05/03/2024: A Rogue ALJ Refuses to Apply New Coercive Rules Standard Retroactively

It will probably be reversed.

Russell Reid Waste Hauling and Disposal Service Company, Inc., 373 NLRB No. 51, 22-CA-263364 (Published Board Decision)

The Board affirmed the Administrative Law Judge's (ALJ) finding that the Employer violated Section 8(a)(1) and engaged in objectionable conduct warranting a rerun election by issuing a memorandum on July 21, 2020 announcing that a regularly scheduled wage increase would be delayed in a manner that placed the onus for the delay on the Union and was otherwise coercive.

The Board agreed with the ALJ that the July 21 memo, posted solely at the facility with an upcoming union election, would reasonably tend to coerce employees based on its statement that employees who were "part of a collective bargaining unit (i.e., Union)" were ineligible for the wage increase. This suggested the delay due to the election could become permanent if employees unionized.

The Board found it unnecessary to rely on the ALJ's statements that the memo created an impression of surveillance and solicited grievances.

Significant cases applied:

• American Girl Place New York - An employer may postpone a wage/benefit adjustment before an election as long as it makes clear it will occur regardless of the election outcome and the sole purpose is avoiding the appearance of influencing the election.

• Earthgrains Baking Cos. - An employer violates 8(a)(1) by attributing failure to implement an expected adjustment to the union's presence.

Starbucks Corporation, 373 NLRB No. 48, 22-CA-305726 (Published Board Decision)

The Board affirmed the Administrative Law Judge's (ALJ) finding that the Employer violated Section 8(a)(5) by unreasonably delaying in furnishing the Union with relevant information it requested. The Employer did not begin fulfilling the Union’s information request until nearly 12 weeks after the Union’s first information request and nearly 8 weeks after the Union filed the charge in this case. The ALJ rejected the Employer’s arguments that the request was complex, voluminous, or not time-sensitive, finding that the Employer’s failure to timely respond or explain any difficulties was unreasonable. The months-long delay violated Section 8(a)(5).

Significant cases applied:

• Pennco, Inc. - Employers must promptly furnish unions with relevant requested information. Unreasonable delay is a violation.

• Monmouth Care Center - Multi-month delays in providing information is a violation.

• General Drivers, Warehousemen & Helpers - Factors considered in determining timeliness include nature of information, difficulty in obtaining it, time taken, reasons for delay, and communication of reasons.

• Alcoa Corp. - The General Counsel need not show animus, just an unreasonable delay based on the circumstances.

Prinkipas LLC d/b/a Lola Taverna, JD(NY)-07-24, 02-CA-311240 (ALJ Decision)

The Administrative Law Judge (ALJ) found that employee Felipe Amastal engaged in protected concerted activity when he:

1. Participated in a walkout to protest harassment by a newly hired chef and general manager. (Pain Relief Centers, P.A.)

2. Discussed group concerns with management at the pre-shift meeting and afterword at a bar. (Miller Plastic Products, Inc.)

The ALJ found that the Employer retaliated against Amastal by issuing him a final written warning and then discharging him for engaging in this protected activity. The ALJ found that the Employer also threatened employees with discharge for engaging in the walkout. Applying Wright Line, the ALJ found that the Employer violated Section 8(a)(1) and ordered the Employer to reinstate Amastal, make him whole for losses, remove the warning and discharge from his record, post a notice, and other standard remedial provisions.

West Shore Home, LLC, JD-25-24, 10-CA-260665 (ALJ Decision)

The Employer maintained a social media policy:

The policy stated that an employee may not, without express management approval, “Refer to or identify any Company customers/clients, vendors, or business partners.” The prohibition applied both to the employee's personal “channels,” such as a blog or Facebook page, and to professional “channels” such as LinkedIn and “industry-focused blogs.” It also extended to comments which employees' posted to news stories.

The Administrative Law Judge (ALJ) applied the Board’s standard for evaluating coercive rules (Stericycle) and determines that this rule is coercive as it would be read as prohibiting employees from communicating about their working conditions on social media (Valley Hospital Medical Center).

Strangely, the ALJ declines to find that the Employer violated Section 8(a)(1) by maintaining this unlawful social media policy because the policy would have been legal under the Board standard for evaluating coercive rules (Boeing) that was the controlling law when the Employer had the social media policy. Specifically, the ALJ concludes that retroactively applying the new Stericycle decision would be unfair and a denial of due process to the Employer.

This is strange because the Board’s decision in Stericycle specifically says that the new standard must be applied retroactively to any pending case in whatever stage. The only exception is if a retroactive application would “amount to a manifest injustice.” (SNE Enterprises) The ALJ does not analyze whether retroactive application in this case would result in “manifest injustice” and does not even cite or discuss SNE Enterprises.

I suspect the Board will reverse the ALJ on this and find a violation in this case.

Sutter Bay Hospitals, dba California Pacific Medical Center, 20-RM-339710 (Regional Election Decision)

The Board promulgated a regulation in 1990 that stated that there were eight appropriate bargaining units in acute care hospitals (Health Care Rule, § 103.30). But this rule does not apply to any existing units that do not conform to that rule. This case involves a non-conforming unit of registered nurses (RNs) that is seeking to add a group of midwives to their unit. This would not be permitted under the Health Care Rule, but that rule does not apply here.

Since the Health Care Rule does not apply, the Regional Director looks at traditional community-of-interest factors to determine that the midwives can be included in the RN unit. (St. Vincent Charity Medical Center)

Renal Treatment Centers – California, Inc. D/B/A Davita Concord Dialysis Center, 32-RC-337328 (Regional Election Decision)

The Union sought to represent a unit of of workers at one of the Employer’s facilities. The Employer argued that they must instead seek to represent a unit that included all 12 of its facilities in the region. Single-facility units are presumptively appropriate (D&L Transportation, Inc.) and the Employer in this case did not overcome that presumption.

Lycée Français de la Nouvelle-Orléans, 15-RC-333858 (Regional Election Decision)

The Union sought to represent a unit of teachers at this private school.

The Employer argues that the unit should include substitute teachers in it. Finding significant differences in wages, hours, benefits and other factors, the Regional Director concluded the substitute teachers lacked a sufficient community of interest with the full-time teachers to warrant their inclusion.

The Employer argues that the athletic coordinator is a supervisor. Applying Oakwood Healthcare, the Regional Director found insufficient evidence that the Athletic Coordinator exercised independent judgment in selecting coaches from already-employed teachers to establish supervisory authority.

There is also a tricky legal question with respect to the inclusion of foreign teachers hired through the International Associate Teacher Program (IATP). The IATP teachers are subject to terms and conditions of employment set forth by two entities: the Employer and the Council for Development of French in Louisiana (CODOFIL). CODOFIL is a political subdivision of a state and so is not normally subject to the jurisdiction of the NLRB (Hawking County).

This raises the question: can the Board impose bargaining obligations where one of the employers in a joint-employer arrangement is subject to the NLRA but the other is not? The answer is yes:

In Management Training Corp., the Board held it was appropriate to selectively impose bargaining obligations on one entity without determining whether it exercised sufficient control over employment terms to enable it to engage in meaningful bargaining, and to do so even though the Board lacked jurisdiction over an exempt government entity that otherwise might be deemed a joint employer.