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08/27/2004
by Ross Runkel at LawMemo
NLRB Law Memo 08/27/2004
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 2 decisions.
Mammoth Mountain Ski Area (32-CA-20513-1, 20514-1; 342 NLRB No. 80) Mammoth Lakes, CA Aug. 20, 2004.
The Board adopted the administrative law judge's findings and held that the Respondent violated Section 8(a)(1) of the Act by prohibiting employees from placing union stickers on lockers under pain of discipline, telling employees that union representation would result in less work for less senior employees under contract, and downgrading periodic employee evaluation scores for two employees because of their union organizing activities.
(Chairman Battista and Members Liebman and Meisburg participated.)
Charges filed by Operating Engineers Local 12; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Mammoth Lakes, Dec. 9-10, 2003. Adm. Law Judge James M. Kennedy issued his decision April 21, 2004.
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Yellow Enterprise Systems, Inc., d/b/a Yellow Ambulance Service (25-CA-26494, et al.; 342 NLRB No. 77) Owensboro, KY Aug. 17, 2004.
The Board affirmed, absent exceptions, the administrative law judge's findings that the Respondent committed numerous violations of Section 8(a)(1), (3), and (5) of the Act during and after the Union's (Professional EMTs & Paramedics) organizing campaign among its employees, which resulted in the Union's certification as exclusive bargaining representative on April 16, 1999.
Chairman Battista and Member Liebman rejected the Respondent's exceptions and held that the Respondent violated Section 8(a)(3) and (1) by issuing Renee McKinney two written warnings and discharging her one day prior to the representation election; discharging Roger Brumley because of his union activity; and constructively discharging Brian Kendall on about April 5, 1999 by unlawfully switching one of his 8-hour day shifts to an 8-hour overnight shift, and by refusing to rehire him in May.
Member Schaumber, dissenting in part, would find that the Respondent did not violate Section 8(a)(3) and (1) by constructively discharging Kendall. He noted that the Board stated in Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976), that two elements must be proven to establish a constructive discharge: "First, the burdens imposed upon the employee must cause, and be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee's union activities." In his view, the General Counsel failed to satisfy the first criterion.
Chairman Battista and Member Schaumber reversed the judge's finding that the Respondent constructively discharged Vicky Belcher by varying her work schedule after May 15, 1999 when she returned from maternity leave. They determined that the General Counsel failed to establish that Belcher resigned her employment. Member Liebman found it unnecessary to pass on the alleged constructive discharge because she would find that the Respondent violated the Act by altering Belcher's regular schedule in approximately May 1999 from her usual 1-day-on/2-days-off work pattern, and that this violation warrants make-whole relief.
The Board decided that the Union's request that the Respondent be required to read aloud the notice to employees was unnecessary to remedy the violations.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Professional EMTs and Paramedics; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Owensboro, Oct. 4-8, 12-14 and Nov. 1-3, 1999. Adm. Law Judge Arthur J. Amchan issued his decision Feb. 25, 2000.
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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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