11/25/2024: ExxonMobil's Lockout of Workers During Decertification Push Was Legal
Also, an ALJ finds that a worker did not act concertedly when raising concerns about working conditions.
ExxonMobil Corporation, Beaumont Refinery, JD(SF)-35-24, 16-CA-276089 (ALJ Decision)
In May 2021, ExxonMobil locked out 600-650 employees at its Beaumont, Texas refinery and packaging plant. The lockout followed months of contract negotiations and lasted until February 2022.
The events began in late 2020 when the company and United Steelworkers started negotiating a new contract to replace one expiring January 31, 2021. In February 2021, the union gave 75 days notice of a potential strike. The company responded with notice of a definite lockout to begin May 1.
During this period, employee Brian Sanderson contacted HR advisor Andrew Stahel about decertifying the union. Stahel provided Sanderson with information about decertification procedures and allowed him to install a locked dropbox for collecting signatures. The company also issued various communications about decertification and the lockout.
In October 2021, Sanderson filed a decertification petition with the NLRB. The company continued negotiations with the union while also issuing updates encouraging employees to vote against the union. The union ultimately lost the decertification election in March 2022, after the lockout had ended.
The General Counsel alleged that:
The lockout was unlawfully motivated to assist decertification
The company provided unlawful assistance to the decertification effort
The company made unlawful unilateral changes to working conditions
The company made unlawful statements about changes
The Administrative Law Judge found:
The lockout was lawfully motivated by legitimate bargaining strategy and strike concerns
The company's assistance with decertification was minimal and lawful
Most alleged unilateral changes were either lawful or properly noticed
However, the company violated the Act by:
Unilaterally discontinuing regular safety meetings without bargaining
A supervisor's statement that the company could change schedules at will because no contract was in effect
Evidence showed the company had legitimate business reasons for the lockout:
It followed the union's strike notice
The company repeatedly stated it would end with a ratified contract
The company continued revising offers to encourage ratification
The company made concessions even after the decertification petition
The judge ordered the company to:
Stop making unilateral changes without bargaining
Stop telling employees it can change schedules without bargaining
Restore the safety meeting policy
Post notices about employees' rights
The case illustrates how companies can use economic pressure like lockouts without being held to be supporting decertification efforts.
Significant Cases Cited
American Ship Building Co. v. NLRB, 380 U.S. 300 (1965): Supreme Court held offensive lockouts in support of legitimate bargaining demands are lawful.
NLRB v. Brown, 380 U.S. 278 (1965): Supreme Court required independent evidence of anti-union animus to find lockout unlawful.
Mickey's Linen & Towel Supply, 349 NLRB 790 (2007): Established employers cannot actively solicit or promote decertification petitions.
Boehringer Ingelheim, 350 NLRB 678 (2007): Summarized framework for analyzing discriminatory lockouts.
Trinity Health Corporation and Trinity Health-Michigan, JD-74-24, 07-CA-294351 (ALJ Decision)
On March 1, 2022, nurse Diane Duxter had a confrontation with charge nurse Terri Donald at Trinity Health Ann Arbor Hospital. The incident occurred when Donald denied Duxter's request to switch shifts with another nurse, Tasha Jaczynski. Duxter became angry and used profanity, stating multiple times that nothing was "fucking fair" at the workplace. Several other nurses witnessed the incident.
After the confrontation, Donald texted manager Jennifer Siev, who contacted HR Representative Anne Puro. Siev considered the incident to fall under workplace violence policy, though no physical contact occurred. The hospital initiated an investigation, interviewing witnesses and requesting VOICE Reports (internal incident reports) from some, but not all, witnesses.
On March 4, the hospital placed Duxter on administrative leave following an interview. During this interview, Duxter mentioned past incidents, including once calling in sick when actually visiting her son. On March 17, after 41 years of employment, the hospital terminated Duxter.
The hospital cited violations of its Code of Conduct, specifically requirements to treat others with dignity and respect, speak professionally, and behave in a manner promoting cooperation. The termination notice referenced both the March 1 incident and past behavioral issues, though the hospital maintained in litigation that the March 1 incident was the sole reason for termination.
Duxter filed charges with the National Labor Relations Board. The General Counsel alleged the hospital violated Section 8(a)(1) of the National Labor Relations Act by suspending and discharging Duxter for engaging in protected concerted activity.
Administrative Law Judge Arthur J. Amchan heard the case in September 2024. The judge found that while Duxter's complaints about fairness touched on workplace conditions, she was speaking only about her own situation. There was no evidence she was advocating for other employees or engaging in group action. Because her actions weren't concerted, they weren't protected under the Act.
The judge also examined the hospital's Code of Conduct rules and found them lawful. While the hospital refused to produce the VOICE Reports despite a subpoena, the judge determined this wouldn't have changed the outcome since the fundamental issue was whether Duxter engaged in protected concerted activity.
The judge dismissed the complaint, finding no violation of the Act. The decision emphasized that individual complaints about working conditions, even if made in front of other employees, do not automatically qualify as protected concerted activity under the National Labor Relations Act.
Significant Cases Cited
Meyers Industries, 268 NLRB 493 (1984): Established that protected concerted activities must involve group action or authority.
Wright Line, 251 NLRB 1083 (1980): Created burden-shifting framework for analyzing discriminatory motivation in employment actions.
Stericycle, Inc., 372 NLRB No. 113 (2023): Established standard for analyzing whether work rules tend to chill Section 7 rights.
River City Asphalt, Inc., JD-73-24, 18-CA-280068 (ALJ Decision)
This case concerns a compliance proceeding to determine backpay owed to two employees, John Keller and Justin Olson, following River City Asphalt’s unlawful retaliation against employees engaging in union activity. The National Labor Relations Board (NLRB) previously found that the company violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA) by disciplining employees for union-related grievances.
At the compliance hearing, the General Counsel sought backpay for Keller and Olson based on their lost earnings from May 19, 2021. Using the earnings of comparable employees, the General Counsel calculated that Keller and Olson were owed $490.86 and $492.63, respectively. River City Asphalt did not dispute these calculations but argued that the employees failed to mitigate their losses by not reporting earlier on May 19.
The Administrative Law Judge rejected this defense, primarily because, in making it, the company was attempting to relitigate issues already decided by the Board in the earlier proceeding.
Significant Cases Cited
St. George Warehouse, 351 NLRB 961 (2007): Sets forth General Counsel's burden to show gross backpay due and employer's burden to establish mitigating facts.
Performance Friction Corp., 335 NLRB 1117 (2001): Validates use of comparable employee approach for calculating backpay.
Minnette Mills, 316 NLRB 1009 (1995): Establishes that discriminatees held only to reasonable standard in mitigating damages, not highest standard of diligence.
Willis Roof Consulting, 355 NLRB 280 (2010): Confirms that issues decided in unfair labor practice proceeding cannot be relitigated in compliance phase.
Executive Press, JD(SF)-34-24, 16-CA-316647 (ALJ Decision)
In February 2023, Executive Press hired Lexi Nitcholas at $18 per hour. Initially working at the company's Plano facility, she was transferred to the Richardson location after struggling with computer tasks. At Richardson, she worked at the bindery table with other employees.
In mid-March, Nitcholas discussed wages with coworkers at the bindery table. She told one employee who made $12 per hour that she made $18 per hour. When she asked another employee about their wages, they declined to discuss it. Supervisor Cynthia Krause overheard these discussions and told Nitcholas that while there was no rule against discussing wages, "it's not nice to tell people what you make when you know you make more than they do."
Krause reported the wage discussions to CEO Syver Norderhaug. On March 15, Norderhaug called Nitcholas while she was in a car with another employee and asked if she had discussed wages, stating it was a "fireable offense." Nitcholas, feeling intimidated, denied discussing wages.
The next day, Norderhaug called Nitcholas into his office with Krause present. He again asked about wage discussions. When confronted with Krause's statement that she had overheard the discussions, Nitcholas admitted she had discussed wages and had lied about it. Norderhaug immediately terminated her, stating he could not tolerate liars.
After Nitcholas filed charges with the National Labor Relations Board, the company defended its actions by claiming she was an independent contractor not protected by the National Labor Relations Act. The company also argued she was terminated for lying, not for discussing wages.
The Administrative Law Judge rejected these defenses. First, analyzing common law factors, the judge found Nitcholas was an employee, not an independent contractor, noting the company controlled her work, provided all tools, and paid her hourly.
Second, the judge found the termination violated federal labor law. Wage discussions are protected activity under the National Labor Relations Act. The company's stated reason for termination - lying about protected activity - was found to be pretextual. The judge noted that while the company claimed to give employees multiple chances for performance issues, it immediately terminated Nitcholas after discovering she discussed wages.
The judge also found the company's questioning about wage discussions was unlawfully coercive, particularly given the CEO's statement that discussing wages was a "fireable offense."
On November 20, 2024, the judge ordered Executive Press to:
Reinstate Nitcholas with full back pay
Remove the termination from her record
Post notices informing employees of their rights
Cease telling employees they cannot discuss wages
Stop threatening employees for protected activities
Stop coercively questioning employees about protected activities
The company was also required to compensate Nitcholas for any adverse tax consequences from receiving backpay as a lump sum rather than regular wages.
Significant Cases Cited
Wright Line, 251 NLRB 1083 (1980): Established framework for analyzing discriminatory motivation in employment actions.
Rossmore House, 269 NLRB 1176 (1984): Set standard for analyzing whether questioning employees about protected activity is coercive.
Atlanta Opera, 372 NLRB No. 95 (2023): Recent case establishing current test for independent contractor status.
Cordua Restaurants, Inc., 986 F.3d 425, 429 (5th Cir. 2021): “An employer cannot avoid liability by pointing to evasive statement by an employee in response to questioning ‘inextricably involved’ with the employee’s protected conduct.”
JSK Parsippany, LLC, JD-72-24, 22-CA-305280 (ALJ Decision)
In June 2017, the Hotel & Gaming Trades Council was certified to represent housekeeping and maintenance employees at the Fairfield Inn & Suites in Parsippany, New Jersey, owned by JSK Parsippany. The union and JSK entered into a collective bargaining agreement that expired in March 2023.
In early 2022, JSK's management began efforts to eliminate the union. The housekeeping supervisor hired nine new employees specifically to dilute union support. JSK's general manager Zia Jaffrey surveilled union meetings, restricted union access to the property, and referred to arbitration proceedings as a "kangaroo court."
In July 2023, Fairfield Parsippany purchased the hotel from JSK. On August 19, Fairfield took over operations, keeping Jaffrey as general manager. Fairfield immediately hired all of JSK's bargaining unit employees except for six who were openly pro-union. After the union pointed out this violated New Jersey law, Fairfield hired these six employees on a "probationary" basis.
The union requested recognition and bargaining on August 21. Fairfield did not respond. When union representatives tried to visit employees at the hotel on August 31, Jaffrey threatened to call police unless they left. Fairfield also stopped deducting union dues and refused to provide information the union requested about ownership and employees.
On December 8, Fairfield terminated the same six pro-union employees, claiming it was contracting out housekeeping services to Hotel Cleaning Services (HCS). However, HCS was a company formed by JSK's former housekeeping supervisor just two days before Fairfield took over. HCS then hired all the remaining housekeeping staff except the six pro-union employees.
The Administrative Law Judge found:
Fairfield was a "successor" employer required to recognize and bargain with the union
Fairfield discriminated by not initially hiring and then terminating the six pro-union employees
Fairfield unlawfully changed working conditions without bargaining
Fairfield unlawfully restricted union access and stopped dues deductions
Fairfield unlawfully refused to provide information to the union
The judge ordered Fairfield to:
Reinstate the terminated employees with back pay
Recognize and bargain with the union
Restore previous working conditions
Allow union access
Provide requested information
Post notices about employees' rights
The judge also ruled that because Fairfield kept Jaffrey as manager, it knew about and was liable for JSK's unfair labor practices. The judge rejected Fairfield's argument that its purchase agreement protected it from liability, noting private contracts cannot limit the NLRB's authority to remedy labor law violations.
This case illustrates how companies cannot avoid union obligations simply by transferring ownership, particularly when management remains the same and the new owner's actions suggest anti-union motivation.
Significant Cases Cited
NLRB v. Burns Security Services, 406 U.S. 272 (1972): Supreme Court established framework for successor employer obligations.
Fall River Dyeing v. NLRB, 482 U.S. 27 (1987): Supreme Court clarified "substantial continuity" test for successor status.
Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973): Successor who acquires with notice of predecessor's unfair labor practices can be liable.
Wright Line, 251 NLRB 1083 (1980): Created framework for analyzing discriminatory motivation in employment actions.
Johnnie's Poultry, 146 NLRB 770 (1964): Established requirements for employer questioning of employees about union matters.
Paul's Funeral Chapel, Inc./COF-Sander's Funeral Home, Inc., 20-RM-352666 (Regional Election Decision)
The NLRB Region 20 issued a Decision and Direction of Election on November 20, 2024, addressing a representation petition filed by Paul's Funeral Chapel. The case arose after the Humboldt Funerary Union demanded recognition as representative of approximately 23 employees at the employer's funeral facilities in Eureka and Arcata, California.
The primary legal issue was whether the Crematory Manager position held supervisory status under Section 2(11) of the Act. The employer argued for exclusion based on supervisory authority, while the union sought inclusion. The parties also disputed the status of a Grounds Supervisor and Salesperson.
The Regional Director found insufficient evidence to establish the Crematory Manager's supervisory status. The record showed that while the Crematory Manager, Aubree Baker, performed various administrative functions, he lacked genuine supervisory authority:
Assignment authority was limited to routine scheduling adjustments
No evidence showed Baker was held accountable for others' performance
Participation in one hiring decision showed no effective recommendation power
Role in discipline was merely reportorial rather than decision-making
Performance evaluations did not lead to personnel actions
The employer's evidence consisted largely of job descriptions and testimony about theoretical authority rather than specific examples of supervisory power being exercised. The Regional Director gave greater weight to Baker's testimony about his actual duties over management's more speculative testimony about the position's authority.
The Regional Director directed an election in a wall-to-wall unit including the Crematory Manager position. The Grounds Supervisor and Salesperson classifications were permitted to vote subject to challenge, with their status to be resolved in post-election proceedings if necessary.
Significant Cases Cited
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Clarified the criteria for determining supervisory status under Section 2(11) of the NLRA.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Defined “independent judgment” for supervisory determinations and held that routine or clerical actions do not confer supervisory status.
Children’s Farm Home, 324 NLRB 61 (1997): Established that effective recommendations require the absence of independent investigation by superiors.
Black Horse EHT Urban Renewal, LLC, 04-RC-352916 (Regional Election Decision)
On November 20, 2024, NLRB Region 4 Regional Director Kimberly Andrews issued a Decision and Direction of Election addressing a representation petition filed by UFCW Local 152. The union sought to represent approximately 15 Licensed Practical Nurses (LPNs) at New Standard Senior Living's Egg Harbor Township facility. The employer argued that only a two-facility unit including 12 additional LPNs at its Hammonton facility would be appropriate.
The two facilities are 25 miles apart in Atlantic County, New Jersey. Both are converted hotels with approximately 160 units each. On October 1, 2024, Priority Life Care began managing both facilities. While a Regional Director oversees both locations, each facility maintains separate Executive Directors, Directors of Nursing, and Assistant Directors of Nursing who handle day-to-day supervision and personnel matters.
The LPNs at both facilities perform identical duties caring for residents and providing medications. They operate under the same employee handbook and receive similar wages and benefits. However, the record showed minimal employee interchange between facilities. Only one instance of voluntary overtime opportunity at the Hammonton facility was documented.
The Regional Director applied the Board's established presumption favoring single-facility units. To overcome this presumption, an employer must demonstrate integration so substantial that it negates the separate identity of the facility. The decision analyzed five traditional factors:
Central control: While high-level management overlapped, local supervision remained independent
Similar skills/functions: LPNs performed identical work under similar conditions
Employee interchange: Evidence showed only one instance of voluntary cross-facility work
Geographic distance: 25-mile separation deemed significant
Bargaining history: None existed.
The Regional Director rejected the employer's argument that American Steel Construction should apply, noting that case addressed excluded classifications within a facility rather than multiple facilities.
Finding insufficient evidence to overcome the single-facility presumption, the Regional Director directed an election in the petitioned-for unit of LPNs at the Egg Harbor Township facility only. The election was scheduled for December 11, 2024, with three voting sessions to accommodate different shifts.
The decision demonstrates that commonalities in job duties and high-level management are insufficient to overcome the single-facility presumption when facilities maintain separate immediate supervision and show minimal employee interchange. The employer's burden to demonstrate substantial integration requiring a multi-facility unit remains high under current Board law.
Significant Cases Cited
Starbucks Corp., 371 NLRB No. 71 (2022): Reaffirmed the presumption of appropriateness for single-facility units and the employer’s heavy burden to rebut this presumption.
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Clarified the standard for challenging the exclusion of job classifications in a proposed unit but was deemed inapplicable to multi-facility disputes.
Dean Transportation, Inc., 350 NLRB 48 (2007): Established that a single-facility unit is presumptively appropriate unless substantial evidence of integration negates its separate identity.
Omni International Hotel, 283 NLRB 475 (1987): Held that centralized management alone does not rebut the appropriateness of a single-facility unit without evidence of significant operational integration.
WideOpenWest Illinois, LLC, 371 NLRB No. 107 (2022): Defined functional integration as substantial interdependence between facilities in achieving operational goals.