Summary of NLRB Decisions for Week of February 27 - March 3, 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
Indiana Bell Telephone Company, Inc. (25-CA-218405; 372 NLRB No. 62) Indianapolis, IN, February 28, 2023.
The Board denied Respondent’s Motion to Modify the Board’s Decision and Order reported at 370 NLRB No. 135 (2021), which ordered the Respondent to bargain with the Communication Workers of America, Local 4900, rather than the Communication Workers of America. The Board denied the motion as an untimely motion to reconsider a Board decision under Section 102.48(c)(2) of the Board’s Rules and Regulation, and also denied the motion on the merits. However, applying its authority under Section 10(d), the Board sua sponte modified the prior decision, ordering the Respondent to bargain with Communications Workers of America, District 4 and/or Communications Workers of America, Local 4900 a/w Communications Workers of America, District 4, consistent with the Administrative Law Judge’s original decision.
Charge filed by Communication Worker of America, Local 4900. Administrative Law Judge Michael A. Rosas issued his decision on December 11, 2019. Chairman McFerran and Members Kaplan and Prouty participated.
Hilton Hotel Employer LLC d/b/a Hilton Hawaiian Village Waikiki Beach Resort (20-CA-276192; 372 NLRB No. 61) Honolulu, HI, February 28, 2023.
The Board adopted the Administrative Law Judge’s conclusion that the Employer violated Section 8(a)(5) and (1) by failing to provide requested relevant information to the Union. Dissenting, Member Kaplan would have dismissed the allegation based on his view that the Union failed to establish a valid basis for the request and the Employer adequately responded to the request.
Charge filed by UNITE HERE! Local 5. Administrative Law Judge Eleanor Laws issued her decision on December 14, 2021. Members Kaplan, Wilcox, and Prouty participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
No Unpublished R Cases Issued.
No Unpublished C Cases Issued.
Appellate Court Decisions
Sunrise Operations, LLC a wholly owned subsidiary of The Pasha Group, Board Case No. 20-CA-219534, et al. (reported at 371 NLRB No. 4) (D.C. Cir. decided March 4, 2023).
In a published opinion, the D.C. Circuit granted the petition for review filed by the International Organization of Masters, Mates, and Pilots, which had challenged the Board’s dismissal of a complaint issued against Sunrise Operations, LLC. The Court vacated the Board’s decision, and remanded the case for reconsideration consistent with its opinion.
Since 1981, the Union, and the various owners of four maritime vessels that transport goods along the Hawaii trade route, have had a collective-bargaining relationship covering a unit of licensed deck officers. That relationship was established through voluntary recognition, and in 1984, the parties signed a memorandum of understanding (MOU) requiring that their arbitration proceedings be conducted in Maryland. In 2018, after a dispute arose over Sunrise’s refusal to provide information to the Union, and its refusal to abide by the MOU, the Union filed charges, and a complaint issued alleging those actions violated Section 8(a)(5 and (1).
Before the Administrative Law Judge, Sunrise argued that that all four licensed deck officer classifications (masters, chief mates, second and third mates) were supervisors excluded from the Act’s coverage. In turn, the General Counsel argued that the supervisory status of the masters and chief mates was irrelevant because the second and third mates were employees, and that because Sunrise voluntarily consented to a bargaining unit that included supervisors, it could not later use the mixed nature of the unit as a jurisdictional defense. After the hearing, the judge found the alleged violations, agreeing with the General Counsel that the second and third mates were employees covered by the Act, and that the Board therefore had jurisdiction over the case.
On exceptions, the Board (Members Emanuel and Ring; Chairman McFerran, dissenting) concluded that it did not have jurisdiction because Sunrise did not voluntarily recognize a mixed unit of supervisors and employees, but rather voluntarily recognized a unit it understood to consist entirely of supervisors. The Board then held that because Sunrise never voluntarily consented to a mixed unit, the Board lacked jurisdiction over the parties’ collective-bargaining relationship and dismissed the complaint. In doing so, the Board found it unnecessary to determine whether the licensed deck officers were supervisors under Section 2(11) of the Act.
The Court granted the petition for review and remanded. Among other things, the Court stated that the Board erred in purporting to decide an issue that was never raised by the parties, and thus “it arbitrarily and inexcusably denied the parties a full and fair opportunity to be heard on the merits.” In addition to finding that the Board had acted contrary to controlling precedent, the Court stated that the Board’s new rule “makes little sense,” explaining that it would allow employees to lose the Act’s protection “not because they are in fact uncovered by the Act, but because their employer asserts a belief that they are supervisors.” Finding the Board’s stated justifications insufficient, and Sunrise’s arguments unpersuasive, the Court remanded the case for reconsideration.
The Court’s opinion is here.
Administrative Law Judge Decisions
Ascension Borgess Hospital (07-CA-283117; JD-10-23) Kalamazoo, MI. Second Errata to the Administrative Law Judge decision issued February 9, 2023. Second Errata Amended decision.
3484, Inc. and 3486, Inc., as alter egos and/or a single employer (27-CA-278463, et al.; JD(SF)-05-23) Salt Lake City, UT. Administrative Law Judge Gerald M. Etchingham issued his decision on February 27, 2023. Charges filed by International Brotherhood of Teamsters Local 399 and International Brotherhood of Teamsters Local 222.
Michael Cetta, Inc., d/b/a Sparks Restaurant (02-CA-142626 and 02-CA-144852; JD(NY)-02-23) New York, NY, February 28, 2023. Errata to Administrative Law Judge decision of February 6, 2023. Errata Amended decision.
Starbucks Corporation (03-CA-285671, et al.; JD-17-23) Buffalo, NY. Administrative Law Judge Michael A. Rosas issued his decision on March 1, 2023. Charges filed by Workers United.
Trader Joe’s (16-CA-291179 and 16-CA-293143; JD-16-23) Houston, TX. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on March 1, 2023. Charges filed by an individual.
Starbucks Corporation (18-CA-293653; JD-15-23) Seattle, WA. Administrative Law Judge Geoffrey Carter issued his decision on March 3, 2023. Charge filed by Chicago & Midwest Regional Joint Board, Workers United/SEIU.
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