05/31/2024: Bad Faith Bargaining, Successor Employer, and an Advice Memo

Questionable reasoning in the advice memo though.

HealthBridge Management, Care Realty (a/k/a  Care One) West River HC, JD(NY)-10-24, 34-CA-070823 (ALJ Decision)

The ALJ decision finds that HealthBridge Management, Care Realty, Care One, and several Healthbridge-operated healthcare centers (collectively, Respondents) violated Sections 8(a)(1), (3) and (5) of the NLRA by:

1. Engaging in bad faith bargaining with the union (New England Health Care Employee Union) by insisting on predictably unacceptable proposals, refusing to engage in reasoned discussions, threatening and locking out employees in support of their final proposals, and unilaterally implementing terms and conditions of employment before bargaining to impasse. The ALJ relied on the following key cases:

2. Failing to reinstate and threatening to permanently replace unfair labor practice strikers in violation of 8(a)(3).

3. Failing to provide relevant requested information to the union in a timely manner in violation of 8(a)(5).

The ALJ also found that the Respondents constitute a single employer/single integrated enterprise and are jointly and severally liable for the violations. The ALJ ordered the Respondents to cease and desist the unlawful conduct, bargain in good faith with the union, rescind unilateral changes, reinstate locked out employees and unfair labor practice strikers, make affected employees whole, and post notices.

Significant Cases Cited

• NLRB v. Katz, 369 U.S. 736 (1962) - Unilateral changes to terms and conditions of employment without bargaining to impasse violates 8(a)(5).

• Taft Broadcasting Co., 163 NLRB 475 (1967) - Impasse occurs when good faith negotiations have exhausted prospects of reaching agreement, based on totality of circumstances.

• Atlanta Hilton & Tower, 271 NLRB 1600 (1984) - Employer must make some reasonable effort to compose differences with union to satisfy 8(a)(5).

• Golden Stevedoring Co., 335 NLRB 410 (2001) - Establishes the principle that a strike is considered an unfair labor practice strike if motivated, at least in part, by the employer's unfair labor practices​.

• Royal Motor Sales, 329 NLRB 760 (1999) - Establishes that locking out employees to compel acceptance of unfair labor practices violates Sections 8(a)(5) and (1) of the Act.

Link Transportation and its joint employer Olivier Incorporated, JD(SF)-16-24, 16-CA-289847 (ALJ Decision)

The ALJ found that Link Transportation Corp. and Olivier Inc. were joint employers and violated Sections 8(a)(5) and (1) of the NLRA by:

1. Refusing to recognize and bargain with ATU Local 1338 as the successor to MyCity Transportation under Burns, 406 U.S. 272 (1972). The ALJ found substantial continuity between Link and MyCity even though Link only performed some of the same microtransit work as MyCity, relying on Fall River Dyeing & Finishing Corp., 482 U.S. 27 (1987), which held a successor bargaining obligation can arise even if the new employer only performs some of the same type of work as the predecessor. Link hired a majority of its workforce from MyCity, retained the same customers, and continued operating from the same location. Therefore, Link was obligated to recognize and bargain with the Union upon request.

2. Forfeiting the right to unilaterally set initial terms and conditions of employment by unlawfully requiring MyCity drivers to sign commitment letters acknowledging Link was non-union and agreeing to cease union membership as a condition of employment, based on Advanced Stretchforming Int'l, Inc., 323 NLRB 529 (1997), which held a successor forfeits the right to set initial terms if it unlawfully tells predecessor employees there will be no union.

The ALJ ordered Link and Olivier to cease and desist the unfair labor practices, recognize and bargain with the Union, rescind unilateral changes, and make employees whole. The ALJ rejected arguments there was no procedural due process in finding the forfeiture of the right to set initial terms based on the commitment letters.

Blue Star Doughnuts LLC d/b/a Blue Star Donuts, 19-RC-330381 (Regional Election Decision)

The decision involves the resolution of challenged ballots and the petitioner's objection in a representation election at Blue Star Doughnuts LLC, doing business as Blue Star Donuts. The main legal issues addressed were the sufficiency of the petitioner's offer of proof regarding the objection and the eligibility of certain challenged voters.

Key Points:

1. Objection Overruled:

   • The Petitioner, Doughnut Workers United, objected to the election results, citing a state of emergency declared in Portland, Oregon, due to severe weather. They claimed this affected voter turnout and the validity of the election.

   • The Regional Director overruled the objection, stating that the petitioner's offer of proof was insufficient. The Petitioner did not identify witnesses or provide specific evidence that the weather prevented employees from voting. The mere fact of low voter turnout (29 out of 52 eligible voters) does not warrant setting aside the election without evidence of an actual impact on voting.

2. Challenged Ballots:

   • The Employer challenged seven ballots based on various issues, including resignation dates and procedural deficiencies.

   • Two challenged ballots (Lydia Hall and Zoe Shankland) were found to be ineligible:

     • Lydia Hall had resigned effective December 22, 2023, and her ballot was mailed after this date.

     • Zoe Shankland resigned effective January 10, 2024, and hand-delivered her ballot on January 18, 2024.

   • The challenges to these ballots were sustained, and they were not counted. The remaining five challenged ballots were not determinative of the election results.

Significant Cases Cited

1. Lockheed Martin Skunk Works, 331 NLRB 852 (2000): The NLRB presumes that ballots cast in Board-supervised elections reflect the true desires of the employees, and setting aside an election requires a heavy burden of proof on the party seeking to do so.

2. Delta Brands, Inc., 344 NLRB 252 (2005): The objecting party bears a heavy burden to furnish evidence that would warrant setting aside an election, including providing a detailed offer of proof.

3. KMS Commercial Painting LLC, 371 NLRB No. 69 (2022): Reaffirmed that for resolving voter eligibility in mail ballot elections, voters must be employed during both the eligibility period and on the date they mail their ballots.

4. Baker Victory Services, 331 NLRB 1068 (2000): Severe weather conditions that prevent employees from voting can be grounds to set aside an election, but there must be evidence showing that the weather conditions actually affected voter turnout.

Teamsters Local 988, 16-CA-299384 (Advice Memo)

This is a case involving a union of union staff, meaning that the Teamsters local is itself the employer of the charging party who was a former staffer at the union.

That former staffer was challenging a clause in the union-as-employer’s personnel policy which stated that the union “expects each employee will support the policies and endeavors of the Local Union,” “encourages each employee to be a member of” the union, and encourages the employees “to pay your Union dues and [political action fund] through payroll deductions.” The rule clarifies that “payroll deductions for such purposes are not required.”

The NLRB’s Division of Advice found that this rule was not coercive under Stericycle because it would not be reasonably read as requiring that an individual become a member of the union, but merely encourages them to do so.

The memo goes on to say, somewhat strangely, that the rule does not require individuals to forego exercising their Section 7 rights, but instead actually encourages the exercise of Section 7 rights through solidarity efforts. This is strange because Section 7 rights also include the right to refrain from such solidarity efforts.

That encouragement is not requirement is a decent point, especially given that employers have a right under Section 8(c) to express their opinions about such things so long as there is no threat of reprisal. But the fact that the encouragement was towards union activity rather than against union activity is not a relevant point because, again, Section 7 protects the right to both engage and refrain from union activity. Oh well.