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10/29/2004
by Ross Runkel at LawMemo
NLRB Law Memo 10/29/2004
by LawMemo.Com - First in Employment Law
New Feature - NLRB General Counsel - Advice Memoranda.
LawMemo.Com is adding a new feature to NLRB Law Memo. At irregular intervals the NLRB General Counsel releases selected Memoranda issued by the Division of Advice. LawMemo.Com will summarize these Advice Memoranda in NLRB Law Memo and will publish the full text on the LawMemo.Com web site: http://www.lawmemo.com/nlrb/advice/
Hibbett's Sporting Goods, Inc. (17-CA-22775) September 29, 2004.
The employer did not violate the Act by terminating two employees for discovering a video surveillance camera the employer had installed in the ceiling of their non-union workplace. While the employees' conduct was clearly concerted, it was not protected because they did not intend to take nor seek any action regarding their working conditions. The two employees did not complain to or engage in any conversation with the Employer regarding the camera's placement, and did not intend to take any action protesting its installation.
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M & G Polymers USA, LLC (9-CA-41007) September 28, 2004.
The Employer did not violate Section 8(a)(1) and (5) when, following a bona fide bargaining impasse, it implemented its proposed system of merit-based employee assessments to identify employees for permanent layoff. The Employer has not attempted to exercise unfettered discretion in either designing or implementing its employee assessment procedures and criteria, but has developed objective criteria through the collective-bargaining process and is implementing them with meaningful opportunity for Union participation. This case was distinguished from McClatchy Newspapers, 321 NLRB 1386 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997), cert. denied 524 U.S. 937 (1998) (McClatchy II).
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Rite Aid Corp. (22-CA-26202) September 20, 2004.
The employer did not violate the Act by initiation of a criminal action against a Union agent for allegedly assaulting its store manager. The Union agent came to the store to re-post copies of an unfair labor practice charge on the Union bulletin board, and there was an argument between the Union agent and the store manager. The manager later filed a criminal complaint alleging that the agent hit him on the arm, but the court dismissed the case for lack of evidence. Because there is no evidence that the complaint was filed only in order to impose the costs of litigation on the Union agent, it cannot be alleged as violative of Section 8(a)(1).
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Teamsters Local 36 (Hanson Aggregates Pacific Southwest, Inc.) (21-CB-13683) September 20, 2004.
The Union did not violate Section 8(b)(1)(A) by maintaining a contractual provision that stewards in a unit of ready-mix concrete truck drivers be dispatched first each day. There was a lawful justification for the clause to allow for a steward to be present each work day for collective-bargaining and representational purposes. See Dairylea Cooperative, Inc., 219 NLRB 656, 658 (1975), enfd. sub nom. NLRB v. Teamsters Local 338, 531 F.2d 1162 (2d Cir. 1976). When there is plenty of work, the provision might not encourage employees to become stewards. Here the disparate treatment of stewards was justified by the legitimate goal of having a qualified steward available.
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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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