06/12/2025: ALJ Declines to Issue Cemex Bargaining Order Despite Hallmark Violations
Update to the casehandling manual.
Yapp Usa Automotive Systems, Inc., JD-52-25, 07-CA-320369 (ALJ Decision)
This case involves allegations that YAPP USA Automotive Systems, Inc. violated the National Labor Relations Act (NLRA) at its Romulus, Michigan facility during a union organizing campaign by the United Automobile Workers (UAW) in 2023.
The case originated when employee Jesse Dowling contacted a UAW organizer in April 2023. Between April and August 2023, the Union collected 114 authorization cards from approximately 150 eligible employees. On July 31, 2023, the Union filed a petition for an election with the NLRB. The election was held on September 14, 2023, resulting in 47 votes for the Union and 84 against. The Union did not file objections to the election results.
The General Counsel alleged several violations, including maintenance of overly broad work rules, unlawful suspension and termination of Dowling, surveillance and interrogation of employees, and increasing benefits to discourage union support.
Employee Handbook Rules
The ALJ found that two provisions in YAPP's employee handbook violated Section 8(a)(1) of the Act:
A confidentiality rule prohibiting employees from discussing "non-public information about the Company" and its "business" and "employees" - The ALJ found this rule was vague and overly broad, as employees could reasonably interpret it to prohibit sharing information about terms and conditions of employment.
A rule requiring employees to work in a "cooperative manner" with managers/supervisors - The ALJ found this term vague, potentially limiting protected conduct including complaints about management.
However, the ALJ dismissed allegations regarding other handbook provisions, including conflict of interest rules, document falsification rules, gossip prohibition, and workplace violence policies, finding these rules would not reasonably be interpreted to restrict protected activity.
Jesse Dowling's Termination
The ALJ dismissed allegations that Dowling's suspension and discharge violated the Act. The evidence showed that on April 13, 2023, Dowling had an altercation with his supervisor, Oscar Chaires, during which Dowling touched Chaires' forehead in a threatening manner. This incident occurred before any union activity began and was thoroughly investigated by the company's HR representative.
Though Dowling later engaged in union activity, the ALJ found the company had legitimate reasons for his termination based on the April 13 incident and a subsequent incident on May 3, when Dowling allegedly threatened Chaires again outside the facility. The ALJ concluded that Dowling would have been terminated regardless of his union activity.
Surveillance and Interrogation
The ALJ found that Ricardo Gomez, a process manager, violated the Act by:
Asking employee Fredrick Pacheco to attend a union meeting and report back
Telling employee Patrick Dallas Quick that he could not talk about the union on the shop floor
Interrogating Pacheco about his union activities and creating the impression of surveillance
However, the ALJ dismissed allegations regarding statements by supervisor Terrance Davison and the Labor Consulting Group consultant, finding insufficient evidence to establish violations.
Increased Benefits
The ALJ found that YAPP violated Section 8(a)(1) and (3) by providing employees with a catered lunch from Red Lobster on September 6 and food and beverages at a bowling event on September 9, just days before the election. These benefits differed from prior company practices and were timed to influence the election.
Bargaining Order Request
The General Counsel requested a bargaining order under Cemex Construction Materials Pacific, LLC (2023), arguing that the company's unfair labor practices made a fair election impossible. The ALJ rejected this request, finding that the violations, while including "hallmark" violations of increasing benefits, were not sufficiently severe to warrant a bargaining order. The ALJ noted mitigating circumstances, including the limited scope of the benefits provided and lack of evidence that these benefits significantly affected employee support for the union.
Remedy
The ALJ ordered YAPP to rescind the unlawful handbook provisions, cease threatening employees for discussing the union, cease surveillance and interrogation, and cease providing increased benefits to discourage union activity. The company was also ordered to post appropriate notices.
Significant Cases Cited
Stericycle, 372 NLRB No. 113 (2023): Established standard for evaluating facially neutral work rules that may restrict Section 7 activity.
Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): Established new standard for determining when a bargaining order is appropriate.
Wright Line, 251 NLRB 1083 (1980): Set forth the legal standard for evaluating whether an adverse employment action violates Section 8(a)(3).
Auto-Chlor System of Washington, 373 NLRB No. 63 (2024): Clarified that the propriety of a Cemex remedial order must be litigated in the ULP proceeding.
NP Red Rock LLC, 373 NLRB No. 67 (2024): Recognized that grants of benefits are "hallmark" violations that tend to have coercive effects on employee free choice.
ExxonMobil Chemical Company, JD(SF)-14-25, 16-CA-229107 (ALJ Decision)
This case involves multiple unfair labor practice charges filed by United Steel Workers Local 13-2001 against ExxonMobil's Baytown, Texas facility between October 2018 and November 2021. The Baytown facility consists of three bargaining units: the Chemical Plant, the Laboratories, and Fuels & Lubricants (Refinery), all represented by the Union since the early 1960s.
The decision addresses several key disputes between the parties, including alleged violations of Section 8(a)(5) and 8(a)(3) of the National Labor Relations Act. The ALJ, Amita Baman Tracy, analyzed these allegations through extensive testimony and documentary evidence gathered during a 13-day hearing.
Central to the case was a Side Letter of Agreement concerning grievance procedures signed in May 2020 for the Refinery unit and later applied to the Chemical Plant and Lab units in September 2020. This agreement established new procedures for addressing grievances filed between May 15, 2016, and May 15, 2020, as well as a process for handling grievances filed after May 15, 2020. A significant backlog of grievances existed at the time, particularly in the Refinery unit (approximately 400).
The ALJ found that while the parties disagreed on the implementation of the grievance side agreement, the evidence did not support the allegation that Respondent repudiated it. Rather, both parties failed to fully comply with the terms, making unilateral interpretations of the agreement. The ALJ credited testimony from ExxonMobil's representatives over Union President Brooks regarding negotiations for the grievance side agreement.
Regarding unilateral changes to working conditions, the ALJ determined:
The Union waived its right to bargain over the elimination of the Perfect Attendance Program for the Chemical Plant and Lab bargaining units by failing to pursue bargaining after receiving adequate notice.
Respondent lawfully implemented changes to the Safe Work Practices Team recognition awards after reaching a good faith impasse with the Union.
Respondent lawfully changed the Slider Pay Policy for the Refinery and Chemical Plant bargaining units under the contract coverage/clear and unmistakable waiver standard, but violated Section 8(a)(5) when applying these changes to the Lab bargaining unit, which lacked similar contract language.
Respondent violated Section 8(a)(5) by implementing changes to the Performance Assessment Form in 2018 and 2021 without meaningful opportunity to bargain.
Respondent violated Section 8(a)(5) by failing to furnish or unreasonably delaying its response to 67 information requests from the Union between 2019 and 2021.
The ALJ dismissed allegations that Respondent violated Section 8(a)(3) by installing a lock on the scale house door where Union President Brooks worked or by denying his leave requests. The evidence did not establish that these actions were motivated by anti-union animus.
The ALJ ordered Respondent to cease and desist from the unfair labor practices, to bargain with the Union regarding the slider pay policy for Lab unit employees and the performance assessment form changes, and to provide the information requested by the Union. The decision also required Respondent to post appropriate notices.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing dual-motive discrimination cases under Section 8(a)(3).
Endurance Environmental Solutions, LLC, 373 NLRB No. 141 (2024): Overruled MV Transportation and returned to the clear and unmistakable waiver standard for determining whether contractual language permits unilateral changes.
NLRB v. Katz, 369 U.S. 736 (1962): Established that an employer violates Section 8(a)(5) by making unilateral changes to mandatory subjects of bargaining without notice and opportunity to bargain.
MV Transportation, Inc., 368 NLRB No. 66 (2019): Established the "contract coverage" standard for determining whether contractual language permits unilateral employer action (overruled in 2024).
Taft Broadcasting, 163 NLRB 475 (1967): Set forth factors to determine whether parties have reached a legitimate impasse in bargaining.
NLRB Casehandling Manual, Part 1, Unfair Labor Practice Proceedings (June 2025)
The casehandling manual was updated, mostly to revise sections impacted by GC 25-06, e.g. sections about default language in settlement agreements, non-admissions clauses, and things of that nature.