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06/25/2004
by Ross Runkel at LawMemo
NLRB Law Memo 06/25/2004
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 7 decisions.
Auto Workers International and its Local Lodge 376 (Colt's Mfg. Co.) (34-CB-1447-1 (Formerly Case 31-CB-8641-26); 342 NLRB No. 6) Hartford, CT June 18, 2004.
The Board, in this supplemental decision, adopted the administrative law judge's recommendation and ordered that the Respondents make whole Charging Party George W. Gally in the amount of $30,773 plus interest accrued to the date of payment.
(Members Schaumber, Walsh, and Meisburg participated.)
Hearing at Hartford on Oct. 23, 2003. Adm. Law Judge Joel P. Biblowitz issued his supplemental decision Dec. 24, 2003.
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Connecticut Hospice, Inc. (34-CA-10314; 342 NLRB No. 3) Branford, CT June 17, 2004.
The Board affirmed the recommendations of the administrative law judge and found that the Respondent violated Section 8(a)(1) of the Act by threatening and later discharging employee Rosanne Corning because she engaged in protected concerted activities.
Members Walsh and Meisburg rejected the Respondent's assertion that the decision to discharge Corning came only after an investigation of an assault incident.
Member Schaumber agreed with his colleagues' determination that the Respondent violated the Act by discharging Corning. In finding the requisite animus, he relied solely on the Respondent's falsification of the Retention Committee election results to exclude Corning, and Respondent's human resources director's statement to Corning that her participation in concerted activities could have caused management to harass her.
(Members Schaumber, Walsh, and Meisburg participated.)
Charge filed by Roseanne Corning, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Hartford, June 25-27 and July 31, 2003. Adm. Law Judge Wallace H. Nations issued his decision Dec. 3, 2003.
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Engelhard Corp. (2-CA-32909, 33080; 342 NLRB No. 5) Peekskill, NY June 18, 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 suspending 38 employees because they picketed its shareholders' meeting (over 70 miles from the facility where the employees worked) and violated Section 8(a)(1) when it published two letters in the plant that threatened employees with discipline and discharge for engaging in picketing, and when it videotaped the picketing employees. The majority agreed with the judge that the employees did not contravene the no-strike/no lockout clause (article 28) in the Employer's collective-bargaining agreement with Electrical Workers IBEW Local 1430. The judge found, and they agreed, that article 28 does not constitute a clear and unmistakable waiver by the Union of the employees' right to engage in the picketing and that the picketing was protected by Section 7.
Dissenting, Member Schaumber would reverse the judge and dismiss the complaint. He concluded that his colleagues and the judge ignore "the plain meaning of the parties' no strike/no lockout pledge and instead adopt a highly improbable construction consistent with the express language of the parties' agreement." The Union clearly and unmistakably waived its own and its represented employees' right to engage in such activity during the terms of the parties' collective-bargaining agreement, Member Schaumber found. Because the picketing was unprotected, the Respondent did not violate the Act when it disciplined its employees and threatened to discipline employees who engaged in picketing, and videotaped the picketing itself.
(Members Liebman, Schaumber, and Walsh participated.)
Charges filed by Electrical Workers IBEW Local 1430; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, Dec. 20-21, 2000. Adm. Law Judge Steven Davis issued his decision April 27, 2001.
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North American Enclosures, Inc. (29-CA-25492, 25550; 342 NLRB No. 4) Central Islip, NY June 18, 2004.
The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by photographing its employees while they engaged in protected concerted activities, threatening its employees with discharge and job loss if they support or vote for Food and Commercial Workers Local 348-S in an NLRB election, and promising its employees wage increases if they withdraw their support from the Union or vote against the Union in an NLRB election.
(Members Schaumber, Walsh, and Meisburg participated.)
Charges filed by Food & Commercial Workers Local 348-S; complaint alleged violation of Section 8(a)(1) of the Act. Hearing at Brooklyn, Oct. 29 and Nov. 3, 2003. Adm. Law Judge Steven Fish issued his decision Feb. 6, 2004.
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Plumbers Local 149 (G.A. Rich & Sons, Inc.) (33-CD-429, 430; 342 NLRB No. 1) Champaign, IL June 14, 2004.
Relying on the factors of collective-bargaining agreements, employer preference and past practice, area and industry practice, economy and efficiency of operations, and relative skills and training, the Board decided that the employees of G.A. Rich & Sons, Inc., represented by Plumbers Local 149, rather than those represented by Central Illinois Laborers' Local 703, are entitled to perform the work in dispute. Specifically, all work outside the buildings related to site-sanitary sewer system, site-storm sewer system, and underground drainage work, including all unloading, scattering, grading trenches, hooking pipe, setting pipe, all pipe connections, backfill and compaction at the University of Illinois Campus Recreational Center and IMPE project, within the property lines at the University of Illinois Campus in Champaign/Urbana, Illinois.
(Chairman Battista and Members Liebman and Walsh participated.)
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Snap-On Tools, Inc. (10-CA-33020, 33096, 10-RC-15186; 342 NLRB No. 2) Elizabethton, TN June 16, 2004.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by changing its normal practice of panning the parking lot with a surveillance camera to pointing the camera at the plant gate when employees were handbilling. It also adopted the judge's sustaining certain aspects of Objections 1, 4, 7, 11, and 13 and his recommendation that the election in Case 10-RC-15186 be set aside and a new election be conducted.
The Board reversed the judge and found that: (1) the Respondent violated Section 8(a)(1) by creating the impression that union activities would inevitably lead to strike violence; (2) the Respondent did not engage in objectionable conduct through employee Shouse's alleged list keeping; and (3) the Respondent did not violate Section 8(a)(3) and (1) by issuing a final warning to employee Markland.
No exceptions were filed to the judge's dismissal of the allegation that the Respondent granted a benefit by sending letters to non-network physicians assuring them of payment, processing claims for employees whose physicians refused to do so, and reimbursing $15 for ophthalmologists examinations, and his dismissal of certain aspects of Objections 1, 2, 5, 7, and 9. The Board found it unnecessary to pass on certain objections that the judge recommended be dismissed.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by Auto Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Elizabethton, Feb. 11-14, 2002. Adm. Law Judge George Carson II issued his decision April 22, 2002.
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Steppenwolf Theatre Co. (13-RC-20942; 342 NLRB No. 7) Chicago, IL June 18, 2004.
The Board remanded this proceeding to the Regional Director for further processing, after reversing her application of the Julliard formula (Julliard School, 208 NLRB 153 (1974)), and holding that the proper eligibility formula to apply in this case is the formula articulated by the Board in Davison-Paxon Co., 185 NLRB 21 (1970), which allows any unit employee who has averaged 4 hours per week in the 3-month period preceding the Decision and Direction of Election to be eligible to vote.
The Regional Director found that a unit of all full-time and regular part-time production employees including carpenters, electricians, scenic artists, properties employees, sound employees, costume/wardrobe employees, and running crew employees working for the Employer was an appropriate unit and that, applying the eligibility formula articulated in Julliard, part-time employees who have worked on at least two productions for a total of 40 hours during the year prior to the eligibility date or who have worked a total of 120 hours during the past 2 years are eligible to vote. By Order dated May 7, 2003, the Board granted the Union's (Joint Petitioners Stage Employees IATSE Local 2 and Scenic Artists IATSE Local 829) request for review solely with respect to the Regional Director's application of the Julliard School eligibility formula.
In this decision on review, the Board determined that the Julliard formula is overly inclusive because it includes employees with only the most peripheral interest. Whereas, the Davison-Paxon formula, allows for optimum employee enfranchisement by distinguishing between a corps of part-time employees who work frequent, substantial hours and part-time employees who tend to work only a few days a year and have no real continuing interest in the terms and conditions of employment at the Employer. Chairman Battista noted that Davison-Paxon is the formula that is used for on-call employees, absent special circumstances.
(Chairman Battista and Members Liebman and Walsh participated.)
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06/18/2004
by Ross Runkel at LawMemo
NLRB Law Memo 06/18/2004
by LawMemo.Com - First in Employment Law
NLRB - Epilepsy Foundation overruled; Non-unionized workers not entitled to representation at disciplinary interview.
IBM Corp. (11-CA-19324, et al.; 341 NLRB No. 148) Research Triangle Park, NC June 9, 2004.
Chairman Battista and Member Meisburg, with Member Schaumber separately concurring, held that employees who work in a nonunion workplace are not entitled under Section 7 of the National Labor Relations Act to have a coworker accompany them to an interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline. The Board majority overruled Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), which extended to unrepresented employees a right to have a coworker present during investigatory interviews, and returned to pre-Epilepsy Board precedent holding that Weingarten rights apply only to unionized employees. Under NLRB v J. Weingarten, 420 U.S. 251 (1975), employees represented by a union have the right to have a representative accompany them to a disciplinary interview. Members Liebman and Walsh dissented.
In this case, IBM, whose employees are not represented by a union, denied three employees' requests to have a coworker present during investigatory interviews about a former employee's allegations that they had engaged in harassment. An NLRB administrative law judge, applying Epilepsy Foundation, found that IBM violated Section 8(a)(1) of the Act by denying the employees' requests for the presence of a co-worker. Upon review, a Board majority reversed Epilepsy and therefore reversed the judge.
Chairman Battista and Member Meisburg, in reversing the judge, found that national labor policy is best served by not extending to a nonunion workplace a right to representation at a disciplinary interview. They noted changes in work environments requiring employers to conduct various types of workplace investigations pursuant to federal, state and local laws, especially workplace discrimination and sexual harassment, and the need for an employer to conduct those investigations in a thorough, prompt and confidential manner. They also noted increasing instances of workplace violence and the aftermath of events of September 11, 2001.
Chairman Battista and Member Meisburg pointed out that in a nonunion workplace, coworkers do not represent the interests of the entire work force; coworkers have no official status as does a union representative in dealing with an employer and thus cannot redress the imbalance of power between employers and employees; coworkers do not have the same knowledge and skills as a union representative and thus are not as effective in facilitating workplace interviews; and, finally, the presence of a coworker, instead of a union representative, may compromise the confidentiality of a workplace investigation. For these reasons, they concluded that a nonunion employer has the right to conduct prompt, efficient, thorough and confidential workplace investigations without the presence of a coworker, saying:
Our reexamination of Epilepsy Foundation leads us to conclude that the policy considerations supporting that decision do not warrant, particularly at this time, adherence to the holding in Epilepsy Foundation. In recent years, there have been many changes in the workplace environment, including ever-increasing requirements to conduct workplace investigations, as well as new security concerns raised by incidents of national and workplace violence.
Our considerations of these features of the contemporary workplace leads us to conclude that an employer must be allowed to conduct its required investigations in a thorough, sensitive, and confidential manner. This can best be accomplished by permitting an employer in a nonunion setting to investigate an employee without the presence of a co-worker.
Member Schaumber joined the rationale of the majority and offered his own views in a separate concurring opinion. He found that the right to the presence of a witness in a predisciplinary investigatory interview is unique to a workplace in which employees are represented by a union and is distinctly derived from the statute. Member Schaumber concluded that the language of the statute does not provide such a right to nonrepresented employees. In this regard, he explained that the "better construction and the one most consistent with the language and policies of the Act, is that the Weingarten right is unique to employees represented by a Section 9(a) bargaining representative. The Board's decision to the contrary in Epilepsy sheared Weingarten from its historical, factual and analytical roots; infringed upon recognized and fundamental common law management prerogatives; and ignored extant Board precedent that requires actual proof-rather than presuming its existence-of activity which is both 'concerted' and 'for mutual aid and protection' to qualify for protection under Section 7. Consequently, Epilepsy represented an abrupt and unwarranted departure from established law, an error we correct through our decision today."
Members Liebman and Walsh in dissent wrote: "Today, American workers without unions, the overwhelming majority of employees, are stripped of a right integral to workplace democracy." They found no persuasive basis for the majority's "abruptly overruling" Epilepsy Foundation of Northeast Ohio, a recent decision upheld on appeal as "both clear and reasonable." Members Liebman and Walsh concluded that a statutory foundation for coworker representation exists under Section 7 even in the absence of a union, and that due process considerations supported such representation. The presence of a coworker at a disciplinary interview gives the affected worker a "potential witness, advisor, and advocate" in what can be an adversarial situation, Members Liebman and Walsh explained. "On this view, it is our colleagues who are taking a step backwards. They have neither demonstrated that Epilepsy Foundation is contrary to the Act, nor offered compelling policy reasons for falling to follow precedent. They have overruled a sound decision not because they must, and not because they should, but because they can. As a result, today's decision itself is unlikely to have an enduring place in American labor law. We dissent."
(Full Board participated.)
Charges filed by Kenneth Paul Schult, Robert William Bannon, and Steven Parsley, Individuals; complaint alleged violation of Section 8(a)(1). Hearing at Winston-Salem on Aug. 9, 2002. Adm. Law Judge George Carson II issued his decision Sept. 25, 2002.
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NLRB - Board to review whether voluntary recognition bars desertification petition; invites briefs on neutrality agreements.
Dana Corp. and Metaldyne Corp. (8-RD-1976, 6-RD-1518, 1519; 341 NLRB No. 150) Upper Sandusky, OH and St. Marys, PA June 7, 2004.
Invitation to file briefs regarding neutrality agreements:
Chairman Battista and Members Schaumber and Meisburg granted the Petitioners' (Clarice K. Atherholt, Alan P. Krug, and Jeffrey A. Sample) requests for review of the Regional Directors' dismissals of the instant petitions. The majority also granted the Petitioners' motion to consolidate the above cases and their request that the Board solicit amicus briefs on the issues raised. (By a Notice and Invitation to File Briefs dated June 14, 2004, the Board invited the parties and interested amici to file briefs with the Board on or before July 15, 2004.) The issues are whether the Employers' voluntary recognition of the Auto Workers bars a decertification petition for a reasonable period of time under the circumstances of these cases and whether that recognition should operate as a bar to decertification petitions filed by employees who were not parties to that agreement. Dissenting, Members Liebman and Walsh would deny the requests for review.
While acknowledging that the current precedent is based upon a union's obtaining signed authorization cards from a majority of the unit employees before entering into the agreement with an employer, the majority wrote "in both of the instant cases, an agreement was reached between the union and the employer before authorization cards, evidencing the majority status, were obtained. In addition, we believe that changing conditions in the labor relations environment can sometimes warrant a renewed scrutiny of extant doctrine."
Contrary to their colleagues, Members Liebman and Walsh asserted that the Petitioners have failed to give any compelling reasons to abolish or modify the recognition bar. They wrote: "Abolishing the recognition bar would make voluntary recognition meaningless. Employers have no incentive to recognize a union if they know that recognition may be subject to immediate second-guessing through a decertification petition. In addition, abolishing the recognition bar would frustrate the Act's fundamental policies of furthering industrial peace and labor relations stability."
In conclusion, Members Liebman and Walsh said: "The issues raised by the Petitioners were settled 40 years ago. The recognition bar has stood the test of time. To revisit it serves no purpose but to undermine a principle that has been endorsed time and again by the Board and the courts. The Petitioners' Requests for Review should be denied."
The Regional Directors, in dismissing the petitions, invoked the Board's long-established recognition bar doctrine, which provides that voluntary recognition of a union in good faith based on demonstrated majority status will bar a petition for a reasonable period of time. See Keller Plastics Eastern, Inc., 157 NLRB 583 (1966); Sound Contractors Assn., 162 NLRB 364 (1966).
(Full Board participated.)
***
BHP (USA) Inc. d/b/a BHP Coal New Mexico (28-CA-17103, 17364; 341 NLRB No. 149) Farmington, NM June 10, 2004.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) of the Act by unilaterally implementing changes to its attendance policy. Chairman Battista and Member Schaumber reversed the judge's finding that the Respondent violated the Act by discharging Truby Werito pursuant to the unlawfully implemented policy because the General Counsel failed to meet his burden of showing by a preponderance of the evidence that the discharge was pursuant to the amended attendance policy. Member Walsh disagreed with his colleagues on this issue.
The majority wrote: "Because we find that the General Counsel has failed to establish that the Respondent discharged Werito under the amended policy, unlike our dissenting colleague, we find it unnecessary to decide under what policy, if any at all, the Respondent's disciplinary action was taken. As noted above, the Respondent suspended Werito and issued him a final warning for tardiness. Then, when Werito was again tardy, the Respondent discharged him pursuant to that final warning. Since neither the 1995 attendance policy nor the new amended policy provides for either a suspension or a final warning, the Respondent was applying neither policy when it discharged Weirto."
Member Walsh held that "[i]f the Respondent has been following its purported practice under its 1995 attendance policy of treating unexcused tardiness reports the same as unexcused absences, Werito would have been discharged after his third unexcused tardiness report on January 26." Member Walsh wrote "the record facts provide more than ample support for the judge's finding that the General Counsel more than met his burden of proving . . . that the amended policy was a factor in the Respondent's decision to discharge Werito for excessive tardiness."
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by Operating Engineers Local 953; complaint alleged violation of Section 8(a)(5). Hearing at Farmington on April 2, 2002. Adm. Law Judge James L. Rose issued his decision June 12, 2002.
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St. Barnabas Medical Center (22-CA-24632; 341 NLRB No. 151) Livingston, NJ June 12, 2004.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) of the Act by unilaterally granting wage increases and other improvements in the terms and conditions of employment to its registered nurses during the term of the parties' contract without the Union's consent.
The Board found no merit in the Respondent's argument that the rules governing the midterm modification of contracts do not apply here because "[o]nce the Union urgently requested that wages be reopened and the Medical Center agreed, the Union and Medical Center incurred the same bargaining obligations and rights that they would enjoy or have had no contract been in existence."
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by New Jersey Nurses Local 1091, CWA; complaint alleged violation of Section 8(a)(5). Hearing at Newark on Sept. 16, 2001. Adm. Law Judge Joel P. Biblowitz issued his decision Oct. 29, 2002.
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06/16/2004
by Ross Runkel at LawMemo
NLRB Law Memo 06/16/2004
by LawMemo.Com - First in Employment Law
NLRB - Epilepsy Foundation overruled; Non-unionized workers not entitled to representation at disciplinary interview.
IBM Corp., 341 NLRB No. 148 (06/09/2004).
The National Labor Relations Board has ruled by a 3-2 vote that employees who work in a nonunionized workplace are not entitled under Section 7 of the National Labor Relations Act to have a coworker accompany them to an interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline. The Board issued the decision on June 9, 2004 and it was made public today.
The majority, Chairman Robert J. Battista, Member Peter C. Schaumber, and Member Ronald Meisburg overruled Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000), which had extended to unrepresented employees a right to have a coworker present during such interviews, and returned to pre-Epilepsy Board precedent holding that Weingarten rights apply only to unionized employees. Under NLRB v J. Weingarten, 420 U.S. 251 (1975), employees represented by a union have the right to have a representative accompany them to a disciplinary interview. Members Wilma B. Liebman and Dennis P. Walsh dissented. Member Schaumber agreed with the majority opinion and had a separate concurrence.
In this case, IBM, whose employees are not represented by a union, denied three employees' requests to have a coworker present during investigatory interviews about a former employee's allegations that they had engaged in harassment. An NLRB administrative law judge, applying Epilepsy Foundation, found that IBM violated Section 8(a)(1) of the Act by denying the employees' requests for the presence of a co-worker. Upon review, a Board majority reversed Epilepsy and therefore reversed the judge.
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06/11/2004
by Ross Runkel at LawMemo
NLRB Law Memo 06/11/2004
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 2 decisions.
Quantum Electric, Inc. (21-CA-31670 & 31729; 341 NLRB No. 146) Los Alamitos, CA June 3, 2004.
The administrative law judge found and the Board agreed that the Respondent violated Section 8(a)(3) and (1) of the Act by requiring employee Damir Tomas to reverse a T-shirt showing support for Electrical Workers, IBEW Local 441, and by terminating Tomas for refusing to comply with this unlawful request.
The Board modified the judge's recommended Order and provided for Tomas's reinstatement, as requested by the General Counsel in his cross-exceptions. The availability of continued employment for Tomas, as well as the effect of the passage of time on Tomas's right to reinstatement, are matters left to compliance.
(Chairman Battista and Members Liebman and Meisburg participated.)
Charges filed by Electrical Workers, IBEW Locals 441 and 11; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, July 14 and 15, and Sept. 16, 2003. Adm. Law Judge Lana H. Parke issued her decision on Dec. 8, 2003.
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Stage Employees (IATSE) Local 720 (AVW Audio Visuals, Inc.) (28-CB-4351; 341 NLRB No. 147) Las Vegas, NV June 2, 2004.
On remand from the U.S. Court of Appeals for the Ninth Circuit, the Board accepted the court's decision as the law of the case and issued an appropriate remedial order against the Respondent Union for the violations found.
In its original decision (332 NLRB 1 (2000)), the Board dismissed the complaint allegations that the Union violated Section 8(b)(1)(A) and (2) of the Act, finding that the Union had neither breached its duty of fair representation nor engaged in an unfair labor practice encouraging union membership when, 10 months after Charging Party Steven Lucas' expulsion, it refused to readmit Lucas to its hiring hall and refer him to a job with AVW Audio Visuals, Inc., an employer who had requested Lucas by name.
The court reversed the Board's dismissal of the complaint, concluding that the Board had applied an incorrect legal standard in dismissing to the extent it relied on the more deferential "wide range of reasonableness" standard articulated in Air Line Pilots Assn. v. O'Neill, 499 U.S. 65, 81 (1991), in assessing whether the Union had breached its duty of fair representation in this case. The court concluded that the Union's liability for an unfair labor practice turned on whether the Union's refusal to refer Lucas from the hiring hall was necessary to the effective functioning of the hall. The court held that substantial evidence did not support the Board's determination that "the Union's refusal to readmit Lucas to its exclusive hiring hall was necessary to promote the efficiency and integrity of its hiring hall operations."
(Members Schaumber, Walsh, and Meisburg participated.)
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06/04/2004
by Ross Runkel at LawMemo
NLRB Law Memo 06/04/2004
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 14 decisions.
Albany Medical Center (3-CA-24094, 24162; 341 NLRB No. 145) Albany, NY May 28, 2004.
The Board affirmed the administrative law judge's finding that by telling its nursing employees that they would have to renegotiate for a $2 raise that was promised to them before the Union's (AMC Registered Professional Nurses) petition was filed, the Respondent unlawfully coerced employees with regard to their membership in, sympathy for, and support of the Union prior to the election in violation of Section 8(a)(1) of the Act.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by John Michael Vitale, an Individual and AMC Registered Professional Nurses; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Albany on Sept. 16, 2003. Adm. Law Judge Wallace H. Nations issued his decision Dec. 10, 2003.
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Allied Mechanical Services, Inc. (7-CA-40907, 41390; 341 NLRB No. 141) Kalamazoo, MI May 28, 2004.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate economic strikers Jim Bronkhorst, Ken Falk, Ted Fuller, Jon Kinney, Grant Maichele, Marty Preston, Tobin Rees, Max Roggow, Brian Rowden, and Steve Titus who made unconditional offers to return to work on March 2, 1998 and by refusing to consider for employment and to hire union members Scott Calhoun, Terri Jo Conroy, Harold Hill, and Jeff Kiss. Contrary to the judge, it found that the Respondent did not violate the Act when it refused to consider and hire applicants Eric Englehart, Marty Hampton, Rod Newcomb, and Todd West.
The Board agreed with the judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from Plumbers Local 357 on July 22, 1998, and thereafter making unilateral changes and refusing to furnish Local 357 with information. In adopting the judge's finding that the Respondent's withdrawal of recognition was lawful, the Board relied solely on his finding that Local 357 did not succeed to the bargaining rights of Local 337. The Board wrote that the merger of Locals 337 and 513 did not satisfy the Board's standard, because Local 337's members were not given an opportunity to vote on the merger and, therefore, the Respondent had no duty to bargain with Local 357.
Pursuant to a settlement agreement, the Respondent agreed to recognize and bargain with Plumbers Local 337 in 1991. Although the parties engaged in contract negotiations, they never reached an agreement. On March 1, 1998, Local 337 merged with Plumbers Local 513 to create a new local, Plumbers Local 357. On July 22, the Respondent withdrew recognition from Charging Party Local 357 and announced that it would not bargain with it.
(Chairman Battista and Members Schaumber and Meisburg participated.)
Charges filed by Plumbers Local 357; complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing at Kalamazoo, on eight dates between June 30-July 16, 1999. Adm. Law Judge David L. Evans issued his decision Feb. 8, 2000.
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Cobb Mechanical Contractors, Inc. (16-CA-16483; 341 NLRB No. 136) Amarillo, TX May 26, 2004.
This supplemental decision follows a remand by the U.S. Court of Appeals for District of Columbia of the Board's decision reported at 333 NLRB 1168 (2001), which affirmed the administrative law judge's findings that 19 discriminatees (union applicants/journeyman plumbers) were entitled to backpay as a result of the Respondent's unlawful refusal to hire them as plumber's helpers. The court remanded the case to the Board for consideration of two issues: (1) has the Respondent established that it had a longstanding policy of not hiring a journeyman plumber for a plumber's helper position and (2) has the Respondent satisfied its burden of showing that only two union applicants would have transferred to a new Cobb project after the completion of the projects in issue.
Regarding the first issue, Chairman Battista and Member Schaumber found, based on the uncontradicted testimony of two high-level management officials, Controller Paula McKinney and Vice President for Operations Jerry Bitner, that Cobb had a policy against hiring plumbers as plumbers' helpers. They concluded that the only positions the union plumber applicants would have been hired for were plumber positions and that the General Counsel's formula for computing backpay results in compensating the discriminatees for employment for which they were not eligible. Chairman Battista and Member Schaumber held that there were only 13 positions available for the discriminatees and only 13 discriminatees are entitled to a remedy. Determining that the Board's prior backpay award must be modified accordingly, they remanded the case to the Regional Director to prepare an amended compliance specification.
Member Walsh dissented from his colleagues' opinion insofar as they reversed the Board's prior decision and find that the Respondent established the existence of a longstanding policy of not hiring plumbers to be plumbers' helpers. He wrote:
If the Respondent truly had a long-standing policy of not hiring plumbers as plumbers' helpers, then one would reasonably expect this policy to be reflected in its offers of reinstatement and the forms provided for accepting or declining the offers. Instead, in clear violation of its alleged policy, the Respondent sent the discriminatees, who were plumbers, offers of "reinstatement to either the position of Plumber or Plumber helper." (Emphasis added.) How can these offers be reconciled with a "strict" and "longstanding" "policy" against hiring plumbers as plumbers' helpers?
With regard to issue (2), Member Walsh joined his colleagues and reaffirmed the Board's prior finding that, absent the unlawful refusal to hire, the union applicants who would have been hired would have transferred to subsequent Cobb jobsites on the completion of the Amarillo and Dalhart projects.
(Chairman Battista and Members Schaumber and Walsh participated.)
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Food & Commercial Workers Locals 951, 7, and 1036 (Meijer, Inc.) (16-CB-3850, et al.; 341 NLRB No. 133) Grand Rapids, MI May 25, 2004.
On remand from the U.S. Court of Appeals for the Ninth Circuit, the Board reaffirmed its original Order reported at 329 NLRB 730 (1999) and modified the remedy to make clear that the reimbursement remedy is limited to employees who received the Respondent's "welcoming" letter, which notified new members that they were required to become full members of Local 1036 as a condition of employment.
The court issued a panel decision that upheld the Board's findings that the Respondent violated Section 8(b)(1)(A) of the Act, but found that the Board's remedy was overbroad. Regarding the remedy, the court stated:
[T]he Board's remedial order goes too far. The offending letter was not sent to all employees. Reimbursement is due only those employees who received the letter and object. The remedy designed by the Board must be modified.
The Ninth Circuit thereafter reconsidered the case en banc and found that the panel opinion was correct concerning the allegations against Local 1036 and reinstated that part of the opinion. It remanded the Board's Order with respect to Local 1036 "to modify [the] remedy as it was overbroad."
In the prior decision, the Board found that the Respondent violated Section 8(b)(1)(A) by notifying new employees in its welcoming letter that they were required to become full members as a condition of employment and failing to notify such employees of their General Motors (NLRB v. General Motors Corp., 373 U.S. 734 (1963)) right to remain nonmembers of the Union and of nonmembers' Beck (Communications Workers v. Beck, 487 U.S. 735 (1998)) rights, including the right to object to paying for nonrepresentational activities and to obtain a reduction in fees for such activities. The Board's decision also addressed certain alleged violations regarding Respondent UFCW Local 7 and Respondent UFCW Local 951. Those allegations are not presently before the Board.
(Chairman Battista and Members Liebman and Walsh participated.)
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Gold Kist, Inc. (12-CA-21196, 21213, 12-RC-8553; 341 NLRB No. 135) Douglas, GA May 27, 2004.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by soliciting grievances and promising to remedy them in order to dissuade employees from supporting Food and Commercial Workers Local 1996, by threatening the loss of benefits and the inevitability of strikes and strike violence if employees selected the Union as their collective-bargaining representative, by more closely monitoring and restricting the movement of prounion employees, by threatening that other employers would refuse to hire employees because of their union activities, and by threatening the withdrawal of an existing condition of employment if the employees selected the Union as their bargaining representative. Further, the Respondent violated Section 8(a)(1) and (3) by depriving employee Brenda Preston of overtime work. The Board adopted the judge's order to set aside the election held in Case 12-RC-8663, severed said case from the unfair labor practice cases, and remanded Case 12-RC-8663 to the Regional Director to conduct a second election.
(Members Liebman, Schaumber, and Walsh participated.)
Charges filed by Food & Commercial Workers Local 1996; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Douglas, July 23-25 and Aug. 14-16, 2001. Adm. Law Judge George Carson II issued his decision Oct. 15, 2001.
***
Health Care Workers (SEIU) Local 250 (Trinity House) (32-CB-5562; 341 NLRB No. 137) Sacramento, CA May 26, 2004.
The administrative law judge found, and the Board agreed, that by refusing to execute an agreed-upon collective-bargaining agreement with Employer Trinity House, the Respondent violated Section 8(b)(3) of the Act.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Trinity House; complaint alleged violation of Section 8(b)(3). Hearing at Sacramento, Aug. 19 and 20, 2003. Adm. Law Judge John J. McCarrick issued his decision Nov. 13, 2003.
***
Kansas AFL-CIO (17-CA-22178; 341 NLRB No. 131) Topeka, KS May 26, 2004.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by eliminating a bargaining unit position, the Volunteers in Politics director, and terminating the employee who held that position, Connie Stewart, without providing the Union (Office Employees Local 320) prior notice and an opportunity to bargain. Contrary to the Respondent's contention, the Board held that the record established that the Union represented the unit employees at the time that Stewart's position was eliminated, and therefore, the Respondent was obligated to bargain with the Union concerning the elimination of Stewart's position and her termination.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Office Employees Local 320; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Overland Park, Sept. 4 and 5, 2003. Adm. Law Judge Burton Litvack issued his decision Feb. 23, 2004.
***
Laboratory Corp. of America Holdings (4-RC-20624; 341 NLRB No. 140) Burlington, NC May 28, 2004.
After consideration of the Employer's request for review, the Board reversed the Regional Director's Decision and Direction of Election, in which she found appropriate the multifacility unit of employees working at seven of the Employer's 29 Patient Service Centers (PSCs) petitioned for by Food and Commercial Workers Local 1358, and remanded the case to the Regional Director for further appropriate action.
The Regional Director found appropriate the petitioned-for multifacility unit of phlebotomists, administrative team leaders, technical team leaders, and reference tests clerks employed by the Employer at seven PSCs located in southeastern New Jersey under the supervision of Phlebotomist Supervisor Lana Gray. By Order dated May 28, 2003, the Board granted the Employer's request for review solely with respect to whether the petitioned-for unit of seven PSCs, excluding the Employer's remaining 22 PSCs in its Southern New Jersey Region, is an appropriate unit.
In this decision on review, the Board agreed with the Employer that the petitioned-for facilities do not constitute an appropriate unit for collective bargaining because the employees of the seven petitioned-for PSCs as a group do not share a community of interest distinct from that shared with employees for other PSCs in the Southern New Jersey Region.
(Chairman Battista and Members Walsh and Meisburg participated.)
***
Precoat Metals and Steelworkers Local 3911-09 (13-CA-37256, et al., 13-CB-15838, et al.; 341 NLRB No. 143) Chicago, IL May 28, 2004.
Chairman Battista and Member Schaumber affirmed the administrative law judge's finding that the Respondent Employer violated Section 8(a)(4) and (1) of the Act b placing employee Jack Focht on paid leave of absence, offering Focht a last chance agreement, and discharging him for talking to and giving an affidavit to a Board agent. They also agreed with the judge's recommendation that the Respondent Employer not be ordered to offer Focht reinstatement to his former position with backpay, finding that Focht is not entitled to reinstatement and backpay based on his false testimony in his pretrial affidavit and at the hearing and misconduct during the course of his employment with the Respondent Employer.
Member Walsh, dissenting in part, disgreed with the refusal to grant Focht the traditional remedies of reinstatement and backpay. He found that by denying Focht the traditional remedies his colleagues are "allowing the Respondent Employer to effectively escape the consequences of its violation of Section 8(b)(4) of the Act, and are undermining, rather than effectuating, the policies of the Act."
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by Jim White, Jack Focht, Chester Florian, and Kenneth Rolfe, Individuals; complaint alleged violation of Section 8(a)(1), (3), and (4) and Section 8(b)(1)(A) and (2). Hearing at Chicago, May 17-19, Aug. 10-13 and 16-18, 2000. Adm. Law Judge William J. Pannier III issued his decision Jan. 31, 2001.
***
San Manuel Indian Bingo and Casino (31-CA-23673, 23803; 341 NLRB No. 138) San Bernardino County, CA May 28, 2004.
Chairman Battista and Members Liebman and Walsh, with Member Schaumber dissenting, established a new standard for determining the circumstances under which the Board will assert jurisdiction over a commercial enterprise that is wholly owned and operated by an Indian tribe, concluding that the Board's statutory jurisdiction generally extends to Indian tribes and tribal enterprises, regardless of whether they are located on or off reservation land.
In fashioning a new standard, the majority reconsidered two premises that can be discerned from current Board precedent. First, that location is the determinative factor in assessing whether a tribal enterprise is excluded from the Act's jurisdiction. Second, that the text of Section 2(2) of the Act supported the geographically based distinctions made by the Board. Finding both premises to be "faulty," the majority said its new approach better accommodates the need to balance the Board's interest in furthering Federal labor policy with its responsibility to respect Federal Indian policy.
The majority decided that Section 2(2) of the Act does not expressly exclude Indian tribes from the Act's jurisdiction. They noted that the tribes are not a corporation of the Government and are not a Federal Reserve Bank. Nor do Indian tribes meet the Board's or reviewing courts' traditional definition of a State or political subdivision thereof. NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600, 604-605 (1971). The majority pointed out that the Indian tribes and their commercial enterprises are not created directly by the States, or departments, or administrative arms of State government. Moreover, neither public officials nor the general electorate are at all involved in the selection of an Indian tribe or its enterprises.
In deciding whether or not Federal Indian policy required the Board to decline to assert jurisdiction, the majority decided to adopt the test articulated by the Ninth Circuit in Donovan v. Coeur d'Alene Trial Farm, 751 F.2d 1113, 1115 (9th Cir. 1985), and derived from the broad principle of Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 116 (1960). They concluded that the Board was correct in Sac & Fox Industries, Inc., Ltd., 307 NLRB 241, to apply the Tuscarora-Coeur d'Alene analysis in asserting jurisdiction over tribal enterprises located away from Indian reservations. The majority decided however that nothing in Tuscarora Indian Nation or Coeur d'Alene suggests that the location of the enterprise at issue is determinative. Accordingly, they overruled Fort Apache Timber Co., 226 NLRB 503 (1976) and Southern Indian Health Council, 290 NLRB 436 (1988), and modified Sac & Fox, to the extent that they hold otherwise.
In Tuscarora Indian Nation, the Court held that land owned by an Indian tribe could be taken for a hydroelectric power project, pursuant to the Federal Power Act, under the same terms as applied to non-Indian-owned land, because the FPA provided no express exemptions for Indians. Citing a number of decisions in which Federal courts of appeals have applied widely the Tuscarora principle to a number of civil rights and employment-related statutes, the majority concluded that the rationale behind those decisions supports the proposition that because Congress intended the Act to have the broadest possible breadth permitted under the Constitution, the Act is a statute of general application. See Navajo Tribe v. NLRB, 288 F.2d 162, 164-465 (D.C. Cir. 1961); Sac & Fox, 307 NLRB at 243.
The Ninth Circuit in Coeur d'Alene enumerated several exceptions that have been recognized by Federal courts to limit jurisdiction over Indian tribes. The court held that statutes of general applicability should not be applied to the conduct of Indian tribes if: (1) the law "touches exclusive rights of self-government in purely intramural matters"; (2) the application of the law would abrogate treaty rights; or (3) there is "proof" in the statutory language or legislative history that Congress did not intend the law to apply to Indian tribes. Coeur d'Alene, 751 F.2d at 1115; see also Mashantucket Sand & Gravel, 95 F.3d at 177; Smart, 868 F.2d at 932-933.
The majority held that the Board has been inadequate in striking a satisfactory balance between the competing goals of Federal labor policy and the special status of Indian tribes in our society and legal culture. They took the opportunity in this case and its companion case, Yukon Kuskokwin Health Care Corp., 341 NLRB No. 139 (2004), to adopt an approach that "gives due recognition to those competing interests." The majority acknowledged the difficulty of its task because Indian tribes occupy a unique position in the Nation's political and legal history. They noted however that during the 30 years that the Board has considered whether the Act applies to the employment practices of the Nation's Indian tribes, the Indian tribes and their commercial enterprises have played an increasingly important role in the Nation's economy. The majority wrote: "As tribal businesses have grown and prospered, they have become significant employers of non-Indians and serious competitors with non-Indian owned businesses."
Applying the new approach to this case, the majority asserted jurisdiction over the Respondent's commercial activities on the San Manuel Indian Reservation in San Bernardino County, California and denied the Respondent's motion to dismiss the complaint for lack of jurisdiction. The complaint alleges that the Respondent violated Section 8(a)(2) and (1) of the Act by rendering assistance, and support to the Communications Workers International (CWA) by allowing CWA agents access to the Respondent's facility for organizing purposes, while denying similar access to agents of the Hotel Employees & Restaurant Employees International.
The majority found that the Respondent is an employer pursuant to Section 2(2). Further, pursuant to the Tuscarora-Coeur d'Alene analysis, they decided that none of the Coeur D'Alene exceptions apply. The majority noted, among others, that the tribe's operation of the casino is not an exercise of self-governance, that the Respondent does not allege the existence of any treaties covering the tribe; thus, application of the Act would not abrogate any treaty rights; and neither the language of the Act, nor its legislative history provides any evidence that Congress intended to exclude Indians or their commercial enterprises from the Act's jurisdiction. Finally, the majority concluded that policy considerations favor the assertion of the Board's jurisdiction.
Dissenting Member Schaumber, unlike his colleagues, concluded that the issue is not whether the Board should assert jurisdiction over a commercial enterprise wholly owned and operated by an Indian tribe and located on that tribe's reservation, but whether Congress has authorized the Board to do so. He noted that the Tuscarora Indian Nation dictum on which the majority relies, is distinguishable on its facts, lacks a basis in precedent, and has been criticized by scholars and rejected by other courts. Member Schaumber noted also that subsequent Supreme Court decisions have abandoned, if not implicitly overruled, the Tuscarora principle embraced by the majority. He wrote:
Thus, the majority, which claims to 'embark on a new approach' to jurisdiction over tribal enterprises, does so upon a leaky vessel. In my view, the rebalancing of competing policy interests involving Indian sovereignty is a task for Congress to undertake. Well-established principles of Federal Indian law and statutory construction compel to the Board to determine, in the first instance, whether Congress has affirmatively addressed the potential effects of legislation on tribal rights and to err in favor of Federal noninterference where regulatory statutes, such as the Act, are silent or ambiguous as to coverage of Indian tribes. Because the assertion of jurisdiction in this case would offend those principles and conflict with both Board and Supreme Court precedent, I respectively dissent.
(Chairman Battista and Members Liebman, Schaumber, and Walsh participated.)
***
Scepter Ingot Castings, Inc. (26-CA-17345 341 NLRB No. 134) Johnsonville, TN May 24, 2004.
Members Schaumber and Walsh, in this backpay proceeding, adopted the recommendations of the administrative law judge and ordered that the Respondent make whole the individuals named in the supplemental decision by paying the amounts following their names.
In dissent, Chairman Battista said he disagreed with the judge's and his colleagues' failure to offset, from the amount the Respondent must reimburse employees for unilaterally imposed health insurance contributions, the wage increase it granted to those employees precisely for the purpose of funding those contributions. In his view, denying this offset creates a windfall for the employees and punishes the Respondent.
In 1995, the Respondent announced that employees covered by its Group Health Care Plan would have to begin contributing to their health care coverage and, "[t]o help offset this new employee contribution" announced a wage increase of 15 cents per hour. Previously, the employees had made no contribution toward their health insurance. The changes took effect immediately, without notice to or any effort to bargain with the employees' bargaining representative.
In the prior decision reported at 331 NLRB 1509 (2000), the Board ordered the Respondent to cease and desist from unilaterally granting wage increases and changing health insurance or rates, and to make employees whole for any expenses resulting from its unilateral changes in health insurance coverage and contributions. It also ordered the Respondent to rescind either or both of its unilateral changes concerning wage rates and medical insurance coverage. The Board's Order was enforced in its entirety by the U.S. Court of Appeals for the D.C. Circuit. In April 2003, the Regional Director issued a Compliance Specification alleging a backpay period beginning October 1995 and continuing until at least September 2002.
The Respondent argued that it has already discharged its obligation. According to the Respondent, the wage increase more than offset the health insurance premiums paid by employees and no further payment was necessary to make employees whole. In affirming the judge's denial of the offset, the majority noted that it lacked jurisdiction to modify an Order that had been enforced by a court of appeals.
(Chairman Battista and Members Schaumber and Walsh participated.)
Adm. Law Judge George Carson II issued his supplemental decision Oct. 15, 2003.
***
Alandco Development Corp. d/b/a Senior Care at the Fountains (4-CA-31269, 31502, 4-RC-20185; 341 NLRB No. 130) Pennsauken, NJ May 25, 2004.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (3) of the Act by questioning employees about their union activities; telling employees it will fire them if they vote for the Food and Commercial Workers Local 56; restricting employees from entering its facility more than 10 minutes before their scheduled starting time because they support the Union; and telling employees that it wants to terminate them because they support the Union. The Board also set aside the election held in Case 4-RC-20185 on April 8, 2002 and remanded the case to the Regional Director to conduct a third election.
(Chairman Battista and Members Liebman and Meisburg participated.)
Charges filed by Food & Commercial Workers Local 56; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia, July 29 and 30, 2003. Adm. Law Judge Benjamin Schlesinger issued his decision Nov. 21, 2003.
***
U.S. Generating Co. (1-CA-36858; 341 NLRB No. 142) Somerset, MA May 28, 2004.
The Board adopted the administrative law judge's finding and dismissed the complaint allegation that the Respondent violated Section 8(a)(1) and (5) of the Act when it assumed the collective-bargaining agreement between its predecessor, New England Power Company, and the Union (Utility Workers Local 464); unilaterally modified the collective-bargaining agreement between it and the Union by implementing a management-rights clause under the guise of a work rule; and unilaterally modified the collective-bargaining agreement between it and the Union by discontinuing a defined benefit pension plan and replacing it with a defined contribution plan.
The Board agreed with the judge's finding that Burns (NLRB v. Burns International Security Services, 406 U.S. 272, 294-295 (1972)), specifically accords the successor employer the right to reject the predecessor's collective-bargaining agreement and because the successor has no prior agreement with the Union, it cannot violate Section 8(d) by implementing terms and conditions of employment that vary from the predecessor's collective-bargaining agreement.
(Chairman Battista and Members Schaumber and Meisburg participated.)
Charge filed by Utility Workers Local 464; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston, June 20-22, 2000. Adm. Law Judge Wallace H. Nations issued his decision Aug. 30, 2001.
***
Yukon Kuskokwin Health Corp. (19-CA-26663; 341 NLRB No. 139) Bethel, AK May 28, 2004.
Citing San Manuel Indian Bingo & Casino, 341 NLRB No. 138 (2004), which set forth a new approach for determining the Board's jurisdiction over enterprises associated with Indian tribes, Chairman Battista and Members Liebman and Walsh declined to assert jurisdiction in this case, overruled the Board's prior decision (329 NLRB No. 86 (1999)), and dismissed the complaint. The Board found in its 1999 decision that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Teamsters Local 959, following its certification as exclusive representative.
Member Schaumber, concurring, noted his agreement that the Board does not have jurisdiction over the Respondent and with the complaint's dismissal. He does not subscribe however to the majority's reasoning and wrote separately to explain his views. Member Schaumber held that tribal sovereignty would be infringed if the Board asserted jurisdiction over the Respondent. "Because no expression of Congressional intent to abrogate that sovereignty is to be found in the Act, the Board is without statutory authority to assert jurisdiction over the labor relations of the Respondent," he explained.
On December 19, 2000, the U.S. Court of Appeals for the District of Columbia Circuit denied enforcement of the Board's Order, and remanded the case to the Board for further consideration of the Respondent's argument that it is entitled to exemption under Section 2(2) of the Act because the Indian Self-Determination Act (ISDA), 25 U.S.C. ยง 450, et seq. authorizes it to act as an arm of, and thus to share in the exemption of, the United States. 234 F.3d 714.
The Respondent is a regional nonprofit corporation that provides a comprehensive health services program for Southwestern Alaska. It is governed by a board of directors whose 20 members are elected by the tribal governments of 58 Alaskan Native tribes located in the Yukon-Kuskokwim Delta area. In 1991, the Respondent took over the operation of the hospital at issue here, under the ISDA. Only 1 or 2 members of the approximately 40 employees in the petitioned-for bargaining unit are Native Alaskans. Ninety-five percent of the patients of the Respondent's hospital are Native Alaskans. The Respondent does not charge Native Alaskans for the services they receive at the hospital. Those services are covered by the annual Federal funding the Respondent receives from the Federal Government to operate the hospital, pursuant to Federal Government's trust responsibility to provide health care for Indians.
On remand, the majority decided that the Respondent is not exempt under Section 2(2) based on the nature of its status as a tribal compactor under the ISDA. Further, for the reasons set forth in San Manuel, they decided that the Respondent is not exempt as a State or political subdivision of the State. Consistent with San Manuel, the majority then decided that application of the Tuscarora-Coeur d'Alene analysis established no barrier to the Board's assertion of jurisdiction. Finally, they decided that policy considerations weigh against the Board asserting its discretionary jurisdiction in this case, noting that the Respondent, as an ISDA compactor, is fulfilling the Federal Government's trust responsibility to provide free health care to Indians and therefore, the character of the Respondent's enterprise and its principal patient base militate against the assertion of jurisdiction.
(Chairman Battista and Members Liebman, Schaumber, and Walsh participated.)
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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