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04/05/2004
by Ross Runkel at LawMemo
NLRB Law Memo 04/05/2004
by LawMemo.Com
- First in Employment Law
Community Bus Lines/Hudson County Executive Express (22-CA-25124, et al.; 341 NLRB No. 61) Jersey City, NJ March 26, 2004.
The Board affirmed the administrative law judge's conclusion that the Respondent violated Section 8(a)(1), (3), and (4) of the Act when it discharged owner-operator Jesus Pimental in retaliation for his activities for Production Workers Local 148 and his participation in the representation and unfair labor practice proceedings involving the Respondent. It also affirmed the judge's finding that the Respondent did not violate the Act when it prevented owner-operator Herman Ocampo from using substitute drivers or by later constructively discharging Ocampo.
The Respondent operates minibuses carrying passengers between Jersey City and New York City and employs 13 drivers to drive its minibuses. It contracts with approximately 10 owner-operators to service these routes with their own vans and minibuses, driven either by the owner-operators themselves or by substitute drivers. The Respondent contended that the owner-operators are independent contractors and consequently are not protected by the Act.
The Board agreed with the judge's finding that the owner-operators are employees under Section 2(3) of the Act. Citing BKN, Inc., 333 NLRB 143, 144 (2001), the Board wrote that "the party asserting that the alleged discriminates are independent contractors bears the burden of proving such status." In the instant matter, it concluded that the Respondent failed to carry its burden and has not offered into evidence any contract it entered into with owner-operators and thus failed to demonstrate that the parties believed they were creating an independent contractor relationship.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Jesus Pimentel and Herman Ocampo, Individuals; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Newark on April 1, 2003. Adm. Law Judge Joel P. Biblowitz issued his decision June 12, 2003.
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Petrochem Insulation, Inc. (21-RC-20619; 341 NLRB No. 60) Rancho Dominguez, CA March 24, 2004.
Contrary to the hearing officer, the Board sustained the Petitioner's (Asbestos Workers Local 5) Objection 2 alleging that the Employer interfered with the election by threatening the loss of wages and benefits if employees voted for the Petitioner. The Board set aside the election and directed a second election. The tally of ballots showed 14 ballots for the Petitioner, 71 for the Intervenor (Petroleum and Industrial Workers), and 16 challenged ballots, an insufficient number to affect the results of the election.
The Petitioner objected to the Employer's memo to its employees, which stated in pertinent part:
Local 5 says Petrochem does not want you to vote for Local 5. We don't. Petrochem does not want to lower your wages and benefits and have 2 Union contracts that discriminate against employees. Petrochem wants all employees to be treated the same.
The hearing officer found that this statement was not objectionable because it was merely an expression of the Employer's desire to maintain the status quo and because the Petitioner did not show that employees viewed the statement as a threat. The Employer has a contract with the Intervenor.
The Board disagreed with the hearing officer. In its view, the hearing officer improperly focused on the employees' subjective reactions to the Employer's statement. The Board believed that the employees could reasonably interpret the Employer's statement as a threat that if the Petitioner won, they would face reduced wages and benefits.
(Chairman Battista and Members Liebman and Walsh participated.)
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Cellco Partnership, d/b/a Verizon Wireless (31-RC-8072; 341 NLRB No. 63) Bakersfield, CA March 26, 2004.
The Board, in agreement with the Regional Director, held that the petitioned-for multifacility unit of sales representatives and assistant-sales operations employees working at three of the Employer's retail facilities in Bakersfield, CA is appropriate for bargaining and remanded this matter to the Regional Director for further processing.
The Regional Director found that the petitioned-for employees share a community of interest that is separate and apart from that shared with other employees and that they constitute an appropriate unit for bargaining. The Employer argued that a "systemwide unit" of all such employees in either its West area or its Northern California/Nevada region, is the only unit appropriate for bargaining because the Employer is a public utility.
After granting the Employer's request for review, the Board directed the parties to address three questions: (1) whether the Board's presumption in favor of systemwide units for public utilities applies to the cellular telephone industry; (2) if so, whether the presumption extends to units composed solely of sales employees employed in retail stores; and (3) irrespective of whether the presumption applies, is the petitioned-for unit of 29 retail sales representatives and assistant-sales operations employees at the Employer's retail facilities in Bakersfield, CA appropriate?
The Board wrote that it has never squarely addressed the issue of whether retail employees of a public utility fall within the policy considerations behind the systemwide presumption. It stated that the Board's standards with respect to units in the public utility industry do not apply to the type of retail employees at issue in this case. As such, the Board held that the petitioned-for multifacility unit meets the Board's traditional standards of appropriateness.
(Members Schaumber, Walsh, and Meisburg participated.)
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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