03/04/2025: USPS Dinged for Retaliating Against Union President
Delaying post-strike reinstatement is lawful if needed to secure temporary replacements.
United States Postal Service, JD-18-25, 07-CA-292942 (ALJ Decision)
This case involves the United States Postal Service (USPS) and the National Association of Letter Carriers (NALC). The NLRB found that USPS violated the National Labor Relations Act through overly broad handbook policies and unlawful suspension of a union official's computer access.
Administrative Law Judge Christine E. Dibble found that USPS violated Section 8(a)(1) and 8(a)(3) of the Act in two ways:
By maintaining overly broad and ambiguous policies in Employee Handbook AS-805 that could reasonably be interpreted to restrict employees' Section 7 rights. Specifically:
Rule 5-1 required prior approval for activities not explicitly covered and banned communications that could damage the Postal Service's "operations, image, or financial interests"
Rule 5-3.1 prohibited certain uses of electronic devices in ways that could restrict protected union communications
By suspending the computer and email access of John Odegard, a union president, after he replied to a mass email about safety. The email in question was sent by District Safety Manager Kimberly Green with the subject "You Are a Valued Employee Safety Talk." Odegard responded that employees in Ann Arbor were not valued, citing unaddressed safety hazards including COVID mask violations and supervisors vaping on the workroom floor.
Applying the Wright Line analysis, Judge Dibble determined that:
Odegard was engaged in protected union activity when he sent the email
He signed the email as union president and was on official union time
USPS had knowledge of his protected activity
Animus was demonstrated by the timing of the suspension (same day as the email) and management's admission that Odegard's complaints made management "look bad"
USPS failed to show it would have taken the same action regardless of protected activity
The Judge rejected USPS's claims that it had legitimate security concerns, finding this explanation pretextual. She noted that Postmaster Orlando admitted there was "animosity" with Odegard over grievances and that Odegard's email made management "look bad."
The ALJ ordered USPS to:
Revise or rescind the unlawful handbook rules
Reinstate Odegard's computer and email access
Expunge references to the suspension from personnel files
Post notices informing employees of their rights
Significant Cases Cited:
Stericycle, Inc., 372 NLRB No. 113 (2023): Established new standard for analyzing facially neutral workplace rules that may affect Section 7 rights.
Chromalloy Gas Turbine Corp., 331 NLRB 858 (2000): Held that prior approval requirements for protected activities are unlawful.
Wright Line, 251 NLRB 1083 (1980): Established framework for analyzing discrimination cases where employer's motivation is at issue.
Lafayette Park Hotel, 326 NLRB 824 (1998): Set standard that rules would be unlawful if they reasonably tend to chill employees in exercising Section 7 rights.
Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, 368 NLRB No. 143 (2019): Established that employers may restrict nonbusiness use of IT resources absent discrimination or deprivation of reasonable communication means.
Sutter Valley Hospitals D/B/a Sutter Solano Medical Center, JD-17-25, 20-CA-295261 (ALJ Decision)
This case involves a labor dispute between multiple Sutter Health hospital affiliates and two unions - the California Nurses Association (CNA) and the Caregivers and Healthcare Employees Union (CHEU). The dispute centered on whether the hospitals unlawfully delayed reinstating approximately 7,000 nurses and technical employees following a 24-hour economic strike conducted on April 18-19, 2022.
The unions provided strike notices on April 7, 2022, which included unconditional offers for the striking employees to return to work immediately following the strike at 7:00 a.m. on April 19, 2022. Prior to the strike, the hospitals had contracted with staffing agencies (primarily U.S. Nursing) to provide temporary replacements, with agreements containing five-day minimum guarantees - meaning the hospitals were obligated to pay for these replacements for a minimum of five days (60 hours) regardless of how long the strike lasted.
The hospitals informed employees before the strike that there would be a five-day "replacement period" from April 18 to April 23, 2022, during which most striking employees would not be reinstated. On April 17, the day before the strike, the hospitals offered to let union employees work their normal shifts if the unions called off the strike by 2:00 p.m. that day. If called off after that deadline, the hospitals indicated employees could return to work within 24-48 hours. The unions did not call off the strike, and it proceeded as planned. Most striking employees were not reinstated until April 23, 2022.
The General Counsel alleged that the hospitals: (1) violated Section 8(a)(1) by threatening to delay reinstatement; (2) violated Section 8(a)(3) and (1) by actually delaying reinstatement; and (3) violated Section 8(a)(5) and (1) by setting terms for temporary replacements without bargaining with the unions.
Administrative Law Judge Andrew S. Gollin dismissed all allegations. The central issue was whether the hospitals had a "legitimate and substantial business justification" for delaying reinstatement. Judge Gollin found that the five-day minimum guarantees in the contracts with staffing agencies constituted such a justification. The judge determined that U.S. Nursing and Prolink (another staffing agency) required these guarantees as a condition for providing replacements, especially given the unprecedented potential size and scope of the strike and the nursing shortage exacerbated by the pandemic.
The judge rejected the General Counsel's argument that the hospitals needed to prove they attempted to negotiate shorter guarantee periods. He found that Sutter Health had inquired about flexibility in the guarantees but was told none was available. This was consistent with past practice, as Sutter affiliates had used similar five-day guarantees during previous strikes, which had been upheld as legitimate justifications in prior NLRB cases.
The judge also rejected arguments that the hospitals' April 17 offer (to allow employees to work if the strike was called off) demonstrated anti-union animus. He found the offer was motivated by a desire to avoid the disruption a strike would cause, not to punish employees for exercising their rights.
Regarding the failure to bargain allegation, the judge cited established precedent that struck employers have the right to unilaterally set terms for temporary replacements without bargaining with the unions, as requiring bargaining would undermine the employer's right to hire replacements during an economic strike.
Significant Cases Cited
NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967): Established that employers must reinstate economic strikers upon unconditional offer to return unless there is a legitimate and substantial business justification.
Pacific Mutual Door Co., 278 NLRB 854 (1986): Held that contractual obligations to temporary replacements can serve as legitimate business justification for delaying striker reinstatement.
Sutter Roseville Medical Center, 348 NLRB 637 (2006): Upheld reinstatement delay based on five-day minimum guarantee for agency-supplied replacements in similar Sutter Health strike.
Harvey Manufacturing, Inc., 309 NLRB 465 (1992): Distinguished from Pacific Mutual Door where employer failed to establish contractual provisions were necessary to secure replacements.
Detroit Newspaper Agency, 327 NLRB 871 (1999): Confirmed struck employers may unilaterally set terms for temporary replacements without bargaining with unions.
Public Storage Operating Company, 02-RC-353072 (Regional Election Decision)
Regional Director John D. Doyle, Jr. determined that a petitioned-for multi-facility bargaining unit was appropriate for representation by United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 2179.
The case involved Public Storage Operating Company employees at eight facilities located in the Bronx, Mt. Vernon, Pelham, and Yonkers, New York. The petitioned-for unit included approximately 29 employees. The employer contended that this unit was inappropriate and that any appropriate unit must also include four additional facilities in New York and eleven facilities in New Jersey, which would expand the unit to approximately 55 employees.
The primary issue was whether the petitioned-for multi-facility unit shared a community of interest distinct from employees at the excluded facilities. The Regional Director analyzed several factors:
Skills and Duties: All property managers perform the same duties across facilities, which weighed against finding a distinct community of interest.
Terms and Conditions of Employment: All facilities have the same wages, personnel policies, and benefits, which also weighed against finding a distinct community of interest.
Employee Interchange: The record showed significant interchange among the eight petitioned-for facilities (271 occasions) but no interchange between the petitioned-for facilities and the employer's excluded facilities. This factor strongly favored finding a distinct community of interest.
Functional Integration: The eight petitioned-for facilities demonstrated greater functional integration with each other than with excluded facilities, with employees having regular contact within the petitioned-for unit but no contact with employees at excluded facilities.
Centralized Control: While there was common supervision within districts and centralized management over all districts, the Regional Director found this factor neutral since neither party sought to include all facilities under the same regional management.
Geographic Proximity: The eight petitioned-for facilities were all located east of the Hudson River (in Bronx and Westchester counties), while the excluded facilities were west of the Hudson (in New Jersey, Rockland County, and Orange County). Though some excluded facilities were geographically close to petitioned-for facilities, the Hudson River formed a natural boundary. This factor was deemed neutral.
Bargaining History: There was no prior collective bargaining history, making this factor neutral.
The Regional Director concluded that the petitioned-for multi-facility unit was appropriate primarily because of the substantial employee interchange within the unit and the complete absence of interchange with excluded facilities, as well as the functional integration among the petitioned-for facilities. Although some factors weighed against finding a distinct community of interest, the Regional Director determined that the interchange and functional integration factors were sufficient to establish that the petitioned-for unit was appropriate.
Significant Cases Cited
AT&T Mobility Services, LLC, 371 NLRB No. 14 (2021): Established factors for determining whether a petitioned-for unit must include additional locations.
Audio Visual Services Group, LLC, 370 NLRB No. 39 (2020): Found employee interchange and functional integration weigh in favor of a petitioned-for unit when employees have more contact with each other than with excluded employees.
Laboratory Corp of America Holdings, 341 NLRB 1079 (2004): Established that multi-facility units are not presumptively appropriate and must be evaluated based on community of interest criteria.
Bashas' Inc., 337 NLRB 710 (2002): Demonstrated the Board is disinclined to find multi-facility units appropriate when petitioned-for facilities have no more functional interchange with each other than with excluded facilities.
Alamo Rent-A-Car, 330 NLRB 897 (2000): Applied community of interest analysis to multi-facility units.
Airgas Specialty Products, Inc, 09-RC-346757 (Regional Election Decision)
This decision addresses whether a petitioned-for bargaining unit consisting of bulk delivery drivers at Airgas Specialty Products, Inc.'s Jeffersonville, Indiana facility constitutes an appropriate unit for collective bargaining. The General Drivers, Warehousemen and Helpers Local Union No. 89 (Teamsters) sought to represent a unit of bulk delivery drivers, including a plant operator who primarily performs delivery work. The Employer opposed this unit, arguing that field service technicians share an overwhelming community of interest with the drivers and must be included in any appropriate unit.
The facility employs 11 workers: five bulk delivery drivers, five field service technicians, and one plant operator. The drivers deliver ammonia products to customers within a 250-mile radius, while field service technicians provide installation, maintenance, and repair services nationwide. The plant operator, Mike Melton, was originally hired as a bulk delivery driver but was reassigned to the plant operator role in April 2024, with the majority of his time still spent performing delivery duties.
The Regional Director analyzed whether the drivers constitute an appropriate bargaining unit using the "overwhelming community of interest" standard from American Steel Construction. This examination required determining: (1) if employees in the petitioned-for unit share an internal community of interest; (2) if the unit is readily identifiable as a group; and (3) if the petitioned-for unit has sufficiently distinct interests from excluded employees (field service technicians).
The analysis examined several factors, including supervision, skills and training, job duties, functional integration, employee contact, interchange, and terms of employment. The Regional Director found significant differences between drivers and technicians:
Supervision: Drivers are supervised by Karen Rapp, while technicians report to Mike Hunter, who works remotely.
Skills and Job Functions: Drivers primarily need driving skills, while technicians require mechanical aptitude and knowledge of chemistry and physics.
Job Duties: Drivers make local deliveries, while technicians perform repairs, pump-outs, installations, and maintenance across the country.
Interchange: Any interchange is predominantly one-way, with technicians occasionally covering driver duties, but drivers rarely performing technician work.
Employee Contact: Drivers and technicians rarely interact, with testimony indicating they can go weeks without seeing each other.
Terms of Employment: Significant wage differences exist ($29.35/hour for drivers vs. $34.13/hour for technicians), along with different travel requirements and per diem allowances.
The Regional Director concluded that the field service technicians do not share an overwhelming community of interest with the drivers. Additionally, Melton, the plant operator, was classified as a dual-function employee who performs driver duties for approximately 80% of his time, giving him a substantial interest in the unit's working conditions.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Reinstated the "overwhelming community of interest" standard for determining unit appropriateness.
Air Liquide America Corp., 324 NLRB 661 (1997): Established the test for determining whether dual-function employees should be included in a unit.
Specialty Healthcare, 357 NLRB 934 (2011): Set forth the three-element test for analyzing whether a petitioned-for unit of a subset of employees is appropriate.
The Boeing Company, 368 NLRB No. 67 (2019): Clarified that the Board's unit inquiry begins with the petitioned-for unit, and if appropriate, the inquiry ends.
PCC Structurals, Inc., 365 NLRB No. 160 (2017): Previous standard for determining unit appropriateness, which was overruled by American Steel Construction.
Republic Services, 03-CA-344191 (Advice Memo)
In one sentence, the NLRB Division of Advice directs the Region not to issue complaint against a company alleging that they maintained an overbroad confidentiality clause:
With regard to the Region’s submission in the abovecaptioned case, we agree with the Region that the lack of a time limitation on the scope of the severance agreement’s confidentiality clause and the inclusion of “customers” in that clause, which solely references Trade Secret Information, do not render the agreement unlawfully overbroad.
From this, it is clear that merely mentioning customers in your confidentiality clause is not enough to have it invalidated under Stericycle.