Summary of NLRB Decisions for Week of July 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
Dumbo 301 LLC d/b/a Magic Tavern (19-CA-330910; 373 NLRB No. 72) Portland, OR, July 9, 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(a)(5) and (1) by failing and refusing to bargain collectively and in good faith with the Actors’ Equity Association.
Charge filed by Actors’ Equity Association. Chairman McFerran and Members Prouty and Wilcox participated.
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Trader Joe’s (16-CA-291179 and 16-CA-293143; 373 NLRB No. 73) Houston, TX, July 9, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by unlawfully disciplining and suspending an employee for engaging in protected concerted activity by voicing group pandemic safety concerns to management. The Board also adopted the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(1) by issuing an employee a negative performance evaluation. Finally, the Board found that the Respondent violated Sections 8(a)(1) and (4) by suspending and discharging an employee for filing charges with the Board, finding that animus motivated the Respondent’s decision to suspend and discharge her. A Board majority (Chairman McFerran and Member Wilcox) denied the General Counsel’s request for extraordinary remedies including notice reading and nationwide notice-posting. Dissenting in part, Member Prouty would order notice-reading.
Charges filed by an individual. Administrative Law Judge Kimberly R. Sorg-Graves issued her decision on March 1, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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Starbucks Corporation (19-RD-330839; 373 NLRB No. 74) Portland, OR, July 11, 2024.
The Board denied the Employer’s Request for Review of the Regional Director’s merit-determination dismissal of the decertification petition—which was premised on unfair-labor practice complaints, including one alleging that the Employer refused to meet and bargain with the Union and another alleging a failure to provide information to the Union, each of which seeks an affirmative bargaining order and extension of the certification year as remedies—presented no substantial issues warranting review. Dissenting, Member Kaplan would have granted review and ordered that the decertification petition be processed. With respect to the complaint alleging a refusal to meet and bargain, Member Kaplan would have granted review because the charge underlying the general refusal-to-bargain complaint was pending for over fifteen months before the decertification petition was filed, which was excessive delay. With respect to the information request complaint, Member Kaplan concluded that the requested remedies were not appropriate for the alleged violation and stated that he would find that a merit-determination dismissal premised on an alleged failure to provide information was appropriate “only where a causal nexus between the alleged failure to provide information and the decertification petition is properly demonstrated through a Saint Gobain hearing.”
Petitioner—an individual. Union—Workers United. Chairman McFerran and Members Kaplan and Wilcox participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Marist College (03-RC-127374) Poughkeepsie, NY, July 9, 2024. The Board adopted the Hearing Officer’s findings and recommendations to sustain the challenges to 34 dual-function employees and to overrule the challenges to two individual voters. The Board reversed the Hearing Officer and sustained the challenge to one individual voter. Petitioner—Service Employees International Union, Local 200 United. Chairman McFerran and Members Prouty and Wilcox participated.
C Cases
Starbucks Corporation (31-CA-296700) Paso Robles, CA, July 12, 2024. No exceptions having been filed to the May 31, 2024 decision of Administrative Law Judge Jeffrey P. Gardner’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 Workers United, a/w SEIU.
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Appellate Court Decisions
Troutbrook Company, LLC d/b/a Brooklyn 181 Hospitality, LLC, Board Case No. 29-CA-275229 (reported at 372 NLRB No. 26) (D.C. Cir. decided July 12, 2024).
In a published opinion, the Court enforced the Board’s order that issued against this Marriott-branded hotel in Brooklyn, New York, for unfair labor practices committed while bargaining for a first contract with the New York Hotel and Motel Trades Council, AFL-CIO. Previously, in the test-of-certification case, the D.C. Circuit upheld the Board’s certification of the Union as representative of 30 hotel employees. Troutbrook Co. LLC v. NLRB, 801 F. App'x 781 (D.C. Cir. 2020), enforcing 367 NLRB No. 139 (2019). In the current case, the Board (Chairman McFerran and Member Prouty; Member Ring, dissenting) found that the Employer failed and refused to bargain in good faith, in violation of Section 8(a)(5) and (1) by refusing to discuss economic subjects of bargaining with the Union until all non-economic subjects were resolved.
On review, the Court agreed with the Board that throughout the entire course of bargaining the Employer “never provided any counterproposals on economic subjects,” and instead steadfastly “insisted on discussing non- economic subjects first and continued to do so well after it became apparent that its approach was obstructing the parties’ ability to make progress towards reaching an agreement.” The Court also noted that, consistent with the Employer’s “firm stance on bifurcating negotiations, the Board found that over the course of the parties’ several bargaining sessions, the [Employer] never provided the Union with a single counterproposal on economic subjects.” The Employer argued that the Board misunderstood the intent behind its bargaining strategy, disregarded the effects of the Union’s conduct during bargaining, failed to consider the impact of the COVID-19 pandemic, which had required a hiatus in bargaining, deviated from Board precedent, and improperly sided with the Union’s substantive bargaining position. The Court found no merit in those arguments, and enforced the Board’s order in full.
The Court’s opinion is here.
Lion Elastomers LLC, Board Case No. 16-CA-190681 (reported at 372 NLRB No. 83) (5th Cir. decided July 9, 2024).
In a published opinion issued after the case had returned to the Fifth Circuit on review, the Court vacated and remanded the Board’s supplemental order that issued against this manufacturer of rubber products in Port Neches, Texas, for violating Section 8(a)(3) and (1) for disciplining and discharging an employee who repeatedly directed questions about overtime and safety to an evasive manager at a safety meeting. Without reaching the merits, the Court determined that the Board had exceeded the scope of its earlier remand order.
In its initial decision (369 NLRB No. 88), the Board (Chairman Ring and Members Kaplan and Emanuel) found the discipline and discharge of the employee unlawful under the standard of Atlantic Steel Co., 245 NLRB 814 (1979). After the Employer petitioned for review, and briefing was underway, the Board issued General Motors, LLC, 369 NLRB No. 127 (2020), overruling Atlantic Steel, and announcing that Wright Line instead was the appropriate test for analyzing employee misconduct that occurred in the course of protected activity. Given the change in precedent, the Board sought a remand to determine whether General Motors affected its analysis of the case, which the Court granted.
On remand, the Board invited the parties to simultaneously file position statements. The General Counsel argued that the Board should reverse General Motors, while the Employer argued how General Motors should be applied to the case. The Employer then moved to respond to the General Counsel’s position, which the Board denied. In its supplemental decision (372 NLRB No. 83), the Board (Chairman McFerran and Members Kaplan, Wilcox, and Prouty) “decided to overrule General Motors and to return to earlier Board precedent, including Atlantic Steel, applying setting specific standards aimed at deciding whether an employee has lost the Act’s protection.” Finding no basis to revisit its earlier determination rendered under Atlantic Steel, the Board reaffirmed its initial decision.
Back on review, the Court held that the remand order “was not an invitation for the Board to reconsider what legal standards should apply but rather an instruction to apply the legal standards set forth in General Motors.” Thus, the Court held that the Board exceeded the scope of the remand, and also held that the Employer’s due-process rights had been violated by not permitting it an opportunity to respond to the General Counsel’s argument.
The Court’s opinion is here.
GHG Management LLC, d/b/a Windy City Cannabis and d/b/a Curaleaf Weed Street, Board Case No. 13-CA-295623 (reported at 372 NLRB No. 13) (D.C. Cir. decided July 9, 2024).
In a published opinion, the Court granted the petition for review in this test-of-certification case filed by this retail cannabis dispensary in Chicago, Illinois, and remanded for the Board to provide further explanation. The Court also expressly noted that, at this point, because it had not passed on the merits of the Employer’s election objections, the Board need not set aside the mail-ballot election conducted in March 2021, in which the employees voted 11 to 10 in favor of representation by the United Food and Commercial Workers Local 881.
In the underlying representation case, the parties reached a stipulated election agreement for a mail-ballot election, and later reached a second agreement extending the voting period and the ballot count. After the ballot count, one employee’s ballot arrived at the Region, a second employee’s ballot never arrived, and a third employee never received the ballot that the Region had mailed to him. The Employer filed objections, which included claims of voter disenfranchisement based on mail delays caused in part by the Region’s processing of ballots, and by the misconduct of a Board agent who failed to notify the parties about a known outstanding ballot. The Employer further claimed that the Region unilaterally forced the postponement of the ballot count and failed to issue a new notice of election to employees.
After a virtual hearing, the Hearing Officer prepared a report on objections that concluded that the Employer failed to establish that the alleged Board agent misconduct, procedural irregularities, or other ostensibly objectionable conduct raised a reasonable doubt as to the election’s fairness and validity. On exceptions, the Acting Regional Director overruled the objections and certified the Union, and the Employer then filed a request for review. The Board (Members Kaplan, Wilcox, and Prouty) granted review on the objection that claimed that a Board agent affected the election’s outcome by misrepresenting the status of a single mail ballot, and denied review in all other respects. In its decision on review, the Board (Member Kaplan, dissenting) affirmed the Acting Regional Director’s overruling of that objection, but it did so only for the reasons stated in its decision. The Employer then refused to bargain in order to seek court review.
On review, the Court held that the Board had not justified its application of two different tests that derive from separate lines of Board decisions: the “possible-disenfranchisement test,” under such cases as Garda World Sec. Corp., 356 NLRB 594 (2011), and the “reasonable-doubt test,” under such cases as Guardsmark, LLC, 363 NLRB 931 (2016). The Court explained that while the Board also relied on other more specific Board precedent—for example, Board decisions that address how to evaluate mail irregularities—"the two aforementioned tests provided the overarching framework for the Board’s evaluation of the [Employer]’s objections.” Thus, the Court was “unsure whether the Board’s approach was reasonable in light of its precedent,” and remanded for the Board to explain “when those (or other relevant) tests apply and why the specific conduct [the Employer] objects to in this case should be evaluated under one test instead of another.” In the meantime, the Court instructed that the Board need not set aside the election because its decision had not passed on the ultimate merits of the Employer’s election objection.
The Court’s opinion is here.
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Administrative Law Judge Decisions
PG Publishing Co., Inc., d/b/a Pittsburgh Post Gazette (06-CA-269416, et al.; JD-41-24) Pittsburgh, PA. Administrative Law Judge Geoffrey Carter issued his decision on July 9, 2024. Charges filed by Pittsburgh Typographical Union No. 7, a/w the Communications Workers of America, AFL-CIO, and its Local 14827.
X Corp., f/k/a Twitter, Inc. (20-CA-313740; JD(SF)-20-24) San Francisco, CA. Administrative Law Judge Sharon Levinson Steckler issued her decision on July 9, 2024. Charge filed by an individual.
Laborers International Union of North America, Local 872, AFL-CIO (Various Employers, including the Employer-Members of Nevada Contractors Association) (28-CB-239339, et al.; JD(SF)-21-24) Las Vegas, NV. Administrative Law Judge Mara-Louise Anzalone issued her decision on July 11, 2024. Charges filed by individuals.
MMC UWS, Inc. and Harlem Baking Co., Inc., a single employer, d/b/a Make My Cake (02-CA-290095; JD(NY)-17-24) New York, NY. Administrative Law Judge Lauren Esposito issued her decision on July 12, 2024. Charge filed by an individual.
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