06/19/2024: The First Cemex Bargaining Order
Also, coercing a supervisor into committing an unfair labor practice is an unfair labor practice.
NP Red Rock LLC d/b/a Red Rock Casino Resort & Spa, 373 NLRB No. 67, 28-CA-244484 (Published Board Decision)
This extensive case involved allegations of numerous unfair labor practices (ULPs) by NP Red Rock LLC d/b/a Red Rock Casino Resort Spa (Red Rock) and its corporate parent, Station Casinos, during a union organizing campaign by the Culinary Union. The ALJ found that Red Rock committed numerous violations of Section 8(a)(1) of the National Labor Relations Act (NLRA), including:
Threats of futility: Red Rock executives repeatedly emphasized the years of fruitless bargaining at other unionized Station Casinos properties, implying that bargaining would be similarly unproductive at Red Rock if employees chose union representation. This constituted a threat of futility.
Promises of benefits: Red Rock executives, particularly Phil Fortino, the newly hired senior HR VP, promised improved benefits and working conditions without union representation.
Threats to withhold benefits: Red Rock managers implicitly threatened to withhold new benefits if employees chose the Union.
Coercive interrogation: A manager questioned an employee about her union sympathies in a coercive manner.
Threats of reprisal: Managers threatened employees with the loss of "favors" and "extras" if the Union was voted in.
Unlawful grant of benefits: Red Rock implemented a sweeping package of new benefits and programs designed to undermine the Union's campaign. The timing and nature of these benefits were found to be motivated by anti-union sentiment.
Unlawful campaigning: Red Rock managers engaged in a number of unlawful actions during the campaign, including distributing anti-union pamphlets, serving "Vote No!" branded steaks, and posting photos of employees on an anti-union website without their consent.
The ALJ also found that Red Rock violated Section 8(a)(3) of the NLRA by disciplining and issuing discriminatory work assignments to two union supporters, Claudia Montano and Maria Gutierrez. Additionally, Red Rock violated Section 8(a)(3) by refusing to recall Teresa Powers from layoff due to her union activities. Finally, the ALJ found that Red Rock violated Section 8(a)(5) by unilaterally terminating table-swap agreements with the Union without prior notice or bargaining.
Among other remedies, the ALJ in this case issued a Gissel bargaining order requiring the employer to recognize and bargain with the union.
The Board, in its review of the ALJ decision, mostly adopted all of the ALJ’s conclusions, including that the Gissel bargaining order was appropriate. But it also concluded that a Cemex bargaining order was appropriate. Cemex was a case decided last year that generated a lot of excitement around the possibility that employers who engage in unfair labor practices during union organizing campaigns will be required to recognize and bargain with the union even if the union loses the election. These kinds of bargaining orders were already available under Gissel, but the conditions required to secure such an order under Cemex are perhaps not as extreme as the conditions required to secure such an order under Gissel.
Under the Cemex standard, an employer violates 8(a)(5) by refusing to recognize and bargain with a union that has been designated as the majority representative by employees, unless the employer promptly files an RM election petition or the union files an RC petition. If the employer commits unfair labor practices during the pendency of such a petition that require setting aside the election, the Board will issue an order requiring the employer to recognize and bargain with the union.
Applying Cemex here, the Board found:
Red Rock refused the Union's November 22, 2019 bargaining request that was made when the Union filed the election petition;
The Union had in fact obtained authorization cards from a majority of unit employees by October 16, 2019;
The parties stipulated to the appropriate bargaining unit; and
Red Rock committed unfair labor practices that required setting aside the election.
Therefore, Red Rock's refusal to bargain violated 8(a)(5) under Cemex, and a bargaining order was alternatively warranted on that basis as well.
The Board noted that the Cemex standard applies retroactively to all pending cases in whatever stage, following its usual practice. The Board amended the ALJ's conclusions of law to find the 8(a)(5) violation under Cemex.
Intertape Polymer Corp., 373 NLRB No. 68, 07-CA-273203 (Published Board Decision)
This is an NLRB decision reversing an ALJ's decision and finding that the employer, Intertape Polymer Corp., violated Sections 8(a)(3) and (1) of the NLRA by disciplining employees Mike Abbott and Robert Tremper for their conduct during a February 3, 2021 meeting with management where they were engaged in protected union activity.
The ALJ had applied the Wright Line burden-shifting framework and found no violation, concluding that the General Counsel failed to prove the disciplines were motivated by union animus. The ALJ also found that even if the General Counsel met its initial Wright Line burden, the employer proved it would have disciplined Tremper anyway for insubordination after the meeting ended.
The Board majority reversed, finding that under Lion Elastomers, the proper framework was the Atlantic Steel factors for analyzing whether an employee's conduct during protected activity was so egregious as to lose protection of the Act. Applying those factors, the Board found Abbott and Tremper did not lose protection.
The NLRB applied the four-factor test from Atlantic Steel as follows:
Place of the Discussion: The discussion took place in the workplace but did not disrupt other employees.
Subject Matter of the Discussion: The employees were addressing a potential contract violation and safety concerns, which are protected subjects.
Nature of the Outburst: Abbott's and Tremper's conduct, though arguably disrespectful, was not egregious or opprobrious. Abbott's statements were part of the res gestae of his protected activity, and Tremper's conduct, although assertive, was not threatening.
Provocation by Unfair Labor Practices: The Respondent's actions, including Abbott’s suspension, provoked Tremper's reaction.
Key cases relied upon:
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting test used to determine whether an employer’s disciplinary action was motivated by anti-union animus.
Atlantic Steel Co., 245 NLRB 814 (1979): Established the four-factor test to determine whether an employee’s conduct during protected activity was so egregious as to lose the protection of the Act.
Lion Elastomers LLC, 372 NLRB No. 83 (2023): Reinstated the Atlantic Steel standard, overruling General Motors LLC, 369 NLRB No. 127 (2020).
Trinity Health-Michigan d/b/a/ Trinity Health Ann Arbor Hospital, JD-38-24, 07-CA-321640 (ALJ Decision)
This is an ALJ decision finding that Trinity Health Michigan (the Respondent) violated Section 8(a)(1) of the NLRA by constructively discharging supervisor Linda Tinsley for refusing to commit unfair labor practices.
The key legal analysis is as follows:
The ALJ found that the Respondent coerced Tinsley into providing it with a list of union supporters that she found, which constituted unlawful surveillance. Although Tinsley ultimately provided the list after repeated requests, the ALJ found her purposeful delay in doing so was tantamount to a refusal to commit the unfair labor practice under Parker-Robb Chevrolet, Inc..
Applying the Board's test for constructive discharge from Intercon I (Zercom), the ALJ found: 1) The Respondent's repeated requests for the list and search of Tinsley's office for it made Tinsley's working conditions so difficult that the Respondent reasonably should have foreseen she would resign, and 2) The Respondent imposed this burden on Tinsley due to its employees' union activities. Therefore, the Respondent constructively discharged Tinsley.
Key cases relied upon:
Parker-Robb Chevrolet, Inc., 262 NLRB 402 (1982): It is unlawful to discharge a supervisor for refusing to commit unfair labor practices.
Intercon I (Zercom), 333 NLRB 223 (2001): Sets forth the Board's two-element test for establishing a constructive discharge.
Penske Logistics, LLC, 32-RC-342648 (Regional Election Decision)
This decision by the Acting Regional Director of Region 32 of the NLRB directs a mail ballot election among a unit of drivers employed by Penske Logistics, LLC at its Patterson, California facility.
The key legal analysis is as follows:
Regional Directors have broad discretion in determining the method by which an election is held, and this determination should not be overturned unless a clear abuse of discretion is shown.
Mail ballot elections are appropriate where eligible voters are scattered due to varying work schedules or geographic dispersal, or where a manual election is otherwise impractical.
Here, the Regional Director found a mail ballot election appropriate because:
The drivers' schedules are staggered and routes geographically scatter them
The dynamic nature of dispatching makes it difficult to ensure all drivers could vote in a manual election
An offsite manual election at a hotel raises parking and security concerns for the trucks
The scattered schedules may preclude the union from providing observers for a lengthy manual election
A mail ballot is a more efficient use of Board resources than a 7-hour manual election for 49 voters
Key cases relied upon:
San Diego Gas & Electric, 325 NLRB 1143 (1998): Regional Directors have discretion to order mail ballots when voters are scattered by geography or schedule.
Nouveau Elevator Industries, Inc., 326 NLRB 470 (1998): A Regional Director's determination on election method should not be overturned absent a clear abuse of discretion.