Summary of NLRB Decisions for Week of January 8 - 12, 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
UPS Supply Chain Solutions, Inc. (32-CA-309933; 373 NLRB No. 12) Tracy, CA, January 3, 2024.
The Board granted the Respondent’s Motion for Reconsideration in part and denied it in part. In the underlying test-of-certification case, the Board granted the General Counsel’s Motion for Summary Judgment 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 and the Board severed for further consideration the issue of whether the Board should adopt a compensatory, make whole remedy for the Respondent’s failure to bargain. In granting the motion in part, the Board found merit in the Respondent’s argument that a precertification refusal to bargain only violates the Act with respect to unilateral changes, not a refusal to begin contract negotiations while election objections are pending. Accordingly, the Board amended the date of the Respondent’s refusal to bargain. In denying the motion in part, the Board rejected the Respondent’s argument that severing the question of a compensatory remedy rendered summary judgment inappropriate. Charge filed by International Brotherhood of Teamsters, Local 439. Chairman McFerran and Members Kaplan and Wilcox participated.
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Vesta VFO, LLC (04-CA-260273 and 04-CA-260277; 373 NLRB No. 10) Ambler, PA, January 10, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging two individuals. Applying the Board’s mixed-motive analysis under Wright Line, 251 NLRB 1083 (1980), the Board found that the two employees were discharged for their protected concerted activity of discussing salary increases and requesting salary increases while referencing the Respondent’s payroll information. The Board also found that the Respondent failed to demonstrate that it would have discharged the employees absent their protected concerted activity.
Charges filed by individuals. Administrative Law Judge Kimberly Sorg-Graves issued her decision on May 25, 2022. Chairman McFerran and Members Prouty and Wilcox participated.
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Laborers’ International Union of North America, Local 872 (TV Transport) (28-CB-267014; 373 NLRB No. 14) Las Vegas, NV, January 11, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the complaint allegations were untimely under Section 10(b) of the Act. Accordingly, the Board dismissed the complaint.
Charge filed by an individual. Administrative Law Judge Andrew S. Gollin issued his decision on April 7, 2023 and issued an errata on April 11, 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
VHS Acquisition Subsidiary Number 9, Inc., d/b/a Framingham Union Hospital (01-RC-325624) Framingham, MA, January 9, 2024. The Board denied the Employer's Request for Review of the Regional Director's Decisions Related to Questions Concerning Representation and its Request for Review of the Regional Director's Decision and Direction of Election as they raised no substantial issues warranting review. In denying review, the Board emphasized that the parties stipulated that the facility at issue is an acute care hospital, and that the Board's Health Care Rule therefore applied; because the petitioned-for unit sought all non-supervisory full-time, regularly scheduled part-time, and per diem registered nurses, it comported with the Rule and it was unnecessary for the Regional Director to base her unit determination on evidence adduced at the hearing. The Board additionally noted that the Regional Director's determination to defer litigation of the disputed employees' eligibility was consistent with the 2014 version of Section 102.64(a) and agreed with the Regional Director that the Petitioner's Responsive Statement of Position was sufficient. In doing so, the Board noted that the 2019 version of Section 102.64(a) and the Responsive Statement of Position requirement had subsequently been repealed. Member Kaplan noted his dissent from the repeal but agreed that the Regional Director had not abused her discretion with respect to either issue. The Board denied the Employer's requests for extraordinary relief as moot. Petitioner—Massachusetts Nurses Association. Chairman McFerran and Members Kaplan and Prouty participated.
C Cases
UPMC Western Psychiatric Hospital (06-CA-316473) Pittsburgh, PA, January 8, 2024. The Board denied the Respondent’s Motion to Dismiss the Amended Complaint, or in the alternative, to defer the charge to the parties’ contractual grievance and arbitration procedure. The Board found that intervening complaint amendments mooted certain of the Respondent’s arguments. And for those arguments not mooted by the amendments, the Board found that the Respondent had not demonstrated that the complaint fails to state a claim upon which relief can be granted and that it is entitled to judgment as a matter of law. The Board rejected the Respondent’s alternative request to defer the charge to the parties’ contractual grievance and arbitration procedure, citing its longstanding policy of refusing to defer information-request allegations. Charge filed by SEIU Healthcare Pennsylvania. Chairman McFerran and Members Kaplan and Wilcox participated.
ILead Worldwide, Inc., d/b/a Legacy Oneway Consulting (16-CA-293382) Commerce, CA, January 10, 2024. No exceptions having been filed to the November 16, 2023 decision of Administrative Law Judge Kimberly Sorg-Graves’ 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.
Audacy California, LLC, d/b/a KCBS (20-CA-307299, et al.) San Francisco, CA, January 12, 2024. The Board denied the Union’s Request for Special Permission to Appeal the Administrative Law Judge’s Order granting the Respondent’s petition to revoke subpoena duces tecum. The Board found that the Union failed to establish that the judge’s ruling could not be appropriately addressed at a later stage of the proceeding. The Board’s denial was without prejudice to the Union’s right to renew its claims before the Board on any exceptions that may be filed to the judge’s decision, if appropriate. Charges filed by Digital and Multimedia Workers Union (DMWU). Chairman McFerran and Members Kaplan and Wilcox participated.
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Appellate Court Decisions
T-Mobile USA, Inc., Board Case No. 14-CA-170229 (reported at 372 NLRB No. 4) (D.C. Cir. decided January 12, 2024).
In a published opinion, the Court enforced the Board’s supplemental order that issued against this nationwide cell phone service provider after remand for further proceedings. In doing so, the Court upheld the findings of the Board (Members Wilcox and Prouty; Member Ring, dissenting) that “T-Voice,” which is a system that provides a vehicle for employees to log complaints to management through their “T-Voice representatives” nationally in all of T-Mobile’s call centers, is a labor organization under Section 2(5), and that T-Mobile violated Section 8(a)(2) and (1) by dominating and assisting T-Voice.
In its prior decision (368 NLRB No. 81), the Board (Chairman Ring and Members Kaplan and Emanuel) dismissed the unlawful-domination allegation after determining that T-Voice was not a statutory labor organization. The Board based that conclusion on a requirement that to meet the necessary element of “dealing with” the employer for labor-organization status, T-Voice would have needed to have a bilateral practice of employees making group proposals to management. Finding that requirement lacking, the Board dismissed the complaint.
On review, the Court granted the petition filed by the Communications Workers of America, AFL-CIO. The Court noted that the Board rested its dismissal of the complaint on a requirement that “broke new ground,” because the Board had not previously held that “an organization in which employee representatives make proposals to management does not constitute a labor organization unless those proposals are adopted by the group.” The Court also found that the Board had not reconciled Board cases that did not impose a “group proposals” requirement. Thus, the Court remanded to the Board for further proceedings, explaining that the Board should “identify what standard the Board has adopted for separating ‘group proposals’ from proposals of employee representatives, like T-Voice representatives.”
On remand, the Board (Members Wilcox and Prouty; Member Ring, dissenting) concluded that T-Voice is a labor organization under Section 2(5). In so doing, the Board found that proposals that individual employees made and presented to management as T-Voice representatives satisfied the “dealing with” requirement because the proposals were advanced in a representative capacity. Given that the other elements of the allegation were uncontested, the Board found that T-Mobile violated Section 8(a)(2) and (1) by dominating and assisting T-Voice.
Back on review, the Court (Judges Srinivasan and Garcia; Judge Randolph, dissenting) denied T-Mobile’s petition for review, finding none of its arguments warranted relief. The Court agreed with the Board’s explanation that “nothing in the text of Section 2(5) or its legislative history supports the notion that the employee group must adopt proposals in any particular way before those proposals may be found to be group proposals.” The Court also noted that the Board’s approach “tracks the Act’s statement of purpose” in Section 1 of the Act, “which includes the goal of protecting workers’ ‘full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment.’” The Court also agreed with the Board’s explanation that Congress defined the term “labor organization” broadly “to rid collective bargaining of employer-dominated organizations so that employees would retain the freedom to choose their own representatives.” Reviewing the Board’s application of its clarified standard to the facts of the case, the Court upheld the Board’s finding of unlawful domination as supported by substantial evidence, and rejected T-Mobile’s remaining arguments as either unpersuasive or jurisdictionally barred from review under Section 10(e) of the Act.
The Court’s opinion is here.
Bardon, Inc., d/b/a Aggregate Industries, Board Case No. 05-CA-248026 (reported at 371 NLRB No. 78) (4th Cir. decided January 8, 2024).
In an unpublished per curiam opinion, the Court enforced the Board’s order that issued against this operator of a quarry in Millville, West Virginia, to remedy a litany of unfair labor practices it committed after its 37 employees initiated an organizing campaign, and after they voted in a June 2019 election to be represented by the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL–CIO, CLC. Among the unfair labor practice Bardon committed in its unremitting antiunion campaign, the Board (Chairman McFerran and Members Kaplan and Ring; Member Kaplan, dissenting in part) found that Bardon violated Section 8(a)(1) by creating the impression that employees’ union activities were under surveillance, threatening employees with unspecified reprisals if they selected union representation, coercively interrogating employees about their union membership, sympathies, activities, and support, and exceeding the legitimate scope of inquiry while conducting interviews in preparation for a hearing. Further, the Board found that Bardon violated Section 8(a)(3) and (1) by discharging the lead union organizer and two other employees immediately after the Union prevailed in the election.
On substantial-evidence grounds, the Court upheld the Board’s findings that Bardon engaged in numerous incidents of coercive conduct in violation of Section 8(a)(1) in an effort to thwart the organizing campaign. The Court similarly upheld the Board’s Wright Line analysis in which it determined that the discharge of the lead organizer was unlawful retaliation for the successful union election. In doing so, the Court rejected Bardon’s arguments, stating that union animus expressed against the lead organizer was properly “imputed to a neutral decision-maker where a supervisor, having exhibited anti-union animus, significantly contributed to the accomplishment of the discharge.” Assessing Bardon’s affirmative defense, the Court agreed with the Board that Bardon failed to prove that, even absent the employee’s union activity, it would have fired him for a safety violation. The Court also rejected Bardon’s claim that reinstatement and backpay were inappropriate remedies. The other two discharges were resolved by a partial settlement prior to the Court’s decision.
The Court’s opinion is here.
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Administrative Law Judge Decisions
Virginia Hospital Center Arlington Health System (05-CA-304834; JD-85-23) Arlington, VA, January 9, 2024. Errata to Administrative Law Judge Michael A. Rosas’ decision issued on December 29, 2023. Errata Amended Decision.
Brian Trematore Plumbing and Heating (22-CA-274372; JD(NY)-01-24) Newark, NJ. Administrative Law Judge Kenneth W. Chu issued his decision on January 10, 2024. Charge filed by Sheet Metal, Air, Rail and Transportation (SMART), Local 25, AFL-CIO.
Rosewood Care, LLC, d/b/a Rosewood Rehabilitation and Nursing (03-CA-297817 and 03-CA-303582; JD-03-24) Rensselaer, NY. Administrative Law Judge Andrew S. Gollin issued his decision on January 11, 2024. Charges filed by 1199 SEIU United Healthcare Workers East.
United Wholesale Mortgage, LLC, d/b/a UWM Financial Services, LLC (07-CA-297897; JD-04-24) Pontiac, MI. Administrative Law Judge Susannah Merritt issued her decision on January 11, 2024. Charge filed by an individual.
Starbucks Corporation (19-CA-296261, et al.; JD(SF)-01-24) Marysville, WA. Administrative Law Judge Gerald M. Etchingham issued his decision on January 12, 2024. Charges filed by Workers United.
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