06/02/2025: Effects Bargaining, Non-Egregious Conduct, Three Advice Memos

Massive document dump on Friday.

Ba-Tampte Pickle Products, Inc., JD-48-25, 29-CA-322438 (ALJ Decision)

In this case, Administrative Law Judge Benjamin W. Green found that Ba-Tampte Pickle Products, Inc. violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing to bargain with United Food and Commercial Workers Union, Local No. 342 regarding the effects of selling assets of its retail business and laying off 13 bargaining unit employees.

Ba-Tampte, a Brooklyn-based pickle manufacturer, sold assets of its retail business to E.W. Grobbel Sons, Inc. in June 2023, resulting in the layoff of 13 bargaining unit employees. The company notified the Union on May 19, 2023, of the planned sale and impending layoffs. The Union promptly requested effects bargaining on May 25. While the company initially agreed to meet, it maintained that effects bargaining was unnecessary because Article 13 of their collective bargaining agreement (CBA) already addressed layoffs by requiring the company to provide notice and pay laid-off employees for unused sick leave and vacation.

The parties attempted to meet twice via Zoom in June 2023, but scheduling difficulties and miscommunications prevented substantive bargaining. When the Union finally submitted a written proposal on June 28, the company rejected it without offering a counterproposal, claiming that the CBA's provisions regarding layoffs were sufficient.

The central legal question was whether the CBA's provisions regarding notice and payment of unused benefits to laid-off employees constituted a "clear and unmistakable" waiver of the Union's right to bargain over other effects of the layoffs. Judge Green analyzed the case under the Board's recently reinstated "clear and unmistakable waiver" standard from Endurance Environmental Solutions (2024), which abandoned the "contract coverage" standard previously applied under MV Transportation.

Judge Green rejected the company's defense, finding that the contractual obligation to provide employees with pay for unused sick leave and vacation did not constitute a clear and unmistakable waiver of the Union's right to bargain over other effects. The judge cited several precedents establishing that including certain effect benefits in a CBA does not waive the right to bargain over other effect benefits.

Judge Green also rejected the company's alternative defenses that the Union failed to participate in bargaining and that the Union's proposal was "outrageous." The judge noted that the Union's scheduling issues were not an attempt to frustrate bargaining, and the company's refusal to make a counterproposal prevented the parties from potentially reaching an agreement.

As a remedy, Judge Green ordered the company to bargain with the Union about the effects of the sale and layoffs. Additionally, he ordered a Transmarine backpay remedy, requiring the company to pay the laid-off employees their normal wages for a limited period to restore some economic strength to the Union's bargaining position.

Significant Cases Cited

• Endurance Environmental Solutions, 373 NLRB No. 141 (2024): Abandoned the "contract coverage standard" and reinstated the "clear and unmistakable waiver" analysis.

• MV Transportation, Inc., 368 NLRB No. 66 (2019): Established the now-overruled "contract coverage standard" for determining whether a CBA privileged unilateral actions.

• Port Printing AD and Specialties, 351 NLRB 1269 (2007): Established that a contractual obligation to provide laid-off employees with pay for sick leave and vacation did not waive the duty to bargain over other effects.

• KGTV, 355 NLRB 1283 (2010): Found that contractual severance provisions did not waive the union's right to bargain over other effects of layoffs.

• Transmarine Navigation Corp., 170 NLRB 389 (1968): Established the limited backpay remedy used when employers fail to bargain over effects of business decisions.

Clara Maass Medical Center, JD-49-25, 22-CA-317355 (ALJ Decision)

This case involves Clara Maass Medical Center, a New Jersey hospital, and disciplinary actions against nurses who presented a petition supporting a colleague's grievance.

Background

In March 2023, registered nurse Glenda Eng received a final written warning and suspension for using restraints on a patient during an IV insertion procedure. Eng and her union representative requested a peer review, but the hospital's Human Resources department repeatedly delayed scheduling it, causing frustration among the nursing staff.

The April 26 Incident

By April 2023, Eng and colleagues prepared a petition signed by 139 hospital nurses supporting Eng's position that her restraint use was consistent with hospital policy and demanding proper grievance procedures. On April 26, during the daily ICU huddle, Eng attempted to present the petition to supervisor Bianca Michel. When Michel approached a group of nurses asking what was happening, Eng insisted Michel explain her discipline while waving and pointing at the petition. Michel refused to accept the petition, told Eng not to point at her, and instructed everyone to return to work. The conversation lasted 1-4 minutes with no raised voices.

Hospital Response

Hospital leadership immediately characterized the incident as workplace violence and intimidation. Nine nurses were placed on paid administrative leave pending investigation. Security Director Eli Cruz issued a report labeling it a "workplace violence incident" before interviewing participants. After superficial interviews, seven nurses received discipline on May 11: Eng was discharged (having already been under final warning), Howard received a final warning and suspension, and five others received written warnings.

Legal Analysis

The ALJ applied both Burnup & Sims and Wright-Line frameworks, finding the hospital violated Section 8(a)(1) and 8(a)(3) of the National Labor Relations Act.

Protected Activity: The petition and presentation constituted protected concerted activity as 139 employees collectively addressed working conditions and grievance procedures.

No Egregious Misconduct: Under Burnup & Sims, Eng's conduct was not so egregious as to lose Act protection. She never raised her voice, made threats, or acted physically threatening. Michel approached the group rather than being surrounded.

Lack of Good Faith: The hospital predetermined misconduct occurred before investigating. The security report concluded workplace violence happened before interviewing participants, and the subsequent investigation was superficial.

Discriminatory Motivation: Under Wright-Line, the hospital showed anti-union animus through failure to recognize the union representative's role, management emails opposing union involvement, and recommendations to discipline all petition signers.

Subpoena Violation: The hospital conducted an unreasonably narrow search for comparable disciplinary records, leading to an adverse inference that prevented examination of consistent disciplinary practices.

Remedy

The ALJ ordered comprehensive relief including Eng's reinstatement with back pay, back pay for all disciplined employees, removal of disciplinary records, and posting of notices.

Significant Cases Cited

• NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964): Established framework for analyzing discipline during protected activity, focusing on whether misconduct was egregious enough to lose Act protection.

• Wright Line, 251 NLRB 1083 (1980): Created analytical framework for proving discriminatory motivation requiring proof of protected activity, employer knowledge, and animus.

• Consumers Power Co., 282 NLRB 130 (1986): Defined standard for egregious misconduct during protected activity as conduct rendering employee unfit for service.

• Consolidated Diesel Co., 332 NLRB 1019 (2000): Held that subjective reactions of coworkers do not determine whether conduct constitutes misconduct during protected activity.

• Bannon Mills, Inc., 146 NLRB 611 (1964): Authorized adverse inferences against parties failing to comply with document subpoenas.

Teamsters Local 592 (20th Century Fox Film Corp.), JD-47-25, 05-CB-273681 (ALJ Decision)

This case involves claims against Teamsters Local 592 regarding the operation of its exclusive hiring hall for drivers in the film industry around Richmond, Virginia. The case consolidated three charges filed in 2021 by Terringus Walker, Robert Patrick O'Connell (now deceased), and James Oliver Harris.

Background

Local 592 maintained collective bargaining agreements with film industry employers including CBS Studios, 20th Century Fox, and Stalwart Films. These agreements established Local 592 as the exclusive bargaining representative for drivers working on film productions in the union's jurisdiction. Employers could not hire drivers directly but had to use the union's referral system.

The union maintained two referral lists: a "Regular" or "A" list of senior members (closed to new members for over 20 years) and an "Extra" or "B" list for less senior employees (closed since 2020). Employers had to hire from the Regular list in order of seniority before accessing the Extra list.

Allegations

The General Counsel alleged that Local 592 violated Section 8(b)(1)(A) of the National Labor Relations Act by:

1. Operating its hiring hall in an arbitrary manner without objective criteria, particularly regarding the Extra list

2. Refusing to refer Terringus Walker for employment in retaliation for his filing an unfair labor practice charge in 2019

3. Failing to adequately notify employees of a significant change to referral rules for Regular list employees

Key Facts

The referral process typically began with a film employer hiring a transportation coordinator (selected by the union) from the Regular list. The union would also designate a captain and co-captain for each production. When employers needed additional drivers, they could hire from the Extra list, which was alphabetical with no apparent objective criteria for selection.

Terringus Walker worked on the film "Walking Dead" in 2019 but had a workplace conflict with an IATSE employee. After filing a grievance and unfair labor practice charge against Local 592, Walker was not hired for any film work after October 2020 despite several attempts to secure employment.

In March 2021, the union eliminated Regular list members' "bumping rights" (the ability to bump less senior employees when their film ended) without prior notice, affecting charging parties Harris and O'Connell.

ALJ Decision

Administrative Law Judge Arthur J. Amchan found:

1. Hiring Hall Violations: Local 592 violated Section 8(b)(1)(A) and 8(b)(2) by operating an exclusive hiring hall without objective criteria for referrals from the Extra list. The judge determined that union captains had significant discretion in the referral process, making them agents of the union. The lack of objective standards violated the union's duty of fair representation.

2. Retaliation Against Walker: The judge credited Walker's testimony that captain Bo Jenkins told him he wasn't hired because he had filed charges against the union. The ALJ found that Walker's protected activity was a "material factor" in the union's failure to refer him for work after October 2020.

3. Rule Change Notice: The judge dismissed allegations regarding the notification of changes to bumping rights, finding that while the union didn't provide advance notice, it satisfied its obligations by notifying members on the day after the change took effect.

4. Referral Fee: The judge rejected the General Counsel's claim that the union charged an improper fee for Extra list membership, finding that the union provided a service by limiting competition for employment opportunities.

Remedy

The ALJ ordered the union to:

• Rescind or revise its arbitrary hiring hall referral rules

• Make Terringus Walker whole for lost earnings and search-for-work expenses

• Compensate Walker for adverse tax consequences of receiving a lump-sum backpay award

• Reinstate Walker to the Extra list

• Post appropriate notices at its facilities and mail notices to film employers and Extra list members

Significant Cases Cited

• Branch 600, National Assn. of Letter Carriers, 232 NLRB 263 (1977): A union cannot avoid legal obligations by delegating its functions to the employer or unit members.

• Plumbers Local 619 (Bechtel Corp.), 268 NLRB 766 (1984): Allowing union officials unfettered discretion in making referrals violates a union's fiduciary responsibility.

• Polis Wallcovering Co., 262 NLRB 1336 (1982): When a union makes referrals based on subjective judgment regarding qualifications, it violates Section 8(b)(1)(A).

• Operating Engineers Local 18 (Ohio Contractors Assn.), 204 NLRB 681 (1973): When a union prevents an employee from being hired for reasons other than failure to pay required fees, there is a rebuttable presumption it acted unlawfully.

• Teamsters Local Union No. 667 (Spector Freights System, Inc.), 248 NLRB 260 (1980): A union violates the Act by charging a referral fee without rendering a service or charging a fee exceeding costs attributable to services rendered.

Rhode Island CVS Pharmacy, L.L.C., 01-RC-358916 (Regional Election Decision)

This NLRB Regional Director decision addressed whether staff and night pharmacists at a CVS pharmacy in Coventry, Rhode Island should be classified as supervisors and excluded from union representation. The Pharmacy Guild sought to represent seven pharmacists, while CVS argued they were statutory supervisors under Section 2(11) of the National Labor Relations Act.

Workplace Context

The pharmacy operates 23 hours daily with about 30 employees. Two pharmacy co-managers (acknowledged supervisors) work only 75 combined hours while the pharmacy operates 161 hours weekly, meaning pharmacists frequently work without managerial oversight. The pharmacy fills approximately 7,000 prescriptions weekly.

Authority Challenge

CVS initially argued the Regional Director lacked authority due to the Board having only two members after President Trump removed a Board member in January 2025. The Regional Director rejected this, citing established precedent that the 1961 delegation of authority to Regional Directors remains valid during quorum lapses, as upheld by multiple Circuit Courts and acknowledged in New Process Steel.

Supervisory Analysis

Under Section 2(11), supervisors must possess authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, or responsibly direct employees using independent judgment. CVS bore the burden of proving supervisory status. The Regional Director applied the Oakwood Healthcare framework for analyzing supervisory functions.

Key Findings

Assignment and Direction: Pharmacists rotate technicians through workstations every two hours based on obvious factors like experience levels, requiring minimal independent judgment. They cannot compel overtime, call in additional staff, or close pharmacy sections. No evidence showed pharmacists being held accountable for subordinate performance.

Disciplinary Authority: Pharmacists issue automatic verbal warnings for attendance violations without investigation or discretion. While they report serious incidents to Colleague Relations, they act as witnesses rather than decision-makers. The Veolia Transportation standard requires discipline leading to personnel action without independent upper management investigation, which was not established.

Hiring and Rewards: No current pharmacists participate in hiring. Evidence was speculative, based only on testimony about a former pharmacist. The reward system allowing point distribution for small prizes was rarely or never used.

Professional vs. Supervisory Responsibility

The decision distinguished between professional licensing requirements (verifying prescriptions for safety) and supervisory authority under the Act. Being "in charge" without independent judgment in statutory functions does not establish supervisory status.

Conclusion

Finding CVS failed to prove supervisory status on all criteria, the Regional Director approved the bargaining unit and directed an election for June 9, 2025, emphasizing the Board's approach of construing supervisory status narrowly to preserve employee statutory protections.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Refined Board analysis of "assign," "responsibly direct," and "independent judgment" in determining supervisory status.

• New Process Steel, LP v. NLRB, 560 US 674 (2010): Established three-member Board quorum requirement but preserved delegated authority to Regional Directors.

• NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001): Placed burden of proving supervisory status on the party alleging such status exists.

• Veolia Transportation Serv., Inc., 363 NLRB 902 (2016): Required disciplinary authority to lead to personnel action without independent upper management investigation.

• Golden Crest Healthcare Center, 348 NLRB 727 (2006): Established that "paper authority" without actual supervisory evidence is insufficient for supervisory status.

Starbucks Corp., 03-CA-310035 (Advice Memo)

This National Labor Relations Board advice memorandum concerns case 03-CA-310035 against Starbucks Corporation, recommending dismissal of charges related to overly broad subpoenas and coercive cross-examination during administrative proceedings.

Background and Procedural History

On May 19, 2022, NLRB Region 3 issued a consolidated complaint alleging nearly 300 unfair labor practices against Starbucks. During the subsequent administrative hearing that ran from July 11 to September 14, 2022, Starbucks served administrative trial subpoenas on seventeen current and former employees around July 8, 2022. The Administrative Law Judge (ALJ) quashed nearly all of these subpoenas in their entirety, finding them overly broad and seeking confidential information about Section 7 activities.

A charge was filed on January 9, 2023, alleging that Starbucks violated the National Labor Relations Act through coercive cross-examination of two witnesses and by issuing the overly broad subpoenas to the seventeen individuals. The Advice Division held the case in abeyance pending resolution of related litigation.

Legal Analysis and Prior Advice

The Advice Division issued a memorandum on November 13, 2024, initially concluding that a complaint should issue. The analysis found that the cross-examinations encroached on confidential Section 7 activity and that the subpoenas, despite being quashed by the ALJ, still had a reasonable tendency to coerce employees upon receipt, necessitating a Board order for full remedy.

On December 16, 2024, the Board affirmed and amended the ALJ's conclusions in the underlying case and ordered extensive remedies, including posting a voluminous notice covering the nearly 300 unfair labor practices found.

Current Recommendation for Dismissal

Despite the prior advice recommending complaint issuance, the Advice Division now concludes the charge should be dismissed based on changed circumstances and resource allocation considerations. The analysis identifies several factors supporting dismissal:

Coercive Cross-Examination: The problematic cross-examinations occurred in the rare context of soliciting evidence for a parallel Section 10(j) proceeding within an administrative hearing. Both the underlying administrative case and the Section 10(j) case have concluded, making recurrence unlikely.

Subpoena Issues: Nearly all the overly broad subpoenas were quashed within weeks of issuance over two years ago. Many of the affected seventeen individuals no longer work for Starbucks, reducing the ongoing impact.

Comprehensive Relief Already Obtained: The Board's decision in the underlying case resolved almost 300 unfair labor practices, including coercive interrogation of employees, and resulted in extensive remedies including a broad cease-and-desist order and notice posting/reading requirements.

Resource Allocation: Given these circumstances, pursuing an additional complaint would not constitute an effective use of limited Agency resources and would not effectuate the purposes and policies of the Act.

The memorandum concludes that issuing a complaint in this matter would not serve the Act's purposes, recommending dismissal absent voluntary withdrawal. The case involves ongoing appeals, with Starbucks filing a petition for review and the Board filing a cross-application for enforcement before the United States Court of Appeals for the Fifth Circuit.

Significant Case Cited

• Starbucks Corp., 374 NLRB No. 10 (2024) - Board decision affirming ALJ findings on nearly 300 unfair labor practices and ordering comprehensive remedies including cease-and-desist provisions and notice posting.

United States Postal Service, 10-CA-291912 (Advice Memo)

This is the complete text of the advice memo:

The Region requested advice as to whether to proceed with its hearing on March 18, 2025, where the only issue is whether the Employer violated Section 8(a)(5) by failing to make supervisors available for interviews pursuant to the Union’s information requests. The Board has never affirmatively held that interview requests are cognizable as requests for information under Section 8(a)(5) and it is the Acting General Counsel’s position that requests for interviews are not information requests. Therefore, the Region should withdraw the complaint and dismiss the charge, absent withdrawal.

Ascension St. Joseph Joliet, 13-CA-317434 (Advice Memo)

This case addresses whether Ascension St. Joseph Hospital was required to apply an existing collective bargaining agreement (CBA) to registered nurses from the Ambulatory Surgery Center who joined the bargaining unit through an Armour-Globe self-determination election.

The Illinois Nurses Association (INA) represented registered nurses at the main hospital under a CBA effective from July 2020 to July 2023. In February 2023, INA petitioned to represent seven nurses from the Ambulatory Surgery Center ("Center nurses") in a self-determination election. INA won the election, and the Center nurses were certified as part of the bargaining unit on April 13, 2023.

Between the filing of the petition and certification, some Center nurses resigned, leaving the Center short-staffed. The Employer temporarily halted surgeries at the Center and assigned the remaining Center nurses to work as "functional nurses" in the main hospital.

When bargaining for a successor agreement began on April 25, INA demanded that the Employer apply the terms of the existing CBA to the Center nurses. The Employer refused, citing Federal-Mogul, which establishes that employees added to a unit through a self-determination election are not automatically covered by an existing agreement.

The memo concluded that the Employer did not violate Section 8(a)(5) by refusing to apply the existing CBA to the Center nurses for two reasons:

1. Under Federal-Mogul, when a "fringe group" joins an existing unit through a self-determination election, the employer must maintain the existing CBA for the historic unit and negotiate interim terms for the newly added employees. Applying the existing agreement to the new employees would effectively compel specific contractual provisions in violation of H.K. Porter.

2. The Center nurses were not performing bargaining unit work when assigned as "functional nurses." Their duties were more similar to nurse's aides or patient care technicians, which were non-bargaining unit positions. Although nurses in the historical unit also worked as functional nurses, so did non-unit employees who were not covered by the CBA. Therefore, working as a functional nurse did not automatically confer unit status or application of the CBA.

The memo also noted that the Center nurses constituted a distinct, identifiable segment, as evidenced by their separate work location, lack of functional integration with other nurses, and INA's own recognition of their distinct status by seeking a self-determination election rather than unit clarification.

Significant Cases Cited

• Federal-Mogul Corp., 209 NLRB 343 (1974): Establishes a dual-phase framework for bargaining obligations when a fringe group joins a bargaining unit through self-determination election.

• H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970): Prohibits the Board from compelling parties to agree to specific contractual provisions.

• UMass Memorial Medical Center, 349 NLRB 369 (2007): Confirms that an employer may not unilaterally apply terms of an existing contract to employees added through self-determination election.

• Wells Fargo Armored Service Corp., 300 NLRB 1104 (1990): Supports the principle that terms of existing contracts cannot be imposed on employees added through self-determination elections.