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01/30/2004
by Ross Runkel at LawMemo
NLRB Law Memo 01/30/2004
by LawMemo.Com
- First in Employment Law
Unifirst Corp. (1-CA-39267, 39321; 341 NLRB No. 1) Indian Orchard, MA Jan. 16, 2004.
The Board decided to publish a previously unpublished Order in the bound volumes of its decisions.
In the unpublished Order of December 9, 2003, Members Liebman and Walsh granted the General Counsel's request to reject the Respondent's reply to the General Counsel's resubmission of its brief in support of the administrative law judge's decision. Member Schaumber dissented. Citing National Metalcrafters, 276 NLRB 90, fn. 1 (1985), the majority wrote: "The Board's Rules make no provision for a brief in reply to a brief filed in support of an administrative law judge's decision, and the Board accordingly has stricken such a reply brief." They found no special circumstances to warrant a departure from the Board's Rules and stated: "to the extent that the brief in support filed by the General Counsel contained argument that is no longer relevant, the Board, consistent with its established policy, will disregard it."
In dissent, Member Schaumber concluded: "For justice to be done, it must be done with equitable administration. In these circumstances, the Board's administration of justice is, or appears to be, inequitable, and its denial of an opportunity to respond unfair." He found that the content of the General Counsel's brief, which was not written in support of the judge's decision, but which is being submitted for that purpose, provides ample cause for accepting the Respondent's brief in reply. He would, therefore, grant the Respondent's motion for the Board to consider its reply to the General Counsel's resubmitted posthearing brief, or in the alternative, its objections to that brief.
(Members Liebman, Schaumber, and Walsh participated.)
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01/26/2004
by Ross Runkel at LawMemo
NLRB Law Memo 01/26/2004
by LawMemo.Com
- First in Employment Law
Strack and Van Til Supermarkets
d/b/a Town & Country Supermarkets and Ultra Foods, et al. and Independent Employees Union of Northwest Indiana (25-CA-25780-3, et al., 25-CB-8069-2, et al.; 340 NLRB No. 172) Portage, Valparaiso, and Merrillville, IN Jan. 14, 2004.The administrative law judge found, and the Board agreed, that Independent Employees Union (IEU) violated Section 8(b)(1)(A) and 8(b)(2) of the Act by requesting that Strack and Van Til Supermarkets d/b/a Town & Country Supermarkets and Ultra Foods (Strack) suspend and discharge Annette Peters because of her dissident union activity and that Strack violated Section 8(a)(1) by: (1) prohibiting employees from picketing and handbilling on behalf of Food and Commercial Workers Locals 700 and 881 near the entrance and exit of its stores, threatening employees with arrest for doing so, and causing the arrest of one employee engaged in such activity; (2) engaging in surveillance of employees' union picketing and handbilling; and (3) threatening and interrogating employees with respect to their union activity.
Chairman Battista and Member Schaumber reversed the judge's finding that Strack violated Section 8(a)(3) and (1) by suspending and discharging Peters, concluding that the General Counsel has not met his initial burden of showing that Peters' protected dissident union activity on behalf of the UFCW was a motivating factor in her suspension and discharge. Assuming the General Counsel satisfied his initial burden under Wright Line, the majority held that Strack proved that it would have suspended and discharged Peters, pursuant to its handbook, for threatening a coworker, IEU President Rongers, even in the absence of her protected activity. Chairman Battista and Member Schaumber also reversed the judge's findings: (1) that Strack violated Section 8(a)(1) by photographing and videotaping employees engaged in union picketing and handbilling, and giving employees the impression of surveillance of such union activity; and (2) that C & T, the lessor of Strack's Portage store, violated Section 8(a)(1) by causing the removal of Strack's employees engaged in union picketing and handbilling.
Member Walsh disagreed with his colleagues' dismissal of these complaint allegations. With respect to Peters' discharge, he agreed with the majority that Strack suspended and discharged Peters because she stated to Rongers: "John, next time I see you I'm going to kick your ass." Member Walsh noted however "that Peters' statement was made in the course of her dissident union activity and was not so egregious as to remove her from the Act's protection." He also noted that his colleagues found Peters' discharge was lawful under a Wright Line analysis, but that it is well established that Wright Line is not applied where, as here, the respondent's action is motivated solely by the employee's protected union activity.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by Food & Commercial Workers Locals 700 and 881; complaint alleged violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2). Hearing at Valparaiso on various dates between Sept. 8 and Dec. 9, 1998. Adm. Law Judge Leonard M. Wagman issued his decision Feb. 22, 2000.
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01/13/2004
by Ross Runkel at LawMemo
NLRB Law Memo 01/13/2004
by LawMemo.Com
- First in Employment Law
Accubuilt, Inc. (8-RC-16511; 340 NLRB No. 161) Lima, OH Dec. 31, 2003.
The Board, finding no merit to the Employer’s exceptions to the hearing officer’s disposition of its objections, certified the Auto Workers (Petitioner) as the exclusive collective-bargaining representative of the employees in the appropriate unit. The tally of ballots showed 78 votes for and 74 against, the Petitioner.
The Employer argued that several prounion employees made election-related threats against coworkers during the election campaign. The hearing officer found that three of the four threats potentially affected only three employees and were not disseminated to any additional bargaining-unit employees and therefore, were insufficient, either separately or in the aggregate, to warrant setting aside the election. The Board agreed, saying that the four alleged threats known to no more than three employees in a unit of over 150, did not create a general atmosphere of fear and reprisal. It wrote that in determining whether a threat is serious and likely to intimidate prospective voters to cast their ballots in a particular manner:
the Board evaluates not only the nature of the threat itself, but also whether the threat encompassed the entire bargaining unit; whether reports of the threat were disseminated widely within the unit; whether the person making the threat was capable of carrying it out, and whether it is likely that the employees acted in fear of his capability of carrying out the threat; and whether the threat was “rejuvenated” at or near the time of the election.
The Board noted that the Employer did not except to the hearing officer’s conclusion that none of the conduct raised by the Employer can be attributed to the Petitioner or its agents.
(Chairman Battista and Members Liebman, Schaumber, and Walsh participated.)
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CAB Associates (29-CA-24331; 340 NLRB No. 171) College Point, NY Dec. 31, 2003.
The Board affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from Teamsters Local 282 and by refusing to adhere to the terms of a collective-bargaining agreement effective July 1, 1999, through June 30, 2002, between the Union and the General Contractors’ Association of New York, Inc. (GCA).
The Respondent contended that the complaint was untimely under Section 10(b) of the Act. The Board agreed with the judge’s finding that the complaint was not time barred as the Respondent had not complied with the 1999-2002 agreement since January 21, 2001 and the Union’s charge was filed on July 9, 2001 and served on the Respondent July 11, 2001.
The Respondent excepted to the judge’s remedial order that the Respondent “shall be ordered to revoke its withdrawal of recognition of the Union and instead to recognize and bargain with the Union.” Finding merit in the Respondent’s exception, the Board explained that when the 1999-2002 agreement expired on June 30, 2002, either party was free to repudiate the relationship since the parties’ bargaining relationship was governed by Section 8(f). Therefore, the remedial order was modified to omit any requirement of recognition or bargaining but to require the Respondent to fulfill its outstanding obligation under the 1999-2002 contract. To the extent that the Respondent’s unlawful repudiation of the 1999-2002 agreement resulted in denial of employment or employees receiving less than they would have been entitled to for their work had the Act not been violated, the Board amended the remedy to provide for backpay formulas.
(Members Liebman, Schaumber, and Walsh participated.)
Charge filed by Teamsters Local 282; complaint alleged violation of Section 8(a)(1), (5), and 8(d). Hearing at Brooklyn on various dates between Jan. 16 and March 5, 2002. Adm. Law Judge Jesse Kleiman issued his decision July 2, 2002.
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Carroll & Carroll, Inc. (10-CA-34076; 340 NLRB No. 159) Savannah, GA Dec. 31, 2003.
The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by threatening to discharge its employees, threatening its employees with plant closure because of their union activities, and interrogating its employees about Operating Engineers Local 474; and Section 8(a)(1) and (3) by discharging and failing to reinstate employee Waldo Floyd because of his union activities.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Operating Engineers Local 474; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Savannah on May 21, 2003. Adm. Law Judge Pargen Robertson issued his decision July 15, 2003.
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Desert Aggregates (32-CA-18653, 18726; 340 NLRB No. 170) Ducor, CA Dec. 31, 2003.
The Board granted the General Counsel’s October 17, 2003 motion for reconsideration of the Board’s earlier decision reported at 340 NLRB No. 38 (2003). Contending that the Board’s remedial language implicitly treated the Respondent’s recall offers to Mark Gregg and Wendy Miller as valid offers sufficient to relieve the Respondent of any additional reinstatement and backpay obligations, the General Counsel requested that the Order be amended to provide the traditional remedy¾full backpay until such time as the Respondent tenders valid offers of reinstatement. The Board agreed with the General Counsel and amended its remedy and order accordingly.
In the prior decision, the Board found, among others, that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily laying off Gregg and Miller. The Respondent was ordered to pay Gregg and Miller backpay from the dates of their unlawful layoffs until the dates of recall letters that the Respondent sent several months later.
(Chairman Battista and Members Liebman and Schaumber participated.)
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Enjo Contracting Co., Inc. d/b/a Enjo Architectural Millwork (29-CA-24260, 24370; 340 NLRB No. 162) Staten Island, NY Dec. 31, 2003.
Chairman Battista and Member Schaumber agreed with the administrative law judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Walter Clayton for his union activities and violated Section 8(a)(1) by telling its employees shortly after Clayton’s discharge not to talk to Clayton in connection with his organizing efforts. Contrary to the judge, they found that the Respondent did not violate Section 8(a)(1) by threatening employees with layoffs or other unspecified reprisals if they supported New York District Council of Carpenters.
Dissenting in part, Member Liebman would find that Joseph Autovino, the Respondent’s president, violated Section 8(a)(1) at his first meeting with employees by threatening the Respondent’s employees with unspecified reprisals if they chose to be represented by the Union. In her view, the context of Autovino’s remarks negates any attempt to portray as noncoercive his warning to employees to “think twice” about supporting the Union. She said that the Respondent’s statement “suggested that unionization would have negative consequences for employees, regardless of other circumstances.”
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by New York District Council of Carpenters; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn, Oct. 16 and 17, 2001. Adm. Law Judge Jesse Kleiman issued his decision Jan. 15, 2002.
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Postal Workers Local 735 (United States Postal Service) (17-CB-5444-P, 5517-P; 340 NLRB No. 166) Wichita, KS Dec. 31, 2003.
Chairman Battista and Member Walsh remanded this proceeding to the administrative law judge for appropriate action and for a supplemental decision on the issue of whether the Respondent violated Section 8(b)(1)(A) of the Act by excluding Teri Adelson from the settlement of the Respondent’s underlying lost-work grievance, or by publishing a newsletter column by Dave Darrough, the Respondent's president, addressing the settlement of Adelson’s unfair labor practice charge relating to the grievance. Member Liebman dissented.
This case arose from the Union's grievance alleging that an employee in another craft had been assigned work in the Respondent's bargaining unit jurisdiction. Adelson filed a charge, alleging that Union Steward Christine Pruitt excluded her from the settlement of the grievance because she was not a member of the Respondent. The charge was settled through a non-Board settlement agreement between the Respondent and Adelson that required the Respondent to post a notice and make an appropriate payment to Adelson. The Regional Director approved
Adelson's withdrawal of the charge and dismissed the complaint. The following month, Darrough, signatory on the posted notice, discussed the settlement of Adelson's charge in his column. Adelson filed a second charge. The Regional Director revoked his dismissal of the previous complaint and issued a consolidated complaint, alleging that the Respondent violated Section 8(b)(1)(A) by the actions of Pruitt and Darrough.
The judge determined that Darrough’s column neither justified setting aside the settlement agreement nor violated Section 8(b)(1)(A), and that the General Counsel did not establish a postsettlement unfair labor practice or other grounds for setting aside the parties’ settlement agreement. Therefore, the judge dismissed the complaint.
Unlike the judge, the Board majority agreed with the General Counsel’s contention that the Respondent failed to comply with the non-Board settlement agreement by virtue of its comments in the newsletter article, which they found served to undermine the assurances in the notice that the Respondent would respect the rights of all unit employees.
In dissent, Member Liebman said that the Respondent has complied with the non-Board settlement: it paid the backpay agreed to, and posted the required notice. She found that despite its harsh words, Darrough’s column was protected by Section 7 of the Act.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Teri Adelson, an Individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Wichita on Oct. 11, 2001. Adm. Law Judge James L. Rose issued his decision Dec. 7, 2001.
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Royal Paper Stock Co., Inc. (9-RC-17605; 340 NLRB No. 164) Lima, OH Dec. 31, 2003.
The hearing officer found, and Chairman Battista and Member Schaumber, with Member Liebman concurring, agreed that Joann Cornett was an eligible voter. Therefore, the Board adopted the hearing officer’s recommendations to overrule the challenge to Cornett’s ballot, directed that her ballot be opened and counted, and remanded the proceeding to the Regional Director for further appropriate action. The tally of ballots showed 2 for and 2 against, Teamsters Local 89, with 1 determinative challenged ballot.
In her concurring opinion, Member Liebman said she applied the bright-line rule reaffirmed in Red Arrow Freight Lines, 278 NLRB 965 (1986), in deciding this case. She noted that Red Arrow is based on case law 50 years old and there is no expiration date on that precedent.
(Chairman Battista and Members Liebman and Schaumber participated.)
St. Francis Medical Center, Catholic HealthCare West, Southern California Region (21-CA-32642, et al.; 340 NLRB No. 168) Lynwood, CA Dec. 31, 2003.
With the exception of one Section 8(a)(3) allegation, the Board affirmed the administrative law judge’s findings that the Respondent committed numerous violations of Section 8(a)(1) and (3) of the Act.
The Board remanded the issue raised with respect to the judge’s finding that the Respondent violated Section 8(a)(3) by counseling technical radiologist Carmen Bautista for giving a copy of the Union’s employee survey to Ultrasound Technician Dominick Saati. It found that the judge did not specifically resolve the factual issue of whether Saati was with a patient when Bautista gave him the survey and/or whether Bautista disturbed Saati’s delivery of patient care. The Board said that without a specific factual finding, it is unable to review the judge’s ultimate determination under Wright Line, 251 NLRB 1083, enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Board noted it was not necessary to reopen the record to resolve this issue on remand.
(Members Liebman, Schaumber, and Walsh participated.)
Charges filed by Service Employees Local 399; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles on various dates between Oct. 12, 1999 and May 31, 2000. Adm. Law Judge Mary Miller Cracraft issued her decision Dec. 15, 2000.
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Unified Creative Programs, Inc. (2-CA-34420-1; 340 NLRB No. 160) White Plains, New Rochelle, and Rye Brook, NY Dec. 29, 2003.
The Board adopted the administrative law judge’s findings and dismissed the complaint allegations that the Respondent violated the Act by: (1) changing procedures by which employees callout; (2) changing the method by which oncall employees are scheduled; (3) changing job qualifications of unit employees by disqualifying employees if they are employed at United Cerebral Palsy of Westchester; (4) implementing a schedule for dinner breaks; and (5) eliminating the use of starting time grace periods.
The Respondent asserted that it did not give prior notice to UNITE about any of the alleged unilateral changes because it did not make any material changes and was not required to give notice. The judge found, with Board approval, that there were no significant changes in the rules or practices with respect to complaint allegations (1) and (2). In the judge’s opinion, no credible evidence was shown that the Respondent made a rule or practice whereby it rejected job applicants who also held jobs at Cerebral Palsy of Westchester, and with respect to the issues concerning dinner breaks and the elimination of starting time grace period, the judge said that the posting of the dinner break schedules did not amount to a significant or material change in employee working conditions, and that there was no credible evidence that the Employer has
or that it had a policy of allowing employees a 10-minute grace period.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by UNITE. Hearing at New York City on May 8, 2003. Adm. Law Judge Raymond P. Green issued his decision July 15, 2003.
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United International Investigative Services, Inc. (5-CA-29490; 340 NLRB No. 165) Baltimore, MD and Alexandria, VA Dec. 31, 2003.
The Board, in the absence of a timely response to an Order Transferring Proceeding to the Board and Notice to Show Cause, granted the General Counsel’s motion for summary judgment. According to the uncontroverted allegations in the motion, the Respondent failed to comply with an informal settlement agreement entered into by the Respondent and the Union and approved by the Regional Director on July 14, 2003, by failing to remit agreed-upon amounts due employees Susan McPherson and Alfonso Terrell. The Board ordered the Respondent to pay McPherson and Terrell backpay in the amounts set forth in settlement agreement.
(Chairman Battista and Members Liebman and Walsh participated.)
General Counsel filed motion for summary judgment Dec. 4, 2003.
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The Woods Quality Cabinetry Co. (6-RC-12194; 340 NLRB No. 163) Eighty Four, PA Dec. 31, 2003.
Contrary to the Regional Director, Chairman Battista and Member Schaumber found merit in the Employer’s contention that the erroneous designation of Greater Pennsylvania Regional District Council of Carpenters as affiliated with the AFL-CIO and the Region’s failure to correct the designation warrant setting aside the election. Accordingly, the majority set aside the election and directed that a second election be conducted. The tally of ballots showed 31 votes for and 26 against, the Petitioner, with 3 challenged ballots, a number insufficient to affect the results of the election.
Dissenting, Member Liebman stated that she would certify the results of the election. She noted that the error clearly was harmless under the circumstances here and that there is no evidence that voters cared about the affiliation issue in the slightest. She saw no basis for concluding that the mistaken designation of the Petitioner’s parent union as an AFL-CIO affiliate interfered with employee free choice.
The Regional Director found that the Petitioner’s affiliation was neither material to, nor an issue in, the campaign; that the Employer failed to meet its burden of establishing that employees were confused about the union for which they were voting; and that it was clear to
employees that they were voting on whether they wanted to be represented by the Petitioner. The Regional Director reasoned it would be too confusing and too disruptive of the election process to change only the ballot, which would then have been inconsistent with the notice of election.
(Chairman Battista and Members Liebman and Schaumber participated.)
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01/05/2004
by Ross Runkel at LawMemo
NLRB Law Memo 01/05/2004
by LawMemo.Com
- First in Employment Law
The National Labor Relations Board has issued a notice inviting additional interested amici to file briefs addressing the job targeting issues raised in J.A. Croson Co. and Can-Am Plumbing, Inc. on or before January 20, 2004. J.A. Croson Co., Cases 9-CA-35163-1-2 was transferred to the Board following the issuance of the administrative law judge’s decision (JD-69-03) on June 27, 2003. The Board’s decision in Can-Am Plumbing, Inc., 335 NLRB No. 93, was remanded to the Board by the U.S. Court of Appeals for the District of Columbia Circuit, 321 F.3d 145 (DC Cir., 2003), on February 28, 2003. In each of these cases, the parties already have filed briefs and/or statements of position and some amicus briefs also have been filed. Additional interested amici are invited to file briefs with the Board in Washington, D.C., addressing the job targeting issues raised in these cases.
NLRB - Staff summarized 7 decisions
D.A. Nolt, Inc. (4-CA-30325-1, -2; 340 NLRB No. 152) Philadelphia, PA Dec. 15, 2003.
Members Liebman and Walsh reversed the administrative law judge and found that the Respondent violated Section 8(a)(5) and (1) of the Act when it refused to apply the terms of the collective-bargaining agreement negotiated by the Roofing Contractors Association (RCA) and the Union covering employees in the commercial bargaining unit. In dissent, Chairman Battista agreed with the judge that there were “unusual circumstances” justifying a withdrawal from the RCA.
The General Counsel and the Union argued that the judge erred in finding that the Respondent lawfully withdrew from the RCA because the RCA and the Union had engaged in secret negotiations. The majority found merit in the General Counsel’s and the Union’s exceptions.
The Respondent has been signatory to an agreement which bound it to contracts between RCA and the Union covering commercial roofing. When the Union and the RCA reached a tentative agreement for an 8-year contract, the Respondent voted to “accept.” Based on the Respondent’s acceptance of the multiemployer contract, the majority held that the Respondent was bound to the successor agreement negotiated by the RCA and violated the Act when it refused to apply the terms of that agreement to unit employees.
Dissenting Chairman Battista found that the Union and the employer deliberately kept the Respondent in the dark about the start of negotiations and, under the Retail Associates rule (120 NLRB 338 (1958)) (no withdrawal from multiemployer bargaining after negotiations have begun), this collusive activity interfered with the Respondent’s right to withdraw from the association prior to the start of negotiations.
(Chairman Battista and Members Liebmam and Walsh participated.)
Charges filed by Roofers Local 30; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Philadelphia, Aug. 23 and 24, 2002. Adm. Law Judge Margaret M. Kern issued her decision July 18, 2002.
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Dillon Companies, Inc. d/b/a City Market, Inc. (27-CA-17679, et al.; 340 NLRB No. 151) Buena Vista, CO Dec. 15, 2003.
The administrative law judge found and Chairman Battista and Member Walsh agreed, that the Respondent violated Section 8(a)(1) of the Act during the organizing campaign when it promulgated a no-solicitation rule. The majority said that although that rule was facially valid, the Respondent instituted it specifically in response to its employees’ union organizing activities. Chairman Battista and Member Walsh held that the Respondent failed to show that it promulgated the rule to maintain production and discipline.
Dissenting in part, Member Schaumber asserted that the Respondent’s no-solicitation policy was entirely lawful. He agreed with the judge and his colleagues that the Respondent promulgated its “Solicitation Policy” when it posted the policy in the employees’ breakroom. However, Member Schaumber wrote that there is no evidence to support an inference that the Respondent intended to
interfere with its employees’ right to organize when it posted its solicitation policy and that evidence supports the Respondent’s argument that it posted the solicitation policy in order to maintain production and discipline at the store.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by Food & Commercial Workers Local 7; complaint alleged violations of Section 8(a)(1). Hearing at Buena Vista, Oct. 8-10, 2002. Adm. Law Judge Thomas M. Patton issued his decision May 23, 2003.
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Jacksonville Urban League, Inc. (12-RC-8983; 340 NLRB No. 156) Duval County, FL Dec. 18, 2003.
The Employer’s request for review of the Acting 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 adhered to its holding in Management Training Corp., 317 NLRB 1355 (1995) and rejected the Employer’s argument that the Board should overrule Management Training and apply Res-Care, Inc., 280 NLRB 670 (1986).
(Chairman Battista and Members Liebman and Walsh participated.)
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K.O. Steel Foundry & Machine, A Division of Tic United Corp. (16-CA-21170, 21182; 340 NLRB No. 153) San Antonio, TX December 16, 2003.
Chairman Battista and Member Schaumber affirmed the administrative law judge’s recommended dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) of the Act by interrogating an employee about his union activities and violated Section 8(a)(1), (3), and (4) by issuing written warnings to employees Rudy Ruelas and Jose Portillo. Member Liebman dissented, stating that this case “implicates credibility determinations.” The majority, however, observed that “credibility is the essential basis for resolving this case,” adding
For example, on the issue of whether Portillo resigned or was discharged, the judge chose to credit the testimony of four witnesses whose testimony was consistent with a resignation, and to discredit the contrary and uncorroborated testimony of Portillo, who claimed that he was discharged. The judge observed all five witnesses as they testified and he chose to credit the four and to discredit Portillo.
In her dissenting opinion, Member Liebman wrote that she would remand the case to the judge for further consideration. She said that the judge’s credibility determinations rested in large part on his view of the inherent probabilities, as opposed to the demeanor of the witnesses, and that the judge failed to address evidence that casts doubt on his findings. Due to the factually complex case, Member Liebman believes that the judge should have permitted the General Counsel to file a post-trial brief and that his failure to do is a reason why this case should be remanded to the judge.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Electronic Workers (IUE); complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing in San Antonio, Jan. 17, 18, 22, 23, and 24, 2002. Adm. Law Judge Keltner W. Locke issued his decision April 1, 2002.
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Laborers (E & B Paving, Inc.) (13-CD-688-1; 340 NLRB No. 150) Rochester, IN Dec. 15, 2003.
In this Decision and Determination of Dispute, the Board determined that the employees of E & B Paving, Inc., represented by the Laborers, are entitled to perform the concrete pavement work and related preliminary functions on behalf of E & B Paving, Inc., at the I-65 highway construction project in Lake County, Indiana. In making the award, the Board relied on the factors of collective-bargaining agreements, employer preference, employer past practice, and economy and efficiency of operations.
(Chairman Battista and Members Schaumber and Walsh participated.)
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ServiceNet, Inc. (1-CA-39682; 340 NLRB No. 148) Northampton, MA Dec. 15, 2003.
In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by insisting to impasse on the health insurance and duration-clause proposals which were nonmandatory subjects of bargaining.
During negotiations for a successor agreement, the Respondent presented, on a package basis, a contract proposal that included two clauses: Article 19¾Health and Welfare (provided that a committee of up to five bargaining unit members will meet with ServiceNet prior to any changes made in the group health insurance plan); and Article 37¾Duration and Renewal (provided that upon expiration of the agreement, if agreement has not been reached on a successor agreement, that the all terms and provisions of the agreement shall be kept in full force and effect until a successor collective bargaining agreement is agreed upon and ratified by the parties). The Union refused to enter into an agreement containing these clauses.
Regarding Article 19, the Board held that it is a nonmandatory subject of bargaining because the proposal allows the Respondent to circumvent the Union and negotiate directly with the employees over a term or condition of employment, namely, the company health insurance plan. While duration clauses are generally treated as mandatory subjects of bargaining, the Board deemed Article 37 different because unlike the typical clause, it does not simply govern the duration of the agreement during its term but also requires adherence to the contract¾including any no-strike and no-lockout undertakings¾after it has expired and while negotiations for a new agreement are ongoing.
No exceptions were filed to the judge’s dismissal of the complaint allegations that the Respondent violated Section 8(a)(5) and (1) by entering negotiations with a fixed intention of reaching agreement only on its terms, or by engaging in surface bargaining.
(Members Liebman, Schaumber, and Walsh participated.)
Charge filed by SEIU Local 285; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Northampton on Oct. 21, 2002. Adm. Law Judge Wallace H. Nations issued his decision March 25, 2003.
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Waterfront Services Co. (14-CA-27001-1, et al.; 440 NLRB No. 154) Tahlequah, OK Dec. 19, 2003.
The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by engaging in surveillance of employees’ union activities; Section 8(a)(1) and (3) by discharging Louie Housman and Frank Davis; and Section 8(a)(1), (3), and (4) by discharging Daniel Stucker and Timothy Brown.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Individuals and Laborers Local 773; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at St. Louis, Oct. 15 and 16, 2002. Adm. Law Judge Margaret M. Kern issued her decision Dec. 11, 2002.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
