10/02/2024: Managerial Status, Supervisory Status, Unilateral Change, Decertification

And, yes, another Starbucks case.

ExxonMobil Corporation, A Division of Exxon Corporation, JD-58-24, 15-CA-281938 (ALJ Decision)

This ALJ decision addresses allegations that ExxonMobil violated Section 8(a)(1) and (5) of the National Labor Relations Act by unilaterally implementing a process technician internship program without bargaining with the union.

The key findings and legal analysis are:

1. Unilateral Change Doctrine: The ALJ applied the framework from NLRB v. Katz, 369 U.S. 736 (1962), which requires employers to provide notice and opportunity to bargain before making “material, substantial, and significant” changes to terms and conditions of employment.

2. Material Change Analysis: The ALJ found the General Counsel failed to prove the internship program was a material change because:

• There was insufficient evidence that interns regularly performed bargaining unit work

• The limited instances of interns doing hands-on tasks were for training purposes

• There was no evidence of impact on bargaining unit employees' terms and conditions

3. Mandatory Subject of Bargaining: The ALJ found the internship program was not a mandatory subject of bargaining, rejecting the General Counsel's argument that it involved non-unit employees performing unit work.

4. Mid-term Modification of CBA: The ALJ applied the contract coverage test from MV Transportation, Inc., 368 NLRB No. 66 (2019), finding the CBA did not address the internship program, so there was no unlawful mid-term modification.

The ALJ recommended dismissing the complaint, finding the General Counsel failed to prove the internship program was a material change or mandatory subject of bargaining requiring negotiation with the union

Key cases cited:

1. NLRB v. Katz, 369 U.S. 736 (1962): Established unilateral change doctrine requiring bargaining before changes to terms and conditions.

2. Alamo Cement Co., 281 NLRB 737 (1986): Held changes must be "material, substantial and significant" to trigger bargaining obligation.

3. MV Transportation, Inc., 368 NLRB No. 66 (2019): Established "contract coverage" test for analyzing alleged mid-term contract modifications.

4. Mi Pueblo Foods, 360 NLRB 1097 (2014): Found subcontracting bargaining unit work without bargaining violates the Act even without direct impact on unit employees.

Starbucks Corporation, JD(SF)-27-24, 19-CA-297282 (ALJ Decision)

This ALJ decision addresses allegations that Starbucks violated Section 8(a)(1) of the National Labor Relations Act at two stores in Bellingham, Washington during a union organizing campaign in 2022.

The key findings and legal analysis are:

1. Unlawful Interrogation: The ALJ found that Starbucks managers unlawfully interrogated employees about their union sympathies on multiple occasions from March to June 2022. Applying the totality-of-circumstances test from Rossmore House, 269 NLRB 1176 (1984), the ALJ considered factors like the questioner's place in the company hierarchy, lack of assurances against reprisals, and Starbucks' history of anti-union conduct.

2. Unlawful Solicitation of Grievances: The ALJ found that Starbucks managers unlawfully solicited and promised to remedy employee grievances to discourage union support. Applying the standard from Majestic Star Casino, 335 NLRB 407 (2001), the ALJ found that Starbucks' solicitation of grievances during the organizing campaign constituted an implied promise to remedy them, which violated Section 8(a)(1).

3. Lawful Statements About Union as "Third Party": The ALJ dismissed allegations that Starbucks unlawfully told employees a union is a "third party" that would interfere with the direct employer-employee relationship. Following Tri-Cast, Inc., 274 NLRB 377 (1985), the ALJ found these statements were protected speech under Section 8(c) of the Act.

4. Unlawful Threats of Benefit Loss: The ALJ found that Starbucks unlawfully threatened employees would lose specific benefits if they unionized. Applying cases like Daikichi Sushi, 335 NLRB 622 (2001), the ALJ found these statements were coercive threats of retaliation, not protected predictions based on objective facts.

5. Unlawful Enforcement of Solicitation/Distribution Policy: The ALJ found that Starbucks unlawfully and discriminatorily enforced its solicitation/distribution policy by prohibiting union postings while allowing other non-work postings. Citing cases like Honeywell, Inc., 262 NLRB 1402 (1982), the ALJ found this disparate enforcement violated Section 8(a)(1).

The ALJ ordered Starbucks to cease and desist from the unlawful conduct and take affirmative actions including posting notices and holding employee meetings to read the notice.

Key cases cited:

• Rossmore House, 269 NLRB 1176 (1984): Established totality-of-circumstances test for evaluating alleged unlawful interrogations.

• Majestic Star Casino, 335 NLRB 407 (2001): Held that solicitation of grievances during organizing campaign is inherently an implied promise to remedy them.

• Tri-Cast, Inc., 274 NLRB 377 (1985): Found employer statements that unions are "third parties" that interfere with direct employer-employee relationship to be lawful.

• Daikichi Sushi, 335 NLRB 622 (2001): Held that employer predictions of adverse consequences from unionization not based on objective facts are coercive threats.

• Honeywell, Inc., 262 NLRB 1402 (1982): Established that while employers need not allow union postings, they cannot discriminatorily prohibit only union postings while allowing other non-work postings.

Del-Air Mechanical Contractors, Inc., JD-57-24, 10-CA-311393 (ALJ Decision)

This ALJ decision addresses allegations that Del-Air Mechanical Contractors, Inc. violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act through statements made to employees about union activity and by refusing to hire/consider for hire a union applicant (Robert Moneymaker) and discharging an employee (Richard Boykin) for union activity.

The key findings and legal analysis are:

1. Section 8(a)(1) Violations: The ALJ found that Respondent, through supervisor Glenn Selph, violated Section 8(a)(1) by:

• Telling employees it would not hire a union representative to "steal" employees

• Stating it would not hire a union representative because doing so would deprive the company of employees and shut it down

• Telling Boykin he was being discharged for joining the union

The ALJ applied the standard from GM Electrics, 323 NLRB 125 (1997), which examines whether the statements would reasonably tend to interfere with employee rights.

2. Refusal to Hire/Consider Moneymaker: The ALJ dismissed these allegations, finding the General Counsel failed to establish a prima facie case under the FES framework (FES, 331 NLRB 9 (2000)). While the first two elements were met (Respondent was hiring and Moneymaker was qualified), the ALJ found insufficient evidence of animus attributable to Respondent at the time the hiring decision was made.

3. Discharge of Boykin: The ALJ found Respondent violated Section 8(a)(3) by discharging Boykin for union activity. Applying Wright Line, 251 NLRB 1083 (1980), the ALJ found:

• The General Counsel established a prima facie case (protected activity, employer knowledge, and animus)

• Respondent failed to prove it would have discharged Boykin absent his union activity

The ALJ ordered reinstatement and backpay for Boykin, along with cease and desist orders and notice posting requirements.

Key cases cited:

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

2. Wright Line, 251 NLRB 1083 (1980): Set forth burden-shifting framework for analyzing discriminatory discharge allegations.

3. Toering Electric Co., 351 NLRB 225 (2007): Modified FES by requiring proof that applicant had genuine interest in employment.

4. GM Electrics, 323 NLRB 125 (1997): Established test for determining if supervisor statements violate Section 8(a)(1).

5. North American Dismantling Corp., 331 NLRB 1557 (2000): Held that effecting a discharge does not depend on formal words of firing.

The Good Samaritan Hospital, L.P. D/B/A Good Samaritan Hospital, 32-RC-347494 (Regional Election Decision)

This decision addresses a petition filed by Engineers and Scientists of California Local 20, IFPTE (AFL-CIO & CLC) seeking an Armour-Globe self-determination election to add certain employees to an existing bargaining unit at Good Samaritan Hospital. The key issue was whether the Clinical Care Coordinator/Educator position should be included in the voting unit or excluded as a managerial position.

Key points of the legal analysis:

1. The Regional Director applied the Board's test for managerial status, which excludes from the Act's protection employees who "formulate and effectuate high-level employer policies or who have discretion in the performance of their jobs independent of their employer's established policy."

2. The burden of proving managerial status is on the party asserting it (here, the Employer).

3. The Director examined several factors to determine if the Clinical Care Coordinator/Educator was managerial: a) Participation in meetings and decision-making b) Education responsibilities c) Insurance authorization duties d) Pay structure and performance evaluations e) Involvement in policy formulation and labor relations

4. The Director found that while the position exercised some discretion, it was not independent of established employer policies and was based on professional expertise rather than managerial authority.

5. Participation in leadership meetings was deemed insufficient to establish managerial status, as other non-managerial employees also attended these meetings.

6. The Director noted that the position does not formulate or effectuate high-level policies, a critical indicator of managerial status.

7. The analysis considered whether union representation would create divided loyalty, concluding it would not based on the position's duties.

8. The Director concluded the Employer failed to meet its burden of establishing the Clinical Care Coordinator/Educator as a managerial position.

Significant cases cited:

1. NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) - Established that managerial employees fall outside the protection of the National Labor Relations Act.

2. NLRB v. Yeshiva University, 444 U.S. 672 (1980) - Clarified the purpose of the managerial exclusion is to ensure employees exercising discretionary authority do not divide loyalty between employer and union.

3. Constellis, LLC d/b/a Academic Training Center, LLC, 372 NLRB No. 81 (2023) - Defined managerial employees as those who formulate and effectuate high-level policies or have discretion independent of established policy.

4. General Dynamics Corp., 213 NLRB 851 (1974) - Held that employees exercising discretion based on technical expertise are not necessarily managerial.

5. In Re S. Monterey Cnty. Hosp., 348 NLRB 327 (2006) - Found that a hospital employee reviewing patient charts for insurance purposes was not managerial.

Kuraray America, Inc., 16-RC-350268 (Regional Election Decision)

This decision addresses a petition filed by Local 900C of the International Chemical Workers Union Council seeking an Armour-Globe self-determination election to add 9 laboratory analysts to an existing bargaining unit of 63 production and maintenance employees at Kuraray America, Inc.'s La Porte, Texas facility. The key issue was whether the laboratory analysts share a sufficient community of interest with the existing unit to warrant inclusion.

Key points of the legal analysis:

1. The Regional Director applied the two-part standard from Warner-Lambert Co., 298 NLRB 993 (1990), which requires: a) The petitioned-for employees share a community of interest with unit employees b) The petitioned-for employees constitute an identifiable, distinct segment appropriate for voting

2. For the community of interest analysis, the Director examined factors including:

   • Departmental organization

   • Skills and training

   • Job functions and work performed

   • Functional integration

   • Frequency of contact

   • Interchangeability

   • Terms and conditions of employment

   • Supervision

3. The Director noted that in the Armour-Globe context:

   • Differences that exist within the current unit are given less weight when comparing to petitioned-for employees

   • Differences in employment terms due to collective bargaining do not mandate exclusion

   • Petitioned-for employees need not share a community of interest with every classification in the existing unit

4. The Director found the following factors supported finding a community of interest:

   • High degree of functional integration

   • Frequent contact between laboratory analysts and production operators

   • Similar terms and conditions of employment

   • Some commonality in supervision

5. Factors like departmental organization, skills/training, and job functions were considered neutral, as differences already exist within the current unit.

6. The lack of interchange weighed against finding a community of interest, but was outweighed by other factors.

7. The Director concluded the laboratory analysts share a sufficient community of interest with the existing unit to warrant a self-determination election.

8. The parties stipulated that the laboratory analysts constitute an identifiable, distinct segment appropriate for voting.

Significant cases cited:

1. Warner-Lambert Co., 298 NLRB 993 (1990) - Established the two-part test for Armour-Globe elections.

2. Walt Disney Parks and Resorts, 373 NLRB No. 99 (2024) - Held that differences within an existing unit are given less weight in the Armour-Globe context.

3. Public Service Co. of Colorado, 365 NLRB 104 (2017) - Affirmed that differences due to collective bargaining don't mandate exclusion in Armour-Globe cases.

4. St. Vincent Charity Medical Center, 357 NLRB 854 (2011) - Clarified that petitioned-for employees need not share a community of interest with every classification in the existing unit.

5. Blue Grass Industries, 287 NLRB 274 (1987) - Noted that quality control employees are generally included in production and maintenance units under traditional community-of-interest standards.

Rhode Island CVS Pharmacy, L.L.C., 01-RC-342728 (Regional Election Decision)

This decision addresses a representation petition filed by The Pharmacy Guild seeking to represent a unit of staff pharmacists at a CVS Pharmacy location in Westerly, Rhode Island. The key issue was whether the pharmacists were supervisors under Section 2(11) of the National Labor Relations Act and thus ineligible for union representation.

Key points of the legal analysis:

1. The Regional Director applied the Board's test for supervisory status under Section 2(11) of the Act, which requires evidence that an individual has authority to perform at least one of 12 enumerated supervisory functions using independent judgment in the interest of the employer.

2. The burden of proving supervisory status is on the party asserting it (here, the Employer).

3. The Director examined several alleged supervisory indicia: a) Assignment and responsible direction of work b) Authority to hire, promote, and reward c) Authority to discipline d) Authority to adjust grievances

4. For assignment and direction, the Director found the pharmacists lacked authority to require technicians to work certain shifts or stations, and there was no evidence they were held accountable for technicians' performance.

5. Regarding hiring/promotion, the Director found pharmacists' limited input into one promotion decision insufficient to establish supervisory authority.

6. On discipline, the Director found no evidence pharmacists could independently issue discipline without review by higher management.

7. For grievance adjustment, the Director found no formal grievance procedure and insufficient evidence of pharmacists independently resolving workplace disputes.

8. The Director concluded CVS failed to meet its burden of proving the pharmacists were supervisors under the Act.

Significant cases cited:

1. Oakwood Healthcare, Inc., 348 NLRB 686 (2006) - Refined analysis of "assign," "responsibly direct," and "independent judgment" for supervisory determinations.

2. NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001) - Held burden of proving supervisory status is on the party asserting it.

3. Golden Crest Healthcare Center, 348 NLRB 727 (2006) - Established that "paper authority" without evidence of its exercise is insufficient to prove supervisory status.

4. Elmhurst Extended Care Facilities, 329 NLRB 535 (1999) - Held authority to evaluate does not confer supervisory status unless it affects wages or job status.

5. Franklin Home Health Agency, 337 NLRB 826 (2002) - Established that discipline must lead to personnel action without independent review to confer supervisory status.

First Student LLC, 19-RD-350341 (Regional Election Decision)

This decision addresses a decertification petition filed by Roger Lee McPherson seeking an election among drivers and monitors at First Student, LLC's Medford, Oregon facility. The key issue was whether the petitioned-for unit was appropriate given the existing recognized bargaining unit.

Key points of the legal analysis:

1. The Regional Director found that the petitioned-for unit of employees at the Medford facility was not an appropriate unit because it was not coextensive with the multi-facility, nationwide unit established in the existing collective bargaining agreement.

2. The current National Master Agreement between First Student and the Teamsters covers employees at multiple facilities, including Medford, as a single bargaining unit.

3. The Director applied Board precedent holding that when previously separate units have been merged into a single unit covered by an existing agreement, a decertification petition must be coextensive with the currently recognized unit.

4. Because the petitioned-for unit only covered one facility rather than the entire recognized multi-facility unit, the Director found it was not appropriate and dismissed the petition.

5. The Director noted that no party responded to the Order to Show Cause to assert that the petitioned-for unit was appropriate.

The decision demonstrates the application of Board law requiring decertification petitions to cover the entire recognized bargaining unit, not just a portion of it, when previously separate units have been merged into a single unit. By dismissing the petition for only covering one facility in a multi-facility unit, the Director upheld the principle that decertification efforts must target the entire existing bargaining unit as established through collective bargaining.

Significant cases cited:

1. Albertson's Inc., 307 NLRB 338 (1992) - Held that a decertification petition must be coextensive with the currently recognized unit when previously separate units have been merged.

2. Wisconsin Bell, 283 NLRB 1165 (1987) - Also established that decertification petitions must cover the entire recognized unit when separate units have been consolidated.

Niblock Excavating, Inc., 25-RC-348340 (Regional Election Decision)

This decision addresses a representation petition filed by the International Union of Operating Engineers, Local 150, AFL-CIO seeking to represent asphalt plant operators and loader operators at Niblock Excavating, Inc.'s Kimmell, Indiana facility. The key issue was whether the petitioned-for unit was appropriate given the employer's plans to consolidate operations from its Columbia City facility with the Kimmell facility.

Key points of the legal analysis:

1. The Regional Director applied the framework from American Steel Construction, Inc., 372 NLRB No. 23 (2022), which reinstated the Specialty Healthcare standard for determining appropriate bargaining units.

2. Under this framework, the Board first examines if the petitioned-for unit shares an internal community of interest, is readily identifiable, and is sufficiently distinct from excluded employees.

3. If an employer contends the unit should include additional employees, it must prove an "overwhelming community of interest" between petitioned-for and excluded employees.

4. The Director found the petitioned-for Kimmell employees were readily identifiable and shared an internal community of interest.

5. Applying the traditional community of interest factors, the Director concluded the employer failed to demonstrate an overwhelming community of interest between the Kimmell employees and the Columbia City employees to be transferred.

6. Key factors weighing against an overwhelming community of interest included:

   • Distinct skills and training (e.g., MSHA certification for Kimmell employees)

   • Different job functions (asphalt/gravel production vs. paving)

   • Lack of interchange between facilities

7. The Director rejected the employer's "expanding unit" argument, finding that despite the imminent consolidation, the evidence did not show the employees' skills, training, job functions or interchange would significantly change post-consolidation.

Significant cases cited:

1. American Steel Construction, Inc., 372 NLRB No. 23 (2022) - Reinstated the Specialty Healthcare framework for determining appropriate bargaining units.

2. Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) - Established the original framework for evaluating petitioned-for units that exclude certain classifications.