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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.
***
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.
***
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.)
***
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.
***
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.)
***
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.
***
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.
