08/07/2025: Wells Fargo Targeted for Cemex Bargaining Order
Teachers are not seasonal employees. Successful Wright Line Defense.
Envision Hospice of Washington, LLC, JD(SF)-18-25, 19-CA-306972 (ALJ Decision)
Administrative Law Judge Robert A. Ringler ruled that Envision Hospice of Washington, LLC committed numerous unfair labor practices following a successful unionization campaign by the International Association of Machinists, District Lodge 751.
The case stemmed from a 2022 organizing drive at Envision's Washington facilities. On August 19, 2022, the Union petitioned to represent Envision's social workers and chaplains. The Union won the election on October 11, 2022, and was certified as the exclusive bargaining representative on October 18, 2022.
Judge Ringler found that Envision violated the National Labor Relations Act through numerous actions, including denial of Weingarten rights, discriminatory discipline, unlawful terminations, constructive discharges, unilateral changes to employment conditions, failure to provide requested information, and surface bargaining.
The decision detailed how Envision issued a verbal counseling to social worker Jordyn LaFreniere, a leading union organizer, while denying her request for union representation during the disciplinary meeting. The judge determined this constituted an unlawful denial of Weingarten rights and discriminatory discipline.
Envision was found to have unlawfully terminated five employees in retaliation for their union activities. The company laid off LaFreniere and spiritual care coordinator Trina Banks in December 2022, citing decreased patient census as justification. However, the judge found this reason pretextual, noting that Envision's own Certificate of Need showed projected increases in census, not decreases. Additionally, three nurses who supported the union organizing effort - Andrea Rutledge, Kelly Slawnikowski, and Janet Ritchie - were terminated for alleged "harassment" that the judge found was actually protected concerted activity.
The decision also addressed constructive discharges. After the union election, Envision unilaterally changed unit employees from full-time salaried workers to part-time hourly workers, eliminated their health benefits, and capped patient visit times. These changes prompted three employees - Elyse Jauregui, Karina Espinosa, and Tara Young-Brown - to resign, which the judge ruled were constructive discharges in violation of the Act.
The judge found that Envision engaged in surface bargaining by failing to bargain in good faith. This included unlawfully implementing unilateral changes to wages, hours, and benefits; eliminating the lead social worker position; changing the joint visit policy; and subcontracting unit work - all without negotiating to impasse. Additionally, Envision failed to timely provide relevant information requested by the union.
As a remedy, Judge Ringler ordered Envision to reinstate the terminated employees with backpay, rescind the unilateral changes, bargain in good faith with the union, provide the requested information, and post and read a notice to employees.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing whether discipline violates Section 8(a)(3) by requiring the General Counsel to show protected activity was a motivating factor.
NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975): Held that Section 7 prohibits an employer from refusing an employee's request for union representation during an investigatory meeting that could lead to discipline.
NLRB v. Katz, 369 U.S. 736 (1962): Established that an employer's unilateral changes to terms and conditions of employment without bargaining violates Sections 8(a)(5) and 8(d).
Fibreboard Paper Products v. NLRB, 379 U.S. 203 (1964): Determined that subcontracting of unit work is generally a mandatory subject of bargaining that cannot be unilaterally enacted.
Atlantic Steel, 245 NLRB 814 (1979): Provided the legal standard for determining whether an employee engaged in protected concerted activity loses Act protection due to obnoxious conduct.
Altorfer Inc., JD-68-25, 25-CA-327736 (ALJ Decision)
Judge Geoffrey Carter ruled that Altorfer Inc. violated Section 8(a)(1) of the National Labor Relations Act by unlawfully interrogating employee Trevor Kappelman about his union activities, but dismissed allegations that Kappelman's termination violated Section 8(a)(3) and (1).
Kappelman, hired as a field service technician in June 2023, maintained his membership in Local 150 while working at Altorfer, where employees were represented by Local 399. In August, Kappelman arranged for a Local 150 representative to visit a job site. Throughout his employment, Kappelman had friction with his supervisor regarding job assignments.
On October 4, 2023, during a meeting to address communication issues, supervisor Smith questioned Kappelman about his contact with Local 150, implying he was violating company policy. Judge Carter found this questioning coercive under the totality of circumstances test.
Five days later, Altorfer terminated Kappelman, citing the end of his 120-day probationary period. Applying Wright Line analysis, the judge found that while the General Counsel established prima facie evidence of discrimination, Altorfer successfully demonstrated it would have terminated Kappelman regardless of his union activities due to ongoing conflicts about job assignments that predated management's knowledge of his Local 150 involvement.
Judge Carter ordered Altorfer to cease interrogating employees about union activities and to post an appropriate notice at its facility.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing alleged discriminatory employment actions.
Rossmore House, 269 NLRB 1176 (1984): Established factors for determining whether employer interrogation is coercive under the totality of circumstances test.
Intertape Polymer Corp., 372 NLRB No. 133 (2023): Outlined elements required to show discriminatory motivation.
Lush Cosmetics, LLC, 372 NLRB No. 54 (2023): Explained the standard for analyzing statements alleged to violate Section 8(a)(1).
Electrolux Home Products, 368 NLRB No. 34 (2019): Discussed when discriminatory motive may be inferred from pretextual justifications.
Washington Connections Academy, 19-RC-366958 (Regional Election Decision)
The NLRB Regional Director ordered an immediate mail ballot election for educational staff at Washington Connections Academy (WACA), an online school. WACA had argued the election should be delayed until after the school year began in late August 2025, claiming teachers were seasonal employees who don't work during summer. The Regional Director rejected this argument, finding that WACA's teachers are not seasonal employees because they:
Maintain continuous employment without being laid off or recalled
Receive regular pay during summer months
Retain access to work email and platforms year-round
Stay in communication with management during summer
The Director determined a mail ballot election was appropriate given the school's virtual nature, and that the current workforce (over 70% of eventual teaching staff) constituted a "substantial and representative complement" of employees. The appropriate unit includes all certificated staff except administrators and supervisors, with ballots to be mailed July 31, 2025, and counted August 28, 2025.
Significant Cases Cited
Yellowstone International Mailing, Inc., 332 NLRB 386 (2000): Established when an election may proceed based on a "substantial and representative" workforce.
Tusculum College, 199 NLRB 28 (1972): Addressed circumstances for deferring elections when faculty are absent during summer.
Fordham University, 193 NLRB 134 (1971): Similar to Tusculum regarding election timing in educational settings.
Diamond Walnut Growers, Inc., 308 NLRB 933 (1992): Illustrated a true seasonal operation with workforce fluctuations.
Bogus Basin Recreation Association, 212 NLRB 833 (1974): Showed when deferring an election until peak season is appropriate.
Wells Fargo Bank, N.A., 32-RC-331599 (Regional Election Decision)
On August 5, 2025, NLRB Region 32 Acting Regional Director Richard McPalmer dismissed an election petition filed by Wells Fargo Workers United (affiliated with Communications Workers of America) seeking to represent employees at a Wells Fargo branch in Atwater, California.
The union had initially requested voluntary recognition from Wells Fargo on December 8, 2023, for a bargaining unit consisting of Tellers, Personal Bankers, and Branch Operation Coordinators. After the employer declined, the union filed an election petition. An election was conducted on January 18, 2024, which the union lost by a vote of 1-3.
Following the election, the union filed objections alleging that Wells Fargo engaged in unfair labor practices during the critical period before the election. These allegations mirrored charges filed in two separate unfair labor practice cases (32-CA-331887 and 32-CA-343637).
On February 11, 2025, Region 32 issued a Consolidated Complaint alleging that Wells Fargo violated Sections 8(a)(1) and (3) of the National Labor Relations Act by creating an impression of surveillance, threatening employees with increased scrutiny, threatening changes in employment conditions, making retaliatory changes to working conditions, and imposing more onerous conditions on an employee.
Applying the Cemex decision, the Regional Director determined that these alleged unfair labor practices were serious and pervasive enough to have interfered with employee free choice and undermined the reliability of the election. Under Cemex, even a single violation that interferes with employee free choice warrants setting aside the election and potentially issuing a bargaining order.
The Regional Director dismissed the representation petition, noting it could be reinstated after final disposition of the unfair labor practice proceedings. The order included instructions for filing a request for review by August 19, 2025.
Significant Cases Cited
Cemex, 372 NLRB No. 130 (2023): Established that employer unfair labor practices that interfere with employee free choice warrant setting aside an election and issuing a remedial bargaining order.
Lucky Cab Co., 360 NLRB 271 (2014): Held that an election will be set aside for violations unless they are so minimal that it's virtually impossible they affected election results.
Bon Appetit Management Co., 334 NLRB 1042 (2001): Outlined factors for determining whether unlawful conduct could affect election results.
Maxwell Plumb Mechanical Corp., 29-RC-315834 (2024): Unpublished Board order addressing petition reinstatement after unfair labor practice proceedings.