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08/20/2004
by Ross Runkel at LawMemo
NLRB Law Memo 08/20/2004
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 1 decision.
Toma Metals, Inc. (6-CA-32055, et al.; 342 NLRB No. 78) Johnstown, PA Aug. 13, 2004.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by selecting employee David Antal Jr. for layoff because of his union and protected concerted activities and Section 8(a)(5) and (1) by laying off employees without providing Steelworkers District 10 with adequate notice and opportunity to bargain about the layoffs.
Members Liebman and Schaumber adopted the judge's finding that the Respondent violated Section 8(a)(5) and (1) by recalling laid-off employees without providing the Union with adequate notice and opportunity to bargain about the recalls. Chairman Battista, in his partial dissent, disagreed with his colleagues and the judge that the Respondent's recall of its laid-off employees was unlawful. He argued that while the Union subsequently became aware that there would be recalls, the Union never requested bargaining about the manner in which the recalls would be undertaken. In his view, the Union waived its right to bargain over the recalls.
Chairman Battista and Member Schaumber reversed the judge's finding that the Respondent violated Section 8(a)(1) by interrogating Antal about his union and protected concerted activities and the union activities and sympathies of his fellow employees. They contended that plant materials manager Richard Hajko Jr.'s questioning of Antal was prompted by employees who asked Hajko whether rumors of union organizing were true. Hajko did not know the answer and sought to find out. Chairman Battista and Member Schaumber held that the question was not a coercive interrogation-Hajko was simply trying to track down a rumor that a union campaign had begun.
Contrary to her colleagues, Member Liebman would find that Hajko unlawfully interrogated Antal when Hajko specifically sought out Antal to confirm the truth of a rumor that the Union was engaging in organizing activity in the Respondent's plant. While Hajko's interrogation of Antal was prompted by questions from other employees, Member Liebman asserted that it could still be coercive. She wrote: "A reasonable employee, suspecting his employer's antiunion animus, would be more likely to regard an interrogation as coercive if he was also aware of the employer's suspicion that organizing activity was underway."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Steelworkers District 10; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Johnstown on Dec. 17, 2001. Adm. Law Judge Paul Buxbaum issued his decision May 10, 2002.
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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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