09/12/2024: Self-Determination Election Ordered for Walt Disney

Also, an ALJ case where timing alone did not establish animus under Wright Line.

Amazon.com Services, LLC, 373 NLRB No. 96, 13-CA-275270 (Published Board Decision)

This NLRB decision involves a default judgment against Amazon.com Services, LLC for violating the terms of a previous informal settlement agreement regarding off-duty employee access rules. Here are the key points of the legal analysis:

1. The case stems from charges filed by individual employees alleging Amazon violated Section 8(a)(1) of the NLRA by implementing an overly broad and discriminatory rule prohibiting off-duty employees from being on Amazon's property more than 15 minutes before or after their shifts.

2. Amazon entered into an informal settlement agreement in December 2021 that required it to rescind the unlawful rule and notify employees that any reinstated rule would not be discriminatorily enforced against protected activity.

3. On June 30, 2022, Amazon promulgated a new off-duty access policy that did not include the agreed-upon language about non-discriminatory enforcement. The Board found this violated the settlement agreement.

4. The Board relied on its decision in Amazon.com Services, LLC, 373 NLRB No. 40 (2024), which found the June 30, 2022 policy violated Section 8(a)(1) and that Amazon's July 8, 2022 revision was insufficient to repudiate the violation under Passavant Memorial Area Hospital, 237 NLRB 138 (1978).

5. The Board rejected Amazon's argument that it received insufficient notice of noncompliance, finding the Regional Director's August 14, 2023 letter provided adequate notice consistent with due process and the settlement agreement terms.

6. Having found Amazon violated the settlement agreement, the Board granted the General Counsel's motion for default judgment and deemed the complaint allegations to be true per the agreement's noncompliance provisions.

7. The Board ordered Amazon to cease and desist from maintaining unlawful off-duty access rules, rescind the unlawful rule, and post notices at its facilities nationwide.

8. The Board declined to order additional remedies not expressly sought by the General Counsel in the motion for default judgment, such as remedies for alleged interrogation and threats.

Significant Cases Cited:

1. Tri-County Medical Center, 222 NLRB 1089 (1976): Established that employers may only restrict off-duty employee access to non-working areas if justified by legitimate business concerns.

2. Passavant Memorial Area Hospital, 237 NLRB 138 (1978): Held that an employer's subsequent action to correct an unlawful policy must effectively repudiate the unfair labor practice.

Walt Disney Parks and Resorts, U.S., Inc., 373 NLRB No. 99, 21-RC-306324 (Published Board Decision)

This is a Decision on Review from the National Labor Relations Board (NLRB) concerning a petition for a self-determination election filed by the American Guild of Variety Artists (Petitioner) against Walt Disney Parks and Resorts, U.S., Inc. (Employer).

The Petitioner represents an existing bargaining unit of performers at Disneyland Resort, and sought to include the Employer's "specialty performers" who perform in the Fantasmic! show, in the existing unit. The Regional Director found that the specialty performers did not share a community of interest with the existing unit members and directed an election in a standalone unit of specialty performers. The Petitioner appealed to the Board, arguing that the specialty performers should be given the opportunity to vote on joining the existing unit.

The Board reversed the Regional Director's decision, finding that the specialty performers do share a community of interest with the existing unit members.

Legal Analysis

The Board’s analysis focused on whether the specialty performers and the existing unit members share a “community of interest”. This determination is made by considering the following factors:

• Departmental organization: The Board found that this factor was neutral, as the record was unclear on the departmental organization of the specialty performers and existing unit performers.

• Skills and training: The Board found this factor weighed in favor of a community of interest. The specialty performers and high-intensity stunt performers, who were part of the existing unit, had similar backgrounds in gymnastics and martial arts, had performed stunts in television and film, and had even performed in the same shows at Knott's Berry Farm.

• Job functions: The Board found this factor also weighed in favor of a community of interest. The specialty performers perform functions that are broadly similar to those performed by unit members in other productions.

• Terms and conditions of employment: This factor weighed in favor of a community of interest. The specialty performers shared many terms and conditions of employment with the existing unit performers, including general working conditions.

• Contact: This factor was neutral, as there was a general lack of contact between performers in different productions.

• Supervision: This factor weighed slightly in favor of a community of interest, as the specialty performers share third-level supervision with some unit performers.

• Interchange: The Board found that this factor weighed slightly in favor of a community of interest, as there were five high-intensity stunt performers who previously worked as specialty performers in Fantasmic!

• Functional integration: The Board found this factor weighed against finding a community of interest, as the specialty performers did not rely on unit members in other productions to perform their show.

Significant Cases Applied

• Armour & Co., 40 NLRB 1333 (1942); Globe Machine & Stamping Co., 3 NLRB 294 (1937): These cases established the concept of self-determination elections, which allow unions to add unrepresented employees to an existing unit.

• Engineered Storage Products Co., 334 NLRB 1063 (2001): This case established that when a non-petitioning party argues that additional classifications must be added to a petitioned-for unit, the test is whether the community of interest between the additional employees and the petitioned-for employees is so strong that it mandates their inclusion.

• United Operations, Inc., 338 NLRB 123 (2002): This case set forth the factors the Board considers in determining whether employees share a community of interest.

• Public Service Co. of Colorado, 365 NLRB 1017 (2017): This case emphasized that diversity in an existing unit is not a factor in itself, but may be relevant to consider generally.

• MV Transportation, Inc., 373 NLRB No. 8 (2023): This case addressed the importance of considering the totality of the circumstances when analyzing functional integration.

Conclusion

The Board determined that despite the existence of some differences between the specialty performers and the existing unit performers, the similarities in their skills, job functions, terms and conditions of employment, and overall organizational structure justified a finding of a community of interest. The case was remanded to the Regional Director to conduct a second election where the specialty performers would be given the opportunity to vote on whether they wish to be included in the existing unit.

Rose's Garden Bar, JD(SF)-26-24, 31-CA-313144 (ALJ Decision)

This Administrative Law Judge (ALJ) decision concerns an unfair labor practice (ULP) charge filed by Alyssa Graham against Rose's Garden Bar, a restaurant in Calabasas, California. Graham alleged that the restaurant unlawfully retaliated against her for engaging in protected concerted activity by cancelling her shifts and ultimately terminating her employment.

The ALJ found that Graham's complaint to management about a new policy requiring servers to bring their own cash for change constituted protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). This was because she raised her concerns in a group setting (a Sling group chat) with other employees and managers present, sought to initiate group action by suggesting alternatives, and her complaint focused on a workplace issue affecting the entire group.

However, the ALJ found the General Counsel failed to establish, by a preponderance of the evidence, that Rose's Garden Bar's actions were motivated by animus towards Graham's protected concerted activity.

Legal Analysis Breakdown:

1. Protected Concerted Activity: The ALJ applied the established legal framework for determining if an employee's actions qualify as protected concerted activity under Section 7 of the NLRA. This framework considers whether the activity is "concerted" (involving multiple employees) and for the purpose of "mutual aid or protection" (addressing a workplace issue). The ALJ found that Graham's objection to the cash policy met these criteria.

2. Knowledge of Protected Activity: The ALJ applied the principle that knowledge of protected concerted activity by a manager or supervisor is imputed to the decision-maker (in this case, Rose Nadali, the owner). The ALJ determined that Nadali was aware of Graham's objection through the Sling group chat, despite her later testimony claiming she didn't see the entire conversation until later.

3. Animus and Motivating Factor: The General Counsel had the burden to prove that Rose's Garden Bar had animus towards Graham's protected activity and that it was a motivating factor in their actions. The ALJ found insufficient evidence to support this claim.

   • Direct Evidence: The ALJ found no direct evidence of animus in the record. Although Nadali and other managers disagreed with Graham's suggestion to stop accepting cash, this disagreement alone did not constitute animus.

   • Circumstantial Evidence: The ALJ considered circumstantial evidence, such as timing, shifting reasons for the actions, and inconsistency in performance evaluations.

     • Timing: While the timing of the actions following Graham's objection was suspicious, the ALJ found that intervening events, like the heavy rainstorm and Graham's defiant response to the cancelled shift, provided a plausible explanation for the restaurant's actions.

     • Shifting Reasons: The ALJ found that the reasons given for Graham's termination remained consistent, even if they varied in detail.

     • Performance Issues: The ALJ acknowledged that there was some evidence to support the performance and scheduling issues cited by the restaurant, even though it was contradicted by previous positive feedback about Graham's work. However, the ALJ ultimately concluded that these issues were not the primary motivating factors for the restaurant's actions.

4. Wright Line Standard: The Wright Line standard states that if the General Counsel makes a sufficient showing of animus and a motivating factor, the burden shifts to the employer to prove they would have taken the same actions even absent the protected activity. Because the General Counsel failed to establish animus or a motivating factor, the burden of proof under the Wright Line standard did not shift to the restaurant.

Conclusion: The ALJ dismissed the complaint, finding that Rose's Garden Bar did not violate Section 8(a)(1) of the NLRA by cancelling Graham's shifts and terminating her. The decision highlights the importance of establishing a clear causal link between protected concerted activity and adverse employment actions, particularly when there are other plausible explanations for the employer's actions.

Significant Cases Applied:

• Wright Line, 251 NLRB 1083 (1980): This case established the burden-shifting framework for proving an employer's unlawful motivation in an unfair labor practice case.

• Miller Plastic Products, Inc., 372 NLRB No. 134 (2023): This case clarifies the legal standard for determining whether an employee's actions qualify as protected concerted activity.

• G4S Secure Solutions (USA), Inc., 364 NLRB No. 92 (2016): This case addresses the principle of imputed knowledge, where a manager or supervisor's knowledge of protected concerted activity is attributed to the decision-maker.

• Neptco, Inc., 346 NLRB 18 (2005): This case demonstrates that an employer's citation of multiple reasons for an employment action, some more significant than others, does not necessarily indicate an unlawful motive.

Aztech Plastering, LLC, 28-RC-342877 (Regional Election Decision)

This case involves Aztech Plastering, LLC (the Employer) and Operative Plasterers' & Cement Masons' International Association, Local 797 (the Union). The Union filed a petition to represent a bargaining unit that includes all full-time and regular part-time plasterers, apprentice plasterers, and plastering/patching employees employed by Aztech Plastering in the Las Vegas, Nevada area. The petitioned-for unit was not in dispute, as the parties stipulated to the appropriate bargaining unit during the proceedings.

The key issue in this case was the method and location of the election. The Union requested a manual ballot election, while the Employer sought either a mail-ballot election or a mixed manual-mail ballot election, arguing that employees were sufficiently scattered across the Las Vegas metropolitan area to warrant a mail election. The Union also requested that the election not be held at the Employer's premises, citing concerns about neutrality.

Legal Analysis:

1. Manual vs. Mail Ballot Election:

   • The National Labor Relations Board (NLRB) typically presumes that representation elections should be conducted manually, either at the workplace or another appropriate location, as articulated in San Diego Gas & Electric, 325 NLRB 1143 (1998). The Board allows for exceptions, permitting mail-ballot elections in "extraordinary circumstances," such as when employees are geographically scattered or work irregular schedules. However, the burden of proving extraordinary circumstances falls on the party requesting a mail-ballot election.

   • The Employer argued that a mail-ballot election was warranted because some employees were geographically dispersed in the Las Vegas metropolitan area, including in nearby cities like North Las Vegas and Henderson. However, the Regional Director found that the distances involved (within the same metropolitan area) did not meet the Board’s threshold for geographical scattering under San Diego Gas & Electric. Additionally, the Employer did not present sufficient evidence to demonstrate that employee schedules were so irregular as to justify a mail-ballot election. Therefore, the Regional Director concluded that a manual ballot election was appropriate.

2. Location of the Manual Ballot Election:

   • The Union requested that the manual election be held at a neutral location, rather than at the Employer’s premises, to ensure that employees could vote without feeling intimidated or coerced. The Employer argued that its premises should be the location for the election, as it was a convenient and familiar site for employees.

   • The Regional Director considered both positions but determined that holding the election at the Employer’s premises was appropriate. The Director found no evidence suggesting that a neutral location was necessary to ensure a fair election. The election was scheduled to take place at the Employer’s garage, with provisions to ensure that employees could vote during their shift without penalty, consistent with the Board’s election procedures.

3. Eligibility of Voters:

   • The eligibility of voters was determined using the Daniel/Steiny formula, which defines eligibility based on whether employees worked for at least 30 days within the 12 months preceding the election or 45 days within the preceding 24 months. The Regional Director adopted this formula after the parties stipulated to its use.

Significant Cases Cited:

1. San Diego Gas & Electric, 325 NLRB 1143 (1998): Established the presumption in favor of manual elections and allowed mail-ballot elections only in "extraordinary circumstances."

2. Daniel Construction Co., 133 NLRB 264 (1961): Set the formula for determining voter eligibility based on the duration of employment.

3. Steiny & Co., 308 NLRB 1323 (1992): Clarified the use of the Daniel formula in determining voter eligibility in construction industry cases where employees work intermittently.

Icahn School of Medicine at Mount Sinai, 02-RC-319437 (Regional Election Decision)

This Regional Election Decision by the NLRB addresses the appropriateness of a bargaining unit at Icahn School of Medicine at Mount Sinai (Employer), including Ph.D. graduate students in Biomedical Sciences, Neuroscience, and MD/Ph.D. programs, as well as Clinical Research Ph.D. students.

Key Legal Analysis:

1. Employee Status of Ph.D. Students:

• The Board's Decision in Columbia University, 364 NLRB 1080 (2016): The Board held that student assistants, including those providing both research and teaching services, are statutory employees under the Act when they provide services under the direction of the university in exchange for compensation. The Board rejected the notion that the educational aspect of the relationship negates an employment relationship.

• Application of Columbia University to Icahn School of Medicine: The Regional Director applied the Columbia University precedent, finding that the Ph.D. students perform work under the direction and control of the Employer, receiving compensation for their research and instructional services.

• Employer's Arguments: The Employer argued that the Columbia University decision was wrongly decided and that their Ph.D. students are distinct because their research is primarily in furtherance of their education.

• Regional Director's Response: The Regional Director rejected this argument, citing the Board's rejection of the "secondary to educational relationship" inquiry in Columbia University.

2. Community of Interest for Bargaining Unit:

• Relevant Factors: The Regional Director considered various factors under the "community of interest" analysis, including functional integration, interchange, skills and training, common supervision, frequency of contact, distinct job functions, terms and conditions of employment, and the "sufficiently distinct" requirement.

• Shared Community of Interest: The Regional Director found that the Ph.D. students share a community of interest despite some differences in job functions and supervision, because they are functionally integrated, interchangeable, and have similar skills and training.

• Employer's Arguments: The Employer argued that the Ph.D. students are not functionally integrated, have minimal interchange, and have distinct terms and conditions of employment due to the different payment structures for research and teaching services.

• Regional Director's Response: The Regional Director found that the Employer's arguments are outweighed by the fact that all students are functionally integrated in furthering the Employer's teaching and research goals, and that the students have similar concerns about balancing academic and job responsibilities.

3. Exclusions from Bargaining Unit:

• First-Year Ph.D. Students: The Employer argued that first-year Ph.D. students are not employees because they primarily focus on coursework and lab rotations.

• Regional Director's Response: The Regional Director found that first-year Ph.D. students perform work under the direction of lab advisors and postdocs during their rotations, receiving compensation and benefits similar to other Ph.D. students. This factor does not negate their employee status.

Significant cases cited:

1. Columbia University, 364 NLRB 1080 (2016): Held that student assistants can be statutory employees when performing services for compensation under university direction.

2. American Steel Construction, Inc., 372 NLRB No. 23 (2022): Established framework for determining appropriateness of petitioned-for bargaining units.

3. Boston Medical Center, 330 NLRB 152 (1999): Found medical residents and interns to be statutory employees despite their work being part of their medical education.

4. Leland Stanford Junior University, 214 NLRB 621 (1974): Overruled case that had found research assistants not to be employees because their work was primarily educational.