12/10/2024: Still Illegal to Fire Striking Workers
A variety of very workhorse cases today.
Nu Way Fab LLC, JD-78-24, 14-CA-331222 (ALJ Decision)
On September 17-19, 2024, Administrative Law Judge Arthur J. Amchan heard a consolidated case involving Nu Way Fab, LLC in Troy, Illinois. The case combined an unfair labor practice charge and representation election issues stemming from events in late 2023.
Nu Way Fab manufactures reinforcing steel bars and underwent operational changes in 2023, including moving to a new facility and reducing employee hours from 47 to 40 per week. In September 2023, an employee filed an OSHA complaint resulting in citations for inadequate forklift training and machine guarding.
On November 30, 2023, six employees, including five direct employees and one temporary worker, gathered to discuss concerns about wages and working conditions. After a 40-minute meeting with General Manager Daniel Springer, during which they requested him to take their concerns to higher management, the employees left work. The company responded by disabling their access cards, terminating their employment, and threatening to call police if they returned.
The International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers filed charges alleging violations of the National Labor Relations Act. A representation election followed on January 11, 2024, resulting in three counted votes opposing union representation and seven challenged ballots.
Judge Amchan determined that the employees' walkout constituted protected concerted activity in the form of an economic strike. He ruled that while Nu Way Fab could have hired replacements, terminating the strikers violated Section 8(a)(1) of the Act. The judge also found that suggesting employees find other work and threatening police intervention constituted additional violations.
Regarding the representation election, Judge Amchan overruled challenges to the terminated employees' ballots and assistant foreman Ryan Jeffrey's ballot, while sustaining the challenge to maintenance employee Frederick Prueter's ballot based on the bargaining unit's clear exclusion of maintenance personnel.
The decision ordered Nu Way Fab to reinstate the terminated employees with full backpay and benefits, compensate them for job search expenses, remove references to the terminations from their files, and post appropriate notices. The representation case was remanded to the Regional Director for action consistent with the decision.
Significant Cases Cited
American Manufacturing Concern, 7 NLRB 753 (1938): A walkout aimed at improving wages and working conditions is protected under the NLRA.
David Saxe Productions, 370 NLRB No. 103 (2021): Ballots cast by employees unlawfully discharged may be counted in representation elections.
Medco Health Solutions, 357 NLRB 170 (2011): Suggesting employees leave their jobs if dissatisfied constitutes an implied threat of discharge.
Oakwood Healthcare, 348 NLRB 686 (2006): Supervisory status requires evidence of actual authority, not merely titular or incidental duties.
Winkle Bus Co., 347 NLRB 1203 (2006): Threatening to call police against employees engaged in protected activities violates Section 8(a)(1).
Permobil, Inc., JD-77-24, 19-CA-324895 (ALJ Decision)
Administrative Law Judge Robert A. Giannasi issued this decision regarding allegations that Permobil Inc. violated the National Labor Relations Act through its employment agreement terms and subsequent lawsuit against a former employee.
The case centered on Permobil's "Project Greenfield," a confidential initiative to develop a new ultralight wheelchair product line. In October 2021, Permobil promoted Mark Westphal to Greenfield Services Workstream Lead, requiring him to sign an employment agreement containing various restrictive covenants. These included provisions on non-competition, non-solicitation, confidentiality, and non-disparagement.
In April 2023, Westphal resigned from Permobil and began working for Sunrise Medical LLC, a competitor in the wheelchair manufacturing industry. Permobil filed suit in U.S. District Court for the Middle District of Tennessee in June 2023, seeking to enforce the employment agreement.
The General Counsel alleged that certain provisions of the employment agreement unlawfully restricted employees' rights under Section 7 of the National Labor Relations Act. The complaint also contended that Permobil's lawsuit was preempted by the Board's jurisdiction.
Judge Giannasi found that two provisions in the employment agreement violated Section 8(a)(1) of the Act. The non-disparagement clause, which prohibited employees from taking any action to "disparage or criticize" the company, was deemed overly broad. Similarly, the confidentiality provision barring disclosure of agreement terms was found unlawful as it could prevent employees from discussing working conditions.
However, the judge dismissed allegations regarding other agreement provisions. The non-competition clause was found lawful as it was narrowly tailored to protect legitimate business interests. The non-solicitation provision was deemed an acceptable measure to protect business interests rather than an unlawful restriction on discussing employment terms.
Regarding the lawsuit, Judge Giannasi determined it was not preempted by NLRB jurisdiction. He found the primary focus of the litigation was protecting business interests related to Project Greenfield, not restricting protected activities under the National Labor Relations Act.
The judge ordered Permobil to cease maintaining the unlawful agreement provisions and post notices informing employees of their rights. The order did not require withdrawal of the lawsuit against Westphal.
McLaren Macomb, 372 NLRB No. 58 (2023): Overly broad non-disparagement and confidentiality clauses that limit Section 7 rights are presumptively unlawful.
Stericycle, Inc., 372 NLRB No. 113 (2023): Employer policies are evaluated based on their reasonable tendency to chill Section 7 rights, viewed from an employee’s perspective.
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983): Lawsuits filed for legitimate business purposes do not constitute unfair labor practices unless they aim to chill Section 7 rights.
Federal Security, Inc., 336 NLRB 703 (2001): Preemption applies only if a lawsuit is directly related to Section 7-protected activity.
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Section 7 rights extend to communications with third parties about labor disputes.
Forepeak Steel, LLC, JD-79-24, 04-CA-340084 (ALJ Decision)
Administrative Law Judge Michael A. Rosas issued this decision regarding allegations that Forepeak Steel LLC violated federal labor law during its business closure in 2024.
The case centered on Forepeak Steel's facility in Point Pleasant Borough, New Jersey, where it provided structural steel services. In September 2023, employees voted to be represented by the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers. The National Labor Relations Board certified the union as the bargaining representative on January 25, 2024.
By February 2024, Forepeak was experiencing significant financial difficulties. The company's insurance coverages were canceled due to non-payment, and owner Camilo Papa anticipated filing for bankruptcy. In early April 2024, Papa laid off five bargaining unit employees without providing advance notice to the union. The union learned of the layoffs from employees and demanded bargaining over the decision.
The parties held three bargaining sessions between March and May 2024. During this period, Forepeak's financial situation continued to deteriorate. On July 1, 2024, the company canceled its employee health insurance and effectively ceased operations. The union was not informed of the closure until September 5, 2024.
Judge Rosas found that Forepeak violated Section 8(a)(5) of the National Labor Relations Act by laying off employees without first notifying and bargaining with the union. He rejected the company's defense that the layoffs were consistent with past practice, citing recent Board precedent that practices predating union representation cannot justify subsequent unilateral changes.
Regarding the business closure, Judge Rosas dismissed allegations that Forepeak was required to bargain over the decision itself, as it was made purely for economic reasons. However, he found that the company violated the Act by failing to provide the union with adequate notice and opportunity to bargain over the effects of the closure on employees.
The judge ordered Forepeak to engage in effects bargaining with the union and to provide backpay to the laid-off employees under the Transmarine formula. Given that the facility had closed, the remedial order required notices to be mailed to former employees rather than posted at the workplace.
Significant Cases Cited
NLRB v. Katz, 369 U.S. 736 (1962): Unilateral changes to mandatory bargaining subjects without notice to the union violate Section 8(a)(5).
First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981): Employers are not required to bargain over business closure decisions made solely for economic reasons but must bargain over the effects.
Wendt Corp., 372 NLRB No. 135 (2023): Employers cannot unilaterally apply past practices established before union certification to justify changes without bargaining.
Good Samaritan Hospital, 335 NLRB 901 (2001): Pre-implementation notice and timely effects bargaining are required to avoid violations.
Transmarine Navigation Corp., 170 NLRB 389 (1968): A make-whole remedy, including backpay, is appropriate when effects bargaining is delayed or inadequate.
National Technology and Engineering Solutions of Sandia, LLC d/b/a Sandia National Laboratories, JD(SF)-37-24, 28-CA-285428 (ALJ Decision)
The case centered on NTESS's relationship with the Office & Professional Employees International Union (OPEIU), which had represented clerical employees at the facility since 1950. The parties operated under a collective bargaining agreement that expired in September 2021. Upon expiration, NTESS ceased deducting union dues from employee paychecks and stopped providing scheduled step increases, without first bargaining with the union over these changes.
NTESS defended its actions by arguing that it could unilaterally end dues deductions based on the Board's Valley Hospital I decision. Regarding step increases, NTESS contended that contract language limiting them to "during the term of this agreement" meant they could cease upon contract expiration.
Judge Montemayor rejected these defenses. He found that the Board's Valley Hospital II decision, which requires employers to continue dues checkoff after contract expiration, applied retroactively to this case. On the step increases, he determined that limiting language in the contract did not constitute a clear waiver of the union's right to bargain over changes, particularly given the 70-year history of providing these increases.
The judge found that NTESS violated Section 8(a)(5) and (1) of the National Labor Relations Act by making these unilateral changes without bargaining. He ordered NTESS to resume dues checkoff and step increases, make employees whole for lost earnings, reimburse the union for lost dues with interest, and post notices about the violations.
The judge also addressed various constitutional arguments raised by NTESS, including claims about the right to a jury trial and separation of powers. He declined to rule on these issues, finding they were better suited for consideration by the Board or federal courts.
To remedy the violations, Judge Montemayor ordered backpay with interest, reimbursement of union dues that should have been collected, and required NTESS to post notices at all locations where affected employees work.
Significant Cases Cited
NLRB v. Katz, 369 U.S. 736 (1962): Employers may not unilaterally change terms and conditions of employment without bargaining during negotiations or after a contract expires.
Valley Hospital Medical Center II, 371 NLRB No. 160 (2022): Employers must honor dues-checkoff provisions post-CBA expiration until a successor agreement is reached or impasse occurs.
Finley Hospital, 362 NLRB 915 (2015): Step increases are part of the status quo and must be maintained post-CBA expiration unless there is a clear and unmistakable waiver.
Litton Financial Printing Division v. NLRB, 501 U.S. 190 (1991): Employers must maintain terms and conditions of employment established by an expired contract under the NLRA.
Provena St. Joseph Medical Center, 350 NLRB 808 (2007): A union’s waiver of statutory bargaining rights must be clear and unmistakable.
West Flagler Associates, LTD d/b/a Magic City Casino, JD-76-24, 12-CA-331395 (ALJ Decision)
This case centers on a dispute over surveillance video footage at Magic City Casino in Miami, Florida. In September 2023, two housekeeping employees received disciplinary notices for their conduct during a department meeting. The union, UNITE HERE Local 355, requested to view surveillance video of the incident as part of its grievance investigation.
The casino's human resources personnel had viewed the video but maintained it was not used in making the disciplinary decision. When the union requested access to the footage, management initially refused on grounds of relevance. The casino later offered to allow viewing subject to a confidentiality agreement and withdrawal of an unfair labor practice charge.
Administrative Law Judge Sarah Karpinen determined that the casino violated the National Labor Relations Act by refusing to provide access to the video. The judge found that surveillance footage of unit employees' conduct is presumptively relevant to the union's representational duties. The casino's confidentiality defense failed because it was not raised in a timely manner and lacked specific justification. The judge also rejected arguments that state gaming regulations prohibited employee viewing of surveillance footage, finding no evidence that controlled viewing of specific incidents would compromise casino security.
The decision ordered the casino to allow both union representatives and affected employees to view the video without requiring a confidentiality agreement. The casino must also post notices informing employees of their rights under federal labor law.
This ruling clarifies that employers must provide unions access to relevant surveillance footage for legitimate representational purposes, and that generalized confidentiality concerns, without specific justification, do not override this obligation. Claims of confidentiality must be raised promptly and supported by concrete evidence showing how disclosure would cause harm.
Significant Cases Cited
PAE Aviation & Tech. Servs., 366 NLRB No. 95 (2018): Unions are presumptively entitled to information pertaining to bargaining unit employees that may assist in grievance processing.
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979): Employers claiming confidentiality must show a legitimate and substantial interest and balance it against the union's need for the information.
Wayne Mem. Hospital, 322 NLRB 100 (1996): Waivers of union rights must be clear and unmistakable.
OQ Chemicals Corporation, 16-RC-354943 (Regional Election Decision)
The NLRB Region 16 Director issued a Decision and Direction of Election regarding a representation petition filed by IUOE Local 564 at OQ Chemicals Corporation's Bay City, Texas facility. The union seeks to represent approximately 90 hourly operations and maintenance employees at the facility, which produces oxo chemical products.
The Director found the petitioned-for unit appropriate, consisting of all full-time and regular part-time hourly operations and maintenance employees at the Bay City facility. This determination rested on the fact that the employees share common hours, wages, and working conditions.
The employer requested to dismiss the petition based on alleged supervisory involvement in obtaining union authorization cards. The employer contended this supervisory involvement tainted the petition. The Regional Director, following established Board precedent, declined to litigate this issue in the representation proceeding.
The Director noted that allegations of supervisory taint are properly addressed through a post-election administrative investigation rather than representation hearings. This aligns with the Board's longstanding practice of keeping representation proceedings focused on core representation issues.
A related case (16-RC-354942) already determined that the alleged supervisors were not statutory supervisors under Section 2(11) of the Act. However, this determination technically did not factor into the analysis of the instant case, as the Director maintained the position that supervisory taint allegations should be investigated administratively after the election.
Significant Cases Cited
American Steel Construction, Inc., 372 NLRB No. 23 (2022): Determination of an appropriate bargaining unit depends on community-of-interest factors such as job duties, wages, and supervision.
Lampcraft Industries, Inc., 127 NLRB 92 (1960): Supervisory taint allegations are not litigated in pre-election hearings but are resolved through administrative investigation.
Terry Machine Co., 356 NLRB No. 120 (2011): Allegations of supervisory misconduct during union campaigns are deferred to administrative investigation.
Harborside Healthcare, 343 NLRB 906 (2004): Supervisory involvement claims are examined post-election unless the supervisory status is clearly evident.