05/02/2024: Getting a Restraining Order Against a Worker Can be an Unfair Labor Practice

A fun Bill Johnson's ALJ case.

JG Missouri LLC d/b/a Bloc Dispensary, 373 NLRB No. 54, 14-CA-323681 (Published Board Decision)

The General Counsel issued a complaint against this Employer. The employer failed to respond to the complaint within the time limit. The General Counsel motioned for default judgment. In this decision, the Board granted the motion for default judgment and made the following findings and orders.

1. The Board found that JG Missouri LLC violated Section 8(a)(5) and (1) of the National Labor Relations Act (NLRA) by:

   1. Failing to provide notice to and bargain with the Union over the effects of the Employer’s decision to cease operations on August 7, 2023 and lay off all unit employees.

   2. Failing and refusing to furnish the Union with requested information necessary for the Union's duties as the exclusive collective bargaining representative.

2. The remedy ordered includes:

   1. Backpay to unit employees from 5 days after the Board's decision until certain conditions are met, similar to the remedy in Transmarine Navigation Corp. as clarified by Melody Toyota.

   2. Compensation for adverse tax consequences of lump-sum backpay per Don Chavas, LLC.

   3. Filing a backpay allocation report per AdvoServ of New Jersey, Inc.

   4. Filing backpay recipients' W-2 forms per Cascade Containerboard Packaging—Niagara as modified in 371 NLRB No. 25.

3. The Board affirmed the long-held principle that the effects of a decision to close operations on unit employees is a mandatory subject of bargaining, citing Kohler & Sons, Inc. and Nick & Bob Partners.

Kaiser Foundation Hospital and Kaiser Foundation Health Plan, Inc. dba Kaiser Permanente, JD(SF)-13-24, 32-CA-282834 (ALJ Decision)

This is an Administrative Law Judge (ALJ) decision finding that Kaiser Foundation Hospitals and Kaiser Foundation Health Plan violated Sections 8(a)(1), (3), and (5) of the National Labor Relations Act (NLRA).

Key points from the legal analysis:

1. Kaiser violated Section 8(a)(5) by bargaining in bad faith with the International Union of Operating Engineers, Stationary Engineers, Local 39 (Union) from July 8 through September 19, 2021. Specifically, Employer refused to discuss economics, including wages, pensions and health benefits through September 17 for wages/pensions and through September 19 for other economic items. Citing T-Mobile USA, Inc. and Viking Connectors Co., the ALJ found this conduct alone supported the 8(a)(5) violation. Additional factors supporting the 8(a)(5) violation included:

   1. The lack of authority of Employer’s chief negotiator Mark Hollibush to bargain economics, which delayed bargaining, citing United Brotherhood of Carpenters & Joiners, Local 1780.

   2. Employer’s blanket rejection of the Union's proposals without explanation or counterproposal, citing Noah's Ark Processors, LLC.

   3. Hollibush's untrue statement on August 18 that Employer was still costing the Union's proposals when they had been costed by August 13, citing NLRB v. Truitt Mfg. Co..

   4. Employer’s bargaining strategy of possibly withholding economic proposals to Local 39 until it figured out economics with another union group.

2. Applying the framework from NLRB v. Burnup & Sims, the ALJ found Employer violated 8(a)(1) and (3) by discharging employee Richard Souza. Employer discharged Souza for alleged misconduct that occurred during the strike based on claims made in a declaration by security guard Alejandro Roque. The ALJ found the General Counsel showed the alleged misconduct did not occur, crediting Souza and other employee witnesses over the Roque declaration, as Roque did not testify. Wells Aluminum Corp.

3. Employer violated 8(a)(1) by its security guard Alejandro Roque threatening picketing employees with physical violence, telling them "I'm going to fuck you guys up" after his shift ended at 6pm. The ALJ found the Pinkerton security guards, including Alejandro and Maya Roque, were agents of Employer under common law agency principles. Bellagio, LLC.

4. Employer violated 8(a)(1) by filing a petition for a restraining order prohibiting Souza from coming within 100 yards of Kaiser's San Leandro medical center, as it effectively barred him from lawfully picketing on public property. This had an illegal objective under the Supreme Court's decision in Bill Johnson's Restaurants v. NLRB. The ALJ relied on Madsen v. Women's Health Center to find the 100-yard perimeter was far broader than needed to protect Kaiser's interests.

5. Employer violated 8(a)(1) by causing Souza's arrest on November 3 when he was peacefully picketing near the Union's strike camp, as the arrest was premised on the unlawful TRO prohibiting him from picketing within 100 yards of the facility. W.T. Carter & Brother.

6. Conversations between Souza and Employer’s attorney about the pending restraining order proceeding did not violate 8(a)(1). The attorney asked if Souza would share videos to resolve the matter and explained a potential outcome of the hearing could be a 3-year order, but made no unlawful threats.

Amazon.com Services LLC, JD(SF)-12-24, 19-CA-297441 (ALJ Decision)

This is an Administrative Law Judge decision finding that Amazon.com Services LLC (violated Section 8(a)(1) through certain statements made by its CEO Andy Jassy in nationally aired or available press interviews on April 14, June 8, and November 30, 2022.

Key points from the legal analysis:

1. The ALJ applied the standards set forth by the Supreme Court in NLRB v. Gissel Packing Co. for evaluating the lawfulness of employer predictions about the effects of unionization. Under Gissel, an employer may lawfully make predictions about unionization's effects on its business if the prediction is "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control." Otherwise, the prediction is an unlawful threat.

2. Applying Board precedent in Tri-Cast, Inc. and its progeny, the ALJ found that Jassy's statements that unionization would change the employee-employer relationship and make it more difficult to have direct relationships with management were lawful and dismissed those complaint allegations. The General Counsel urged the ALJ to limit Tri-Cast's application, but the ALJ deferred to the Board on whether to revisit that doctrine.

3. However, the ALJ found that Jassy's predictions that employees would be less empowered with a union and would find it harder to get things done quickly were unlawful threats violating 8(a)(1). These statements went beyond Tri-Cast by exceeding the types of comments about changes in the employee-employer relationship protected by that doctrine. They also failed to meet the Gissel standard, as Jassy provided no objective basis for either assertion. The ALJ cited Hendrickson USA, LLC and Starbucks Corp. where the Board found similar statements unlawful.

4. The ALJ also found that Jassy's statements that employees would be better off without a union were unlawful because they were accompanied by the coercive predictions above and thus relied on coercion rather than persuasion, distinguishing cases like Thomas Industries where "better off" statements unaccompanied by threats or promises were found lawful.

5. As a remedy, the ALJ recommended that Amazon be ordered to post and electronically distribute a notice to employees nationwide, citing the Board's decision in Tesla, Inc. ordering a nationwide remedy for the CEO's unlawful threat made via Twitter.

Charleston Healthcare Center, 09-RD-337190 (Regional Election Decision)

This is a standard case of unit employees filing a petition seeking to decertify the union as the unit’s bargaining representative. No legal issues are presented. The Regional Director just directs a decertification election.

Friends of the Children-Portland, 19-UC-323383 (Unpublished Board Decision)

The Employer filed a unit clarification petition seeking to have Accounting & Finance Manager Adam Zahn declared a supervisor. The Regional Director found that Zahn was not a supervisor. The Employer appealed this decision. The Board rejected the appeal. In the rejection, the Board noted that though Zahn gives out assignments, he does not do so using independent judgment and that Zahn’s participation in the hiring process amounts to merely screening applicants (Wake Electric Membership Corp.).

Starbucks Corporation, 05-RD-324214 (Unpublished Board Decision)

Some unit employees filed a petition seeking to decertify the Union as the unit’s bargaining representative. The Regional Director rejected the petition because it has already found merit in a Section 8(a)(5) refusal-to-bargain charge that is pending against the Employer and that would, if successful, result in a bargaining order or an extension of the time period during which a decertification petition cannot be filed (Rieth-Riley Construction Co., Inc.). The Employer requested a review of this decision and the Board rejected this request.

Starbucks Corporation, 27-RD-321383 (Unpublished Board Decision)

This is essentially the same thing as the prior case but for a different decertification petition for a different unit of Starbucks workers.