Summary of NLRB Decisions for Week of September 16 - 20, 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
Garten Trucking LC (10-CA-279843, et al.; 373 NLRB No. 94) Covington, VA, September 17, 2024.
The Board affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) when: a manager created an unlawful impression of surveillance of employees’ union activities during a conversation with an employee; a manager unlawfully interrogated employees on two separate occasions; and its supervisors and owners threatened employees on numerous occasions that it would close its business and they would lose their jobs if they selected the Union and informed them that selecting the Union would be futile because the Respondent would not deal with the Union. The Board also affirmed the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) when it disciplined two employees for their protected concerted activities, but that it did not violate Section 8(a)(3) and (1) when it disciplined another employee or when it suspended and discharged another employee. Additionally, the Board affirmed the judge’s conclusion that the solicitation and distribution policy in the Respondent’s employee handbook violated Section 8(a)(1). A majority (Chairman McFerran and Member Wilcox) severed and remanded the remaining employee handbook allegations for a new determination under Stericycle, Inc., 372 NLRB No. 113 (2023). Rather than remanding these remaining employee handbook allegations, Member Kaplan would have issued a Notice to Show Cause to inquire whether the parties would even welcome a remand. Finally, the Board unanimously issued an affirmative bargaining order.
Charges filed by Association of Western Pulp and Paper Workers. Administrative Law Judge Charles J. Muhl issued his decision on February 17, 2023. Chairman McFerran and Members Kaplan and Wilcox participated.
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Team Syracuse (03-CA-334257; 373 NLRB No. 104) East Syracuse, NY, September 17, 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)(1) by telling employees not to discuss wages with other employees.
Charge filed by an individual. Chairman McFerran and Members Kaplan and Wilcox participated.
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Longmont United Hospital and Centura Health (27-CA-291664; 373 NLRB No. 97) Longmont, CO, September 18, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Sections 8(a)(3) and (1) by discriminatorily withholding a series of four wage and benefit increases from a unit of registered nurses while the Respondent was challenging the certification of the unit.
Applying NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), the Board affirmed that the withholding of the wage increases adversely affected employees’ statutory rights, and the employer did not establish a legitimate and substantial business justification for its conduct. Member Prouty noted that he would find the exclusion of the nurses from the wage increases was inherently destructive of employee rights. The Board also found that the Respondent separately violated Section 8(a)(1) by announcing to employees at all 19 of its affiliated hospitals that the Longmont registered nurses were excluded from the wage increases. Members Prouty and Wilcox also found that the Respondent violated Section 8(a)(5) by excluding the unit of registered nurses from the final wage and benefit increase, which Chairman McFerran found it unnecessary to pass on that finding.
Charge filed by National Nurses Organizing Committee/National Nurses United. Administrative Law Judge John T. Giannopoulos issued his decision on March 28, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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Airgas USA, LLC (31-CA-226568 and 31-CA-260895; 373 NLRB No. 102) Burbank, CA, September 18, 2024.
The Board adopted the Administrative Law Judge’s conclusions that Respondent violated Section 8(a)(5) and (1) by unilaterally adjusting drivers’ schedules, reducing their hours, and changing overtime policies without affording the Union notice or an opportunity to bargain. The Board also found that the Respondent’s withholding of a wage increase in October 2018 did not violate Section 8(a)(5) and (1) and that the Respondent’s failure to provide a market adjustment in September 2018 did not violate Section 8(a)(3), (5) and (1), as none of these allegations was included in the complaint.
A majority (Chairman McFerran and Member Prouty) found that the Respondent’s withholding of the October 2018 wage increase violated Section 8(a)(3) and (1), as that wage increase was an established past practice. Member Kaplan would not find the Section 8(a)(3) and (1) violation because this wage increase was not an established past practice and there was insufficient evidence of animus. The same majority also found that the Respondent’s layoff of a driver violated Section 8(a)(5) and (1) because the layoff was a fait accompli, and the Respondent only offered to engage with the Union in effects bargaining and not decisional bargaining. Member Kaplan would not find that the layoff violated Section 8(a)(5) and (1) because the Respondent’s letter to the Union notifying it of the layoff could reasonably be construed as an offer to engage in both decisional and effects bargaining.
Additionally, a majority (Chairman McFerran and Member Prouty) ordered a make-whole remedy consistent with the Board’s decision in Thryv, Inc., 372 NLRB No. 22 (2022). Member Kaplan would not impose that extraordinary remedy, which, in his view, was vacated by the Fifth Circuit in Thryv, Inc. v. NLRB, 102 F.4th 727 (5th Cir. 2024).
Charges filed by International Brotherhood of Teamsters Wholesale Delivery Drivers, General Truck Drivers, Chauffeurs, Sales, Industrial and Allied Workers Local 848. Administrative Law Judge Ariel L. Sotolongo issued his decision on February 25, 2022. Chairman McFerran and Members Kaplan and Prouty participated.
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Starbucks Corporation (19-CA-301179; 373 NLRB No. 105) Seattle, WA, September 19, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by discarding union materials and by communicating to employees that they could not have or distribute union materials on the store premises. Specifically, the Board found that the Respondent orally promulgated a workplace rule prohibiting employees from possessing or distributing union materials storewide, and unlawfully enforced this rule by discarding the union materials.
Charge filed by Workers United Labor Union International, a/w SEIU. Administrative Law Judge Dickie Montemayor issued his decision on December 20, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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Lund Food Holdings, Inc. (18-RC-316373; 373 NLRB No. 107) Eden Prairie, MN, September 20, 2024.
The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. In denying review, the Board stated that even assuming that the individual in question was a supervisor within the meaning of Section 2(11) of the Act, the Employer had not shown that his conduct coerced employees under Harborside Healthcare, Inc., 343 NLRB 906 (2004). Member Kaplan expressed concerns about the Harborside Healthcare standard and stated that he was open to revisiting it in a future appropriate case.
Petitioner—Teamsters Local 120. Chairman McFerran and Members Kaplan and Wilcox participated.
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Paragon Systems, Inc. (06-CA-282943; 373 NLRB No. 108) Clarksburg, WV, September 20, 2024.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s noncompliance with the provisions of the parties’ bilateral informal settlement agreement. The Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain in good faith with the Union over an October 1, 2021 wage reopener in the parties’ collective-bargaining agreement. The Board ordered the Respondent to comply with the unmet terms of the settlement agreement.
Charge filed by United States Court Security Officers. Charman McFerran and Members Kaplan and Wilcox participated.
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Community Organized Relief Effort (31-CA-272228; 373 NLRB No. 106) Los Angeles, CA, September 20, 2024.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent is subject to the Board’s jurisdiction but reversed the judge’s ruling granting the Respondent’s Motion for Summary Judgment on the basis that the judge failed to apply the well-established standard for evaluating whether the Respondent’s statements violated Section 8(a)(1). The Board remanded the case to the judge for further appropriate action.
Charge filed by an individual. Administrative Law Judge Lisa D. Ross issued her decision on April 17, 2023. Chairman McFerran and Members Prouty and Wilcox participated.
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PG Publishing Co., Inc. d/b/a Pittsburgh Post-Gazette (06-CA-248017, et al.; 373 NLRB No. 93) Pittsburgh, PA, September 20, 2024.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain in good faith with the Union for a successor collective-bargaining agreement and by unilaterally changing employees’ terms and conditions of employment before reaching a valid bargaining impasse. The Board also adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by creating an impression of surveillance when its contracted security guards appeared to photograph unit employees’ peaceful protest outside its publisher’s house. The Board found that the Respondent did not provide a proper justification for its actions or show that it had a reasonable basis to have anticipated misconduct by the employees. The Board adopted the judge’s dismissal of allegations that the Respondent engaged in surveillance or created an impression of surveillance when its chief photo editor photographed employees’ peaceful public protest outside its offices, consistent with his role as a journalist. In addition to the standard remedies recommended by the judge, the Board ordered the Respondent to compensate the Union for all bargaining expenses incurred during the period of time it engaged in bad-faith bargaining, including wages lost by employee-negotiators for bargaining conducted during working hours.
Charges filed by Newspaper Guild of Pittsburgh/CWA Local 38061. Administrative Law Judge Geoffrey Carter issued his decision on January 26, 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
Nexstar Media Group, Inc. for their station, KDVR-TV/KWGN-TV (27-RC-333229) Denver, CO, September 19, 2024. The Board denied the Employer’s Requests for Review of the Regional Director’s Decision and Direction of Election and Decision and Certification of Representative as they raised no substantial issues warranting review. Petitioner—National Association of Broadcast Employees & Technicians – Communications Workers of America, AFL-CIO. Chairman McFerran and Members Prouty and Wilcox participated.
Nexstar Media, Inc. on behalf of its Denver Hub (27-RC-333280) Denver, CO, September 19, 2024. The Board denied the Employer’s Requests for Review of the Regional Director’s Decision and Direction of Election and Decision and Certification of Representative as they raised no substantial issues warranting review. Petitioner—National Association of Broadcast Employees & Technicians – Communications Workers of America, AFL-CIO. Chairman McFerran and Members Prouty and Wilcox participated.
C Cases
Meharry Medical College (10-CA-314858) Nashville, TN, September 17, 2024. The Board denied the Petition to Revoke the investigative subpoena duces tecum filed by Meharry Medical College, finding that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. The Board also found that the Petitioners failed to establish any other legal basis for revoking the subpoena. Charge filed by an individual. Chairman McFerran and Members Kaplan and Wilcox participated.
United States Postal Service (27-CA-313543) Englewood, CO, September 17, 2024. The Board granted the parties’ joint motion to waive a hearing and decision by an Administrative Law Judge and to transfer this proceeding to the Board for a decision based on a stipulated record. Charge filed by an individual.
Bar at 66 Greenpoint, LLC, d/b/a Nighthorse (29-CA-319202) Brooklyn, NY, September 19, 2024. No exceptions having been filed to the August 7, 2024 decision of Administrative Law Judge Lauren Esposito’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 an individual.
Resorts at Chester River Manor Corp. (05-CA-327371) Chestertown, MD, September 20, 2024. In this case alleging Section 8(a)(5) and (1) violations, the Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charge filed by 1199SEIU – United Healthcare Workers East a/w Service Employees International Union, SOS, CLC. Chairman McFerran and Members Kaplan and Wilcox participated.
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Appellate Court Decisions
Hudson Institute of Process Research f/k/a Hudson, a Professional Corporation and HIPR Pacsoft Technologies Inc., a joint employer, Board Case No. 06-CA-306766 (reported at 372 NLRB No. 73) (5th Cir. decided September 18, 2024).
In a published opinion in this test-of-certification case, the Court denied enforcement of the Board’s bargaining order that issued against this provider of immigration services to clients seeking employment-based visas which is headquartered in Ann Arbor, Michigan with offices in a variety of cities nationwide. Reversing, the Court agreed that the Board had permissibly found that an employer-wide bargaining unit would be appropriate, but held that the unit certified by the Board improperly included supervisors within the meaning of Section 2(11) of the Act.
In the underlying representation case, the United Electrical, Radio and Machine Workers of America (UE) Union filed a petition in August 2021 seeking an election in an employer-wide bargaining unit comprised of various teams that contribute to the preparation of employment-based visa applications, with each team focusing on one stage of the immigration process. Hudson opposed the petition on the ground that its Team Leads are statutory supervisors because they assign, reward, and discipline employees. Hudson also claimed that an employer-wide unit was inappropriate because employees in various locations did not share a sufficient community of interest.
After a hearing, the Regional Director issued a decision finding that Hudson had not met its burden of showing that the disputed Team Leads possessed supervisory authority, and included them in the bargaining unit. Applying the Board’s community-of-interest factors for a multifacility unit, the Regional Director found that Hudson had not rebutted the presumptively appropriate employer-wide unit. The Regional Director directed that an election be held, and thereafter Hudson filed a Request for Review, which was denied by the Board (Chairman McFerran and Members Wilcox and Prouty). In a mail-ballot election, the employees voted 87 to 1 for representation. After the Employer filed objections, the Regional Director overruled them, and the Employer’s Request for Review was denied by the Board. Thereafter, Hudson refused to bargain with the Union in order to seek court review.
The Court held that the Team Leads were supervisors excluded from the Act’s protections. For assessment purposes, the Court divided them into three groups: the Leads of the I-140 Team that handles initial immigration petitions, the Leads of the Request for Information (RFI) Team, and the Leads of the I-485 Team that assigns work to paralegals. On the authority of I-140 Team Leads to assign work to writers, the Court rejected the Board’s finding that they do not assign work using independent judgment because the assignments are largely accomplished by use of Hudson’s project management software. Despite the use of the software, the Court relied on evidence that the I-140 Team Leads retained the authority to assign. The Court, quoting the in-circuit precedent of STP Nuclear v. NLRB, 975 F.3d 507 (5th Cir. 2020), explained that “the possession of authority to engage in [supervisory] functions—even if this authority has not yet been exercised—is what determines whether an individual is a supervisor.” On this record, the Court noted further that the I-140 Team Leaders could assign using independent judgment because they had the discretion to consider personal experience, training, and ability in determining who shall do a job. On authority to reward, the Court held that the I-140 Leaders did effectively recommend rewards for writers because, on its view of the record, Hudson had shown a direct link between project feedback forms that the Leads filled out and the writers’ quarterly bonuses. On the authority of the RFI Team Leads to assign work, the Court stated that the Board’s finding was not supported by substantial evidence because there was testimony of current and former RFI Leads that they assigned work based on the writers’ skills and abilities. Lastly, the Court held that the I-485 Team Leads assign work to the writers using independent judgment because in making assignment determinations they are responsible for evaluating and assessing their team members’ skills. The Court declined to pass on the supervisory status of two other groups of employees in the Board-certified unit.
The Court’s opinion is here.
United Scrap Metal PA, LLC, Board Case No. 04-CA-268183 and 04-CA-315904 (reported at 372 NLRB No. 49, and 372 NLRB No. 107) (3d Cir. decided September 16, 2024).
In a published opinion, the Court enforced two Board orders that issued against this recycling facility in Philadelphia, Pennsylvania, where a unit of its unskilled laborers and equipment operators voted in a November 2020 election to be represented by the Laborers’ International Union of North America, Local 57. In addition to upholding the Board’s findings, as a preliminary matter, the Court rejected the Employer’s contention that the Board’s severance of the Ex-Cell-O remedy for later consideration had rendered the Court without jurisdiction. Agreeing with the reasoning of two sister circuits, the Court concluded that “the Board’s orders here are final, and that we have jurisdiction, because the issue of whether to adopt a new, additional remedy for refusals to bargain would not have any effect on the Board’s conclusion regarding the underlying charge,” citing NLRB v. Siren Retail Corp., 99 F.4th 1118 (9th Cir. 2024), and Longmont United Hospital v. NLRB, 70 F.4th 573 (D.C. Cir. 2023).
The first Board decision under review (372 NLRB No. 49) arose from a consolidated proceeding involving election objections and unfair-labor-practice allegations. On the objections, the Board (Members Kaplan, Wilcox, and Prouty) found that the Employer had failed to meet its heavy burden of proving objectionable conduct, and rejected its claims that an employee threat had created a general atmosphere of fear among voters, and that the Union had affected election fairness by taking pictures of employees who did not take union literature from union representatives. Among unfair labor practices, the Board found that the Employer violated Section 8(a)(1) by interrogating employees, soliciting grievances and impliedly promising benefits, assisting and encouraging the circulation of an antiunion petition, and by permitting antiunion activity by employees at its facility while barring employee prounion activity. Finally, the Board found that the Employer violated Section 8(a)(3) and (1) by changing employee work schedules the day after they elected the Union. In the second decision under review (372 NLRB No. 107), the Board (Chairman McFerran and Members Wilcox and Prouty) found that the Employer’s admitted refusal to recognize and bargain with the Union, and its failure to supply it with requested information, violated Section 8(a)(5) and (1).
On review, the Court held that the Board had not abused its discretion in overruling the objections, and rejected the Employer’s claims of objectionable conduct as founded on insufficient evidence. Given that the Employer did not contest that it violated Section 8(a)(1) in multiple ways during its antiunion campaign, the Court summarily enforced with regard to those findings. On the contested issue of whether the Employer violated Section 8(a)(3) and (1) by discriminatorily changing employee work hours immediately after the Union won the election, the Employer argued only that, regardless of its employees’ union activity, it nevertheless would have reduced work hours due to the economic impact of the COVID-19 pandemic, referencing an emergency order from the mayor of Philadelphia that issued that same day. On that defense, the Court agreed with the Board’s determination under Wright Line that the Employer’s claims were not credible based on evidence that it had maintained the same work schedule for many months during the pandemic, before suddenly changing the schedule after the Union won the election.
The Court’s decision is here.
McLaren Macomb, Board Case No. 07-CA-263041 (reported at 372 NLRB No. 58) (6th Cir. decided September 19, 2024).
In an unpublished opinion, the Court enforced the Board’s order that issued against this hospital in Mt. Clemens, Michigan, where its service employees are represented by Local 40 RN Staff Council, Office and Professional Employees International Union. In doing so, the Court upheld the Board’s finding that McLaren unlawfully presented furloughed employees with severance agreements that contained provisions restricting their rights under the Act, but did so on only one of the two bases relied on by the Board.
This case arose during the COVID-19 pandemic when, in June 2020, without notice to the Union, McLaren permanently furloughed 11 service employees, and presented each with a severance agreement. The employees all signed the agreements, which featured non-disparagement and confidentiality provisions, and offered a monetary payment in exchange for releasing McLaren from any claims arising out of the employee’s employment or termination. After the fact, the Union first learned of the agreements when a furloughed employee emailed a copy to the Union.
The Board (Chairman McFerran and Members Wilcox and Prouty; Member Kaplan, dissenting in part) found that McLaren violated Section 8(a)(5) and (1) by permanently furloughing the 11 employees without providing the Union with notice or an opportunity to bargain, and by dealing directly with the employees regarding the severance agreements. The Board also found that McLaren violated Section 8(a)(1) by offering the employees severance agreements that contained confidentiality and non-disparagement provisions. The Board explained that under its decisions in Baylor University Medical Center, 369 NLRB No. 43 (2020), and IGT, 370 NLRB No. 50 (2020), McLaren’s proffer of the severance agreements was unlawful because it was “part and parcel of [its] unlawful permanent furlough of the 11 employees, and was the product of its unlawful direct dealing with those employees.” The Board also found the severance agreements unlawful under its pre-Baylor standard for evaluating the legality of severance-agreement provisions, and overruled Baylor and IGT.
On review, the Court upheld the Board’s findings that McLaren’s unilateral furloughs of the 11 employees, and its direct dealing with them, were supported by substantial evidence and consistent with law. Regarding the furloughs, the Court found no evidence of exigent circumstances, and rejected McLaren’s only preserved defense that conditions during the COVID-19 pandemic required it to furlough the employees. Regarding its remaining defenses to the bargaining violations, the Court held they were barred from review by Section 10(e) of the Act because McLaren had failed to raise them before the Board.
Regarding the lawfulness of the severance agreements, the Court determined that it need not address both Board rationales, and addressed only the violation as found under the precedent of Baylor and IGT, which it found was supported by substantial evidence. The Court explained that because McLaren had “demonstrated its ‘proclivity to violate the Act’ through its failure-to-bargain and direct-dealing violations, we affirm the Board’s conclusion that the Hospital’s conduct violated Section 8(a)(1) under the standard articulated in Baylor and IGT.”
The Court’s decision is here.
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Administrative Law Judge Decisions
Starbucks Corporation (29-CA-309779 and 29-CA-323774; JD(NY)-21-24) Great Neck, NY. Administrative Law Judge Benjamin W. Green issued his decision on September 18, 2024. Charges filed by Workers United.
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