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On October 21, 2019, the General Counsel issued Memorandum GC 20-01, announcing a new policy requiring that all affidavits, correspondence, position statements, documentary and other evidence in connection with unfair labor practice or representation cases processing in Regional offices be submitted through the Agency’s e-filing system. Electronic filing provides a streamlined procedure to automatically store case documents and use of the automated system will ensure both the integrity and accuracy of Regional office case files. A description of the reasoning behind this policy can be found in this press release, which includes a link to the GC memo.
Significant Region 13 Settlements & Decisions
Sears, Roebuck and Co.
In Sears, Roebuck and Co., 368 NLRB No. 30 (2019), the Board found that the Company violated Section 8(a)(5) of the Act by unlawfully withdrawing recognition. The Board also found that an affirmative bargaining order was necessary to fully remedy the violation in the case. The Board used a three-factor balancing test, weighing (1) employees’ Section 7 rights (2) whether other purposes of the Act override the rights of employees to choose their bargaining representative and (3) whether alternative remedies are adequate to remedy the violation of the Act, to determine that an affirmative bargaining order was in fact appropriate. The facts of the case showed that an employee went to her store manager, explained that 3 autistic employees were confused by the union, and asked if there was anything that the Company could do to protect them. In response, the manager prepared a decertification petition and left it on his desk for the employee. She obtained signatures from a majority of the unit employees, and the Company withdrew recognition while still in the certification year.
The Board found that the Company violated the Act by withdrawing recognition within the certification year. However, the Board dismissed the allegations that the Company unlawfully assisted the decertification petition and that such assistance was an additional reason the withdrawal of recognition was unlawful. The Board majority (Chairman Ring and Member Kaplan) found that the Company reasonably interpreted the employee’s question to be about decertification and, if that was not what the employee had meant, she could have simply refrained from signing and circulating the petition. In dissent, Member McFerran argued that the majority ignored the full context of the employee’s inquiry, and pointed out that there was nothing in the inquiry to indicate employees no longer wanted representation. She noted that there were many other lawful ways the Company could have responded to the inquiry, and would have found the Company provided unlawful assistance and tainted the petition.
Field Attorney Vivian Robles litigated the case and was supervised by Deputy Regional Attorney Jessica Muth. The charge was investigated by Field Examiner Cristina Ortega under the supervision of Supervisory Field Examiner Joyce Hofstra.
Zeigler Lincolnwood d/b/a Zeigler Buick GMC or Lincolnwood & Cadillac of Lincolnwood
The Administrative Law Judge in this case found that the Employer violated Sections 8(a)(1), (3), and (5) of the Act at two separate locations, including by constructively discharging two employees.
The ALJ determined that the Employer violated Section 8(a)(1) of the Act by threatening employees on four occasions. He also concluded that the Employer violated Section 8(a)(5) of the Act by implementing terms of its last, best, and final offer without having reached a bargaining impasse in negotiations with the Union for an initial collective bargaining agreement. Relatedly, he found that any unilateral changes to employees’ terms and conditions of employment resulting from the unlawful implementation also violated the Act. His findings included unilateral changes, direct dealing and refusing to execute a contract.
On the constructive discharges, the ALJ reasoned that when the Employer unlawfully eliminated a base pay guarantee and health insurance provided through the Union’s welfare plan, it confronted the employees with the Hobson’s Choice of either continuing to work or foregoing rights protected by the Act. The ALJ noted that the employees’ weekly earnings after the Employer’s unlawful implementation were sometimes substantially less, finding that their resignations were caused by the unlawful unilateral changes made by the Employer.
Field Attorney Christina Hill tried the case and was supervised by Regional Attorney Paul Hitterman. Field Examiner Jay Greenhill, supervised by Supervisory Field Examiner Paul Prokop, investigated the five underlying unfair labor practice charges.
UNITE HERE Local 1
In this case the Administrative Law Judge painstakingly combed through multiple (19) information requests the Employer made to the Union regarding the Union’s vague grievance filings, to which the Union’s boilerplate response was “you can’t be serious.” The Union asserted several different defenses, including that the requests were issued in bad faith and were burdensome, that it did not possess the information sought, and that it had no duty to conduct investigations or to provide the information in a specific form. The Judge was not persuaded by the Union’s defenses, finding instead that the Union had repeatedly violated Section 8(b)(3) of the Act.
The Judge also agreed with the Region that traditional remedies in this case were not sufficient to address the violations. Accordingly, she ordered the Union to conduct training sessions on the requirement to timely provide necessary and relevant information to employers for all of its organizers and representatives who are responsible for responding to information requests.
On a procedural note, the Judge also rescinded an evidentiary ruling allowing the Union to waive its assertion of privilege to certain documents on a limited basis and placing the documents under seal. The Judge noted that the Union had initially waived the privilege unconditionally and had failed to provide a privilege log in response to our subpoena. The Union had failed to provide any case law supporting its argument, and the Board and courts generally find a waiver of privilege when a witness refers to documents to refresh recollection, as was done in this case.
Field Attorney Elizabeth Cortez investigated and litigated the case. She was supervised by Supervisory Field Examiner Kate Gianopulos on the investigation and by Deputy Regional Attorney Jessica Muth on the trial.
Region 13 Staff Celebrate National Hispanic Heritage Month
In honor of National Hispanic Heritage Month regional staff visited the National Museum of Mexican Art on October 29, 2019. The museum is nestled in the heart of the Pilsen neighborhood and is home to one of the country’s largest Mexican art collections. The day began with staff having lunch at 5 Rabanitos followed by a quick walk over to the museum. There were 3 exhibitions on display: Día de Muertos • A Matter of Life; 40 años a la esperanza; and Woven: Connections and Meanings.
 The exhibit Día de Muertos • A Matter of Life is on display until December 8, 2019, and the remaining two are on display until early Spring 2020. Field Attorney Christina Hill, our Special Emphasis Coordinator, organized the outing.
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