05/20/2024: UPS and Amazon With Some Classic ULPs
Can't retaliate against union activity.
UPS Supply Chain Solutions, Inc., JD(SF)-14-24, 32-CA-295913 (ALJ Decision)
The ALJ found that UPS Supply Chain Solutions violated Sections 8(a)(1) and (3) of the National Labor Relations Act in response to a union organizing effort at its Tracy, California warehouse facility.
The violations:
Surveilling and interrogating employees about union activities
Threatening employees they might lose jobs if they voted for the union
Making statements that selecting the union would be futile
Making implied promises of benefits if employees rejected the union
Suspending and terminating a union organizer because of his leadership role in the union campaign.
The facts of the violations:
Surveillance and Interrogation:
On April 6, Manager Carrillo reviewed video footage of the parking lot where union organizer Valadez obtained signatures on union cards. Carrillo also checked the employee breakroom and garbage cans for union materials. This gave employees a reasonable belief their union activities were under surveillance.
On April 6, Supervisor Sifuentes interrogated employee Valdez about how many employees had signed union cards.
Threats of Job Loss:
In late April/early May meetings, Labor Consultant Jara told employees UPS Supply Chain Solutions might lose its sole customer Kaiser Permanente and employees could lose jobs if they voted for the union.
On May 9, Operations Director Anguiano made similar veiled threats that Kaiser Permanente might leave and cause job losses if employees unionized.
Statements of Futility:
In late April/early May, Jara's slide presentations stated employees would not get wage increases, benefits, pensions, job security or respect if they voted union, without any factual basis.
Implied Promises of Benefits:
On May 9, Anguiano impliedly promised wage increases, improved evaluations and benefits if employees rejected the union.
Anguiano also impliedly promised to remedy grievances if employees rejected the union.
Suspension and Termination:
On May 12, UPS Supply Chain Solutions suspended union organizer Valadez, then terminated him on May 19, because of his leadership role in the union campaign.
The discharge stemmed from Valadez briefly lending his security badge to a union representative so he could retrieve a lost wallet, which the ALJ found was not egregious misconduct causing Valadez to lose legal protection.
The ALJ found the discharge was unlawfully motivated by Valadez's status as the lead union advocate and was not based on an honest belief he engaged in serious misconduct.
Significant cases cited:
NLRB v. Burnup & Sims — An employer violates Section 8(a)(1) if it discharges an employee engaged in protected activity based on alleged misconduct that the employer must honestly believe occurred.
NLRB v. Gissel Packing Co. — Employers can express opinions on unionization, but predictions of adverse consequences must be based on objective facts; otherwise, they are considered coercive and a violation of Section 8(a)(1).
Austal USA, LLC — Other violations of Section 8(a)(1), such as threats and coercive statements, can be evidence of anti-union animus.
Pepsi-Cola Co. — Employers must demonstrate an honest belief in an employee's misconduct, and the burden then shifts to the General Counsel to prove otherwise.
Amazon.com Services LLC, JD(NY)-12-24, 29-CA-292844 (ALJ Decision)
This is an Administrative Law Judge (ALJ) decision by Lauren Esposito involving Amazon.com Services LLC and Amazon Labor Union.
Key points:
The ALJ found that Amazon violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) at its LDJ5 and JFK8 facilities in Staten Island, New York in response to a union organizing campaign by the Amazon Labor Union (ALU).
Specific violations of Section 8(a)(1) included:
Prohibiting employees from displaying a pro-union banner in a non-work area on non-work time
Coercively interrogating employees about union activities
Threatening employees with unspecified reprisals and discipline for union activities
Removing a pro-union post from its Voice of the Associate board while allowing anti-union posts
The ALJ found Amazon violated Sections 8(a)(3) and (1) by issuing retaliatory discipline in the form of a documented coaching and written warning to employee Madeline Wesley on April 10, 2022 because of her union activities. The ALJ found this discipline also constituted disparate enforcement of Amazon's Solicitation Policy against pro-union conduct.
The ALJ also found Amazon violated Sections 8(a)(3) and (1) by issuing a retaliatory written warning to employee Miguel Aguilar on April 26, 2022 because of his union activities.
As part of the remedy, the ALJ ordered the Board notice to be read aloud to employees at the LDJ5 facility and distributed to employees and managers, finding Amazon's violations were numerous, pervasive and severe enough to warrant these extraordinary remedies. However, the ALJ declined to order the additional remedy of mandatory management training requested by the General Counsel.
Key precedents cited include:
NLRB v. Burnup & Sims, Inc. — Discharging an employee engaged in protected concerted activity violates Section 8(a)(1) if the employer's misconduct allegations are found to be false.
Wright Line — Establishes the burden-shifting framework for analyzing claims of discriminatory discipline or discharge under Sections 8(a)(3) and (1).