Summary of NLRB Decisions for Week of July 22 - 26, 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
International Longshoremen’s Association, Local 1413 (Ports America Terminals, Inc.) (01-CB-328360; 373 NLRB No. 79) New Bedford, MA, July 24, 2024.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated Section 8(b)(1)(A) by failing to refer a unit employee from its exclusive hiring hall for arbitrary or discriminatory reasons. The Board further found that the Respondent violated Section 8(b)(2) by causing an employer to discriminate against its employees in violation of Section 8(a)(3).
Charge filed by an individual. Chairman McFerran and Members Prouty and Wilcox participated.
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Starbucks Corporation (03-CA-310676; 373 NLRB No.75) Liverpool, NY, July 24, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) when, in the runup to an election, it solicited grievances, made threats, and increased management’s in-store presence to create the impression of surveillance.
Charge filed by Workers United. Administrative Law Judge Michael P. Silverstein issued his decision on February 9, 2024. Chairman McFerran and Members Prouty and Wilcox participated.
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Oncor Electric Delivery Company, LLC (16-CA-103387 and 16-CA-112404; 373 NLRB No. 80) Dallas, TX, July 26, 2024.
On remand from the D.C. Circuit Court, the Board (Chairman McFerran and Member Prouty; Member Kaplan, dissenting) reaffirmed its finding that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for his protected concerted union activity of testifying on behalf of the Union before a Texas state legislative committee concerning the safety of smart electric meters. In addressing concerns raised by the court that the underlying Board decision did not fully address the requirements under NLRB v. Electrical Workers Local 1228 (Jefferson Standard), 346 U.S. 464 (1953), the Board found that the General Counsel bears the burden of proof under the first prong of the Jefferson Standard test. The Board then concluded that the General Counsel had met that burden by showing that the employee’s communication to the state legislative committee indicated a relationship to an ongoing dispute because the employee identified himself as a longtime employee and union representative, spoke directly on the negative impact of a product on his day-to-day working conditions, and addressed how he had discussed these changes to working conditions with another union local.
Dissenting, Member Kaplan agreed that the General Counsel bore the burden under the first prong of the Jefferson Standard test, but would have dismissed the allegation and found that the employee’s testimony regarding smart meters was not related to a labor dispute.
Charges filed by International Brotherhood of Electrical Workers, Local Union No. 69. Administrative Law Judge Ira Sandron issued his decision November 4, 2014. Chairman McFerran and Members Kaplan and Prouty participated.
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Saint Joseph Health System, Inc. d/b/a Chi Saint Joseph Health—Saint Joseph London (09-CA-297427; 373 NLRB No. 78) London, KY, July 26, 2024.
The Board found that the Respondent is a successor under NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), and affirmed the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to recognize and bargain with the Union upon request.
Charge filed by United Food and Commercial Workers, Local 227. Administrative Law Judge Renée D. McKinney issued her decision on September 28, 2023. Members Kaplan, Prouty, and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Jonna Corporation, d/b/a Premier Recycle Company (32-RD-336679) San Jose, CA, July 22, 2024. The Board granted the Petitioner’s Request for Review of the Regional Director’s Decision and Order Dismissing Petition. The Board determined that because the complaint allegations do not include a general refusal to bargain and are the type of bargaining violations that would typically be remedied by a limited bargaining order, it was appropriate under Rieth-Riley Construction Co., 371 NLRB No. 109 (2022) to remand the proceeding to the Regional Director to apply Master Slack, 271 NLRB 78 (1984), and, if the Regional Director deems it necessary, to conduct a hearing pursuant to Saint Gobain Abrasives, Inc., 342 NLRB 434 (2004). Petitioner—an individual. Union—International Brotherhood of Teamsters, Local 853. Members Kaplan, Prouty, and Wilcox participated in the decision.
Paragon Systems, Inc. (21-RD-343514) Los Angeles, CA, July 24, 2024. The Board granted the Party in Interest’s Request for Review of the Acting Regional Director’s Order Denying Motion to Intervene as it raised substantial issues warranting review. The Board also granted the Party in Interest’s request to stay proceedings. Petitioner—an individual. Union—United Federation LEOS-PBA Law Enforcement Officers Security & Police Benevolent Association. Intervenor—International Union, Security, Police and Fire Professionals of America (SPFPA). Intervenor—California Protective Security Officers Association (CPSOA). Party in Interest—United Trades & Transportation Workers Union Local 323. Chairman McFerran and Members Prouty and Wilcox participated.
C Cases
Action Logistics, Inc. (25-CA-314654 and 25-CA-314663) DeKalb, IL, July 22, 2024. The Board denied the Respondent’s Motions to Dismiss the Consolidated Complaint, finding that the Respondent had not demonstrated that the consolidated complaint fails to state a claim upon which relief can be granted and that it is entitled to judgment as a matter of law. Charges filed by Arise Chicago. Members Kaplan, Prouty, and Wilcox participated.
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Appellate Court Decisions
Troy Grove and a Div. of Riverstone Group Inc., Vermillion Quarry a Div. of Riverstone Group Inc., Board Case No. 25-CA-234477 (reported at 371 NLRB No. 138) (7th Cir. decided July 23, 2024).
In a published opinion, the Court enforced the Board’s order that issued against the Riverstone Group, a mining aggregate company that operates sand and stone quarries in Vermilion Quarry in Utica, Illinois, and Troy Grove Quarry in Oglesby, Illinois. Additionally, the Court denied two petitions for review, one filed by Riverstone and the other by the International Union of Operating Engineers, Local 150, AFL-CIO, which represents employees at both quarries.
In early 2018, after the parties’ collective-bargaining agreement expired, negotiations for a successor contract were unsuccessful, and the employees went on strike. Riverstone hired replacement workers, one of whom joined the Union, was denied his request for union representation during an investigatory interview, and was later discharged. Further, Riverstone required another union member to sign a preferential hiring list in order to return to work, removed a union picket sign from public property, and changed its punching-in policy to prohibit employees from punching in more than 5 minutes early.
The Board (Chairman McFerran and Members Ring and Wilcox) found that Riverstone violated Section 8(a)(1) by denying the union member’s request for representation at the investigatory interview, removing the union picket sign from public property, and requiring the returning union member to sign a preferential hiring list. The Board also found that Riverstone violated Section 8(a)(5) and (1) by unilaterally implementing a new punch-in policy for bargaining unit employees, while finding that there was no violation with respect to strike replacements. Further, the Board (Member Wilcox, dissenting) found that Riverstone did not violate Section 8(a)(3) and (1) by disciplining and discharging the union member because Riverstone had demonstrated that it would have taken those actions even absent his union activity based on his numerous and undisputed infractions.
On review, the Court held that the Board’s findings were supported by substantial evidence and the applicable labor law. Overall, the Court noted that its review of Board decisions is “deferential and circumscribed,” and that “we do not flirt with fact-finding or quibble with the Board’s reasonable conclusions as we would on de novo review.” For legal conclusions, the Court explained that “our scrutiny of the Board’s decision is deferential out of respect for Congress’s broad delegation of responsibility for developing national labor policy to the Board,” and that the Court therefore will “accept the Board’s legal conclusions unless they are irrational or inconsistent with the Act.”
Applying those standards of review, the Court agreed with the Board that Riverstone unlawfully denied the employee’s request for union representation during the investigatory interview in violation of his rights under NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), and rejected Riverstone’s argument that replacement workers had no such rights. In upholding the Board’s Wright Line analysis of the employee’s discharge, the Court agreed with the Board that given the employee’s four attendance-based infractions, coupled with his four performance and safety infractions, Riverstone had met its burden of proving it would have discharged him even absent his union activity. In doing so, the Court rejected the Union’s challenges to that finding, noting that “[a]t bottom, [the Union] asks us to reweigh the evidence, which we cannot do.” On the issue of Riverstone having required the other union employee to sign a preferential hiring list after he had unconditionally offered to return to work, the Court explained that Riverstone had imposed “an additional obligation” on the employee “without a legitimate and substantial business justification.”
On the Board’s finding that Riverstone unlawfully removed a union picket sign from public property, the Court held that “Riverstone essentially asks us to reconsider the ALJ’s credibility findings,” to which the Court owes “great deference” in the absence of extraordinary circumstances, not shown here. Finally, regarding the unilateral change to the punch-in policy, the Court noted that it was contrary to Riverstone’s “regular and longstanding practice,” and that no notice or opportunity to bargain had been provided to the Union. However, contrary to the Union’s contention, the Court upheld the Board’s determination not to extend the unilateral-change finding to replacement workers, noting that, under extant Board law, an employer need not bargain with a union regarding the terms and conditions of employment for strike replacements hired during a strike.
The Court’s decision is here.
Enright Seeding, Inc., Board Case No. 25-CA-210670 (reported at 371 NLRB No. 127) (8th Cir. decided July 25, 2024).
In a published opinion, the Court denied enforcement and remanded the case to the Board for further proceedings. The Board’s order issued against this Employer that performs erosion-control services at construction sites around building projects in Iowa and Illinois. The Board (Members Wilcox and Prouty; Member Ring, dissenting) found that the Employer recognized the International Union of Operating Engineers, Local 150, as the Section 9(a) majority representative of its employees pursuant to a recognition agreement executed in 2007, rather than a relationship governed by Section 8(f) . Based on that status, the Board found that the Employer violated Section 8(a)(5) and (1) by refusing to provide certain requested information to the Union.
On review, the Court disagreed with the Board’s application of the relevant law to the facts of the case, and concluded that the Board’s order regarding the employer-union relationship was not supported by substantial evidence. The Court also disagreed with the Board’s additional finding that the Employer could not raise a defensive claim that the Union lacked majority support at the time the recognition agreement was executed. Remanding, the Court stated: “We express no view on whether Enright Seeding repudiated the 2007 agreement or whether the union was entitled to the information it requested under an agreement governed by § 8(f).”
The Court’s opinion is here.
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Administrative Law Judge Decisions
Atlantic HVAC and Property Care, Inc. (10-CA-301130; JD-45-24) Pooler, GA. Administrative Law Judge Renée D. McKinney issued her decision on July 22, 2024. Charge filed by Georgia-Carolina Pipe Trades Association.
Starbucks Corporation (19-CA-303717, et al.; JD(SF)-22-24) Seattle, WA. Administrative Law Judge John T. Giannopoulos issued his decision on July 23, 2024. Charges filed by Workers United Labor Union International a/w Service Employees International Union with Service Employees International Union Local 513, International Brotherhood of Teamsters, Local Union No. 30, and Central and Rock Partners Union.
Floss N Gloss PA, d/b/a Aqua Dental (16-CA-305753; JD(SF)-23-24) Los Angeles, CA. Administrative Law Judge Amita Baman Tracy issued her decision on July 26, 2024. Charge filed by an individual.
B & L, Inc., d/b/a Boyds Drug Mart (18-CA-321513; JD-46-24) Rapid City, SD. Administrative Law Judge Arthur J. Amchan issued his decision on July 26, 2024. Charge filed by an individual.
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