10/01/2024: Religious Employer Exemption, Misclassification, Salting

And, yes, another Starbucks case.

Saint Leo University Incorporated, 373 NLRB No. 121, 12-CA-275612 (Published Board Decision)

This NLRB decision affirms an Administrative Law Judge (ALJ) ruling that Saint Leo University is exempt from NLRB jurisdiction as a religious institution under the test established in Bethany College, 369 NLRB No. 98 (2020).

Key aspects of the legal analysis:

1. The Board applied the three-prong test from Bethany College to determine if Saint Leo University is exempt from NLRB jurisdiction: a) The institution holds itself out to the public as religious b) It is organized as a nonprofit c) It is affiliated with a recognized religious organization

2. The Board found Saint Leo University met all three prongs: a) It regularly holds itself out as a Catholic institution through its mission statement, website, and campus activities b) It is a 501(c)(3) nonprofit c) It was founded by and maintains affiliation with Benedictine monks

3. The Board rejected the General Counsel's arguments that:

   • The university's religious messaging is insincere or insufficient

   • The Board should evaluate whether the religious nature outweighs the secular nature

   • The university's long bargaining history with the union is relevant

4. The Board declined to overrule Bethany College as requested by the General Counsel.

5. The Board found it unnecessary to address the ALJ's alternative analysis of whether the faculty were managerial employees, since the religious exemption was dispositive.

Atomic Fire Protection, LLC, 373 NLRB No. 109, 13-CA-305638 (Published Board Decision)

This NLRB decision largely affirms the findings and conclusions of Administrative Law Judge (ALJ) Sarah Karpinen in a case involving multiple unfair labor practice allegations against Atomic Fire Protection, LLC.

The key aspects of the legal analysis are:

1. The Board affirmed the ALJ's findings that the Respondent violated Section 8(a)(1) of the NLRA by:

• Coercively interrogating employees about their union activities and sympathies

• Telling employees they could not work for Respondent or other non-union companies if they were with the union

• Telling employees Respondent did not want a union and they could not talk to other employees about organizing

2. The Board affirmed the ALJ's finding that Respondent violated Sections 8(a)(1) and (3) by firing employees William Hincks and Darrius Price for their union activities.

3. The Board agreed with the ALJ's dismissal of the allegation that Respondent created an impression of surveillance of employees' union activities.

4. The Board affirmed the ALJ's finding that Respondent misclassified employees as independent contractors, but agreed this did not violate Section 8(a)(1) under current precedent in Velox Express, 368 NLRB No. 61 (2019). The Board declined the General Counsel’s request that it overrule Velox Express, but footnote 2 states that “members Prouty and Wilcox would be open to reconsidering Velox Express in a future appropriate case where the record evidence establishes that the employees knew that their employer was classifying them as independent contractors.

5. The Board denied requests for additional remedies beyond those recommended by the ALJ, including allowing the union to choose replacement employees and requiring apology letters.

6. The Board modified the ALJ's recommended order slightly, including amending notice posting requirements and adding language about a union representative being present at the notice reading if desired.

Significant cases cited:

1. Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing alleged discriminatory discharges.

2. Atlanta Opera, 372 NLRB No. 95 (2023): Set forth the current test for determining employee vs. independent contractor status.

3. Velox Express, 368 NLRB No. 61 (2019): Held that misclassification of employees as independent contractors is not a standalone violation of Section 8(a)(1).

4. Rossmore House, 269 NLRB 1176 (1984): Established the totality of circumstances test for evaluating the coerciveness of interrogations.

5. Intertape Polymer Corp., 372 NLRB No. 133 (2023): Clarified the Wright Line framework and factors for inferring discriminatory motivation.

ARK Fabricators, Inc., 373 NLRB No. 103, 10-CA-291560 (Published Board Decision)

This NLRB decision affirms the Administrative Law Judge (ALJ)'s ruling that Ark Fabricators, Inc. violated Sections 8(a)(3) and (1) of the National Labor Relations Act by refusing to consider for hire and refusing to hire three union organizers.

Key aspects of the NLRB's legal analysis:

1. The Board applied the framework from FES, 331 NLRB 9 (2000), which requires the General Counsel to show: (1) the employer was hiring; (2) the applicants had relevant experience; and (3) anti-union animus contributed to the decision not to hire.

2. The Board found the General Counsel met the Toering Electric Co., 351 NLRB 225 (2007), requirement of proving the applicants had a genuine interest in employment.

3. The Board affirmed the ALJ's findings that Ark Fabricators was hiring at the relevant time, the applicants were qualified, and anti-union animus motivated the refusal to hire.

4. The Board agreed that Ark Fabricators' shifting and pretextual reasons for not hiring the organizers evidenced anti-union animus. The Board declined the General Counsel’s request to overrule Electrolux, which held that pretext alone is insufficient to meet the General Counsel’s burden under Wright Line, because it was not necessary to do so in this case, but Member Wilcox indicated that she would overrule Electrolux.

5. The Board found Ark Fabricators failed to show it would not have hired the organizers absent their union affiliation.

6. The Board ordered Ark Fabricators to offer employment to the three organizers and make them whole for lost earnings and benefits.

Significant cases cited:

1. FES, 331 NLRB 9 (2000): Established framework for analyzing refusal-to-hire allegations.

2. Toering Electric Co., 351 NLRB 225 (2007): Required General Counsel to prove applicants' genuine interest in employment in salting cases.

3. Wright Line, 251 NLRB 1083 (1980): Established burden-shifting framework for analyzing discriminatory motivation.

4. Oil Capitol Sheet Metal, 349 NLRB 1348 (2007): Required General Counsel to produce affirmative evidence of how long a salt would have worked for respondent.

5. Electrolux Home Products, 368 NLRB No. 34 (2019): Held that pretext alone is insufficient to meet General Counsel's burden under Wright Line.

Harvard Maintenance, Inc., 373 NLRB No. 117, 02-CA-254451 (Published Board Decision)

This NLRB decision involves allegations that Harvard Maintenance, Inc. violated Sections 8(a)(1), (3), and (4) of the National Labor Relations Act through various actions against employee Carina Cruz.

Key points of the ALJ decision:

1. Found that the employer violated Section 8(a)(1) by threatening Cruz with suspension, warnings, and reprisals for filing grievances or unfair labor practice charges.

2. Found that the employer violated Sections 8(a)(1), (3), and (4) by suspending and later discharging Cruz in retaliation for her protected concerted and union activities.

3. Applied the Wright Line framework to analyze the discriminatory discharge allegations, finding the General Counsel met its initial burden and the employer failed to show it would have taken the same actions absent the protected activity.

Key points of the NLRB decision:

1. Largely affirmed the ALJ's rulings, findings, and conclusions with some modifications.

2. Clarified that certain violations involved both union activities and protected concerted activities.

3. Explained the basis for finding 8(a)(4) violations, which the ALJ had not expressly done.

4. Modified the remedy to include compensation for direct or foreseeable pecuniary harms under Thryv, Inc.

Significant cases cited:

1. Wright Line, 251 NLRB 1083 (1980) - Established the framework for analyzing allegations of discrimination based on protected activity.

2. Thryv, Inc., 372 NLRB No. 22 (2022) - Expanded make-whole remedies to include compensation for direct or foreseeable pecuniary harms.

3. Nash v. Florida Industrial Commission, 389 U.S. 235 (1967) - Explained that Section 8(a)(4) protects employees who intend to file Board charges.

Starbucks Corporation, 373 NLRB No. 115, 21-CA-295845 (Published Board Decision)

This NLRB decision addresses several unfair labor practice allegations against Starbucks related to a union organizing campaign at one of its Los Angeles stores. The decision adopts the findings and recommendations of Administrative Law Judge (ALJ) Jeffrey D. Wedekind with some modifications.

Key points from the ALJ decision, which was largely adopted by the Board:

1. The ALJ found that Starbucks violated Section 8(a)(1) of the NLRA when a store manager told an employee that unionization would cost Starbucks money and they would possibly have to close stores. This statement was deemed an unlawful threat under NLRB v. Gissel Packing, 395 U.S. 575 (1969), which requires predictions of economic consequences to be carefully phrased based on objective facts.

2. The ALJ dismissed allegations that Starbucks unlawfully reduced an employee's (De La Cruz) hours and caused his constructive discharge in retaliation for union activity. The ALJ found insufficient evidence of anti-union motivation for these actions.

3. The ALJ dismissed an allegation that Starbucks violated Section 8(a)(5) by unilaterally disciplining an employee after the union was certified but before a contract was reached. The ALJ applied the Board's precedent in 800 River Road Operating Co., LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (2020), which held such unilateral discipline is not an unfair labor practice.

The Board adopted the ALJ's findings and conclusions with some modifications:

1. The Board severed and retained for further consideration the allegation regarding unilateral discipline of employee Romero. The General Counsel had argued Care One should be overruled, but the Board did not address this argument in the current decision.

2. The Board modified the recommended order to conform to standard remedial language and substituted a new notice.

This decision reaffirms that employer predictions of store closures due to unionization must be carefully phrased and based on objective facts to avoid being deemed unlawful threats. It also demonstrates the Board's current willingness to reconsider its precedent on unilateral discipline during initial contract negotiations, as evidenced by severing that allegation for further consideration, something the Board has done in a prior case as well.

Blue School, 373 NLRB No. 120, 02-CA-292782 (Published Board Decision)

This NLRB decision reverses an Administrative Law Judge (ALJ) ruling that Blue School violated Section 8(a)(1) of the National Labor Relations Act by conveying a threat of futility to employees regarding unionization.

Key aspects of the NLRB's legal analysis:

1. The Board applied the standard from Roemer Industries, 367 NLRB No. 133 (2019), which assesses whether a statement tends to coerce a reasonable employee when evaluated in context.

2. The Board found that the school's email merely expressed its intent to pursue legal channels to obtain judicial review of the union certification, rather than conveying a threat of futility.

3. The Board distinguished this case from May Department Stores Co., 191 NLRB 928 (1971), noting the absence of other unfair labor practices in the present case.

4. The majority rejected the dissent's argument that employees could reasonably interpret the email as indicating the school would refuse to bargain regardless of the appeal outcome.

5. The Board found the email's explanation of the technical refusal to bargain process and lack of other coercive conduct made it a lawful expression of the employer's legal rights.

Key differences between ALJ and NLRB decisions:

1. The ALJ found the school's statement that it would "decline to recognize the union if asked to do so" was an unlawful threat of futility.

2. The ALJ rejected the school's argument that explaining its appeal process privileged the statement.

3. The NLRB reversed, finding the full context of the email made it a lawful explanation of the employer's legal strategy rather than a threat.

Significant cases cited:

1. Roemer Industries, 367 NLRB No. 133 (2019): Established the standard for assessing whether employer statements are coercive threats under Section 8(a)(1).

2. Winkle Bus Co., 347 NLRB 1203 (2006): Defined an unlawful threat of futility as one where an employer states or implies it will ensure non-union status by unlawful means.

3. May Department Stores Co., 191 NLRB 928 (1971): Found a violation where an employer stated it would not bargain to test certification, but in the context of other unfair labor practices.

4. W.T. Grant Co., 147 NLRB 420 (1964): Found an employer's notice about refusing to bargain to appeal certification was not objectionable when explained as a legal strategy.

Adamas Building Services, 373 NLRB No. 119, 22-CA-261363 (Published Board Decision)

This NLRB decision affirms the Administrative Law Judge (ALJ)'s ruling that Adamas Building Services violated Sections 8(a)(3), (5), and (1) of the National Labor Relations Act by refusing to hire its predecessor's unionized employees and refusing to recognize and bargain with the union.

Key points of the NLRB's legal analysis:

1. The Board applied the Wright Line framework to determine if the refusal to hire was discriminatory. Under Wright Line, the General Counsel must first show protected activity was a motivating factor in the employer's decision.

2. The Board found anti-union animus was the motivating factor, as Adamas admitted it did not hire the predecessor's employees because the client (The Beacon) wanted a non-union contractor.

3. The Board rejected Adamas' defense that it was bound by a restrictive covenant, finding this was pretextual.

4. As a successor employer, Adamas was obligated to recognize and bargain with the union. Its failure to do so violated Section 8(a)(5).

5. The Board ordered Adamas to offer employment to the predecessor's employees, provide backpay, and recognize and bargain with the union.

The dissenting opinion argued that the General Counsel erred by not including The Beacon as a party to the proceedings, which limited the Board's ability to fully remedy the violation.

Significant cases cited:

1. Wright Line, 251 NLRB 1083 (1980): Established the framework for analyzing alleged discriminatory actions.

2. NLRB v. Burns Security Services, 406 U.S. 272 (1972): Held that a successor employer is not bound by its predecessor's collective bargaining agreement but may be obligated to bargain with the union.

3. Planned Building Services, 347 NLRB 670 (2006): Found a violation when an employer refused to hire predecessor employees at the direction of a client.

4. Pressroom Cleaners, 361 NLRB 643 (2014): Held that an employer who unlawfully refuses to hire predecessor employees must be treated as a successor for bargaining purposes.

Troutbrook Company, LLC d/b/a Brooklyn 181 Hospitality, LLC, 373 NLRB No. 125, 29-CA-320359 (Published Board Decision)

This NLRB decision grants the General Counsel's motion for summary judgment against Troutbrook Company, LLC d/b/a Brooklyn 181 Hospitality, LLC (the Respondent) for violating Section 8(a)(5) and (1) of the National Labor Relations Act by withdrawing recognition from the New York Hotel and Motel Trades Council, AFL-CIO (the Union) during an extended certification year.

Key points of the NLRB's legal analysis:

1. The Board found no genuine issues of material fact requiring a hearing. The Respondent admitted to withdrawing recognition from the Union on May 22, 2023, which was during the extended certification year ordered by the Board in a previous decision (Troutbrook Co., LLC d/b/a Brooklyn 181 Hospitality, LLC, 372 NLRB No. 26 (2022)).

2. The Board reaffirmed that a union enjoys an irrebuttable presumption of majority status during an extended certification year, citing Mar-Jac Poultry Co., 136 NLRB 785 (1962), which established the Board's authority to extend the certification year.

3. The Board cited J.G. Kern Enterprises, Inc., 371 NLRB No. 91 (2022), which held that an employer may not lawfully withdraw recognition during the certification year, even with evidence of the union's loss of majority status.

4. The Board rejected the Respondent's argument that the pending appeal of the December 2022 Order allowed it to withdraw recognition, citing RAV Truck & Trailer Repairs, Inc., & Concrete Express of NY, LLC, 370 NLRB No. 116 (2021), which held that pending litigation does not suspend the duty to bargain.

5. The Board rejected the Respondent's Seventh Amendment claim, citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), which held that NLRB proceedings do not violate the right to a jury trial.

As a remedy, the Board ordered the Respondent to rescind its withdrawal of recognition and bargain with the Union. The Board also granted a 12-month extension of the certification year from the date the Respondent begins bargaining in good faith, citing Mar-Jac Poultry Co.

IAG Construction Inc., 373 NLRB No. 116, 02-CA-340403 (Published Board Decision)

This NLRB decision grants the General Counsel's motion for default judgment against IAG Construction Inc. for failing to file a timely answer to the complaint alleging violations of Section 8(a)(1) of the National Labor Relations Act. The key aspects of the legal analysis are:

1. The Board deemed the allegations in the complaint to be true due to the Respondent's failure to file an answer, in accordance with Section 102.20 of the Board's Rules and Regulations.

2. The Board found that IAG Construction Inc. violated Section 8(a)(1) by discharging 15 named employees for engaging in protected concerted activity when they collectively complained about delayed payments and paychecks issued without sufficient funds.

3. The Board ordered standard remedies, including reinstatement, backpay, and removal of references to the unlawful discharges from employee files.

4. The Board applied its decision in Thryv, Inc., 372 NLRB No. 22 (2022), requiring the Respondent to compensate the discharged employees for direct or foreseeable pecuniary harms resulting from the unlawful discharges.

5. The Board denied additional remedies requested by the General Counsel, such as electronic posting and distribution of notices, conducting meetings to read the notice aloud, and issuing apology letters, finding these measures unnecessary to remedy the unfair labor practices.

Hothead Grabba LLC, 373 NLRB No. 118, 29-CA-336757 (Published Board Decision)

This NLRB decision grants the General Counsel's motion for default judgment against Hothead Grabba LLC for failing to file an answer to the complaint alleging violations of Section 8(a)(1) of the National Labor Relations Act. The key aspects of the legal analysis are:

1. The Board applied Section 102.20 of its Rules and Regulations, which states that allegations in a complaint shall be deemed admitted if no answer is filed within 14 days of service.

2. The Board found that the Respondent's pro se status alone did not establish good cause for failing to file an answer, citing Patrician Assisted Living Facility, 339 NLRB 1153 (2003) and Sage Professional Painting Co., 338 NLRB 1068 (2003).

3. The Board asserted jurisdiction over the Respondent based on the General Counsel's proof of statutory jurisdiction, as the Respondent failed to provide subpoenaed information relevant to jurisdiction. The Board cited Continental Packaging Corp., 327 NLRB 400 (1998), which held that when an employer refuses to provide jurisdictional information, the General Counsel need only prove statutory jurisdiction.

4. The Board found that the Respondent violated Section 8(a)(1) by threatening employees with discharge for concerted complaints about working conditions and by discharging and refusing to reinstate an employee for engaging in protected concerted activities.

5. The Board ordered standard remedies, including reinstatement, backpay, and removal of references to the unlawful actions from the employee's file.

6. The Board applied its decision in Thryv, Inc., 372 NLRB No. 22 (2022), requiring the Respondent to compensate the discharged employee for any other direct or foreseeable pecuniary harms resulting from the unlawful actions.