03/28/2024: Amazon's Illegal Subpoenas.

Discovery requests can be unfair labor practices.

1. Accel Logistics, Inc., JD(SF)-11-24, 16-CA-291891 (ALJ Decision). Amelia Meghan Miles, a dispatcher at Accel, frequently communicated with drivers about their wage-related questions and efforts to verify their pay. Such discussions are protected activity under Section 7 of the NLRA. Accel's owner, Darin Pierson, threatened to discipline Miles if she continued these discussions, which violates Section 8(a)(1) of the NLRA. After resigning from Accel, Miles began working for Explore Group. Pierson then contacted Explore, defamed Miles, and issued an ultimatum that he would withhold trucking services from Explore unless they fired Miles. This was retaliation for Miles’ previous protected activity and therefore violated Section 8(a)(1) by interfering with Miles’ exercise of Section 7 rights, even though she was no longer employed by Accel.

2. Nexstar Media Group, Inc., 27-RC-333229 (Regional Election Decision). This is a case where the union sought to represent a unit of workers (production technicians, directors, and assignment editors) and the employer insisted that the unit include additional workers (photographers and maintenance engineers). The Regional Director applied Specialty Healthcare to conclude that the petitioned-for unit shared a community of interest with one another and that the excluded photographers and maintenance engineers did not share an overwhelmingly community of interest with the rest of the unit. Thus, the Regional Director directed an election for the petitioned-for unit.

3. Starbucks Corporation, 10-RD-323234 (Unpublished Board Decision). An employee filed a petition seeking to have the union decertified as the representative for the workers at the Starbucks store. The Regional Director dismissed the petition because there are pending refusal-to-bargain charges that, if proven, would result in a bargaining order or an extension of the time during which decertification petitions are not allowed to be filed.

4. Universal Protection Services, LLC, 373 NLRB No. 38, 12-CA-305972 (Published Board Decision). This is what’s called a “technical 8(a)(5)” case where, after a union election, the employer refuses to bargain with the union because they want to challenge certain aspects of the NLRB’s certification of the union as the bargaining representative. The NLRB found that the representation issues raised by the employer, such as the supervisory status of some workers, were or could have been litigated in the prior representation proceeding. The employer did not present any newly discovered and previously unavailable evidence or allege any special circumstances that would require the NLRB to reexamine the decision made in the representation proceeding. Accordingly, the employer did not raise any representation issue that was properly litigable in the unfair labor practice proceeding.

5. Nexstar Media Inc., 27-RC-333280 (Regional Election Decision). The Regional Director applied Oakwood Healthcare to conclude that the Shift Leads in the petitioned-for unit were not supervisors and therefore should be included in the unit.

6. Quickway Transportation, Inc., 09-CA-251857 (Board Appellate Brief). In response to their employees unionizing and out of fear that unionization would spread to other facilities, the employer in this case ceased its operations at its Louisville location. The Board ordered the employer to restore its operations and reinstate the affected workers. This brief defends that decision on appeal in the Sixth Circuit.

7. Starbucks Corporation, JD-19-24, 03-CA-315203 (ALJ Decision). This is a sprawling case involving many allegations of retaliation for engaging in union activity from Starbucks. The administrative law judge (ALJ) determined that the discharges of three employees were retaliatory, but that the coaching of one worker and reduction in hours for another were not retaliatory. The ALJ also found that Starbucks did not selectively enforce its attendance policy against pro-union employees.

8. Amazon.com Services LLC, JD(NY)-06-24, 29-CA-297454 (ALJ Decision). As part of its efforts to challenge the election at the Amazon Warehouse in New York City, Amazon sent some Amazon Labor Union leaders subpoenas requesting the production of certain documents. Under Board precedent, an employer may be deemed to have unlawfully interrogated or surveilled employees when it uses judicial or administrative discovery tools to obtain information ordinarily protected by Section 7 of the NLRA. In this case, the judge found that some Amazon’s challenged subpoena requests were unlawful in this way while others were not.

9. Longmont United Hospital and CommonSpirit Health, 27-CA-291664 (Injunction Appellate Brief). In 2021, registered nurses (RNs) at Longmont Hospital began organizing with NNU. NNU petitioned for a representation election. Through a lengthy election and certification process, Longmont made four separate announcements of systemwide wage and/or benefit increases for all employees across its network except the Longmont RNs seeking union representation. The Board pursued a 10(j) injunction against the company that asked the district court to, among other things, extend the raises to the nurses during the processing of the case at the NLRB. The district court agreed that the standard for issuing a 10(j) injunction was met but did not provide the raises as part of the remedy. The Board is appealing that decision in this brief and asking the Tenth Circuit to award the raises. The key argument for why the Tenth Circuit should do so is that, not doing so, risks irreparable harm in that support for the union may be permanently diminished if the affected individuals are made to wait through the entire Board process to receive the raises they are legally entitled to.