02/04/2025: William Cowen Appointed as Acting General Counsel
An arguably unlawful union security clause passed muster.
On January 28, President Trump fired General Counsel Jennifer Abruzzo and replaced her with Acting General Counsel Jessica Rutter who he then fired three days later. Now Trump has appointed William Cowen as Acting General Counsel. Cowen is a conservative and therefore a more natural choice for Trump than Rutter was. George W. Bush appointed Cowen to serve as a Board member in 2002 and he subsequently served as the Executive Assistant to NLRB Chairman Robert Battista, who was also appointed by Bush. Cowen is moving to Acting GC from his current position as Regional Director of Region 21 (Los Angeles).
This is the fifth event on my Timeline of Notable NLRB Events During Trump's Second Term.
Tri-State Rigging LLC, 374 NLRB No. 21, 10-CA-344807 (Published Board Decision)
The NLRB issued a decision and order in the case of Tri-State Rigging LLC, finding that the company violated federal labor law by discharging employee Zachery Edwards for engaging in protected concerted activity. The case arose after Edwards was terminated following discussions with coworkers about wages. The General Counsel sought a default judgment because Tri-State Rigging failed to file an answer to the complaint despite repeated warnings and opportunities to do so.
The Board deemed the allegations admitted due to the Respondent's failure to timely respond. The legal analysis focused on whether the Respondent had good cause for not filing an answer. The Board rejected the Respondent's argument that it was waiting for evidence before responding, noting that respondents are not entitled to prehearing discovery. The Board emphasized that proceeding without counsel does not excuse compliance with procedural requirements.
The Board found that discharging Edwards for discussing wages constituted interference with employees' rights under Section 7 of the National Labor Relations Act. As a remedy, the Board ordered reinstatement, backpay, compensation for related expenses, and tax adjustments for Edwards. The decision also included provisions for removing references to the discharge from company records and posting notices of employee rights.
Significant Cases Cited
Patrician Assisted Living Facility, 339 NLRB 1153 (2003) - Pro se status alone does not establish good cause for failing to file a timely answer.
Thryv, Inc., 372 NLRB No. 22 (2022) - Established precedent for expanded make-whole remedies including compensation for direct or foreseeable pecuniary harms.
Airgas USA, LLC, 373 NLRB No. 102 (2024) - Clarified the Board's position on maintaining precedent despite adverse appellate court decisions.
Choice Aviation Service, 22-RC-356244 (Regional Election Decision)
On December 6, 2024, Amalgamated Production and Service Employees Union Local 22 filed a petition seeking to represent employees at Choice Aviation Services in Newark, who were currently represented by SEIU Local 32BJ. The key issue was whether the petition was barred by an existing collective bargaining agreement under the NLRB's contract bar doctrine.
The employer and SEIU had signed two agreements: an initial CBA effective February-June 2024, followed by a Memorandum of Agreement signed November 13, 2024, that was retroactively effective from March 1, 2024 to February 28, 2027. The petition would ordinarily be untimely as it was filed outside the 30-day window period for challenging representation.
The petitioner argued that the agreement's union security clause was unlawfully retroactive because it denied employees the statutory 30-day grace period before requiring union membership. The intervenor countered that the clause was lawful because it only applied when employment was "covered by" the agreement, meaning from its execution date forward.
The Regional Director found that while the union security clause was "arguably unlawful" regarding retroactive application, it was not "clearly unlawful on its face" or "incapable of lawful interpretation." Following Board precedent, particularly the Mountaire case, the Director determined the clause could be plausibly interpreted to give employees 31 days from the MOA's execution to become union members. Because the clause was at most ambiguous rather than clearly unlawful, the contract acted as a bar and the petition was dismissed.
Significant Cases Cited
General Cable Corp., 139 NLRB 1123 (1962): Established that valid CBAs bar representation petitions for up to three years.
Paragon Products Corp., 134 NLRB 662 (1961): Held that only union security clauses that are clearly unlawful on their face will prevent contract bar.
Mountaire Farms, 370 NLRB No. 110 (2021): Found a similar union security clause with retroactive language capable of lawful interpretation regarding the grace period.
Deluxe Metal Furniture Co., 121 NLRB 995 (1958): Established the 30-day window period for filing representation petitions.