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02/27/2004
by Ross Runkel at LawMemo
NLRB Law Memo 02/27/2004
by LawMemo.Com
- First in Employment Law
Davey Roofing, Inc. (28-CA-16394; 341 NLRB No. 27) Las Vegas, NV Feb. 19, 2004.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act when it laid off employees Celestino Gonzales, Martin Gonzalez, and Ricardo Camarena. However, contrary to the judge, Chairman Battista and Member Schaumber, with Member Walsh dissenting, found that the Respondent did not violate Section 8(a)(3) and (1) when it discharged employees Jose Ramirez and Jesus Camargo.
The judge concluded that the Respondent discharged Ramirez and Camargo for refusing to sign warnings acknowledging safety violations at the worksite, finding that the Respondent's asserted defense of insubordination regarding the discharges failed because the testimony of Vice President Patrick and Supervisor Salvador Guardado concerning the Respondent's decision-making process and its rationale for the discharges was "antithetical in nature and unworthy of belief." Chairman Battista and Member Schaumber contended that the Respondent has established that it would have discharged Ramirez and Camargo absent their union activities and, in their view, Ramirez and Camargo were discharged for an insubordinate refusal to sign.
Member Walsh disagreed with his colleagues' dismissal of the allegation that the Respondent violated the Act when it discharged Ramirez and Camargo. He agreed with the judge's finding and said that the union activities of Ramirez and Camargo were a motivating factor in the Respondent's decision to discharge them. Member Walsh asserted that the Respondent has not shown that it would have discharged Ramirez and Camargo for insubordination in refusing to sign safety warnings even in the absence of their union activity.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Roofers Local 162; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Las Vegas, Oct. 23-26, 2000. Adm. Law Judge Burton Litvack issued his decision Sept. 28, 2001.
***
Ebroadburl Realty Corp. t/a Power Equipment Co. (4-CA-26249; 341 NLRB No. 32) Hainesport, NJ Feb. 19, 2004.
The Board granted the General Counsel's motion for summary judgment with respect to backpay owed discriminatee Jonathan Smith and ordered that the Respondent make whole Smith by paying him $1,162.05, plus interest as computed pursuant to New Horizon for the Retarded, 283 NLRB 1173 (1987), less tax withholdings pursuant to state or Federal law.
In the prior decision reported at 330 NLRB 70 (1999), the Board ordered that the Respondent make Smith whole for any loss of earnings and other benefits suffered as a result of his discharge in violation of Section 8(a)(3) and (1) of the Act. On October 30, 2000, the U.S. Court of Appeals for the Third Circuit enforced the Board's Order.
A controversy having arisen over the amount of backpay due the discriminatee, the Regional Director issued a compliance specification and notice of hearing, alleging the amount of backpay due upon the discriminatee's reinstatement under the Board's Order. The Respondent filed an answer disputing the backpay figure reached in the compliance specification. Although Respondent was advised that its answer did not comply with the requirements of the Board's Rules and Regulations, it failed to amend its answer.
(Members Schaumber, Walsh, and Meisburg participated.)
General Counsel filed motion for summary judgment Oct. 9, 2003.
***
Solvay Iron Workers, Inc. (3-CA-23782-3; 341 NLRB No. 25) Syracuse, NY Feb. 17, 2004.
The administrative law judge found, and the Board agreed, that the Respondent committed numerous violations of the Act. Among others, the Board found that the Respondent violated Section 8(a)(1) by: (a) interrogating employees about their union membership or activities, or about the union activities of others; (b) telling employees that they should quit their jobs if they wanted to join a union or sign union authorization cards; (c) telling employees not to talk with union representatives during work hours, including breaks and lunchtime; and (d) creating the impression that the employees' union activities were under surveillance by telling employees that it knew the union informant. The Respondent was also found to have violated Section 8(a)(1) and (3) by discriminating against an applicant affiliated with the Union and changing its hiring procedure; refusing to hire Gary Swanson because he was affiliated with the Union; and laying off Mark McKean because of his union activities.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Ironworkers Local 33; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Syracuse, Feb. 4 and 5, 2003. Adm. Law Judge Karl H. Buschmann issued his decision Aug. 20, 2003.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
