Daufuskie Club, Inc. d/b/a Daufuskie Island Club and Resort, Inc., et al. (11-CA-17334; 341 NLRB No. 81) Hilton Head, SC April 16, 2004.

The Board, in this supplemental decision, denied the General Counsel's motion for partial summary judgment and remanded the proceeding to the Regional Director for hearing before an administrative law judge.

In its earlier decision reported at 328 NLRB 415 (1999), the Board ordered Respondent Daufuskie Club, Inc. to make whole 108 named discriminatees for their losses resulting from Daufuskie's unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. On May 2, 2000, the U.S. Court of Appeals for the District of Columbia Circuit entered a judgment enforcing the Board's order. Subsequently, on about May 31, 2002, Daufuskie was sold to Tiburon Hospitality Group, et al. (Tiburon).

A controversy having arisen over the amount of backpay due the discriminatees under the Board's order, the Regional Director issued a compliance specification and notice of hearing alleging that Tiburon is a successor of Daufuskie and that they are jointly and severally liable for the amounts of backpay owed to the discriminatees. The Board held that Tiburon's denial that it was a successor to Daufuskie, and Daufuskie's denial, among other things, that the average hourly earnings formula utilized in the compliance specification was appropriate, raised issues that must be resolved at a hearing.

(Chairman Battista and Members Liebman and Walsh participated.)

***

Deaconess Medical Center (19-RC-14366; 341 NLRB No. 79) Spokane, WA April 15, 2004.

Members Liebman and Walsh, with Member Schaumber dissenting, adopted the hearing officer's recommendation to sustain the Petitioner's (Service Employees District 1199NW) Objection 2, which alleged that the Employer interfered with the results of the election by threatening employees with the loss of a plan to restore wage rates if they selected the Petitioner as their bargaining representative. The majority set aside the election of April 24, 2003, and directed a second election. The tally of ballots showed 252 for and 266 against, the Petitioner, and 12 challenged ballots, an insufficient number to affect the results of the election.

Shortly before the Union filed its petition seeking to represent the Employer's registered nurses, the Employer implemented a nine-percent across-the-board wage reduction due to the financial position of the hospital. The Employer repeatedly reassured employees that it would restore wages when it regained financial stability; it did not provide a specific date. During the election campaign, the Employer distributed materials to the employees to support its position that they should vote against the Union and a flier that generally described the process of collective bargaining.

In agreement with the hearing officer, the majority found that the Employer's prepetition promise to the employees to restore their wages was a term and condition of their employment. They noted that the promise was conditioned only on the Employer's return to "financial stability," "profitability," or a "sustained positive level" as determined by the Employer. The majority wrote: "After the Union filed its petition . . . however, the Employer told the employees that it could easily restore the wages of nonrepresented employees if the Employer regained profitability, but that it could not do the same for employees who had become represented by the Union." That was a threat to penalize employees for exercising their right to choose union representation, they held.

Dissenting Member Schaumber stated: "[T]he legal reality was that, in the absence of an established past practice concerning wage restoration, the Employer could not change the wages of represented employees without bargaining with the Union. Therefore the statements in the campaign literature and by managers to that effect were accurate statements of the Employer's obligations under the law. My colleagues' conclusion to the contrary penalizes the Employer for explaining to employees its legal responsibilities." Because he found the Employer's statements were not objectionable conduct, Member Schaumber would certify the results of the election.

(Members Liebman, Schaumber, and Walsh participated.)

***

Peirce-Phelps, Inc. (4-RC-20675; 341 NLRB No. 78) Philadelphia, PA April 12, 2004.

Chairman Battista and Member Schaumber affirmed the hearing officer's recommendations, sustained the challenge to the ballot of Michael Cammoroto, and overruled the challenge to the ballot of Michael Panara, Jr. They directed the Regional Director to open and count Panara's ballot and to issue a revised tally of ballots and the appropriate certification. Member Walsh, dissenting in part, disagreed with his colleague's finding that Panara does not enjoy special privileges or benefits warranting his exclusion from the bargaining unit.

The tally of ballots for the election of August 15, 2003 shows 2 ballots for and 1 against, the Petitioner (Teamsters Local 169), with 2 determinative challenged ballots. The stipulated unit includes all full-time and seasonal warehousemen employed by the Employer at its Decatur Road facility, excluding all other employees.

The Employer challenged Cammoroto's ballot on the ground that he was not employed within the stipulated unit on the date of the election. Cammoroto was a full-time warehousemen on July 15, 2003, the payroll eligibility date for the election. He was transferred back to his store driver position on July 23, 2003, and continued to perform a limited amount of warehouse work on irregular and infrequent occasions. The hearing officer found that Cammoroto did not have a reasonable expectancy of returning to the unit and rejected the Employer's dual function argument on its merits. The Board, noting that Cammoroto was a store driver, not a warehousemen on the date of the election, agreed with the Employer that the hearing officer should not have addressed the dual function issue because the parties' clear intent was to exclude Cammoroto from the unit.

The Petitioner challenged Panara's ballot on the ground that he was related to a member of management. Panara, the son of the Decatur Road warehouse manager Michael Panara, Sr., worked as a warehouse employee and was supervised by his father, who had no ownership interest in the Employer. At the time of the election, Panara was a 16-year old high school student who had worked for the Employer as a warehouse employee every summer since 2001. The majority found that Panara Jr. should not be excluded from the unit because he did not enjoy special privileges or benefits by virtue of his relationship with Panara, Sr. They noted that Panara Jr. never attended management meetings or assumed his father's authority, and that he worked under the same conditions and was subject to the same policies as other seasonal warehousemen, performing similar tasks and earning a comparable wage.

Member Walsh wrote: "Panara Junior received special treatment from the very inception of his employment. He was hired at the age of 14, and was seasonally reemployed thereafter, despite his legal incapacity to operate heaving lifting machinery¾which, . . . constitutes an important part of the warehouseman's job." He also found that Panara Sr. created a fluctuating schedule specifically for his son, which ensured that Panara Jr. would be in the warehouse only when there was work available that he could perform¾i.e., work not involving the operation of heavy lifting machinery. Member Walsh concluded that the scheduling accommodations, as well as the mere fact of Panara Jr's employment despite his inability to perform important job functions, are highly probative of special status. See Novi American Inc.-Atlanta, 234 NLRB 421, 422 (1978).

The majority noted that Panara Jr.'s exemption from the operation of heavy lifting machinery was mandated by Pennsylvania law that precludes persons younger than 18 from operating heavy machinery, and did not flow from a special benefit.

(Chairman Battista and Members Schaumber and Walsh participated.)

04/23/2004
by Ross Runkel at LawMemo

NLRB Law Memo 04/23/2004
by LawMemo.Com - First in Employment Law

Daufuskie Club, Inc. d/b/a Daufuskie Island Club and Resort, Inc., et al. (11-CA-17334; 341 NLRB No. 81) Hilton Head, SC April 16, 2004.

The Board, in this supplemental decision, denied the General Counsel's motion for partial summary judgment and remanded the proceeding to the Regional Director for hearing before an administrative law judge.

In its earlier decision reported at 328 NLRB 415 (1999), the Board ordered Respondent Daufuskie Club, Inc. to make whole 108 named discriminatees for their losses resulting from Daufuskie's unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. On May 2, 2000, the U.S. Court of Appeals for the District of Columbia Circuit entered a judgment enforcing the Board's order. Subsequently, on about May 31, 2002, Daufuskie was sold to Tiburon Hospitality Group, et al. (Tiburon).

A controversy having arisen over the amount of backpay due the discriminatees under the Board's order, the Regional Director issued a compliance specification and notice of hearing alleging that Tiburon is a successor of Daufuskie and that they are jointly and severally liable for the amounts of backpay owed to the discriminatees. The Board held that Tiburon's denial that it was a successor to Daufuskie, and Daufuskie's denial, among other things, that the average hourly earnings formula utilized in the compliance specification was appropriate, raised issues that must be resolved at a hearing.

(Chairman Battista and Members Liebman and Walsh participated.)

***

Deaconess Medical Center (19-RC-14366; 341 NLRB No. 79) Spokane, WA April 15, 2004.

Members Liebman and Walsh, with Member Schaumber dissenting, adopted the hearing officer's recommendation to sustain the Petitioner's (Service Employees District 1199NW) Objection 2, which alleged that the Employer interfered with the results of the election by threatening employees with the loss of a plan to restore wage rates if they selected the Petitioner as their bargaining representative. The majority set aside the election of April 24, 2003, and directed a second election. The tally of ballots showed 252 for and 266 against, the Petitioner, and 12 challenged ballots, an insufficient number to affect the results of the election.

Shortly before the Union filed its petition seeking to represent the Employer's registered nurses, the Employer implemented a nine-percent across-the-board wage reduction due to the financial position of the hospital. The Employer repeatedly reassured employees that it would restore wages when it regained financial stability; it did not provide a specific date. During the election campaign, the Employer distributed materials to the employees to support its position that they should vote against the Union and a flier that generally described the process of collective bargaining.

In agreement with the hearing officer, the majority found that the Employer's prepetition promise to the employees to restore their wages was a term and condition of their employment. They noted that the promise was conditioned only on the Employer's return to "financial stability," "profitability," or a "sustained positive level" as determined by the Employer. The majority wrote: "After the Union filed its petition . . . however, the Employer told the employees that it could easily restore the wages of nonrepresented employees if the Employer regained profitability, but that it could not do the same for employees who had become represented by the Union." That was a threat to penalize employees for exercising their right to choose union representation, they held.

Dissenting Member Schaumber stated: "[T]he legal reality was that, in the absence of an established past practice concerning wage restoration, the Employer could not change the wages of represented employees without bargaining with the Union. Therefore the statements in the campaign literature and by managers to that effect were accurate statements of the Employer's obligations under the law. My colleagues' conclusion to the contrary penalizes the Employer for explaining to employees its legal responsibilities." Because he found the Employer's statements were not objectionable conduct, Member Schaumber would certify the results of the election.

(Members Liebman, Schaumber, and Walsh participated.)

***

Peirce-Phelps, Inc. (4-RC-20675; 341 NLRB No. 78) Philadelphia, PA April 12, 2004.

Chairman Battista and Member Schaumber affirmed the hearing officer's recommendations, sustained the challenge to the ballot of Michael Cammoroto, and overruled the challenge to the ballot of Michael Panara, Jr. They directed the Regional Director to open and count Panara's ballot and to issue a revised tally of ballots and the appropriate certification. Member Walsh, dissenting in part, disagreed with his colleague's finding that Panara does not enjoy special privileges or benefits warranting his exclusion from the bargaining unit.

The tally of ballots for the election of August 15, 2003 shows 2 ballots for and 1 against, the Petitioner (Teamsters Local 169), with 2 determinative challenged ballots. The stipulated unit includes all full-time and seasonal warehousemen employed by the Employer at its Decatur Road facility, excluding all other employees.

The Employer challenged Cammoroto's ballot on the ground that he was not employed within the stipulated unit on the date of the election. Cammoroto was a full-time warehousemen on July 15, 2003, the payroll eligibility date for the election. He was transferred back to his store driver position on July 23, 2003, and continued to perform a limited amount of warehouse work on irregular and infrequent occasions. The hearing officer found that Cammoroto did not have a reasonable expectancy of returning to the unit and rejected the Employer's dual function argument on its merits. The Board, noting that Cammoroto was a store driver, not a warehousemen on the date of the election, agreed with the Employer that the hearing officer should not have addressed the dual function issue because the parties' clear intent was to exclude Cammoroto from the unit.

The Petitioner challenged Panara's ballot on the ground that he was related to a member of management. Panara, the son of the Decatur Road warehouse manager Michael Panara, Sr., worked as a warehouse employee and was supervised by his father, who had no ownership interest in the Employer. At the time of the election, Panara was a 16-year old high school student who had worked for the Employer as a warehouse employee every summer since 2001. The majority found that Panara Jr. should not be excluded from the unit because he did not enjoy special privileges or benefits by virtue of his relationship with Panara, Sr. They noted that Panara Jr. never attended management meetings or assumed his father's authority, and that he worked under the same conditions and was subject to the same policies as other seasonal warehousemen, performing similar tasks and earning a comparable wage.

Member Walsh wrote: "Panara Junior received special treatment from the very inception of his employment. He was hired at the age of 14, and was seasonally reemployed thereafter, despite his legal incapacity to operate heaving lifting machinery¾which, . . . constitutes an important part of the warehouseman's job." He also found that Panara Sr. created a fluctuating schedule specifically for his son, which ensured that Panara Jr. would be in the warehouse only when there was work available that he could perform¾i.e., work not involving the operation of heavy lifting machinery. Member Walsh concluded that the scheduling accommodations, as well as the mere fact of Panara Jr's employment despite his inability to perform important job functions, are highly probative of special status. See Novi American Inc.-Atlanta, 234 NLRB 421, 422 (1978).

The majority noted that Panara Jr.'s exemption from the operation of heavy lifting machinery was mandated by Pennsylvania law that precludes persons younger than 18 from operating heavy machinery, and did not flow from a special benefit.

(Chairman Battista and Members Schaumber and Walsh participated.)

04/16/2004
by Ross Runkel at LawMemo

NLRB Law Memo 04/16/2004
by LawMemo.Com - First in Employment Law

This report discusses cases which were decided upon a request for advice from a Regional Director or on appeal from a Regional Director's dismissal of unfair labor practice charges. In addition, it summarizes cases in which the General Counsel sought and obtained Board authorization to institute injunction proceedings under Section 10(j) of the National Labor Relations Act. General Counsel Rosenfeld is beginning with this report a practice of discussing some of the ethical issues in the administration of the Act. The issues discussed in the report relate to state bar applications of ABA Model Rule 4.2 (communications with represented persons).

NLRB - Staff summarized 1 decision.

Georgia Power Co. (10-CA-33301; 341 NLRB No. 77) Gainesville, GA April 7, 2004.

The Board agreed with the administrative law judge that the Respondent violated the Act by failing and refusing to promote employee Bobby Lewallen to a supervisory position because he engaged in protected concerted activities. Chairman Battista and Member Schaumber, with Member Walsh dissenting, did not agree with the judge's recommendation that the Respondent offer Lewallen a promotion to the supervisory position. Citing NLRB v. Ford Motor Co., 683 F.2d 156 (6th Cir. 1982), the majority ordered that the Respondent reconsider Lewallen for a supervisory position, pay Lewallen backpay at the rate he would have received if he had been selected for the supervisory position, and continue to pay him at the supervisory rate until such time as he is promoted to a supervisory position.

Although Chairman Battista and Member Schaumber rejected the Respondent's position that the Board lacked the authority to order Lewallen promoted to a supervisory position because such positions are not covered by the Act, they found merit in the Respondent's contention that the judge's proposed remedy potentially infringed on the Respondent's managerial hiring prerogatives. Because Lewallen had never held a supervisory position and had never been selected by the Respondent's management to be a supervisor, Chairman Battista and Member Schaumber said "by ordering his promotion to the supervisory ranks at this time we would be effectively assuming the 'managerial responsibility of weighing a wide variety of factors involved in [the] decision' as to whether Lewallen is suitable for a supervisory position." Ford Motor Co., supra at 159. Accordingly, they chose not to assume that "managerial responsibility" and left to the Respondent the ultimate decision as to whether Lewallen should be offered a supervisory position.

Member Walsh concluded that his colleagues' refusal to order the Respondent to offer a promotion to Lewallen denied Lewallen a permissible and effective remedy, and substituted in its place a punitive one. He said their concern about the Board's involvement in the supervisory selection process is unfounded, explaining:

By rejecting the Respondent's defense that Lewallen would not have been selected for the supervisory position for legitimate business reasons, we are effectively finding that the Respondent would have selected Lewallen absent his protected activity. Thus, ordering the Respondent to do that which it would have done had it been acting lawfully would not be usurping the prerogative of management to select its workforce. Because the Respondent's selection committee determined that Lewallen is qualified for the position, we would not be ordering the Respondent to promote an unqualified individual to the supervisory ranks or be substituting our business judgment for that of the Respondent. For these reasons there is no impediment to the remedy recommended by the judge.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Bobby Lewallen, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Atlanta on Nov. 22, 2002. Adm. Law Judge Lawrence W. Cullen issued his decision Dec. 9, 2002.

04/09/2004
by Ross Runkel at LawMemo

NLRB Law Memo 04/09/2004
by LawMemo.Com - First in Employment Law

American Polystyrene Corp. (31-CA-25761; 341 NLRB No. 67) Torrance, CA March 30, 2004.

Chairman Battista and Member Schaumber reversed the administrative law judge and dismissed the complaint, which alleged that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish requested financial information to Food & Commercial Workers Local 1C. Member Walsh disagreed with his colleagues.

The judge found that the Respondent claimed an inability to pay when Respondent's general manager Carolyn Tan responded to the Union's question about whether she could afford the Union's proposals by stating, "No, I can't. I'd go broke." She found that the Respondent's subsequent statements on the matter did not serve to retract its initial claim of inability to pay and that the Respondent's refusal to supply the Union with the requested financial information violated the Act.

Chairman Battista and Member Schaumber disagreed, finding that the Respondent almost immediately retracted any claim of inability to pay and was not, therefore, obligated to furnish the Union with the requested information. They wrote:

Even assuming that Tan's oral 'I'd go broke' statement made during the heat of bargaining rose to the level of a claimed inability to pay, we find that the Respondent effectively retracted any such claim simultaneously with its denial of the Union's request for information. Citing Tan's statement, the Union submitted a request for information at the close of the bargaining session. On the very next day, Tan hand-delivered a letter in response denying that she made a claim of inability to pay and clarifying the Respondent's position that the uncertain economic times called for a more cautious approach than the Union proposed. Thus, the Respondent's response was made immediately and in writing, and it unequivocally advised the Union that the Respondent's ability to pay for the Union's bargaining proposals was not in question.

In dissent, Member Walsh held that the judge correctly decided that the Respondent claimed an inability to pay the Union's bargaining proposals, failed to retract its claim, and unlawfully failed to provide the Union with requested financial information. Regarding Tan's "No, I can't. I'd go broke" statement to the Union's bargaining team, he wrote: "The real question in this case is whether the Respondent's subsequent statements and actions served to retract its claim. They did not." Member Walsh concluded that "all of the Respondent's statements about its bargaining position began with a denial that Tan made the 'go broke' statement. Because the judge discredited Tan's denial that she uttered the 'go broke' statement, each of the Respondent's subsequent alleged retractions began with a falsehood. Clearly, lying is a sign of bad-faith bargaining."

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Food & Commercial Workers Local 1C; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles on Dec. 9, 2002. Adm. Law Judge Lana H. Parke issued her decision Jan. 24, 2003.

***

National Express Corp. d/b/a ATC/Forsythe & Associates, Inc. (28-CA-17291, 17667; 341 NLRB No. 66) Tempe, AZ March 30, 2004.

Chairman Battista and Member Schaumber, with Member Liebman concurring, adopted the administrative law judge's dismissal of the complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating employees Lino (George) J. Lima and Eugene McGiffin. They also found that McGiffin was not illegally interrogated by Respondent's General Manager Mark Ward.

The complaint alleged that Lima was discharged because he had filed a charge in 2000 relating to alleged threats a then supervisor had made to employees and because he formed, joined, and assisted TBOC (Tempe Bus Operators Committee); and that McGiffin was discharged because he formed, joined, and assisted the TBOC, and because he met with city officials on or about December 12, 2001, to discuss terms and conditions of employment. However, Chairman Battista and Member Schaumber agreed with the judge's finding that Lima was discharged for failing to report an accident, in violation of company policy and that McGiffin was discharged because he refused to cooperate with the Respondent's investigation into his activities that were not protected by Section 7 of the Act, and not because he engaged in protected activities.

In her concurrence, Member Liebman said that based on the judge's credibility determinations, she agreed with the finding that the General Counsel did not prove by a preponderance of the evidence that the discharges of Lima and McGiffin were unlawfully motivated. In Lima's case, Member Liebman wrote that she was persuaded by the facts that Lima's failure to report the incident was the reason for his discharge, that Lima's affidavit states that failure to report was the reason given for his termination, and that Lima was hired the same day by a related subsidiary of the Respondent. With regard to McGiffin, she stated that to the extent that McGiffin's activities at the December 12 meeting were unprotected, his discharge for refusing to answer questions about that activity was lawful but the General Counsel did not argue that McGiffin had a right to refuse Ward's question about contractual interference because he could not answer those questions without also revealing his protected TBOC activities. See Stoner Lumber, Inc., 187 NLRB 923, 930 (1971).

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Lino (George) J. Lima and Eugene McGiffin, Individuals; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Phoenix, April 8-10, 2002. Adm. Law Judge James L. Rose issued his decision June 27, 2002.

***

Blue Chip Casino, L.L.C., a wholly owned subsidiary of Boyd Gaming Corp. (25-CA-27856-1; 341 NLRB No. 74) Michigan City, IN March 31, 2004.

The Board adopted the recommendations of the administrative law judge and held that the Respondent violated Section 8(a)(1) of the Act by suspending and then terminating Delano McMillin.

Member Schaumber concurred in the result reached by his colleagues that McMillin engaged in certain protected concerted activities, that the General Counsel showed that those activities were a motivating factor in his discharge, and that the Respondent failed to show it would have discharged McMillin absent those activities.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Delano Roy McMillin, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at LaPorte, June 3-4, 2002. Adm. Law Judge William G. Kocol issued his decision Aug. 16, 2002.

***

Chicago and Northeast Illinois District Council of Carpenters (Prate Installations, Inc.) (13-CD-664; 341 NLRB No. 73) Wauconda, IL March 31, 2004.

Relying on the factors of the Employer's preference, economy and efficiency of operations, and skills and training, the Board decided that the employees of Prate Installations, Inc., represented by Roofers Local 11 are entitled to perform the work in dispute. Specifically, the shingling work¾the installing of underlayment, shingles, and ice and watershields¾at new construction sites located at: Lakemoor Farms at Route 12 and Route 120, Lakemoor, Illinois; The Lindens at Route 88 and Orchard Road, Algonquin, Illinois; Algonquin Lakes at Route 62 and Sand Bloom, Algonquin, Illinois; Natures Pointe at Waterford and Caredon, Aurora, Illinois; Pheasant Ridge at Drauden Road and Theodore, Joliet, Illinois; Ashcroft at Route 25 and Plainfield Road, Oswego, Illinois; Windsor Pointe at Route 56 and Galena Road, Sugar Grove, Illinois; and Farmington Lakes at Route 30 and Route 34, Oswego, Illinois.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

Electrical Workers IBEW Local 494 (Gerald Nell, Inc.) (30-CB-4127, 4128; 341 NLRB No. 71) Waukesha, WI March 31, 2004.

On remand from the U.S. Court of Appeals for the D.C. Circuit, the Board reversed the prior decision, 332 NLRB 1223 (2000), and held that the Respondent violated Section 8(b)(1)(B) of the Act by restraining and coercing an employer, Gerald Nell, Inc. (Nell), in the selection of its representatives for the purposes of collective bargaining and grievance adjustment by preferring and processing union disciplinary charges against Charging Party Joseph Podewils, by finding Podewils guilty of such charges, and by levying a fine against him. In the earlier decision, the Board found, contrary to the administrative law judge, that the
Respondent was not seeking to enter into a collective-bargaining relationship with Nell, and dismissed the complaint.

On review, the court of appeals rejected the Board's finding that the Respondent was not seeking a collective-bargaining relationship with the Employer. Because the court's finding is the law of the case and the Respondent was seeking a collective-bargaining relationship with Nell, and all remaining elements of an 8(b)(1)(B) violation have already been adjudicated and established in the initial proceeding, the Board held, in this supplemental decision, that the Respondent violated Section 8(b)(1)(B) and issued an appropriate remedial order.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

Frito Lay, Inc. (36-RD-1595; 341 NLRB No. 65) Vancouver, WA March 31, 2004.

Chairman Battista and Member Schaumber certified the results of a decertification election held on January 17, 2002, which showed 29 votes cast for and 32 votes cast against union representation, with no challenged ballots. Contrary to the Regional Director, they overruled the Union's (Teamsters Local 58) Objections 2 and 3, alleging that the election should be set aside based on (1) the Employer's use of "ride-alongs" (nonunion truckdrivers from Frito Lay facilities and company managers and supervisors) to communicate with the unit employees prior to the election and (2) Operations Director Alex Rembert's question to a union steward regarding whether he would quit if the Union were decertified.

Member Liebman, concurring, found the result is compelled by Noah's New York Bagels, 324 NLRB 266 (1997). She wrote: "There is no basis for setting aside the election in this case unless 'ride-alongs'-in which employer officials accompany employee-drivers in order to campaign against the union-are deemed inherently objectionable. But the Board instead looks to the specific circumstances, applying several factors to gauge the tendency of particular ride-alongs to interfere with employee free choice. We should reconsider that approach. As this case illustrates, there are good reasons to adopt a bright-line rule prohibiting campaign ride-alongs altogether."

Chairman Battista and Member Schaumber disagreed that the Board should revisit Noah New York Bagels and consider whether to adopt a bright line rule prohibiting all employer ride-alongs for campaign purposes during the critical period, noting no party seeks to overrule Noah New York Bagels and there is no suggestion that its principles have given rise to confusion or have been difficult to administer. They concluded that the multifactor approach of Noah's New York Bagels "represents a careful balance between employee rights and managerial prerogatives."

(Chairman Battista and Members Liebman and Schaumber participated.)

***

Hewlett Packard Co. (25-CA-28591; 341 NLRB No. 62) Indianapolis, IN March 29, 2004.

The Board affirmed the administrative law judge's findings and held that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging employee David Snead because of his activities for the Steelworkers.

Chairman Battista agreed with the judge and his colleagues that the General Counsel met his burden under Wright Line, 251 NLRB 1083 (1980), by showing that the Respondent disparately enforced its "remain in your work area" rule, and failed to establish that it would have discharged Snead even absent his union activities. He found it unnecessary to rely on the judge's additional reasons for finding the violation.

(Chairman Battista and Members Liebman and Meisburg participated.)

Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Indianapolis, July 10 and 11, 2003. Adm. Law Judge Joseph Gontram issued his decision Nov. 5, 2003.

***

Iron Workers Local 433 (Steel Fabricators Assoc.) (21-CB-12858; 341 NLRB No. 68) Los Angeles, CA March 31, 2004.

The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(b)(1)(A) of the Act when it threatened to, and later did, apply Sotero Lopez' dues payment to his fine balance, and threatened him with suspension for failing to pay his dues. It found no merit in the Respondent's argument that the judge erred in finding that it unlawfully informed Lopez that it would apply his dues payments to his fine balance because the complaint contained no such allegation. Citing Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d. Cir. 1990), the Board explained it may find and remedy a violation even in the absence of a specific complaint allegation if the issue is closely connected to the subject matter and has been fully litigated and that both conditions have been met in the instant matter.

Contrary to the judge, the Board found that the Respondent unlawfully refused to register and refer Lopez for employment from April 30 until September 5, 2000, agreeing with the General Counsel that, under the circumstances, it would have been futile for Lopez to attempt to register. The Board rejected the judge's finding that Lopez was unable to work because of his claimed disability, noting Lopez' uncontradicted testimony that it was the Respondent's refusal to register and refer him-not his physical problems or disability claim-that prevented him from working.

The Board reversed the judge's finding that the Respondent unlawfully suspended Lopez from membership and, therefore, dismissed the allegation that the Respondent unlawfully failed to give Lopez notice of his rights as a nonmember under Communications Workers of America v. Beck, 487 U.S. 735 (1988) and NLRB v. General Motors Corp., 373 U.S. 734 (1963). It agreed with the Respondent that there is no evidence that Lopez was suspended.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Sotero Lopez, an Individual; complaint alleged violation of Section 8(b)(1)(A) and 8(b)(2). Hearing at Los Angeles on June 24, 2002. Adm. Law Judge William L. Schmidt issued his decision Sept. 30, 2002.

***

Laborers Local 271 (New England Foundation Co., Inc.) (1-CD-1036; 341 NLRB No. 70) Providence, RI March 31, 2004.

The Board determined that the employees of New England Foundation Co., Inc., represented by Laborers Local 271, are entitled to perform work associated with the drilling and placement of concrete for drill shafts/caissons on the Providence River Washington Bridge rehabilitation project in Providence, Rhode Island. In making the award, the Board relied on the factors of collective-bargaining agreements, employer preference and past practice, area practice, and relative skills, training, and safety.

(Chairman Battista and Members Liebman and Meisburg participated.)

***

United Rentals, Inc. (32-RC-5078; 341 NLRB No. 72) San Leandro, CA March 31, 2004.

The Board reversed the Regional Director's Decision and Direction of Election and remanded this matter to the Regional Director for further appropriate action.

The Regional Director found appropriate the petitioned-for unit of mechanics, yard employees, and drivers, excluding counter employees, the parts associate, and the branch associate at the Employer's San Leandro, California facility and that mechanic foreman Sweat be permitted to vote subject to challenge. Additionally, the Regional Director found that the only evidence of interchange is limited to occasional instances that are insufficient to require the inclusion of the counter employees, parts associate, and branch associate in the petitioned-for unit. The Employer argued that the smallest appropriate unit is a facility-wide unit of the San Leandro facility employees.

Contrary to the Regional Director, the Board asserted that the overwhelming and undisputed evidence of overlapping duties and interchange between the excluded employees and the petitioned-for employees, and of their common terms and conditions, demonstrated that the petitioned-for unit is not an appropriate unit. Based on the significant overlapping duties and interchange, common labor relations control, common oversight and assignment of work by Branch Manager Dale Ferdinandi, common hours of work, and similar wages and benefits, the Board found that the excluded counter employees, the parts associate, and the branch associate share such a substantial community of interest with the petitioned-for employees that they must be included in the unit. Because the Petitioner (Laborers Local 886) has not indicated whether it would be willing to proceed to an election in a unit different from the unit found appropriate by the Regional Director, the case was remanded to the Regional Director.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

Willamette Industries, Inc. and Weyerhaeuser Co., a Golden State Successor (26-CA-19667, et al.; 341 NLRB No. 75) Fort Smith, AR March 31, 2004.

Members Liebman and Walsh affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by adversely changing the work schedules of a group of its corrugator employees in retaliation for their activity for Paper, Allied-Industrial, Chemical and Energy Workers International. They modified the judge's remedy to include the traditional remedy for a discriminatory change in working conditions, i.e., restoration of the status quo ante, and the payment of backpay.

Chairman Battista, dissenting in part, agreed that the Respondent unlawfully instituted a change in the employees' work schedules because of their union activity, and that the affected employees should be made whole for their loss of wages and overtime. He would not require the reinstatement of the prior schedule, noting that: 1) neither the General Counsel nor the Union sought this remedy at the hearing before the judge; 2) the Respondent and apparent successor (Weyerhauser) did not have the opportunity to argue and present evidence before the judge that a restoration of the prior schedule would be inappropriate; and 3) more than 3 years have passed since the violation occurred and a new company has taken over the Respondent's operations.

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Paper, Allied-Industrial, Chemical and Energy Workers International; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Fort Smith, Jan. 13-14, 2003. Adm. Law Judge Pargen Robertson issued his decision April 21, 2003.

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.

***

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.)

***

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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