Tesla Workers File Charges with National Labor Board as Battle with Elon Musk Intensifies.
David Dayen April 20, 2017
Employees fight back as Tesla ramps up anti-union policies.
Capital & Main is an award-winning publication that reports from California on economic, political and social issues. The American Prospect is co-publishing this piece.
Workers at Tesla’s Fremont, California, electric car factory have filed an unfair labor practice charge with the National Labor Relations Board (NLRB), accusing the company of illegal surveillance, coercion, intimidation, and prevention of worker communications. The employees, who have been attempting to organize the approximately 7,000 workers at the plant through the United Auto Workers, claim that Tesla violated multiple sections of the National Labor Relations Act, which protects the right to unionize.
“I know my rights, and I know that we acted within them,” said Jonathan Galescu, a body repair technician. Galescu and his colleagues have previously cited low pay, hazardous work conditions, and a culture of intimidation as motivations to unionize the plant.
On February 10, several Tesla employees passed out flyers to their colleagues during a shift change. The literature featured a blog post from Medium written by Jose Moran, a Tesla production associate on the body-line. Moran’s post was the first public acknowledgment that some workers at Tesla were interested in organizing a union.
According to the NLRB complaint obtained by Capital & Main, managers at Tesla “conduct[ed] surveillance” on the workers who passed out the literature, and those who received the flyers. A month later, on March 23, Tesla management held a meeting, telling workers “they were not allowed to pass out any literature unless it was pre-approved by the Employer,” the complaint reads.
“We should have the right to distribute information to our co-workers without intimidation,” said Michael Sanchez, who works on door panels at the factory and has joined the unionizing effort. “You can’t fix problems if you’re not allowed to talk about them.”
Employees also object in the complaint to a confidentiality agreement presented last November, which vowed consequences (including “loss of employment” and “possible criminal prosecution”) for speaking publicly or to the media regarding “everything that you work on, learn about, or observe in your work about Tesla”—including wages and working conditions. Confidentiality agreements are common in auto factories to protect trade secrets, but Tesla’s was so far-reaching that five members of the California legislature wrote to the company, warning that the agreement violated protected employee activity.
Nearly 60 organizations, most from the Bay Area, also recently wrote to Tesla CEO Elon Musk, demanding that the company loosen the confidentiality policy. Now, the employees charge that the policy violates the law.
“This confidentiality agreement is clearly in violation of the Wagner Act and recent NLRB rulings,” said labor historian Nelson Lichtenstein
“This confidentiality agreement is clearly in violation of the Wagner Act and recent NLRB rulings,” said labor historian Nelson Lichtenstein of the University of California, Santa Barbara. “The prohibition about discussing one’s work would make it impossible to engage in freedom of assembly and communication with others seeking to engage in concerted activities protected by labor law.” The prohibitions remain in place even if the employee is no longer working at Tesla, which Lichtenstein called “arrogance personified.”
Tesla spokesman Dave Arnold did not respond to a request for comment about the NLRB filing.
The NLRB’s regional office in Oakland has been assigned to gather evidence and take affidavits about the charge. Typically the process takes seven to 12 weeks. If the agency finds enough evidence to support the charge, it can facilitate a settlement or elevate the case to an administrative law judge, who mandates informational postings at the facility. If the charges are deemed serious enough, the agency can seek an injunction in federal court. The NLRB cannot issue monetary penalties in this kind of proceeding.
The filing of charges reflects growing labor tensions for Tesla. Musk has thus far resisted efforts to allow a union at the Fremont plant, saying, “There are really only disadvantages for someone to want the UAW here.” Furthermore, Tesla faces a possible strike at its robotics factory in Germany.
Unrest could very well grow in Fremont as Tesla looks to ramp up auto production with the introduction of the Model 3, going from approximately 100,000 cars per year to 500,000.
Tesla’s market capitalization recently passed Ford and General Motors, making it America’s most valuable auto company. But the Fremont plant is the only stateside factory owned by a U.S. automaker that uses non-union workers.
“I’m hopeful that the company will take a more positive view of workers’ opinions and feedback, and that management and workers can improve company processes—and safety—by working together,” said Fremont employee Galescu.
April 20, 2017
NLRB Decision Reminds Employers to Tread Cautiously Amidst Union Push
On April 13, 2017 the National Labor Relations Board (NLRB) set aside a vote defeating a union organizing campaign and ordered a new election because the workforce could have perceived management’s statements as impermissible promises to provide benefits if they voted down the union (see full decision here).
During a unionizing campaign, management held a meeting in which it advised employees that another facility’s employees received a 12% pay raise the pay period after they rejected union representation. Management explained that the raises were the result of a survey of wages in that geographical area and stated that the company was in the early stages of conducting a similar survey in their area. All of these statements were true.
Management then opined that if the union won the election, any pay raise could take “a whole lot longer” – perhaps 6 months, a year, 18 months, and that there was a “really big chance” that they might not get the raise at all or could end up losing money. Finally, management added that although they were not promising anything, they planned to follow the same process and therefore, a “reasonable man” could expect a 12% increase.
A PowerPoint presentation shown during the meeting stated that the company was not making promises, the wage survey would continue regardless of the election outcome, the collective-bargaining process could result in wages going up or down or remaining the same, and included a hypothetical in which the union won the election and employees received a 12% raise.
The NLRB concluded that despite repeatedly stating that they were not making any promises, management implied that employees would receive a benefit if they defeated the union. Quoting a 1978 decision, the NLRB stated: “it is immaterial that an employer professes that he cannot make any promises, if in fact he expressly or impliedly indicates that specific benefits will be granted.
All employers are prohibited from interfering with, restraining, or coercing employees regarding their right to join a union. Prohibited conduct includes:
- Providing or promising (expressly or implicitly) to provide benefits in an effort to thwart the unionization effort;
- Withholding benefits that would have been provided absent the unionization campaign;
- Taking or threatening adverse action for union involvement or sympathies;
- Questioning employees about their union loyalties or that of their co-workers; and
- Spying on union activities.
This list is not exhaustive. If you suspect an organizing campaign, exercise extreme caution and seek expert advice immediately.
Union Body Count and Big Spending
Barnes & Thornburg LLP – Keith Brodie USA April 14 2017
Last year, some of the country’s biggest unions continue to hemorrhage membership, while others spent big dollars on organizing for modest gains in membership. In 2016, the union membership body count was not insignificant. According to LM2 filings:
- Steelworkers lost 20,000 members
- United Food and Commercial Workers (UFCW) lost nearly 14,000 members
- Teamsters lost almost 5,800 members
- Machinists lost nearly 5,500 members
This continues a trend seen over the last decades. The repeated losses also are consistent with the findings of the federal government’s Bureau of Labor Statistics, which show that public sector and private industry union membership declined by nearly 120,000 members. These are large numbers; especially considering that each lost member signals a further loss in union dues revenue.
The news of course isn’t all bad. Other large unions did grow, but only modestly. For example, the United Automobile Workers (UAW) showed net growth of 7,324 members, however the union paid for these rather small gains. News reports and the UAW’s LM2 shows it targeted large universities to find new members, an area that became even more fertile after the NLRB’s Aug. 22, 2016, decision that graduate students working as teaching or research assistants at private universities are employees under the National Labor Relations Act (NLRA) and can be organized. Forays into these sometimes foreign organizing territories (yes, the UAW representing professors and college research assistants make for strange bed fellows) have not come cheap. The UAW LM2 shows it spent $704,967 on organizing Barnard College professors and invested another $294,551 for public relations help organizing the grad students at Columbia University. Just totaling these two expenditures and spreading them across the 7,324 new members the UAW gained in 2016 demonstrates a whopping $136,000 spent for each new member.
Unions also continued big spending to push political agendas. The largest unions’ LM2s show that unions spent between $3.7 million (the Machinists) and $61 million (Service Employees International Union) on 2016 political activities; mostly in support of Democrats, Hillary Clinton’s presidential campaign or progressive issues. Despite such spending, other data and anecdotal evidence shows there was strong support for now-President Trump among union members. This may demonstrate a further gap between union members and the organizations they pay dues for representing them. In fact, an August 2016 Rasmussen poll showed that union leaders are generally viewed as out of touch with members. What impact this trend may have remains to be seen.
Summary of NLRB Decisions for Week of April 3 – 7, 2017
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
Saint Xavier University (13-RC-092296; 365 NLRB No. 54) Chicago, IL, April 6, 2017.
The Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting) found that the Board has jurisdiction over housekeepers employed by the Employer, a self-identified religious educational institution. Applying Hanna Boys Center, 284 NLRB 1080 (1987), the Board found that it will assert jurisdiction over the non-teaching employees of religious institutions or nonprofit religious organizations unless their actual duties and responsibilities require them to perform a specific role in fulfilling the religious mission of the institution. Regarding the petitioned-for housekeepers, the Board found that they do not have any teaching role or perform any specific religious duties or functions and are confined to the secular role of providing cleaning services to the Employer. Under these circumstances, the Board found that the exercise of jurisdiction would not create “serious constitutional questions” of the type the Supreme Court sought to avoid in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). Acting Chairman Miscimarra, dissenting, would decline jurisdiction over the Employer, a religiously affiliated institution, to avoid potentially interfering with rights protected by the Religion Clauses of the First Amendment. He would apply the standard announced by the D.C. Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) to all cases involving religiously affiliated institutions, whether or not the petitioned-for employees have faculty or non-faculty status, and would find that the Board is precluded from asserting jurisdiction here.
Petitioner – Service Employees International Union, Local 1. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Security Walls, LLC (13-CA-114946; 365 NLRB No. 52) Lemont, IL, April 6, 2017.
The Board, acting on the parties’ joint stipulation of facts, dismissed the complaint, which was pending at the time the Board issued its decision in Total Security Management, Inc., 364 NLRB No. 106 (2016). Total Security established that an employer violates Section 8(a)(5) if, prior to reaching a first collective-bargaining agreement with a newly recognized union, it issues a disciplinary termination without bargaining, but applied this new requirement prospectively only. Given Total Security’s prospective-only application, the Board found that the Respondent here did not violate Section 8(a)(5) and (1) as alleged by disciplining an employee without first giving the Union, which had been recognized by the Respondent but had not yet finished negotiating a collective-bargaining agreement, notice and an opportunity to bargain over the discipline. Acting Chairman Miscimarra indicated his disagreement with Total Security for the reasons explained in his dissent in that case.
Charge filed by International Union, Security, Police, and Fire Professionals of America (SPFPA) and its Local No. 554. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Wolf Creek Nuclear Operating Corporation (14-RC-168543; 365 NLRB No. 55) Burlington, KS, April 7, 2017.
The Board (Acting Chairman Miscimarra and Member McFerran; Member Pearce, dissenting) granted in part and denied in part, without prejudice, the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election, and remanded the case to the Regional Director for further appropriate action.
In granting the Employer’s request for review of the Regional Director’s application of the res judicata doctrine, Acting Chairman Miscimarra and Member McFerran found that (i) the Regional Director misstated the procedural history of an earlier unit-clarification proceeding (Case 17-UC-210) that addressed the employee status of the petitioned-for buyers in the instant case; (ii) the Board has explicitly held that previous decisions and rulings in representation cases have preclusive effect in subsequent representation cases involving the same parties; and (iii) the prior Acting Regional Director’s decision in Case 17-UC-210 is a final decision that may have preclusive effect in this representation proceeding, unless the Petitioner satisfies its burden of presenting new factual circumstances that would vitiate the preclusive effect of the earlier ruling. The majority held that there must be an affirmative finding of material changed circumstances when an identical issue was decided in an earlier proceeding involving the same parties, and remanded the case to the Regional Director to make and support such a finding. Acting Chairman Miscimarra and Member McFerran denied without prejudice that portion of the Employer’s Request for Review challenging the Regional Director’s finding, on the current record, that the petitioned-for buyers are employees, and not managerial employees.
In dissent, Member Pearce rejected the Employer’s argument that the doctrine of res judicata and Section 102.67(g) of the Board’s Rules and Regulations apply to this proceeding, and found that the Regional Director did not err in permitting litigation of the employee-status issue. He noted that the party raising res judicata as an affirmative defense to litigation—here, the Employer—bears the burden of proving that its defense is justified. Noting further that the procurement process described by the Acting Regional Director in Case 17-UC-210 stands in stark contrast to the Regional Director’s description of the current process, and that the Employer concedes changes, Member Pearce found that the Employer failed to establish its affirmative defense. In rejecting the Employer’s contention that Section 102.67(g) of the Board’s Rules and Regulations applies to this proceeding, Member Pearce noted that the rule only precludes parties from relitigating representation issues “in any related subsequent unfair labor practice proceeding.” In his view, the Employer provided no basis for granting review of the Regional Director’s finding that the Employer’s buyers are employees; therefore, he would deny the Employer’s Request for Review.
Petitioner – International Brotherhood of Electrical Workers, Local 225. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Matson Terminals, Inc. (20-CA-187970; 365 NLRB No. 56) Hilo, HI, April 7, 2017.
The Board granted the General Counsel’s motion for summary judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. Acting Chairman Miscimarra noted that he would have granted review in the underlying representation case as to whether the petitioned-for supervisors and senior supervisors possess supervisory authority under Section 2(11). However, he agreed that the Respondent did not present any new matters that were properly litigable in this unfair labor practice proceeding, and that summary judgment was thus appropriate.
Charge filed by Hawaii Teamsters & Allied Workers Union, Local 996. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Tramont Manufacturing, LLC (18-CA-155608; 365 NLRB No. 59) Milwaukee, WI, April 7, 2017.
Upon remand from the D.C. Circuit, the Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain over the effects of its decision to lay off 12 unit employees. The Board reaffirmed that it adheres to the “clear and unmistakable” waiver standard and that the Respondent had not demonstrated clear and unmistakable waiver because its employee handbook was not sufficiently specific about the effects of any layoffs. The Board also noted that, even under the contract coverage analysis, which the Respondent urged the Board to apply and which the D.C. Circuit applies, there could not be waiver because the parties did not bargain over the handbook, which the Respondent unilaterally implemented as a successor employer.
Charge filed by United Electrical, Radio, and Machine Workers of America, Local 1103. Administrative Law Judge Sharon Levinson Steckler issued her decision on January 28, 2016. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
McCabe, Hamilton & Renny Co., Ltd. (20-RC-175876) Honolulu, HI, April 3, 2017. The Board denied the Employer’s Motion for Reconsideration of the Board’s December 21, 2016 Order denying the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election. The Board found that the motion was untimely under Section 102.65(e)(2) of the Board’s Rules and Regulations, and that, even were it timely filed, the Employer did not demonstrate extraordinary circumstances warranting reconsideration under Section 102.65(e)(1). Acting Chairman Miscimarra noted that he partially dissented from the denial of the Employer’s Request for Review, as he would have granted review with regards to whether the operations supervisors possessed the authority to assign, responsibly direct, adjust grievances, and reward employees, but he agreed with his colleagues that the Employer’s motion was neither timely nor presented extraordinary circumstances warranting reconsideration. Petitioner – Working Foremen’s and Working Supervisors’ Union, Local 100, International Longshore & Warehouse Union. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Cytec Process Materials (CA), Inc./Source One Staffing, LLC (21-RC-185937) Santa Fe Springs, CA, April 4, 2017. The Board granted the Employer’s Request for Review of the Regional Director’s Corrected Certification of Representative, vacated the election results, and directed a second election with appropriate Armour-Globe self-determination language to be included in the Notice of Election. Petitioner – International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 725. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
XPO Logistics Freight, Inc. (13-RC-184190) Aurora, IL, April 6, 2017. The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative as it raised no substantial issues warranting review. Acting Chairman Miscimarra dissented, as he concluded the Employer’s objections raised factual issues warranting review. Acting Chairman Miscimarra also restated his disagreement with the Board’s standard for determining whether third-party threats warrant setting aside an election and his disagreement with the Board’s Final Rule. Petitioner – Teamsters Local Union No. 179. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
Bridgestone Americas Tire Operations, LLC (10-CA-181740) La Vergne, TN, April 3, 2017. The Board approved a formal settlement stipulation between the Respondent, the Charging Party, and the General Counsel, and specified actions the Respondent must take to comply with the Act. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International, AFL-CIO, CLC and its Local 1055L. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
International Longshoremen’s Association, Local 28 (Ceres Gulf, Inc.) (16-CB-181716 and 16-CB-194603) Seabrook, TX, April 3, 2017. The Board denied the Respondent’s request, made pursuant to Section 102.31(c) of the Board’s Rules and Regulations, that the Board issue an order compelling a witness to testify or provide other information in this proceeding. Based on the information submitted, the Board found that it does not appear that the testimony or other information sought is “necessary to the public interest” within the meaning of Section 102.31(c) of the Rules. The Board stated that, at the hearing, all parties may present whatever admissible evidence is available to them and make any appropriate legal arguments, including arguments concerning what, if any, inferences should be drawn based on any assertion of the privilege against self-incrimination. Charges filed by an individual. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Universal Security, Inc. (13-CA-178494 and 13-CA-182708) Chicago, IL, April 3, 2017. The Board denied the Respondent’s Motion for Partial Summary Judgment with respect to the complaint allegations relating to the Respondent’s revised uniform and lanyard policy, without prejudice to the Respondent’s right to renew its arguments to the Administrative Law Judge and before the Board on any exceptions that may be filed to the judge’s decision, if appropriate, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Acting Chairman Miscimarra noted that he agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), the General Counsel explained in extensive detail why, based on material facts that are genuinely in dispute, a hearing is required. Charges filed by Service Employees International Union Local 1. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Universal Security, Inc. (13-CA-178494 and 13-CA-182708) Chicago, IL, April 4, 2017. The Board denied the Respondent’s Motion for Partial Summary Judgment without prejudice to the Respondent’s right to renew its arguments to the Administrative Law Judge and before the Board on any exceptions that may be filed to the judge’s decision, if appropriate, finding that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. Acting Chairman Miscimarra noted that he agreed with the denial of the Respondent’s motion because here, consistent with his concurring position in L’Hoist North America of Tennessee, Inc., 362 NLRB No. 110 (2015), the General Counsel explained in extensive detail why, based on material facts that are genuinely in dispute, a hearing is required. Charges filed by Service Employees International Union Local 1. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Hollingsworth Logistics Group, LLC (07-CA-183283) Temperance, MI, April 6, 2017. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. In considering the petition to revoke, the Board majority (Members Pearce and McFerran) evaluated the subpoena as clarified by the Region, which stated that it did not seek personal or private information, such as social security numbers or dates of birth, that may be included on job applications and that it informed the Employer that it was willing to reach an accommodation to redact that information. Acting Chairman Miscimarra, dissenting in part, would have granted the petition to revoke with respect to the subpoena requests that encompassed personal identification information. He also would have granted the petition with regard to the requests for information concerning “all personnel” or “all employees,” to the extent that they encompass non-statutory employees. In his view, when subpoena requests are overly broad or otherwise seek information that does not reasonably relate to matters under investigation, and when a subpoenaed party’s petition to revoke raises appropriate objections to the requests on that basis, it is more appropriate for the Board to grant the petition to revoke as to such requests, rather than to deny the petition to revoke based on changes that are communicated only in briefs submitted after the petition to revoke is under consideration by the Board. Charge filed by American Postal Workers Union, AFL-CIO. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Fairview Health of Greenwich (01-CA-182111) Greenwich, CT, April 6, 2017. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. In considering the petition to revoke, the Board majority (Members Pearce and McFerran) noted the Region’s statement that it would work with the Employer to limit the disclosure of any information protected by the Health Insurance Portability and Accountability Act (HIPAA). The majority further disagreed with their dissenting colleague regarding the subpoena request for rules, regulations, and policies in effect at Fairview Health of Greenwich, finding that the request is relevant to the specific alleged violations articulated in the unfair labor practice charge in light of the Employer’s refusal to voluntarily provide evidence as to why the Charging Party was removed from her job or disciplined. Acting Chairman Miscimarra, dissenting in part, would have granted the petition to revoke as to those subpoena paragraphs that the Employer notes were broad enough to encompass medical information of residents, which may be protected by HIPAA, stating that he disagrees with the Board’s practice that often permits an overly broad subpoena request to be “clarified” by the Region after a party has filed a meritorious petition to revoke. He would also grant the petition to revoke as to the subpoena paragraph requesting rules, regulations, and policies, except for those that reasonably relate to the charge allegations. Charge filed by an individual. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
United States Roofing Corporation/American Metal Contractors, Inc. (04-CA-187024) Norristown, PA, April 6, 2017. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, finding that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART), Sheet Metal Workers Local 19. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Stratosphere Gaming LLC d/b/a Stratosphere Casino, Hotel & Tower (28-CA-140123) Las Vegas, NV, April 7, 2017. No exceptions having been filed to the February 23, 2017 decision of Administrative Law Judge Kimberly R. Sorg-Graves’ finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint. Charge filed by an individual.
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Appellate Court Decisions
Thesis Painting, Inc., Board Case No. 05-CA-172905 (reported at 364 NLRB No. 53) (4th Cir. decided April 7, 2017)
In an unpublished per curiam opinion, the Court enforced the Board’s bargaining order issued against this commercial painter in the Washington, D.C. metropolitan area for refusing to bargain with the International Union of Painters and Allied Trades, District Council 5, after its painters voted 21 to 11 in favor of union representation in a July 2015 election. After the election, the Employer filed objections alleging that two former employees were union agents who engaged in improper electioneering or surveillance and that their actions warranted overturning the election. The Hearing Officer issued a report concluding that the two former employees were not union agents, and, applying the standard for third-party misconduct, found that the Employer failed to establish that their conduct tended to interfere with employee free choice. The Regional Director affirmed, and issued a decision and certification of representative. The Employer requested review, which the Board denied. Subsequently, the Employer refused to bargain in order to seek review of the certification. On review, the Court held that substantial evidence supported the Board’s factual findings and that the Board’s legal conclusions were rational and consistent with the Act.
The Court’s unpublished decision is here.
Missouri Red Quarries, Inc., Board Case No. 14-CA-165057 (reported at 363 NLRB No. 102) (8th Cir. decided April 6, 2017)
In a published opinion, the Eighth Circuit enforced the Board’s technical 8(a)(5) bargaining order against this operator of a granite quarry in Ironton, Missouri. In doing so, the Court upheld the Board’s finding that the voter who cast a challenged ballot in the election was a supervisor under Section 2(11) and thus ineligible to vote.
In the underlying representation case, the Eastern Missouri Laborers’ District Council petitioned to represent the production and maintenance employees at the Ironton facility. In May 2015, an election was held that resulted in a 5 to 4 vote in favor of representation, with one ballot challenged by the Union on the ground that it was cast by a statutory supervisor. The challenged ballot was sufficient to affect the election outcome because, if it were opened and found to be cast against the Union, the final tally would be a 5 to 5 tie. After a hearing was held to adduce evidence on the challenged ballot, the Hearing Officer issued a report finding that the voter was not a statutory supervisor. On exceptions filed by the Union, the Regional Director reversed, sustained the challenge to the ballot, and certified the Union. Thereafter, the Employer filed a request for review of the Regional Director’s decision, which the Board denied. The Employer refused to bargain to seek court review of the certification.
In agreement with the Board, the Court (Circuit Judges Riley and Murphy; Circuit Judge Smith dissenting) concluded that the individual in question was a statutory supervisor because he exercised independent judgment in effectively recommending employees for hire. Specifically, the Court noted that the individual had initiated the hiring of two employees whom he knew personally, spoke to both before they were hired, made sure they completed their paperwork and drug tests—all while the off-site owner made no independent investigation or assessment of their qualifications. In addition, the Court held that the record contained secondary indicia in support of a finding of supervisory status, noting that if the individual were not a supervisor, the quarry would be left without on-site supervision for many weeks at a time, and that employees perceived him to be a supervisor.
In a dissenting opinion, Judge Smith wrote to express his view that the individual did not possess the necessary delegated authority to be a supervisor, and that the record evidence did not support that he exercised independent judgment in effectively recommending hire. In particular, Judge Smith criticized the majority for its classification of the individual’s personal familiarity with the two persons hired as an independent basis for assessing their qualifications.
The Court’s opinion is here (link is external).
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Administrative Law Judge Decisions
United Site Services of California, Inc. (20-CA-139280 and 20-CA-149509; JD(SF)-13-17) Benicia, CA. Administrative Law Judge Dickie Montemayor issued his decision on April 3, 2017. Charges filed by Teamsters Local 315, IBT.
T-Mobile USA, Inc. (14-CA-170229; JD-23-17) Wichita, KS. Administrative Law Judge Sharon Levinson Steckler issued her decision on April 3, 2017. Charge filed by Communication Workers of America, AFL-CIO.
Natural Life, Inc. d/b/a Heart and Weight Institute (28-CA-181573; JD-22-17) Las Vegas, NV. Administrative Law Judge Ira Sandron issued his decision on April 5, 2017. Charge filed by an individual.
Watco Transloading, LLC (04-CA-136562, et al.; JD-20-17) Philadelphia, PA. Administrative Law Judge Susan A. Flynn issued her decision on April 5, 2017. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, USW Local 10-1 and an individual.
Ashford Presbyterian Community Hospital (12-CA-165682; JD-21-17) San Juan, PR. Administrative Law Judge Geoffrey Carter issued his decision on April 6, 2017. Charge filed by Federacion Puertorriquena de Trabajadores (FPT).
Rich Products (10-CA-169627 and 10-CA-178498; JD(NY)-06-17) Murfreesboro, TN. Administrative Law Judge Jeffrey P. Gardner issued his decision on April 6, 2017. Charges filed by an individual.