12/02/2024: United States Postal Service Challenges Constitutionality of NLRB Make-Whole Remedy
The Biden administration should tell the USPS to cut it out.
United States Postal Service, 373 NLRB No. 138, 06-CA-277831 (Published Board Decision)
In May 2021, Nicolas Montross, a letter carrier at the United States Postal Service facility in Greensburg, Pennsylvania, invoked his contractual right under the collective bargaining agreement to not work more than 60 hours in a week. After working nearly 60 hours, Montross returned undelivered mail to the facility and left work.
Supervisor Danielle Meyers subsequently called Montross to a pre-disciplinary interview. During this interview, Meyers questioned whether Montross's loyalty lay with the union or USPS, threatened him with discipline and criminal prosecution, and attempted to determine who had informed him about his contractual rights. Meyers also conducted a similar interview with Donald Watkins, a former union steward, questioning him about his interaction with Montross regarding these contractual rights.
Following these events, Montross did not return to work, believing he faced arrest upon return. The Postal Service sent him a resignation form along with a notice for another disciplinary interview. Montross ultimately submitted his resignation.
The NLRB found that the Postal Service violated federal labor law in several ways. First, management unlawfully threatened Montross for exercising his contractual rights. Second, they improperly interrogated employees about protected union activities. Third, they wrongfully implied that engaging in union activities demonstrated disloyalty to the Postal Service. Finally, the Board determined that Montross was constructively discharged, as he was effectively forced to choose between resigning and abandoning his protected rights.
As a remedy, the Board ordered the Postal Service to offer Montross reinstatement with back pay and benefits, remove references to these events from personnel files, and post notices about employees' rights. The Board also ordered compensation for any direct financial harms Montross suffered, though one Board member disagreed with this particular remedy.
The Board’s decision largely just affirmed the underlying decision of the administrative law judge. The Postal Service had only challenged the remedy portion of the judge's decision, not the underlying findings of violations.
Constitutional Challenge
The most remarkable thing about this case is that the USPS, a corporation fully owned by the federal government, is arguing that the NLRB does not have the authority to order make-whole relief. The Board made the ordering of make-whole relief part of its standard remedial practice in the 2022 case Thryv.
Specifically, the USPS argues that this kind of relief exceeds the agency’s statutory and constitutional authority. This is something that private employers have been arguing since Thryv was decided, but it is weird to see the USPS, which is itself part of the federal government, making this argument. Shouldn’t the Biden administration be telling the USPS to cut it out, lest they manage to undermine one of the Biden NLRB’s major accomplishments?
For now, what the USPS has done in this case doesn’t really matter. They challenged the make-whole remedy knowing that the NLRB would reject that challenge. But the reason you would normally do something like that is to set up for an appeal into a circuit court. The Biden administration should step in to make sure that the USPS does not make any such appeal and simply complies with the NLRB order in this case.
Significant Cases Cited
Thryv, Inc., 372 NLRB No. 22 (2022): Required compensation for pecuniary harms resulting from unfair labor practices.
NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984): Protected individual invocation of CBA rights as concerted activity.
Mercy Hospital, 366 NLRB No. 165 (2018): Defined constructive discharge under Hobson's Choice theory.
Security Walls, LLC, 371 NLRB No. 74 (2022): Established threats of legal action for union activity as unlawful.
Rossmore House, 269 NLRB 1176 (1984): Articulated factors for assessing coercive interrogation.
Siren Retail Corporation d/b/a Starbucks Reserve Roastery, 373 NLRB No. 140, 02-CA-305984 (Published Board Decision)
In November 2024, the National Labor Relations Board issued a decision regarding dress code policies at the Starbucks Reserve Roastery in New York City, a 23,000-square-foot premium location designed to provide an immersive coffee experience.
The case began when several employees wore union T-shirts to work in September 2022. Management instructed them to remove the shirts and threatened disciplinary action, citing dress code violations. The dress code permitted certain colors and styles but restricted logos and writings, with specific exceptions for company-approved merchandise and partner network shirts.
Administrative Law Judge Silverstein initially heard the case. He found that Starbucks violated labor law by prohibiting union T-shirts, threatening discipline for wearing them, and maintaining overly broad restrictions on political and personal messaging. However, he dismissed a challenge to Starbucks' policy limiting employees to wearing one union pin, ruling that earlier litigation precluded revisiting this issue.
The Board reviewed the case and largely agreed with the judge's findings but reversed his ruling on the one-pin policy. The Board determined that the Roastery's unique environment and dress code made this situation distinct from previous cases involving regular Starbucks stores. The Board found that Starbucks failed to prove special circumstances justifying its restrictions on union insignia, particularly since the dress code already allowed various colors and styles, including company-approved logos and messaging.
Notably, while Starbucks argued its dress code restrictions were necessary to maintain the location's carefully crafted aesthetic, the Board found this argument undermined by numerous exceptions permitting company merchandise and partner network clothing. The Board concluded that prohibiting union insignia while allowing other forms of messaging was not justified by legitimate business needs.
As a remedy, the Board ordered Starbucks to rescind the unlawful dress code provisions and allow employees to wear union insignia. However, the Board limited these remedies to the New York City Roastery location, declining to extend them to other Roastery locations without specific evidence about their dress codes.
This decision reinforces employees' established right to wear union insignia at work while recognizing that employers may impose reasonable dress code restrictions only when justified by special circumstances and narrowly tailored to meet legitimate business needs.
Significant Cases Cited
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945): Established the right of employees to wear union insignia at work.
W San Diego, 348 NLRB 372 (2006): Allowed restrictions on union insignia in unique public-facing roles but required narrow tailoring.
Home Depot USA, Inc., 373 NLRB No. 25 (2024): Held that non-standardized dress codes undermine defenses based on public image.
Boch Honda, 362 NLRB 706 (2015): Employers must provide specific evidence of harm to justify restrictions on union insignia.
Tesla, Inc., 371 NLRB No. 131 (2022): Reinforced the prohibition against employer actions chilling union activity.
Peak Vista Community Health Centers, 27-RC-349077 (Regional Election Decision)
On November 27, 2024, NLRB Region 27 Regional Director Matthew S. Lomax issued a Decision and Direction of Election addressing union representation at Peak Vista Community Health Centers. The Union of American Physicians & Dentists sought to represent a unit of medical providers across multiple Colorado facilities, while the employer argued dental providers must be included.
Peak Vista operates medical clinics across six Colorado towns, providing integrated healthcare through medical, dental, and behavioral health departments. The organization employs approximately 94 medical providers and 23 dental providers.
The main question was whether dental providers must be included in the bargaining unit. The Regional Director examined several key factors:
Department Structure:
Medical and dental departments operated separately
Each had its own management hierarchy
Dr. Tanaka led medical operations while Dr. Leensvaart led dental operations
Department heads coordinated but maintained independent authority
Job Functions and Skills:
Medical providers required medical school or equivalent training
Dental providers needed dental school or hygienist certification
No overlap in primary patient care duties
Some shared basic equipment but distinct specialized tools
Different licensing and privileging requirements
Working Environment:
Some facilities housed both medical and dental services
Providers shared break rooms and common areas
Separate exam rooms and patient treatment areas
Limited evidence of regular work interaction
No requirement for coordinated patient care
Terms of Employment:
Similar benefits and HR policies applied to all providers
Different salary ranges between medical and dental staff
Medical providers had on-call requirements; dental did not
Common training for basic facility procedures
Department-specific continuing education
The Regional Director found the employer failed to demonstrate that dental providers must be included in the unit. While they shared some employment terms and facility space, their distinct supervision, skills, and functions supported a medical provider-only unit.
A separate issue regarding whether dental hygienists qualified as professional employees was resolved against the employer due to insufficient evidence.
The decision directed a mail ballot election for December 5, 2024, in a unit of physicians, physician assistants, nurse practitioners, and other medical providers, excluding dental staff and behavioral health providers. Ballots will be counted on January 2, 2025.
Significant Cases Cited
American Steel Construction, 372 NLRB No. 23 (2022): Reinstated the Specialty Healthcare framework for evaluating whether a petitioned-for unit is sufficiently distinct.
Specialty Healthcare, 357 NLRB 934 (2011): Established criteria for determining community of interest and when a larger unit is appropriate.
Children's Hospital of Pittsburgh, 222 NLRB 588 (1976): Determined that RDHs are technical rather than professional employees under the NLRA.
Casino Aztar, 349 NLRB 603 (2007): Provided factors for assessing functional integration and employee interchangeability.
American Security Corp., 321 NLRB 1145 (1996): Highlighted that common personnel systems alone do not warrant a shared community of interest.
Auto-Chlor System of Washington, Inc., 19-RC-338065 (Regional Election Decision)
On November 29, 2024, NLRB Region 19 Regional Director Ronald K. Hooks issued an Order Revoking Dismissal in a representation case involving Auto-Chlor System of Washington, Inc. and IBEW Local 46.
The sequence of events began on March 15, 2024, when IBEW Local 46 filed a petition seeking to represent all employees at Auto-Chlor's Kent, Washington facility. At the time, there was already a pending unfair labor practice complaint alleging that Auto-Chlor had unlawfully refused to recognize and bargain with the union.
On April 17, 2024, the Regional Director dismissed the representation petition. The dismissal was based on the logic that there could not be a question of representation if the employer was already legally obligated to recognize the union, as alleged in the complaint.
On November 20, 2024, the union requested withdrawal of the refusal to bargain allegation in the unfair labor practice case. The Regional Director notified the NLRB Executive Secretary that he was reconsidering the representation case dismissal. On November 27, the Executive Secretary returned the case to the Region for processing.
After approving the withdrawal of the refusal to bargain allegation on November 29, the Regional Director revoked his earlier dismissal of the representation petition. Since the basis for dismissal no longer existed, he ordered that processing of the representation petition be reinstated.
This procedural order reflects the NLRB's practice of not allowing representation petitions to proceed while there are pending allegations that an employer is already obligated to recognize the union for the same group of employees.
ESCNC, LLC d/b/a Surgery Center of Northern California, 20-RC-353543 (Regional Election Decision)
Teamsters Local 150 petitioned to represent a "plantwide" bargaining unit at ESCNC, LLC d/b/a Surgery Center of Northern California. The proposed unit included Registered Nurses (RNs), Licensed Vocational Nurses (LVNs), and various non-clinical staff. The employer contested the inclusion of certain classifications, arguing that RNs were statutory supervisors and that Front Desk/Patient Admissions employees lacked a community of interest with clinical staff.
Legal Issues Addressed
Appropriateness of the Plantwide Unit:
The employer argued against the inclusion of specific job classifications, particularly RNs, LVNs, and Front Desk/Patient Admissions staff, within the presumptively appropriate plantwide unit.
The Regional Director relied on Airco, Inc., which established that plantwide units are presumptively appropriate unless the employer can demonstrate a lack of community of interest among the included classifications.
Community of Interest Factors:
Following the Board's standard in Specialty Healthcare and Rehabilitation Center of Mobile, the Regional Director evaluated factors such as functional integration, supervision, shared working conditions, and frequency of interaction.
It was determined that despite differing job duties and wages, Front Desk/Patient Admissions employees shared enough integration and commonality with clinical staff to warrant inclusion in the unit.
RN Supervisory Status:
The employer contended that RNs were statutory supervisors under Section 2(11) of the NLRA due to their authority to assign and direct LVNs and surgical technicians.
The analysis relied on NLRB v. Kentucky River Community Care, Inc., which sets the criteria for determining supervisory status: independent judgment, authority to direct, and acting in the employer's interest.
The Regional Director found that RNs did not exercise sufficient independent judgment or bear accountability for the performance of other employees. Their direction of staff was deemed routine and administrative.
Eligibility of Charge Nurses and Surgery Schedulers:
These classifications were contested, and their eligibility for inclusion in the unit was deferred to post-election proceedings.
Significant Cases Cited
Airco, Inc., 273 NLRB 348 (1984): Established the presumption of appropriateness for plantwide units unless disparate interests are demonstrated.
Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB 934 (2011): Articulated the community of interest standard for determining unit appropriateness.
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Defined criteria for determining supervisory status under Section 2(11) of the NLRA.
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Clarified the limits of supervisory status, distinguishing independent judgment from routine direction.