02/19/2025: Pointing Gun At Workers Demanding Their Pay Violates NLRA
Also, ALJ rejects claim that union violated its duty of fair representation.
Valladares Landscaping Artists, JD-08-25, 15-CA-306672 (ALJ Decision)
The case involves Valladares Landscaping Artists, LLC, which performed demolition and construction work in Houma, Louisiana. Two employees, Christian Martinez and Efren Velasquez, were fired after participating in protected concerted activities related to paycheck issues.
During late 2022, employees experienced problems cashing their paychecks. They engaged in group protests, including refusing to work until management addressed their concerns. Management responded with various threats, including telling employees to quit if they didn't like the conditions and threatening to fire those who wouldn't work.
Martinez and Velasquez, along with other employees, met with a workers' rights organization called Resilience Force on November 2, 2022. They were both fired that same day without explanation. The timing of their termination closely followed their meeting with Resilience Force, which was observed by a supervisor's wife at the church where the meeting took place.
After the firings, management continued retaliatory behavior, including physical threats. Mario Valladares pointed a gun at employees demanding their pay and was arrested for felonious assault. The owner, Josett Valladares, threatened Martinez regarding his immigration status after learning of NLRB charges.
The ALJ found multiple violations of Section 8(a)(1) of the National Labor Relations Act, including unlawful threats and the retaliatory discharges of Martinez and Velasquez. The judge ordered reinstatement with backpay and other remedial measures.
Significant Cases Cited
Starbucks Corporation, 373 NLRB No. 21 (2024): Clarifies the test for interference under Section 8(a)(1) based on whether conduct tends to interfere with protected concerted activity.
Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151 (2014): Discusses the protection of employee discussions regarding wages as part of concerted activity.
Central Valley Meat Co., 346 NLRB 1078 (2006): Establishes that explicit threats of discharge violate Section 8(a)(1).
Wright Line, 251 NLRB 1083 (1980): Established the causation test for discriminatory discharge cases.
UNITE HERE Local 26 (Encore Boston Harbor), JD-12-25, 01-CB-319086 (ALJ Decision)
Ahmed Gohari, a doorman at Encore Boston Harbor, was terminated for giving a coworker the middle finger in front of guests and for lying about the incident during the investigation.
Gohari was a member of UNITE HERE Local 26 (the Union). His coworker, Kamal Nadir, was a shop steward for the Union. On December 9, 2022, Gohari and Nadir argued in front of the casino. The argument was captured on video, but without audio. It is uncontested that Gohari called Nadir a thief, made disparaging comments about his family, swore at him, and gave him the middle finger.
Nadir complained to management about Gohari's behavior. The Employer investigated the incident and terminated Gohari for violating company policy. The Union decided not to file a grievance on Gohari's behalf because they felt they did not have a strong case, as the video confirmed Gohari's behavior and Gohari had lied during the investigation. Gohari filed a charge with the NLRB, alleging that the Union had violated Section 8(b)(1)(A) of the National Labor Relations Act by failing to process his grievance.
The ALJ held a hearing and found that the Union did not violate the Act. The ALJ reasoned that the Union's decision was not arbitrary, discriminatory, or in bad faith. The ALJ noted that the Union had conducted a thorough investigation, which included interviewing witnesses, reviewing the video footage, and discussing the matter with Gohari. The ALJ also noted that the Union had a reasonable basis for believing that Gohari's grievance was without merit, as the video confirmed that Gohari had engaged in the conduct he was accused of and that Gohari had been dishonest during the investigation.
Significant Cases Cited
Vaca v. Sipes, 386 U.S. 171 (1967): A union's failure to file or advance a grievance in a manner that is arbitrary, discriminatory or in bad faith is a violation of its duty of fair representation under Section 8(b)(1)(A).
Auto Workers Local 651 (General Motors Corp.), 331 NLRB 479 (2000): The Board does not determine whether a union's decisions are correct, but rather whether they are reasonable under the circumstances.
Local 337, Int'l Brotherhood of Teamsters, 307 NLRB 437 (1992): To establish that the Union’s decision was arbitrary, the General Counsel must show “more than mere negligence or the exercise of poor judgment.
Amalgamated Transit Union Local 1498, 360 NLRB 777 (2014): “A union’s actions are considered arbitrary only if the union has acted ‘so far outside ‘a wide range of reasonableness’ as to be irrational.
Ashland Hospital Corporation, JD-13-25, 09-CA-308275 (ALJ Decision)
This case involves the acquisition of King's Daughters Medical Center (KDMC) in Ashland, Kentucky by Royal Blue Health, a subsidiary of the University of Kentucky Medical Center, on December 1, 2022. The key issues are whether KDMC violated labor laws by withdrawing union recognition and refusing to engage in effects bargaining, and whether the successor entity became a political subdivision exempt from NLRB jurisdiction.
SEIU District 1199 represented KDMC employees since 1980. When the University acquired KDMC through its subsidiary, it declared it would no longer recognize the union, claiming the hospital had become a political subdivision of Kentucky exempt from NLRA coverage.
The ALJ ruled in favor of the employer on all counts. First, the judge found no violation in the withdrawal of recognition because the union never made a bargaining demand to the successor entity (UKKD). While UKKD would have been a "perfectly clear successor" required to bargain before making changes, this was moot since no changes were made.
On the political subdivision issue, the ALJ found UKKD remained subject to NLRA jurisdiction. The judge applied the Supreme Court's two-prong test: an entity must be either (1) created directly by the state or (2) administered by individuals responsible to public officials/general electorate. UKKD failed both prongs - it was created by the University's board, not the state directly, and its administrators were not directly accountable to public officials. The fact that UKKD operated facilities in Ohio further undermined its claim to be a Kentucky political subdivision.
Regarding effects bargaining, while KDMC should have been clearer about the timing of the acquisition, the union had opportunity to request bargaining between July-November 2022 but waited until after the transaction closed. Given no evidence of adverse effects on employees, the judge declined to order retroactive bargaining.
Finally, the ALJ found no violation in KDMC's failure to pay ratification bonuses to probationary employees, as this aligned with past practice and the union had not grieved similar exclusions previously.
Significant Cases Cited
NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971) - Established two-prong test for political subdivision status
Royal Midtown Chrysler Plymouth, 296 NLRB 1039 (1989) - Successor's bargaining obligation must be triggered by union demand
Canteen Corp., 317 NLRB 1052 (1995) - Defined "perfectly clear successor" doctrine requiring pre-implementation bargaining
Mass General Brigham Incorporated, 01-RC-345183 (Regional Election Decision)
The Massachusetts Nurses Association petitioned to represent approximately 30 registered nurses and nurse practitioners employed in Mass General Brigham's Occupational Health Department and Workers' Compensation Division across multiple locations. The employer argued for four separate bargaining units and claimed the case managers should be excluded as managerial employees.
The Regional Director found that the case managers were not managerial employees because their duties aligned with routine professional work rather than policy-making. While they make recommendations about workers' compensation claims, the actual policy implementation authority lies with the Workers' Compensation Evaluation Division.
On the appropriate bargaining unit question, the Director analyzed traditional community of interest factors and found that a single combined unit was appropriate because:
All employees share similar skills, education, and licensing requirements
They participate in the same training and on-call rotation system
Their work is functionally integrated in managing employee health
They operate under centralized HR policies and wage scales
There is some interchange between positions
Geographic dispersion was not determinative since the employer operates as an integrated system
The Director ordered an election in the petitioned-for unit through a mixed manual/mail ballot process, with in-person voting for Mass General Hospital Clinic employees and mail ballots for other locations.
Significant Cases Cited
Montefiore Hospital and Medical Center, 261 NLRB 569 (1982) - Managerial status cannot be based on routine professional duties
Capital Coors Co., 309 NLRB 322 (1992) - Single facility presumption doesn't apply to multi-facility units
WideOpenWest Illinois, LLC, 371 NLRB No. 107 (2022) - Functional integration exists when employees must work together to accomplish tasks
Family Values @ Work: A Multistate Consortium, Inc., 18-RC-345724 (Regional Election Decision
The case involved Family Values @ Work, where Office & Professional Employees International Union Local 39 sought to represent nine full-time and regular part-time employees in lead worker positions, including eight Directors and one HR Operations Associate. The key issue was whether these positions were managerial employees and/or supervisors under the National Labor Relations Act.
The Regional Director found that all eight Directors were both managerial employees and supervisors, while the HR Operations Associate was neither managerial nor confidential. Since a one-person bargaining unit is not appropriate under Board law, the petition was dismissed.
For the managerial determination, the evidence showed the Directors formulated and effectuated management policies through their roles on the Strategy and Sustainability Teams. They made significant decisions about organizational policies, budgets, and strategic direction. The OASIS Director, while not on these teams, had autonomous control over her program.
For the supervisory finding, the Directors demonstrated authority to assign work, responsibly direct employees, and make effective hiring recommendations using independent judgment. They conducted regular one-on-one meetings with staff, provided feedback, and evaluated performance. Most Directors also participated in hiring decisions for their departments.
Secondary evidence supporting supervisory status included substantially higher compensation than non-supervisory staff, attendance at supervisor-only meetings, and their self-identification as supervisors in company communications.
The HR Operations Associate was found not to be a confidential employee because, while having access to confidential information, there was no evidence the position assisted managers in labor relations matters as required under the "labor nexus" test.
Significant Cases Cited
NLRB v. Yeshiva University, 444 U.S. 672 (1980): Established standard for evaluating managerial status, particularly for professionals who participate in policy decisions.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined parameters for supervisory status, particularly regarding assignment and responsible direction of work.
NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170 (1981): Established the "labor nexus" test for determining confidential employee status.