05/28/2024: An Odd Construction Union Case

USPS taking too long to answer union information requests.

Garten Trucking Lc, 373 NLRB No. 64, 10-CA-304929 (Published Board Decision)

This NLRB decision affirms an Administrative Law Judge (ALJ) decision in Garten Trucking LC. The ALJ, Geoffrey Carter, found that Garten Trucking violated Section 8(a)(1) of the National Labor Relations Act (NLRA) on September 29, 2022, when owner Robert "Dizzy" Garten told employees in a TeamReach post that they would have already received raises if not for the union's organizing efforts.

The ALJ applied the following legal standard: Section 8(a)(1) prohibits employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. The test is objective, based on whether the conduct would reasonably tend to interfere with protected activity, regardless of the employer's motive.

Key cases cited:

• Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Employer unlawfully blamed the union for a delay in wage increases.

• Valmet, Inc., 367 NLRB No. 84 (2019): Employer unlawfully threatened to withhold wage increases if employees selected the union.

• Invista, 346 NLRB 1269 (2006): Employer unlawfully said there would be no more bonuses or raises while the union tried to organize.

The ALJ rejected Garten's argument that the statement was a protected expression of opinion under Section 8(c). He found the statement went beyond opinion and objectively blamed employees' union activities for the lack of raises, violating Section 8(a)(1).

The three-member NLRB panel (Kaplan, Prouty, Wilcox) affirmed the ALJ's findings and conclusions in full. It adopted the ALJ's recommended order, including posting notices of the violation, but declined to order special remedies like a notice reading.

Alamo Intermediate II Holdings, LLC, 27-RC-333383 (Regional Election Decision)

This is a Decision and Direction of Election issued by Matthew S. Lomax, Regional Director of Region 27 of the National Labor Relations Board (NLRB). The decision addresses a representation petition filed by the Communications Workers of America, AFL-CIO (the Union) seeking to represent certain employees of Alamo Intermediate II Holdings, LLC (the Employer) at its Sloan's Lake facility in Denver, Colorado.

The primary legal issue was whether the petitioned-for single-facility unit limited to employees at the Sloan's Lake facility is appropriate, or whether the bargaining unit must also include employees from the Employer's two other Denver-area facilities (Westminster and Littleton). The parties also disagreed on the inclusion of Technical Engineer II and Supervisor classifications, which the Regional Director addressed by allowing those individuals to vote subject to challenge.

The Regional Director incorporated the record from a previous case (27-RC-332770) involving the same parties and issue for the Westminster facility. Consistent with his decision in that case, the Regional Director found that the Employer did not meet its burden of demonstrating that the bargaining unit must include employees from all three Denver-area facilities. He concluded that a unit consisting solely of full-time and regular part-time employees at the Sloan's Lake facility is appropriate under Section 9(b) of the National Labor Relations Act (NLRA).

The decision did not cite any significant cases, relying instead on the record and the Regional Director's previous decision in Case 27-RC-332770 addressing the same unit appropriateness issue for a different facility.

The Regional Director directed an election for June 7, 2024, and provided standard information on voting eligibility, the voter list, and posting of election notices. He also noted the right to request review of the decision by the NLRB pursuant to the Board's Rules and Regulations.

Hometown Electric LLC, 19-RM-339836 (Regional Election Decision)

Section 8(f) of the NLRA allows employers and construction unions to enter into collective-bargaining agreements without going through the usual procedures for showing that the union has majority status. So long as such an agreement is struck, the Board simply presumes majority status.

Here the union and the employer had a Section 8(f) agreement, but the employer subsequently filed an RM petition claiming that it had a good-faith uncertainty about whether the union had a majority status. But the unit that the employer identified as the one that the union does not have majority support for included “helpers.” Helpers were not in the unit governed by the Section 8(f) agreement and so the employer’s RM petition is challenging the majority status of a unit that the union did not even seek to represent, which it cannot do.

The employer also maintained that the union’s authorization cards did not demonstrate majority in the unit excluding the helpers because they were outdated. But the Board does not strictly adhere to a one-year rule for the validity of authorization cards, especially in the construction industry. The cards in question included language indicating their long-term validity, remaining effective until explicitly revoked. This context supports their continued validity.

The employer’s RM petition was dismissed because it did not reflect a unit for which the Union made a demand for recognition, and the Employer failed to demonstrate a good-faith reasonable uncertainty about the Union's majority status within the appropriate unit.

Significant Cases Applied:

1. Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001): An employer must demonstrate a good-faith reasonable uncertainty about the union's majority

2. Stockton Roofing Co., 304 NLRB 699 (1991): In the construction industry, a union is presumed to have majority status under an 8(f) agreement unless proven otherwise.

3. PMS Steel Construction, 309 NLRB 1302 (1992): An RM petition will be dismissed if the union has not sought to represent the employees in the unit described in the petition.

Grow Op Farms, LLC, JD(SF)-15-24, 19-CA-309512 (ALJ Decision)

This decision by ALJ Dickie Montemayor finds that Grow Op Farms, LLC violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA) during a union organizing campaign by United Food and Commercial Workers Local 3000.

The ALJ found that Grow Op Farms violated Section 8(a)(1) by:

1. Creating an impression of surveillance of employees' union activities

2. Prohibiting employees from talking about the union on company property

3. Threatening employees with discharge for union activities

4. Selectively prohibiting union solicitations while allowing non-union solicitations

5. Removing union literature from break rooms

6. Interrogating employees about their union support

7. Threatening to freeze wages/benefits if employees voted for the union

The ALJ also found that Grow Op Farms violated Sections 8(a)(3) and (1) by terminating employees Nathan Howell and Matthew Holz due to their union support and activities.

Key cases cited:

• Rossmore House, 269 NLRB 1176 (1984): Whether an interrogation violates Section 8(a)(1) depends on whether under all the circumstances it reasonably tends to restrain, coerce, or interfere with Section 7 rights.

• Tres Estrellas de Oro, 329 NLRB 50 (1999): An employer unlawfully creates an impression of surveillance if employees reasonably assume their union activities are being watched.

• Santa Barbara News-Press, 357 NLRB 452 (2011): Conduct that reasonably tends to interfere with the free exercise of employee rights under the Act violates Section 8(a)(1).

• Frazier Industrial Co., 328 NLRB 717 (1999): Employers may not allow nonwork-related discussions but prohibit union-related discussions.

• Jensen Enterprises, Inc., 339 NLRB 877 (2003): Statements that benefits will be frozen until a collective bargaining agreement is signed violate Section 8(a)(1) if there is a past practice of granting periodic wage increases.

• Wright Line, 251 NLRB 1083 (1980): In discrimination cases, the General Counsel must make an initial showing that protected activity was a motivating factor in the adverse action. The burden then shifts to the employer to demonstrate it would have taken the same action absent the protected activity.

The ALJ ordered various remedies including reinstatement and backpay for the terminated employees, and a notice reading. He also recommended setting aside the election results and conducting a rerun election.

United States Postal Service, JD-32-24, 07-CA-299320 (ALJ Decision)

The case involves allegations that the United States Postal Service (USPS) violated Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act (the Act) by failing to provide requested information or unreasonably delaying in providing such information to the American Postal Workers Union (APWU) and its Locals 143 and 281.

1. Case 07–CA–299320 (Colon, MI Facility) - Information Request Delay:

   • Facts: Local 143 requested information on April 28, 2022, related to the administrative leave and emergency placement of employee Janna Garland. The information was not fully provided until July 28, 2022.

   • Legal Analysis: The information was presumptively relevant to the union’s role in representing Garland. The USPS provided no persuasive reasons for the delay, which constituted an unreasonable delay and a violation of Sections 8(a)(5) and (1).

   • Significant Case: Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979): Employers must furnish relevant information necessary for a union to perform its duties as the exclusive bargaining representative.

2. Case 07–CA–304691 (Big Rapids, MI Facility) - Information Request Delay:

   • Facts: Local 281 requested information on September 15 and 26, 2022, regarding grievances related to a hostile work environment created by carrier Amanda Bishop. The requested information was not provided until November 4, 2022.

   • Legal Analysis: The requested information was relevant to the union’s investigation of a hostile work environment. The delay in providing this information was unreasonable, violating Sections 8(a)(5) and (1).

   • Significant Case: NLRB v. Acme Industrial Co., 385 U.S. 432 (1967): The duty to bargain includes providing relevant information necessary for processing grievances.

3. Case 07–CA–301929 (Grand Rapids, MI Facility) - Failure to Provide Information:

   • Facts: Local 281 requested information on August 9 and 17, 2022, related to the terminations of probationary employees Cindy Andrews, Kiara Carter, and Christopher Paige. USPS refused to provide the information, claiming the employees were probationary and not entitled to the grievance process.

   • Legal Analysis: The information was necessary to determine if the terminations were effectuated within the probationary period, a condition that could grant full grievance rights. The USPS’s refusal to provide this information violated Sections 8(a)(5) and (1).

   • Significant Case: United Technologies Corp., 274 NLRB 504 (1985): Employers must provide information that is relevant to the union’s duties in representing employees, including for grievance purposes.

The ALJ concluded that the USPS violated Sections 8(a)(5) and 8(a)(1) by unreasonably delaying or failing to provide requested information necessary for the union to perform its duties as the exclusive bargaining representative. The USPS was ordered to cease and desist from such violations and to take affirmative actions, including providing the requested information and posting notices informing employees of their rights and the violations found.