10/21/2024: Employer's Defamation Lawsuit Against Union Was Illegal
Employer ordered to reimburse union's legal expenses.
CP Anchorage Hotel 2 LLC, d/b/a Anchorage Hilton, JD(SF)-28-24, 19-CA-218585 (ALJ Decision)
This ALJ decision addresses allegations that CP Anchorage Hotel 2, LLC d/b/a Anchorage Hilton violated the National Labor Relations Act (NLRA) by filing and maintaining a federal lawsuit against UNITE HERE! Local 878 and UNITE HERE! International Union, and by unilaterally distributing holiday bonuses without bargaining.
Key findings and legal analysis:
The ALJ found that the hotel's tortious interference claim in its federal lawsuit was preempted by the NLRA and therefore violated Section 8(a)(1). The ALJ applied the exception from Bill Johnson's Restaurants, which allows the Board to find preempted lawsuits unlawful without analyzing whether they are baseless or retaliatory.
The ALJ also found the hotel's secondary boycott and defamation claims in the lawsuit were objectively baseless and retaliatory, violating Section 8(a)(1) under the standard from BE & K Construction Co. The ALJ determined no reasonable litigant could have expected success on these claims given the lack of evidence.
The ALJ rejected the allegation that the holiday bonuses violated Sections 8(a)(1) and (5), finding they were sporadic gifts rather than mandatory subjects of bargaining.
The ALJ rejected the hotel's argument that SEC v. Jarkesy, prohibited monetary damages remedies under the Seventh Amendment. The ALJ found NLRB proceedings fall under the "public rights" exception and do not implicate the Seventh Amendment right to a jury trial.
The ALJ ordered the hotel to cease and desist from filing preempted or baseless retaliatory lawsuits, reimburse the union's legal expenses, and post notices. The ALJ dismissed the allegation regarding the holiday bonuses.
Key cases cited:
Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983) - Held that the NLRB can find preempted lawsuits unlawful without analyzing if they are baseless or retaliatory.
BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002) - Established that lawsuits violate the NLRA if they are both objectively baseless and filed with retaliatory motive.
Waxie Sanitary Supply, 337 NLRB 303 (2001) - Held that bonuses paid regularly for several years pursuant to an employment-related formula were mandatory subjects of bargaining.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) - Held that the Seventh Amendment does not apply to NLRB unfair labor practice proceedings.
SEC v. Jarkesy, 144 S. Ct. 2117 (2024) - Recent Supreme Court case addressing Seventh Amendment jury trial rights in administrative proceedings.
Geodis Logistics, LLC, JD-61-24, 15-CA-218543 (ALJ Decision)
This case involves numerous allegations that Geodis Logistics LLC violated Sections 8(a)(1), (3), (4), and (5) of the National Labor Relations Act through various actions before and after entering into an informal settlement agreement in January 2020.
Key findings:
The ALJ rejected most of the General Counsel's allegations, finding insufficient credible evidence to establish violations in areas like:
Providing unlawful assistance to decertification efforts
Making coercive statements about union activities
Discriminatorily disciplining or discharging employees for union activities
Denying Weingarten rights
Making unilateral changes to terms and conditions of employment
Failing to provide requested information to the union
The ALJ found merit to allegations that two provisions in the employee handbook violated Section 8(a)(1):
Making it a terminable offense to engage in undefined "immoral, indecent, unprofessional or inappropriate conduct"
Making it a terminable offense to engage in undefined "disrupting the workplace"
The ALJ found these provisions were overbroad and could reasonably chill protected Section 7 activities.
The ALJ recommended reinstating the January 2020 settlement agreement, finding the limited post-settlement violations did not warrant setting it aside.
Significant Cases Cited:
Wright Line, 251 NLRB 1083 (1980): Established the test for determining whether an employer's action was motivated by anti-union animus.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Allows employers to make carefully phrased predictions about the effects of unionization based on objective facts, without violating Section 8(a)(1).
Twin City Concrete, 317 NLRB 1313 (1995): Found limited post-settlement violations did not warrant setting aside agreement.
Stericycle Inc., 372 NLRB No. 113 (2023): Set forth the current standard for whether an employer's maintenance of a rule inhibits employees' protected activity in violation of Section 8(a)(1).
Wholesale Delivery Drivers, General Truck Drivers, Chauffeurs, Sales Industrial and Allied Workers, JD(SF)-30-24, 21-CB-324340 (ALJ Decision)
This ALJ decision involves an allegation that a union organizer for Teamsters Local 848 threatened certain Savage Services Corp. truck drivers with physical violence because they opposed the union, in violation of Section 8(b)(1)(A) of the NLRA.
Key points of the legal analysis:
The outcome turned entirely on credibility determinations, as there were conflicting accounts of the alleged threat between the General Counsel's witnesses (two anti-union employees) and the Union's witnesses (the accused union organizer and a union steward).
The ALJ analyzed credibility based on several established factors:
Bias and interest in the outcome: The ALJ found all primary witnesses had strong biases and interests, so this factor did not favor either side.
Demeanor: The ALJ found no significant demeanor issues that enhanced or undermined credibility of either side's witnesses.
Other factors like recall of details, consistency, corroboration, and inherent plausibility: The ALJ found significant issues with the General Counsel's witnesses on these factors, including inconsistencies between their accounts, implausibilities in their stories, and lack of corroboration from other potential witnesses.
The ALJ concluded the General Counsel failed to establish that its witnesses were more credible than the Union's witnesses. As the party with the burden of proof, this meant the General Counsel failed to prove the alleged violation by a preponderance of the evidence.
The ALJ rejected arguments that testimony about the anti-union employees' past name-calling and hostile behavior was irrelevant, finding it probative of bias and citing evidentiary principles allowing exploration of witness hostility.
The ALJ found an adverse inference was not warranted from the failure to call potential corroborating witnesses, as they were neutral bystanders not presumed to favor any party.
Key cases cited:
Burger King, 366 NLRB No. 5 (2018): Affirmed the General Counsel bears the burden of proving its witnesses are more credible when there are conflicting accounts.
Daikichi Sushi, 335 NLRB 622 (2001): Listed various factors considered in evaluating witness credibility.
Port Printing Ad & Specialties, 344 NLRB 354 (2005): Held that failure to call potentially corroborating witnesses can be weighed in credibility determinations.
C&S Distributors, 321 NLRB 404 (1996): Held that adverse inferences cannot be drawn from failure to call neutral bystander witnesses.
The SYGMA Network, Inc., 14-RC-349505 (Regional Election Decision)
This document is a Decision and Direction of Election issued by Andrea J. Wilkes, Regional Director of the National Labor Relations Board (NLRB) Region 14, on October 15, 2024, regarding Case 14-RC-349505 between The Sygma Network, Inc. (Employer) and International Brotherhood of Teamsters, Local 955 (Petitioner).
Key points of the decision:
Petition and Proposed Unit:
The Petitioner filed a petition on August 30, 2024, seeking to represent a unit of approximately 75 employees.
The proposed unit includes full-time and regular part-time Delivery Drivers, Hostlers, Helpers, Line-Haul Drivers, and Transportation Clerks at the Employer's Kansas City, MO facility.
Disputed Classifications:
The parties disagree on whether Hostlers and Transportation Clerks should be included in the bargaining unit.
The Employer argues these classifications lack a substantial community of interest with the rest of the unit.
The Petitioner contends they share a sufficient community of interest.
Decision to Defer Eligibility Determination:
The Regional Director decided to defer the determination on the disputed classifications (Hostlers and Transportation Clerks) to a post-election proceeding, if necessary.
This decision affects 8 employees (4 Hostlers and 4 Transportation Clerks), representing about 10.7% of the proposed unit.
Legal Analysis:
The decision cites the 2023 amendments to the NLRB's Rules and Regulations, specifically §102.64(a), which allows for deferral of eligibility issues that don't significantly change the size or character of the unit.
The Regional Director references the Board's suggestion that deferral can be appropriate for up to 20% of the total voters (29 Fed. Reg. 102.64 at fn. 106).
Given that the disputed classifications represent only 10.7% of the unit, the Regional Director deemed it appropriate to defer the decision and allow these employees to vote subject to challenge.
Material Control, Inc. d/b/a Cotterman Company, 31-RC-346795 (Regional Election Decision)
This document is a Decision and Direction of Election issued by Danielle Pierce, Acting Regional Director of the National Labor Relations Board (NLRB) Region 31, on October 17, 2024, regarding Case 31-RC-346795 between Material Control, Inc. d/b/a Cotterman Company (Employer) and International Union of Operating Engineers, Local 501 (Petitioner).
Key points of the decision:
Petition and Proposed Unit:
The Petitioner filed a petition seeking to represent a unit of Welders and Welder Helpers at the Employer's Bakersfield, CA facility.
The Employer contended that the smallest appropriate unit must include additional job classifications, including Lead-Welds, Machine Operators, Lead-Parts, Shipping Clerks, Shipping Coordinators, Lead-Shipping, Shift Lead, and Technician-Maintenance.
Legal Framework: The decision applies the framework established in American Steel Construction, Inc., which reinstated the standard from Specialty Healthcare & Rehabilitation Center of Mobile. Under this standard:
The Board first considers if the petitioned-for unit is:
Readily identifiable as a group
Shares an internal community of interest
Is sufficiently distinct
If these criteria are met, the burden shifts to the party seeking a larger unit to demonstrate an "overwhelming community of interest" with the excluded employees.
Analysis of Petitioned-For Unit: The Regional Director found that the petitioned-for unit of Welders and Welder Helpers:
Is readily identifiable based on job classifications, functions, and skills
Shares an internal community of interest due to similar duties, skills, working conditions, and functional integration
Is sufficiently distinct from other classifications, except for the Lead-Weld position
Overwhelming Community of Interest Analysis: The Regional Director applied the traditional community-of-interest factors to determine if there was an overwhelming community of interest between the petitioned-for unit and other classifications:
Employer's Operational Organization: Supported including Lead-Weld but not other classifications.
Employee Skills, Training, and Functions: Strongly supported including Lead-Weld but weighed against including other classifications.
Functional Integration: Supported finding an overwhelming community of interest with all classifications.
Frequency of Contact: Supported finding an overwhelming community of interest with all classifications.
Interchange: Weighed against finding an overwhelming community of interest due to infrequent, voluntary, and one-way nature of interchange.
Terms and Conditions of Employment: Supported finding an overwhelming community of interest with all classifications.
Supervision: Found to be neutral.
Conclusion on Unit Composition: The Regional Director concluded that the Lead-Weld shared an overwhelming community of interest with the Welders and Welder Helpers, but the Employer failed to establish this for the other seven classifications sought to be included.
Final Unit Determination: The smallest appropriate unit was found to include Welders, Welder Helpers, and the Lead-Weld.
Significant cases cited:
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Reinstated the Specialty Healthcare standard for determining appropriate bargaining units.
Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011): Established the standard for determining appropriate bargaining units, including the "overwhelming community of interest" test.
Overnite Transportation Co., 322 NLRB 723 (1996): Held that the Board's policy is to consider only whether the requested unit is an appropriate one, even if it may not be the most appropriate unit.
MacQueen Equipment, LLC, 13-RC-342913 (Regional Election Decision)
This document is a Decision and Direction of Election issued by Angie Cowan Hamada, Regional Director of the National Labor Relations Board (NLRB) Region 13, on October 17, 2024, regarding Case 13-RC-342913 between MacQueen Equipment, LLC (Employer) and Automobile Mechanics' Local 701, International Association of Machinists and Aerospace Workers, AFL-CIO (Petitioner).
Key points of the decision:
Petition and Proposed Unit:
The Petitioner sought to represent a unit of full-time and regular part-time Technicians, Lead Technicians, Technicians - Field Service, and Custodians at the Employer's Aurora, Illinois facility.
The Employer argued that the only appropriate unit must also include Parts Specialists, Service Supervisor, and Shipping and Receiving Specialists.
Legal Framework: The Regional Director applied the same legal framework as the above case, Material Control, Inc.
Analysis of Petitioned-For Unit: The Regional Director found that the petitioned-for unit:
Shares a substantial community of interest based on similar skills, training, job functions, supervision, and working conditions
Forms a readily identifiable group based on their repair function, uniform, department, and common supervision
Is sufficiently distinct from the service supervisor and Parts Department employees
Overwhelming Community of Interest Analysis: The Regional Director found that the Employer failed to demonstrate that the excluded employees (Parts Specialists, Shipping and Receiving Specialists, and Service Supervisor) share an overwhelming community of interest with the petitioned-for unit. Key differences included:
Different work areas
Different first-line supervisors
Different uniforms
Limited interaction with petitioned-for employees
Distinct skills, duties, and responsibilities
Residual Unit Concern: The Regional Director addressed the Employer's concern about a potential one-employee residual unit, noting that there are at least five employees not in the petitioned-for unit who could potentially form their own appropriate unit if they chose to organize.
Conclusion: The Regional Director found the petitioned-for unit to be an appropriate unit for collective bargaining and directed an election.
Significant cases cited:
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Reinstated the Specialty Healthcare standard for determining appropriate bargaining units.
Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011): Established the standard for determining appropriate bargaining units, including the "overwhelming community of interest" test.
Overnite Transportation Co., 322 NLRB 723 (1996): Held that the Board's policy is to consider only whether the requested unit is an appropriate one, even if it may not be the most appropriate unit.
Hotel Equities Group LLC, 16-RC-343710 (Regional Election Decision)
The case Hotel Equities Group LLC (Case No. 16-RC-343710) involves the petition filed by Unite Here Local 23 seeking to represent a unit of employees at a hotel in Austin, Texas. An election was held in which a majority voted in favor of representation. The employer, Hotel Equities Group LLC, filed objections, claiming that the union engaged in objectionable conduct during the critical period, specifically alleging that union representatives threatened employees with termination if the union did not win the election.
The Regional Director considered the evidence and arguments regarding the employer’s objections, including testimony from a hearing officer and witnesses. Ultimately, the objections were overruled, and the union was certified as the representative of the employees in the petitioned-for unit.
1. Legal Standard for Setting Aside Elections:
The National Labor Relations Board (NLRB) maintains a strong presumption that ballots cast in elections under its procedural safeguards reflect the true desires of employees. Citing Lockheed Martin Skunk Works, the decision emphasizes that elections are not "lightly set aside," and the party seeking to invalidate the results bears a heavy burden of proof. The employer must provide specific evidence demonstrating that conduct during the critical period prejudiced the election's outcome.
2. Employer's Objections and Analysis:
Objection 1: Alleged Threats by Union Representatives: The employer asserted that union representatives threatened employees with termination if the union lost the election. Testimony from an employee claimed that during a home visit, a union representative implied the employer would find out who signed union authorization cards and fire them. However, the hearing officer found that the employee’s testimony was inconsistent and not supported by record evidence. The union representative unequivocally denied making such statements. The decision also concluded that there was no evidence the union representatives had authority to carry out any such threats, and there was insufficient evidence to find that these alleged threats were disseminated to other employees.
Objection 2: Statements Made by Union Supporters: The employer also argued that two employees, serving as union supporters, made objectionable statements regarding termination based on union support. The employer contended that one of these employees, who served as a union observer during the election, had authority to act on behalf of the union. However, the decision found that there was no evidence showing these employees acted with authority from the union.
Objection 3: Alleged Threats Were Not Widely Disseminated: The employer failed to provide credible evidence that the alleged threats were widely disseminated among employees. Testimony from the employer’s general manager regarding further threats was deemed hearsay and not substantiated with any specific details or witness testimony.
3. Credibility Determinations:
The employer challenged the hearing officer's credibility findings, particularly regarding the testimony of the housekeeper who claimed union representatives discussed the employer retaliating against union supporters. The hearing officer found the housekeeper’s testimony inconsistent, while the union representative's testimony remained consistent. The decision reaffirmed that the NLRB defers to the hearing officer’s credibility determinations unless there is a clear preponderance of evidence showing they were incorrect.
Key Cases Cited:
Lockheed Martin Skunk Works, 331 NLRB 852 (2000): Emphasizes that representation elections are not lightly set aside due to the strong presumption that ballots cast reflect the employees' true desires.
Pacific Grain Products, 309 NLRB 690 (1992): Stands for the proposition that the NLRB evaluates whether the individual making an alleged threat had the authority to carry it out.
Detroit East Inc., 349 NLRB 935 (2007): Clarifies that union election observers act as agents during elections, but this role does not automatically bestow broader authority.
Dairyland USA Corp., 347 NLRB 310 (2006): Addresses the issue of dissemination of threats and places the burden of proof on the objecting party, affirming that dissemination is not presumed.
Stretch-Tex Co., 118 NLRB 1359 (1957): Establishes the principle that the NLRB defers to hearing officers' credibility determinations unless a clear preponderance of the evidence shows they were incorrect.
Aimbridge Employee Service Corp., 03-RC-349485 (Regional Election Decision)
This case involves a representation petition filed by Rochester Regional Joint Board, Workers United, seeking to represent a unit of employees at the Aimbridge Employee Service Corp. in Buffalo, New York. The key issue is whether the proposed bargaining unit is appropriate or if it should include additional classifications of employees that the employer argues share a community of interest with the petitioned-for unit. The union's proposed unit primarily includes front desk, food and beverage, and housekeeping employees, while the employer contends that additional classifications, such as banquet employees, housekeepers, and laundry attendants, should be included in the unit.
1. Legal Standard for Unit Appropriateness:
The Board applies the test from American Steel Construction, Inc., 372 NLRB No. 23 (2022), which reinstated the Specialty Healthcare framework. Under this test, a petitioned-for unit is appropriate if it:
Shares an internal community of interest,
Is readily identifiable as a group based on job classifications, departments, functions, work locations, or skills, and
Is sufficiently distinct from other employees.
The Board further requires that, for additional employees to be included, the employer must demonstrate an "overwhelming community of interest" with the petitioned-for unit, meaning there are minimal differences between the two groups from the perspective of collective bargaining.
2. Analysis of the Union's Proposed Unit:
The union proposed a unit consisting of front desk employees, lobby attendants, Starbucks employees, and kitchen staff, arguing that they share a community of interest based on their public-facing roles, job functions, and terms and conditions of employment. The union sought to exclude housekeeping, laundry, and banquet employees, as well as two supervisory positions (Executive Steward and Food & Beverage Supervisor) on the grounds that they either did not share a community of interest or were statutory supervisors under Section 2(11) of the Act.
3. Employer's Arguments for Inclusion of Additional Classifications:
The employer argued that several excluded positions, including banquet employees, housekeepers, and laundry attendants, shared an overwhelming community of interest with the petitioned-for employees. The employer also contended that the Executive Steward and Food & Beverage Supervisor were not statutory supervisors and should be included in the unit.
4. Board's Findings:
The Regional Director found that the union's proposed unit was appropriate and rejected most of the employer's arguments for expanding the unit.
Banquet Employees: The employer demonstrated that banquet employees share an overwhelming community of interest with the petitioned-for unit. Evidence showed that banquet and restaurant employees shared common supervision, had significant overlap in job functions, and had regular interchange between banquet and restaurant staff.
Housekeeping and Laundry Employees: The Director found that these employees, except for lobby attendants, did not share an overwhelming community of interest with the petitioned-for unit. Housekeepers and laundry attendants primarily worked in guest rooms and the basement, with little interaction with the public or the petitioned-for employees.
Supervisory Status: The union failed to prove that the Executive Steward and Food & Beverage Supervisor were statutory supervisors. The Board found that these employees did not have the authority to hire, fire, discipline, or direct employees with independent judgment and should be included in the unit.
The Board directed an election for the union’s proposed unit, with the inclusion of the banquet employees but the exclusion of housekeeping and laundry staff. The Executive Steward and Food & Beverage Supervisor were found to be nonsupervisory and included in the unit.
5. Key Cases Cited:
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Reinstated the Specialty Healthcare standard for determining appropriate bargaining units.
Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011): Established the standard for determining appropriate bargaining units, including the "overwhelming community of interest" test.
Overnite Transportation Co., 322 NLRB 723 (1996): Held that the Board's policy is to consider only whether the requested unit is an appropriate one, even if it may not be the most appropriate unit.
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Clarified the burden of proving supervisory status under the NLRA.