12/16/2024: Unilateral Wage Increase Violated NLRA

Regional Director sorts through question of supervisory status.

Rieth-Riley Construction Co., Inc., 373 NLRB No. 149, 07-CA-285321 (Published Board Decision)

The NLRB issued this decision finding that Rieth-Riley Construction Company violated federal labor law in several ways during 2021-2022. The case arose from the company's dealings with the Operating Engineers Local 324 union in Michigan.

The violations centered on three main actions by Rieth-Riley. First, the company gave wage increases to employees in June 2021 and June 2022 without first notifying or bargaining with the union. While Rieth-Riley argued these increases were required by the Davis-Bacon Act for federal projects, the Board found the company still needed to bargain over how to implement them.

Second, in May 2022, the union requested information about employee wages and benefits. The company refused to provide this information unless the union agreed in writing that receiving the information wouldn't constitute bargaining. The Board found this refusal unlawful since the information was relevant to the union's role as bargaining representative.

Third, in June 2022, Rieth-Riley announced it would stop bargaining with the union. The company said this was a "technical refusal to bargain" meant to get court review of an earlier NLRB decision dismissing employee petitions to decertify the union. The Board found this violated the law, as companies can't withdraw recognition from unions without evidence they've lost majority worker support.

To remedy these violations, the Board ordered Rieth-Riley to provide the requested information, rescind the wage increases if the union asks, resume bargaining, and post notices about the violations at its facilities. The Board also required the company to mail these notices to current and former employees who worked there since June 2021.

Significant Cases Cited

• Levitz Furniture Co., 333 NLRB 717 (2001): Employer may withdraw recognition only with evidence of actual loss of majority support.

• NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956): Employers must provide unions with relevant information necessary for bargaining.

• NLRB v. Katz, 369 U.S. 736 (1962): Unilateral changes to terms and conditions of employment violate duty to bargain.

SWCA, Incorporated, d/b/a SWCA Environmental Consultants, 06-RM-340598 (Regional Election Decision)

In April 2024, Teamsters Local 341 sought to represent employees at SWCA Environmental Consultants' Bridgeville, Pennsylvania facility. The employer filed a petition with the NLRB in response to the union's demand for recognition.

The key dispute centered on whether certain positions qualified as supervisors under the National Labor Relations Act. The employer contended that Staff Archaeologists, Assistant Staff Archaeologists, and Project Archaeologists were supervisors or managers who should be excluded from the bargaining unit.

After examining the evidence, the Regional Director determined:

Project Archaeologist Benjamin Demchak qualified as a supervisor based on his hiring authority. Demchak independently conducted interviews and effectively recommended hires without further review from upper management.

Staff Archaeologist Zach Whalen was not a supervisor. While Whalen directed field work and completed employee assessments, these duties were routine and did not involve sufficient independent judgment.

Staff Archaeologist Emily Falk's status remained unclear. She had recently served as a hiring manager, but it was uncertain whether this was a regular duty or one-time assignment. The Director allowed Falk to vote subject to challenge.

Assistant Staff Archaeologist Christine Lasser was not a supervisor. Her field lead duties involved routine direction rather than supervisory authority.

The Director ordered an election with two voting groups:

1. Professional employees (Staff and Assistant Staff Archaeologists)

2. Non-professional employees (Cultural Resources Technicians)

The professional employees will first vote on whether to join a unit with non-professionals. If they vote no, they will form their own unit. The election was scheduled for January 8, 2024.

Significant Cases Cited

• Oakwood Healthcare, Inc., 348 NLRB 686 (2006): To qualify as a supervisor, the individual must exercise authority (e.g., to hire or assign work) with independent judgment and in the employer's interest.

• Golden Crest Healthcare Center, 348 NLRB 727 (2006): Paper authority or conclusory statements alone are insufficient to establish supervisory status; evidence must show practical exercise of authority.

• CNN America, Inc., 361 NLRB 439 (2014): Collaborative decision-making does not demonstrate independent judgment for supervisory status.

• Union Square Theatre Management, Inc., 326 NLRB 70 (1998): Hiring authority is established when putative supervisors make hiring decisions without independent review from higher management.