10/25/2024: Three Armour-Globe Self-Determination Elections

Also, a case of very explicit retaliation for complaining about wages.

R&J Group LLC d/b/a Sushi Masa, JD-65-24, 15-CA-310618 (ALJ Decision)

This case arose when Alashia Bazille, a server at Sushi Masa restaurant, was fired after discussing concerns about earnings and work section assignments with coworkers and managers. After Floor Manager Rogers reported Bazille's complaints to General Manager Hoyt, Hoyt directed that Bazille should be fired, and Rogers promptly terminated her, explicitly citing her complaints about money as one reason for the termination.

The ALJ found that Bazille engaged in protected concerted activity through both her discussions with coworkers about the earnings impact of section assignments and her suggestion to rotate sections to improve earning opportunities for all servers. The ALJ emphasized that such activities were "inherently concerted" under North Mountain Foothills Apartments, which holds that wage discussions are protected even without explicit intent for collective action.

The employer's knowledge of the protected activity was clearly established through Rogers' admission of reporting the complaints to Hoyt. The ALJ found direct evidence of discriminatory intent in Hoyt's immediate response to fire Bazille after hearing about the complaints and Rogers' statement about firing her for "always complaining about money." Citing Spike Enterprise, the ALJ noted that when an employer explicitly retaliates against protected activity, no further motive analysis is needed.

Although deemed unnecessary given that the employer explicitly retaliated against protected activity, the ALJ conducted an analysis under Wright Line, which established the framework for mixed-motive cases. The General Counsel proved protected activity, employer knowledge, and animus through timing and contemporaneous violations. The ALJ found the employer's claims about Bazille's attendance to be pretextual, noting inconsistent enforcement of attendance policies and disparate treatment compared to other employees with similar records.

A significant portion of the decision addressed the conduct of Respondent's attorney, who contacted Bazille directly before the hearing to discuss settlement. The ALJ found multiple violations of Johnnie's Poultry, which established safeguards for questioning employees about protected activities. The attorney failed to provide assurances against reprisals, didn't explain the purpose of his questions, and improperly delved into areas beyond legitimate defense preparation. Drawing on Acme Bus Corp., which prohibited questioning employees about NLRB affidavits, the ALJ found additional violations in the attorney's attempts to obtain information about Bazille's affidavit and implications about her motives for filing charges.

The ALJ ordered a comprehensive remedy including reinstatement with full backpay, making Bazille whole for direct and foreseeable pecuniary harms, removal of references to the discharge from her files, and standard notice posting requirements. However, the ALJ rejected the General Counsel's request for a notice reading, finding insufficient evidence that the violations were widespread or perpetrated by high-level officials. The ALJ also rejected arguments that backpay should end on the original hearing date, noting that postponements were requested by both parties.

Wheatland Electric Cooperative, Inc., 14-RC-351691 (Regional Election Decision)

The NLRB Regional Director's decision addresses a petition by IBEW Local 304 seeking an Armour-Globe self-determination election at Wheatland Electric Cooperative. The union sought to add a Vehicle Maintenance Coordinator, three Warehousemen, and a Warehouse Supervisor to their existing bargaining unit of electrical workers, including Linemen, Apprentices, and related positions. The case's procedural posture was notably impacted by the employer's failure to timely serve their statement of position, which precluded them from contesting the election.

The legal analysis centered on the Armour-Globe doctrine, which permits an incumbent union to add unrepresented employees to an existing unit through a self-determination election. Under Warner-Lambert Co., such additions require showing both that the employees constitute an identifiable, distinct segment and share a community of interest with the existing unit, though they need not constitute a separate appropriate unit on their own.

The Regional Director first determined that the Warehousemen and Warehouse Supervisor constituted a distinct, identifiable segment of the workforce, evidenced by their separate reporting structure within the organization. However, the bulk of the analysis focused on whether these employees shared a sufficient community of interest with the existing unit.

Following the community of interest factors outlined in NLRB v. Action Auto Inc., the Director conducted a comprehensive analysis of the relationship between the positions. While the employees shared similar work schedules and basic benefits, significant differences emerged in their actual working conditions. The wage disparity was particularly notable, with Warehousemen earning substantially less than Linemen ($29.97 versus $50.41 per hour). More fundamentally, their work environments and responsibilities differed markedly, with Warehousemen confined to warehouse operations while unit employees worked primarily in the field.

The skills and training requirements further distinguished the positions. Warehousemen needed only a high school diploma and basic warehouse skills, while Linemen required completion of a four-year apprenticeship program and specialized electrical knowledge. The Director found minimal functional integration between the positions, with contact limited primarily to morning meetings and supply pickup. As emphasized in Casino Aztar, such limited work-related contact weighs against finding a community of interest.

The supervisory structure provided additional evidence against integration, as Warehousemen reported through a separate chain of command leading to the Purchasing Manager, while unit employees reported through Operations. The Director rejected the union's argument that dotted lines on organizational charts suggested common supervision, noting that direct testimony established clear supervisory separation.

Based on this analysis, the Director concluded that the Warehousemen and Warehouse Supervisor lacked sufficient community of interest with the existing unit to warrant inclusion. However, given the parties' stipulation regarding the Vehicle Maintenance Coordinator's community of interest with the unit, and mindful of the Board's reluctance to leave single employees without access to representation, the Director ordered a self-determination election solely for that position.

Precision Strategies, LLC, 02-RC-321262 (Regional Election Decision)

The case involves a petition by the Communications Workers of America for an Armour-Globe self-determination election at Precision Strategies, LLC, seeking to add approximately 14 Associate Vice Presidents (AVPs) to an existing bargaining unit of 46 Associates, Senior Associates, and Principals. The central legal question was whether these AVPs were statutory supervisors under Section 2(11) of the National Labor Relations Act, which would make them ineligible for union representation.

The Regional Director's analysis focused heavily on the supervisory status question, applying the Supreme Court's three-part test from NLRB v. Kentucky River Community Care: employees are statutory supervisors if they (1) hold authority to engage in any of twelve specific supervisory functions, (2) exercise independent judgment in that authority, and (3) hold the authority in the employer's interest. The burden of proving supervisory status rests with the party asserting it - here, the employer.

The Director examined three primary claimed supervisory functions: assignment of work, responsible direction of employees, and authority to effectively recommend rewards and promotions. For each, the Director found the evidence lacking in specific details required under Board precedent.

Regarding work assignment, while AVPs participated in creating staffing plans and assigning tasks, the evidence failed to demonstrate they exercised independent judgment as defined in Oakwood Healthcare — a seminal case establishing that assignment requires designating significant overall duties, not just discrete tasks, and must involve genuine discretion beyond routine decisions. The testimony about AVPs' assignment authority was largely conclusory and failed to show specific examples of how assignment decisions were made.

On responsible direction, the Director found insufficient evidence that AVPs were held accountable for others' performance — a crucial element under Oakwood Healthcare. While there was testimony that poor team performance could affect an AVP's evaluation, the evidence lacked specific examples of accountability or corrective action.

Regarding authority to reward and promote, the Director found that while AVPs participated in evaluations and recommendations, their input was subject to independent investigation by higher management — failing the test from The Republican Company, which requires that truly "effective" recommendations be acted upon without such independent review.

The Director was particularly influenced by Golden Crest Healthcare Center, which established that job descriptions and titles alone cannot establish supervisory status without evidence of actual authority exercised. The conclusory nature of much of the employer's evidence was fatal to its case under Lynwood Manor, which requires specific, detailed evidence of supervisory authority.

Having found the AVPs were not statutory supervisors, the Director then analyzed whether they constituted an appropriate voting group under the Armour-Globe doctrine. This doctrine, originating in Globe Machine & Stamping Co. and refined in Armour & Co., allows unrepresented employees to vote on joining an existing unit if they share a community of interest with unit employees and constitute an identifiable, distinct segment.

The Director found both requirements met, noting the AVPs worked in all practices, at both locations, and shared common management, similar tasks, and frequent contact with unit employees. This analysis was guided by St. Vincent Charity Medical Center, which clarified that the "identifiable and distinct" requirement simply ensures the voting group doesn't unduly fragment the workforce.

Aspirus St. Luke's, 18-RC-350561 (Regional Election Decision)

This NLRB Regional Director's decision addresses a petition by the Minnesota Nurses Association seeking an Armour-Globe self-determination election to add patient placement nurses to an existing bargaining unit of registered nurses at Aspirus St. Luke's Hospital in Duluth, Minnesota. The case presents an interesting intersection of the Board's Health Care Rule and its Armour-Globe doctrine for adding employees to existing units.

The analysis begins with the threshold question of how to handle this type of election in an acute care hospital setting. The Board's Health Care Rule typically mandates eight appropriate bargaining units in acute care hospitals, with registered nurses comprising one such unit. However, as explained in St. Vincent Charity Medical Center, when a petition seeks to add employees to an existing non-conforming healthcare unit rather than create a new unit, the Health Care Rule does not apply. Instead, the traditional Armour-Globe analysis governs.

The Armour-Globe doctrine requires two key findings: first, that the employees constitute an identifiable, distinct segment, and second, that they share a community of interest with the existing unit. Warner-Lambert Co. clarified that petitioned-for employees need not constitute a separate appropriate unit by themselves to be added to an existing unit.

On the first prong, the Director found the patient placement nurses constituted an identifiable, distinct segment because they worked together in a single department, shared common supervision under Director Barto, and had distinct duties. This analysis was guided by St. Vincent, which found a single classification of phlebotomists appropriate for an Armour-Globe election based on similar factors.

The community of interest analysis formed the heart of the decision, with the Director examining six traditional factors:

1. Departmental Organization: While finding some fragmentation in the existing unit structure, the Director deemed this factor neutral given both groups' contributions to patient care.

2. Skills, Training and Job Functions: The Director found this strongly favored inclusion, noting both groups required RN licenses, used similar electronic health record systems, and fundamentally performed patient care work, whether direct or indirect.

3. Functional Integration: This factor also favored inclusion, with patient placement nurses facilitating admissions and transfers for patients who would then be cared for by unit nurses, demonstrating clear workflow integration.

4. Contact and Interchange: This factor weighed against inclusion due to limited physical interaction and one-way interchange (placement nurses could work as unit nurses but not vice versa).

5. Terms and Conditions: With both groups being hourly employees using the same timekeeping system, this moderately favored inclusion, though evidence was limited.

6. Common Supervision: This factor favored inclusion based on some overlap in supervision structure and shared oversight on off-shifts.

The Director concluded that the commonalities in skills, job functions, supervision, terms and conditions, and functional integration outweighed the limited contact and interchange. Importantly, as noted in St. Vincent, adding these nurses to the existing unit would not lead to unit proliferation - a key concern in healthcare settings.

The decision ordered a manual election among the patient placement nurses to determine if they wished to join the existing RN bargaining unit, with detailed provisions for voter eligibility and election procedures.