05/15/2025: Classic Refusals to Bargain and Violations During Union Organizing
Two ALJ cases today.
Auto-Chlor System of Washington, Inc., JD(SF)-11-25, 19-CA-313715 (ALJ Decision)
This case involves unfair labor practice charges filed by the International Brotherhood of Electrical Workers Local 46 against Auto-Chlor System of Washington, Inc., at its Kent, Washington facility. The charges stemmed from Auto-Chlor's conduct during a union organizing campaign in late 2022.
Administrative Law Judge Brian D. Gee found that Auto-Chlor violated Section 8(a)(1) of the National Labor Relations Act in several ways. First, the company maintained an unlawful provision in its employee handbook that excluded employees covered by a collective bargaining agreement from participating in the company's profit-sharing plan. The ALJ determined this provision was inherently coercive as it forced employees to choose between union representation and valuable benefits.
Second, Regional Manager Scott Wagar engaged in coercive interrogation when he questioned employee Kelly Vanhooser about the union organizing campaign, asking who was behind the effort and why employees wanted union representation. This conversation occurred shortly after Auto-Chlor received the Union's demand for voluntary recognition on October 17, 2022.
Third, the ALJ found that company management unlawfully threatened employees with the loss of previously promised wage increases if they selected the Union. Before the organizing campaign, supervisors had promised employees raises at the start of 2023. After the Union filed its representation petition, Regional Vice President Aaron Vanderbilt told employees these raises were no longer guaranteed and would be subject to collective bargaining if the Union won.
Fourth, Wagar unlawfully solicited employee grievances and impliedly promised to remedy them when he asked Vanhooser what she considered a fair wage during their conversation about the organizing campaign.
Fifth, Auto-Chlor distributed campaign flyers that unlawfully threatened employees with the loss of wages if they unionized. These flyers were coercive in the context of previously promised raises.
Finally, in April 2023, months after the Union lost the election, Wagar removed a union sticker from employee Dametrius Ballard's clipboard. The ALJ found this discriminatory because Auto-Chlor had no policy prohibiting stickers and allowed employees to display various other non-company stickers.
The ALJ dismissed several other allegations, including claims that management created an impression of surveillance by increasing their presence at the facility during the campaign, that Vanderbilt made statements of futility, and that management solicited grievances during a meeting on October 19.
In his credibility determinations, Judge Gee found Office Administrator Vanhooser to be the most credible witness. He found employee witnesses Ware and Taylor to be unreliable on key points, particularly regarding a meeting that allegedly occurred on October 19. The ALJ generally credited management witnesses except for portions of Wagar's testimony.
As a remedy, Judge Gee ordered Auto-Chlor to cease and desist from the unlawful conduct, rescind or revise the discriminatory handbook provision, and post notices informing employees of their rights. The ALJ denied the General Counsel's request for a notice reading, finding the other remedies sufficient.
Significant Cases Cited
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Established that employers violate Section 8(a)(1) when prohibiting employees from wearing union insignia without special circumstances.
Rossmore House, 269 NLRB 1176 (1984): Provided the test for determining whether interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act when viewed under the totality of circumstances.
Earthgrains Co., 336 NLRB 1119 (2001): Held that employers who promise wage increases before learning of organizing must follow through regardless of union activity and make clear adjustments don't depend on union selection.
Bell-Atlantic-Pennsylvania, 339 NLRB 1084 (2003): Defined "special circumstances" that justify restriction of union insignia only when display may jeopardize safety, damage machinery, exacerbate dissension, or unreasonably interfere with public image.
Mek Arden, LLC d/b/a Arden Post Acute Rehab, 365 NLRB 1065 (2017): Established that employer solicitation of grievances during an organizing campaign, when accompanied by an express or implied promise to remedy them, violates Section 8(a)(1).
Alivio Medical Center, Inc., JD-42-25, 13-CA-300158 (ALJ Decision)
This case involves a dispute between Alivio Medical Center, Inc. (the Employer) and Service Employees International Union, Healthcare Illinois and Indiana (the Union) regarding the Employer's handling of IRS "no-match" alerts concerning four bargaining unit employees.
In May 2022, the Employer received notification from its payroll provider, ADP, that there were discrepancies between the names and/or social security numbers of four union employees and IRS records. ADP advised that the Employer could face penalties if these issues were not resolved by August 1, 2022. Without notifying the Union, the Employer issued letters on June 2, 2022, directing the four employees to resolve these discrepancies by July 25, 2022.
When the Union learned of these letters from the employees, it attempted to bargain with the Employer about both these specific directives and a general policy regarding work authorization and re-verification. The parties were simultaneously negotiating a new collective bargaining agreement (CBA), during which the Union proposed including a work authorization policy, but ultimately withdrew this proposal. The final CBA agreement, effective July 1, 2022, included language that the Employer would "meet to negotiate the effect of the current IRS reporting errors" but that the Employer "does not agree to include language in the CBA regarding work authorization/re-verification."
During subsequent negotiations in July 2022, the Employer refused to bargain over a general work authorization policy, claiming the Union had waived this right by withdrawing its CBA proposal. The Employer also refused to provide the Union with a copy of the ADP correspondence, only allowing Union representatives to view a redacted version on screen during one meeting. When the four employees failed to resolve their no-match issues by the deadline (which the Employer unilaterally extended from July 25 to July 29 without notifying the Union), they were terminated.
The ALJ found that the Employer violated Section 8(a)(5) and (1) of the National Labor Relations Act by:
Failing to provide the Union with pre-implementation notice and opportunity to bargain over the effects of its directive to employees
Unilaterally imposing and later extending the deadline for employees to resolve the no-match issues
Refusing to negotiate over the deadline
Refusing to provide the Union with a copy of the ADP correspondence
However, the ALJ determined that the Employer did not violate the Act by:
Directing employees to resolve the no-match issues (since the Employer had no discretion in this matter given the threat of IRS penalties)
Refusing to bargain over a general work authorization policy (since the Union had waived this right through the contract negotiations and zipper clause)
Terminating the four employees (since the evidence showed they would not have resolved their issues by the August 1 deadline regardless of bargaining)
The ALJ ordered the Employer to cease and desist from the unlawful conduct, post notices, and provide the Union with a copy of the ADP correspondence.
Significant Cases Cited
NLRB v. Katz, 369 U.S. 736 (1962): Established that unilateral changes regarding mandatory subjects of bargaining violate Section 8(a)(5).
Long Island Day Care Services, 303 NLRB 112 (1991): Employer had no obligation to bargain when subject to government directive that left no discretion.
Washington Beef, Inc., 328 NLRB 612 (1999): Employer facing government threat must bargain over "peripheral matters" like deadlines but not termination decisions themselves.
Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024): Established "clear and unmistakable" waiver standard for determining if a union waived bargaining rights.
Radioear Corp., 214 NLRB 362 (1974): Waiver may be found based on language of CBA zipper clause and surrounding circumstances, including bargaining history.