09/22/2024: Pittsburgh Post-Gazette Ordered to Reimburse Union Bargain Expenses

Actor Sean Penn's coercive email sent back to ALJ for further scrutiny.

PG Publishing Co., Inc. d/b/a Pittsburgh Post-Gazette, 373 NLRB No. 93, 06-CA-248017 (Published Board Decision)

This NLRB decision involves allegations that PG Publishing Co., Inc. d/b/a Pittsburgh Post-Gazette violated Sections 8(a)(5) and (1) of the National Labor Relations Act through bad-faith bargaining, unilateral implementation of terms without reaching impasse, and surveillance of union activities.

Key points of the ALJ decision:

1. The ALJ found that the employer violated Section 8(a)(5) and (1) by failing to bargain in good faith since March 11, 2019. The ALJ determined the employer's proposals, taken as a whole, would leave the union with substantially fewer rights than provided by law without a contract.

2. The ALJ ruled the employer violated Section 8(a)(5) and (1) by unilaterally implementing terms on July 27, 2020 without reaching a valid impasse. The ALJ found the parties were not at impasse because they had not finished discussing the union's September 2019 proposal and the employer's June 2020 "last, best, and final offer."

3. The ALJ concluded the employer violated Section 8(a)(1) by creating an impression of surveillance during union rallies on October 24 and 31, 2020, but dismissed the allegation regarding a September 25, 2020 rally.

4. For remedies, the ALJ recommended an affirmative bargaining order and progress reports, but denied requests for reimbursement of bargaining expenses, reimbursement of employee negotiators, and a notice reading.

Key points of the NLRB Decision:

The Board affirmed the ALJ's rulings, findings, and conclusions with some modifications:

1. The Board adopted the ALJ's finding that the employer violated Section 8(a)(5) and (1) through its overall bargaining conduct and by unilaterally implementing terms without reaching impasse.

2. The Board amended the remedy to include:

   • Compensating the union for bargaining expenses incurred during bad-faith bargaining through September 8, 2020.

   • Making employee negotiators whole for any earnings/leave lost while attending bargaining sessions during bad-faith bargaining.

3. The Board modified the order to conform to standard remedial language and included additional provisions related to the expanded remedies.

Significant cases cited:

1. NLRB v. Insurance Agents' International Union, 361 U.S. 477 (1960) - Held that the statutory duty to bargain in good faith is not fulfilled by purely formal meetings while maintaining a "take it or leave it" attitude.

2. Audio Visual Services Group, Inc. d/b/a PSAV Presentation Services, 367 NLRB No. 103 (2019) - Established that in assessing bad-faith bargaining, the Board examines the totality of circumstances, including conduct at and away from the bargaining table.

3. Frontier Hotel & Casino, 318 NLRB 857 (1995) - Held that reimbursement of negotiation expenses is warranted in cases of unusually aggravated misconduct where unfair labor practices have infected the core of the bargaining process.

Community Organized Relief Effort, 373 NLRB No. 106, 31-CA-272228 (Published Board Decision)

This NLRB decision reviews an Administrative Law Judge (ALJ) ruling in a case involving allegations that Community Organized Relief Effort (CORE), a nonprofit organization, violated Section 8(a)(1) of the National Labor Relations Act.

The main substantive issue pertains to an email sent by CORE co-founder Sean Penn.

The key points of the email:

1. It was in response to anonymous comments posted on a New York Times article about a COVID-19 vaccination event at Dodger Stadium involving CORE.

2. Penn expressed gratitude for employees' work but also criticized those who made public complaints.

3. Penn stated that those who made "unilateral decisions to indulge their own whim of dissent in the low-hanging fruit of cyberspace" were lessening CORE's impact in fighting COVID-19.

4. He expressed "vitriol" for how these actions reflected on other employees.

5. Penn wrote that employees who don't find themselves suited for the mission or are "predisposed to a culture of complaint" should quit, saying "It's called quitting. Quit for CORE. Quit for your colleagues who won't quit."

Key points of the ALJ decision:

1. The ALJ found that CORE is subject to the NLRB's jurisdiction, rejecting CORE's arguments that it was exempt as a political subdivision or should be excluded on discretionary grounds.

2. The ALJ granted CORE's motion for summary judgment on the merits, finding that an email sent by CORE co-founder Sean Penn to employees did not constitute unlawful threats in violation of Section 8(a)(1).

3. The ALJ analyzed Penn's email in context and concluded it was not reasonably interpreted as threatening employees with reprisals or discharge for taking complaints public, but rather was a "rallying cry" focused on CORE's mission.

4. The ALJ emphasized that context matters in interpreting potentially ambiguous statements, citing the ALJ's own analysis in Cintas Corp., 372 NLRB No. 34 (2022).

Key points of the NLRB decision:

1. Affirmed the ALJ's finding that CORE is subject to NLRB jurisdiction.

2. Reversed the ALJ's grant of summary judgment on the merits.

3. Remanded the case to the ALJ to reopen the hearing, allow CORE to present evidence on its defenses, allow the General Counsel to present rebuttal evidence, and issue a supplemental decision.

The NLRB found that the ALJ failed to apply the correct legal standard for evaluating alleged 8(a)(1) violations. The NLRB cited Lush Cosmetics, LLC, 372 NLRB No. 54 (2023), which held that the standard is whether statements have a reasonable tendency to coerce employees in exercising Section 7 rights, considering the totality of circumstances from the viewpoint of impact on employees' rights.

The NLRB concluded the ALJ relied on immaterial considerations like the employer's perceived intent and lack of evidence that employees understood the remarks as threats. The NLRB directed the ALJ to reconsider the case using the proper legal standard on remand.

Significant Cases Cited:

1. NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971): Established the test for determining whether an entity is a political subdivision exempt from NLRB jurisdiction.

2. Lush Cosmetics, LLC, 372 NLRB No. 54 (2023): Clarified that ambiguous employer statements can violate Section 8(a)(1) if they have a reasonable tendency to coerce employees, regardless of intent.

Lund Food Holdings, Inc., 373 NLRB No. 107, 18-RC-316373 (Published Board Decision)

This case involves Lund Food Holdings, Inc. (the Employer) and Teamsters Local 120 (the Union) and centers around an election where the Union sought to represent a unit of employees at Lund’s grocery stores. After the Union won the election, the Employer filed objections to the conduct of the election, particularly raising concerns about the conduct of a supervisor, Colby James, who allegedly influenced the outcome by making statements favoring unionization.

The primary legal issue is whether James, as a statutory supervisor, made statements to employees that coerced or unduly influenced their vote in favor of the Union. The Employer requested a review of the Regional Director's decision certifying the Union as the representative, arguing that James' conduct violated the National Labor Relations Act (NLRA).

ALJ Decision:

An Administrative Law Judge (ALJ) first addressed the objections raised by the Employer. The ALJ applied the standard set forth in Harborside Healthcare, Inc., 343 NLRB 906 (2004), which is used to determine whether statements by supervisors can be considered coercive in the context of an election. The ALJ concluded that James’ conduct did not amount to coercion and that the election was valid.

The ALJ emphasized that the burden was on the Employer to provide clear evidence that James' statements or actions interfered with the free choice of the employees during the election, but the Employer failed to meet this burden.

NLRB Decision:

The National Labor Relations Board (NLRB) reviewed the ALJ’s decision after the Employer requested a review of the Regional Director’s certification of the Union. On September 20, 2024, the NLRB, through a three-member panel consisting of Chairman Lauren McFerran, and Members Marvin Kaplan and Gwynne A. Wilcox, denied the Employer’s request for review, affirming the ALJ’s findings.

Legal Analysis:

The central issue was whether Colby James had the authority to discipline employees, making him a statutory supervisor under Section 2(11) of the NLRA. The Employer argued that as a supervisor, James’ statements could be attributed to the company, and his comments in favor of unionization unfairly influenced employees.

The Board concluded that even if James was a statutory supervisor, the Employer did not meet its burden of proving that his statements coerced employees. The Board noted that the Employer failed to submit sufficient evidence to show that James' conduct rose to the level of coercion, citing Harborside Healthcare as the applicable standard.

Notable Concurrence:

While concurring with the decision, Member Kaplan expresses concerns about the Harborside Healthcare standard. Specifically, he questions whether the Board should analyze statements by statutory supervisors differently depending on whether the statements are pro-union or anti-union.

He argues that the Harborside Healthcare standard appears inconsistent because a statement by a supervisor predicting higher wages if employees vote for the union is treated differently than a statement predicting lower wages, even though both statements could potentially influence employees' votes.

Member Kaplan expresses an openness to revisiting the appropriateness of the Harborside Healthcare standard in future cases.

Significant Cases Cited:

1. Harborside Healthcare, Inc., 343 NLRB 906 (2004): Established the standard for determining whether a supervisor’s statements during an election are coercive.

2. Campbell Products Department, 260 NLRB 1247 (1982): Established that the objecting party in an election dispute bears the burden of providing clear, probative evidence to support claims of coercion.

Paragon Systems, Inc., 373 NLRB No. 108, 06-CA-282943 (Published Board Decision)

This NLRB decision involves a Motion for Default Judgment filed by the General Counsel against Paragon Systems, Inc. for failing to comply with the terms of an informal settlement agreement. There is no underlying ALJ decision in this case.

Key points:

1. The case originated from charges filed by United States Court Security Officers alleging that Paragon Systems violated Section 8(a)(5) and (1) of the NLRA by refusing to bargain in good faith over an October 1, 2021 wage reopener.

2. Paragon Systems and the Charging Party entered into a bilateral informal settlement agreement approved by the Regional Director on March 7, 2024.

3. The settlement agreement contained a non-compliance provision allowing the Regional Director to reissue the complaint and the General Counsel to file a motion for default judgment if Paragon Systems failed to comply with the terms.

4. Paragon Systems failed to comply with the agreement's terms despite multiple communications from the Region.

5. The General Counsel filed a Motion for Default Judgment, which Paragon Systems did not respond to.

The Board granted the General Counsel's Motion for Default Judgment:

1. According to the uncontroverted allegations, Paragon Systems failed to comply with the settlement agreement terms.

2. Pursuant to the non-compliance provision, the Board found that Paragon Systems' answer to the original complaint was withdrawn and all allegations in the reissued complaint were true.

3. The Board found that Paragon Systems violated Section 8(a)(5) and (1) of the NLRA by failing to bargain in good faith with the union over the wage reopener.

4. For remedies, the Board ordered Paragon Systems to comply with the unmet terms of the settlement agreement, including making whole the affected employees and mailing notices to employees.

5. The Board limited its affirmative remedies to those specified in the settlement agreement, as requested by the General Counsel in the Motion for Default Judgment.

Significant cases cited:

1. U-Bee, Ltd., 315 NLRB 667 (1994) - Held that when a respondent fails to comply with a settlement agreement containing a default provision, the Board will find the allegations in the reissued complaint to be true.

2. Perkins Management Services Co., 365 NLRB 831 (2017) - Established that the Board will construe the General Counsel's motion for default judgment as seeking enforcement of unmet settlement terms when specifically requested.

3. Benchmark Mechanical, Inc., 348 NLRB 576 (2006) - Affirmed the Board's practice of limiting remedies to those requested by the General Counsel in default judgment cases involving breached settlement agreements.