05/22/2024: If You Are Going to Cuss, Do It While Engaging In Protected Activity

Another Starbucks case.

Northeastern University, 373 NLRB No. 62, 01-CA-329551 (Published Board Decision)

This is an NLRB decision finding that Northeastern University violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain with the American Coalition of Public Safety union after it was certified as the exclusive bargaining representative of a unit of sergeants, sergeant detectives, and detectives employed by the university.

The key legal analysis and findings are:

1. The university refused to bargain with the Union, challenging the validity of the Union’s certification by asserting that the bargaining unit improperly included statutory supervisors. These issues were raised and rejected in the underlying representation proceeding.

2. Under well-settled law, issues that were or could have been litigated in the prior representation proceeding may not be relitigated in the unfair labor practice case absent newly discovered evidence or special circumstances. The university presented no such evidence or circumstances.

3. By refusing to bargain with the certified union, the university violated Section 8(a)(5) and (1) of the Act.

Significant case applied:

• Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Representation issues litigated in a prior representation proceeding may not be relitigated in a subsequent unfair labor practice proceeding absent new evidence or special circumstances.

The Board ordered the university to cease and desist from its unfair labor practices, bargain with the union upon request, and post a notice regarding the violations. The Board rejected several affirmative defenses raised by the university as insufficient to warrant denial of summary judgment.

Starbucks Corporation, JD-31-24, 07-CA-302784 (ALJ Decision)

The decision by the administrative law judge focuses on multiple violations of the National Labor Relations Act (NLRA) by the Respondent, Starbucks Corporation. The key findings and legal analysis include:

1. Violations of Section 8(a)(3) and (1): The Respondent violated these sections by issuing a written warning to Alexandra "Sasha" Anisimova on May 2, 2022, and by subsequently discharging her on September 2, 2022, due to her union activities and concerted efforts. The decision applies the Wright Line framework to establish that the Respondent's actions were motivated by anti-union animus.

2. Violations of Section 8(a)(1): The Respondent maintained overbroad work rules ("how we communicate" and "respectful workplace" rules) that interfered with employees' Section 7 rights. The decision applies the Stericycle, Inc. standard to determine that these rules had a reasonable tendency to chill employees from exercising their rights.

3. Discharge of Asher Ramirez: The decision found no violation regarding the discharge of Asher Ramirez on October 28, 2022, as the misconduct cited for his discharge did not occur during protected activity and the Respondent met its burden under the Wright Line framework to show that the discharge would have occurred regardless of union activities. The situation of Ramirez provides a useful example of the different ways that the Board analyzes certain kinds of misconduct (like cussing and being insubordinate) when it is done in different contexts. When such misconduct is done in the context of protected activity, it is analyzed under Atlantic Steel, which is quite permissive. When such misconduct is not done in the context of protected activity, it is analyzed under Wright Line, which is not very permissive.

The two coercive rules analyzed in decision were:

1. Commitment to a Respectful Workplace: "We treat each other with dignity and respect, and connect with transparency."

2. How We Communicate: “Partners are expected to communicate with other partners and customers in a professional and respectful manner at all times."

The judge concluded that the rules about maintaining a "respectful workplace" and "professional and respectful communication" were likely to discourage employees from exercising their Section 7 rights because employees could reasonably fear that discussing union activities or criticizing management could be deemed unprofessional or disrespectful, leading to disciplinary action.

Bluestone Lane Roasting, LLC, 04-RC-339236 (Regional Election Decision)

The primary issue was whether a multifacility unit proposed by the Philadelphia Joint Board, Workers United a/w SEIU (Petitioner) was appropriate for collective bargaining. The Petitioner sought to represent approximately 30 full-time and regular part-time employees at three of the employer’s Philadelphia locations. The employer argued for separate units for each store, citing differences in job duties, skills, and supervision.

The Regional Director applied the community-of-interest factors for determining the appropriateness of a multi-facility bargaining unit as follows:

1. Similarity in Skills, Duties, and Working Conditions:

   • Employees at all three stores perform similar tasks in the food service industry, involving preparing and serving food and beverages. Despite some differences (e.g., coffee shop vs. café operations), the similarities in job duties and working conditions are significant enough to consider them part of a single unit.

2. Centralized Control of Management and Supervision:

   • The stores are centrally managed by senior executives and regional managers, with limited autonomy for local General Managers. The presence of a shared General Manager for two of the stores further supports centralized supervision.

3. Functional Integration and Employee Interchange:

   • There is significant interchange of employees and resources among the stores, indicating functional integration. Employees frequently work across different stores, and supplies are shared as needed.

4. Geographic Proximity:

   • The stores are located within close walking distance of each other in Center City Philadelphia, facilitating easy interchange and participation in union activities.

5. Bargaining History and Extent of Unionization:

   • There is no history of unionization or collective bargaining at these locations, making these factors neutral.

Significant Cases Applied:

• Hazard Express, Inc., 324 NLRB 989 (1997) - The single-facility unit presumption does not apply when a union petitions for a multi-facility unit.

• Exemplar, Inc., 363 NLRB 1500 (2016) - The community of interest factors for evaluating the appropriateness of a multi-facility unit include similarity of skills/duties, centralized management, functional integration, geographic proximity, bargaining history, and union organization.

Sacramento Television Stations Inc., 20-RC-340912 (Regional Election Decision)

This is an NLRB regional director's decision and direction of election finding that a petitioned-for unit of directors, maintenance technicians, building maintenance workers, and operations technicians employed by Sacramento Television Stations Inc. is an appropriate unit for collective bargaining.

The key legal analysis and findings are:

1. In determining whether the petitioned-for unit is appropriate, the Board examines whether the employees share a "community of interest" based on factors such as whether the employees are organized into a separate department, have distinct skills and training, have distinct job functions, are functionally integrated, have frequent contact with other employees, interchange with other employees, have distinct terms and conditions of employment, and are separately supervised.

2. Here, the petitioned-for unit is appropriate because it tracks the departmental lines drawn by the Employer, the employees are in frequent contact with one another, share common supervision, are functionally integrated, and have common terms and conditions of employment. While the nature of the directors' skills and job functions differ from the other classifications, this is outweighed by the other community of interest factors.

3. The regional director directed an election in the petitioned-for unit, setting forth the election details, voting eligibility requirements, and the Employer's obligation to provide a voter list.

Significant cases applied:

• United Operations, Inc., 338 NLRB 123 (2002): Sets forth the community of interest factors the Board examines in determining whether a petitioned-for unit is appropriate.

• NLRB v. Action Automotive, 469 U.S. 490 (1985): The Board focuses on whether employees in a petitioned-for unit share a community of interest.

The regional director applied relevant Board precedent on the community of interest factors to the facts in the record to conclude the petitioned-for unit was an appropriate unit and direct an election in that unit.