03/31/2025: Pac-Bell Unreasonably Delayed Responding to Information Request

This may be the last NLRB decision for a long time.

Pacific Bell Telephone Company D/B/a AT&T California, 374 NLRB No. 24, 20-CA-314296 (Published Board Decision)

On March 28, 2025, the Board (Chairman Kaplan and Members Prouty and Wilcox) affirmed Administrative Law Judge (ALJ) Ringler's findings that Pac-Bell violated Section 8(a)(5) and (1) of the Act by unreasonably delaying its response to the Union's December 6, 2022 information request. The Board emphasized that the 6-month delay was unreasonable under the circumstances, considering that the information requested was not complex, extensive, or difficult to obtain.

The information, requested in connection with a grievance regarding an employee's discipline, included documents regarding the grievant's employment, the investigation of an incident, and prior investigations of similar incidents. The Board noted that these types of requests are typical for discipline-related information requests and are not complex or hard to obtain.

Although the parties communicated reasons for some of the delay, such as extended vacations, Pac-Bell never provided clear reasons justifying the entire delay. The Board determined it was unnecessary to pass on whether Pac-Bell also violated the Act by unreasonably delaying its response to the Union's January 24, 2023 request since such a finding would not affect the remedy.

The Board amended the ALJ's conclusions of law to clarify that Pac-Bell violated Section 8(a)(5) and (1) specifically by unreasonably delaying the completion of its responses to the Union's December 6, 2022 request for information. The Board also modified the ALJ's recommended Order to remove the requirement that Pac-Bell grant Board agents access to monitor compliance with the notice-posting requirement, as this is only necessary in cases with extended notice periods or unusual circumstances.

The Board denied the Charging Party's requests for additional remedies, including an extended notice-posting period, paid time for employees to read the notice and decision, and a notice reading, finding these additional measures were not needed to remedy the effects of Pac-Bell's unfair labor practice.

Member Prouty noted that he would order a notice reading and distribution of the notice at the reading.

Significant Cases Cited

• General Drivers, Warehousemen & Helpers Local Union No. 89, 365 NLRB 1605 (2017): Sets forth factors the Board considers in assessing whether delay in providing information is unreasonable.

• Woodland Clinic, 331 NLRB 735 (2000): Found that an employer's approximately 7-week delay in providing requested information was unlawful where it did not provide evidence justifying the delay.

• United States Postal Service, 371 NLRB No. 7 (2021): Held that information sought regarding employee discipline was typical and not complex or hard to obtain.

• NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Established that employers must provide requested information to unions when there is a probability the information is necessary and relevant to representational duties.

• Ohio Power Co., 216 NLRB 987 (1975): Held that unions are entitled to information to determine whether to exercise their representative function in pending matters.

Tim Force Tin Shop, JD(SF)-07-25, 27-CA-322370 (ALJ Decision)

Case Overview

This case involves Tim Force Tin Shop, Inc., a Wyoming HVAC contractor, and allegations that it violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to execute and adhere to a collective bargaining agreement (CBA) that it had allegedly agreed to with the International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART) Northwest Regional Council Local 103.

Tim Force, owned by Jim Barankiewicz since 1990, has historically been a union contractor in Casper, Wyoming. The company and the Union had a CBA that expired on June 30, 2023. In the Casper area, only two HVAC contractors were unionized: Tim Force and Arrowhead Heating & Airconditioning. The practice had been for both companies to negotiate collectively with the Union but sign separate agreements with identical terms.

Negotiations Timeline

• February 2023: The Union notified both companies of its intention to open negotiations

• May 10, 2023: Initial negotiation meeting where the Union made proposals

• June 12, 2023: Union emailed a document titled "2023 Tentative Agreement" to both companies

• June 13, 2023: Critical phone conversations between Union representative Leatham and Barankiewicz

• June 13, 2023 (evening): Union held ratification meeting where members unanimously approved the agreement

• July 13, 2023: Union mailed copies of the agreement for signature

• Arrowhead signed and returned the agreement, but Tim Force did not

Key Disputed Facts

The central dispute concerned what was said during the June 13 phone conversations between Leatham and Barankiewicz. Leatham testified that Barankiewicz said he was "good with it" and told him to "take it to the membership" for ratification. Barankiewicz denied agreeing to the contract.

Legal Analysis

The ALJ applied the principle that a "meeting of the minds" is determined by objective manifestations of intent, not subjective beliefs. Given the parties' historical practice (negotiate, ratify, sign), Barankiewicz's statement to "take it to the membership" and "I'm good with it" objectively indicated agreement to the contract terms.

The ALJ cited precedent establishing that verbal acceptance of a CBA can be binding and that employee ratification of an agreement accompanied by a document showing all agreed-upon changes constitutes a "hallmark indication" that a binding agreement has been reached.

Conclusion and Remedy

The ALJ concluded that Tim Force violated Section 8(a)(5) and (1) of the Act by failing to execute and adhere to the agreed-upon CBA. The ALJ ordered Tim Force to:

1. Execute and adhere to the 2023 CBA with retroactive effect to July 1, 2023

2. Make employees whole for any lost wages or benefits

3. Make all required pension and benefit fund contributions

4. Compensate employees for adverse tax consequences

5. Post appropriate notices

Significant Cases Cited

• Delta Sandblasting Co., Inc., 367 NLRB No. 17 (2018): Established that verbal acceptance of terms of a collective-bargaining agreement will bind a party.

• Dist. 4, Communications Workers of America AFL-CIO v. NLRB, 59 F.4th 1302 (D.C. Cir. 2023): Unqualified ratification of a contract along with a document showing agreed changes is sufficient to show a binding agreement.

• H.J. Heinz Co. v. NLRB, 311 U.S. 514 (1941): Refusing to execute a written contract incorporating agreed-upon terms violates the Act.

• New Orleans Stevedoring Co., 308 NLRB 1076 (1992): The obligation to execute an agreement arises only after a "meeting of the minds" on all substantive issues occurs.

• NLRB v. Haberman Const. Co., 641 F.2d 351 (5th Cir. 1981): A union and employer's adoption of a labor contract is not dependent on the reduction to writing of their intention to be bound.

SEIU Local 32BJ (Westmoreland Protection Agency)., 12-CB-314929 (Advice Memo)

This advice memorandum addresses whether SEIU Local 32BJ violated Section 8(b)(1)(A) of the National Labor Relations Act by negotiating a pre-hire labor peace agreement with Westmoreland Protection Agency, Inc. (WPA) and demanding arbitration under that agreement.

The case involves security officers at public facilities in Broward County, Florida. Since 2021, the Union had represented security officers employed by Allied Universal Security Services at "Group 1" sites under a master collective bargaining agreement effective January 2022 to December 2024. In November 2022, WPA was awarded the Group 1 contract previously held by Allied.

On December 8, 2022, before WPA was officially awarded the contract, the company met with the Union and signed a labor peace agreement. In this agreement, WPA committed to hire as many incumbent Allied employees as possible, prioritizing seniority if there were more interested employees than positions. The agreement also required WPA to quickly finalize a collective bargaining agreement containing minimum economic standards from Allied's contract.

After WPA was awarded the contract, it began hiring but introduced terms different from Allied's contract, including less generous holiday pay and an allegedly inferior health plan. The Union objected and demanded arbitration, while WPA argued the agreement violated the Act. By March 1, 2023, WPA had hired a slim majority (76 of 146) of former Allied guards.

The Division of Advice concluded that WPA was a "perfectly clear" successor employer, which allowed the Union to lawfully engage with WPA over terms and conditions prior to hiring. A perfectly clear successor is established when an employer states its intent to retain predecessor employees without mentioning its intent to change employment terms.

The Division found that paragraph 3 of the agreement represented a commitment to retain enough Allied employees to comprise a majority of the new workforce. This was reinforced by statements from WPA's lobbyist shortly after signing, who indicated WPA would do everything possible to retain employees and maintain their wages and healthcare. Since WPA was a perfectly clear successor, the Union's negotiation of the pre-hire agreement and demand for arbitration were lawful.

Significant Cases Cited

• Road & Rail Services, 348 NLRB 1160 (2006): Held that perfectly clear successors can lawfully negotiate collective bargaining agreements prior to hiring employees.

• Canteen Co., 317 NLRB 1052 (1995): Established that employers who are silent about terms and conditions when stating intent to retain predecessor employees are perfectly clear successors.

• Adams & Assoc., Inc., 363 NLRB 1923 (2016): Found a successor's plan to retain enough predecessor employees to comprise a majority is sufficient to establish intent to retain.

• Dupont Dow Elastomers LLC, 332 NLRB 1071 (2000): Held that a perfectly clear successor's bargaining obligation begins when it states intent to hire predecessor employees without clarifying intent to change terms.

• Dana Corp., 356 NLRB 256 (2010): Established principles for pre-recognition framework agreements that do not apply to perfectly clear successor situations

New York Blood Center, 02-RC-333048 (Regional Election Decision)

NLRB Regional Director John D. Doyle Jr. directed a self-determination election for approximately 30 Therapeutic Apheresis Registered Nurses (Apheresis RNs) to determine whether they wish to join an existing bargaining unit of about 340 employees represented by 1199 SEIU United Healthcare Workers East at New York Blood Center.

The key issue was whether the Apheresis RNs share a community of interest with the employees in the existing unit, which primarily consists of Donor Specialists, Component Technicians, Clinical Laboratory Technicians, and other classifications. The Employer argued against including these professional employees in the existing unit, contending they lack a community of interest with current unit members and that any residual unit must include all unrepresented employees.

After applying the traditional Armour-Globe factors, the Regional Director found the petitioned-for voting group constitutes an identifiable and distinct segment that shares a community of interest with the existing unit. While acknowledging differences in skills, training, and supervision, the Director emphasized frequent contact between Apheresis RNs and Donor Specialists at fixed sites where they work side-by-side and assist each other with procedures. The Director also noted evidence of permanent transfers from Donor Specialists to Apheresis RN positions and similarities in certain working conditions.

Regarding the Employer's argument that any residual unit must include all unrepresented employees, the Director clarified that Board precedent requires only that a residual unit include "all unrepresented employees of the type covered by the petition," not all unrepresented employees generally.

The Director ordered a mail ballot Sonotone self-determination election due to the scattered nature of the Apheresis RNs' work locations across multiple states and approximately 160 hospitals. The Sonotone procedure will allow these professional employees to vote first on whether they wish to be included with non-professional employees and then on whether they wish to be represented by the petitioning union.

Significant Cases Cited

• Walt Disney Parks & Resorts, 373 NLRB No. 99 (2024): Clarified that when a petitioner seeks to add classifications to an existing unit, the standard is simply whether the petitioned-for employees share a community of interest with existing unit employees.

• St. Vincent Charity Medical Center, 357 NLRB 854 (2011): Established that the Board does not require a petitioned-for voting group to include all unrepresented residual employees.

• United Operations, 338 NLRB 123 (2002): Set forth the community of interest factors considered when determining whether employees should be grouped together for collective bargaining.

• San Diego Gas and Electric, 325 NLRB 1143 (1998): Established guidelines for determining when mail ballot elections are appropriate, including when voters are "scattered" over a wide geographic area.

• Warner-Lambert Co., 298 NLRB 993 (1990): Established that employees may vote to be included in an already represented unit if they constitute an identifiable, distinct segment and share a community of interest with unit employees.