07/16/2024: Union Election Ordered for Jollibee Store in Jersey City

Another case showing how broad the definition of "labor organization" is.

Laborers International Union of North America, Local 872, JD(SF)-21-24, 28-CB-239339 (ALJ Decision)

The decision involves Laborers International Union of North America, Local 872, AFL–CIO (Respondent) and charges filed by individuals Parnell Colvin and Richard Vela (Charging Parties). The charges allege violations of Sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act (NLRA). The primary issues involve the Union's operation of an exclusive hiring hall in Las Vegas, Nevada, and whether it maintained arbitrary job referral rules and failed to inform users about these rules.

• Arbitrary Conduct: The ALJ finds that the Union's actions were not arbitrary. The ALJ notes that the Board has found arbitrary conduct when unions fail to establish and apply objective referral standards in exclusive hiring halls. However, the ALJ concluded that the Union's hiring hall practices, including its strike system and the unwritten policy of excusing strikes in certain circumstances, were reasonable and necessary for the efficient operation of the hiring hall.

• Notice of Rules and Procedures: The ALJ determined that the Union provided adequate notice to hiring hall users about the rules and procedures governing their dispatch rights and obligations. While the ALJ recognized that the Union’s unwritten policy of excusing strikes could have been more explicitly communicated, the ALJ found that the Union’s complaint and appeal mechanism, coupled with the Union’s testimony about the practice, indicated that hiring hall users were aware of the policy.

• Information Requests: The ALJ found that the Union did not arbitrarily refuse to provide Vela with information about how to register as a non-member. While Vela requested information about the registration process, the Union informed him about the required fee and provided him with the Hiring Hall Rules. The Union then clarified that the required forms, the Applicant Referral Form and Skill Sheet, must be filled out in person at the hiring hall to ensure the integrity of the system and prevent improper assistance.

Key Cases Cited

• Operating Engineers Local 181 (Maxim Crane Works), 365 NLRB No. 6 (2017) - The union did not breach its duty of fair representation by applying a consistent job referral rule that did not impose an undue burden on applicants.

• Teamsters Local 492 (Fire & Ice Productions), 369 NLRB No. 75 (2020) - A hiring hall rule aimed at preserving work for users is lawful, provided it does not inherently encourage union membership or prejudice non-union members.

MMC UWS, Inc. and Harlem Baking Co., Inc. d/b/a Make My Cake, as a single Employer, JD(NY)-17-24, 02-CA-290095 (ALJ Decision)

This ALJ decision finds that MMC UWS, Inc. and Harlem Baking Co., Inc. violated Section 8(a)(1) of the National Labor Relations Act by discharging employee Micah Mims in retaliation for his protected concerted activities. The key points of the legal analysis are:

1. The ALJ found that MMC and Harlem Baking constituted a single employer based on common management, interrelation of operations, and centralized control of labor relations.

2. Using the Wright Line framework, the ALJ determined that Mims engaged in protected concerted activity by discussing wages, tips, and working conditions with coworkers.

3. The ALJ found that the employer had knowledge of this activity and demonstrated animus through pretextual reasons for the discharge.

4. The ALJ rejected the employer's claim that Mims had quit, finding this explanation not credible and contradicted by evidence.

5. The ALJ ordered reinstatement, backpay, and other remedies for the unlawful discharge.

Key Cases Cited

Wright Line, 251 NLRB 1083 (1980) - Established the framework for analyzing allegations of discrimination based on protected activity.

Miller Plastic Products, Inc., 372 NLRB No. 134 (2023) - Held that the Board should take a "holistic" approach to determining whether employee activity is concerted.

Providence Health and Services - Oregon d/b/a Providence Benedictine Home Health, 19-RC-342302 (Regional Election Decision)

This decision addresses a petition by the Oregon Nurses Association to add about 68 employees of Providence Benedictine Home Health to an existing bargaining unit of home health and hospice employees of Providence Home Health and Hospice. The key points of the legal analysis are:

1. The Regional Director applied the Armour-Globe doctrine to determine if the petitioned-for group shared a community of interest with the existing unit.

2. The community of interest factors (common management, job functions, functional integration, contact/interchange, and working conditions) mostly weighed in favor of including the petitioned-for group.

3. Because both the existing unit and petitioned-for group contained professional and non-professional employees, the RD had to determine how to conduct a Sonotone election (for professionals to decide if they want to be in a unit with non-professionals) in the Armour-Globe context.

4. The RD directed a complex three-group election process to allow the petitioned-for professionals, petitioned-for non-professionals, and existing unit professionals to vote on the appropriate questions.

Key Cases Cited

Armour & Co., 40 NLRB 1333 (1942) - Established the doctrine for adding unrepresented employees to an existing unit through a self-determination election.

Sonotone Corp., 90 NLRB 1236 (1950) - Established the procedure for allowing professionals to vote on inclusion with non-professionals.

American Medical Response, Inc., 344 NLRB 1406 (2005) - Held that professionals must vote separately on inclusion any time an election may result in representation of non-professionals in the same unit, even if the professionals have previously voted for inclusion.

SYGMA Network, 14-RC-321441 (Regional Election Decision)

This decision addresses a petition by Laborers International Union of North America Local 107 to represent warehouse employees at SYGMA Network's facility in Pryor, Oklahoma. The key points of the legal analysis are:

1. The Regional Director applied the framework from American Steel Construction, Inc. to determine if the petitioned-for unit was appropriate.

2. The RD found the petitioned-for warehouse unit was readily identifiable and shared a community of interest.

3. The RD then analyzed whether the additional employees the employer wanted to include (drivers, mechanics, etc.) shared an overwhelming community of interest with the petitioned-for unit.

4. Applying traditional community of interest factors, the RD concluded the additional employees did not share an overwhelming community of interest with the warehouse unit.

5. The RD therefore directed an election in the petitioned-for warehouse unit.

Key Cased Cited

American Steel Construction, Inc., 372 NLRB No. 23 (2022) - Reinstated the Specialty Healthcare framework for determining appropriate bargaining units.

Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) - Established that when a union petitions for an appropriate unit, the burden is on the party seeking a larger unit to demonstrate an overwhelming community of interest between the petitioned-for employees and the additional employees it seeks to include.

United Operations, Inc., 338 NLRB 123 (2002) - Listed the traditional community of interest factors used to determine appropriate bargaining units.

Mr. Holland's Home Services LLC, 18-RM-342192 (Regional Election Decision)

This decision addresses a petition by the employer, Mr. Holland's Home Services LLC, for an RM election to determine if SMART Local 18 represents a majority of employees in a unit of HVAC service and installation workers. The key points of the legal analysis are:

1. The Regional Director applied the Burns & Roe Services Corp. framework to determine if the petitioned-for unit of HVAC workers constitutes an appropriate craft unit.

2. The RD analyzed five factors: formal training/apprenticeship programs, functional integration, overlap of duties, assignment of work, and common interests with excluded employees.

3. The RD found that most factors favored finding the HVAC workers to be an appropriate craft unit, despite some functional integration and common interests with plumbing and electrical workers.

4. The RD concluded the HVAC workers constitute an appropriate craft unit and directed an election in that unit, rejecting the employer's argument that plumbing and electrical workers must be included.

Key Cases Cited

Burns & Roe Services Corp., 313 NLRB 1307 (1994) - Established the factors for determining whether a petitioned-for unit constitutes an appropriate craft unit.

Nissan North America, 372 NLRB No. 48 (2023) - Held that if craft status is established under Burns & Roe, no further inquiry into community of interest or overwhelming community of interest is required.

American Steel Construction, Inc., 372 NLRB No. 23 (2022) - Reinstated the Specialty Healthcare framework for determining appropriate bargaining units when a union seeks to represent a subdivision of employees.

Honeybee Food Corporation d/b/a Jollibee, 22-RC-344732 (Regional Election Decision)

This decision addresses whether Jollibee Workers United (JWU) qualifies as a labor organization under Section 2(5) of the National Labor Relations Act, which is necessary for it to seek an election to represent employees of Honeybee Food Corporation d/b/a Jollibee.

Key points of the legal analysis:

1. The Regional Director applied the broad statutory definition of "labor organization" from Section 2(5) of the Act.

2. The RD found that employees participate in JWU and it exists for the purpose of dealing with the employer regarding wages, hours, and working conditions.

3. The RD rejected the employer's arguments that JWU lacked formal structures like dues, officers, constitution/bylaws, phone number, or website.

4. The RD concluded JWU qualifies as a labor organization despite being in its early stages of development.

Key Cases Cited

Electromation, Inc., 309 NLRB 990 (1992) - Held that the statutory definition of "labor organization" should be interpreted broadly.

Coinmach Laundry Corp., 337 NLRB 1286 (2002) - Held that an incipient union that has not yet actually represented employees may still qualify as a labor organization if formed for that purpose.

Yale New Haven Hospital, 309 NLRB 363 (1992) - Held that structural formalities like a constitution, bylaws, or officers are not prerequisites to labor organization status.

Butler Manufacturing Company, 167 NLRB 308 (1967) - Held that a lack of formal structure does not preclude finding labor organization status for a nascent employee group.