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05/28/2004
by Ross Runkel at LawMemo
NLRB Law Memo 05/28/2004
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 4 decisions.
Donaldson Bros. Ready Mix, Inc. (19-CA-26948-1, et al.; 341 NLRB No. 124) Hamilton, MT May 19, 2004.
The administrative law judge found, and the Board affirmed, numerous violations of Section 8(a)(1) and (3) of the Act committed by the Respondent. Among others, the Board adopted the judge's finding that the Respondent violated Section 8(a)(1) of the Act by interrogating employee Allen Dukelow and violated Section 8(a)(3) by laying off employee Jim West and by granting the employees a wage increase in response to the union activity. Contrary to the judge, it found that the Respondent violated Section 8(a)(1) by banning off-duty employees from its premises and by misrepresenting the eligibility of union-represented employees to participate in its Employee Stock Option Plan (ESOP). The Board also found that the Respondent did not violate Section 8(a)(1) by Vernon Weidow's attendance at a union meeting.
Chairman Battista and Member Schaumber agreed with the judge that Vernon Weidow was a statutory supervisor and that his warning to employees that they would not receive higher wages if they selected Operating Engineers Local 400 to represent them and his telling employees that they were stupid for supporting the Union violated Section 8(a)(1). Member Walsh disagreed with his colleagues on this issue. In his partial dissent, he said that Weidow does not have authority to hire or fire and is required to consult with Respondent President Charles Donaldson and present him with relevant facts regarding hiring and firing matters. In his view, the General Counsel has failed to establish that Weidow is a supervisor within the meaning of Section 2(11) of the Act.
Chairman Battista and Member Walsh, in agreement with the judge, held that the Respondent violated Section 8(a)(1) by creating the impression that employees' union activities were under surveillance and by threatening employees with discharge and violated Section 8(a)(3) by reducing employees' hours of work in retaliation for their union activity and by refusing to allow employee David Raines to clock in early. In his partial dissenting opinion, Member Schaumber wrote he would reverse the judge and find that the Respondent did not violate the Act by creating the impression of surveillance because the evidence does not establish that the Respondent's president, Charles Donaldson, conveyed to the employee listener that he learned of employee union activities through surreptitious surveillance. He also disagreed with his colleagues and the judge that the Respondent violated Section 8(a)(3) by reducing the hours of four unit employees on April 6 and 7, 2000, because, in his view, the evidence is insufficient to support the conclusion that diminished hours resulted from employees' union activities.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by Operating Engineers Local 400; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Hamilton, Aug. 22 and 23, 2000. Adm. Law Judge Jerry M. Hermele issued his decision Dec. 15, 2000.
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Jacobs Heating and Air Conditioning (4-CA-28122, 28143; 341 NLRB No. 128) Glenside, PA May 20, 2004.
Chairman Battista and Member Schaumber, in agreement with the administrative law judge, dismissed the complaint allegation that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire union applicants John Barzeski, Joseph Barzeski, and Patrick Keenan. They found that the Respondent carried its burden by proving that the union applicants (1) "did not possess the specific qualifications the position required" or (2) that "others (who were hired) had superior qualifications" and were hired for that reason. FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).
The Respondent is a contractor that specializes in residential installation and service of heating, ventilation, and air-conditioning (HVAC) systems involving a variety of tasks including electrical, piping, and wiring work. According to the judge, the Respondent "was looking for employees experienced in all aspects of HVAC for positions in installation and service." The judge found that antiunion animus contributed to the Respondent's decision not to hire the three applicants but that the General Counsel had not met his FES burden of proving that the applicants had the "experience or training relevant to the announced or generally known requirements" of the positions for hire. Even assuming that this burden had been met, the judge observed, the Respondent had established a defense, by showing that the applicants "did not possess the specific qualifications the position required."
Dissenting in part, Member Liebman determined that the Respondent unlawfully refused to hire the three union applicants. Contrary to her colleagues and the judge, she would find (1) that the General Counsel demonstrated that the union applicants had both experience and training relevant to the announced requirements for the positions that the Respondent sought to fill; and (2) that, in turn, the Respondent failed to proved that it refused to hire the union applicants because they lacked CFC certification (certified to handle chlorofluorocarbon refrigerants) and were experienced only in "sheet metal work," not all aspects of HVAC work.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Sheet Metal Workers Local 19; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia on June 26-27, 2001. Adm. Law Judge Benjamin Schlesinger issued his decision Sept. 18, 2001.
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Nevada Security Innovations, Ltd. (31-CA-26020; 341 NLRB No. 126) Las Vegas, NV May 18, 2004.
The Board adopted the administrative law judge's recommendation that the Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing on and after August 15, 2004, to meet and bargain with the Police, Security, & Correction Officers as the exclusive collective-bargaining representative of the employees in the appropriate unit. The Board found no merit in the Respondent's argument that the Union transferred its bargaining rights to an affiliated local, Local 2001 and, therefore, the Respondent had no obligation to bargain.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Police, Security, & Correction Officers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles on Oct. 20, 2003. Adm. Law Judge Jay R. Pollack issued his decision Dec. 22, 2003.
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U.S. Information Services, Inc. (2-CA-34668-1; 341 NLRB No. 129) Nyack, NY May 21, 2004.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to provide the Union (Communications Workers) with information relating to 2001 Christmas bonuses it gave to its employees.
In exceptions, the Union contended that the judge failed to require the Respondent to furnish information regarding all bonuses, not just the Christmas bonuses; failed to address the General Counsel's contention that the Respondent did not furnish the Union with certain additional information the Union requested; and failed to order that the notice be mailed to the Respondent's employees. The Union also excepted to judge's finding that CWA Local 1106, not the Union, was the employees' exclusive bargaining representative.
Having found merit in certain of the Union's exceptions, the Board modified the judge's Order to require the Respondent to: 1) provide the Union with information regarding all of the bonuses it gave to its employees; 2) provide relevant information to the Union about gross salaries, total hours, or overtime hours worked by each unit employee; and 3) mail the Notice to all affected employees in addition to posting the notice at its Nyack facility as the unit employees do not have a fixed worksite. It found it unnecessary to pass on which of the two unions is the employees' exclusive bargaining representative.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Communications Workers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, Oct. 7 and 8, 2003. Adm. Law Judge Raymond P. Green issued his decision Nov. 21, 2003.
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05/21/2004
by Ross Runkel at LawMemo
NLRB Law Memo 05/21/2004
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 6 decisions.
Alert: Board adopts new rule on collecting ballots in mail elections - Fessler & Bowman, 341 NLRB No. 122.
NLRB - Staff summarized 6 decisions.
Alert: Board adopts new rule on collecting ballots in mail elections - Fessler & Bowman, 341 NLRB No. 122.
Battle Creek Health System and Service Employees Local 79 (7-CA-45473, et al., 7-CB-13488; 341 NLRB No. 119) Battle Creek and Detroit, MI May 12, 2004.
The Board adopted the recommendations of the administrative law judge and found that the Union (Service Employees Local 79) violated Section 8(b)(1)(A) of the Act by threatening employees with bodily harm, destruction of their property, and other improper adverse consequences if they supported decertification of the Union or if they crossed the picket line.
No exceptions were filed to the judge's finding that the Employer (Battle Creek Health System) violated Section 8(a)(1) by issuing or maintaining a policy requiring employees to report to management prior to discussing conditions of employment with other employees, and instructing employees to report harassment by union members to management.
The judge sustained several of the Employer's objections to the Union's preelection conduct and directed a second election in Case 7-RD-3364. On January 15, 2004, the Board granted the individual Petitioner's request to withdraw the decertification election petition and severed Case 7-RD-3364 from the instant proceeding.
(Members Schaumber, Walsh, and Meisburg participated.)
Charges filed by Battle Creek Health System and Service Employees Local 79; complaint alleged violation of Section 8(a)(1) and (3) and Section 8(b)(1)(A). Hearing at Battle Creek, April 21-24, 2003. Adm. Law Judge Paul Bauxbaum issued his decision Sept. 2, 2003.
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The Detroit News, Inc. (7-CA-41701; 341 NLRB No. 125) Detroit, MI May 14, 2004.
The Board affirmed the administrative law judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(3) and (1) of the Act when it discharged employee Louis Mleczko on December 4, 1998 for being part of a group that disrupted the Respondent's interviewing process at the University of Michigan's Ann Arbor campus on November 13, 1998. Member Schaumber agreed with his colleague's adoption of the judge's conclusion that Mleczko's conduct lost the protection of the Act.
Susan Burzynski, an assistant managing editor for the Respondent, was at the University of Michigan's Ann Arbor campus on November 13 to interview students to work as summer interns at the newspaper. Mleczko was at the University that day to attend a rally sponsored by the Graduates Assistants Union to show its support for the unions involved in a continuing labor dispute with the Respondent. At some point during the rally, a leader of the Graduates Assistants Union announced that the Respondent was conducting interviews on campus and that the group should walk to that building and protest. In the hallway outside the interview room, the demonstrators shouted epithets, used a loud speaker, sirens, and other noisemakers at the students and Burzynski. The demonstrators, numbering about 50, eventually flowed into the room and formed in the shape of a horseshoe around Burzynski and the two students. Burzynski recognized Mleczko as one of the protestors in the room.
On November 24, 1998, the Respondent sent a letter to Mleczko, which stated in part that he, along with approximately 50 other individuals, engaged in such disruptive conduct that the interviewer and students were forced to leave the room; and that the conduct violated the terms of an NLRB settlement stipulation which provided in part that the Metropolitan Council of Newspapers Union would not restrain, threaten or coerce employees of The Detroit News because they choose to exercise their rights guaranteed under Section 7 of the NLRA. The letter gave Mleczko an opportunity to meet with Respondent to discuss his alleged involvement in the incident before taking any disciplinary action. The Union responded by letter dated December 3, 1998 declining the invitation to meet with the Respondent, asserting that Mleczko would not receive fair, nondiscriminatory treatment. The Union also denied any violation of the settlement stipulation. By letter dated December 4, Respondent notified Mleczko that he was discharged because of his conduct on November 13.
(Members Liebman, Schaumber, and Walsh participated.)
Charge filed by Newspaper Guild of Detroit Local 22; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit on Oct. 13, 1999. Adm. Law Judge William G. Kocol issued his decision Dec. 30, 1999.
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Fessler & Bowman, Inc. (7-RC-22434; 341 NLRB No. 122) Flushing, MI May 12, 2004.
The Board adopted a new rule that any party's collection of ballots in a Board-conducted mail ballot representation election constitutes objectionable conduct that may warrant setting aside an election. It also revised the instructions in NLRB Form-4175, Instructions to Eligible Employees Voting By United States Mail, to reflect the new standard.
In this case, the tally of ballots for the runoff mail-ballot election held between July 24 and August 18, 2003, shows 19 votes for the Union (Plasterers Local 16) and 15 votes for the Petitioner (Bricklayers Local 9), with 2 challenged ballots. No exceptions were filed to the hearing officer's overruling of Petitioner's Objections 2, 3, and 4. The Union obtained exclusive control of two voters' mail ballots for an extended period of time after they were cast. The hearing officer determined that the Union's solicitation and collection of the two ballots did not constitute objectionable conduct because the ballots were sealed when given to the Union's agents and there was no evidence of ballot tampering. She found no evidence that the Union's conduct compromised the secrecy of the mail ballot or that the Union's solicitations to collect ballots placed any undue pressure on the voters.
Members Liebman and Walsh held, contrary to the hearing officer, that the Union engaged in objectionable conduct when it collected the two mail ballots because such conduct casts doubt on the validity of the two ballots. However, they agreed that the Union's solicitation of the ballots did not constitute objectionable conduct because "unlike the ballot collection, the solicitation of ballots did not create an opportunity for ballot tampering or for a breach of secrecy."
Regarding the issue of whether a party's collection of mail ballots is objectionable, Members Liebman and Walsh wrote: "We agree with the proposition that the secrecy of balloting-be it manual or mail ballot-is a hallmark of our election procedures. Where mail-ballot collection by a party occurs, we find that it casts doubt on the integrity of the election process and undermines election secrecy."
Based on the current actual tally (19-15), Members Liebman and Walsh found that the Union's objectionable conduct involving the two collected mail ballots could have affected the election result. Assuming that the two collected ballots were changed from votes for the Petitioner to votes for the Union, the election would have resulted, in the absence of the objectionable conduct, in a 17-17 tie. Therefore, Members Liebman and Walsh remanded the case to the Regional Director for resolution of the challenges as follows: 1) if both challenges are sustained, the election must be set aside; 2) if only one challenge is sustained, the election will be set aside if the eligible ballot is cast for the Petitioner, but will stand if it was cast for the Union; and 3) if neither challenge is sustained the election will be set aside if at least one of the two eligible ballots was cast for the Petitioner.
Concurring in part and dissenting in part, Chairman Battista and Member Schaumber agreed with their colleagues insofar as they established the principles that a party's collection of mail ballots is objectionable conduct, but they would bar a party from soliciting or collecting mail ballots. They noted that their colleagues essentially hold that a party engages in objectionable conduct if it succeeds in its efforts to collect mail ballots, but does not engage in objectionable conduct if it fails in its efforts. Chairman Battista and Member Schaumber held that the integrity of the electoral process demands that the employee control his ballot at all times and any effort to interfere with the process, whether successful or not, undermines the integrity of the process, and is therefore objectionable.
Contrary to their colleagues' decision to set aside the election only if the collected ballots turn out to be determinative of the election result, Chairman Battista and Member Schaumber would establish a bright-line rule that elections should be set aside, upon the filing of timely objections, whenever a party is shown to have collected or solicited mail ballots. In the absence of a Board majority to adopt their positions, Chairman Battista and Member Schaumber agreed with their colleagues to remand the case to the Regional Director to resolve the challenges ballots and to take further appropriate action.
(Chairman Battista and Members Liebman, Schaumber, and Walsh participated.)
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ITT Industries, Inc. (7-CA-40946; 341 NLRB No. 118) Tawas City, MI May 13, 2004.
On remand from the D.C. Circuit, Members Liebman and Walsh reaffirmed the original finding reported at 331 NLRB 5 (2000) that the Respondent violated Section 8(a)(1) of the Act by prohibiting handbilling by its offsite employees at its East Tawas parking lot. Chairman Battista, contrary to his colleagues, did not find that the Respondent violated the Act.
The Board, in the original decision, adopted the judge's application of the standard set forth in Tri-County Medical Center, 222 NLRB 1089 (1976), that prohibits an employer from denying off-duty employees entry to parking lots and other nonworking areas to handbill except where justified by business reasons. The judge relied on Board cases holding that an employer's employees from one plant are considered employees when they handbill at another of the employer's plants.
On June 5, 2001, the court, in vacating the Board's decision wrote: "[W]e simply cannot assess the reasonableness of the Board's decision to apply the Tri-County test to off-site employees in the present case." Following the court's decision, the Board specifically addressed the court's concerns in Hillhaven Highland House, 336 NLRB 646 (2001), enfd. 344 F.3d 523 (6th Cir. 2003), which presented the same issue. The Sixth Circuit enforced the Board's decision in Hillhaven, holding that "the Board's finding that offsite employees enjoy Section 7 organizational rights of access that are nonderivative was reasonable under the law." The court found significant the fact that "offsite and onsite employees share the same common concerns as to a specific employer, not only as to employment in general for purposes of garnering union support, but also on matters relating to such things as wages, benefits, and other workplace issues."
Turning to this case, the majority accepted the court's opinion as the law of the case. They noted however that the Board in Hillhaven addressed the court's directive to develop a balancing test between the property interests of an employer and the Section 7 organizational rights of offsite employee and thus, they need only apply that test to the facts here. Applying Hillhaven, the majority found that the Respondent unlawfully denied access to offsite employees to handbill in its parking lot.
In dissent, Chairman Battista contended that the Respondent, for valid security reasons, has a policy that forbids access to the plant to all persons who work at the plant. He said that the issue is whether the Respondent must modify that policy so as to permit employees who work at other sites to come onto the property to engage in Section 7 activity. He would not require the Respondent to modify its policy. Chairman Battista found that the Respondent's property rights and security concerns, plus the employees' alternative means of access, outweigh the Section 7 rights involved and thus, the Respondent could prohibit its offsite employees from handbilling on its parking lot. In his view, the Respondent's prohibitions did not violate the Act.
(Chairman Battista and Members Liebman and Walsh participated.)
***
New York Display & Die Cutting Corp. (2-RC-22744; 341 NLRB No. 121) New York, NY May 12, 2004.
The Board, contrary to the hearing officer, overruled the challenge to the ballot of Gena McCormick. In the absence of exceptions, it adopted the hearing officer's recommendation that the challenge to the ballot of Carlos Forte be sustained, and that the challenges to the ballots of V. Seemangal, Claudia Vakhrushevea, Raisma Vaysman, and Crisante Torres be overruled. The Board directed the Regional Director to open and count the ballots of the voters whose challenges were overruled and prepare and serve on the parties a revised tally of ballots and issue the appropriate certification. The tally of ballots for the election conducted on September 18, 2003 showed 12 votes for and 9 against the Petitioner (Paper Allied Industrial Chemical Employees Local 107), with 6 challenged ballots, a number sufficient to affect the results of the election.
The Petitioner challenged McCormick's ballot on the grounds that she was not a regular employee because she had been hired only a short time before the election. The hearing officer agreed, concluding that McCormick's period of employment before the election "is too brief to find that McCormick is a regular employee," and sustained the challenge to her ballot. The Board found that the hearing officer erred in concluding that McCormick was not a regular part-time employee. Applying Arlington Masonry Supply, Inc., 339 NLRB No. 99 (2003), citing Davison-Paxon Co., 185 NLRB 21 (1970), the Board wrote that applying the Davison-Paxon test, McCormick did work a sufficient period of time in the period preceding the election to qualify as a regular part-time employee and should be included in the unit.
(Chairman Battista and Members Liebman and Walsh participated.)
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St. George Warehouse, Inc. (22-CA-24902; 341 NLRB No. 120) South Kearney, NJ May 12, 2004.
The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally transferring unit work to temporary agency employees without giving Teamsters Local 641 notice and an opportunity to bargain and failing to provide the Union with requested information concerning temporary agency employees and the agencies that supplied them.
Chairman Battista and Member Schaumber reversed the judge and dismissed the allegation that the Respondent engaged in surface bargaining, after considering the Respondent's conduct both at and away from the bargaining table and concluding that the Respondent engaged in hard but lawful bargaining to achieve a contract that it considered desirable. Member Walsh, dissenting on this issue, agreed with the judge that the Respondent violated the Act by engaging in surface bargaining, saying: "The Respondent expressly stated that the Union would not get a contract, made an unlawful unilateral change that seriously eroded the bargaining unit, delayed and refused to provide relevant information to the Union, and engaged in conduct at the bargaining table that showed its intent to frustrate bargaining and prevent the successful negotiation of a collective-bargaining agreement."
No exceptions were filed to the judge's finding that the Respondent violated the Act by delaying in providing the Union with information on health insurance premiums and failing to provide the Union with the names, addresses, job classifications, wage rates, and duration of employment of temporary agency employees who have performed bargaining unit work.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Teamsters Local 641; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark, July 8-9, 2002. Adm. Law Judge Steven Davis issued his decision Oct. 22, 2002.
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05/14/2004
by Ross Runkel at LawMemo
NLRB Law Memo 05/14/2004
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 3 decisions.
Celtic General Contractors, Inc. and Abacus Management Corp., a Single Employer (2-CA-32313; 341 NLRB No. 116) New York, NY May 7, 2004.
The Board adopted the recommendations of the administrative law judge and held that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging and laying off employees because they supported the Carpenters District Council for New York City and Vicinity; and violated Section 8(a)(1) by, among others, informing employees that they were discharged because they had communicated with the Union and caused the Union to stage a demonstration, offering employees a bonus to work late on the evening of the election, and questioning employees about their support for the Union and how they would vote in the election.
In adopting the judge's finding that the Respondent violated the Act by offering employee Neville Vegas a bonus to work late on the evening of the election, the Board did not rely on the judge's consideration of the Respondent's antiunion animus in establishing the violation.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Carpenters District Council for New York City and Vicinity; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York on 15 days between Dec. 11, 2000 and July 24, 2001. Adm. Law Judge Eleanor MacDonald issued her decision April 19, 2002.
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Toll Mfg. Co. (9-CA-37449; 341 NLRB No. 115) Dayton, OH May 4, 2004.
Chairman Battista and Member Walsh agreed with the administrative law judge's findings set forth in his supplemental decision that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Leslie Pardue on February 23, 2000. However, unlike the judge who recommended full backpay for Pardue, the majority held that Pardue is entitled to backpay from the date of his unlawful discharge on February 23, 2000 until December 12, 2000-the first day of the initial unfair labor practice hearing and the date that he first lied under oath. Dissenting, Member Schaumber would dismiss the complaint, concluding that the Respondent's reasons for discharging Pardue were valid, and not pretextual.
In his initial decision, the judge held that the Respondent unlawfully discharged Pardue because of his union or other concerted activities. The Respondent claimed that Pardue failed to properly clock in twice after lunch in February 2000 and violated its no-call/no-show rule by not notifying the Respondent within 2 hours of the start of his shifts on February 21 and 23, 2000, that he would not be at work. The judge credited the testimony of Pardue and his wife that they called in to Plant Manager Donley to report that Pardue was sick and would not be reporting to work. He also found that the warnings given to Pardue for the alleged lunchtime violations were not validly issued and that the no-call/no-show rule had not been enforced as strictly against other employees. As no exceptions were filed, the Board adopted the judge's decision.
During the compliance investigation, the General Counsel, faced with discrepancies in Pardue's disposition and timecards showing that Pardue had worked for Zoom Products on February 21 and 23, 2000, requested that the record be reopened and the case remanded to the judge. The Board granted the motion, vacated its earlier order, and remanded the case to the judge to reopen the hearing and take additional testimony concerning the call-ins. In his supplemental decision, the judge found that Pardue and his wife lied at the original hearing about calling in and that their testimony at the supplemental hearing was an attempt to perpetuate the falsehood. He decided that the discrediting of the Pardues did not disturb his initial finding that the reasons offered by the Respondent for discharging Pardue were pretexts.
Member Schaumber concluded that the judge failed to engage in a proper Wright Line analysis of the issue presented and therefore reached the wrong result. He concluded that the judge, after having found that Pardue had lied and that Donley, whose testimony he had thoroughly discredited, had told the truth when he testified that Pardue had not called in on the days in question, should have reevaluated his credibility resolutions and only then undertaken an analysis of whether the General Counsel and Respondent met their respective Wright Line burdens.
The majority noted that the judge in his supplemental decision reaffirmed his initial decision, thereby incorporating his analysis of the evidence of unlawful motivation. They found that the judge correctly relied on the Respondent's failure to follow its own progressive discipline system and the Respondent's failure to notify Pardue of the timeclock warnings as further evidence of unlawful motivation. "Under these circumstances, the dissent elevates form over substance in arguing that the judge was 'obligated to begin his Wright Line analysis anew,'" the majority held.
(Chairman Battista and Members Schaumber and Walsh participated.)
Supplemental hearing at Dayton on Nov. 19, 2002. Adm. Law Judge John T. Clark issued his supplemental decision April 23, 2003.
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Whiteford Ford Trucks, Inc. (25-CA-27093-1, et al.; 341 NLRB No. 117) Greenwood, IN May 6, 2004.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to hire Anthony Hudson, Forrest Hutchinson, and Gary Miller.
The judge held that the three applicants were qualified to meet the Respondent's requirements for the mechanic position but the Respondent's union animus toward their engaging in union and other protected activity at their former employer contributed to its refusal to hire the applicants. Member Schaumber questioned whether the Board should continue using such terms as "union animus" or "anti-union animus" and adopt in lieu thereof a term such as "Section 7 animus" as he found the former terms are confusing. He adopted the judge's finding because the General Counsel showed that the Respondent's conduct reflected animus towards the applicants' Sec. 7 activity.
(Members Liebman, Schaumber, and Meisburg participated.)
Charges filed by Forrest Hutchinson, Gary Miller, and Anthony Hudson, Individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Indianapolis, March 20-22, 2001. Adm. Law Judge Marion C. Ladwig issued his decision Sept. 24, 2001.
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05/07/2004
by Ross Runkel at LawMemo
NLRB Law Memo 05/07/2004 Article - Labor Law For Managers of Non-Union Employees In Traditional And Cyber Workplaces. This article [Full text] discusses several important ways that non-union workplaces are affected by the National Labor Relations Act and the NLRB: investigations of misconduct, electronic monitoring, computer forensics, disciplining employees for griping, confidentiality and wage secrecy policies, no-solicitation and no-distribution policies, and electronic spying. The article has a special focus on the "cyber workplace," including employee use of computers, email, and the world wide web. The author, Professor Nancy J. King, formerly practiced labor and employment law on behalf of management. NLRB - Staff summarized 21 decisions. George P. Bailey & Sons, Inc. (4-CA-31620; 341 NLRB No. 108) Bristol, PA April 30, 2004. The Board adopted the recommendations of the administrative law judge and held that the Respondent violated Section 8(a)(1) and (3) of the Act by issuing a written warning dated August 14, 2002 to employee Thomas Ditmars, placing a disciplinary memo in Ditmars' file, and discharging Ditmars because he engaged in union activities. (Chairman Battista and Members Liebman and Meisburg participated.) Charge filed by Electrical Workers IBEW Local 269; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia on March 6, 2003. Adm. Law Judge Eric M. Fine issued his decision July 2, 2003. *** Goer Mfg. Co., Inc. (11-CA-20013; 341 NLRB No. 105) North Charleston, SC April 30, 2004. Members Walsh and Meisburg granted the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to continue in effect the terms and conditions of its collective-bargaining agreement with Carpenters East Coast Industrial Council Local 2221 by refusing to pay unit employees vacation and perfect attendance pay earned prior to February 11, 2003. The Respondent, in its second amended answer, admitted the factual allegations in the complaint, including that it unilaterally discontinued vacation and perfect attendance pay, but asserted the affirmative defense that the Board's proceeding is stayed by the provisions of Section 362 of the Bankruptcy Code. Member Schaumber, dissenting, would dismiss the complaint, noting that it involves essentially a mere collection action against a bankrupt employer that is financially unable to pay moneys due under the terms of a collective-bargaining agreement. He wrote: "I question whether such facts establish an unfair labor practice as a matter of law. Moreover, given the availability of alternative fora in which the Union can pursue contractual remedies, I do not believe the prosecution and adjudication of such claims is a wise or appropriate use of the Board's resources." (Members Schaumber, Walsh, and Meisburg participated.) Charge filed by Carpenters East Coast Industrial Council Local 2221; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment Jan. 14, 2004. *** Industrial Materials Clearance, Inc. (7-CA-46312, 7-RC-22490; 341 NLRB No. 87) Romulus, MI April 30, 2004. The Board affirmed the recommendations of the administrative law judge and found that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging David Powers. The Board noted that the evidence supports an inference that the Respondent knew of Powers' union activities when it discharged him, and that those activities were a motivating factor for his discharge. It overruled the challenge to Powers' ballot and directed the Regional Director to open and count the ballot and thereafter, prepare and serve on parties a revised tally of ballots and issue the appropriate certification. The tally of ballots for the election of July 14, 2003 showed one vote for and one against, the Petitioner (Teamsters Local 247), with one determinative challenged ballot. In the absence of exceptions, the Board adopted the judge's findings that the Respondent violated Section 8(a)(1) by coercively asking employee Horton to tell the Union to withdraw its election petition, by coercively interrogating Horton, and by questioning employees Horton and Messer in preparation for the unfair labor practice hearing without complying with the safeguards established in Johnnie's Poultry Co., 146 NLRB 770 (1964), enfd. denied 344 F.2d 617 (8th Cir. 1965). (Members Schaumber, Walsh, and Meisburg participated.) Charge filed by David Powers, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, Aug. 20-21, 2003. Adm. Law Judge David L. Evans issued his decision Nov. 5, 2003. *** K-Mart Corp., Debtor-In-Possession (7-CA-42873(1)(2), et al.; 341 NLRB No. 102) Clinton, MI April 30, 2004. The Board dismissed the complaint, agreeing with the administrative law judge's dismissal of the allegation that the Respondent violated Section 8(a)(1) of the Act by discharging Christopher Munsie for complaining to Respondent on behalf of himself and other employees regarding the promulgation of work rules limiting the locations where employees could take their breaks. It also found merit in the Respondent's exceptions to the judge's finding that the Respondent violated Section 8(a)(3) and (1) by discharging Ricky Brock because he assisted Auto Workers Local 174 in its election campaigns and to discourage other employees from engaging in such activity. The Board, in agreeing with the judge that Munsie's conduct was unprotected, concluded that the General Counsel failed to show that Munsie was engaged in concerted activity. The Respondent argued in its exceptions that Brock would have been discharged for his threatening and assaultive behavior toward a fellow employee even in the absence of any protected activity. The Board found merit in the Respondent's argument and held that the Respondent rebutted the General Counsel's case. (Chairman Battista and Members Liebman and Schaumber participated.) Charges filed by Auto Workers Local 174; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, May 6-9, 2002. Adm. Law Judge Margaret G. Brakebusch issued her decision Aug. 8, 2002. *** Lakewood Engineering and Mfg. Co. (13-RC-20869; 341 NLRB No. 101) Chicago, IL April 30, 2004. The Board granted the Employer's request for review of the Regional Director's second supplemental decision on objections and overruled the Petitioner's (Electrical Workers UE) Objections 1 and 2, finding contrary to the Regional Director, that the objections are without merit. The Board remanded the case to the Regional Director to resolve the outstanding challenges and Petitioner's Objection 3. The tally of ballots for the runoff election held on April 24, 2003 shows 140 votes for the Petitioner, 143 votes against the Petitioner, and 8 challenged ballots. Objection 1 alleges "the Board Agent failed to challenge four voters, despite having objective evidence, and thus actual knowledge, of their ineligibility to vote." Objection 2 alleges, "the day of the April 24 election, [Employer's] counsel . . . suppressed the facts regarding four voters' ineligibility to vote." Objection 3 alleges "the day of the April 24 election, [Employer's] Plant Manager . . . told at least two employees known to have been hired after the cutoff date to vote in the election." The Regional Director sustained Objections 1 and 2 without a hearing and set aside the results of the election. She did not address Objection 3 or the eight outstanding ballot challenges based on her resolution of Objections 1 and 2. The Regional Director determined that because the Board agent knew the eight new hires were hired after the eligibility cutoff date, her failure to challenge their ballots required that the election be set aside. (Chairman Battista and Members Schaumber and Walsh participated.) *** Lee Builders, Inc. (10-CA-33718, et al.; 341 NLRB No. 104) Huntsville, AL April 30, 2004. The Board considered the Respondent's exceptions, agreed that the administrative law judge's decision does not provide an adequate basis for review, and remanded the proceeding to the judge for further consideration of his findings of 8(a)(1) and (3) violations, with specific instructions. The judge found that the Respondent violated Section 8(a)(1) of the Act by interrogating employees, by threatening them with plant closure, the futility of supporting Carpenters Alabama Regional Council-Local 1274, and implicit job loss; and violated Section 8(a)(3) by discharging three employees. The Board noted that the judge failed to set out the bases for his credibility resolutions and that his decision lacked sufficient detail about the specific evidence that he relied on in resolving the relevant factual issues in dispute and the factual basis for each of his findings of violations. Member Walsh found that the judge's decision and the record provide an adequate basis for review and he would proceed to a determination of the merits. (Chairman Battista and Members Schaumber and Walsh participated.) Charges filed by Carpenters Alabama Regional Council-Local 1274; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Huntsville, Oct. 21-22, 2002. Adm. Law Judge Lawrence W. Cullen issued his decision Feb. 12, 2003. *** Manhattan Crowne Plaza Town Park Hotel Corp. (2-RC-22395; 341 NLRB No. 90) New York, NY April 28, 2004. Chairman Battista and Member Schaumber, contrary to the Regional Director, overruled the Petitioner's (Security Personnel Officers and Guards) Objections 1 and 5 and certified the results of the election. In dissent, Member Walsh concluded that the election should be set aside and a new election held. The tally of ballots for the election held on June 27, 2001 showed 5 for and 13 against the Petitioner, with no challenged ballots. At issue is a memorandum that the Employer distributed to its security officers about a week prior to the election. The Petitioner's objections alleged that the memorandum threatened the employees with a loss of benefits and wages and interfered with the employees' free choice. The Regional Director found that the memorandum "clearly implied" that the loss of jobs, benefits, and wages suffered at other hotels was the Union's fault, and that it predicted similar losses were possible if the employees voted for the Union. The Regional Director concluded that this implied prediction was an objectionable threat because the Employer failed to provide an objective basis for the belief that, for reasons beyond its control, the employees' selection of the Union as their representative would lead to the same fate. The Employer excepted to the Regional Director's recommendation that the objections be sustained. The majority determined that the memorandum did not convey a threat of reprisal if the employees selected the Petitioner as their collective-bargaining representative but rather that it came within the range of permissible campaign conduct. See Novi American, Inc., 309 NLRB 544 (1992); Caradco Corp., 267 NLRB 1356 (1983). Citing NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), the majority wrote that an employer "is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a 'threat of reprisal or force or promise of benefit.'" Member Walsh held that the Regional Director correctly found that the Employer interfered with the election by threatening employees. He agreed with the Regional Director that the memorandum was a clear attempt to communicate the message that unionization at the other two hotels caused those employees to lose their jobs and benefits, and that unionization would likewise cause the Employer's employees to lose their jobs and benefits. (Chairman Battista and Members Schaumber and Walsh participated.) *** Mashuda Corp. (6-CA-33414; 341 NLRB No. 91) Cranberry Township, PA April 30, 2004. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by informing an applicant he was not hired because of his support for and activities on behalf of Operating Engineers Local 132 and Section 8(a)(1) and (3) by refusing to hire Gary V. Singer since on or about March 14, 2003. Because the Board adopted the judge's finding that the Respondent did not make a valid job offer of a night-shift position to Singer, it found it unnecessary to pass on whether that position would be substantially equivalent to the day-shift mechanic position unlawfully denied to Singer. Chairman Battista would leave to compliance the separate issue of whether Singer's comment to Mashuda, arguably showing a disinterest in a night-shift position, was a breach of the duty to mitigate backpay. Members Liebman and Walsh disagreed, noting that because Mashuda's statement to Singer was not a valid offer of employment, Singer had no obligation to reply. They noted also that the Board does not evaluate a discriminatee's response to an offer unless the respondent has established that the offer was valid. (Chairman Battista and Members Liebman and Walsh participated.) Charge filed by Gary V. Singer, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Pittsburgh on Oct. 1, 2003. Adm. Law Judge Eric M. Fine issued his decision Dec. 19, 2003. *** Meeker Cooperative Light and Power Association (18-CA-16924; 341 NLRB No. 89) Litchfield, MN April 27, 2004. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to furnish Electrical Workers IBEW Local 160 with necessary and relevant information concerning contracting out bargaining unit work. It modified the judge's recommended order to make it clear that the Respondent is only required to provide the Union with subcontracting information for the period beginning September 16, 2000, as alleged in the complaint. (Chairman Battista and Members Liebman and Meisburg participated.) Charge filed by Electrical Workers IBEW Local 160; complaint alleged violation of Section 8(a)(1) and (5). Parties waived a hearing. Adm. Law Judge Bruce D. Rosenstein issued his decision Dec. 17, 2003. *** Friendly Cab Co., Inc. d/b/a, a.k.a. Metro Cab Co., et al. (32-RC-5060; 341 NLRB No. 103) Oakland, CA April 30, 2004. The Board affirmed, with one modification, the Regional Director's Decision and Direction of Election, in which he found that the Employer's taxi drivers are employees, not independent contractors. The petitioning union is the East Bay Taxi Drivers Association. The Regional Director found that the evidence as a whole, including the large amount of day-to-day control exercised by the Employer over the drivers, warranted a finding that the taxicab drivers are employees. Contrary to the Regional Director, the Board found that the voucher system supports a finding that the drivers are employees because the evidence shows: 1) the voucher trips are fairly common; 2) the Employer's dispatcher has complete discretion in assigning voucher work; 3) drivers must redeem vouchers through the Employer; 4) the Employer charges drivers a significant percentage of the voucher amount when it is redeemed; and 5) the drivers perform voucher work for Friendly Transportation Co. when its employee drivers are not available. (Members Liebman, Walsh, and Meisburg participated.) *** Network Dynamics Cabling, Inc. (4-CA-27102, et al.; 341 NLRB No. 107) Westchester, PA April 30, 2004. Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire job applicants William Corazo, Raymond Della Vella, Robert Poston, and John Pritchard because of their membership in Electrical Workers IBEW Local 98. No exceptions were filed to the judge's findings that the Respondent violated Section 8(a)(1) by telling an employee that applicants for employment could not be affiliated with the Union, or that the Respondent violated Section 8(a)(3) by suspending employee Anthony Angelucci, sending him home early from work, issuing him warnings and discharging him, all because of his activities on behalf of the Union. (Chairman Battista and Members Liebman and Meisburg participated.) Charges filed by Electrical Workers IBEW Local 98; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, Nov. 6-9, 2000. Adm. Law Judge George Aleman issued his decision Sept. 17, 2001. *** North American Dismantling Corp., North American Demolition Corp. (7-CA-39923; 341 NLRB No. 95) Lapeer, MI April 30, 2004. On remand from the Sixth Circuit, Chairman Battista and Member Schaumber adhered to the original holding at 331 NLRB 1557 (2000) that Jeffrey G. Powell was discharged on May 9, 1997 for engaging in protected concerted activity. They found merit in the Respondent's affirmative defense, however, to the extent that the Respondent has established that it would have denied reemployment to Powell on May 22, 1997 because he attempted to steal company business. Accordingly, Chairman Battista and Member Schaumber determined that Powell is only entitled to back wages for the period between being fired at the job site and requesting employment on May 22 in his call to the office of the Respondent's owner and president, Rick Marcicki. Dissenting in part, Member Liebman would affirm the Board's original remedy requiring that Powell be reinstated and given full backpay. In her view, the Respondent has not met its burden of proof: it has not proven that Powell engaged in misconduct for which it would have disqualified any employee from continued or future employment. Member Liebman accepts the court's decision as the law of the case, but she disagreed as to the proper inquiry on remand. While the majority analyzes the issue under Wright Line as one of liability, she believes the relevant inquiry is more accurately analyzed as remedial: whether in light of after-acquired evidence (i.e., knowledge of Powell's attempt to "steal" the Respondent's business), the Respondent is required to offer reinstatement to Powell, whom it unlawfully terminated, and give him full backpay. The majority found it unnecessary to reach the remedial issue posed by the dissent because they accepted the court's decision as the law of the case and analyzed the failure to hire Power under Wright Line, as instructed by the court's remand order. In the original decision, the Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by discharging employees Powell, Robert W. Giltrop, and Jayson Zeitz and ordered the Respondent to offer the discharged employees reinstatement and make them whole for any loss of earnings and other benefits they may have suffered as a result of the unlawful discharges. On cross-petitions for enforcement and review, the Sixth Circuit, on April 12, 2002, affirmed the Board's findings as to Giltrop and Zeitz. The court agreed that Giltrop, Zeitz, and Powell had engaged in protected activity on May 9, and that, based on statements made by Supervisor Daniel Borashko, they had a reasonable basis to believe they had been fired. The court denied enforcement as to Powell, holding that the "NLRB had failed to make any finding as to the Companies' affirmative defense" that "Powell would have been fired for attempting to steal company business even had he not engaged in protected concerted activity." (Chairman Battista and Members Liebman and Schaumber participated.) *** Northeast Iowa Telephone Co. (18-RC-17190; 341 NLRB No. 97) Monona and Decorah, IA April 30, 2004. After consideration of the Employer's request for review, Members Liebman and Walsh affirmed the Decision and Direction of Election in which the Regional Director (1) found the petitioned-for employerwide multifacility unit appropriate; (2) found the lead technician not to be a statutory supervisor; and (3) found the record inconclusive with respect to the plant and wireless managers' status and allowed them to vote under challenge. Chairman Battista dissented in part. The Employer argued that the petitioned-for multifacility unit is inappropriate and that the lead technician is a statutory supervisor. With respect to the two managers, the Employer asserted that "the abundance of record evidence" showed that they are both statutory supervisors and if the Board agreed that the evidence is inconclusive it should reopen the record to permit the testimony of General Manager Arlan Quandahl, who was unavailable to testify at the hearing due to his recuperation from surgery. Members Liebman and Walsh determined that the employer failed to file a special appeal of the Regional Director's decision to schedule the hearing on October 27, 2003 and failed to request a postponement of the hearing to allow the general manager to testify. The majority, contrary to Chairman Battista, found that the Regional Director did not err in allowing the two managers to vote under challenge. They found no merit in their colleague's contention that because the supervisory status of the two managers remained unresolved at the time of the election, the employees could not cast an informed ballot. Neither did they agree with Chairman Battista's finding that the Regional Director's decision to allow the two managers to vote under challenge somehow compromised employee free choice in the election. In his partial dissent, Chairman Battista said that he would grant review of the Regional Director's decision to allow the plant manager and the wireless manager to vote subject to challenge. He stated: "This is a case where undue haste led to an inadequate record which, in turn, led to a situation where employees are asked to vote without knowing significant aspects of the composition of the unit." Chairman Battista was concerned about the fact that, without the general manager's testimony, the Regional Director did not have enough evidence to resolve the issues concerning the two managers. He believed that in order for employees to intelligently decide whether they wish to be represented by the Union, they may want to know whether 25 percent of the unit will be comprised of the two disputed individuals, as most of the undisputed unit employees work for one or the other of these individuals. (Chairman Battista and Members Liebman and Walsh participated.) *** Operating Engineers Local 370 (19-CA-27935; 341 NLRB No. 114) Spokane, WA April 30, 2004. The Board adopted, absent exceptions, the administrative law judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(3) of the Act when it discharged its paid organizer, Melvin Thoreson, because he repeatedly criticized the Local for allowing employers to cease making pension fund contributions on behalf of probationary apprentices; and the judge's finding that the Respondent violated Section 8(a)(1) by telling Thoreson that it denied his unemployment application because he filed an unfair labor practice charge. The issue before the Board is whether a union may lawfully discharge a paid employee in a key position such as Thoreson's for criticizing the union's collective-bargaining policies and decisions. The questions presented are whether Thoreson's criticism of the union's contribution waiver policy is concerted activity that is protected from employer interference by Sections 7 and 8(a)(1) of the Act and whether the Respondent has a legitimate countervailing interest that outweighs the exercise of Thoreson's Section 7 rights. The judge held that Thoreson's purpose was not the mutual aid or protection of employees within Section 7 and that his activity, therefore was neither concerted nor protected. He found that Thoreson's rhetoric was more in the nature of an individual seeking to position himself for a run at union office, and that he was seeking "to challenge the integrity of the service which the Union provides to its membership." The judge concluded that a union employee (as opposed to a union member) who disparages the way the union represents its members is no more protected than any other employee who disparages his employer's product or service. Unlike the judge, the Board assumed, without deciding, that Thoreson's conduct was for "mutual aid or protection" within the meaning of Section 7 and that it was therefore both protected and concerted. It concluded, however, that "any arguable Section 7 interest belonging to Thoreson was outweighed by the strong legitimate interest of Local 370 in ensuring loyalty, by its key paid employees to its policies" and accordingly, Thoreson's discharge did not violate Section 8(a)(1). Member Schaumber would adopt the judge's analysis on this issue, but he would not rely on fn. 6 of the judge's decision. (Members Liebman, Schaumber, and Walsh participated.) Charge filed by Melvin E. Thoreson, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Spokane, June 25-26, 2002. Adm. Law Judge James M. Kennedy issued his decision Sept. 24, 2002. *** Palm Court Nursing Home N.H., L.L.C. and Hidden Palm ALF, L.L.C., Joint Employers (12-CA-22564, 23071; 341 NLRB No. 113) Fort Lauderdale, FL April 30, 2004. The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing unit employees' working conditions by instituting a 401(k) plan, increasing employee contributions for prescription drugs and the cost of using other than "preferred providers," reducing employees' paid holidays, jury duty days, and sick days, increasing the time required for advance notification for absences or tardiness, and ceasing to provide employees with overtime pay for hours over 8 required to be worked in a single day. In the absence of exceptions, the Board affirmed the judge's finding that the Respondent violated the Act by refusing to meet with Service Employees Local 1199 because of the composition of its bargaining committee, and his recommended dismissal of the allegation that the Respondent violated the Act by unilaterally changing the employees' dress code. (Chairman Battista and Members Schaumber and Walsh participated.) Charges filed by Service Employees Local 1199; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Miami, Sept. 2-3, 2003. Adm. Law Judge George Carson II issued his decision Nov. 7, 2003. *** Ryder Truck Rental, Inc. d/b/a Ryder Transportation Services (25-CA-27551, 27705-1; 341 NLRB No. 109) Indianapolis, IN April 30, 2004. Members Liebman and Walsh held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by requesting that employees report to management employees who, in advocating Machinists District Lodge 90, "harass" other employees. They wrote: "Here, in response to nothing more than a vague claim of 'harassment' in connection with an employee's union solicitation, [Respondent's service team leader] Woehlke directed employees to document in writing the specifics of that employee's union activity. Clearly, employees who learned of this directive, and of the circumstances upon which it was given, could reasonably believe that the Respondent was seeking written documentation of its employees' lawful Section 7 activity." Chairman Battista, dissenting, found no violation because Woehlke did not invite the employees' complaints. The Chairman explained: "Obviously, it would be imprudent to ignore such employee complaints. On the other hand, a series of pointed questions could intrude into conduct that might turn out to be protected. A reasonable middle ground is to simply ask the employees to state what had happened to them. And, by asking that this be done in writing, the employer can minimize the possibility of misunderstanding." On other alleged violations, the judge found, with Board approval, that the Respondent violated Section 8(a)(3) and (1) by discharging employees Tim Bullman and Allen Fedlscher because of their union activities; and Section 8(a)(1) by, among others, soliciting employee grievances and directly or impliedly promising to remedy them if employees rejected the Union as their collective-bargaining representative, threatening employees with loss of vacation benefits, and informing them that bargaining will start at ground zero like a blank sheet of paper if they voted for the Union. Chairman Battista, concurring in part, explained his reasoning in finding that the Respondent's vice president of operations violated Section 8(a)(1) by soliciting employee grievances and promising to remedy them. Inasmuch as he adopted the judge's finding that the Respondent violated Section 8(a)(1) when its director of employee relations, William Herlihy, threatened employees with loss of benefits if the Union was brought in, he found it unnecessary to pass on the judge's other findings of unlawful threats of loss of benefits because such findings are cumulative and do not affect the remedy. (Chairman Battista and Members Liebman and Walsh participated.) Charges filed by Machinists District Lodge 90; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Indianapolis, Dec. 10-13, 2001. Adm. Law Judge Eric M. Fine issued his decision Aug. 2, 2002. *** U.S. Postal Service (16-CA-22781; 341 NLRB No. 94) Coppell, TX April 30, 2004. The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to timely and expeditiously furnish the Union (Postal Workers Dallas Area Local) with its requested information regarding a sexual harassment investigation. In the absence of exceptions, the Board held that the Respondent violated the Act by failing to timely furnish the Union with information in its request #3, including a list of employees who took the 725 exam on April 18, 2003. (Chairman Battista and Members Liebman and Walsh participated.) Charge filed by Postal Workers Dallas Area Local; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Ft. Worth, Sept. 22-23, 2003. Adm. Law Judge Michael A. Marcionese issued his decision Oct. 31, 2003. *** U.S. Postal Service (16-CA-22766, et al.; 341 NLRB No. 100) Spring and Houston, TX April 30, 2004. The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (3) of the Act by threatening an employee and changing his working conditions in retaliation for his union activity; and violated Section 8(a)(5) by unilaterally changing its established policy of automatically granting the requests of Spring Area postal employees represented by the Letter Carriers Branch 283 to take leave without pay for their choice vacation period and failing to provide information requested the Letter Carriers Branch 283. Chairman Battista and Member Schaumber modified the judge's recommended Order by limiting its provisions to the postal facilities involved in this case. They saw no need for the judge's recommended special remedies of districtwide notice posting and a broad order, noting three Houston districtwide Board orders recently enforced by the Fifth Circuit. Member Liebman agreed that a broad order is unnecessary in light of multiple Board orders containing broad cease-and-desist language that have been enforced against this employer, but she does not agree that the outstanding districtwide notice posting in two of those previous cases render a districtwide posting in this case similarly unnecessary. She would adopt the judge's order for a districtwide posting. (Chairman Battista and Members Liebman and Schaumber participated.) Charges filed by Letter Carriers Branch 283; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Houston, Nov. 3-5, 2003. Adm. Law Judge George Carson II issued his decision Jan. 21, 2004. *** Volair Contractors, Inc. (4-CA-27432, 27028; 341 NLRB No. 98) Wilmington, DE April 30, 2004. The administrative law judge found that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Melvin Baldwin because of his activities for Plumbers Local 74 and that it did not violate Section 8(a)(3) and (1) by laying off Louis Oliver or Section 8(a)(1) by interrogating and making certain coercive statements to Baldwin, Oliver, and other employees concerning those activities. The judge also refused to find that the Respondent's failure to recall Oliver was unlawful because it was not alleged in the complaint to violate the Act. The Board, in adopting the judge's conclusions, found it necessary to more fully explain its rationale on several issues, including its finding that Baldwin was a statutory employee and not a supervisor at the time of his discharge, that the Respondent did not unlawfully interrogate employee John Cabral pursuant to an unfair labor practice charge arising from Oliver's layoff, and that the judge did not abuse his discretion by declining to find that the Respondent unlawfully refused to recall Oliver. (Chairman Battista and Members Liebman and Schaumber participated.) Charges filed by Plumbers Local 74; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, May 24-25, 1999. Adm. Law Judge Arthru J. Amchan issued his decision July 29, 1999. *** Wal-Mart Stores, Inc. (12-CA-20882, 22441; 341 NLRB No. 111) Port Orange, FL April 30, 2004. The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by discharging employee Edward Eagen. It found it unnecessary to pass on the judge's finding that the discharge violated Section 8(a)(3) because this additional finding would be cumulative with no material effect on the remedy. No exceptions were filed to the judge's dismissal of the complaint allegation that the Respondent unlawfully interrogated Eagen and unlawfully discharged employee Dennis Demint. (Chairman Battista and Members Liebman and Meisburg participated.) Charges filed by Food & Commercial Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Deland, Aug. 18-22, 2003. Adm. Law Judge Margaret G. Brakebusch issued her decision Nov. 4, 2003. *** Orchard Park Health Care Center, Inc. d/b/a Waters of Orchard Park (3-CA-23704; 341 NLRB No. 93) Orchard Park, NY April 30, 2004. Chairman Battista and Member Schaumber reversed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act when it suspended employee Carol Gunnersen and discharged employee Kathleen Reed for calling the New York State Department of Health Patient Care Hotline to report excessive heat in the Respondent's nursing home. They agreed with the judge that the employees were engaged in concerted activity but contrary to the judge, found that the employees' activity was not protected under the Act because it did not relate to a term or condition of their employment. Member Meisburg concurred with the determination that the employees' discipline did not violate the Act. Members Liebman and Walsh dissented. Chairman Battista and Member Schaumber wrote in dismissing the complaint: The Act protects employees' interests as employees. The interests of the nursing home residents are not protected by the Act. Reed and Gunnersen may be entitled to relief under a State whistleblower statute or under the public policy exceptions to the employment-at-will doctrine. We find, however, that they are not entitled to relief under the Act, and accordingly, we dismiss the complaint. In his concurrence, Member Meisburg wrote: It is undoubtedly a good thing that the employees in this case complied with the State law requiring them to report the conditions they found. It is even more of a good thing when the State law at issue protects an interest as important as patient care. But the National Labor Relations Act is not a general whistleblowers' statute. Absent an intent to improve wages, hours, or working conditions, concerted action of the type in this case cannot be deemed 'mutual aid or protection.' Because the employees here testified that their sole motive was to act in the interest of their patients, we cannot find that their conduct was protected by the Act. Dissenting Members Liebman and Walsh wrote that they believed Reed and Gunnersen's concerns over patient care necessarily involved their working conditions and that Board law supports this conclusion. They agreed with the judge that the requirement to protect patients by reporting an unsafe condition was an important part of the employees' working conditions in caring for the patients. (Full Board participated.) Charge filed by Carol A. Gunnersen, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Buffalo, Nov. 12-13, 2002. Adm. Law Judge Marion C. Ladwig issued his decision Feb. 13, 2003.
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