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Cases and Decisions

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Summary of NLRB Decisions for Week of February 21 - 24, 2023

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

McLaren Macomb  (07-CA-263041; 372 NLRB No. 58)  Mount Clemens, MI, February 21, 2023.

The Board found that the Respondent violated Section 8(a)(1) by offering a severance agreement to bargaining unit employees it permanently furloughed.  The Board held that the Board’s long-standing case precedent concerning whether the proffer of a severance agreement is unlawful requires examination and analysis of the language of the proffered agreement to determine whether proffering the agreement had a reasonable tendency to interfere with, restrain, or coerce employees’ exercise of their Section 7 rights.  The Board accordingly overruled Baylor University Medical Center, 369 NLRB No. 43 (2020) and IGT d/b/a International Game Technology, 370 NLRB No. 50 (2020), which had departed from that long-standing precedent by abandoning any examination or analysis of the language of the proffered severance agreement.  The Board accordingly analyzed the terms of the proffered agreement, and found that the agreement coerced employees from exercising their Section 7 rights because it broadly prohibited them from making statements that could disparage or harm the image of the Respondent and further prohibited them from disclosing the terms of the agreement.  The Board observed that the agreement provided for substantial monetary and injunctive sanctions against the employee in the event the nondisparagement and confidentiality proscriptions were breached.

Dissenting in part, Member Kaplan would adhere to Baylor University and IGT, and find that the proffer of a severance agreement is only unlawful when there are other outside circumstances that could render the proffers coercive.  Member Kaplan found such circumstances present here, because the Respondent violated Section 8(a)(5) and (1) by permanently furloughing the employees without first notifying the Union and giving it an opportunity to bargain about the furlough decision and its effects.  Charge filed Local 40 RN Staff Council, Office and Professional Employees, International Union (OPEIU), AFL-CIO.  Administrative Law Judge Robert A. Ringler issued his decision on August 31, 2021.  Chairman McFerran and Members Kaplan, Wilcox, and Prouty participated in the decision.

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RAV Truck & Trailer Repairs, Inc. and Concrete Express of NY, LLC  (02-CA-220395; 372 NLRB No. 59)  Bronx, NY, February 22, 2023.

The Board denied the General Counsel’s Motion for Clarification of the Board’s Supplemental Decision and Order, reported at 372 NLRB No. 25 (2022). The General Counsel argued that the Order in the Board’s “supplemental decision fails to set forth the full remedies included in the first Board Order that relate to the discharge of the two employees, which were enforced and not part of the Court of Appeals’ remand.”  In denying the Motion for Clarification, the Board found that the remedies requested by the General Counsel continue to be required by the Board’s previous order and were enforced by the court.  The Board concluded that the General Counsel’s requested Order would be redundant.  Charge filed by Teamsters Local 456, International Brotherhood of Teamsters.  Administrative Law Judge Benjamin W. Green issued his decision on July 15, 2019.  Chairman McFerran and Members Kaplan and Prouty participated.

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TK, LLC  (10-CA-267762; 372 NLRB No. 60)  Jefferson, GA, February 22, 2023.

The Board adopted the Administrative Law Judge’s conclusion that the Respondent agreed to be bound to a collective-bargaining agreement between the Union and a multi-employer association.  Member Kaplan adopted the judge’s finding solely based on the Respondent’s conduct manifesting its intent to abide by the agreement.  The Board further adopted the judge’s conclusions that the Respondent violated: (1) Section 8(a)(5) and (1) by withdrawing recognition from the Union and unilaterally terminating the collective-bargaining agreement prior to expiration of the agreement; (2) Section 8(a)(5) and (1) by repudiating and refusing to honor the terms of the agreement when, in violation of the non-discrimination clause of the agreement, it discharged five employees and rescinded its offer and refused to hire 13 employees because of their Union membership; and (3) Section 8(a)(3) and (1) by discharging five employees and rescinding its offer and refused to hire 13 employees because of their Union membership.

Charge filed by Plumbers and Pipefitters Local 72, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO.  Administrative Law Judge Andrew S. Gollin issued his decision on May 12, 2022.  Chairman McFerran and Members Kaplan and Prouty participated.

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International Brotherhood of Teamsters, Local 631  (28-CD-301415; 372 NLRB No. 57)  Las Vegas, NV, February 23, 2023.

In this Section 10(k) jurisdictional dispute proceeding, the Board found reasonable cause to believe that Section 8(b)(4)(D) has been violated.  The Board awarded the disputed work to employees represented by International Brotherhood of Teamsters, Local 631, based on the factors of the collective-bargaining agreements; employer preference and current assignment; and relative training and skills.

Charge filed by Freeman Expositions, Inc.  Chairman McFerran and Members Kaplan and Wilcox participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Charter Communications, Inc., d/b/a Spectrum  (01-RC-290605)  North Windham, CT, February 24, 2023.  The Board denied the Employer’s Request for Review of the Regional Director’s Decision to Adopt the Hearing Officer’s Recommendations and Direction to Open Challenged Ballots as it raised no substantial issues warranting review.  The Board noted that the petitioned-for unit was a presumptively appropriate plantwide unit for collective bargaining purposes, and that the Employer failed to meet its burden to show that the interests of certain classifications it sought to exclude were “so disparate” from the agreed-upon classifications that they could not be represented in the same unit.  Petitioner—International Brotherhood of Electrical Workers, Local 2323.  Chairman McFerran and Members Wilcox and Prouty participated.

C Cases

McLaren Macomb  (07-CA-275682)  Mount Clemens, MI, February 22, 2023.  No exceptions having been filed to the January 11, 2023 decision of Administrative Law Judge Melissa M. Olivero’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 Local 40, RN Staff Council, Office and Professional Employees International Union (OPEIU), AFL-CIO.

RJN Group, Inc.  (13-CA-283366)  Wheaton, IL, February 22, 2023.  No exceptions having been filed to the January 10, 2023 decision of Administrative Law Judge Robert A. Ringler’s finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions and dismissed the complaint.  Charge filed by an individual.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

Joseppi’s LLC, d/b/a Arcata Theatre Lounge  (20-CA-292430; JD-(SF)-06-23)  Arcata, CA.  Administrative Law Judge Gerald M. Etchingham issued his decision on February 23, 2023.  Charge filed by an individual.

Saint Leo University Incorporated  (12-CA-275612, et al.; JD-14-23)  Saint Leo, FL.  Administrative Law Judge Ira Sandron issued his decision on February 23, 2023.  Charges filed by United Faculty of Saint Leo, National Education Association Florida Education, American Federation of Teachers, AFL-CIO.

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