09/09/2024: Starbucks Issued Illegal Subpoenas
09/09/2024: Starbucks Issued Illegal Subpoenas
Hospital goes on ULP spree.
Starbucks Corporation, 373 NLRB No. 101, 21-CA-304228 (Published Board Decision)
This NLRB decision addresses unfair labor practice charges against Starbucks Corporation related to subpoenas duces tecum issued to two employees before an unfair labor practice hearing. The key points are:
The NLRB affirmed the Administrative Law Judge's (ALJ) ruling that Starbucks violated Section 8(a)(1) of the National Labor Relations Act by issuing overly broad subpoenas to employees that sought information about their union and protected concerted activities, including participation in Board processes.
Specifically, the ALJ found that the following subpoena requests were overly broad and coercive:
Requesting "[a]ll statements, declarations, or affidavits, in any form, and any drafts thereof that you have prepared or that have been taken from you by Board personnel, a representative of the Union, or any other person relating in any way concerning the allegations contained in the complaint."
Requesting "[a]ll documents, including electronically stored information such as emails, voicemails, and text messages, sent by you or received by you from any Board official, employee, or personnel from Region 21."
The NLRB adopted the ALJ's dismissal of the Section 8(a)(4) allegation that issuing the subpoenas discriminated against employees for giving testimony under the Act.
The ALJ's legal analysis focused on:
Section 8(a)(1) violation: The subpoena requests were inherently coercive and unlawful as they sought confidential information about employees' Section 7 activities. The ALJ applied the standard from National Telephone Directory Corp., 319 NLRB 420 (1995), balancing employees' confidentiality interests against the employer's need for information.
Section 8(a)(4) allegation: The General Counsel failed to establish a prima facie case of discrimination, lacking evidence that Starbucks knew of the employees' Board activities before issuing the subpoenas.
Key cases cited:
Santa Barbara News-Press, 358 NLRB 1539 (2012): Impermissible for employer to subpoena employees' confidential Board affidavits.
Tracy Auto, L.P., 372 NLRB No. 101 (2023): Unlawful to subpoena employees' communications with General Counsel.
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978): Balanced confidentiality interests of employee affiants against employer's interest in obtaining affidavits.
UPMC Western Psychiatric Hospital, 373 NLRB No. 98, 06-CA-316473 (Published Board Decision)
The case involves UPMC Western Psychiatric Hospital (the Respondent) and SEIU Healthcare Pennsylvania, an affiliate of JNESO—District Council 1, IUOE (the Union). The Union filed an unfair labor practice charge against the Respondent, alleging violations of Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act (NLRA). The charges stem from the Respondent’s refusal to provide information requested by the Union regarding wage rates of non-bargaining unit nurses at UPMC Presbyterian Shadyside, as it related to wage adjustments for bargaining unit members at UPMC Western Psychiatric.
The Union requested this information to enforce the collective bargaining agreement (CBA), which stipulated that wage adjustments for bargaining unit employees would mirror those of non-bargaining unit employees at UPMC Presbyterian. The Respondent refused to provide the requested information, arguing that the Union had no right to the non-unit wage data and citing confidentiality concerns.
ALJ Decision:
Administrative Law Judge (ALJ) Michael A. Rosas issued a decision on February 5, 2024, finding that the Respondent had violated Sections 8(a)(5) and 8(a)(1) of the NLRA by refusing to provide the requested wage data. The ALJ concluded that the requested information was necessary and relevant to the Union’s role in enforcing the CBA.
The ALJ rejected the Respondent's argument that confidentiality concerns justified its refusal to provide the wage data. The ALJ applied the balancing test from Detroit Edison v. NLRB, 440 U.S. 301 (1979), finding that the Union's need for the information outweighed the Respondent's confidentiality concerns. The ALJ also dismissed the Respondent’s contention that JNESO had improperly delegated its representational responsibilities to SEIU, reaffirming that SEIU acted as JNESO's agent under a valid servicing agreement.
NLRB Decision:
The National Labor Relations Board (NLRB), in its decision issued on September 6, 2024, adopted the ALJ’s findings and conclusions. The Board agreed that UPMC Western Psychiatric violated Sections 8(a)(5) and 8(a)(1) by failing to provide the wage data requested by the Union. The NLRB confirmed that the information was relevant and necessary for the Union to administer the CBA and that the Respondent’s confidentiality claims did not outweigh the Union’s right to the information.
The NLRB rejected the Respondent’s argument that JNESO had unlawfully delegated its representational duties to SEIU. The Board found that the servicing agreement between JNESO and SEIU was valid and did not constitute a transfer of JNESO’s Section 9(a) representational responsibilities. The NLRB held that SEIU was acting as an agent of JNESO, and the Respondent was obligated to provide SEIU with the requested information.
Additionally, the NLRB denied the Respondent's request to defer the case to arbitration, stating that the issue at hand concerned the employer's obligation to provide information, which is not deferrable to arbitration under Board precedent.
Legal Analysis:
Section 8(a)(5) Violation:
Section 8(a)(5) of the NLRA obligates employers to provide relevant and necessary information to the Union for the purpose of collective bargaining. The NLRB affirmed that the wage information of non-unit employees was necessary for the Union to fulfill its role in administering the CBA, specifically in relation to wage adjustments for bargaining unit employees. The Board applied a “liberal, discovery-type standard,” requiring only that the information have “some bearing upon” the issue between the parties and be “of probable use” to the Union, as set forth in NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
Confidentiality Defense:
The Respondent’s defense of confidentiality was dismissed. The NLRB applied the balancing test from Detroit Edison v. NLRB, 440 U.S. 301 (1979), finding that the Union’s need for the information outweighed any legitimate confidentiality concerns. The Board emphasized that the Union was not requesting specific, identifiable data about non-unit employees but rather general wage information necessary to enforce the CBA.
Delegation of Representational Responsibilities:
The NLRB rejected the argument that JNESO had unlawfully delegated its representational responsibilities to SEIU. The Board relied on the servicing agreement between JNESO and SEIU, which expressly maintained JNESO's status as the exclusive bargaining representative while authorizing SEIU to act as its agent. The NLRB cited Goad Company, 333 NLRB 677 (2001), affirming that unions may delegate representational duties to agents without transferring their Section 9(a) responsibilities.
Arbitration Deferral:
The NLRB denied the Respondent’s request to defer the dispute to arbitration. Under Board precedent, information requests necessary for the Union to enforce a CBA are not deferrable to arbitration, as noted in Acme Industrial Co., 385 U.S. 432 (1967).
South Nassau Communities Hospital d/b/a Mount Sinai South Nassau, 373 NLRB No. 91, 29-CA-312425 (Published Board Decision)
This case involves South Nassau Communities Hospital, doing business as Mount Sinai South Nassau (the Respondent), and the New York State Nurses Association (the Union). The case centers on the treatment of Marylene Teopengco-Merritt (the Charging Party), a Service Line Coordinator (SLC) at the hospital, who was allegedly interrogated, threatened, and ultimately discharged by the Respondent due to her union activities in violation of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA).
Teopengco-Merritt was involved in a union organizing campaign led by the New York State Nurses Association, and the Respondent took adverse actions against her, including denying her a per diem registered nurse (RN) position, suspending her, and eventually discharging her. The Respondent argued that Teopengco-Merritt was a supervisor within the meaning of Section 2(11) of the NLRA and, therefore, not entitled to the protections of the Act.
ALJ Decision:
Administrative Law Judge (ALJ) Benjamin W. Green issued a decision on March 5, 2024, finding that the Respondent violated Sections 8(a)(1) and 8(a)(3) of the NLRA. Specifically, the ALJ found that the Respondent interrogated Teopengco-Merritt about her union activities, threatened her with discipline if she continued supporting the Union, and unlawfully discharged her due to her union involvement.
The ALJ rejected the Respondent's argument that Teopengco-Merritt was a supervisor. The ALJ found that the Respondent failed to meet its burden of proving that Teopengco-Merritt exercised supervisory authority, such as assigning or directing other employees with independent judgment, as required under Section 2(11).
The ALJ ordered the Respondent to reinstate Teopengco-Merritt to her former or a substantially equivalent position, make her whole for lost earnings and benefits, and take steps to ensure that no further violations occurred.
NLRB Decision:
The National Labor Relations Board (NLRB) adopted the ALJ's findings and conclusions. The Board agreed that the Respondent violated Section 8(a)(1) by coercively interrogating and threatening Teopengco-Merritt and violated Sections 8(a)(3) and 8(a)(1) by denying her a per diem RN position, suspending her, and discharging her due to her union activities.
The NLRB upheld the ALJ's determination that the Respondent failed to demonstrate that Teopengco-Merritt was a supervisor. The Board emphasized that the Respondent did not provide sufficient evidence to prove that Teopengco-Merritt had authority to assign or responsibly direct other employees using independent judgment. The Board pointed out that her involvement in certain staffing decisions was limited and lacked the level of authority and discretion required for supervisory status under the Act.
The NLRB ordered the Respondent to cease its unlawful conduct, reinstate Teopengco-Merritt, provide backpay, and post notices informing employees of their rights under the NLRA.
Significant Cases Cited:
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined the criteria for determining supervisory status under Section 2(11) of the NLRA, requiring the exercise of independent judgment in the assignment or direction of employees.
NLRB v. Standard Dry Wall Products, 91 NLRB 544 (1950): Established that the Board will not overrule an ALJ’s credibility findings unless a clear preponderance of the evidence demonstrates error.
The Arc of South Norfolk, 368 NLRB No. 32 (2019): Distinguished the supervisory role of program coordinators based on their authority to make independent judgments in assigning employees to tasks.
Trinity Health Grand Haven Hospital, JD-53-24, 07-CA-323321 (ALJ Decision)
This ALJ decision involves allegations that Trinity Health Grand Haven Hospital violated Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act through various actions taken during and after contract negotiations with SEIU Healthcare Michigan. The key issues revolve around the hospital's conduct during bargaining, treatment of employees who engaged in a strike, and ultimate withdrawal of recognition from the union.
Key facts:
Trinity Health acquired North Ottawa Community Hospital in October 2022 and renamed it Trinity Health Grand Haven Hospital.
NOCHEA, the existing union, affiliated with SEIU Healthcare Michigan in November 2022.
The parties began negotiating a new contract in early 2023, but talks were contentious.
The hospital implemented new policies unilaterally in May 2023.
Employees went on a one-day strike on August 4, 2023.
A decertification petition was filed in July 2023.
The hospital withdrew recognition of the union on September 28, 2023, one day before ballots from a decertification election were to be counted.
Legal analysis:
Section 8(a)(1) Violations:
Interrogating employees about their strike intentions without providing Johnnie's Poultry safeguards.
Threatening employees with attendance points for striking.
Implicitly promising wage increases if employees rejected the union.
Issuing overbroad directives prohibiting union solicitation and distribution.
The ALJ applied the totality of circumstances test from Rossmore House, 269 NLRB 1176 (1984), in analyzing the interrogations. For the implied promises, the ALJ cited G&K Services, Inc., 357 NLRB 1314 (2011), which held that employees would reasonably interpret such statements as promises of benefits for rejecting the union.
Section 8(a)(3) Violations:
The ALJ found the hospital violated Section 8(a)(3) by disciplining and assessing attendance points to employees who participated in the August 4 strike. The ALJ applied Wright Line, 251 NLRB 1083 (1980), which requires the General Counsel to show protected activity, employer knowledge, and animus. The ALJ found the hospital's actions were inherently destructive of employee rights.
Section 8(a)(5) Violations:
Bad faith bargaining - The ALJ applied the totality of circumstances test from District Hospital Partners, L.P., 373 NLRB No. 55 (2024), finding the hospital engaged in surface bargaining and took actions to undermine the union.
Unilateral changes - Citing NLRB v. Katz, 369 U.S. 736 (1962), the ALJ found the hospital violated 8(a)(5) by unilaterally implementing new policies in May 2023 without bargaining.
Withdrawal of recognition - The ALJ found the withdrawal was unlawful for three reasons: a) The disaffection petition was unreliable under Wyman Gordon, 368 NLRB No. 150 (2020). b) The hospital's unfair labor practices tainted any loss of majority support under Master Slack, 271 NLRB 78 (1984). c) Withdrawing recognition while ballots from a decertification election were impounded was premature under Brooks v. NLRB, 348 U.S. 96 (1954).
Significant cases cited:
Wright Line, 251 NLRB 1083 (1980) - Established framework for analyzing discriminatory discharge allegations.
NLRB v. Katz, 369 U.S. 736 (1962) - Held that unilateral changes to mandatory subjects of bargaining violate Section 8(a)(5).
Levitz Furniture, 333 NLRB 717 (2001) - Clarified standard for withdrawing recognition based on loss of majority support.
Johnnie's Poultry, 146 NLRB 770 (1964) - Established safeguards for employer questioning of employees about union activities.
Shanti Project, 20-RC-347388 (Regional Election Decision)
This Regional Election Decision by the NLRB Region 20 concerns a petition for representation filed by Shanti United, AFSCME Council 57, AFL-CIO (Petitioner/Union) seeking to represent employees of Shanti Project (Employer). The primary legal issue revolves around the Employer's attempt to exclude certain job classifications from the bargaining unit on the grounds of managerial, supervisory, or confidential status.
The Decision:
The Regional Director, after a hearing, ruled in favor of the Union and included all disputed classifications, namely Accountant, Accounting Manager, Intake Manager, HIV Program Data Manager, and HIV Services Manager, in the bargaining unit. The Director found that the Employer had not met its burden of proof in establishing that these classifications met the legal definitions of either confidential or supervisory employees under the National Labor Relations Act (NLRA).
Legal Analysis:
Confidential Employees: The Director applied the "labor nexus" test established in NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981), which requires employees to have access to confidential information related to labor relations in order to be excluded as confidential. The Director found that while the Accounting Manager and Accountant had access to financial information, including employee salaries, this did not equate to confidential labor relations information. This is consistent with Board precedent in cases like Dinkler-St. Charles Hotel, Inc., 124 NLRB 1302 (1959), and Brodart, Inc., 257 NLRB 380 (1981), which hold that access to financial information alone does not make an employee confidential.
Supervisory Status: The Director applied the statutory definition of supervisor under Section 2(11) of the NLRA, which requires an individual to possess one or more supervisory functions, exercise independent judgment, and hold that authority in the interest of the employer. The Director analyzed the specific duties of the Intake Manager, HIV Program Data Manager, and HIV Services Manager, focusing on the indicia of assignment, responsibly directing, hiring, and disciplining/discharging.
Assignment: While the Intake Manager assigned cases to staff, this was found to be based on pre-established criteria and not require independent judgment. The HIV Services Manager's oversight of voucher distribution was also deemed controlled by grants and contracts, not independent judgment.
Responsibly Direct: The Director found that the Employer failed to show that the putative supervisors were held accountable for the performance of other employees, a key requirement under the Oakwood Healthcare standard.
Hiring: The Director noted that all employees, including the putative supervisors, participated in hiring panels, but there was no evidence that these supervisors had the authority to effectively recommend hiring without further investigation by higher management.
Discipline/Discharge: While the HIV Services Manager reported an employee's misconduct leading to their termination, the Director held that this single instance did not establish the authority to discipline or effectively recommend discipline, especially considering the Employer's handbook clearly designated the CEO as responsible for disciplinary decisions.
Conclusion:
The Director concluded that the Employer failed to meet its burden of proof in establishing that the disputed classifications were either confidential or supervisory employees under the NLRA. As a result, these classifications were included in the bargaining unit, setting the stage for a secret ballot election to determine whether the Petitioner will represent the employees.
Significant Cases Applied:
NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170 (1981): Establishes the "labor nexus" test for determining confidential employee status, requiring access to confidential information related to labor relations.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Establishes the standard for "responsibly direct" as a supervisory function, requiring that the supervisor be accountable for the performance of the employees they direct.
Dinkler-St. Charles Hotel, Inc., 124 NLRB 1302 (1959): Holds that merely accessing financial information, including employee salaries, does not make an employee confidential.
Brodart, Inc., 257 NLRB 380 (1981): Further clarifies that access to financial data alone is insufficient to establish confidential employee status.