04/07/2025: Union-as-Employer Dinged for Mistreatment of Union Staff

Case where it was too early to determine whether defamation suit was baseless and retaliatory.

International Brotherhood of Electrical Workers, Local 111, JD(SF)-09-25, 27-CA-301386 (ALJ Decision)

This Administrative Law Judge (ALJ) decision addresses the unusual situation where a labor union, the International Brotherhood of Electrical Workers (IBEW) Local 111, was charged with violating the NLRA as an employer when its own employees unionized. The decision found that Local 111 violated multiple provisions of the NLRA but also dismisses some of the allegations against Local 111.

Background

Local 111 represents over 4,400 members across Colorado and Wyoming. In February 2022, Leendert de Blaeij, an assistant business manager for Local 111, formed United Professionals International (UPI) and successfully organized his colleagues. Local 111 voluntarily recognized UPI as the bargaining representative for its business representatives, assistant business managers, organizers, and dispatchers in June 2022.

Shortly after a leadership change in July 2022, when Rich Gutierrez became the new business manager of Local 111, significant changes occurred in working conditions and personnel decisions that led to the unfair labor practice charges.

Violations Found

The ALJ found that Local 111 violated the NLRA in several ways:

1. Unlawful Unilateral Changes: Local 111 violated Section 8(a)(5) by unilaterally changing the unit employees' vehicle usage policy and hours of work. Previously, employees could use company vehicles for personal use and had flexible schedules, but Gutierrez eliminated personal vehicle use and instituted a strict 7:00 a.m. start time without bargaining with UPI.

2. Discriminatory Discharge: Local 111 violated Section 8(a)(3) by firing de Blaeij, the employee who organized UPI. The ALJ applied the Wright Line analysis and found that the General Counsel established a prima facie case of discrimination, which Local 111 failed to rebut. The ALJ found that Local 111's stated reason for firing de Blaeij (poor performance) was pretextual, citing the timing of the discharge, disparate treatment, and shifting justifications.

3. Coercive Statements: Local 111 violated Section 8(a)(1) when Gutierrez told de Blaeij, "we don't have union representation for you here" and "I don't recognize your stewards" during his termination.

4. Information Request Delays: Local 111 violated Section 8(a)(5) by unreasonably delaying its response to UPI's information request about employee terminations for nine weeks.

Rejected Allegations

The ALJ dismissed some allegations:

1. Bargaining Delay: The ALJ found that Local 111 did not unlawfully delay bargaining, as it offered multiple negotiating dates within a reasonable timeframe following the leadership change.

2. Section 8(a)(5) Violations for Terminations: Although Local 111 fired employees without notice or bargaining, the ALJ found this did not violate Section 8(a)(5), citing Board precedent that employers don't have an obligation to bargain prior to disciplining employees in accordance with established disciplinary policy.

Remedy

The ALJ ordered Local 111 to:

• Reinstate de Blaeij with backpay and make him whole for lost earnings and benefits

• Rescind the unilateral changes to hours of work and vehicle usage policies

• Compensate employees for any losses resulting from these unilateral changes

• Remove references to de Blaeij's discharge from its files

• Post notices about the violations

Significant Cases Cited

• Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing whether a discharge violates Section 8(a)(3).

• NLRB v. Katz, 369 U.S. 736 (1962): Defined the duty to bargain under Sections 8(a)(5) and 8(d) of the Act.

• Care One at New Milford, 369 NLRB No. 109 (2020): Established that employers do not have an obligation to bargain prior to disciplining unit employees in accordance with established disciplinary policy.

• NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): Established that an employer must provide sufficient relevant information to a union representing its employees.

• Security Walls, LLC, 371 NLRB No. 74 (2022): Clarified the General Counsel's burden under the Wright Line analysis.

Security Officers Association of America (Triple Canopy), JD(SF)-10-25, 27-CB-321988 (ALJ Decision)

This NLRB case involves allegations that the Security Officers Association of America (SOAA) committed unfair labor practices against three charging parties: Miranda Just, Brandon Pariscoff, and Askin Basarir, all of whom were employed as Protective Security Officers (PSOs) by Triple Canopy, Inc.

The case arose after these employees engaged in protected activities, including criticism of union leadership, filing internal union charges, and filing NLRB charges. The union no longer contested allegations regarding Just and Basarir. Just was threatened with fines, fees, legal action, and other reprisals for criticizing the union. Basarir had perceived misconduct reported to his employer in an attempt to cause him discipline.

The central issue concerned allegations that SOAA violated the National Labor Relations Act by threatening Pariscoff with legal action and by filing a defamation lawsuit against him based on his criticisms of the union. Pariscoff had been vocal in criticizing SOAA leadership, particularly regarding negotiations for a new collective bargaining agreement, financial management, and alleged violations of the union's bylaws. He sent mass emails to union members highlighting what he perceived as financial discrepancies and unethical conduct by union leadership.

In July 2023, the union filed a defamation lawsuit against Pariscoff in Colorado state court. The lawsuit challenged statements in Pariscoff's emails about the union's finances, alleging he falsely claimed the union engaged in misconduct, misappropriation of funds, and maintained "two sets of books." The lawsuit also challenged Pariscoff's interaction with the union's accounting firm.

The ALJ analyzed whether the lawsuit lacked a reasonable basis in fact or law, applying the Supreme Court's framework from Bill Johnson's Restaurants. The ALJ determined that the defamation lawsuit was not objectively baseless because it presented genuine factual disputes and legal questions that required either credibility determinations, inferences based on facts, or resolution of mixed questions of law and fact.

Key to the analysis was that under Linn v. Plant Guard Workers, a defamation claim in a labor context requires both a false statement of fact and proof of actual malice by clear and convincing evidence. The ALJ concluded that both elements presented genuine disputes that should be resolved by the state court.

The ALJ held in abeyance the allegations concerning the defamation lawsuit until its conclusion in state court, at which time any party may petition for relief as appropriate. The ALJ found that SOAA violated Section 8(b)(1)(A) of the Act by threatening Just with reprisals for criticizing the union and refusing membership. The ALJ also found that SOAA violated Sections 8(b)(1)(A), 8(a)(3), and 8(b)(2) by attempting to cause discipline of Basarir because of his protected activities.

The remedy ordered included posting notices and ceasing threatening or coercive conduct against members for criticizing the union or refusing membership.

Significant Cases Cited

• Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983): Established that the NLRB may not halt prosecution of a state-court lawsuit unless it lacks reasonable basis in fact or law and has retaliatory motive.

• Linn v. Plant Guard Workers, 383 U.S. 53 (1966): Held that defamation claims in labor disputes require proof of both actual malice and injury.

• BE&K Construction Co., 351 NLRB 451 (2007): Clarified that a reasonably based lawsuit, whether ongoing or completed, does not violate the Act regardless of motive.

• Beverly Health & Rehab. Servs., Inc., 331 NLRB 960 (2000): Applied Bill Johnson's framework to defamation lawsuits in labor context.

• Steelworkers Local 1397 (U.S. Steel Corp.), 240 NLRB 848 (1979): Established that an employee's right to engage in intraunion activities in opposition to incumbent leadership is protected concerted activity under Section 7.

Titan Truck & Equipment Company, LLC, 14-RC-361782 (Regional Election Decision)

In this April 7, 2025 decision, NLRB Region 14 Acting Regional Director Susan A. Wade-Wilhoit ruled on the appropriateness of a bargaining unit petitioned for by the International Union of Operating Engineers, Local 513. The union sought to represent six employees (Mechanics and one Yard Coordinator) at Titan Truck & Equipment Company's St. Louis, Missouri facility. The employer contested the petition, arguing that employees at its Birch Tree, Missouri location (seven Mechanics and one Lube Technician) should also be included in the unit.

The Regional Director found the single-facility unit appropriate, applying the Board's long-established presumption that single-facility units are presumptively appropriate unless effectively merged or functionally integrated to the point of losing separate identity. The decision analyzed five factors to determine whether the employer met its "heavy burden" of rebutting this presumption.

Central Control and Local Autonomy

While the facilities shared centralized policies, benefits and overall management, each location maintained significant local autonomy. Service Managers at each facility controlled day-to-day operations, assigning work, disciplining employees, approving time off, and providing training. Even when employees worked on projects outside their normal area, they continued reporting to their home facility's Service Manager. The Company President made ultimate hiring and disciplinary decisions but relied heavily on Service Managers' recommendations.

Employee Skills, Functions, and Working Conditions

Employees at both facilities shared similar skills and performed related repair and maintenance functions, but with notable differences. St. Louis Mechanics focused on asphalt projects in urban settings with smaller trucks, while Birch Tree Mechanics required MSHA certification to work in quarries and used larger trucks. Working conditions also differed seasonally, as St. Louis Mechanics worked indoors during winter months while Birch Tree Mechanics worked year-round in the field.

Employee Interchange

The Regional Director found limited evidence of significant interchange between facilities. While the employer provided examples of employees from both locations working on the same projects, the frequency and extent of interaction were not clearly established. No evidence showed any permanent transfers between facilities, and even when employees temporarily worked on projects near the other facility, they remained under their original supervisor's direction.

Distance Between Locations

The significant distance between facilities (174 miles, more than three hours by car) supported the finding of an appropriate single-facility unit, particularly given the minimal employee interchange and substantial local autonomy.

Bargaining History

No evidence of prior bargaining history was presented, making this a neutral factor in the analysis.

Based on these factors, the Regional Director concluded the employer failed to meet its burden of overcoming the single-facility presumption. The decision directed a manual election to be held on April 22, 2025, for a unit consisting of "All full-time and regular part-time Mechanics and Yard Operators employed by the Employer at its 1620 Woodson Road, St. Louis, MO 63114 facility."

Significant Cases Cited

• Hilander Foods, 348 NLRB 1200 (2006): Established that a single-facility unit is presumptively appropriate unless effectively merged or functionally integrated.

• Trane, 339 NLRB 866 (2003): Outlined the five factors used to determine whether a single-facility presumption has been rebutted.

• New Britain Transp. Co., 330 NLRB 397 (1999): Clarified that employee interchange requires a significant portion of the workforce to be involved and supervised by the other location.

• Starbucks Corp., 371 NLRB No. 71 (2022): Determined that infrequent, limited interchange does not establish a shared community of interest.

• Wheeling Island Gaming, 355 NLRB 637 (2010): Affirmed that the Act requires only that the unit be "an appropriate unit," not the only or most appropriate unit.