08/30/2024: Board Rejects Amazon's Election Objections

Make-whole remedies for refusal to bargain may be coming soon.

Amazon.com Services LLC, 373 NLRB No. 92, 29-RC-288020 (Published Board Decision)

The case involves Amazon.com Services LLC and the Amazon Labor Union (ALU), which sought to represent a bargaining unit of employees at Amazon’s JFK8 fulfillment center in Staten Island, New York. The election took place over five days in March 2022, with the ALU prevailing by a margin of 523 votes out of approximately 8,325 eligible voters. Amazon filed objections to the election results, alleging that the ALU engaged in objectionable conduct that interfered with the employees’ free and uncoerced choice in the election.

Amazon’s objections included claims that the ALU engaged in illegal trespassing, threatened employees, disrupted meetings, and destroyed company property. The company also argued that the Regional Director and the Board agents exhibited bias in favor of the union, which further tainted the election process.

Legal Analysis:

1. Trespassing and Property Rights:

   • The Employer argued that ALU President Christian Smalls repeatedly trespassed on Amazon property despite repeated demands to cease and desist. They pointed to his frequent visits, his defiance of requests to leave, and his eventual arrest.

   • The Board found that the Employer failed to demonstrate that Smalls' conduct, while potentially inappropriate, was so coercive as to prevent employees from making a free and uncoerced choice in the election. They distinguished this case from Phillips Chrysler Plymouth, Inc., where union agents repeatedly and belligerently refused to leave the employer's property. Here, the Board emphasized that Smalls left the property and submitted to arrest, and the Employer failed to show that the incident had a widespread impact on employees.

2. Threats and Intimidation:

   • The Employer argued that ALU agents threatened employee Natalie Monarrez with physical violence for voicing her opposition to the ALU.

   • The Board agreed with the Regional Director's finding that while the ALU's conduct toward Monarrez was inappropriate, it did not rise to the level of a threat of serious physical harm. The Board found no evidence that this incident had a widespread impact on employee free choice.

3. Disruption of Meetings and Destruction of Property:

   • The Employer claimed that ALU agents disrupted meetings with employees, yelling chants and preventing the meetings from proceeding. The Employer claimed that ALU agents disrupted meetings with employees, yelling chants and preventing the meetings from proceeding.

   • The Board found that while this conduct may have been inappropriate, it didn't meet the Avis Rent-A-Car System standard for objectionable conduct. The Board highlighted the time elapsed between these incidents and the election, the absence of threats or coercion, and the Employer's ability to continue its campaign without significant interruption.

4. Projecting Images:

   • The Employer claimed that ALU projected messages onto the building about Smalls' arrest, which they argued unfairly influenced employee voting decisions.

   • The Board found that the ALU's projected messages did not violate the Peerless Plywood standard for objectionable conduct. The Board determined that employees had the option to disregard these messages.

5. Cumulative Impact and Election Fairness:

   • The Board ultimately concluded that while the ALU’s conduct was aggressive and confrontational, it did not collectively have a reasonable tendency to interfere with the employees’ free choice. The Board applied the Avis Rent-A-Car standard, which considers the cumulative impact of conduct on the election process, and determined that the ALU’s actions, even when viewed together, did not warrant a rerun election.

6. Regional Director and Board Agent Conduct:

   • Amazon’s allegations of bias by the Regional Director and Board agents were also addressed. The Board found no evidence of bias that would have affected the fairness of the election. The Board applied the standard from Sonoma Health Care Center, which considers whether the conduct of Board agents created the appearance of bias. The Board concluded that the actions of the Region 29 representatives did not constitute prejudicial error.

Significant Cases Cited:

1. Baja’s Place, 268 NLRB 868 (1984): Established that an election must be set aside if party conduct reasonably tended to interfere with employees’ free and uncoerced choice.

2. Avis Rent-A-Car System, Inc., 280 NLRB 580 (1986): Held that the cumulative impact of misconduct should be considered when determining if an election should be set aside.

3. Phillips Chrysler Plymouth, Inc., 304 NLRB 16 (1991): Found that union conduct challenging an employer’s assertion of property rights could be objectionable if it conveyed a message that the employer was powerless to protect its legal rights.

4. Sonoma Health Care Center, 342 NLRB 933 (2004): Provided the standard for determining whether the conduct of Board agents creates the appearance of bias in the election process.

Nexstar Media Inc., Authorized to Operate Television Station WROC-TV, 373 NLRB No. 88, 03-CA-332930 (Published Board Decision)

This NLRB decision addresses a refusal-to-bargain case filed against Nexstar Media Inc., which operates television station WROC-TV. The key points are:

1. The case stems from Nexstar's refusal to bargain with the National Association of Broadcast Employees & Technicians-Communications Workers of America, AFL-CIO (the Union) following the Union's certification as the bargaining representative in a prior representation proceeding.

2. Nexstar admitted refusing to bargain but contested the validity of the Union's certification based on objections to the election and a contention that the bargaining unit includes statutory supervisors.

3. The Board granted the General Counsel's Motion for Summary Judgment, finding that Nexstar had not raised any new issues that were not or could not have been litigated in the prior representation proceeding.

4. The Board cited Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941), which held that in the absence of newly discovered evidence or special circumstances, a respondent may not relitigate issues that were or could have been litigated in a prior representation proceeding.

5. The Board found that Nexstar violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to recognize and bargain with the Union since December 14, 2023.

The most notable thing about this case is that the General Counsel asked the Board to issue a make-whole remedy for the union’s “lost opportunity to bargain.” The idea here is that because the employer refused to bargain with the union as part of raising these (meritless) objections, the proper remedy is not merely to order it to bargain but also to reimburse any damages that the union and its members suffered by having to wait so long to start bargaining.

This theory goes against long-standing Board precedent (Ex-Cell-O, decided in 1970) and, if the Board wanted to, it could have simply dismissed it. Instead, it severed the question for a separate proceeding, indicating that it is likely to overturn Ex-Cell-O and begin issuing make-whole remedies for refusals to bargain.

Starbucks Corporation, 373 NLRB No. 85, 13-CA-300739 (Published Board Decision)

This NLRB decision addresses allegations that Starbucks Corporation violated Section 8(a)(3) and (1) of the National Labor Relations Act by refusing to transfer employee Abigail Estrada between stores due to her union activities. The NLRB affirms the underlying administrative law judge (ALJ) decision that Starbucks did not violate the NLRA and dismissed the complaint.

The Board agreed with the ALJ that Starbucks did not violate the Act by

1. Refusing to transfer Estrada from the Peoria "Campus Town" store to the Waukegan "Grand & Green Bay" store in May 2022

2. Refusing or delaying Estrada's transfer from the North Chicago store back to the Peoria store in August 2022.

The Board applied the Wright Line framework to analyze the allegations:

1. For the May 2022 transfer refusal, the Board found that even if the General Counsel met the initial burden of showing Starbucks had animus towards Estrada’s protected activity, Starbucks established it would have denied the transfer due to Estrada's limited availability.

2. For the August 2022 transfer refusal/delay, the Board agreed the General Counsel failed to meet the initial Wright Line burden as there was no evidence of anti-union animus motivating the August 2022 transfer refusal/delay.

NP Red Rock, LLP d/b/a Red Rock Casino, Resort & Spa, 28-RD-348864 (Regional Election Decision)

The case involves NP Red Rock LLC, doing business as Red Rock Casino Resort & Spa (the Employer), and the Local Joint Executive Board of Las Vegas affiliated with UNITE HERE International Union (the Union). The Petitioner, Paola Paravicino, sought to decertify the Union as the collective-bargaining representative for internal maintenance employees at the Red Rock Casino Resort & Spa. The petition was filed on August 9, 2024. However, the Employer had a history of engaging in unfair labor practices that had previously led to a Board order requiring the Employer to bargain with the Union. The Regional Director was tasked with determining whether the petition should proceed or be dismissed based on the circumstances.

Legal Analysis:

1. Impact of Unremedied Unfair Labor Practices:

   • The central issue was whether the petition could lawfully challenge the Union’s representative status in light of the Employer's unremedied unfair labor practices. The Regional Director emphasized that an incumbent union's representative status cannot be challenged in an environment where unfair labor practices have not been remedied. Citing Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), the decision noted that when an employer has been adjudged to have unlawfully refused to bargain with an incumbent union, the Board orders the employer to bargain in good faith. This obligation bars any challenge to the union's majority status for a reasonable period.

   • In this case, the Regional Director found that only about seven weeks had passed since the Board’s June 17, 2024, Decision and Order requiring the Employer to bargain with the Union. The “reasonable period” for insulated bargaining typically begins when the employer starts bargaining in good faith. Given that only a short time had elapsed, the petition to decertify the Union was considered premature.

2. Appropriateness of the Unit for Decertification:

   • Another critical issue was whether the unit described in the petition was appropriate for decertification. The petition sought to decertify a unit consisting solely of internal maintenance employees. However, the Regional Director determined that this unit was inappropriate because it represented only a small subset of the larger bargaining unit previously recognized by the Board. The recognized unit included a wide range of classifications beyond just internal maintenance employees, such as food servers, bartenders, cooks, and housekeepers.

   • The Regional Director emphasized that there was no evidence that the Employer or the Union had agreed to modify the scope of the bargaining unit, making the petitioned-for unit inappropriate. This conclusion was based on the principle that any unit for decertification must align with the established bargaining unit unless there is a clear agreement to alter its scope.

3. Dismissal of the Petition:

   • Given the two key issues—the ongoing insulated period for bargaining and the inappropriateness of the unit sought for decertification—the Regional Director decided to dismiss the petition. The decision highlighted that the petition was not only premature due to the short period of bargaining following the Board's order but also sought to decertify an inappropriate subset of employees within the broader bargaining unit.