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LawMemo publishes Employment Law Memo.

11/28/2003
by Ross Runkel at LawMemo

NLRB Law Memo 11/28/2003
by
LawMemo.Com

NLRB - Staff summarized 5 decisions.

Allen's Electric Co., Inc. (16-RC-10472; 340 NLRB No. 119) Travis, et al., TX Nov. 19, 2003.

Members Liebman and Walsh certified Electrical Workers IBEW Local 520 as the exclusive representative of all electrical workers employed by Allen's Electric Co. in various counties in the State of Texas. The results for the election held January 7, 2003 shows 13 for and 7 against the Union. The majority affirmed the hearing officer's recommendation and overruled the Employer's Objection to the Union's promises and payments to voters to reimburse them for wages lost while they voted. The Employer failed to prove that the Union's conduct had a reasonable tendency to influence voters' free choice in the election, the majority held.

Member Schaumber wrote in his dissent: "I will assume for purpose of this dissent that a party's offer to reimburse employees— in these circumstances— for lost wages is not per se objectionable. Nonetheless, I find that such an offer taints the election by unduly affecting the election's outcome if it is not made available to all employees eligible to vote." Member Schaumber agreed with his colleagues that the Union's providing an election day carpool to help voters get to the polls was not objectionable.

(Members Liebman, Schaumber, and Walsh participated.)

***

Chrill Care, Inc. (22-RC-12218; 340 NLRB No. 123) Montclair, NJ Nov. 20, 2003.

The Board overruled the Employer's objections and certified Home Health Care, 1199, AFSCME as the collective-bargaining representative of all certified home health aides employed by the Employer at its Montclair, NJ facility. The tally of ballots for the election held August 1, 2002, shows that in a unit of approximately 412 eligible voters, 174 cast votes for and 170 cast votes against the Union, with no challenged ballots.

The Board agreed with the hearing officer that the Employer presented insufficient credible evidence to support its Objection 1, alleging that the Union engaged in intimidating or coercive conduct, and its Objection 2, which alleged that the Union engaged in objectionable conduct by photographing employees who came to the Employer's premises to vote in the election.

The Employer's Objection 3 alleged that the Union engaged in objectionable conduct by picketing or otherwise demonstrating on the date of the election at the Employer's place of business, thus blocking or intimidating employees who appeared to vote, and by recording the names of employees who appeared to vote. The Board agreed with the hearing officer that there is no evidence that any unit employee's access to the business, the Employer's premises, or the voting area was inhibited or blocked more than momentarily. Turning to the allegation of note taking or recording of voter's names, the Board agreed with the hearing officer, who found no evidence that any eligible voter witnessed the list keeping and, accordingly that no eligible voter could have been coerced by the Union's conduct.

The Board, in overruling the Employer's Objection 6, agreed with the hearing officer that employees witnessing union organizer Ramjas' conduct at an Employer offsite meeting about 2 weeks before the election, would not reasonably have felt coerced in the exercise of their free choice in the election. Ramjas briefly disputed the meeting and initially resisted the Employer's efforts to eject her, but was ultimately persuaded to leave once the police were called. The Board wrote: "We agree with the hearing officer that, rather than give employees the impression that the Employer was powerless against the force of the Union, this incident would be more likely to convince employees that the Employer was fully able to maintain control."

The Board adopted, in the absence of exceptions, the hearing officer's recommendations to overrule the Employer's Objections 4 and 5.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

Detroit Newspaper Agency, d/ b/ a Detroit Newspapers (7-CA-40270, et al.; 340 NLRB No. 121) Detroit, MI Nov. 21, 2003.

The Board adopted, absent exceptions, the administrative law judge's findings that the Respondent's discharges of James Schafranek in Case 7-CA-40556 and Gerald Kociemba in Case 7-CA-40331 violated Section 8( a)( 1) and (3) of the Act.

The Respondent is a joint operating partnership of the Detroit News and Detroit Free Press, two Detroit area newspapers. The Board accepted as the law of the case the D. C. Circuit's decision that a strike by the Respondent's employees (and the employees of the Detroit News and Detroit Free Press) was an economic strike. Detroit Typographical Union No. 18 v. NLRB, 216 F. 3d 109 (2000), motion for reconsideration denied by unpublished decision (Aug. 31, 2000). The judge had issued his decision in the instant case before the Court granted the Respondents' petition for review and rejected the Board's finding at 326 NLRB 700 that unfair labor practices had caused the strike.

Members Liebman and Walsh revised the judge's remedy and recommended Order to grant the discriminatees the rights of returning economic strikers. Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F. 2d 99 (7th Cir. 1969), cert. denied 397 U. S. 920 (1970). They noted that their accompanying cease-and-desist order for the finding that the discharges of Kociemba and Schafranek violated Section 8( a)( 1), is consistent with the Board's longstanding practice where a violation is found under NLRB v. Burnup & Sims, Inc., 379 U. S. 21 (1964). Addressing Member Schaumber's disagreement with the cease-and-desist order, Members Liebman and Walsh wrote: "We see no reason for revisiting this practice here, particularly where the Respondent has not excepted either to the finding of the violation or to the remedy."

In his partial dissent, Member Schaumber said his colleagues' issuance of a cease-and-desist order lacked a rational basis. He pointed out that all three Members agreed with the judge's finding that the Respondent held a good-faith but mistaken belief that Kociemba and Schafranek had engaged in serious strike-related misconduct. Thus, the judge correctly found a violation, applying a Burnup & Sims analysis. Member Schaumber explained how he would revise the order, saying the Board must refashion the order in this case and similar cases to remove the threat of contempt proceedings. He wrote:

In this case and in all cases involving Burnup & Sims-type violations, there is no evidence that the employer failed to conduct an adequate investigation or otherwise prevented itself from discovering its mistake. On the contrary, the employer in these cases acts reasonably and in good faith, but errs. In effect, therefore, my colleagues order the Respondent not to make innocent mistakes in the future. It is tantamount to ordering the Respondent to be infallible. However, the absurdity of the order is not the worst of its drawbacks. A cease-and-desist order, once enforced by a court of appeals, becomes a vehicle for bringing contempt proceedings.

(Members Liebman, Schaumber, and Walsh participated.)

Charges filed by Teamsters Local 372 and Detroit Mailers Union No. 2040; complaint alleged violation of Section 8( a)( 1) and (3). Hearing at Detroit, Nov. 30 through Dec. 3, 1998 and March 18, 1999. Adm. Law Judge Richard A. Scully issued his decision March 13, 2000.

***

DHL Worldwide Express (29-RC-9845; 340 NLRB No. 122) Long Island City, NY Nov. 21, 2003.

The Board held that DHL Worldwide Express (the Employer or DHL) is engaged in commerce within the meaning of the National Labor Relations Act and remanded the case to the Regional Director for further appropriate action. DHL is engaged in the business of package delivery by air and ground. The Employer contended that the petition filed under Section 9( c) of the Act by Teamsters Local 804 should be dismissed because it is subject to the jurisdiction of the Railway Labor Act (RLA). The Board requested the National Mediation Board (NMB) to determine the applicability of the RLA to the Employer. The NMB determined that DHL is not subject to the RLA because DHL is not controlled by or under common control with a carrier and thus, the control prong of the NMB's jurisdictional test was not satisfied.

(Chairman Battista and Members Liebman and Walsh participated.)

***

A-NIV Cab Co. d/ b/ a Las Vegas Limousine (28-CA-17748, et al.; 340 NLRB No. 120) Las Vegas, NV Nov. 20, 2003.

The Board upheld the administrative law judge's recommended dismissal of the complaint, which alleged that the Respondent violated Section 8( a)( 4), (3), and (1) of the Act by suspending and discharging Stephanie Maitland and imposing more onerous conditions of employment on its drivers; Section 8( a)( 3) and (1) by suspending Maitland; and Section 8( a)( 1) by threatening employees with discharge because of their union activities and because they filed charges or gave testimony under the Act and by interrogating employees about their union activities.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Stephanie Maitland, Julio Cavalcanti, and Michael Horrocks, Individuals; complaint alleged violation of Section 8( a)( 1), (3), and (4). Hearing at Las Vegas, June 9-12, 2003. Adm. Law Judge Lana H. Parke issued her decision Aug. 22, 2003.



LawMemo publishes Employment Law Memo.

11/21/2003
by Ross Runkel at LawMemo

NLRB Law Memo 11/21/2003
by
LawMemo.Com

NLRB - Evidentiary Guidelines for Determining Supervisory Status.
http://www.lawmemo.com/nlrb/om04-09.htm

There are three significant pending cases dealing with how to decide whether an individual is an "employee" or a "supervisor." The NLRB General Counsel and others filed briefs suggesting evidentiary guidelines. This Memorandum spells out the General Counsel's suggestions.



LawMemo publishes Employment Law Memo.

11/17/2003
by Ross Runkel at LawMemo

NLRB Law Memo 11/17/2003
by
LawMemo.Com

Guide for Hearing Officers in NLRB Representation and Section 10(k) Proceedings.

http://www.nlrb.gov/nlrb/legal/manuals/hog.asp

The NLRB has posted an updated edition of the “Guide for Hearing Officers in NLRB Representation and Section 10(k) Proceedings” on the Agency’s web site. The Hearing Officers Guide is useful to persons preparing for or participating in pre-election and post-election representation case hearings and 10(k) hearings before the Agency. The last edition was published in 1993. The revised edition is substantially changed.



LawMemo publishes Employment Law Memo.

11/07/2003
by Ross Runkel at LawMemo

NLRB Law Memo 11/07/2003
by
LawMemo.Com

NLRB - Staff summarized 5 decisions.

Cooper Tire & Rubber Co. (18-RC-17081; 340 NLRB No. 108) Cedar Rapids, IA Oct. 28, 2003.

A Board majority of Members Liebman and Walsh agreed with the hearing officer's finding that the Employer engaged in objectionable conduct when it threatened unit employees with a loss of benefits if they selected Electrical Workers IBEW Local 1634 as their bargaining representative. Accordingly, Members Liebman and Walsh directed that the election of January 31, 2003, be set aside and a second election be conducted. Chairman Battista dissented. The tally of ballots for the election showed 6 votes for and 6 against, the Union, with no challenged ballots.

The hearing officer found that the Employer interfered with the election when Distribution Center Manager Todd Lemke circulated a question and answer memorandum to employees on January 27, 2003, containing the following statement regarding employee eligibility for its ROAM bonus (part of a profit-sharing program calculated from the Employer's financial results in the preceding year that is typically granted to employees in mid to late February):

QUESTION #22: If the I.B.E.W. gets in here, will we still be eligible for the ROAM bonus?

ANSWER: I don't know. Cooper has some unionized workers at other facilities and none of them participate in the ROAM bonus program. Cooper expects to announce the amount of the ROAM bonus for this year early next month. Early indications show that the ROAM bonus looks very promising this year.

Members Liebman and Walsh agreed with the hearing officer that the January 27 question and answer statement interfered with the election because it reasonably would lead employees to believe that receipt of the 2002 ROAM bonus was contingent on how they voted in the election.

Dissenting, Chairman Battista disagreed with his colleagues' finding. He said the employees reasonably understood that they definitely would receive a bonus for 2002, and that if the Union were selected, future bonuses would not necessarily be given. Chairman Battista wrote:

[E]ven if it were assumed, arguendo, that the 2002 bonus was not a 'done deal' until board of director approval, I would find that the Employer's statements were nonetheless privileged. If the Union won the election on January 31, the ROAM bonus would be subject to negotiations. . . . Thus, the Employer would be correct to say that if the Union were chosen the 2002 bonus would be uncertain.

In Chairman Battista's view, the Employer's statements were factually and legally correct and therefore, not objectionable.

(Chairman Battista and Members Liebman and Walsh participated.)

* * *

Dura Art Stone, Inc. (31-RC-8177; 340 NLRB No. 113) Fontana, CA Oct. 31, 2003.

The Employer and Intervenor No. 1's (Amalgamated Industrial Workers) joint request for review of the Regional Director's Decision and Direction of Election was denied by the Board as it raised no substantial issues warranting review. In denying review, the Board found it unnecessary to rely on the Regional Director's conclusion that the issuance by the District Court of the Temporary Injunction and Order constituted an "unusual circumstance" under Mistletoe Express, 268 NLRB 1245 (1984). The petitioning union is Electrical Workers UE and Intervenor No. 2 is Laborers Local 783.

(Members Liebman, Schaumber, and Walsh participated.)

* * *

The Lamar Co., LLC d/b/a Lamar Advertising of Janesville (30-RC-6254; 340 NLRB No. 114) Janesville, WI Oct. 31, 2003.

The Board agreed with the hearing officer's recommendation to overrule the Employer's objections 5, 6, 9, and 10 alleging that the Union (Painters Local 802) or its agents interfered with the election by promising employee Steven Jones a leather jacket if the Union won the election, engaging in electioneering, misrepresenting the election bar rule, and threatening an employee with loss of benefits. Finding no merit in objections 1, 3, and 4, the Board also adopted the hearing officer's recommendation to overrule them. Accordingly, the Board certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit. The tally of ballots for the election of January 5, 2001 showed 9 for and 7 against the Union, with no challenged ballots.

(Chairman Battista and Members Liebman and Schaumber participated.)

* * *

Plaza Properties of Michigan, Inc. a/k/a Plaza Operations, Inc. d/b/a Michigan Inn, et al. (7-CA-43711, 44205; 340 NLRB No. 115) Southfield, MI Oct. 31, 2003.

Chairman Battista and Member Schaumber denied the General Counsel's motion for default summary judgment with respect to Respondents Plaza Properties of Michigan, Inc. (PPM) a/k/a Plaza Operations, Inc. d/b/a Michigan Inn (POI), Michigan Inn, Inc. (Michigan Inn), Plaza Properties, Inc. (PPI), and J&M Hotel Management Co., L.L.C. d/b/a Clarion Ambassador Hotel a/k/a Michigan Inn (J&M) (the predecessor Respondents) and remanded the proceeding to the Regional Director for further appropriate action. Member Walsh dissented.

In denying the motion, the majority found that Respondents PPM, POI, Michigan Inn, PPI, and J&M failed to show good cause for failing to file a timely answer to the consolidated complaint, but that a significant number of the complaint allegations were insufficient to determine whether it was appropriate to find the alleged violations and what the appropriate remedy should be. They wrote: (1) the complaint failed to specify which Respondents committed which violations; (2) the complaint failed to specify the dates when many of the alleged violations occurred; (3) the complaint contained inconsistent allegations regarding when the predecessor Respondents ceased managing and controlling the facility; (4) the complaint allegations are insufficient to find that the predecessor Respondents unlawfully laid off all unit employees and closed or partially closed the facility; (5) the complaint and motion failed to explain the basis for finding that the predecessor Respondents' other alleged 8(a)(5) conduct also violated 8(a)(3); and (6) the complaint and motion also raised a number of remedial issues.

Contrary to his colleagues, Member Walsh would grant the General Counsel's motion against the predecessor Respondents that have failed to answer the complaint and would provide the General Counsel the relief he seeks. Member Walsh argued that: "In denying the General Counsel's uncontested motion for partial default judgment and sending this case back to the drawing board, the majority opinion unjustly delays any remedy for the innocent victims of the unfair labor practices committed by multiple wrongdoers three years ago." He concluded by saying that the predecessor Respondents have admitted all the allegations against them in a proper complaint and the General Counsel is entitled to a summary finding of unlawful conduct.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Hotel & Restaurant Employees Local 24; complaint alleged violation of Section 8(a)(1), (3) and (5). General Counsel filed motion for partial default summary judgment Feb. 10, 2003.

* * *

Providence College (1-CA-39493, 39547; 340 NLRB No. 111) Providence, RI Oct. 31, 2003.

In agreement with the administrative law judge, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by its denial of the day before Thanksgiving as a vacation day in retaliation for the Union's decision to take Veterans Day as a holiday in 2001; and Section 8(a)(1) and (5) by being unreasonably dilatory in turning over to the Union requested information which was relevant and necessary to carry out its collective-bargaining responsibilities and, unilaterally modifying the agreed- upon staffing arrangement for men's ice hockey games without prior notice to and affording the Union an opportunity to bargain.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Service Employees Local 134; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Pawtucket, June 10-12, 2002. Adm. Law Judge Martin J. Linsky issued his decision Nov. 14, 2002.

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