09/18/2024: Board Issues Gissel Bargaining Order
09/18/2024: Board Issues Gissel Bargaining Order
Don't see that every day.
Garten Trucking Lc, 373 NLRB No. 94, 10-CA-279843 (Published Board Decision)
This NLRB decision involves unfair labor practice charges and objections to a representation election filed against Garten Trucking LC by the Association of Western Pulp and Paper Workers. The key points of the legal analysis are:
The Board affirmed the Administrative Law Judge's (ALJ) findings that Garten Trucking violated Section 8(a)(1) of the National Labor Relations Act by:
Interrogating employees about union activities
Creating an impression of surveillance of union activities
Threatening plant closure and job loss if employees unionized
Telling employees unionization would be futile
Maintaining overly broad handbook rules
The Board also affirmed the ALJ's finding that Garten Trucking violated Section 8(a)(3) and (1) by disciplining two employees for their union activities.
The Board granted the General Counsel's request for a bargaining order under NLRB v. Gissel Packing Co., finding that the union had majority support and the employer's unfair labor practices made a fair reelection unlikely.
Key cases cited:
Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing alleged discriminatory discipline or discharge.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Held that bargaining orders are appropriate remedies in certain cases where employer unfair labor practices have made a fair election unlikely.
Stericycle, Inc., 372 NLRB No. 113 (2023): Established the standard for evaluating the legality of facially coercive workplace rules.
Team Syracuse, 373 NLRB No. 104, 03-CA-334257 (Published Board Decision)
This decision concerns a default judgment against Team Syracuse, a public restaurant operating in East Syracuse, New York, for violating Section 8(a)(1) of the National Labor Relations Act (NLRA). The General Counsel filed a complaint alleging that Team Syracuse violated Section 8(a)(1) by instructing employees not to discuss wages with other employees. The Respondent failed to file an answer to the complaint, despite multiple notifications and warnings.
Legal Analysis:
Default Judgment: The Board applied the standard outlined in its own Rules and Regulations, Section 102.20, which states that if an answer is not filed within 14 days of service, the allegations in the complaint are deemed admitted unless good cause is shown.
Good Cause: The Board found that the Respondent did not provide any good cause for failing to file an answer. The fact that the Respondent was pro se (without legal representation) did not constitute good cause for failing to file an answer.
Service of Process: The Board confirmed that service of the complaint was properly accomplished. Additionally, the Board upheld the validity of service even when the respondent refused to accept certified mail.
Section 8(a)(1) Violation: The Board concluded that Team Syracuse violated Section 8(a)(1) by instructing employees not to discuss wages. Section 8(a)(1) of the NLRA prohibits employers from interfering with, restraining, or coercing employees in the exercise of their protected rights, which include the right to discuss wages with other employees.
Key Cases Applied:
Patrician Assisted Living Facility, 339 NLRB 1153 (2003): This case holds that pro se status alone does not constitute good cause for failing to file an answer.
Sage Professional Painting Co., 338 NLRB 1068 (2003): This case reaffirms that pro se status alone does not constitute good cause for failing to file an answer.
Keystone Printing, Inc. d/b/a Keystone Millbrook Printing Group, 369 NLRB No. 35 (2020): This case outlines the legal standard for proper service of process in NLRB cases.
Cray Construction Group, LLC, 341 NLRB 944 (2004): This case holds that a respondent's failure or refusal to accept certified mail cannot defeat the purposes of the NLRA.
Omnisource, LLC, 08-RD-348156 (Regional Election Decision)
This Regional Director decision concerns a representation election petition filed by Daniel Caughhorn seeking to decertify the International Brotherhood of Teamsters Local 20 (Union) as the bargaining representative for employees of OmniSource, LLC (Employer). The parties stipulated to the appropriateness of the bargaining unit and the lack of a contract bar, but disagreed on the election location and polling times for the Toledo-based employees.
Legal Analysis:
The Regional Director addressed the dispute over the election location, applying the Board's longstanding practice of holding elections at the employer's facility unless compelling reasons exist to deviate. The Regional Director cites NLRB Casehandling Manual (Part Two) Representation Proceedings, Sec. 11302.2, which emphasizes voter accessibility as the primary consideration.
The Union argued for an offsite election at a public library based on alleged egregious and pervasive unlawful conduct by the Employer during a prior deauthorization election, citing Austal USA, 357 NLRB 329 (2011). Austal established a four-factor test for determining appropriate election sites, particularly when rerun elections are ordered following findings of employer misconduct.
However, the Regional Director found that the Austal factors were inapplicable in this case as there were no prior findings of unlawful conduct. Additionally, the Regional Director considered the Union's proposed library location to be inconvenient for the majority of Toledo-based employees, especially those reliant on public transportation, thus outweighing the Union's concerns regarding employer conduct.
Based on the lack of prior findings of unlawful conduct and the ease of access for the majority of voters, the Regional Director found that the election for Toledo-based employees should be held at the Employer's training center, the same location used in the 2023 deauthorization election.