12/20/2024: Fake Safety Concerns Do Not Negate Right to Wear Union Stickers
Also, retaliating against grievance filing is still illegal.
Refresco Beverages US, Inc., 373 NLRB No. 148, 22-CA-294330 (Published Board Decision)
The NLRB reversed an ALJ's dismissal of charges against Refresco Beverages US, Inc., finding that the company violated Section 8(a)(1) of the NLRA by ordering an employee to remove a union sticker from his coverall.
The case centered on Cesar Moreira, a batching technician who wore a union sticker on his disposable coverall for approximately a year without incident. Two weeks before a union election, Production Manager Felipe Carrera instructed Moreira to remove the sticker, citing food safety concerns. The company had a Good Manufacturing Practices policy that prohibited loose objects that could fall into food or equipment.
The ALJ initially dismissed the complaint, finding that food safety concerns constituted special circumstances justifying the restriction. The judge noted that workers could wear union insignia elsewhere in the facility and viewed the prohibition as narrowly targeted to the batching area.
The NLRB disagreed. The Board found no evidence that Moreira's sticker was loose or posed any actual contamination risk. In fact, when Moreira removed the sticker at Carrera's direction, it was so firmly attached that it tore the coverall material. The Board determined that the company's concerns were purely speculative and failed to meet the burden of proving special circumstances.
The Board ordered Refresco to stop prohibiting union insignia and post notices in both English and Spanish for 60 days. The decision reinforced that employers must provide concrete evidence, not speculation, when restricting employees' right to wear union insignia under the special circumstances doctrine.
Significant Cases Cited
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) - Established that employees have a presumptive right to wear union insignia at work absent special circumstances.
Bell-Atlantic-Pennsylvania, 339 NLRB 1084 (2003) - Defined "special circumstances" that can justify restrictions on union insignia, including safety concerns, product damage, employee dissension, or public image interference.
In-N-Out Burger, 365 NLRB 471 (2017) - Rejected employer's health/safety argument where manager never examined union insignia to determine if it posed actual safety concerns.
Amentum Government Services Parent Holdings, LLC d/b/a Amentum, 374 NLRB No. 16, 28-CA-276524 (Published Board Decision)
The NLRB affirmed an ALJ's decision finding that Amentum Services violated federal labor law at its Nellis Air Force Base operations.
The case arose after firefighter Eric Downs filed a grievance claiming he should have received a logistics position based on seniority. After Downs won his grievance, management changed the position from a traditional Monday-Friday "detached" schedule to rotating shifts. A supervisor also allegedly told Downs that management was unhappy about his grievance win and suggested his job could be at risk.
The ALJ found two violations: (1) an unlawful threat when supervisor Geary warned Downs about job security after filing the grievance, and (2) discriminatory retaliation when Amentum changed the logistics position schedule in response to Downs' protected activity.
A Board majority of Chairman McFerran and Member Wilcox affirmed these findings. The majority found Geary's statements constituted unlawful threats under Challenge Manufacturing (368 NLRB No. 35), which held that even "friendly warnings" about protected activity can be coercive. They also found the schedule change violated Wright Line (251 NLRB 1083), concluding Amentum failed to prove it would have made this change absent Downs' protected grievance activity.
Member Kaplan dissented, arguing the ALJ's credibility determinations were flawed since they weren't based on witness demeanor. He viewed the schedule change as a legitimate business decision rather than retaliation.
The Board ordered Amentum to stop modifying schedules due to union activity, cease making threats, and post notices. The majority and dissent primarily differed on whether the evidence supported finding discriminatory motivation for the schedule change.
After Downs' fellow logistics employee Tully left in September 2021, Downs returned to working a detached schedule. The Board found it unnecessary to order affirmative scheduling relief since Downs had already obtained his preferred schedule.
Significant Cases Cited
Cintas Corp. No. 2, 372 NLRB No. 34 (2022): Statements by a supervisor that could reasonably be construed as coercive are unlawful, even if presented as friendly warnings.
Double D. Construction Group, Inc., 339 NLRB 303 (2003): The test for threats is objective, focusing on whether the words would reasonably coerce an employee.
Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for cases alleging discriminatory motives by employers.
Intertape Polymer Corp., 372 NLRB No. 133 (2023): Circumstantial evidence, including timing and prior practices, can demonstrate discriminatory intent.
Power Up Electrical Contractors, LLC, 374 NLRB No. 12, 14-RC-318552 (Published Board Decision)
In 2023, IBEW Locals filed petitions to represent electricians at two companies - Power Up Electrical Contractors and Habco Partnership. These electricians were already represented by the Mid-America Carpenters Regional Council (MACRC). Both companies were members of the Associated Electrical Contractors of St. Louis (AEC).
The employers, MACRC, and AEC opposed the petitions, arguing that the electricians could only be represented as part of a larger multi-employer unit. The Regional Director agreed and dismissed the petitions.
The case history traced back to 2007-2008, when the Carpenters created Local 57 to represent electricians. In response, local electrical contractors formed AEC. Habco signed a bargaining rights assignment to AEC in 2008, and Power Up did the same in 2011. Over the years, AEC entered into several collective bargaining agreements with the Carpenters union.
However, when examining the evidence, the NLRB found significant gaps:
Despite AEC claiming eight employer members, only Power Up and Habco were identified in the record
There were no assignment forms from other employers
The record lacked details about negotiations or other employers adopting AEC contracts
When Power Up and Habco originally recognized the Carpenters union, the recognition documents described separate single-employer units, not a multi-employer unit
The NLRB reversed the Regional Director's dismissal. They concluded that while Power Up and Habco showed some evidence of multi-employer bargaining, this wasn't enough to overcome the presumption that single-employer units are appropriate. The opposing parties failed to prove a clear history of multi-employer bargaining that would make single-employer units inappropriate.
Significant Cases Cited
NLRB v. Truck Drivers Local 449 (Buffalo Linen), 353 U.S. 87 (1957) - Supreme Court approved importance of multi-employer bargaining in promoting labor peace
Sands Point Nursing Home, 319 NLRB 390 (1995) - Party seeking to rebut presumptively appropriate single-employer unit bears burden of showing controlling history of multi-employer bargaining
Hunts Point Recycling Corp., 301 NLRB 751 (1991) - Demonstrating multi-employer unit requires showing unequivocal intent to be bound by group bargaining
Southwest Florida Symphony Orchestra and Chorus Association, Inc., 373 NLRB No. 150, 12-CA-272243 (Published Board Decision)
The Southwest Florida Symphony Orchestra and American Federation of Musicians Local 427-721 had maintained a bargaining relationship for 13 years. After their contract expired in September 2019, they engaged in 14 bargaining sessions, with significant changes to proposals occurring after COVID-19 emerged in April 2020.
The Symphony presented what it deemed a last, best, and final offer in July 2020. The Union surveyed its members and made counterproposals, leading to further movement from both parties through September. At the final September 30 session, the Symphony made another last, best, and final offer and requested a membership vote. The members rejected the offer.
On October 19, 2020, the parties had a phone call where Union negotiator Owen informed the Symphony of the failed ratification. The exact content of the remainder of this call became disputed. On October 26, the Symphony declared impasse and announced it would implement its final offer.
Administrative Law Judge Amchan found a valid impasse existed, focusing on whether there was "objectively any room for movement." He declined to fully credit testimony about requests for additional bargaining, finding insufficient corroborating evidence.
The NLRB reversed. While accepting the judge's credibility determinations, the Board found additional factual findings warranted based on undisputed testimony. The Board emphasized that the Symphony had not met its burden of proving impasse, noting the recent progress in bargaining and the Union's stated plan to survey members - a process that had previously generated new proposals.
The Board ordered the Symphony to rescind changes implemented after declaring impasse, restore previous terms upon request, make employees whole for losses, and resume bargaining. The Board included a temporary bar on challenging the Union's status to allow time for meaningful negotiations.
Throughout its analysis, the Board applied the impasse factors from Taft Broadcasting: bargaining history, good faith, length of negotiations, importance of issues, and parties' contemporaneous understanding of the state of negotiations. The Board concluded that given the context of ongoing movement and the Union's intended next steps, the Symphony failed to establish that further bargaining would have been futile.
Significant Cases Cited
Taft Broadcasting Co., 163 NLRB 475 (1967): An impasse occurs only when negotiations exhaust the prospects of agreement, and both parties reasonably believe further discussions would be futile.
Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539 (1988): Defines impasse as the exhaustion of agreement prospects.
Stein Industries, Inc., 365 NLRB 227 (2017): Concessions and evidence of continued willingness to negotiate negate the existence of an impasse.
Grinnell Fire Protection Systems Co., 328 NLRB 585 (1999): A party's willingness to compromise further precludes a finding of impasse.
Starbucks Corporation, 374 NLRB No. 14, 14-CA-300065 (Published Board Decision)
In 2022, employees at a Starbucks store in Wichita, Kansas began discussing unionization. In April 2022, store manager Carmella Neri held mandatory one-on-one Performance Development Conversations (PDC meetings) with employees. During these meetings, Neri told employees she was aware of union organizing at the store. She also told employees, including a pregnant employee, that their benefits could not be guaranteed if they unionized.
The union filed a petition to represent the store's employees in May 2022. After this, the store's assistant manager told an employee that the hiring portal was closed because of union activity. The store manager also told employees that store hours were reduced due to union activity.
The case went before an Administrative Law Judge, who found these actions violated labor law. The judge recommended broad remedies including a notice reading requirement.
The NLRB reviewed the case and agreed that Starbucks violated the law by:
Creating an impression it was watching employees' union activities
Threatening loss of benefits
Blaming union activity for closing the hiring portal and reducing hours
However, the Board majority reduced the recommended remedies, ordering a narrower cease-and-desist order. One Board member dissented on the surveillance finding, arguing that management only showed general awareness of union activity. Another member dissented on reducing the remedies, citing Starbucks' repeated violations in other cases.
Significant Cases Cited
Babcock & Wilcox Co., 77 NLRB 577 (1948): Established that employers may lawfully hold mandatory meetings to discuss unionization (recently overruled prospectively in Amazon.com Services).
Standard Dry Wall Products, 91 NLRB 544 (1950): Set standard that ALJ credibility findings won't be overruled unless clear preponderance of evidence shows they're incorrect.
Hickmott Foods, 242 NLRB 1357 (1979): Established that broad cease-and-desist orders are warranted when respondent shows proclivity to violate Act or demonstrates general disregard for employee rights.
Promedica Health Systems, 343 NLRB 1351 (2004): Found impression of surveillance where employer indicated knowledge of union activity but refused to disclose source.