March 8, 2024: Threats and Interrogations Still Illegal. Shrewd ULP Strike.
Teamsters representative knows the law.
The NLRB put out three documents today:
3484, Inc., and 3486, Inc., 373 NLRB No. 28, 27-CA-278463 (Published Board Decision). The Board found that the employer violated Section 8(a)(1) when two of its managers interrogated different employees about union organizing activity and when one of its managers threatened that production would be moved to Canada if union activity continued. The Board also found that a subsequent strike by the workers was motivated by the threat and interrogations and was therefore an unfair labor practice (ULP) strike. Because it was a ULP strike, the employer’s subsequent refusal to reinstate the strikers violated Section 8(a)(3). The Board ordered the employer to cease and desist from these activities, post a notice, offer to reinstate the strikers, and provide them backpay.
Grow Op Farms, LLC, 19-RC-315337 (Unpublished Board Decision). The Board denied the employer’s request to review the regional director’s decision to direct a union election for a unit of sales department employees. The employer wanted the unit expanded to include a variety of other workers, but the Board applied the American Steel Construction, Inc. to conclude that the sales department employees constituted an appropriate unit. The Board also rejected the employer’s contention that the sales support supervisors should be excluded from the unit on the basis that the employer had not established that these supervisors exercise independent judgment when assigning duties.
Fred Meyer Stores, Inc., 19-RC-334047 (Regional Election Decision). The United Food and Commercial Workers (UFCW) currently represents a unit of grocery employees at a Fred Meyer store. It sought to add to that unit a group of non-grocery workers at that same store via a self-determination election. Adding a new group of workers to an existing unit requires a slightly different analysis than establishing a new unit. Specifically when adding a new group of workers to an existing unit, it must be shown that the workers “constitute an identifiable, distinct segment and share a community of interest with unit employees.” The regional director determined that these workers satisfy that requirement and directed a self-determination election.
In Mackay Radio (1938), the Supreme Court decided that, though employers cannot technically fire workers for striking, they can permanently replace them with strikebreakers. One exception to this rule is whenever workers are striking to protest an unfair labor practice (ULP). Thus, in 3484, Inc., and 3486, Inc., the fact that the workers were engaged in a ULP strike provides them reinstatement rights that workers engaged in non-ULP strikes do not have.
Naturally, this asymmetry between ULP strikes and non-ULP strikes pushes workers and their unions to try to represent strikes as ULP strikes whenever possible. This dynamic was present in this case. The ALJ decision explains that the union representative responsible for the strike, Mr. Staheli, learned about the special protections of ULP strikes at a Teamsters leadership academy many years prior and that he intentionally pegged the strike to the ULPs for this reason.
Staheli explained that before June 13, he knew the difference between an unfair labor practice strike (ULP strike) where the strikers get their jobs back and an economic strike where strikers can be replaced with other employees. Staheli confidently opined that he intended that any strike by the drivers at the 3486-movie production would be a ULP strike so the drivers could get their jobs back given the fact that he had filed the June 11 ULP charge for the drivers. Later, Staheli received instruction from the Local 399 Union Attorney Ryan Spillars to tell the drivers they were striking due to the June 11 ULP charge so it would be a ULP strike and the potential strikers would be able to get their jobs back after the strike.
This was a shrewd move and it worked.