05/09/2024: Constructive Discharge, Coercive Statements, Fake Unions

Lots of good stuff today.

Starbucks Corporation, 373 NLRB No. 53, 18-CA-293653 (Published Board Decision)

This is a decision by the NLRB in the case of Starbucks Corporation and Chicago & Midwest Regional Joint Board, Workers United/SEIU.

The Board affirmed the Administrative Law Judge’s (ALJ) findings that Starbucks violated Section 8(a)(1) of the NLRA in several ways:

1. Store Manager Reid unlawfully threatened employee Norton-Abad with unspecified reprisals if employees unionized. Reid's remarks about the risks of unionization and whether it was "worth the risk" would reasonably be understood as a threat.

2. Reid unlawfully interrogated Norton-Abad about her union support. The Board found that Reid's questioning of Norton-Abad the day after initially asking her about unionization would reasonably tend to interfere with her Section 7 rights.

3. Reid unlawfully threatened that the company would enforce work rules more strictly due to employees' union activities, and that employees could be terminated because of this stricter enforcement.

The Board dismissed the allegation that Reid unlawfully threatened Norton-Abad with job loss, finding that his statements about his own job concerns would not reasonably be understood as threatening employees' jobs.

The Board also affirmed the ALJ's dismissal of the allegation that Reid unlawfully threatened to more strictly enforce the dress code due to union activities, finding insufficient evidence of a link between Reid's comments and the union campaign.

Significant cases cited:

• Rossmore House, 269 NLRB 1176 (1984) - Provides factors to consider in evaluating whether an interrogation violates Section 8(a)(1), including the background, the nature of the information sought, the identity of the questioner, the place and method of the questioning, and the truthfulness of the employee's reply.

• Tri-Cast, Inc., 274 NLRB 377 (1985) - Holds that an employer does not violate the Act by informing employees that when they select a union, the relationship between the employer and employees will not be the same as before.

• Daikichi Sushi, 335 NLRB 622 (2001) - Finds that tentative language about adverse consequences can be coercive if not based on objective facts or the collective bargaining process.

Universal Health  Services, Inc. and George Washington University, 373 NLRB No. 55, 05-CA-216482 (Published Board Decision)

This is a decision by the NLRB in the case of District Hospital Partners, L.P. d/b/a The George Washington University Hospital, a Limited Partnership, and UHS of D.C., Inc., General Partner and 1199 Service Employees International Union, United Healthcare Workers East, MD/DC Region a/w Service Employees International Union.

The Board affirmed the Administrative Law Judge's finding that the Employer (the Hospital) failed and refused to bargain in good faith with the Union for a successor collective-bargaining agreement.

The Board found that the Employer’s bargaining proposals, taken as a whole, would have left the Union and employees with substantially fewer rights and less protection than provided by law without a contract. This includes:

1. The Employer’s expansive management-rights clause that would have allowed it to make unilateral changes to a broad range of significant terms and conditions of employment.

2. The Employer’s no-strike clause that would have prohibited all economic weapons, including informational picketing.

3. The Employer’s elimination of binding arbitration in favor of non-binding mediation.

• The Board also found additional indicia of bad-faith bargaining in the Employer’s wage proposal, which gave it unfettered discretion to set wages, and its insistence on eliminating the union-security clause without a legitimate business justification.

• The Board affirmed the ALJ's finding that the Employer’s withdrawal of recognition from the Union was unlawful, as it was based on a decertification petition tainted by the Employer’s unremedied unfair labor practices.

Significant cases cited:

• Public Service Co. of Oklahoma (PSO), 334 NLRB 487 (2001) - Provides the analytical framework for evaluating whether an employer has bargained in bad faith, focusing on whether the employer's proposals, taken as a whole, would leave the union and employees with substantially fewer rights than provided by law without a contract.

• Altura Communication Solutions, LLC, 369 NLRB No. 85 (2020) - Also applies the PSO framework and finds bad-faith bargaining based on a combination of a broad management-rights clause, a no-strike clause, and a grievance procedure that excluded the employer's exercise of discretion under the management-rights clause.

• Kitsap Tenant Support Services, Inc., 366 NLRB No. 98 (2018) - Found bad-faith bargaining where the employer's proposals included the unfettered right to administer discipline and discharge.

United States Postal Service, JD-27-24, 06-CA-277831 (ALJ Decision)

This is a decision by Administrative Law Judge G. Rebekah Ramirez in the case of the United States Postal Service and Branch 84, National Association of Letter Carriers, AFL-CIO.

The ALJ found that letter carrier Nicolas Montross was engaged in protected concerted activity when he invoked the "12/60 Rule" from the collective bargaining agreement to refuse to work more than 60 hours in a week. Invoking a contractual right is considered protected concerted activity under the Interboro doctrine.

The ALJ found that the Postal Service violated Section 8(a)(1) of the NLRA in the following ways:

1. Threatening Montross with discipline, discharge, and criminal prosecution for invoking the 12/60 Rule. The ALJ cited cases like Security Walls, LLC and S&S Enterprises, LLC finding that such threats violate the NLRA.

2. Unlawfully interrogating former union steward Donald Watkins about who informed Montross about the 12/60 Rule. The ALJ applied the five-factor test from NCRNC, LLC to find the interrogation unlawful.

3. Implying to both Montross and Watkins that engaging in union activity equates to disloyalty to the Postal Service. The ALJ cited cases like International Union of Operating Engineers, Local 12 finding such statements unlawful.

The ALJ found that the Postal Service constructively discharged Montross in violation of Section 8(a)(3) by confronting him with the Hobson's choice of either resigning or continuing employment while forfeiting his contractual right to work no more than 60 hours per week. The ALJ cited cases like Mercy Hospital and Zeigler North Riverside applying the Hobson's choice theory of constructive discharge.

In the context of labor law, a Hobson's choice constructive discharge occurs when an employer confronts an employee with the choice of either resigning or continuing employment while being required to forfeit their statutory or contractual rights. This is seen as the employee effectively having no real choice, and the resignation being treated as a constructive discharge by the employer.

The key elements are (1) the employer conditioning continued employment on the abandonment of Section 7 rights, and (2) the employee quitting as a result of that condition. The analysis focuses on the perspective of the employee in determining whether they were presented with a Hobson's choice.

The ALJ rejected the Postal Service's arguments that Montross voluntarily resigned for reasons unrelated to his protected concerted activity, finding the evidence showed the Postal Service's actions were motivated by anti-union animus.

Starbucks Corporation, JD-26-24, 08-CA-290673 (ALJ Decision)

This is a decision by Administrative Law Judge Christal J. Key in the case of Starbucks Corporation and Chicago and Midwest Regional Joint Board, Workers United / SEIU.

Legal Analysis:

The ALJ found that Respondent (Starbucks) violated Section 8(a)(1) of the NLRA in several ways:

1. Regional Director Whedbee engaged in unlawful surveillance of employees' union activities and created the impression that their union activities were under surveillance.

2. Store Manager Nelson unlawfully discriminated against union materials in enforcing Starbucks' distribution and solicitation policy.

3. District Manager Weber unlawfully solicited employee grievances and impliedly promised to remedy them to discourage union activity.

4. Starbucks unlawfully granted benefits, such as improvements to the breakroom, to discourage union activity.

5. Store Manager Hoynes unlawfully threatened employees with loss of benefits and transfer rights if they selected the union.

6. Hoynes unlawfully solicited employee grievances and impliedly promised to remedy them to discourage union activity.

7. Hoynes unlawfully more strictly enforced Starbucks' dress code policy in response to union activities.

The ALJ found that Starbucks violated Sections 8(a)(1) and (3) by:

1. Issuing employee Walker a final written warning due to its stricter enforcement of the dress code policy.

2. Issuing Walker a final written warning and terminating him due to its more stringent enforcement of policies regarding use of the Playbuilder and CSR card tools.

The ALJ found that Starbucks violated Sections 8(a)(1), (3), and (4) by issuing employee Walker a final written warning and terminating him because of his union activities and his participation in the Board's processes (i.e. testifying at an NLRB hearing).

Significant cases cited:

• Interboro Contractors, Inc., 157 NLRB 1295 (1966) - Establishes that an employee's assertion of a contractual right constitutes protected concerted activity.

• Rossmore House, 269 NLRB 1176 (1984) - Provides the factors to evaluate whether employer questioning of employees constitutes unlawful interrogation.

• Albertson's, LLC, 359 NLRB 1341 (2013) - Discusses when an employer's solicitation of grievances and implied promise to remedy them violates Section 8(a)(1).

• Wright Line, 251 NLRB 1083 (1980) - Establishes the framework for analyzing discrimination allegations under Section 8(a)(3).

• S. Freedman & Sons, Inc., 364 NLRB 1203 (2016) - Applies the Wright Line framework to Section 8(a)(4) allegations, i.e. allegations that an employer discriminated against a worker because they participated in Board processes.

• Electrolux Home Products, 368 NLRB No. 34 (2019) - Discusses the inference of discriminatory motive based on pretext.

County Concrete Corporation, JD(NY)-08-24, 22-CA-278328 (ALJ Decision)

The Administrative Law Judge (ALJ) made the following key findings and legal conclusions in this decision:

1. Unilateral Implementation of Bonus Program: The ALJ found that Employer County Concrete Corporation violated Section 8(a)(5) and (1) of the NLRA by unilaterally implementing a bonus program in June 2021 without first reaching a lawful impasse in bargaining with the union, Local 863, International Brotherhood of Teamsters. The ALJ relied on the Supreme Court's decision in NLRB v. Katz, 369 U.S. 736 (1962), which held that an employer violates the NLRA by making unilateral changes to terms and conditions of employment without bargaining to impasse.

2. Conditioning Strikers' Reinstatement on Resignation from Union: The ALJ found that Employer violated Section 8(a)(3) and (1) of the NLRA by conditioning strikers' reinstatement on their resigning from the union or converting to financial core status. The ALJ cited the Board's decision in Chicago Beef Co., 298 NLRB 1039 (1990), which held that an employer cannot lawfully condition reinstatement on employees' resignation from the union.

3. Suspension and Failure to Reinstate Bonelli: Applying the Wright Line burden-shifting framework, the ALJ found that Employer violated Section 8(a)(3) and (1) by suspending employee Raymond Bonelli in retaliation for his union activities and participation in the 2021 strike, and by failing to reinstate him to his pre-strike position or a comparable position within his medical clearance. The ALJ found Employer’s proffered reasons for its actions to be pretextual.

4. Reassignment of Dosch to More Onerous Duties: Applying the Wright Line framework, the ALJ found that Employer violated Section 8(a)(3) and (1) by reassigning employee Benjamin Dosch to more onerous work duties in retaliation for his union activities and strike participation. The ALJ again found Employer’s justifications to be pretextual.

5. Failure to Reinstate East Orange Strikers to Pre-Strike Positions: Applying the Wright Line test, the ALJ found that Employer’s failure to reinstate striking employees from its East Orange facility to their pre-strike positions violated Section 8(a)(3) and (1). The ALJ found Employer’s proffered reasons for transferring these employees to be a pretext for unlawful retaliation.

6. Conditioning Agreement on Withdrawal of Lawsuit: The ALJ found that Employer violated Section 8(a)(5) and (1) by conditioning agreement to a new collective bargaining agreement on the withdrawal of a lawsuit filed by employees Bonelli and Cano, which the ALJ found to be a permissive subject of bargaining under the Supreme Court's decision in NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958).

7. Termination of Strikers' Health Insurance: The ALJ dismissed the allegation that Employer unlawfully terminated strikers' health insurance, finding that Employer was privileged to do so under its health plan's eligibility requirements, which the ALJ found were lawful under the Board's precedent in Hawaiian Telcom, Inc., 365 NLRB No. 36 (2017).

The ALJ ordered Employer to cease and desist from the unfair labor practices found, and to take various affirmative actions to remedy the violations, including reinstating the unlawfully disciplined employees, making them whole for any losses, and rescinding the unilaterally implemented bonus program.

Miami City Ballet, Inc., 12-RC-339307 (Regional Election Decision)

The employer in this case had a strange relationship with something called the Artist Representatives. Based on the information provided in the decision, the "Artist Representatives" appear to be a group of dancers selected by the other dancers employed by the employer to represent their interests in negotiations over the terms and conditions of employment.

The employer tried to use its arrangement with the Artist Representatives to argue that the union election petitioned for by the American Guild of Musical Artists should be barred according to the contract bar doctrine, which states that the existence of a valid collective bargaining agreement between an employer and a union can bar a petition for a representation election filed by employees or another union.

The Regional Director rejected this argument on a number of grounds, including:

1. The employer failed to establish that the 2024-2025 contract documents were signed by the purported "Artist Representatives" on the date claimed, and the effective date of the alleged 2024-2025 contract was after the petition was filed, which would not bar the petition.

2. The Regional Director found that Article 21.1 of the company regulations, which required mandatory dues payments to the Artist Representatives, contained clearly unlawful union security and dues checkoff provisions that disqualify the purported contract from having bar status.

3. The Regional Director also found that the contract documents lacked specificity as to the fixed duration and effective dates required for a valid contract bar.

Separately, the Regional Director found that even if the Artist Representatives were considered a labor organization, their disclaimer of interest in representing the petitioned-for unit was effective, and the employer failed to provide any evidence of collusion between the Artist Representatives and the union petitioner.

Significant cases cited:

• Paragon Products Corp., 134 NLRB 662 (1961) - Define the specific requirements for a contract to serve as an effective bar to a representation petition.

• VFL Technology Corp., 332 NLRB 1443 (2000) - Disclaimer of interest prevents contract bar.

South Sound Inpatient Physicians, PLLC and joint employer PeaceHealth, 19-RC-338479 (Regional Election Decision)

Appropriate Bargaining Unit

The Regional Director found that the petitioned-for unit of all full-time, regular part-time and per diem providers (physicians, Doctors of Osteopathy, Nurse Practitioners, and Physician Assistants) employed by South Sound Inpatient Physicians, PLLC ("Sound") at PeaceHealth St. Joseph Medical Center and PeaceHealth United General Hospital constitutes an appropriate unit for collective bargaining.

In analyzing the community of interest factors, the Regional Director found that the factors of similar skills/duties, functional integration between the facilities, frequent employee interchange, and centralized control of management and supervision all weighed in favor of finding the unit appropriate, despite the facilities being located in different counties but within a 30-mile distance.

Joint Employer Determination

Applying the NLRB's 2020 joint employer standard, the Regional Director found that PeaceHealth is a joint employer of the petitioned-for employees along with Sound.

The Regional Director determined that PeaceHealth exercises direct and immediate control over the essential terms of employment of wages, benefits, hiring, and supervision of the employees.

The Regional Director relied on evidence that PeaceHealth controls provider wages, including bonuses, and the timing of bonus payments, as well as PeaceHealth's role in the hiring process and its direction and oversight of the providers' work.

Amazon.com Services LLC, 12-CA-308502 (Unpublished Board Decision)

The employer motioned for an in-person hearing in the underlying administrative law judge (ALJ) proceeding. The ALJ denied this motion. The employer appealed this to the Board and the Board granted the appeal. We find that the judge abused his discretion in denying the Respondent’s motion in the absence of good cause based on compelling circumstances justifying holding a hearing via videoconference over a party’s objection. (Citing William Beaumont Hospital, 370 NLRB No. 9 (2020); XPO Cartage, Inc., 370 NLRB No. 10 (2020))

ACCEL LOGISTICS, INC., 16-CA-291891 (Unpublished Board Decision)

The underlying ALJ decision finding that the employer violated Section 8(a)(1) was adopted by the Board because the employer did not file exceptions to that decision within the allowed time period.