrew S. Gollin issued his decision on May 30, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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Atlantic Veal and Lamb, LLC (29-CA-272677; 373 NLRB No. 19) Brooklyn, NY, February 22, 2024.
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by laying off six unit employees without providing the Union with notice and the opportunity to bargain regarding the layoffs or their effects. A Board majority (Chairman McFerran and Member Prouty) also adopted the judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to provide the Union with requested information. The majority based this finding on its conclusion that the relevance of the non-unit information requested should have been apparent to the Respondent under the circumstances. Dissenting, Member Kaplan would dismiss the failure to provide information allegation because the Union did not demonstrate the relevance of the non-bargaining unit information, nor is there a basis for the conclusion that its relevance should have been apparent to the Respondent.
Charge filed by United Food & Commercial Workers Union, Local 342. Administrative Law Judge Lauren Esposito issued her decision on February 15, 2022. Chairman McFerran and Members Kaplan and Prouty participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
West Virginia University Hospitals, Inc. (06-RC-319142) Morgantown, WV, February 20, 2024. 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. The Regional Director had concluded that the petitioned-for voting group of shuttle drivers could vote in a self-determination election whether they wish to join a unit of nonprofessional employees employed at the Employer’s acute care hospital. Petitioner— Laborers’ International Union of North America, Local 814. Members Kaplan, Prouty, and Wilcox participated.
C Cases
United States Postal Service (07-CA-300756)Grand Rapids, MI, February 20, 2024. The Board denied the General Counsel’s Request for Special Permission to Appeal the Administrative Law Judge’s ruling rejecting the General Counsel’s Exhibit No. 10 during the hearing. The denial was without prejudice to the General Counsel’s right to renew its objection before the Board on any exceptions that may be filed to the judge’s decision, if appropriate. Charge filed by American Postal Workers Union (APWU), AFL-CIO. Members Kaplan, Prouty, and Wilcox participated.
Space Exploration Technologies Corp. (31-CA-307446, et. al.) Hawthorne, CA, February 22, 2024. The Board granted the Respondent’s Request for Special Permission to Appeal the Regional Director’s January 17, 2024 order, but denied the appeal on the merits. The Board found that the Respondent failed to establish that the Regional Director abused her discretion in denying the Respondent’s motion to postpone the hearing. Charges filed by individuals. Members Kaplan, Prouty, and Wilcox participated.
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Appellate Court Decisions
Valley Hospital Medical Center Inc., Board Case No. 28-CA-213783 (reported at 371 NLRB No. 160) (9th Cir. decided February 20, 2024).
In an earlier review proceeding, the Court granted the petition for review filed by Local Joint Executive Board of Las Vegas, which challenged the Board’s dismissal of the unfair-labor-practice complaint in Valley Hospital Medical Center, 368 NLRB No. 139 (Valley Hospital I). The complaint alleged that the operator of this healthcare facility located in Las Vegas, Nevada, acted unlawfully by unilaterally ceasing to check off and remit union dues, and challenged the Board’s then-rule that permitted an employer to unilaterally cease checking off union dues after the expiration of the contract that established the check-off arrangement. The Court remanded with the instruction that the Board must “provide an adequate explanation for its approach to dues checkoff by explicitly addressing the precedents cited by the Union that appear to contradict the * * * rationale used in this case.” Local Joint Executive Board of Las Vegas v. NLRB, 840 F. App’x 134 (9th Cir. 2020).
On remand, the Board (Chairman McFerran, Members Wilcox and Prouty; Members Kaplan and Ring, dissenting) issued its decision (Valley Hospital II), which reversed its prior decision and found that the Employer violated Section 8(a)(5) and (1) as alleged. In accordance with the Court’s remand, the Board reexamined its decision in Valley Hospital I and the broader question of whether an employer violates the Act by unilaterally terminating a dues-checkoff arrangement following contract expiration. The Board determined that its decision in Valley Hospital I was mistaken, that the contrary rule described in Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), better accords with Board precedent, and that such rule represents a better interpretation of the Act. As a result, the Board overruled Valley Hospital I and applied the change in law retroactively to find that the Employer violated the Act by ceasing dues checkoff without first bargaining.
Back on review, the Court upheld the Board’s decision as rational and consistent with the Act. The Court explained that “when an agency overrules its prior decisions, it must acknowledge the change and provide a reasoned explanation” for why “the new policy is permissible under the statute,” and that “the agency believes it to be better.” Here, the Court stated, the Board acknowledged that it departed from the precedent of Bethlehem Steel, 136 NLRB 1500 (1962), and Valley Hospital I and believed that it was adopting a better interpretation of the Act, having “weighed policy considerations and compared dues checkoff to other exceptions to the unilateral-change doctrine.” Further, the Court rejected the Employer’s contention that the Board on remand had acted beyond the Court’s mandate.
The Court’s decision is here.
Valley Health System LLC, et al., Board Case No. 28-CA-184993 (reported at 372 NLRB No. 33) (9th Cir. decided February 20, 2024).
In an earlier review proceeding, the Court granted the petition for review filed by the Service Employees International Union, Local 1107, which challenged the Board’s dismissal of a complaint against the operator of acute-care hospitals in Las Vegas, Nevada. In remanding, the Court had noted that the case presented the same question as in Valley Hospital I, 368 NLRB No. 139 (2019), remanded under the name, Local Joint Executive Board of Las Vegas v. NLRB, 840 F.App'x. 134 (9th Cir. Dec. 30, 2020)—whether the Act permits an employer to unilaterally cease checking off union dues after the expiration of the contract that established the check-off arrangement. Given the likelihood of further proceedings before the Board, the Court did not address the propriety of the Board’s retroactive application of the challenged rule.
On remand, the Board (Members Wilcox and Prouty; Member Ring, dissenting) applied Valley Hospital II, 371 NLRB No. 160 (2022), to find that the Employers violated Section 8(a)(5) and (1) by unilaterally ceasing to deduct dues after the expiration of the parties’ collective-bargaining agreements. In doing so, the Board rejected the contention that the Employers were privileged to act unilaterally because the dues-deduction authorization forms employees used did not contain language that appears in Section 302(c)(4).
Back on review, the Court noted that, in its concurrently filed opinion in Valley Hospital Medical Ctr., Inc. v. NLRB, ___ F.4th ___, 2024 WL 678727 (9th Cir. 2023), it had reviewed and upheld the Board’s determination that an employer is not entitled to unilaterally cease checking off union dues after the expiration of a collective-bargaining agreement that established the check-off arrangement. Regarding the language used in dues check-off authorization forms, the Court held that Section 302(c)(4) “does not require specific recitals in written assignments,” and thus the Employers’ claim that the provision required them to cease dues checkoff was without merit.
The Court’s decision is here.
Grill Concepts Services, Inc. dba The Daily Grill, Board Case No. 31-CA-276950 (reported at 372 NLRB No. 30) (9th Cir. decided February 22, 2024).
In an unpublished memorandum decision, the Court enforced the Board’s order that issued against this nationwide restaurant operator with a restaurant located inside the Westin LAX Hotel in Los Angeles, California, where all of its non-supervisory employees are represented by UNITE HERE Local 11. After the Union was certified, the parties began negotiations for a first contract. Thereafter, the Employer failed to make itself available for bargaining sessions, ignored the Union’s repeated attempts to schedule meetings, engaged in brief, infrequent negotiating sessions that prevented substantive discussion of proposals and counterproposals, and later expressly refused to bargain when it informed the Union it was not ready to negotiate and unprepared to reach a contract.
The Board (Members Ring, Wilcox, and Prouty) found that the Employer refused to bargain in good faith with the Union in violation of Section 8(a)(5) and (1). The Board rejected the Employer’s contention that the violation was time-barred by Section 10(b), but limited it to conduct that began in November 2020. Further, the Board rejected the claims that the Union had lost majority support and that the COVID-19 pandemic presented an economic exigency that relieved the Employer of its duty to bargain.
Among other remedies, the Board ordered the Employer to bargain with the Union within 15 days of the Union’s request, and to compensate the Union for all bargaining expenses incurred. It also ordered that the Employer pay any lost wages the Union paid to employee bargaining-committee members for bargaining conducted during working hours from November 2020 through the date that good-faith negotiations ultimately began, and to make whole affected employee negotiators for any qualifying lost earnings not reimbursed by the Union. The Employer was also required to hold a meeting or meetings where the notice would be read to employees by a high-ranking management official or by a Board agent in the official’s presence.
On review, the Court held the Board’s unfair-labor-practice findings were supported by substantial evidence and consistent with law. Before the Court, the Employer did not contest the remedies provided for in the Board’s order, which was enforced in full.
The Court’s opinion is here.
Colart Americas, Inc. and Staff Management Group LLC, Joint Employers, Board Case No. 22-CA-252829 (reported at 372 NLRB No. 9) (3d Cir. decided February 21, 2024).
In an unpublished opinion, the Court enforced the Board’s order that issued against this seller of art supplies that has a distribution warehouse in Piscataway, New Jersey, where half of the workers are employed directly by Colart, and the other half are temporary employees supplied by staffing agencies, including Staff Management. The Board (Chairman McFerran and Member Ring; Member Kaplan, dissenting in part) found that Colart and Staff Management were joint employers. The Board found that the Employers had violated Section 8(a)(1) by threatening employees with reprisal if they discussed workplace concerns, and by discharging an employee for raising concerted complaints about terms and conditions of employment. Further, the Board found that the Employers violated Section 8(a)(4) by discharging that same employee for threatening to file charges with the Board.
On review, the Court found no grounds to disturb the Board’s decision. The Court rejected the Employers’ challenges to the credibility determinations and agreed with the Board that a supervisor’s comments to employees constituted unlawful interference when he told them to follow the chain of command with their complaints, and threatened that there would “be a problem” if they discussed complaints amongst themselves. In upholding the unlawful discharge, the Court held that the Board correctly applied Wright Line, and that the Employers’ proffered reasons for the discharge were implausible or false. Specifically, the Court held that the employee engaged in protected concerted activity by raising concerns that were not merely gripes, that at least two decisionmakers knew of his protected activity, and that the discharge decision was close in time to his protected activity. The Court also upheld the Board’s finding that the Employers discharged the employee for threatening to file charges with the Board. Lastly, the Court found no merit to the evidentiary challenges. In particular, the Court rejected the argument that the Employers should have been permitted to admit evidence to show that the employee suffered no “adverse employment action,” noting that under Section 8(a)(1) all that needs to be demonstrated is a showing of interference with employee rights.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Starbucks Corporation (21-CA-295845 and 21-CA-312405; JD(SF)-08-24) Los Angeles, CA. Administrative Law Judge Jeffrey D. Wedekind issued his decision on February 22, 2024. Charges filed by Workers United.
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