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LawMemo publishes Employment Law Memo.

07/30/2004
by Ross Runkel at LawMemo

NLRB Law Memo 07/30/2004

by LawMemo.Com - First in Employment Law

NLRB - Staff summarized 8 decisions.

American Armored Car, Ltd. (2-CA-33316; 342 NLRB No. 45) New York, NY July 19, 2004.

The Board, finding that the Respondent failed to meet its burden of proof with respect to any of its contentions regarding the amount owed to Fernando Miranda, affirmed the administrative law judge's recommendation and ordered the Respondent to pay Miranda the sum of $68,061.02, plus interest and reimburse him the sum of $10,127.25 for medical expenses incurred during the backpay period. It held that the total amount the Respondent is required to pay is $78,188.27.

(Chairman Battista and Members Liebman and Walsh participated.)

Supplemental hearing at New York on Jan 27, 2004. Adm. Law Judge Raymond P. Green issued his supplemental decision April 13, 2004.

***

Anheuser-Busch, Inc. (14-CA-25299; 342 NLRB No. 49) St. Louis, MO July 22, 2004.

The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to timely respond to Teamsters Local 6's October 5, 1998 request for relevant information and did not violate the Act by failing to respond to the July 2, 1998 oral information request. Chairman Battista and Member Walsh agreed with the judge that the Respondent violated Section 8(a)(5) and (1) by failing to notify and bargain with the Union prior to the installation and use of surveillance cameras in the workplace. Member Schaumber would find that the Respondent's unilateral installation and use of surveillance cameras did not violate the Act.

Due to the Respondent's installation of hidden surveillance cameras in work and break areas, 16 employees were disciplined for misconduct that the Respondent observed through use of the cameras. A Board majority of Chairman Battista and Member Schaumber agreed with the judge's decision not to revoke the discipline imposed on 16 employees whose misconduct was recorded by the surveillance cameras. They agreed with the judge's conclusion that the employees' misconduct was in violation of plant rules, and such conduct was the basis for the suspensions and termination.

Member Walsh disagreed with his colleagues' failure to rescind the discipline imposed on the 16 employees for conduct discovered solely through use of the unlawfully installed cameras. He wrote that absent the unlawful installation and use of the cameras, the Respondent had no basis to even question those 16 employees, let alone to discipline them. Member Walsh stated: "In order to remedy its unlawful conduct, the Respondent must be ordered to rescind the employees' discipline, expunge the employees' files of any reference to their discipline, make the employees whole, and offer reinstatement to those employees who were discharged."

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Brewers and Maltsters Local 6, Teamsters; complaint alleged violation of Section 8(a)(1) and (5). Hearing at St. Louis, May 25 and 26, 1999. Adm. Law Judge Bruce D. Rosenstein issued his decision Oct. 1, 1999.

***

Black's Railroad Transit Service, Inc. (33-CA-13903; 342 NLRB No. 48) Galesburg, IL July 21, 2004.

The Board adopted the administrative law judge's finding and held that the Respondent violated Section 8(a)(4), (3), and (1) of the Act by terminating Candice L. Bowles on or about January 23, 2002 because she joined Teamsters Local 627, and participated in Board investigations and proceedings. Member Schaumber found it unnecessary to pass on the judge's finding and conclusion pertaining to the Section 8(a)(4) allegation but agreed that Bowles was unlawfully discharged in violation of Section 8(a)(3) and (1).

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Candice L. Bowles, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Peoria on Dec. 3, 2003. Adm. Law Judge Michael A. Rosas issued his decision March 30, 2004.

***

Brandeis Machinery and Supply Co., a Wholly Owned Subsidiary of Bramco, L.L.C. (25-CA-28201-1; 342 NLRB No. 46) South Bend, IN July 21, 2004.

The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (3) of the Act in various respects. Among others, the judge found that the Respondent violated Section 8(a)(1) by prohibiting shop mechanic, Bob Cook, from wearing a union hat and service mechanic Steve Benefield from wearing a union button that covered a company logo on his hat. Members Liebman and Walsh affirmed the judge's finding with regard to Cook which essentially constitutes a finding of an unlawful prohibition against the wearing of union insignia, but found it unnecessary to pass on his Section 8(a)(1) finding with regard to Steven Benefield because it would be cumulative and would not affect the remedy. Chairman Battista would find neither violation.

Absent exceptions, the Board affirmed the judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(1) by removing union literature from an employee bulletin board, searching Bob Cook's toolbox, threatening Cook with discharge because he spoke to other employees on the picket line; and violated Section 8(a)(3) and (1) by issuing Benefield a written reprimand for poor performance and extending his original 90-day probationary period, refusing to assign Cook and Benefield overtime, and assigning Cook and Benefield more onerous work. It also agreed with the judge that the Respondent did not violate the Act when it discharged Benefield.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Operating Engineers Local 150; complaint alleged violation of Section 8(a)(1) and (3). Hearing at South Bend, March 10-12, 2003. Adm. Law Judge C. Richard Miserendino issued his decision Sept. 25, 2003.

***

Hollingsworth Management Service (7-RC-22535; 342 NLRB No. 50) Dearborn, MI July 21, 2004.

The Board, in agreement with the hearing officer, overruled the Employer's Objections 1, 4, and 5. It found that the hearing officer erred in overruling the Employer's Objection 3, which alleged that electioneering at or near the polling area interfered with the election. Accordingly, the Board sustained Objection 3, set aside the election of October 10, 2003, and directed a second election. The tally of ballots showed 100 for and 71 against the Auto Workers, with 8 challenged ballots, an insufficient number to affect the results.

Member Schaumber agreed that Objection 3 should be sustained and a new election directed. He wrote that he need not and does not pass on whether the hearing officer correctly overruled Objections 1, 4, and 5.

(Chairman Battista and Members Schaumber and Walsh participated.)

***

JPH Management, Inc., d/b/a Mid-Wilshire Health Care Center (31-CA-25336; 342 NLRB No. 43) Los Angeles, CA July 19, 2004.

Affirming the administrative law judge's findings, the Board held that the Respondent violated Section 8(a)(1) and (3) of the Act by unlawfully coercing and influencing employees to sign a decertification petition, threatening to report employees to the INS if they refuse to sign the decertification petition, creating the impression that wage increases or other benefits were dependent upon the signing of the decertification petition, withholding wage increases from employees because of their union activity, issuing written warnings to employees because of their union activity, suspending employees because of their union activity, and discharging employees because of their union activity.

(Members Schaumber, Walsh, and Meisburg participated.)

Charge filed by Health Care Workers (SEIU) Local 399; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Los Angeles, May 13-15 and July 24-25, 2002. Adm. Law Judge Gerald A. Wacknov issued his decision Sept. 26, 2002.

***

Postal Workers Local 735 (United States Postal Service) (17-CB-5444, 5517; 342 NLRB No. 47) Wichita, KS July 21, 2004.

The Board, in this supplemental decision and order, adopted the administrative law judge's recommendation and found that the Respondent violated Section 8(b)(1)(A) of the Act by excluding Teri Adelson from sharing in a backpay settlement of a lost-work grievance because she was not a union member and by a subsequent newsletter column written by the Respondent's president that discussed the settlement agreement and Adelson.

The parties had settled Adelson's initial charge through a non-Board settlement. Subsequently, the General Counsel revoked his dismissal of the complaint and issued a consolidated complaint on the basis of the newsletter column, alleging that Adelson's exclusion from the grievance settlement and the subsequent newsletter column each violated Section 8(b)(1)(A). The judge found, in his initial decision, that the newsletter column neither was unlawful nor justified revocation of the dismissal of the initial complaint. However, the Board, in its decision reported at 340 NLRB No. 166 (2003), found that the revocation was proper and remanded the case to the judge for a determination on the merits of the complaint allegations.

In his supplemental decision, the judge found that both allegations had merit--the newsletter implying that nonmembers would not be represented by the Union or treated fairly and Adelson's exclusion from the settlement. The Respondent did not except to these findings. In two limited exceptions to the judge's remedial provisions, the General Counsel contended that: (1) the judge's remedial notice was inadvertently addressed only to "Members" rather than to "Employees and Members" and (2) the judge failed to require the Respondent to "mail" copies of the notice to all bargaining unit members rather than to "send" them as the recommended Order states. The Board found merit in both exceptions and modified the judge's recommended order and notice accordingly.

(Chairman Battista and Members Liebman and Walsh participated.)

Adm. Law Judge James L. Rose issued his supplemental decision March 23, 2004.

***

Superior Travel Service, Inc. (7-CA-46641; 342 NLRB No. 51) Flint, MI July 23, 2004.

Affirming the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) of the Act by discriminatorily discharging Susan M. White because she engaged in protected concerted activity by preparing, circulating, signing and, with a co-worker, presenting to the Respondent a petition complaining about employee handbook provisions; and by threatening that employees would be discharged for engaging in protected concerted activities.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Susan M. White, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Flint on Feb. 19, 2004. Adm. Law Judge Paul Bogas issued his decision May 21, 2004.

LawMemo publishes Employment Law Memo.

07/23/2004
by Ross Runkel at LawMemo

NLRB Law Memo 07/23/2004

by LawMemo.Com - First in Employment Law

NLRB - Staff summarized 4 decisions.

Allen Storage and Moving Co., Inc. (7-CA-44395, 44993; 342 NLRB No. 44) Flint, MI July 16, 2004.

The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally canceling whole life insurance policies that the Respondent maintained for unit employees; violated Section 8(a)(1) by threatening to discharge employees if they did not comply with the terms of the Respondent's March 2002 recall notification; and violated Section 8(a)(3) and (1) by locking out employees in September 2001 and March 2002.

Chairman Battista and Members Schaumber disagreed with the judge's finding that the Respondent violated the Act by failing to provide certain information to Teamsters Local 332, including estimate sheets, local work order invoices, intrastate and interstate bills of lading, and records of work referred to the Respondent by other moving companies. The Union asserted that it needed the information to evaluate the Respondent's claim concerning the diminished availability of work. Chairman Battista and Member Schaumber found that the Respondent met its burden of showing that the information the Union requested was confidential and that the Respondent offered a reasonable alternative to obtain the information, which the Union rejected without discussion or explanation.

Member Walsh agreed that under Pennsylvania Power & Light Co., 301 NLRB 1104, 1105-1105 (1991), the Board has held that "when a union is entitled to information concerning which an employer can legitimately claim a partial confidentiality interest, the employer must bargain toward an accommodation between the union's information needs and the employer's justified interests." However, he disagreed with the majority's application of law to the facts of this case and, for the reasons stated by the judge, he would find that the Respondent violated the Act by refusing to provide the Union with the requested information.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Teamsters Local 332; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Flint, Aug. 6-8 and Sept. 23-26, 2002. Adm. Law Judge Paul Bogas issued his decision Feb. 14, 2003.

***

Brown University (1-RC-21368; 341 NLRB No. 42) Providence, RI July 13, 2004.

The Board, in a 3-2 decision involving Brown University, held that graduate student assistants are not employees within the meaning of Section 2(3) of the National Labor Relations Act. The Board found that these persons are students and are not statutory employees. The majority opinion is signed by Chairman Battista and Members Schaumber and Meisburg. Members Liebman and Walsh dissented.

The decision overrules the Board's decision four years ago in New York University, 332 NLRB 1205 (2000), which found that the graduate student assistants there were employees within the meaning of Section 2(3) of the Act. NYU had overruled over 25 years of precedent under which graduate student assistants had not been regarded as statutory employees. See the 1974 decision in Leland Stanford Junior University, 214 NLRB 621. The majority in Brown stated:

After carefully analyzing these issues, we have come to the conclusion that the Board's 25-year pre-NYU principle of regarding graduate student assistants as nonemployees was sound and well reasoned. It is clear to us that graduate student assistants, including those at Brown, are primarily students and have a primarily educational, not economic, relationship with their university.

The majority pointed out that Leland Stanford was "wholly consistent with the overall purpose and aim of the Act." The Act governs "a fundamentally economic relationship between employees and employers."

The Board interpreted Section 2(3) in light of the "underlying fundamental premise of the Act," i.e. that the Act is "designed to cover economic relationships." The majority concluded: "The Board's longstanding rule that it will not assert jurisdiction over relationships that are 'primarily educational' is consistent with these principles."

In reaching its decision in the Brown University case, the majority dismissed a representation petition filed by the Auto Workers seeking to represent approximately 450 graduate students employed as teaching assistants, research assistants, and proctors. They reversed a Regional Director's Decision and Direction of Election that had relied on NYU in finding that these persons are statutory employees and constitute an appropriate unit for collective bargaining. The election was conducted on December 6, 2001, and the ballots were impounded pending the disposition of the union's request for review. The election is mooted by this decision.

The majority said that there are also policy reasons for declining to extend collective bargaining rights to such persons. There is a danger that the imposition of collective bargaining in this context would intrude upon the academic relationship between the university and students. Further, the majority found that "it simply does not effectuate the national labor policy to accord [such persons] collective bargaining rights because they are primarily students."

The Board majority expressed no opinion regarding the Board's decision in Boston Medical Center, 330 NLRB 152 (1999), relied on heavily in the NYU decision, in which a Board majority found that interns, residents, and house staff at teaching hospitals were employees within the meaning of Section 2(3) of the Act.

In dissent, Members Liebman and Walsh observed that "collective bargaining by graduate students is increasingly a fact of American university life." They characterized the majority's decision as "woefully out of touch with contemporary academic reality" and stated:

The result of the Board's ruling is harsh. Not only can universities avoid dealing with graduate student unions, they are also free to retaliate against graduate students who act together to address their working conditions.

The dissent pointed to the broad definition of "employee" in the Act, arguing that the Board was not free to create its own exclusion for graduate assistants. According to the dissent, American universities increasingly rely on graduate students to perform important teaching and other work. Denying graduate students labor law rights, the dissent predicted, will lead to increased labor disputes on campus.

(Full Board participated.)

***

Sanitation Salvage Corp. (2-CA-35481-1; 342 NLRB No. 41) Bronx, NY July 12, 2004.

The Board adopted the recommendations of the administrative law judge and held that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to sign the collective-bargaining agreement presented by Teamsters Local 813 on April 1, and again on May 5, 2003.

The judge found that Respondent and the Union reached an agreement binding the Respondent to the terms and conditions of a collective-bargaining agreement to be negotiated between the Union and one of the two major companies in the waste disposal industry in New York City. The agreement, commonly referred to as a "me-too" agreement, obligated the Respondent to sign and be bound by the collective-bargaining agreement that would be reached between the Union and employer A or B. The Union thereafter tendered the "A" contract to the Respondent.

The Respondent refused to sign the agreement, arguing that no authorized agent ever signed the me-too agreement on the Respondent's behalf and that the terms of the agreement were so ambiguous as to render it unenforceable. The Board disagreed. It held that the Respondent bound itself to the me-too agreement, which obligated the Respondent to adopt the Union's choice of two collective-bargaining agreements, and that the me-too agreement is sufficiently definite, in light of extrinsic evidence, to constitute an enforceable contract.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Teamsters Local 813; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York on Oct. 8-9, 2003. Adm. Law Judge Michael A. Rosas issued his decision March 8, 2004.

***

Sociedad Española de Auxilio Mutuo y Beneficencia de P.R. a/k/a Hospital Español Auxilio Mutuo de Puerto Rico, Inc. (24-CA-7993, et al.; 342 NLRB No. 40) San Juan, PR July 13, 2004.

The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by disparately enforcing a no-solicitation/no-distribution policy against its unionized employees, and seeking to have employees decertify the Union; Section 8(a)(3) and (1) by discharging employee Elsa Romero; and Section 8(a)(5) and (1) by subcontracting bargaining unit work.

Chairman Battista and Member Schaumber, contrary to the judge, did not find that the Respondent violated Section 8(a)(3) and (1) by locking out unit employees from December 22-31, 1998, as a reprisal against the Union and did not independently violate Section 8(a)(1) by telling employees that it was locking them out in retaliation for their union activities. The majority rejected the judge's conclusion that the Respondent failed to present evidence of legitimate and substantial business justifications for locking out its employees. The Respondent claimed that its decision to call a lockout, and subsequently to advance it was a necessary response to the instability caused by the Union calling two strikes during the critical holiday period. It argued that the judge's rejection of its asserted business justification demonstrated his misunderstanding of the relevant employment market in Puerto Rico. The majority also rejected the judge's alternative finding that the General Counsel had proved animus against protected union activity.

In her partial dissent, Member Liebman contended that the evidence clearly supports the judge's finding that the Respondent locked out its employees to punish the Union for calling a lawful strike. She stated that the Respondent never proved that it would have had difficulty in finding replacement workers during the Union's two planned strikes and that, even if the Respondent had met its burden, the judge correctly found that the lockout was motivated by antiunion animus, not business justifications. Member Liebman noted that she would also find that the Respondent unlawfully solicited signatures for a decertification petition.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Unidad Laboral de Enfermeras(os) y Empleados de La Salud; complaint alleged violation of Section 8(a)(1), (3) and (5). Hearing at Hato Rey, Oct. 10-13 and 24-26, 2000. Adm. Law Judge George Alemán issued his decision Nov. 30, 2001.

LawMemo publishes Employment Law Memo.

07/16/2004
by Ross Runkel at LawMemo

NLRB Law Memo 07/16/2004

by LawMemo.Com - First in Employment Law

NLRB - Graduate student assistants are not statutory employees.
NLRB - Staff summarized 2 other decisions.

Brown University, (342 NLRB No. 42) July 13, 2004

The National Labor Relations Board, in a 3-2 decision involving Brown University, found that graduate student assistants are not employees within the meaning of Section 2(3) of the National Labor Relations Act. The Board found that these persons are students and are not statutory employees. The majority opinion is signed by Chairman Robert J. Battista, and Members Peter C. Schaumber and Ronald Meisburg. Members Wilma B. Liebman and Dennis P. Walsh dissented.

The decision overrules the Board's decision four years ago in New York University, 332 NLRB 1205 (2000), which found that the graduate student assistants there were employees within the meaning of Section 2(3) of the Act. NYU had overruled over 25 years of precedent under which graduate student assistants had not been regarded as statutory employees. See the 1974 decision in Leland Stanford Junior University, 214 NLRB 621. The majority in Brown stated:

After carefully analyzing these issues, we have come to the conclusion that the Board's pre-NYU principle of regarding graduate student assistants as nonemployees was sound and well reasoned. It is clear to us that graduate student assistants, including those at Brown, are primarily students and have primarily an educational, not economic, relationship with the their university.

The majority pointed out that Leland Stanford was "wholly consistent with the overall purpose and aim of the Act." The Act governs "a fundamentally economic relationship between employees and employers."

The Board interpreted Section 2(3) in light of the "underlying fundamental premise of the Act," i.e. that the Act is "designed to cover economic relationships." The majority concluded: "The Board's longstanding rule that it will not assert jurisdiction over relationships that are 'primarily educational' is consistent with these principles."

In reaching its decision in the Brown University case, the Board dismissed a representation petition filed by the United Auto Workers union seeking to represent approximately 450 graduate students employed as teaching assistants, research assistants, and proctors. It reversed a Regional Director's Decision and Direction of Election that had relied on NYU in finding that these persons are statutory employees and constitute an appropriate unit for collective bargaining. The election was conducted on December 6, 2001, and the ballots were impounded pending the disposition of the union's request for review. Thus, the election is mooted by today's decision.

The majority said that there are also policy reasons for declining to extend collective bargaining rights to such persons. There is a danger that the imposition of collective bargaining in this context would intrude upon the academic relationship between the university and students. Further, the Board found that "it simply does not effectuate the national labor policy to accord [such persons] collective bargaining rights because they are primarily students."

The Board majority expressed no opinion regarding the Board's decision in Boston Medical Center, 330 NLRB 152 (1999), relied on heavily in the NYU decision, in which a Board majority found that interns, residents, and house staff at teaching hospitals were employees within the meaning of Section 2(3) of the Act.

In dissent, Members Liebman and Walsh observed that "collective bargaining by graduate students is increasingly a fact of American university life." They characterized the majority's decision as "woefully out of touch with contemporary academic reality" and stated that

The result of the Board's ruling is harsh. Not only can universities avoid dealing with graduate student unions, they are also free to retaliate against graduate students who act together to address their working conditions.

The dissent pointed to the broad definition of "employee" in the Act, arguing that the Board was not free to create its own exclusion for graduate assistants. According to the dissent, American universities increasingly rely on graduate students to perform important teaching and other work. Denying graduate students labor law rights, the dissent predicted, will lead to increased labor disputes on campus.

***

North Hills Office Services and National Organization of Industrial Trade Unions (22-CA-25399, 22-CB-9585; 342 NLRB No. 25) Rutherford, NJ July 9, 2004.

The Board adopted the administrative law judge's finding that Respondent North Hills Office Services (North Hills) violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with Service Employees Local 32B-32J; Section 8(a)(2) and (1) by extending recognition to Respondent National Organization of Industrial Trades Unions (NOITU) as the exclusive bargaining representative of the unit employees, and by applying the terms of its collective-bargaining agreement with NOITU to the unit employees, at a time when NOITU did not represent an uncoerced majority of those employees; and by arranging for and attending a meeting with unit employees during which representatives of NOITU solicited those employees to sign union authorization cards.

The Board adopted, absent exceptions, the judge's finding that Respondent NOITU violated Section 8(b)(1)(A) by accepting recognition as the exclusive bargaining representative of the unit employees and enforcing the terms of its collective-bargaining agreement with Respondent North Hills with respect to the unit employees, at a time when it did not represent an uncoerced majority of those employees, by participating in a meeting with unit employees that was arranged by a representative of North Hills, and by soliciting unit employees to sign union authorization cards, in the presence of a representative of North Hills.

(Members Schaumber, Walsh, and Meisburg participated.)

Charges filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(1), (2) and (5) and Section 8(b)(1)(A). Hearing at Newark, April 8 and 9 and May 5 and 6, 2003. Adm. Law Judge Margaret M. Kern issued her decision Feb. 2, 2004.

***

Saint Gobain Abrasives, Inc. (1-RD-2003; 342 NLRB No. 39) Worcester, MA July 8, 2004.

Chairman Battista and Members Schaumber and Meisburg granted Petitioner Wayne Gregoire's request for review, reversed the Regional Director's administrative dismissal of the decertification petition, and remanded the case to the Regional Director for further appropriate action. Members Liebman and Walsh dissented.

The Regional Director dismissed, without a hearing, the decertification petition, finding that the Employer's allegedly unlawful change in health insurance benefits likely caused employee disaffection with the Union. The majority held that the Regional Director's finding of causal nexus deprived the employees of their Section 7 rights on the question of union representation. Citing Master Slack, 271 NLRB 78 (1984), they concluded that such a factual determination of causal nexus should not be made without an evidentiary hearing.

While noting that the Board has applied Master Slack in the context of a representation case to dismiss a decertification petition without a hearing, the majority said: "the alleged unfair labor practice is a single unilateral change on a single subject and, . . . there are significant factual issues as to the impact of that change. In such circumstances, it is not appropriate to speculate, without facts established in a hearing, that there was a casual relationship between the conduct and the disaffection. To so speculate is to deny employees their fundamental Section 7 rights. Surely, a hearing and findings are prerequisites to such a denial."

They further stated: "Our dissenting colleagues say that the change had the 'inherent tendency' to undercut the Union's support. . . . the real test is whether there is a causal nexus between the change and the loss of support for the Union. The use of a conclusionary phrase can be no substitute for an evidentiary into this matter. To the extent that Priority One Services, [331 NLRB 1527 (2000)] is to the contrary, it is overruled."

Members Liebman and Walsh, contrary to their colleagues, would deny review and affirm the Regional Director's dismissal of the petition pursuant to the Board's decision in Priority One Services. In agreement with the Regional Director, Members Liebman and Walsh held that the unilaterally implemented health insurance benefits affected the entire bargaining unit and that the change is of the type that would tend to cause employee disaffection with the Union. They noted that if the Board upholds the dismissal of the health insurance change allegation, the decertification petition in this case will be reinstated and that "expeditious action on the unfair labor practice case by the Board could make a hearing in this representation case unnecessary."

(Full Board participated.)

LawMemo publishes Employment Law Memo.

07/09/2004
by Ross Runkel at LawMemo

NLRB Law Memo 07/09/2004

by LawMemo.Com - First in Employment Law

NLRB - Staff summarized 18 decisions.

Alexandria NE LLC (4-CA-32368; 342 NLRB No. 23) Wilkes-Barre, PA June 30, 2004.

The Board adopted the administrative law judge's recommended Order and dismissed the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee David Stavetski because of his union and other protected activity. The judge found that the General Counsel failed to make an initial showing that Stavetski's discharge was motivated by unlawful considerations.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Teamsters Local 401; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia on Jan. 6, 2004. Adm. Law Judge Robert A. Giannasi issued his decision Feb. 18, 2004.

***

Atlantic Veal & Lamb, Inc. (29-CA-24484, et al.; 342 NLRB No. 37) Brooklyn, NY June 30, 2004.

Chairman Battista and Member Walsh upheld the administrative law judge's conclusions that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending employee Modesto (Cuidadano) Lora and discharging employee Jeorge Ogando, and violated Section 8(a)(1) by threatening employees with plant closure and discharge and interrogating employees. In adopting the judge's conclusion that the Respondent unlawfully discharged Jeorge Ogando, the majority did not rely on his entire rationale. They found that the Respondent had actual knowledge of, or suspected, Ogando's union activity based on a confluence of circumstances surrounding his discharge. The majority affirmed the judge's dismissal of the allegation that the Respondent violated Section 8(a)(3) and (1) by discharging employee Cecilio (Leo) Soto and by laying off certain employees.

In a reversal of the judge, the majority dismissed the allegation that the Respondent failed to recall employee Franklyn Rosario in violation of Section 8(a)(3) and (1), finding that the General Counsel failed to meet his initial Wright Line burden of establishing that animus against union activities was a motivating factor in the failure to recall Rosario.

Member Schaumber, dissenting in part, concluded, contrary to his colleagues, that the judge failed to make sufficiently detailed credibility resolutions to satisfy the requirements of 5 U.S.C. § 557(c) of the Administrative Procedures Act and to permit meaningful review of his credibility assessments. He would remand to the judge for additional findings the complaint allegations that the Respondent violated Section 8(a)(1) by interrogating employees and threatening them with discharge and plant closure, violated Section 8(a)(3) by suspending Lora, and violated Section 8(a)(3) by discharging Soto and Ogando.

No exceptions were filed to the judge's dismissal of the complaint allegations that the Respondent created the impression of, or engaged in, surveillance in violation of Section 8(a)(1).

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by UNITE Local 155; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York City during 11 days commencing Feb. 27, 2002 and concluding March 3, 2003. Adm. Law Judge D. Barry Morris issued his decision Aug. 19, 2003.

***

Boghosian Raisin Packing Co., Inc. (32-CA-17721-1, et al.; 342 NLRB No. 32) Fowler, CA June 30, 2004.

Chairman Battista and Member Schaumber, with Member Liebman dissenting, affirmed the administrative law judge's dismissal of the complaint, finding that the Respondent did not violate Section 8(a)(3) and (1) of the Act by refusing to reinstate 42 economic strikers and Section 8(a)(5) and (1) by subsequently withdrawing recognition from Teamsters Local 616 and changing terms of employment.

The majority found, as did the judge, that the Respondent was not required to reinstate the strikers because they had, under the express language in the loss-of-status provision of Section 8(d), lost their protected status as employees under the Act by reason of their Union's failure to file a notice of its intent to strike with the Federal Mediation and Conciliation Service (FMCS) before commencing an economic strike as required by Section 8(d)(3). Further, the majority found that subsequently the Respondent lawfully withdrew recognition from the Union based on a petition signed by an uncoerced majority of the unit employees, and changed their terms of employment.

Member Liebman wrote:

Today's decision rewards conduct that is precisely the opposite of what the National Labor Relations Act envisions: good-faith collective bargaining that will avert unnecessary strikes. Here, an employer waited for employees to strike before revealing that their union-ignorant of its own clerical error-had failed to file a statutorily required notice of dispute with the Federal Mediation and Conciliation Service. The employer then: rejected the union's offer to return employees to work under the employer's last bargaining proposal; threatened employees with mass discharge to get more concessions; and, when the union did not give in, quickly fired all the strikers. New workers were hired who declared their opposition to the union, letting the employer withdraw recognition.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Teamsters Local 616; complaint alleged violation of Section 8(a)(1), (3), (4) and (5). Hearing at Fresno, July 10-12, 2000. Adm. Law Judge James L. Rose issued his decision Oct. 31, 2000.

***

Southeastern Industrial Services d/b/a Bradley Steel, Inc. (10-RC-15285; 342 NLRB No. 22) Cleveland, TN June 30, 2004.

The Board, reversing the Regional Director, found that the detailers and the purchasing agent/expediter do not share such a substantial community of interest with the petitioned-for unit of production and maintenance employees employed by the Employer at its Cleveland, Tennessee facility, as to require their inclusion in the unit. The Board remanded the proceeding to the Regional Director for further appropriate action. By order dated October 24, 2002, the Board granted the Petitioner's (Iron Workers Local 526) request for review of the Regional Director's decision and order requiring the inclusion of the detailers and the purchasing agent/expediter in the unit and dismissing the petition in light of the Petitioner's unwillingness to proceed to an election in a unit that included the detailers and purchasing agent/expediter.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

Citizens Investment Services Corp. (6-CA-33153; 342 NLRB No. 26) Pittsburgh, PA June 30, 2004.

Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(1) of the Act by discharging financial consultant Christopher Hayward because of his protected concerted activities in seeking changes to the structure of consultants' compensation and complaining about problems with actual compensation paid within the existing structure. Chairman Battista and Members Meisburg disavowed the judge's apparent reliance on Hayward's subjective belief that he was acting on behalf of the financial consultants as evidence that Hayward was, in fact, engaged in protected concerted activity. They held that only the objective evidence establishing that Hayward's actions constituted concerted activity, including the fact that Hayward repeatedly raised the consultant's compensation issues during monthly meetings conducted by management, may be considered.

(Chairman Battista and Members Liebman and Meisburg participated.)

Charge filed by Christopher Hayward; complaint alleged violation of Section 8(a)(1). Hearing at Pittsburgh, Sept. 11-12, 2003. Adm. Law Judge Paul Buxbaum issued his decision Dec. 23, 2003.

***

Detroit Newspaper Agency, d/b/a Detroit Newspapers, et al. (7-CA-38079, et al.; 342 NLRB No. 24) Detroit, MI June 30, 2004.

The Board affirmed the administrative law judge's findings that Respondents Detroit Newspaper Agency, d/b/a Detroit Newspapers (DNA) violated Section 8(a)(3) and (1) of the Act by discharging strikers Floyd Davis Jr., Anthony Edwards, Douglas McPhail, Steven Montagne, Gary Rusnell, Larry Skewarczynski, Ben Solomon, Harry Thompson, and Mike Youngmeier, without an honest belief that they had engaged in serious misconduct or where the strikers had not in fact committed the acts relied upon for their discharge; and issuing a warning to Gene Schroll.

Member Schaumber, dissenting in part, concluded that Skewarczynski was guilty of serious strike misconduct and that the Respondent lawfully discharged him for it. He noted that it was undisputed that while on the picket line, Skewarczynski squirted liquid into the eyes of security guard Jeffrey Spurlock and that Spurlock immediately left work for medical treatment at a hospital.

Members Liebman and Walsh found that, under the circumstances, Skewarczynski's conduct was not sufficiently egregious to bar his reinstatement, explaining: "Skewarczynski had been playfully squirting his own fellow strikers with the water pistol, and he credibly testified that he did not intend to squirt water into Spurlock's eyes but had only attempted to squirt at Spurlock's camera. It is simply unreasonable to conclude that any person who witnessed this occurrence would likely have felt coerced or intimidated by Skewarczyski's wielding of the water pistol."

The consolidated complaint alleged that Respondents DNA, Detroit News, and Detroit Free Press had committed violations of Section 8(a)(3) and (1) by discharging or disciplining a number of employees who had participated in a strike against the Respondents. Since the judge issued his decision, the parties have entered into a series of non-Board settlements, which have resolved all but 10 of the allegations contained in the consolidated complaint. All of the remaining allegations are directed against DNA. The Board modified the Order and Notice to reflect the settlement of the other charges.

The Board also modified the Order to grant the discriminatees only the rights of economic strikers under the Board's decision in Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert denied 397 U.S. 920 (1970). Member Schaumber disagreed with his colleagues' order to the extent it requires Respondent to cease and desist from [d]iscouraging its employees' activity on behalf of a labor organization by discharging striking employees . . . where they had not engaged in serious misconduct" and would revise the order in a manner consistent with the order he suggested in Detroit Newspapers, 340 NLRB No. 121 (2003).

(Members Liebman, Schaumber, and Walsh participated.)

Charges filed by Graphic Communications Local 13N, Detroit Mailers Union No. 2040, Teamsters; Teamsters Local 372; Newspaper Guild of Detroit Local 22; Detroit Typographical Union No. 18, Communications Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit on 53 dates between Sept. 22, 1997 and Sept. 23, 1998. Adm. Law Judge Richard A. Scully issued his decision Dec. 17, 1999.

***

Electrical Workers IBEW Local 3 (Slattery Skanska, Inc.) (29-CD-568; 342 NLRB. 21) Queens, NY June 28, 2004.

The Board determined that employees of Slattery Skanska, Inc. represented by Building Concrete & Common Laborers Local 731, rather than those represented by Electrical Workers IBEW Local 3, are entitled to perform the setting of precast concrete boxes into the ground, through which electrical conduit is to be installed, at the Corona Rail Yard Project in Queens, NY.

In making its award, the Board relied on the factors of collective-bargaining agreements, employer preference, employer past practice, and relative skills and training. Regarding the latter factor, the Board noted that employees represented by Local 731 receive extensive training at the Laborers' school in order to perform the disputed work, including training in digging the hole, sheeting or bracing the hole, tamping or compacting the soil, directing the crane with special signals relied on by the crane operator, rigging the manhole to the crane, off-loading the manhole. There is no evidence that the Electricians possess a similar degree of skill. There is evidence that the Electricians are capable of performing the disputed work.

(Members Schaumber, Walsh, and Meisburg participated.)

***

First Legal Support Services, LLC (20-CA-29922-1; 342 NLRB No. 29) San Francisco, CA June 30, 2004.

The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (3) of the Act in response to an organizing drive by Warehouse Union Local 6 among the Respondent's bicycle and driver couriers in November 2000. The Respondent did not except to any of the judge's findings of violations or his recommended remedy. The judge recommended an Order with standard cease-and-desist language, reinstate/instate provisions and make whole remedies for certain employees unlawfully mistreated, and the cancellation of the Respondent's unlawful conversion of its field employees to independent contractor status.

The judge concluded that a remedial bargaining order was inappropriate under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) because a majority of the Respondent's bicycle and driver couriers had not executed authorization cards. He found that 10 of the 20 unit employees had signed authorization cards prior to the Respondent's unlawful conduct. The judge rejected an eleventh card, an undated authorization card purportedly signed by employee Casey Cook before November 24. He also declined to issue a nonmajority bargaining order, citing Gourmet Foods, 270 NLRB 578 (1984). The General Counsel and Union excepted to the judge's refusal to recommend a remedial bargaining order of any kind and to his findings pertaining to the Cook card.

Members Schaumber and Meisburg found no merit in the exceptions and agreed with the judge that a remedial order is inappropriate because the General Counsel failed to establish the Union's majority status. They adhered to established Board precedent on nonmajority bargaining orders and concluded, contrary to dissenting Member Liebman, that Gourmet Foods, was correctly decided and should not be overruled. They pointed out that the judge "simply had no collateral evidence (e.g. other witness testimony or an official Board time and date stamp on the photocopy) to authenticate the undated Cook card and establish when it had been signed."

Member Liebman concluded that the Respondent's violations demand special remedies. She said that the "Board may and should issue a remedial bargaining order because the judge erroneously refused to count employee Casey Cook's decisive authorization card. Even assuming, however, that the General Counsel failed to establish that a majority of unit employees supported the Union, the Board still should issue a bargaining order." To grant such an order, Member Liebman would overrule Goumet Foods.

(Members Liebman, Schaumber, and Meisburg participated.)

Charge filed by Warehouse Union Local 6; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Francisco, Jan. 8 and March 6-7, 2002. Adm. Law Judge James M. Kennedy issued his decision June 12, 2002.

***

Georgia Power Co. (10-CA-33361; 342 NLRB No. 18) Atlanta, GA June 30, 2004.

The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by making unilateral changes in unit employees' terms and conditions of employment by implementing the Workplace Ethics program without providing Electrical Workers IBEW Local 84 notice and adequate opportunity to bargain; and bypassing the Union and dealing directly with unit employees by communicating directly to unit employees regarding the formation of Workplace Ethics program by its memorandum dated June 1, 2001. Chairman Battista found it unnecessary to decide whether there was a direct dealing violation with respect to the Respondent's June 1 memo, noting that the Respondent had met with and notified the Union of its intention to implement the committee prior to sending the memo to the employees.

The Board agreed also with the judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(2) and (1) by creating its Workplace Ethics Program, and by recognizing, supporting, and assisting it, finding that the record supported the judge's "key" finding that Workplace Ethics is not a labor organization under Section 2(5) because it does not exist, even in part, for the purpose of "dealing with" the Respondent.

Chairman Battista and Member Schaumber reversed the judge's finding that the Respondent unlawfully bypassed the Union and dealt directly with unit employees by establishing a "Crew Leader Selection Committee" (CLSC) to review the selection process for crew leader positions. They noted that an employer may lawfully consult with its own employees in formulating proposals for bargaining and that the Respondent's establishment of the CLSC was a lawful effort by the Respondent to formulate proposals regarding the crew leader selection process. Member Walsh, in dissent, found that the Respondent's total exclusion of the Union from the CLSC process "undermines the collective-bargaining process and the principle of exclusive representation on which it depends."

The judge did not address the complaint allegation that the Respondent violated Section 8(a)(5) and (1) by establishing the CLSC unilaterally and without notice to the Union. No party filed exceptions on this issue.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Electrical Workers IBEW Local 84; complaint alleged violation of Section 8(a)(1), (2), and (5). Hearing at Atlanta on May 13, 2002. Adm. Law Judge Pargen Robertson issued his decision Sept. 12, 2002.

***

High Point Construction Group, LLC (6-CA-32853-1; 342 NLRB No. 36) Buckhannon, WV June 30, 2004.

The Board affirmed the administrative law judge's findings, to which no proper exceptions were filed that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating its employees about their support for Carpenters Mid-Atlantic Regional Council, telling its employees there was a good possibility of lack of upcoming work because of the Union, telling its employees that it would shut down and file for bankruptcy if the employees selected the Union as their representative, and engaging in surveillance and intimidating its employees where they are gathered at a Union meeting.

The Board disagreed with the judge that the Respondent violated Section 8(a)(1) by threatening to reduce its employees' wages if the Union prevailed in a representation election.

Contrary to the judge, the Board held that a bargaining order is not necessary and that the imposition of special remedies should "serve to cleanse the atmosphere" of the Respondent's unlawful conduct. Agreeing with the judge, the Board found that a broad cease-and-desist order enjoining the Respondent not only from committing again the specific violations found, but also from violating the Act "in any other manner" is warranted. It required that a responsible management official of the Respondent, at its Buckhannon, WV facility, read aloud to employees the notice to employees. A Board agent may instead read the notice to employees, at the Respondent's option and in the presence of a responsible management officer. Chairman Battista did not join his colleagues in ordering the expanded remedy, noting that the Respondent is not a recidivist and the violations are not egregious. He found that the Board's traditional cease and desist remedy, as posted for employees, would suffice to erase the effects of the Respondent's unfair labor practices.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Carpenters Mid-Atlantic Regional Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Clarksburg, Nov. 18 and Dec. 17-19, 2002. Adm. Law Judge Benjamin Schlesinger issued his decision April 28, 2003.

***

The Kroger Co. (9-CA-39712, 9-RC-17712; 342 NLRB No. 20) Groveport, OH June 30, 2004.

The Board adopted, absent exceptions, the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act and interfered with the representation election held on October 31, 2002 by coercively interrogating and threatening employees, and the judge's recommendations to sustain the challenge to the ballot of Theresa Streich and to overrule the challenges to the ballots of Estella Clary, Michelle Spencer, and Kimberly Harris.

Chairman Battista and Member Schaumber, with Member Walsh dissenting, agreed with the Respondent that the judge erred in sustaining the challenge to Erin Spetnagel's ballot because he found her to be an excluded office clerical employee. They found that Spetnagel is a plant clerical, part of the bargaining unit, and eligible to vote. Member Walsh agreed with the judge that the challenge to Spetnagel's ballot should be sustained because she is an office clerical, expressly excluded from the bargaining unit.

The election resulted in 14 for and 10 against the Union, with 5 challenged ballots. Case 9-RC-17712 was remanded to the Regional Director to open and count the ballots of Estella Clary, Michelle Spencer, Kimberly Harris, and Erin Spetnagel and to issue a revised tally of ballots. If the revised tally shows the Union has received a majority of the votes cast, the Regional Director shall issue a certification of representative. If the revised tally shows that the Union has not received a majority of the votes cast, the election shall be set aside and a new election shall be conducted.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Food and Commercial Workers Local 1059; complaint alleged violation of Section 8(a)(1). Hearing at Columbus, March 6-7, 2003. Adm. Law Judge Arthur J. Amchan issued his decision May 14, 2003.

***

McClain E-Z Pack, Inc. (15-CA-16812, 16913; 342 NLRB No. 27) Demopolis, AL June 30, 2004.

The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to give notice to and bargain with Paper, Allied-Industrial, Chemical and Energy Workers over its decision to lay off employees. There were no exceptions to the judge's finding that the November 2002 layoffs were not unlawful or to his finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally discontinuing its practice of yearly across-the-board wage increases. The Board found merit in the Charging Party's exception to the judge's failure to require that the Respondent make employees whole for any losses suffered as a result of the unilateral discontinuance of yearly wage increases, and modified the Order accordingly.

Member Meisburg would review further, in an appropriate case, "the circumstances in which an employer may be privileged to act unilaterally in regard to a decision to lay off employees, where such decision does not otherwise violate Section 8(a)(1) and (3)."

(Members Liebman, Walsh, and Meisburg participated.)

Charges filed by Paper, Allied-Industrial, Chemical and Energy Workers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Selma, July 8-9, 2003. Adm. Law Judge George Carson II issued his decision Aug. 26, 2003.

***

Community Health Services, Inc. d/b/a Mimbres Memorial Hospital and Nursing Home (28-CA-17777; 342 NLRB No. 28) Deming, NM June 30, 2004.

Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide Steelworkers District 12, Subdistrict 2, with the names, addresses, and seniority dates of unit employees. The Board noted that this information was presumptively relevant.

(Members Liebman, Schaumber, and Meisburg participated.)

Charge filed by Steelworkers District 12, Subdistrict 2; complaint alleged violation of Section 8(a)(1) and (5). Hearing held on July 9, 2002. Adm. Law Judge Thomas M. Patton issued his decision Sept. 24, 2002.

***

Community Health Services, Inc. d/b/a Mimbres Memorial Hospital and Nursing Home (28-CA-16762, et al.; 342 NLRB No. 33) Deming, NM June 30, 2004.

The Board agreed with the administrative law judge, for the reasons set forth in Caterair International, 322 NLRB 64 (1996), that an affirmative bargaining order is warranted as a remedy for the Respondent's unlawful refusal to bargain with Steelworkers District 12.

Members Liebman and Meisburg adhered to the view, as reaffirmed in Caterair, that an affirmative bargaining order is "the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of employees." Member Schaumber disagrees with that view and instead agrees with the D.C. Circuit that a case-by-case analysis is required to determine if the remedy is appropriate. See Eden Gardens Nursing Home, 339 NLRB No. 12, slip op. at 2-3 fns. 9 and 10 (2003). He found that a bargaining order is warranted on the facts of this case.

The Board noted the D.C. Circuit's requirement that it justify in each case the imposition of an affirmative bargaining order by a reasoned analysis that includes an explicit balancing of three considerations. See, e.g., Vincent Industrial Plastics v. NLRB, 209 F.3d 727 (D.C. Cir. 2000). Although respectively disagreeing with the court's requirement, the Board found that a balancing of the three factors warranted an affirmative bargaining order with its temporary decertification bar in this case. It reiterated that the judge found, with its approval, that the Respondent failed to establish that, when it withdrew recognition, it had a reasonable uncertainty as to the Union's majority status.

The Board also pointed out the Respondent's repeated unfair labor practices in violation of its duty to bargain, including: its unilateral change in the work schedule of Garry Kavanaugh, the Union's committeeman and spokesman in the bargaining unit, to include weekends, as well as Kavanaugh's later suspension; and an earlier Board decision finding the Respondent also committed violations of its duty to bargain with the Union in Mimbre Memorial Hospital, 337 NLRB 998 (2002), in which the Board withheld an affirmative bargaining order. The Board wrote: "A cease-and-desist order alone, would be inadequate to remedy the Respondent's refusal to bargain with the Union . . . because it would permit a decertification petition to be filed before the Respondent has afforded the employees a reasonable time to regroup and bargain through their representative in an effort to reach a collective-bargaining agreement."

(Members Liebman, Schaumber, and Meisburg participated.)

Charges filed by Steelworkers District 12, Subdistrict 2; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Deming on March 13, 2002. Adm. Law Judge Lana H. Parke issued her decision May 13, 2002.

***

Nations Rent, Inc. (25-CA-27257; 342 NLRB No. 19) Elkhart, IN June 29, 2004.

Chairman Battista and Member Schaumber found merit in the Respondent's exceptions and reversed the administrative law judge's findings that the Respondent discharged employee Jerry Bickel on May 19, 2001 in violation of Section 8(a)(3) and (1) of the Act because of his union activities and because he engaged in a lawful strike and instigated police interference with lawful picketing in violation of Section 8(a)(1). The Respondent argued that the record evidence does not establish that Bickel was discharged and that it involved local police in speaking to pickets to allay legitimate concerns that the pickets were violating the law.

Member Walsh, dissenting, found no merit in the Respondent's exceptions and agreed with both of the judge's unfair labor practice findings. He said the judge correctly determined that the Respondent unlawfully discharged Bickel in May 2001 by treating his declaration of an unfair labor practice strike as a resignation and interfered with lawful picketing by instigating the questioning of pickets by local police.

Bickel, a member of Operating Engineers Local 150, sought employment at the Respondent's Elkhart facility in late March 2000 with the objective of organizing the Elkhart employees. He secured a position with the Respondent and began actively promoting the Union in the spring of 2000. During the ensuing year, the Respondent took several measures to counteract Bickel's organizing effects. The Respondent does not except to the judge's findings that some of those measures constituted unfair labor practices, including maintaining in effect an unlawful no-solicitation/no-distribution rule in its employee handbook, prohibiting Bickel from engaging in solicitation of other employees during nonwork time, telling Bickel that he could not wear a union button while working, threatening to close the business if employees selected Operating Engineers Local 150 as their collective-bargaining representative, and discharging Bickel on September 26, 2000 because of his union activities.

In an earlier decision, 339 NLRB No. 101 (2003), the Board found that the Respondent failed to adhere to certain terms of a settlement agreement and that the judge had erred in reinstating the agreement and dismissing the complaint. The Board remanded the proceeding remanded to the judge to consider the merits of the presettlement unfair labor practice allegations and to issue a supplemental decision. Member Schaumber dissented in the earlier proceeding and would not have set aside the settlement agreement.

(Chairman Battista and Members Schaumber and Walsh participated.)

Adm. Law Judge Margaret M. Kern issued her supplemental decision Aug. 28, 2003.

***

HTH Corp. d/b/a Pacific Beach Hotel (37-RC-4022; 342 NLRB No. 30) Honolulu, HI June 30, 2004.

The Board, adopting the administrative law judge's recommendations, sustained the challenge to the ballot of Emyl Schlenker and overruled the challenges to the ballots of Patricia Bell and Brenda Dolente. In adopting the judge's recommendation to sustain the challenge to the ballot of Lisa Hayashi, the Board relied on the judge's finding that Hayashi was a casual employee and did not pass on the additional finding that Hayashi's familial relationship warrants her exclusion from the unit.

Members Liebman and Walsh adopted the judge's recommendation to sustain Petitioner's (Teamsters Local 142) Objections 1 and 8, alleging that the Employer engaged in objectionable conduct by coercively interrogating employees and maintaining an overly broad no-solicitation policy. They found it unnecessary to pass on the judge's recommendation that Objections 2 and 9 also be sustained in light of their finding that Objections 1 and 8 warrant setting aside the election, and found it unnecessary to pass at this time on the challenge to the ballot of Patricia Fee because it may not be determinative.

Chairman Battista would adopt the judge's recommendation to sustain the challenge to the ballot of Jane Fee for the reasons set forth in the judge's decision, including his finding that Fee is a supervisor within the meaning of Section 2(11) of the Act. He would reverse the judge's recommendations to sustain Objections 1, 2, 8, and 9 and direct the Regional Director to issue a revised tally of ballots and the appropriate certification.

Members Liebman and Walsh remanded the proceeding to the Regional Director to open and count 19 ballots and to issue a revised tally of ballots. If the revised tally of ballots shows that a majority of the valid ballots have been cast for the Petitioner, and that the challenged ballot of Jane Fee would not be determinative, the Regional Director shall issue the appropriate certification. In the event that the challenged ballot of Fee is determinative, any certification shall be held in abeyance pending the resolution of the challenge to her ballot. If the revised tally of ballots following disposition of the challenge to Fee's ballot shows that a majority of the valid ballots have not been cast for the Petitioner, the majority directed that the election held on July 31, 2002, be set aside and that a second election be conducted.

The tally of ballots showed 209 for and 204 against the Petitioner, with 36 challenged ballots. The parties stipulated at the hearing that 13 challenged ballots should not be counted, and the Petitioner withdrew challenges to 3 ballots and Objections 3 and 5. In the absence of exceptions, the Board adopted, pro forma, the judge's recommendation to sustain the challenge to l ballot and to overrule the challenges to 14 other ballots, Objections 4, 6, 7, 10, 11, 12, 13, 14, and portions of Objections 1 and 2.

(Chairman Battista and Members Liebman and Walsh participated.)

***

Pathmark Stores, Inc. (29-CA-24285; 342 NLRB No. 31) Carteret, NJ June 30, 2004.

The Board found, in agreement with the administrative law judge, that the Respondent did not violate Section 8(a)(3) and (1) of the Act by prohibiting its meat, seafood, and deli department employees from wearing certain union insignia while working in customer service areas of the Respondent's grocery stores, and suspending five employees who refused to remove the insignia prior to commencing work in these areas.

This case rose in October 1999 over the Respondent's sale of case-ready or "prepackaged" meat. The Respondent's decision to sell large quantities of prepackaged meat reduced the unit employees' working hours and the hiring of new unit employees. Food and Commercial Workers Local 342-50 filed grievances and initiated a "Freshness Campaign." It distributed to the Respondent's customers handbills that encouraged consumers to ask unit employees which meats they had cut fresh. The Union also distributed, and the unit employees wore, buttons throughout 2000 and 2001 that read, "Member of UFCW Local 342-50, Ask me Which Products Were Cut Fresh Today!"

The parties' dispute continued into the spring of 2001. In May 2001, the Union held a rally at which it distributed to employees T-shirts and hats bearing the message "Local 342-50 says: "Don't' Cheat About the Meat!" In the days following the rally, five unit employees arrived at work wearing "Don't Cheat About the Meat!" slogan-bearing T-shirts and hats. The Respondent threatened all five employees with suspension if they did not remove the T-shirts and hats before starting work. All five refused.

The Board held that, in this retail setting, given the "Don't Cheat About the Meat!" slogan and its reasonably likely effect on customers, the Respondent established that its legitimate interest in protecting its customer relationship outweighed any legitimate interest of employees in wearing those particular T-shirts and hats during their working time. Moreover, the Board agreed with the judge that the "Don't Cheat About the Meat!" slogan was ambiguous and that it was reasonable for the Respondent to expect that the slogan likely could lead the Respondent's customers to believe that, aside from the issue of prepackaging, the Respondent was cheating them in some way with respect to the meat offered for sale.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Food and Commercial Workers Local 342-50; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn on May 14, 2002. Adm. Law Judge Howard Edelman issued his decision Aug. 21, 2002.

***

Quality Building Contractors, Inc. (29-CA-25646; 342 NLRB No. 38) New York, NY June 30, 2004.

Granting the General Counsel's motion for summary judgment, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish Bricklayers New York Local l, upon request in April 2003, the contract between the Respondent and the owner of the Park City Estates Project in Rego Park, NY, any requests for payments made under the contract, and timesheets for all employees on the project.

The Respondent is a general contractor engaged in the construction industry in and around New York City. In September 2002, the Respondent was awarded a contract to perform work at the Essex House in Manhattan. The contract required the Respondent to employ union labor. The Respondent executed a collective-bargaining agreement with the Union that was effective, by its terms, from July 1, 2000 through June 30, 2004. In late 2002 or early 2003, the Respondent began working at Park City Estates, where it was performing pointing, cleaning, and caulking work (PCC work).

The General Counsel contended that the requested information is relevant to the Union's claim that the Respondent breached its obligation under the parties' 2000-2004 collective-bargaining agreement to hire union members for the Park City job, which is encompassed by that agreement's geographical jurisdiction. The Board rejected the Respondent's arguments that it had no duty to provide the information because its collective-bargaining agreement with the Union covers only the Essex House project and that the information is not necessary and relevant to the Union's duties.

The Board found that the Respondent's obligation to provide the information is definitely resolved by its finding on the threshold issue-i.e., that the collective-bargaining agreement entered into between the Respondent and the Union by its terms, was ambiguously multisite in scope, that there are no factual issues warranting a hearing in this matter, and that the Respondent's affirmative defenses are inadequate to defeat the motion for summary judgment. The Respondent had argued, in its affirmative defenses, that Section 10(b) bars the complaint, that the Union waived its right to obtain relevant information, and that the Union is not entitled to the requested information because the underlying grievance is in aid of an unlawful subject of bargaining.

(Chairman Battista and Members Liebman and Walsh participated)

Charge filed by Bricklayers New York Local 1; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment Oct. 27, 2003.

LawMemo publishes Employment Law Memo.

07/02/2004
by Ross Runkel at LawMemo

NLRB Law Memo 07/02/2004

by LawMemo.Com - First in Employment Law

NLRB - Staff summarized 9 decisions.

Brown and Drake Bay City LLC d/b/a Hereford & Hops Restaurant and Brew Pub (7-CA-46016; 342 NLRB No. 13) Bay City, MI June 25, 2004.

The Board granted the General Counsel's motion for summary judgment and held that the Respondent violated Section 8(a)(1) of the Act by discharging employees Linda M. Lukowski and Lakeshia Washington and by promulgating and maintaining overbroad no-solicitation and confidentiality rules, and rules prohibiting the discussion of employees' tips. The Respondent failed to comply with the terms of a settlement agreement by failing to remit the agreed-upon backpay amounts due Lukowski and Washington. Pursuant to the noncompliance provisions of the settlement agreement, the Board found all of the allegations of the complaint are true and granted the General Counsel's motion for summary judgment.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Linda M. Lukowski; complaint alleged violation of Section 8(a)(1). General Counsel filed motion for summary judgment April 12, 2004.

***

Cogburn Healthcare Center, Inc. (15-CA-13874, et al., 15-RC-7988; 342 NLRB No. 11) Mobile, AL June 21, 2004.

Members Liebman and Walsh denied the Respondent's motion to reopen the record and for reconsideration of the Board's decision and order reported at 335 NLRB 1397 (2001), finding, in agreement with the administrative law judge, that a Gissel (NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)) bargaining order was necessary to remedy the effects of the Respondent's extensive unfair labor practices. Member Schaumber, dissenting, would rescind the Gissel bargaining order based on the substantial passage of time between the 1996 election held in the representation case and the Board's 2001 decision and direct a new election.

The Respondent argued that changes in management and composition of the bargaining unit, as well as the passage of time, make the Board's Gissel order unnecessary and unenforceable. The majority decided that the Respondent's motion does not comply with Section 102.48(d)(1) of the Board's Rules and Regulations, finding, among others, that the motion is deficient and was untimely made. They also concluded that the passage of time does not render a bargaining order inappropriate, that the additional evidence the Respondent seeks to introduce does not require a different result, and that the Board provided an extensive analysis of the inadequacy of traditional remedies in the underlying decision.

(Members Liebman, Schaumber, and Walsh participated.)

***

Electrical Workers IBEW Local 48 (Oregon-Columbia Chapter of NECA) (36-CB-1798-1, et al.; 342 NLRB No. 10) Portland, OR June 23, 2004.

Chairman Battista and Member Schaumber held, contrary to the administrative law judge, that the Respondent violated Section 8(b)(1)(A) of the Act by departing from its hiring hall rules in dispatching dozens of employees out of order,
some of which were handed out in connection with the Respondent's salting program. The majority held that the Respondent's deliberate preferential dispatching treatment was not necessary to the effective performance of its representative function and that mistaken departures from its hiring hall rules "indicate reckless disregard for established procedures and employees' interests, and thus constitute gross negligence."

Member Walsh, dissenting in part, found that certain Respondent's practices were justifiable departures from the hiring hall rules in furtherance of its organizational efforts. "Since organizing is a vital part of the union's representative function, and since salting is a vital part of union organizing, the Union's rather modest uses of dispatching in furtherance of its organizational efforts here were necessary to the effective performance of its representative function," he explained.

The Respondent operates an exclusive hiring hall for journeyman and apprentice electricians under its contract with the Oregon-Columbia Chapter of NECA. The contractual rules include various requirements for registering in one of four groups, or "books." The four books comprise the out-of-work list, or OWL, from which job referrals are made.

Chairman Battista and Member Schaumber found that the Respondent violated the Act in various ways, including: (i) giving preferential dispatching treatment to salts-i.e., union members who take jobs with nonunion employers to engage in union organizing-and "peppers"-i.e., newly organized employees of nonunion employers who remain with those employers to engage in union organizing; (ii) returning, off the books, to their newly organized former employer, employees who had been "stripped"-i.e., persuaded to leave that employer and join the Union-during a union organizing campaign; sending discharged employees back to the dispatching employer off the books; (iii) permitting registrants to retain positions on the out-of-work list (OWL) despite having missed a compulsory biannual re-sign; (iv) dispatching registrants requested by name under circumstances where the collective-bargaining agreement does not permit a name-request dispatch; and (v) otherwise deliberately departing from the rules of its hiring hall where such a departure is neither pursuant to a valid union-security clause or necessary to the effective performance of its representative function.

Member Walsh would not find a violation for the Respondent's practices, among others, where: 1) salts were permitted to remain on the OWL during their salting employments with nonunion contractors, 2) salts and peppers were credited for their time with nonsignatory contractors for purposes of satisfying the "signatory 1 out of 4" rule-i.e., the requirement, for registering on book 1, of having worked 1 year out of the previous 4 with signatory employers; and 3) salts and peppers sometimes received dispatches without having registered on the OWL list. Member Walsh would also find no violation for returning "stripped" employees to their former employer, or for redispatching discharged employees in lieu of pursuing a grievance.

No exceptions were filed to the judge's findings concerning other 8(b)(1)(A) violations, some of which the judge found and some of which she dismissed. The Board adopted, in the absence of exceptions, the judge's findings in secs. II,B,4, 5, 6, II,C, D, and E of her decision.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by various individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Portland on various dates in 1998 and 1999. Adm. Law Judge Mary Miller Cracraft issued her decision April 21, 2000.

***

Ethan Enterprises, Inc. (19-CA-28877; 342 NLRB No. 15) Mill Creek, WA June 24, 2004.

The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to execute, on request, the 2003-2004 master agreement it reached with Painters District Council #5; and refusing to provide the Union with requested information relevant and necessary to its responsibilities as exclusive representative of Respondent's employees, including names, addresses, phone numbers, job classification, hours of work, wage rates, and benefits information.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Painters District Council #5; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Seattle on December 4, 2003. Adm. Law Judge Jay R. Pollack issued his decision Jan. 16, 2004.

***

International Masonry Institute (5-CA-29760; 342 NLRB No. 8) Baltimore, MD June 21, 2004.

The Board adopted the administrative law judge's finding and dismissed the complaint allegation that the Respondent violated Section 8(a)(1) and (3) of the Act by threatening and eventually discharging employee Anthony Ficarri because he had engaged in union and concerted activities that are protected by Section 7 of the Act.

The Board noted that Ficarri's complaint about the Brice House job stemmed from his apparent general belief that the use of nonunion labor in renovating the Respondent's premises was inconsistent with the Respondent's philosophy and mission as a labor-management trust fund.

The Board held that the Respondent was not bound by a collective-bargaining agreement with a union-security clause, and Ficarri's complaint could not be reasonably understood as an effort to get the Respondent to recognize or enter into a collective-bargaining agreement with a union, or to implement or modify any term and condition of employment on the Brice House job. It found it unnecessary to address the judge's alternative findings.

(Chairman Battista and Members Schaumber and Meisburg participated.)

Charges filed by Anthony Ficarri, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Baltimore, Oct. 25-26, 2001. Adm. Law Judge David L. Evans issued his decision March 22, 2002.

***

Kelly Brothers Sheet Metal, Inc. (12-CA-22495, et al.; 342 NLRB No. 9) Tallahassee, FL June 21, 2004.

Agreeing with the administrative law judge, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees George Twiss and Robert Fernandez because of their activities for Sheet Metal Workers Local 435. Members Schaumber and Walsh affirmed the judge's finding that the Respondent also violated Section 8(a)(1) when its Project Manager Bobby Kelly threatened employees with the loss of job opportunities if they selected the Union as their bargaining representative, finding that the Respondent furnished no objective basis for claiming that unionization would adversely affect its operations. Chairman Battista, dissenting on this issue, found that Kelly's stated doubt about the continuing viability of the company "because there [weren't] that many union jobs around" was a lawful expression of his opinion about the possible effect of unionization.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Sheet Metal Workers Local 435; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tallahassee, June 11-12, 2003. Adm. Law Judge Pargen Robertson issued his decision Sept. 3, 2003.

***

Paragon Pattern & Mfg. Co., Inc. (7-CA-46022; 342 NLRB No. 17) Grand Rapids, MI June 25, 2004.

The Board affirmed the administrative law judge's conclusion that the Respondent did not violate Section 8(a)(3) of the Act by laying off four employees. The judge found that the General Counsel established that the four alleged discriminatees engaged in the protected activity of speaking against the concessions that management considered necessary for the Company's survival, and that the Respondent showed that it would have laid off the four employees for lawful, economic reasons even in the absence of their protected activity.

The Board adopted, in the absence of exceptions, the judge's finding that the Respondent violated Section 8(a)(1) by threatening employees with reprisals or loss of employment because they opposed contract concessions sought by the Respondent in collective bargaining with Machinists Local PM 2848.

(Members Schaumber, Walsh, and Meisburg participated.)

Charge filed by William Russell, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Grand Rapids, Nov. 4-5, 2003. Adm. Law Judge Keltner W. Locke issued his decision Dec. 9, 2003.

***

Reynolds Electric, Inc. (7-CA-44926; 342 NLRB No. 16) Warren, MI June 25, 2004.

The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by laying off and later refusing to recall George Hebb V because of his protected concerted activities in asking management about the prevailing wage rate. Chairman Battista and Member Schaumber, with Member Liebman dissenting, reversed the judge's finding that the Respondent violated Section 8(a)(1) by laying off and later refusing to recall Gabriel Rice.

The judge found that Rice had engaged in concerted activity when he individually raised the state-required prevailing wage with management and that the Respondent knew that he had done so. Assuming without deciding that the judge correctly found that Rice had engaged in concerted activity, Chairman Battista and Member Schaumber concluded that it has not been established that the Respondent knew of this concerted activity. Member Liebman found that the record supported a different factual conclusion, adding: "But even if it did not, this case illustrates why the knowledge requirement makes no sense, given the Act's goal of shielding employees who, like Rice, engage in concerted activity for their mutual aid or protection."

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Gabriel T. Rice, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Detroit on Oct. 8, 2002. Adm. Law Judge Ira Sandron issued his decision Jan. 24, 2003.

***

Sara Lee Bakery Group d/b/a International Baking Co. and Earthgrains (21-CA-35073, et al., 21-RC-20465; 342 NLRB No. 12) Vernon, CA June 25, 2004.

The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Macario Robledo because of his activities for Bakery Workers Local 37 and violated Section 8(a)(1) and engaged in objectionable conduct by announcing a new paid holiday and gainsharing bonus program during the critical period. The Board noted the lack of evidence that the new paid holiday was even considered prior to the union organizing campaign or that the gainsharing bonus was a firmly developed program. It set aside the election held in Case 21-RC-20465 on July 9 and 10, 2002 (the Union lost 237-62) and remanded the case to the Regional Director to conduct a new election.

Chairman Battista disagreed with his colleagues' finding that the evidence failed to show that the gainsharing bonus was decided upon prior to the critical period and would dismiss the related complaint allegation and objection. He noted that "the gainsharing bonus was among the enhanced benefits that the Respondent listed in a corporate e-mail sent in March, demonstrating that the gainsharing bonus program was part of the postmerger benefits review, like the other enhanced or new benefits."

The judge dismissed, with Board approval, allegations that the Respondent's announcement of new or enhanced medical, life insurance, and retirement benefits and new company provided lockers and uniforms violated Section 8(a)(1).

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Bakery Workers Local 37; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, Aug. 25-28, 2003. Adm. Law Judge Gregory Z. Meyerson issued his decision Dec. 2, 2003.

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