05/07/2025: Costco's Investigative Confidentiality Rule Violated NLRA

United Steel Workers violated the duty of fair representation.

Costco Wholesale Corp., JD-38-25, 10-CA-316194 (ALJ Decision)

This case involves allegations that Costco Wholesale Corp. violated Section 8(a)(1) of the National Labor Relations Act through two actions: (1) maintaining overly broad work rules in its "Acknowledgement of Confidentiality for Investigations" form, and (2) directing employees not to discuss their terms and conditions of employment by instructing them to maintain confidentiality about workplace investigations.

Jessica Marie Georg, a maintenance assistant at Costco's Winston-Salem store, filed a sexual harassment complaint in August 2022. During the investigation, Georg and other employees were required to sign the Acknowledgement form, which contained provisions prohibiting recording of interviews without consent and requiring confidentiality during ongoing investigations. The form also stated employees could communicate with lawyers, government officials, and others about terms and conditions of employment. When the investigation concluded in March 2023, Vice President Tom Feely sent Georg a letter stating the company expected her to treat the information as confidential.

On April 14, 2023, Georg filed an unfair labor practice charge, later amended to include allegations about Feely's letter. The NLRB's General Counsel issued a complaint alleging violations of Section 8(a)(1).

In his legal analysis, Administrative Law Judge Andrew S. Gollin applied the standard established in Stericycle, which overruled previous standards in Boeing and Apogee. Under Stericycle, the General Counsel must prove a challenged rule "has a reasonable tendency to chill employees from exercising their Section 7 rights." If proven, the rule is presumptively unlawful unless the employer shows it "advances a legitimate and substantial business interest" that cannot be advanced with a more narrowly tailored rule.

Judge Gollin found the confidentiality provisions had a reasonable tendency to chill employees' Section 7 rights by preventing them from gathering and sharing information about harassment complaints, soliciting support from others, or discussing the employer's response. He determined the "savings clause" in the form was too vague to adequately inform employees about their protected rights, especially given the threat of discipline for violations.

Regarding the no-recording provision, the judge found it violated Section 8(a)(1) because it was overly broad and not narrowly tailored to meet Costco's stated interest in maintaining investigation integrity.

Concerning Feely's letter, the judge concluded it further violated the Act by requiring confidentiality after the investigation concluded without presenting any justification for post-investigation restrictions.

The judge rejected Costco's timeliness defense under Section 10(b), finding that maintaining the rules within the 6-month period preceding the filing of the charge constituted a continuing violation, and that the allegation regarding Feely's letter was "closely related" to the timely filed charge about the Acknowledgement form.

Judge Gollin ordered Costco to cease and desist from the violations, rescind the unlawful provisions, and post notices at its Winston-Salem store informing employees of their rights.

Significant Cases Cited

• Stericycle, Inc., 372 NLRB No. 113 (2023): Established new standard for analyzing facially neutral workplace rules, requiring General Counsel to prove rules have reasonable tendency to chill Section 7 rights.

• Apogee Retail LLC, 368 NLRB No. 144 (2019): Previously held investigative-confidentiality rules limited to open investigations were categorically lawful, but was overruled by Stericycle.

• Boeing Co., 365 NLRB 1494 (2017): Created framework for evaluating facially neutral workplace rules by balancing employer interests against interference with Section 7 rights, but was overruled by Stericycle.

• Whole Foods Market, Inc., 363 NLRB 800 (2015): Recognized that audio recordings are protected by Section 7 if employees are acting in concert for mutual aid and protection.

• Fresh & Easy Neighborhood Market, 361 NLRB 151 (2014): Established that Section 7 grants employees the right to discuss workplace harassment and employer's response to complaints.

Amazon.com Service, LLC, JD-37-25, 29-CA-296817 (ALJ Decision)

This decision by Administrative Law Judge Benjamin W. Green addresses multiple unfair labor practice allegations against Amazon.com Services LLC at its JFK8 facility in Staten Island, New York, where the Amazon Labor Union (ALU) won a representation election in March 2022.

The case involves allegations under Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act. The judge analyzed whether Amazon unlawfully denied Weingarten rights, discriminatorily suspended and discharged employees for union activity, and unilaterally changed terms of employment without bargaining.

On the Weingarten allegations, the judge found that Amazon violated Section 8(a)(1) by denying union representation to employees Connor Spence, Derrick Palmer, Daniel Hayden, and Yackisha Nebot Lopez during investigatory interviews where discipline could reasonably result. The judge applied the principle that once an employee makes a valid Weingarten request, the employer must either grant the request, discontinue the interview, or offer the employee the choice to continue without representation or have no interview.

Regarding discrimination claims, the judge found that Amazon violated Section 8(a)(3) by suspending Union Vice President Derrick Palmer with pay for 10 weeks, finding the suspension's duration far exceeded what the investigation required. The judge applied the Wright Line framework, concluding that animus was shown through the absence of legitimate justification for the lengthy suspension and disparate treatment of Palmer compared to other employees. However, the judge dismissed the allegations regarding Pasquale Cioffi's suspension and discharge, finding Amazon proved it would have taken the same actions regardless of Cioffi's union support.

On unilateral changes, the judge found that Amazon violated Section 8(a)(5) by implementing an Off-Duty Access Policy and rescinding its practice of notifying employees of positive COVID-19 tests without providing the union notice and opportunity to bargain. The judge applied the principle that an employer violates 8(a)(5) by unilaterally changing mandatory subjects of bargaining without first providing the union with notice and opportunity to bargain.

The judge also found that Amazon violated Section 8(a)(5) by failing to furnish information the union requested regarding a facility fire and an employee discharge, rejecting Amazon's defense that the requests sent to its attorneys weren't properly directed to Amazon.

For remedies, the judge ordered Amazon to cease and desist from the violations, rescind the unilateral changes, furnish the requested information, and post a notice.

Significant Cases Cited

• NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975): Established that represented employees have the right to union representation during investigatory interviews that may lead to discipline.

• Wright Line, 251 NLRB 1083 (1980): Created the framework for analyzing discrimination allegations requiring a prima facie showing that union activity was a motivating factor in the employer's decision.

• NLRB v. Katz, 369 U.S. 736 (1962): Established that an employer violates 8(a)(5) by unilaterally changing mandatory subjects of bargaining without providing the union notice and opportunity to bargain.

• Care One at Milford, 369 NLRB No. 109 (2020): Held that an employer has no obligation to notify and bargain with a union before issuing discretionary discipline pursuant to an established policy or practice.

• Oberthur Technologies of America Corp., 368 NLRB No. 5 (2019): Distinguished between an employer's duty to refrain from unilateral changes and its duty to bargain over mandatory subjects when requested by the union.

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers, JD-39-25, 05-CB-292467 (ALJ Decision)

This case involves a dispute between Garrett Lee Mower, an employee at AdvanSix's chemical manufacturing plant in Hopewell, Virginia, and the United Steel Workers International Union and its Local #12103.

Background

Mower, a non-dues paying unit member in Virginia (a "Right-to-Work" state), was initially promoted to a Chief Operator position in 2021. This promotion was made using a new interview-based selection process that had been negotiated in the 2018-2023 collective bargaining agreement. Previously, such positions were filled solely based on seniority. Mower scored highest in the interview process and was awarded the position.

Subsequently, Roy Ellis, a dues-paying union member with greater seniority but lower interview scores, filed a grievance through the union. The union pursued this grievance to resolution, resulting in Ellis receiving the Chief Operator position and Mower being demoted. Mower then filed his own grievance, which the union declined to take to arbitration.

Legal Issues

The main legal issues addressed:

1. Whether the union violated its duty of fair representation to Mower

2. Whether the union caused AdvanSix to discriminate against Mower

3. Whether both the International Union and Local #12103 are liable for any violations

ALJ's Analysis and Findings

Administrative Law Judge Arthur J. Amchan found that the union violated Sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act in two ways:

1. By pursuing Ellis's grievance to resolution in Ellis's favor and to Mower's detriment

2. By refusing to arbitrate Mower's subsequent grievance

The judge determined that when a union causes an employee to be demoted, there is a rebuttable presumption that it acted unlawfully. The union can overcome this presumption by demonstrating that its action "was necessary to the effective performance of its function of representing its constituency." Here, the union failed to make such a showing.

The judge found that pursuing a grievance likely to result in the demotion of a unit member who had been properly promoted under the collective bargaining agreement was neither necessary to the union's representational function nor rational.

While the judge noted that Mower's non-dues paying status was known to union officials, he stated that this fact was "largely irrelevant" to his decision. The only direct evidence of animus based on Mower's dues status was International Representative William Jones's comment that his "patience wears thin for a nonpaying union member."

Remedy

The ALJ ordered the union to:

1. Request that AdvanSix agree to arbitrate Mower's grievance

2. Allow Mower to be represented by his own counsel and pay reasonable legal fees

3. If arbitration is not possible, make Mower whole for any increase in damages suffered due to the union's actions

4. Post appropriate notices

The judge noted that the "normal remedy" in duty of fair representation cases is to require arbitration, but acknowledged that this may not be feasible since AdvanSix had already made it clear it would not pay two employees for the same Chief Operator position.

Significant Cases Cited:

• Vaca v. Sipes, 386 U.S. 171 (1967): Labor organizations have a statutory obligation to serve all members without hostility or discrimination.

• Operating Engineers Local 478 (Stone & Webster), 271 NLRB 1382 (1984): When a union causes an employee to be disciplined or demoted, there is a rebuttable presumption it acted unlawfully.

• Air Line Pilots Assn, International v. O'Neill, 499 U.S. 65 (1991): A union's duty of fair representation applies to all union activity.

• Radio Officers Union of Commercial Telegraphers Union v. NLRB, 347 U.S. 17 (1954): An 8(b)(2) violation does not require the employer to be charged with an 8(a)(3) violation.

• Iron Workers Local 377 (Alamillo Steel Corp), 326 NLRB 375 (1998): Litigation of the merits of a grievance should ordinarily be separate from the initial unfair labor practice proceeding.

J & a Glass and Mirror, Inc., 18-RD-362962 (Regional Election Decision)

This case involves a decertification petition filed by Douglas James Lambert on March 31, 2025, seeking to decertify the International Union of Painters and Allied Trades District Council 82 as the bargaining representative for commercial glaziers at J & A Glass and Mirror, Inc. The Regional Director dismissed the petition, finding that it was barred by a prior settlement agreement.

Background

In September 2024, the Employer (J & A Glass) signed an informal settlement agreement in an unfair labor practice case (18-CA-340331), which was approved by the Regional Director on September 6, 2024. This agreement required the Employer to recognize and bargain with the Union.

Between September 2024 and March 2025, the parties held four bargaining sessions:

• September 18, 2024: Initial meeting (described as "contentious")

• November 12, 2024: Union presented initial contract proposal

• December 23, 2024: Employer presented counterproposal

• February 26, 2025: Brief meeting where Union agreed to all Employer proposals except the "transition period"

By March 31, 2025, when the decertification petition was filed, the parties had reached agreement on all contract terms except the "transition period" - the timeframe for the contract to come into full effect.

Legal Analysis

The Regional Director analyzed whether a "reasonable period" for bargaining had elapsed since the settlement agreement, applying the framework from Lee Lumber. The analysis focused on five factors:

1. Initial Contract Bargaining: The parties were negotiating a first contract, which weighs in favor of extending the bargaining period.

2. Complexity of Issues: Although only one issue remained (the transition period), it was complex and fundamental to the contract, favoring extension of the bargaining period.

3. Time Elapsed and Number of Sessions: The parties had met only four times over six and a half months, which is relatively limited bargaining and favors extending the period.

4. Progress in Negotiations: The parties had made significant progress, resolving all issues except one, which weighs in favor of extending the bargaining period.

5. Impasse: The parties had scheduled another bargaining session and hadn't declared impasse, indicating bargaining was ongoing, which favors extending the period.

Based on these factors, the Regional Director concluded that a reasonable period for bargaining had not elapsed when the petition was filed.

The Regional Director also rejected the Union's argument that the petition's showing of interest was invalid, noting that such challenges are not litigable in pre-election hearings.

Conclusion

The petition was dismissed because a reasonable period for bargaining following the settlement agreement had not elapsed at the time of filing.

Significant Cases Cited

• Lee Lumber & Bldg. Material Corp., 334 NLRB 399 (2001): Established five factors for determining whether a reasonable period for bargaining has elapsed.

• Poole Foundry & Machine Co., 95 NLRB 34 (1951): Established that parties must be afforded a "reasonable period" to negotiate following a settlement agreement.

• Lamons Gasket Co., 357 NLRB 739 (2011): Set minimum six-month bargaining period after voluntary recognition.

• Lift Truck Sales and Services, Inc., 364 NLRB 478 (2016): Set minimum six-month period for bargaining following settlement with admission of bad faith.

• Taft Broadcasting Co., 163 NLRB 475 (1967): Established that determining whether impasse exists is a "matter of judgment."