05/17/2024: A Clarification on Cemex Bargaining Order Process

More of the Teamsters v. UNFI saga.

RFO808, LLC dba Island Club and Spa, 373 NLRB No. 60, 20-CA-320798 (Published Board Decision)

This is a Decision and Order from the National Labor Relations Board (NLRB) in the case RFO808, LLC d/b/a Island Club and Spa. The decision does not contain an attached administrative law judge (ALJ) decision.

The Board granted the General Counsel's Motion for Default Judgment because the Respondent failed to file an answer to the complaint, which alleged violations of Section 8(a)(1) of the National Labor Relations Act (NLRA). By failing to file an answer, the Respondent admitted the complaint allegations.

The Board found that the Respondent violated Section 8(a)(1) by:

1. Orally promulgating a rule prohibiting employees from discussing their wages

2. Telling an employee she could not ask others about their wages

3. Telling the employee she and others could be terminated for discussing wages

4. Discharging employee Jamie Marie Siangco for engaging in protected concerted activity by discussing wages with other employees

As a remedy, the Board ordered the Respondent to cease and desist from the unlawful conduct, rescind the unlawful rule, offer reinstatement and backpay to Siangco, and post a notice.

The decision relied on the following key cases:

• Thryv, Inc. - Required compensation for direct or foreseeable pecuniary harms resulting from unfair labor practices.

• F. W. Woolworth Co. - Established the general backpay formula.

• New Horizons - Set the interest rate for backpay.

• Kentucky River Medical Center - Required daily compounding of interest on backpay.

• AdvoServ of New Jersey, Inc. - Ordered compensation for adverse tax consequences of lump-sum backpay.

Auto-Chlor System of Washington, Inc., 373 NLRB No. 63, 19-RC-305488 (Published Board Decision)

This is a Decision and Order from the National Labor Relations Board (NLRB) in the case Auto-Chlor System of Washington, Inc. The decision does not contain an attached administrative law judge (ALJ) decision.

The Board granted the Employer's Request for Review of the Regional Director's Order Revoking Certification of Results and Dismissing the Petition in the representation case (19-RC-305488). The Regional Director had revoked the Certification of Results and dismissed the petition after finding merit to the Union's subsequent unfair labor practice charges (19-CA-313715) and determining that a remedial bargaining order under Cemex was warranted.

The Board reversed the Regional Director's order, finding that where a certification of results has already issued in a representation case due to the absence of objections or equivalent ULP charges, the propriety of a remedial bargaining order and its effect on the certification must be litigated in the ULP proceedings. The Board held that reopening the closed representation case simply to dismiss the petition served no purpose in these circumstances.

The Board noted that the Regional Director's actions were akin to a "merit-determination dismissal," a procedure allowing dismissal of a representation petition, subject to reinstatement, when merit is found to ULP charges that would result in an affirmative bargaining order.

The decision relied on the following key cases:

• Cemex Construction Materials Pacific LLC - Addressed the issuance of remedial bargaining orders following unfair labor practice findings.

• Rieth-Riley Construction Co. - Discussed merit-determination dismissals.

United Natural Foods, Inc. and JB Hunt, Inc. as Joint Employers, 04-RC-338762, 04-RC-338266 (Regional Election Decision)

This is a Decision and Order from Region 4 of the National Labor Relations Board (NLRB) regarding two representation petitions filed by Teamsters Local Union No. 776 (the Union) seeking to represent certain employees of United Natural Foods, Inc. (UNFI) in Case 04-RC-338266, and certain employees of UNFI and J.B. Hunt Transport, Inc. as joint employers in Case 04-RC-338762.

The Regional Director found that UNFI failed to establish that its subcontracting of transportation services and termination of drivers' and hostlers' employment at its Harrisburg facility was sufficiently imminent and definite to warrant dismissal of the petition in Case 04-RC-338266. UNFI did not provide concrete evidence, such as the full subcontracting agreement, to demonstrate with certainty that it would cease being an employing entity of the petitioned-for employees. Therefore, the Regional Director directed an election in the petitioned-for unit.

Regarding Case 04-RC-338762, the Regional Director found that the record failed to establish that J.B. Hunt is currently a joint employer of the petitioned-for employees, and speculation about a future joint-employer relationship was insufficient. Consequently, the Regional Director dismissed the petition in Case 04-RC-338762.

The decision relied on the following key cases:

• Retro Environmental, Inc./Green JobWorks, LLC - The Board will not dismiss a petition based on conjecture or uncertainty about an employer's future operations; concrete evidence is required.

• Hughes Aircraft Co. - The Board agreed to dismiss the petition based on concrete evidence of signed subcontracting agreements and notices of permanent layoff to employees.

• Larson Plywood - The Board dismissed the petition due to the imminent closure of the employer's plant within 90 days and no evidence of an employment relationship existing after liquidation.