12/17/2024: Cemex Bargaining Order for Employer That Increased Wages During Organizing Campaign
Board once again severs challenge to Ex-Cell-O.
Brown-Forman Corporation d/b/a Woodford Reserve Distillery, 373 NLRB No. 145, 09-CA-307806 (Published Board Decision)
In February 2022, employees at Brown-Forman Corporation's Woodford Reserve Distillery began organizing with Teamsters Local 651. The Union started collecting authorization cards, and by late July 15 employees had signed cards. By the end of August, that number grew to 26 employees.
On August 25, 2022, the Union sent Woodford a letter announcing the organizing campaign. In early September, Woodford's management began holding meetings with employees. Plant Director Nelson told employees the company would not remain neutral and would do what it could to keep operating as it was.
On October 4, Nelson emailed upper management reporting that approximately 50-60% of employees had signed authorization cards, with pay being their primary concern. The next day, Woodford began the process of implementing a $4/hour across-the-board wage increase. The company also changed its pay progression policy to allow new and recently promoted employees to receive merit increases, and modified its vacation policy regarding year-end shutdowns.
On October 11, the Union mailed authorization cards from 35 employees to the NLRB along with an election petition. The Union also requested recognition from Woodford. The company received this request on October 13 but did not recognize the Union.
On October 12, Woodford announced the $4 wage increase. After this announcement, employee support for the Union declined significantly. A week before the November 17 election, Woodford distributed $30 bottles of bourbon to employees. In the election, the Union lost by a vote of 45 to 14.
The NLRB's Regional Director issued a complaint, and Administrative Law Judge Andrew S. Gollin found Woodford violated the National Labor Relations Act through its wage increase, policy changes, and bourbon distribution. The NLRB affirmed these findings and ordered Woodford to bargain with the Union as the employees' representative.
All three Board members agreed on the outcome, though Member Kaplan noted his continuing disagreement with remedial bargaining orders while joining for institutional reasons.
The Board's decision establishes that both announcing and implementing the wage increase were separate violations, and applies the Board's new Cemex framework for issuing bargaining orders when employers commit unfair labor practices that require setting aside an election.
Significant Cases Cited
NLRB v. Exchange Parts Co., 375 U.S. 405 (1964): Employers cannot grant benefits during an organizing campaign to influence employees' decisions regarding union support.
Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023): A remedial bargaining order is appropriate when an employer’s unfair labor practices undermine the union's majority support or election process.
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): A bargaining order is justified when unfair labor practices prevent a fair election.
Nexstar Media Group, Inc. for their Station, KDVR-TV/KWGN-TV, 374 NLRB No. 5, 27-CA-342708 (Published Board Decision)
On April 11, 2024, employees at Nexstar Media Group's Denver television stations KDVR-TV/KWGN-TV voted in a secret ballot election for union representation. On April 29, 2024, the NLRB Regional Director certified the National Association of Broadcast Employees & Technicians-Communications Workers of America (NABET-CWA) as the employees' exclusive bargaining representative.
The certified bargaining unit includes all full-time and regular part-time employees in three classifications: Technician Production, Technician Director/TD, and Director I Newscast at the Denver facility, with standard exclusions for office clerical, professional employees, guards and supervisors.
On May 17, 2024, the Union emailed Nexstar requesting dates to begin bargaining. On May 19, 2024, Nexstar refused, stating it would file a request for review of the Union's certification. After Nexstar continued refusing to bargain, the Union filed an unfair labor practice charge on May 21, 2024.
The General Counsel issued a complaint on July 17, 2024, later amended on August 26, 2024, alleging Nexstar violated Section 8(a)(5) and (1) of the Act by refusing to bargain. The General Counsel then moved for summary judgment.
On September 19, 2024, the NLRB denied Nexstar's request for review of the certification. On December 16, 2024, the Board granted the General Counsel's motion for summary judgment, finding Nexstar's refusal to bargain unlawful.
The Board ordered Nexstar to bargain with the Union upon request and post notices. However, the Board severed for later consideration the General Counsel's request that Nexstar be required to make employees whole for the lost opportunity to bargain, as this would require overturning existing precedent in Ex-Cell-O Corp., 185 NLRB 107 (1970). The Board has severed this issue in multiple cases, which suggests that it intends to reverse Ex-Cell-O soon and declare that employers will be required to reimburse workers for losses they suffered from refusals to bargain.
In reaching its conclusion, the Board rejected Nextar’s arguments that the Board members and ALJs are unconstitutionally insulated from removal and that Nexstar is constitutionally entitled to a trial by jury.
The Board's order specifies that the certification year will begin when Nexstar starts bargaining in good faith. The case represents a straightforward application of established law regarding technical refusal to bargain cases, while leaving open the possibility of reconsidering make-whole remedies in such cases in the future.
Significant Cases Cited
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): Representation issues cannot be relitigated in an unfair labor practice case absent new evidence or circumstances.
Humphrey’s Executor v. United States, 295 U.S. 602 (1935): The President’s limited removal power over independent agency members is constitutional.
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): NLRB proceedings are constitutional and do not require jury trials under the Seventh Amendment.
Ex-Cell-O Corp., 185 NLRB 107 (1970): Current precedent declining to award make-whole remedies in refusal to bargain cases
USC Care Medical Group, Inc., KECK Medicine of USC, 374 NLRB No. 2, 31-CA-307034 (Published Board Decision)
On February 16, 2024, Administrative Law Judge Kenneth Chu issued a decision finding USC Care Medical Group violated labor law during a union organizing campaign. The NLRB reviewed this decision on December 16, 2024.
The case arose from a November 2, 2022 representation election where employees voted 17-13 against union representation by the National Association of Broadcast Employees & Technicians-CWA. A key incident occurred on November 1, 2022, when Regional Operations Director Janet Kim held a meeting with employees one day before the election.
During this meeting, Kim discussed how scheduling flexibility might change if employees voted for the union. She had a list of nine employees who used flexible scheduling and indicated this benefit could be lost under union representation. Employees would need to find their own coverage for schedule changes rather than having management assist as they currently did.
The ALJ found this conduct violated Section 8(a)(1) of the National Labor Relations Act and warranted setting aside the election. He recommended enhanced remedies including mandatory training, notice readings, and union access to the facility.
The Board agreed the conduct was unlawful and required a new election, but modified the remedies. They found Kim's statements about scheduling flexibility were coercive, particularly given:
The timing (24 hours before the election)
The specific identification of affected employees via the list
The impact on more than half the voting unit
The close election results (17-13)
However, the Board determined traditional remedies like notice posting were sufficient, rejecting the ALJ's enhanced remedial recommendations. They also declined to rely on the ALJ's findings about implied threats regarding Christmas leave.
The Board ordered:
The election set aside
A new election to be conducted
Standard remedial notice posting
Standard cease and desist provisions
The case represents a straightforward application of Board law regarding threats to existing benefits during organizing campaigns
Significant Cases Cited
Hertz Corp., 316 NLRB 672 (1995): Threats to revoke employee benefits if they unionize warrant setting aside an election.
Bon Appetit Management Co., 334 NLRB 1042 (2001): Any unfair labor practice during the critical period creates a presumption that the election results were affected.
Tres Estrellas de Oro, 329 NLRB 50 (1999): Employers violate Section 8(a)(1) if their conduct creates a reasonable impression of surveillance.
Valmet, Inc., 367 NLRB No. 84 (2019): Conduct close to the election period can be considered objectionable, even if just outside the per se 24-hour window.
Starbucks Corporation, JD-80-24, 19-CA-313649 (ALJ Decision)
On March 8, 2023, Workers United Labor Union International filed charges against Starbucks Corporation regarding statements on Starbucks' one.starbucks.com website. The union alleged these statements violated Section 8(a)(1) of the National Labor Relations Act by promising benefits to discourage union support.
The case arose during a significant unionization period at Starbucks. Starting in August 2021 in Buffalo, New York, unions filed over 600 representation petitions at Starbucks locations across the United States. In response, Starbucks launched one.starbucks.com in February 2022 as a resource about unionization.
The challenged statements appeared on the website from October 2022 to April 2024. They included:
Promises of training and safety improvements: The statement about "improving accountability, offering de-escalation training opportunities, and redesigning stores to be safer" was found unlawful in context of the unionization campaign.
Career development promises: Statements about empowering "partner career trajectories through innovative growth and development opportunities" were deemed unlawful promises of benefits.
Benefit comparisons: Statements about offering "highest-rated benefits" through "direct collaboration" were found to unlawfully imply that benefits were contingent on avoiding unionization.
Two paths graphic: The comparison showing better outcomes for non-union versus union paths was found to unlawfully promise better benefits for avoiding unionization.
The judge ordered Starbucks to:
Stop making promises contingent on avoiding unionization
Remove the violating statements from its website
Post notices about the violations
File a compliance certification
Starbucks had argued the complaint violated its constitutional rights, including First Amendment protections. The judge rejected these defenses, finding no constitutional violations.
Significant Cases Cited
NLRB v. Exchange Parts Co., 375 U.S. 405 (1964): Promising new benefits during an organizing campaign is unlawful because it undermines employee free choice.
Alamo Rent-A-Car, Inc., 336 NLRB 1155 (2001): Employers cannot frame unionization as causing harm or uncertainty to wages and benefits.
Caterpillar Logistics, Inc., 362 NLRB 395 (2015): Promises of workplace improvements during an organizing campaign violate Section 8(a)(1).
NLRB v. Gissel Packing Co., 395 U.S. 575 (1969): Employer speech that interferes with employees' rights under Section 7 is not protected by the First Amendment.
RATP Dev USA Inc., and its wholly owned subsidiary Durham City Transit Company, 10-RC-352579 (Regional Election Decision)
In October 2024, Local Union 1493 of the Amalgamated Transit Union filed a petition with the NLRB seeking to add supervisory employees to their existing bargaining unit at RATP Dev USA's Durham transit operation. The union wanted to include dispatchers, road supervisors, terminal supervisors, mechanic supervisors, and service crew supervisors.
The employer challenged this on two grounds: (1) these employees were statutory supervisors under Section 2(11) of the National Labor Relations Act and therefore couldn't be unionized, and (2) even if they weren't supervisors, they didn't share enough common interests with the existing unit to justify an Armour-Globe election.
The NLRB held a three-day hearing by videoconference. The evidence showed these employees had significant authority:
Operations supervisors could:
Issue discipline up to written warnings without approval
Assign routes and overtime based on their judgment
Remove operators from service for fitness-for-duty concerns
Evaluate employee performance
Recommend rewards through a gift card program
The lead operations supervisor had additional authority to:
Train and evaluate new operations supervisors
Make staffing decisions on weekends
Adjust payroll for both operators and supervisors
Maintenance supervisors could:
Assign work based on their assessment of mechanics' skills
Participate in hiring decisions
Issue discipline
Conduct training
On December 16, 2024, the Regional Director ruled that all these employees were statutory supervisors under the Act. They had real authority to discipline employees, assign work using independent judgment, and effectively recommend personnel actions. Their recommendations were generally followed without additional investigation by higher management.
Since they were statutory supervisors, they couldn't be added to the bargaining unit. The Regional Director dismissed the petition without needing to analyze whether they shared enough common interests with the existing unit members.
Significant Cases Cited
NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001): Established three-part test for supervisory status: authority to perform supervisory functions, use of independent judgment, and authority held in employer's interest
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Clarified meaning of "assign" and "responsibly direct" as supervisory functions and defined independent judgment
Veolia Transportation Services, 363 NLRB 1879 (2016): Held that disciplinary decisions must lead to personnel action without independent investigation to qualify as supervisory authority
Transdev Services, Inc., 373 NLRB No. 122 (2024): Required concrete evidence beyond conclusory statements to establish supervisory authority