10/11/2024: Application of Stericycle and McLaren Macomb in ALJ Case

And, of course, another Starbucks decision.

CenturyTel of Montana, Inc., a subsidiary of Lumen Technologies, Inc., f/k/a CenturyLink, Inc., 373 NLRB No. 128, 19-CA-283839 (Published Board Decision)

This NLRB decision affirms an Administrative Law Judge's (ALJ) ruling that CenturyTel of Montana violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing to furnish relevant information requested by the union (IBEW Local 768) regarding non-unit employees called "National Lumen Technicians."

Key points of the NLRB's legal analysis:

1. The NLRB affirmed that the union demonstrated the relevance of the requested non-unit information at the time of the request. The Board found that:

• The union's business manager had a phone conversation with a company manager who admitted National Technicians had worked in the union's jurisdiction "a few times but not very many." This established relevance.

• The relevance should have been apparent to the company based on this conversation and the union's stated purpose of investigating possible diversion of unit work.

• Even if not apparent initially, relevance was established at the unfair labor practice hearing through evidence of: a) Reports from other IBEW locals about work diversion b) Prior grievances against the company for diverting unit work

2. The NLRB rejected the company's argument that it had provided some of the requested information, finding the responses incomplete or unclear.

3. The NLRB affirmed longstanding precedent that a union is not required to disclose its factual basis for an information request at the time of the request, and relevance can be shown at the hearing.

4. The dissenting member argued the Board should adopt the Third Circuit's approach from Hertz Corp. v. NLRB, 105 F.3d 868 (3d Cir. 1997), requiring unions to provide facts supporting relevance at the time of the request. The majority declined to revisit precedent.

The NLRB ordered the company to furnish the requested information and post a notice. The decision largely affirmed the ALJ's findings and analysis with some additional discussion of applicable precedent.

Significant Cases Cited:

• Disneyland Park, 350 NLRB 1256 (2007) - Established standard for relevance of non-unit information requests.

• Cannelton Industries, 339 NLRB 996 (2003) - Held union not required to disclose factual basis for request at time of request.

NTT DATA Americas, Inc., JD-62-24, 07-CA-320089 (ALJ Decision)

This ALJ decision addresses allegations that NTT Data Americas, Inc. violated Section 8(a)(1) of the National Labor Relations Act by maintaining unlawful employment agreements, handbooks, and separation agreements containing overbroad work rules and provisions that interfere with employees' Section 7 rights.

The key findings and legal analysis are:

1. Legal Standard: The ALJ applied the standard from Stericycle, Inc., 372 NLRB No. 113 (2023) to analyze the work rules. Under Stericycle, a rule is presumptively unlawful if it has a reasonable tendency to chill employees' exercise of their rights, even if a contrary interpretation is also reasonable. The employer may rebut this presumption by proving the rule advances a legitimate business interest and cannot be more narrowly tailored.

2. Employment Agreement: The ALJ found the confidentiality provision unlawful because it prohibited employees from discussing "compensation" and "other terms of employment," which are protected Section 7 activities. The ALJ also found the requirement to notify the company if confidential information is sought by legal process to be overbroad.

3. Post-Termination Handbooks: The confidentiality statements and footers in the handbooks were found unlawful, as employees could reasonably interpret them as prohibiting sharing of the handbooks' contents, which include terms and conditions of employment.

4. Analysis of Separation Agreement: The ALJ applied McLaren Macomb, 372 NLRB No. 58 (2023), which holds that an employer violates Section 8(a)(1) by proffering a severance agreement with provisions that would restrict employees' exercise of their Section 7 rights.

5. Separation Agreement: Several provisions were found unlawful:

• The release provision prohibiting employees from obtaining monetary damages in agency proceedings

• The requirement to release claims that could be made "on behalf of others"

• The confidentiality provision prohibiting discussion of employment circumstances and making negative remarks about the company

• The cooperation provision requiring employees to meet with company counsel and act as witnesses

The ALJ ordered NTT Data to cease and desist from maintaining the unlawful provisions, rescind the overbroad language, and notify employees that these provisions will not be enforced. The ALJ also ordered nationwide posting of a notice and electronic distribution to remote employees.

Key cases cited:

1. Stericycle, Inc., 372 NLRB No. 113 (2023): Established the standard for analyzing facially neutral work rules.

2. McLaren Macomb, 372 NLRB No. 58 (2023): Held that proffering severance agreements with provisions restricting Section 7 rights violates the Act.

3. Beverly Health Rehabilitation Services, 332 NLRB 347 (2000): Found unlawful a rule compelling employees to cooperate in investigations without assurances that cooperation is voluntary.

STARBUCKS CORPORATION, JD(SF)–29–24, 32-CA-292897 (ALJ Decision)

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

The key findings and legal analysis are:

1. Increased Supervision and Solicitation of Grievances: The ALJ found that Starbucks violated Section 8(a)(1) by significantly increasing management visits to the stores and soliciting/remedying employee grievances in response to union activity. The ALJ concluded this conduct constituted an unlawful promise of benefits to discourage unionization.

2. Off-Duty Access: The ALJ found Starbucks violated Section 8(a)(1) by discriminatorily prohibiting a union supporter from accessing the back room while off-duty. The ALJ concluded this was discriminatory enforcement of a facially neutral rule.

3. Threats of Benefit Loss: The ALJ found Starbucks violated Section 8(a)(1) when a manager told an employee they would likely lose medical benefits and transfer rights if the store unionized. The ALJ found this to be an unlawful threat not based on objective facts.

4. Pin/Apron Policy Enforcement: The ALJ found Starbucks violated Section 8(a)(1) by discriminatorily enforcing its dress code policy against union supporters for wearing union insignia. The ALJ concluded Starbucks failed to demonstrate special circumstances justifying the restriction.

5. Captive Audience Meetings: The ALJ dismissed allegations that Starbucks violated the Act by holding mandatory anti-union meetings, citing current Board law allowing such meetings. The NLRB General Counsel will attempt to get the Board to overturn this precedent if the case makes it to the Board.

The ALJ ordered Starbucks to cease and desist from the unlawful conduct, post notices at affected stores, and have the notice read aloud to employees by a Board agent in the presence of management and union representatives.

Key cases cited:

1. Albertson's LLC, 359 NLRB 1341 (2013): Held that solicitation of grievances during organizing campaign is unlawful when it carries an implied promise to remedy them.

2. Register Guard, 351 NLRB 1118 (2007): Established standard for analyzing discriminatory enforcement of facially neutral workplace rules.

3. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Set standard for distinguishing between lawful predictions and unlawful threats regarding unionization effects.

4. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Established employees' right to wear union insignia at work absent special circumstances.

The Southern Poverty Law Center, Inc., JD-54-24, 05-CA-323303 (ALJ Decision)

This ALJ decision addresses allegations that the Southern Poverty Law Center (SPLC) violated Sections 8(a)(5), 8(a)(3), and 8(a)(1) of the National Labor Relations Act by changing job duties and pay rates of executive assistants without bargaining, after agreeing to include them in a bargaining unit.

The key findings and legal analysis are:

1. Confidential Employee Status: The ALJ found that prior to the agreement to include them in the unit, the executive assistants were confidential employees under NLRB v. Hendricks County Rural Elec., 454 U.S. 170 (1981), which defined confidential employees as those who assist and act in a confidential capacity to persons who formulate labor relations policies.

2. No 8(a)(5) Violation: The ALJ dismissed the 8(a)(5) allegation, finding that removing the confidential duties was legally required before the executive assistants could be lawfully included in the bargaining unit. The ALJ reasoned that Board law prohibits confidential employees from being in bargaining units, so removing those duties was a legal condition precedent to including them in the unit.

3. No 8(a)(3) Violation: The ALJ dismissed the 8(a)(3) allegation, finding the General Counsel failed to prove the changes were made to encourage union activities as alleged. The ALJ found SPLC's sole motive was to effectuate lawful compliance with the settlement agreement including the assistants in the unit.

4. Contract Law Principles: The ALJ cited basic contract law principles that agreements contrary to law or public policy are unenforceable (Restatement (2d) of Contracts, Section 178) to support his reasoning that the confidential duties had to be removed.

The ALJ ultimately dismissed all allegations, finding SPLC did not violate the Act by removing the confidential duties to lawfully include the executive assistants in the bargaining unit pursuant to the settlement agreement.

Key cases cited:

1. NLRB v. Hendricks County Rural Elec., 454 U.S. 170 (1981): Defined confidential employees and approved excluding them from bargaining units.

2. Associated Day Care Services, 269 NLRB 178 (1984): Held that even if employees spend little time on confidential labor relations duties, it is enough to make them confidential employees.

3. Wright Line, 251 NLRB 1083 (1980): Established the test for proving discriminatory motivation in 8(a)(3) cases, though the ALJ found it unnecessary to apply here.