06/04/2024: More Starbucks ULPs. Confidential Employees and Supervisors.
Board also defends its decision to re-decide a ULP case against Exxon.
Freedom Electrical Construction LLC, 373 NLRB No. 61, 03-CA-323884 (Published Board Decision)
The case involves Freedom Electrical Construction LLC (Respondent) and International Brotherhood of Electrical Workers, AFL-CIO, Local 237 (Union). The General Counsel filed a complaint alleging violations of Section 8(a)(5) and (1) of the National Labor Relations Act (NLRA). The complaint stemmed from the Respondent's failure to apply terms and conditions of the collective-bargaining agreement, specifically regarding wages and fringe benefits, to unit employees since summer 2021.
The NLRB granted the General Counsel’s Motion for Default Judgment due to the Respondent’s failure to file an answer to the complaint or respond to the Notice to Show Cause. Consequently, the allegations in the complaint were deemed admitted as true.
The NLRB ordered the Respondent to:
Cease and desist from failing to apply the terms of the collective-bargaining agreements.
Honor and apply the terms of the agreements.
Make unit employees whole for any loss of earnings or benefits.
Make all required fringe benefit contributions.
Compensate employees for adverse tax consequences of lump-sum backpay awards.
Thrifty Payless, Inc. dba Rite Aid, 373 NLRB No. 65, 20-CA-255252 (Published Board Decision)
This is a supplemental decision from the National Labor Relations Board (NLRB) following a remand from the U.S. Court of Appeals for the D.C. Circuit. The case involves Thrifty Payless, Inc. d/b/a Rite Aid (the Respondent) and United Food and Commercial Workers Local 8-Golden State (the Union).
Underlying ALJ Decision
Administrative Law Judge Dickie Montemayor had previously found that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (NLRA) by unilaterally implementing its contract proposal without bargaining to an overall impasse with the Union.
NLRB's Original Decision
In its August 11, 2022 decision, the NLRB affirmed the ALJ's findings and ordered the Respondent to make all delinquent contributions to the employees' health care plan (the Fund) since January 1, 2020.
D.C. Circuit's Decision
On review, the D.C. Circuit upheld the NLRB's findings that the parties were not at impasse and that the Respondent violated the NLRA by implementing its proposal. However, the court remanded the case to the NLRB to allow the Respondent an opportunity to show that its liability to the Fund should be reduced because the Fund paid no claims for employees covered by the unlawfully implemented plan since January 1, 2020. The court cited the following case:
Grondorf, Field, Black & Co. v. NLRB, 107 F.3d 882, 888 (D.C. Cir. 1997) - An employer should be allowed to demonstrate whether contributions to a benefit fund must be reduced based on benefits provided through an employer-sponsored plan to avoid an improper windfall for the fund.
NLRB's Supplemental Decision
Accepting the D.C. Circuit's opinion as law of the case, the NLRB remanded the matter to the ALJ for further analysis consistent with the court's opinion, including reopening the record if necessary, and issuing a supplemental decision.
Starbucks Corporation, JD(NY)-13-24, 31-CA-296700 (ALJ Decision)
This is a decision by Administrative Law Judge Jeffrey P. Gardner finding that Starbucks Corporation (Respondent) committed several unfair labor practices in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA).
Legal Analysis Summary
The ALJ found that Respondent violated Section 8(a)(1) by threatening employee Frida Sanchez with loss of benefits if employees unionized during a one-on-one meeting with Store Manager Reece Scrivner. Considering the totality of the circumstances, the ALJ determined that Scrivner's statements constituted an implied threat not protected under Section 8(c).
The ALJ found that Respondent violated Section 8(a)(1) by unlawfully interrogating Sanchez about her union support and knowledge of union activities during the same meeting with Scrivner. Applying the Rossmore House factors, the ALJ concluded the questioning was coercive.
Applying the Wright Line burden-shifting framework, the ALJ found that Respondent violated Section 8(a)(3) and (1) by issuing a final written warning to employee Marcus Dixon in retaliation for his union activity. The ALJ determined that the General Counsel established a prima facie case of discriminatory motivation, and that Respondent failed to show it would have taken the same action absent Dixon's protected activity. The ALJ found Respondent's proffered reasons for the discipline to be pretextual.
Significant Cases Applied
Wright Line, 251 NLRB 1083 (1980) - Establishes the burden-shifting framework for analyzing cases involving employer motivation.
Rossmore House, 269 NLRB 1176 (1984) - Sets forth factors to consider in determining whether questioning of employees is unlawfully coercive under the totality of the circumstances.
Smithers Tire, 308 NLRB 72 (1992) - Held that employer statements containing threats of reprisal or force are unlawful, using an objective test to determine if a statement is a threat.
The ALJ ordered Respondent to cease and desist from the unlawful conduct, rescind Dixon's discipline, and post a notice informing employees of their rights and the violations found. The ALJ denied the General Counsel's request for additional special remedies.
Fungi Perfecti, LLC, 19-RC-339510 (Regional Election Decision)
The case involves Fungi Perfecti, LLC (Employer) and Laborers Local 252 (Petitioner). The Petitioner sought to represent a wall-to-wall unit of about 50 employees at Fungi Perfecti. The Employer challenged the appropriateness of the proposed unit, arguing for the exclusion of certain positions as supervisors, confidential employees, or based on a lack of community of interest.
Legal Analysis
1. Supervisory Status
The Employer argued that certain employees, such as senior and research scientists, warehouse operations coordinator, and grow room manager, should be excluded as supervisors. According to Section 2(11) of the NLRA, an individual is a supervisor if they have the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly direct them, using independent judgment.
Grow Room Manager: Found not to be a supervisor as only one employee reports to them, and the assignment of tasks did not involve independent judgment.
Warehouse Operations Coordinator: Similarly, only one employee reports to them, and their tasks did not involve independent judgment.
Senior and Research Scientists: Evidence showed participation in hiring and discipline but did not meet the burden of proof for supervisory status as their authority was not shown to be exercised with independent judgment.
2. Confidential Status
The Employer contended that certain IT, HR, and accounting positions were confidential employees.
HR Generalist: Not a confidential employee as the HR manager, whom the generalist reports to, does not formulate labor relations policy, and the generalist’s duties do not involve access to labor relations information.
Accounting and IT Employees: Not confidential employees as their duties do not involve formulating labor relations policy, and while they have access to files, they have no work-related reason to examine confidential documents.
3. Community of Interest
The Employer argued that certain positions should be excluded due to a lack of community of interest. Factors considered include similarity in skills, duties, working conditions, functional integration, employee contact and interchange, centralized control of management and supervision, and geographic proximity.
Functional Integration: All departments are integral to the Employer's business, with employees depending on each other to complete tasks.
Employee Contact and Interchange: Regular contact exists among employees in different departments, supporting a shared community of interest.
Geographic Proximity: Employees are located at three facilities in close proximity, enhancing functional integration.
The Regional Director concluded that the Employer did not meet its burden of demonstrating that the petitioned-for unit was inappropriate. The unit included all full-time and regular part-time employees at the Employer's facilities but excluded supervisors and confidential employees as defined by the Act.
Significant Cases Cited
NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981) - Affirmed the exclusion of confidential employees who assist and act in a confidential capacity to those formulating labor policy.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006) - Defined the criteria for determining supervisory status under Section 2(11) of the NLRA.
Exemplar, Inc., 363 NLRB No. 157 (2016) - Outlined the factors for determining community of interest among employees.
Decision
The Regional Director directed that a secret ballot election be conducted to determine whether the employees wished to be represented by Laborers Local 252. The election was scheduled, and the Employer was required to provide a voter list and post notices of the election.
Exxon Mobil Research & Engineering, 22-CA-218903 (Board Appellate Brief)
The NLRB's appellate brief defends its decision to set aside a prior ruling due to the participation of a Board member with a financial conflict of interest. The Board acted within its discretion to vacate the decision and re-adjudicate the case to maintain public confidence in the integrity and impartiality of its processes. The Board's re-adjudication upheld the findings that ExxonMobil violated the National Labor Relations Act (NLRA) in three ways during contract negotiations with the Union:
Failure to Bargain in Good Faith: The Board found that ExxonMobil did not approach bargaining regarding the Union’s proposal to restore supervisory discretion to grant time off with the necessary good faith.
Coercive Statements: The Board determined that ExxonMobil made coercive statements implying that employees would only receive certain benefits if they abandoned their union representation.
Retaliation for Unfair-Labor-Practice Charges: ExxonMobil made statements suggesting that its refusal to bargain was a result of the Union filing previous unfair-labor-practice charges.
Legal Analysis
1. Setting Aside the Prior Decision
Legal Basis: The Board has broad authority under Section 10(d) of the NLRA to modify or set aside its orders at any time before the administrative record is filed with a reviewing court. The Board found that vacating the decision was necessary to protect the integrity of its decision-making process and maintain public confidence.
Reasoning: The improper participation of a disqualified Board member necessitated vacatur to avoid any appearance of bias or impropriety. This decision was supported by the statutory and regulatory framework governing conflicts of interest for federal officials.
2. Unfair Labor Practices
Failure to Bargain in Good Faith: ExxonMobil violated the NLRA by not engaging in good faith negotiations concerning the Union's proposal to restore supervisory discretion to grant time off.
Coercive Statements: The Board found that ExxonMobil's statements suggested employees would receive better benefits without union representation, which constitutes a violation of Section 8(a)(1) of the Act. The statements were made multiple times and in various contexts, reinforcing their coercive nature.
Retaliation for Unfair-Labor-Practice Charges: The Board concluded that ExxonMobil’s refusal to bargain in good faith, motivated by the Union’s previous filing of unfair-labor-practice charges, violated the NLRA.