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12/24/2004
by Ross Runkel at LawMemo
NLRB Law Memo 12/24/2004
by LawMemo.Com - First in Employment Law
NLRB - Board membership drops from 5 to 3.
The terms of two Members of the NLRB have expired, leaving the Board with only three Members. The term of Dennis P. Walsh (Dem) expired on December 16, 2004. The recess appointment of Ronald E. Meisburg (Rep) ran out on December 8, 2004 at the end of the recent Congressional session. This leaves the Board with two Republicans (Chairman Robert J. Battista and Member Peter C. Schaumber) and one Democrat (Member Wilma Liebman). Article - NLRB Reversals During the Bush Administration
NLRB General Counsel - Advice Memoranda - 3 cases
Classical Stairways, Inc. (32-CA-21531-1) November 18, 2004
This Section 8(a)(5) withdrawal of recognition case in the construction industry was submitted for advice as to whether the Employer and Union established a Section 9(a) relationship based upon language in the parties' Memorandum Agreement, which states that the Employer had "satisfied itself that the Union represents a majority of its employees." The General Counsel concluded that the Memorandum Agreement did not establish a Section 9(a) relationship because the language in the Memorandum Agreement did not satisfy the three-part test set forth in Central Illinois Construction. Therefore, the Employer was free to terminate the Section 8(f) relationship.
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Transwestern Publishing (16-CA-23050) November 16, 2004
The employer sued a former employee alleging that the former employee had engaged in certain post-employment misconduct that constituted tortious interference with business relations, misappropriation of confidential information, theft, and conversion. The General Counsel advised that the charge should be dismissed on two unrelated grounds: (1) because the Charging Party failed to cooperate with the Region's investigation and (2) because the Employer's lawsuit was not directed at protected activity.
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Triangle Construction and Maintenance, Inc. (24-CA-9921) November 15, 2004
The Employer, after entering into a collective bargaining agreement, unilaterally implemented an individual arbitration procedure whereby current bargaining unit employees receive a cash incentive to waive their right to bring statutory employment-related discrimination and personal injury claims in a judicial forum. The General Counsel concluded that because the scope of the "Dispute Resolution Agreement" signed by the employees is narrow enough, and the scope of the grievance/arbitration provision in the collective bargaining agreement broad enough, that the possibility of the DRA intertwining with the mandatory subjects of dispute resolution or elimination of discrimination is eliminated or minimal. Thus, the DRA is not a mandatory subject of bargaining and the Employer was free to unilaterally implement it even for current unit employees.
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12/17/2004
by Ross Runkel at LawMemo
NLRB Law Memo 12/17/2004
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 10 decisions.
Aldworth Co., Inc., and Dunkin' Donuts Mid-Atlantic Distribution Center, Inc., Joint Employers (4-CA-27274, et al., 4-RC-19492; 343 NLRB No. 97) Swedesboro, NJ Dec. 8, 2004.
The administrative law judge, in his supplemental decision, affirmed his previous ruling that Carl Nelson, James Everidge, Stanley Wallace, and Martin Cramer were not unlawfully terminated. The Board adopted the judge's finding and dismissed the complaint allegations that the Respondent violated Section 8(a)(5), (3), and (1) of the Act relating to the discharges of Nelson, Everidge, Wallace, and Cramer.
In adopting the dismissal of allegations that the discharges violated the Act, the Board focused on the manner in which the issue was litigated. The judge determined that the General Counsel failed to produce evidence showing enforcement disparities sufficient to establish that the four employees would not have been discharged under the old production standard. The Board found that the record made clear that the judge and all the parties construed the Board's remand as requiring this approach. It found no merit in the General Counsel's exceptions challenging the judge's credibility findings and assertion that she had presented sufficient evidence to meet the judge's standard. Chairman Battista noted that there were no exceptions to the judge's application of Great Western Produce, 299 NLRB 1004 (1990).
In its earlier decision, 338 NLRB 137 (2002), the Board concluded that the Respondent unlawfully implemented new performance standards, called the selection accuracy policy (SAP) for its warehouse employees. It remanded the case to the judge to take evidence on whether the old SAP had been enforced less rigorously than the revised SAP.
(Chairman Battista and Members Liebman and Meisburg participated.)
Charges filed by Food & Commercial Workers Local 1360; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Philadelphia on Dec. 11, 2002. Adm. Law Judge William G. Kocol issued his decision Feb. 26, 2003.
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American Gardens Management Co. and Bailey Gardens Realty Corp. (2-CA-33475, 33605; 343 NLRB No. 104) Visalia, CA Dec. 8, 2004.
Pursuant to the Board's remand in the earlier proceeding, 338 NLRB 644 (2003), the administrative law judge issued a supplemental decision in which he reaffirmed his original recommendation that the complaint be dismissed. Members Schaumber and Meisburg agreed with the judge's dismissal of the complaint alleging that the Respondents violated Section 8(a)(1), (3), and (4) of the Act by discharging employees Matthew Roberts and Alfred Rosales because of their union activities and because they testified at a representation hearing and violated Section 8(a)(1) and (3) by discharging Fidencio Frias because he assisted Service Employees Local 32E and engaged in concerted activities. Member Liebman dissented.
The majority assumed, without deciding, that the General Counsel established a prima facie case; however, they found that the Respondents met their Wright Line affirmative defense of proving that the employees would have been discharged for lack of work, even absent their protected conduct.
In dissent, Member Liebman wrote that she was not persuaded that lack of work explained why Roberts and Rosales were terminated. She believes that the timing evidence in this case convincingly establishes that protected activity was a motivating factor in the discharges as Roberts and Rosales were discharged just 1 week after the Regional Director issued a decision including them in the voting unit¾over the Respondents' objections¾and just 2 weeks before the Dec. 22, 2000 directed election. Member Liebman further stated: "Given the powerful evidence that the discharges were driven by the union election, the Respondents had a very heavy burden here to show that they would have let both Roberts and Rosales go precisely when they did, because there suddenly was no work for them. Unlike my colleagues, I am not nearly persuaded that this was the case."
(Members Liebman, Schaumber, and Meisburg participated.)
Charges filed by Service Employees Local 32E; complaint alleged violation of Section 8(a)(1), (3), and (4). Adm. Law Judge Raymond P. Green issued his supplemental decision Jan. 31, 2003.
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CBS Broadcasting, Inc. (2-CA-35421; 343 NLRB No. 96) New York, NY Dec. 8, 2004.
Members Walsh and Meisburg agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(5), (2), and (1) of the Act by bargaining solely with Writers Guild of America, West, Inc. (WGW) and executing an agreement and by failing to bargain with WGW and Writers Guild of America, East, Inc. (WGAE) as the joint collective-bargaining representative of unit employees. Member Meisburg dissented.
Since 1958, WGAE and WGW have been the joint exclusive collective-bargaining representative of a single nationwide unit of CBS newswriters, editors, and other employees located in New York, Chicago, Washington, DC, and Los Angeles. A National Staff Agreement (National Agreement), supplemented by 11 agreements covering different localities and/or particular jobs (jointly, the collective-bargaining agreement), covers the unit. The most recent collective-bargaining agreement is effective from April 2, 2002 through April 1, 2005.
During negotiations for the current collective-bargaining agreement, the Respondent proposed adding to the National Agreement a sideletter (proposal 7) covering future consolidations of operations by the Respondent. The joint bargaining committee rejected proposal 7. The parties reached agreement on a revised proposal, which was incorporated into the collective-bargaining agreement as sideletter 15 to the Los Angeles supplement to the National Agreement. Several months later, a WGW representative and the Respondent entered into an agreement (the Duopoly Agreement) that revised sideletter 15. In pertinent part, the Duopoly Agreement created a new position-supervisory writer/producer-that was in the unit, but which was excluded from the arbitration process in case of discharge.
The majority held that the Respondent was not privileged to negotiate the substantive change to the collective-bargaining agreement solely with WGW despite the Respondent's alleged "long history" of separate dealing with WGAE and WGW on nonsubstantive matters within their respective jurisdictions. They also agreed with the judge that WGAE did not waive its right to bargain by not requesting that the Respondent cease bargaining with WGW, noting that WGAE repeatedly voiced to WGW its objections to the Respondent's negotiating with only one of the unions and that the Respondent continued bargaining solely with WGW on a substantive change.
Member Schaumber would dismiss the complaint in its entirety, finding that the joint representative is stopped from objecting to the Respondent's negotiation and execution of the Duopoly Agreement without WGAE's participation. He noted that the record showed that the parties had a past practice whereby the Respondent dealt independently with each of the Unions on issues within their respective geographic jurisdictions; and that the issues addressed by the Duopoly Agreement are local to Los Angeles and affect only those employees within WGW's jurisdiction. Member Schaumber wrote that the Respondent reasonably believed that it could negotiate the Duopoly Agreement with WGW and should not now suffer prejudice from the lack of diligence by WGAE in assertion of its rights.
(Members Schaumber, Walsh, and Meisburg participated.)
Charge filed by Writers Guild of America, East, Inc.; complaint alleged violation of Section 8(a)(1), (2), and (5). Hearing at New York City, Feb. 26-27, and March 17-18 and 22-23, 2004. Adm. Law Judge D. Barry Morris issued his decision June 29, 2004.
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Facchina Construction Co., Inc. (5-CA-29940; 343 NLRB No. 98) La Plata, MD Dec. 8, 2004.
The administrative law judge found that the Respondent violated Section 8(a)(1) of the Act by interrogating job applicants Elton Floyd and Salvatore Astarita about their union membership. Chairman Battista and Member Liebman affirmed the judge's finding with regard to Floyd but reversed the judge's finding with regard to Astarita. They found that Job Superintendent Gerard Ours did not violate the Act by questioning Astarita, who openly advertised his support for the Carpenters.
The majority agreed with the judge's finding that Respondent's foreman, Mike Spargo violated Section 8(a)(1) by: (1) prohibiting employees from distributing union literature off of the Respondent's premises on nonworking time, and (2) by telling employee William Salbeck that Spargo had to get rid of all union carpenters because he was bringing in workers from other jobs to take their places. They also agreed with the judge's finding that the Respondent violated Section 8(a)(3) and (1) by discharging employees William Salbeck, Lester Smith, Lynwood Keene, and Alfred Keene for engaging in union activity. The majority found no merit in the Respondent's argument that the General Counsel failed to meet his Wright Line burden of establishing that the discharges were motivated by antiunion animus.
Dissenting in part, Member Meisburg would reverse the judge and dismiss the complaint allegation of a violation of Section 8(a)(3) and (1). In his view, the General Counsel has failed to meet his burden of proving that the Respondent discharged the four alleged discriminatees because of their union affiliation and activities.
(Chairman Battista and Members Liebman and Meisburg participated.)
Charge filed by Carpenters Regional Council Baltimore and Vicinity; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Baltimore, June 10, 12, 13, 14, and 27 and July 30 and 31, 2002. Adm. Law Judge Earl E. Shamwell Jr. issued his decision June 13, 2003.
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Fairfield Tower Condominium Assn. and Fairfield Presidential Management Corp., Joint Employers (29-CA-24243; 343 NLRB No. 101) Brooklyn, NY Dec. 8, 2004.
Affirming the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) and (3) of the Act by failing to reinstate striking employees upon their unconditional offer to return to work and Section 8(a)(5) and (1) by unilaterally entering into a subcontracting agreement with another employer to provide services previously performed by striking employees.
(Members Liebman, Schaumber, and Meisburg participated.)
Charge filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Brooklyn on May 1, 2002. Adm. Law Judge Howard Edelman issued his decision Sept. 24, 2002.
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HCL, Inc. a/k/a A.B., Inc. (9-CA-39526; 343 NLRB No. 95) Louisville, KY Dec. 10, 2004.
The Board, on a stipulated record, reversed the administrative law judge's dismissal of the unfair labor practice allegations and found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to sign a collective-bargaining agreement with Laborers Local 576 and by bypassing the Union and dealing directly with its bargaining unit employees concerning their terms and conditions of employment.
The Board noted that the Respondent has admitted that the 2002-2005 agreement was the new agreement and that it was obligated to execute that agreement by virtue of the Letter of Intent signed by the parties on June 14, 2002. It held that the parties' stipulation is consistent with Board law, citing Cowboy Scaffolding, 326 NLRB 1050 (1998), where the Board found that an individual employer's agreement to be bound by "all subsequent agreements between the Association and the Union" was sufficient to bind the employer to successor agreements between the Union and the Association. The Board found James Luterbach Construction Co., 315 NLRB 976 (1994), applied by the judge, is inapposite, saying in Luterbach, the issue was "whether an 8(f) employer, in a multi-employer unit, is bound, by inaction, to the successor multi-employer unit." 315 NLRB at 979.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Laborers Local 576; complaint alleged violation of Section 8(a)(1)
and (5). Parties waived their right to a hearing. Adm. Law Judge Arthur J. Amchan issued his decision April 17, 2003.
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Kentucky Tennessee Clay Co. (11-CA-18925, 18968; 343 NLRB No. 102) Langley, SC Dec. 8, 2004.
The Board affirmed the administrative law judge's findings that the Respondent, through Supervisor Murray Penner and Plant Manager David Forrester, violated Section 8(a)(1) of the Act by: (1) threatening Adelbert Quackenbush and three truck drivers with discharge in December 2000 if they went on strike; (2) creating the impression of surveillance among its employees in December 2000; (3) threatening employee Patrick Scott on January 15, 2001 with futility in selecting union representation; and (4) threatening employee Renew with discipline for engaging in union and/or protected activity on January 16, 2001. It also found that the Respondent violated Section 8(a)(3) by reducing employee Scott's work hours in August 2000 and then discharging him in January 2001.
In a related proceeding, 334 NLRB No. 33 (2001), the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain or to supply information to the Boilermakers after it had been certified as the collective-bargaining representative. The U.S. Court of Appeals for the Fourth Circuit, however, found on review that the Respondent's election objections were meritorious and that the Union should not have been certified as the bargaining representative. Accordingly, the court denied enforcement of the Board's order.
In view of the Court's ruling that the underlying representation election was invalid, the Board reversed the judge's finding that the Respondent violated Section 8(a)(5) by refusing to recognize and bargain with the Union in September 2000 and by unilaterally changing certain terms and conditions of employment in late 2000 and early 2001.
(Members Liebman, Walsh, and Meisburg participated.)
Charges filed by Boilermakers; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Aiken on Oct. 17, 2001. Adm. Law Judge Lawrence W. Cullen issued his decision Dec. 28, 2001.
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Lexus of Concord, Inc. (32-CA-18925, 19003; 343 NLRB No. 94) Concord, CA Dec. 8, 2004.
The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally transferring employee Dave Burman into a unit position without prior notice to Machinists District Lodge 190, Local Lodge 1173 and without affording the Union an opportunity to bargain with respect to the transfer and the effects of the transfer; and by failing to provide the Union with requested information that was relevant and necessary to the Union's performance of its duties as exclusive representative.
Members Schaumber and Meisburg, with Member Walsh dissenting, disagreed with the judge's finding that the Respondent's withdrawal of recognition from the Union on June 1, 2001, was lawful. The majority found no barriers to the Respondent's reliance on the employees' expression of disaffection from the Union-a decertification petition filed on April 17, 2001 and signed by a majority of the unit employees. Contrary to his colleagues, Member Walsh found that the Respondent could not rely on the petition to withdraw recognition because the signatures on it, obtained on April 16 and 17, 2001, were tainted by the Respondent's refusal to bargain with the Union from March 26 through April 19. He found that the Respondent unlawfully withdrew recognition and thereafter unlawfully granted an across-the-Board wage increase to which the Union had expressly refused to agree prior to the Respondent's withdrawal of recognition.
(Members Schaumber, Walsh, and Meisburg participated.)
Charges filed by Machinists District Lodge 190, Local Lodge 1173; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oakland, Dec. 10-12, 2001. Adm. Law Judge Mary Miller Cracraft issued her decision Feb. 11, 2002.
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Pennsylvania Academy of the Fine Arts (4-RC-20710; 343 NLRB No. 93) Philadelphia, PA Dec. 6, 2004.
Chairman Battista and Member Meisburg found, contrary to the Regional Director, that the petitioned-for artists' models, who model for art classes at the Academy, are independent contractors under the Act, and dismissed the petition filed by AFSCME District Council 47. Member Walsh disagreed with his colleagues.
To determine whether individuals are statutory employees or independent contractors, the Board applies the common-law agency test, which considers all the incidents of the individual's relationship to the employing entity and considers the 10 factors derived from the common-law Restatement of Agency. See BKN, Inc., 333 NLRB 143, 144 (2001), Roadway Package System, 326 NLRB 842 (1998), and Dial-A-Mattress Operating Corp., 326 NLRB 884 (1998). After considering the factors, the majority concluded that the evidence demonstrates that the models are independent contractors.
In dissent, Member Walsh wrote that while there are factors that tend to support independent contractor status, those factors are much less significant and are clearly outweighed by the factors supporting employee status. He agreed with the Regional Director that the models are statutory employees, and in reaching this conclusion, he relied on the models' lack of entrepreneurial risk and opportunity for gain, the level of control over the models exercised by the Academy, the lack of skill or training necessary to obtain a modeling position with the Academy, and the extent to which the Academy relies on models to operate its business.
(Chairman Battista and Members Walsh and Meisburg participated.)
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Shaw's Supermarket (1-RM-1267; 343 NLRB No. 105) Mansfield, MA Dec. 8, 2004.
Chairman Battista and Member Meisburg, with Member Walsh dissenting, reversed the Acting Regional Director's administrative dismissal of the Employer-Petitioner's petition, reinstated the petition, and remanded the case to the Regional Director for a hearing. The Acting Regional had administratively dismissed the petition without a hearing, finding that Food and Commercial Workers Local 791's demand for recognition at the Employer's new store in Mansfield, MA based on an after-acquired store clause in the parties' collective-bargaining agreement does not entitle the Employer to demand an election under Section 9(c)(1)(B).
The majority defined the issues as: (1) whether the Employer clearly and unmistakably waived the right to a Board election; and (2) if so, whether public policy reasons outweigh the Employer's private agreement not to have an election. It wrote: "We do not resolve these issues at this stage. We merely hold that they are worthy of review. Thus, the difference between our dissenting colleague and ourselves is that we would consider these important issues, and our colleague would not." The majority noted that the clause provides that the Employer will recognize the Union and apply the contract when a majority of employees have authorized the Union to represent them, that the clause does not cover such matters as to what the appropriate unit is or who the eligible employees are, and that is not clear that the Employer waived its right to a Board decision. Representation case issues (e.g. appropriateness of unit, eligibility to vote) are for the Board to decide and the issues would be left to the grievance arbitration process that the Union has invoked should they dismiss the petition, the majority explained.
Member Walsh wrote in finding that the Acting Regional Director correctly dismissed the petition and that review should be denied: "[T]he Board, at the direction of the D.C. Circuit, has long held that such clauses waive the Employer's right to demand an election. Further, the Board has expressly held that a union's demand for recognition based on such a clause does not support an RM petition. Nevertheless, my colleagues cast doubt on established Board and court precedent by questioning whether the clause in the present case constituted a waiver and whether 'policy concerns' outweigh the parties' agreement."
(Chairman Battista and Members Walsh and Meisburg participated.)
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12/10/2004
by Ross Runkel at LawMemo
NLRB Law Memo 12/10/2004
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 6 decisions.
Crown Bolt, Inc. (21-CA-33846, et al., 21-RC-20192; 343 NLRB No. 86) Cerritos, CA Nov. 29, 2004.
The Board, in a 3-2 decision involving Crown Bolt, Inc., held that an employer's threat to close its facility in the event employees vote for union representation will not be presumed disseminated throughout the bargaining unit. The Board's holding, however, is prospective only. In all pending cases involving threats of plant closure, the Board will continue to rebuttably presume that such threats were widely disseminated. The majority opinion is signed by Chairman Battista and Members Schaumber and Meisburg. Members Liebman and Walsh dissented in part.
The decision overrules the Board's decision 4 years ago in Springs Industries, Inc., 332 NLRB 40 (2000), which held that plant-closure threats are presumed disseminated throughout the plant absent evidence to the contrary. Springs Industries, in turn, overruled Kokomo Tube Co., 280 NLRB 357 (1986), where the Board declined to presume dissemination of a threat of plant closure made to a single employee. The Crown Bolt majority concluded that Kokomo Tube "represents the better evidentiary rule in requiring the party that seeks to rely on dissemination throughout the plant to show it."
In overruling Springs Industries, the Crown Bolt majority relied on several considerations. First, because the burden of proof in election-objection cases rests with the objecting party, Springs Industries "runs counter to the burden-allocation norm." Second, while the holding of Springs Industries is limited to plant-closure threats, its rationale is not, so "there is no apparent basis for declining to extend [the dissemination presumption] to other kinds" of statements. Third, the presumption is unnecessary: if dissemination of plant-closure threats is "all but inevitable," as the Board stated in Springs Industries, then it should be easy for the objecting party to prove. Fourth, employers face an undue burden in proving a lack of dissemination. Finally, circumstantial variations affect the probability of dissemination in any particular case, arguing against presuming dissemination in all closure-threat cases.
In their partial dissent, Members Liebman and Walsh characterized Kokomo Tube as an aberration from the Board's "traditional practice" of presuming dissemination of plant-closure threats. Emphasizing the severity of such threats, the dissent rejected the majority's view that circumstantial variations from case to case sufficiently affect the probability that such threats will be disseminated to warrant dispensing with the Springs Industries presumption. The dissent disagreed that dissemination should be easy for the objecting union to prove, stating that "employees are often reluctant, even afraid, to testify against their employer." Correspondingly, the dissent suggested that the majority had exaggerated the difficulties faced by employers in rebutting the dissemination presumption. The dissent also defended the Springs Industries presumption on the ground of administrative efficiency. Finally, the dissent noted the consistency of the Springs Industries presumption with the analogous "lore of the shop" principle, under which the Board assumes that plant-closure threats and other serious unfair labor practices will live on in the lore of the shop by being disseminated to new employees months and even years after the event.
(Full Board participated.)
Charges filed by Teamsters Local 848; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, Sept. 26-28, 2000. Adm. Law Judge Lana H. Parke issued her decision Dec. 29, 2000.
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CBI Na-Con, Inc. (15-CA-13906, et al.; 343 NLRB No. 88) Geismar, LA Nov. 30, 2004.
Subsequent to the issuance of the administrative law judge's initial decision, the Board remanded the case to the judge for further consideration pursuant to FES, 331 NLRB 9 (2000). In his supplemental decision, the judge reaffirmed his previous finding that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to consider or to hire 14 applicants for employment and Section 8(a)(1) by interrogating employees concerning their union membership and sympathies.
The Board, in this supplemental decision, adopted the judge's finding that the Respondent violated Section 8(a)(1) by coercively interrogating employees concerning their union membership and sympathies. However, it reversed the judge's finding that by failing to consider or hire 14 applicants for employment, the Respondent violated Section 8(a)(3) and (1) of the Act. The Board wrote: "[W]e find that the Respondent's hiring decision, and its consideration for hire of the alleged discriminates, were undertaken pursuant to a valid, neutral preferential hiring system, were not applied disparately, and were not discriminatory in practice."
(Chairman Battista and Members Schaumber and Meisburg participated.)
Charges filed by Plumbers Local 198; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Baton Rouge, May 5, 6, and 7, 1997. Adm. Law Judge Howard I. Grossman issued his decision on Sept. 25, 1997 and supplemental decision on Dec. 21, 2000.
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Children's Studio School Public Charter School (5-CA-31624; 343 NLRB No. 89) Washington, DC Nov. 30, 2004.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by terminating the employment of Maria Firmino-Castillo because she had engaged in concerted activity protected by Section 7 of the Act. Her activity included initiating and participating in a number of meetings with other teachers and staff members to discuss various issues relating to their terms and conditions of employment, assisting in the preparation and submission of a letter on behalf of a group of faculty members protesting their midyear performance evaluations, and the preparation of proposals concerning improvements in their terms and conditions of employment that they wanted the Respondent to implement.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Maria Firmino-Castillo, an Individual; complaint alleged violation of Section 8(a)(1). Hearing in Washington, DC, June 14-15, 2004. Adm. Law Judge Richard A. Scully issued his decision Aug. 31, 2004.
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Essex Valley Visiting Nurses Association (22-CA-24770; 343 NLRB No. 92) East Orange, NJ Nov. 30, 2004.
The Board agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally transferring four nurses from the administrative in-house positions of utilization management to field nurse positions. Chairman Battista and Member Schaumber held, contrary to the judge, that the Respondent did not violate Section 8(a)(5) when it discharged the nurses and that the nurses' discharge did not violate Section 8(a)(3). Member Walsh disagreed with his colleagues on this issue.
The majority found that the Respondent did not apply a unilaterally changed term or condition of employment to discharge the nurses but applied long-standing and understood requirements that employees must possess basic skills and the appropriate attitude necessary to do their job. In the majority's opinion, the nurses were discharged because they lacked basic skills and displayed an unprofessional attitude, because they could not perform the work, and because they showed a lack of interest in the training provided to them. In their view, the General Counsel failed to establish that the Respondent's discharge of the utilization management nurses was motivated by their demand for training.
Dissenting in part, Member Walsh agreed with the judge that "since it is clear that [the nurses'] terminations resulted from this unilateral transfer, the terminations are also violative of Section 8(a)(1) and (5) of the Act." He would find that the Respondent's unlawful unilateral action in transferring the utilization management nurses into the field3/4including its refusal to bargain over the necessary training-was a factor in their discharge.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Health Professionals and Allied Employees Local 5122; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Newark, June 12 and 13 and July 10 and 11, 2002. Adm. Law Judge Steven Fish issued his decision March 27, 2003.
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NYES Corp. (3-RC-11327; 343 NLRB No. 87) Oneonta, NY Nov. 30, 2004.
The Board adopted the recommendations of the hearing officer, set aside the election of May 8, 2003, and directed that a second election be conducted. The revised tally of ballots showed 5 for and 7 against, Teamsters Local 813, with no challenged ballots.
In finding objectionable conduct, the hearing officer relied on Springs Industries, 332 NLRB 40 (2000), in which the Board presumed that threats of plant closure are disseminated
among employees, absent evidence to the contrary. The Board noted that its decision in Crown Bolt, Inc., 343 NLRB No. 86 (2004), overrules Springs Industries; however, it does so prospectively only and, therefore, it will continue to apply the Springs Industries presumption to pending cases, including this case.
(Members Schaumber, Walsh, and Meisburg participated.)
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Ogihara America Corp. (7-CA-47071, 7-RC-22589; 343 NLRB No. 91) Howell, MI Nov. 30, 2004.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act and engaged in objectionable conduct by issuing employee Stefan Mikulka a written warning for distributing literature in a nonworking area on nonworking time to an employee who was also on nonworking time. The Board found it unnecessary to pass on whether the Respondent's enforcement of its uniform policy on the day of the election was objectionable because it determined that Mikulka's unlawful discipline was independently sufficient to warrant a rerun election. Accordingly, it set aside the election of Jan. 9, 2003, and directed a second election. The revised tally of ballots showed 148 votes for and 159 against, the Auto Workers.
In setting aside the election based on the discipline of Mikulka, the judge relied on Dal-Tex Optical Co., 137 NLRB 1782 (1962). Chairman Battista contended that the Respondent's unlawful conduct would warrant a new election even under Cambridge Tool & Mfg. Co., 316 NLRB 716 (1955), because that conduct had "the tendency to interfere with the employees' freedom of choice" and "could well have affected the outcome of the election." Member Schaumber concurred in the result and agreed with Chairman Battista's comments. Because the Respondent has not excepted to the Sec. 8(a)(3) violation found by the judge, he found it unnecessary to address the merits of the judge's discussion of Wright Line, 251 NLRB 1083 (1980).
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Auto Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit on May 25, 2004. Adm. Law Judge George Carson II issued his decision July 12, 2004.
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12/06/2004
by Ross Runkel at LawMemo
NLRB Law Memo 12/06/2004
by LawMemo.Com - First in Employment Law
NLRB - Employer's threat of plant closure will not be presumed disseminated.
Crown Bolt, Inc., 343 NLRB No. 86 (Nov. 29, 2004)
The National Labor Relations Board, in a 3-2 decision held that an employer's threat to close its facility in the event employees vote for union representation will not be presumed disseminated throughout the bargaining unit. The Board's holding, however, is prospective only. In all pending cases involving threats of plant closure, the Board will continue to rebuttably presume that such threats were widely disseminated.
The decision overrules the Board's decision four years ago in Springs Industries, Inc., 332 NLRB 40 (2000), which held that plant-closure threats are presumed disseminated throughout the plant absent evidence to the contrary. Springs Industries, in turn, overruled Kokomo Tube Co., 280 NLRB 357 (1986), where the Board declined to presume dissemination of a threat of plant closure made to a single employee. The Crown Bolt majority concluded that Kokomo Tube "represents the better evidentiary rule in requiring the party that seeks to rely on dissemination throughout the plant to show it."
In overruling Springs Industries, the Crown Bolt majority relied on several considerations. First, because the burden of proof in election-objection cases rests with the objecting party, Springs Industries "runs counter to the burden-allocation norm." Second, while the holding of Springs Industries is limited to plant-closure threats, its rationale is not, so "there is no apparent basis for declining to extend [the dissemination presumption] to other kinds" of statements. Third, the presumption is unnecessary: if dissemination of plant-closure threats is "all but inevitable," as the Board stated in Springs Industries, then it should be easy for the objecting party to prove. Fourth, employers face an undue burden in proving a lack of dissemination. Finally, circumstantial variations affect the probability of dissemination in any particular case, arguing against presuming dissemination in all closure-threat cases.
In their partial dissent, Members Liebman and Walsh characterized Kokomo Tube as an aberration from the Board's "traditional practice" of presuming dissemination of plant-closure threats. Emphasizing the severity of such threats, the dissent rejected the majority's view that circumstantial variations from case to case sufficiently affect the probability that such threats will be disseminated to warrant dispensing with the Springs Industries presumption. The dissent disagreed that dissemination should be easy for the objecting union to prove, stating that "employees are often reluctant, even afraid, to testify against their employer." Correspondingly, the dissent suggested that the majority had exaggerated the difficulties faced by employers in rebutting the dissemination presumption. The dissent also defended the Springs Industries presumption on the ground of administrative efficiency. Finally, the dissent noted the consistency of the Springs Industries presumption with the analogous "lore of the shop" principle, under which the Board assumes that plant-closure threats and other serious unfair labor practices will live on in the lore of the shop by being disseminated to new employees months and even years after the event.
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12/03/2004
by Ross Runkel at LawMemo
NLRB Law Memo 12/03/2004
by LawMemo.Com - First in Employment Law
NLRB overrules M.B. Sturgis; temporary employees are excluded from unit of permanent employees unless all parties consent.
NLRB - Staff summarized 11 other decisions.
H.S. Care L.L.C., d/b/a Oakwood Care Center and N&W Agency, Inc. (29-RC-10101; 343 NLRB No. 76) Oakdale, NY Nov. 19, 2004.
The Board, in a 3-2 decision, returned to longstanding Board precedent and held that employees obtained from a labor supplier cannot be included in a unit of permanent employees of the employer to which they are assigned unless all parties consent to the bargaining arrangement.
The majority of Chairman Battista and Members Schaumber and Meisburg found that such units, combining jointly-employed supplied employees and permanent employees solely employed by the user employer, are multiemployer units. Under Section 9(b) of the Act, consent is required for the establishment of such multiemployer units. Members Liebman and Walsh dissented.
The decision overrules the Board's decision in M.B. Sturgis, 331 NLRB 1298 (2000), which held that bargaining units that combine employees who are solely employed by a user employer and employees who are jointly employed by the user employer and a supplier employer are permissible under the Act. Sturgis had overruled established precedent finding such units to be impermissible, absent consent. See Lee Hospital, 300 NLRB 947 (1990).
The majority in Oakwood stated:
By ignoring the bright line between employer and multiemployer units, Sturgis departed from the statutory directive of Section 9(b) as well as decades of Board precedent. We find that the new approach adopted in Sturgis, however well-intentioned, was misguided both as a matter of statutory interpretation and sound national labor policy.
The majority pointed out that in the units authorized by Sturgis, some of the employees are employed by the user employer while others are employed by the joint employer. "Thus, the entity that the two groups of employees look to as their employer is not the same. No amount of legal legerdemain can alter this fact."
The majority also stated that national labor policy was better served by limiting
Sturgis-type units to cases where all parties consent. Allowing such units without consent opens the door to significant conflicts among the various employers and groups of employees participating in the collective bargaining process. The multiple employers are placed in the position of negotiating with one another as well as with the union. These are precisely the types of conflicts that Section 9(b) and the Board's community of interest tests are designed to avoid.
In dissent, Members Liebman and Walsh cited the rise of alternative work arrangements in response to global economic pressures on employers. They argued that workers in these arrangements would now effectively be barred from organizing labor unions, unless their employers consented. Rejecting the majority's "supposed strict construction" of the statute, the dissent pointed to the Board's "disturbing reluctance to recognize changes in the economy and the workplace and to ensure that our law reflects economic realities and continues to further the goals that Congress has set."
The dissenters described Lee Hospital as "a 10-year-old decision, missing any rationale, which itself broke with precedent." The dissenters argued that neither the language of the statute, nor its legislative history foreclosed a Sturgis unit. Rather, the Board has broad discretion to determine an appropriate bargaining unit. The dissent repeatedly cited the Board's statutory duty "to assure to employees the fullest freedom in exercising their rights." Sturgis units facilitate collective bargaining, the dissenters observed, and pointed to the lack of empirical support for the majority's contrary view. They characterized the majority's decision as "at worst accelerating the expansion of a permanent underclass of workers" and predicted that it would "hasten the obsolescence of this statute."
In this case, the Regional Director found appropriate a petitioned-for unit of nonprofessional employees at Oakwood's facility in Oakdale, NY. The petitioned-for unit includes both employees who are solely employed by Oakwood and employees who are jointly employed by Oakwood and a personnel staffing agency, N&W. The majority reversed the Regional Director's decision and dismissed the petition filed by New York's Health and Human Service Union, 1199, Service Employees, finding that the petitioned-for unit is a multiemployer unit and neither Oakwood nor N&W consented to bargaining with the other in a multiemployer unit. Members Liebman and Walsh found that the Regional Director was correct in approving a joint unit per Sturgis.
(Full Board participated.)
***
NLRB - Staff summarized 11 other decisions.
Airborne Freight Corp. (8-CA-28047, et al.; 343 NLRB No. 72) Beachwood and Middleburg, OH Nov. 19, 2004.
Chairman Battista and Member Schaumber adopted certain of the administrative law judge's findings that the Respondent, by its numerous unfair labor practices, violated Section 8(a)(1) and (3) of the Act and his recommendations to dismiss certain other complaint allegations. Member Liebman dissented in part.
The complaint included allegations that Robert Hearns was unlawfully discharged on four occasions between January 1996 and January 1998. Under the terms of the parties' collective-bargaining agreement, the record showed that some of Hearns' discharges were either set aside or reduced to suspensions based on determinations made by a "grievance panel" or by the Ohio Joint State Grievance Committee. At issue is whether the Board should defer to these grievance determinations.
The majority dismissed the complaint allegations that Hearns was unlawfully discharged on January 29 and February 6, 1997 and deferred to the decisions of the joint state grievance boards resolving Hearns' grievances over his January 29 and February 6, 1997 discharges. They determined, as did the judge, that Hearn's discharges of July 1, 1997 and January 20, 1998 were lawful as the Respondent showed that it would have discharged him based on his overall work record.
In partial dissent, Member Liebman would find, contrary to her colleagues, that the Respondent committed unfair labor practices by: giving Hearns a warning for causing a preventable accident with a tow motor on June 6, 1997 because the Respondent failed to show that Hearns would have been given the warning absent his union activities; discharging Hearns in July 1997 and January 1998 because the Respondent failed to meet its affirmative burden under Wright Line to justify these discharges; transferring John Krokey to an inferior route, thereby reducing his opportunity for overtime; and transferring John Mauer to a less desirable route.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Teamsters Local 407 and Michael E. Shuba, Robert Hearns, John J. Krokey, John Mauer, and Wilma J. Conley, Individuals; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Cleveland, Oct. 26-30 and Nov. 6-7, 1998. Adm. Law Judge C. Richard Miserendino issued his decision Dec. 23, 1999.
***
Allied Mechanical, lnc. (31-CA-26120, et al., 31-RC-8202; 343 NLRB No. 74) Ontario, CA Nov. 19, 2004.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing written disciplinary notices to and discharging employees Timothy Hays and Walter Reddoch on January 23, 2003, and disciplining Marcelo Pinheiro on January 31 and March 25, 2003. It also agreed with the judge's finding that the Respondent violated Section 8(a)(1) by impliedly and coercively telling an employee that the Respondent had retaliated against employees by reducing employees' hours; threatening an employee with unspecified reprisals by telling him he would lose by supporting the Steelworkers; and prohibiting the posting of union literature.
Members Walsh and Meisburg sustained the Steelworkers' Objection 9 concerning the Respondent's enforcement of its posting policy during the first few weeks of the critical period and found it unnecessary to pass on the Union's Objections 2 and 5. Unlike his colleagues, Member Schaumber would overrule the Union's Objections 2, 5, and 9. The Board overruled the Union's Objections 1, 3, and 4, set aside the election held in Case 31-RC-8202 on March 6, 2003, and remanded the case to the Regional Director for the purpose of conducting a new election.
The judge recommended that three of the Union's election objections be sustained, three objections be overruled, and that the Respondent be ordered to bargain with the Union pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Contrary to the judge, the Board determined that a Gissel bargaining order is not necessary and that the holding of a rerun election will satisfactorily protect and restore the employees' Section 7 rights.
In the absence of exceptions, the Board dismissed the complaint allegations that the Respondent violated Section 8(a)(3) and (1) regarding employee Marcello Pinheiro's postelection performance review, reduction of hours, and selection for layoff, and Section 8(a)(1) regarding Respondent's preelection reduction in employees' hours in retaliation to employees' union activity.
(Members Schaumber, Walsh, and Meisburg participated.)
Charges filed by Steelworkers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, Sept. 8 thru 12, 2003. Adm. Law Judge Lana H. Parke issued her decision Dec. 19, 2003.
***
Martin Luther Memorial Home, Inc. d/b/a Lutheran Heritage Village-Livonia (7-CA-44877; 343 NLRB No. 75) Livonia, MI Nov. 19, 2004.
The Board, in a 3-2 decision involving Lutheran Heritage Village-Livonia, concluded that the maintenance of work rules prohibiting "abusive and profane language," "verbal, mental and physical abuse," and "harassment...in any way" could not reasonably be understood as interfering with employees' Section 7 rights under the National Labor Relations Act. The majority consisted of Chairman Battista and Members Schaumber and Meisburg. Members Liebman and Walsh dissented.
The decision adopts the reasoning of the District of Columbia Circuit in Adtranz, ABB Daimler-Benz Transportation, N.A., Inc. v. NLRB, 253 F.3d 19 (D.C. Cir. 2001). That court reversed a 2000 decision of the Board (reported at 331 NLRB 291). In Adtranz, the District of Columbia Circuit concluded that a rule prohibiting abusive or threatening language was lawful because it was based on the employer's legitimate right to establish a "civil and decent" workplace and to protect itself from liability for workplace harassment by maintaining rules prohibiting conduct that could lead to liability. Adopting the court's view, the Board majority in Lutheran Heritage Village-Livonia agreed that a rule prohibiting "abusive and profane language," as well as rules prohibiting "verbal . . . abuse" and "harassment," were lawful.
The majority in Lutheran Heritage Village-Livonia recognized that maintenance of a rule that does not expressly prohibit protected activity "can nonetheless be unlawful if employees would reasonably read it to prohibit Section 7 activity." However, the majority said that employees in the Lutheran Heritage case would not reasonably read the rule in that way. "That is, reasonable employees would infer that the Respondent's purpose in promulgating the challenged rules was to ensure a 'civil and decent' workplace, not to restrict Section 7 activity." The majority also stated that where, as in this case, the rule does not refer to Section 7 activity, was not adopted in response to organizational activity, and had never been enforced to restrict Section 7 activity, "we will not conclude that a reasonable employee would read the rule to apply to such activity simply because the rule could be interpreted that way."
In dissent, Members Liebman and Walsh observed that "the ill-defined scope of the Respondent's 'verbal abuse' and abusive language" rules, as well as its "no harassment" rule, would reasonably tend to cause employees to "steer clear of the prohibited zone" and refrain from voicing disagreement with their terms and conditions of employment or vigorously attempting to organize skeptical workers.
The dissent explained that it relied "not only on the fact that the overbroad rules at issue here could reach activity that is protected, but also on the particular language of the rules, the Respondent's maintenance of other facially unlawful rules, and the existence of seemingly duplicative rules as providing a context in which employees would reasonably construe the rules as interfering with their Section 7 activity."
The dissenting Members asserted that, "[a]lthough we agree with our colleagues and the District of Columbia Circuit that employers have a legitimate interest in protecting themselves by maintaining rules that discourage conduct that might result in employer liability, . . . that interest is appropriately subject to the requirement that employers articulate those rules with sufficient specificity that they do not impinge on employees' free exercise of Section 7 rights."
(Full Board participated.)
Charge filed by Vivian A. Foreman, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit on Nov. 7, 2002. Adm. Law Judge Bruce D. Rosenstein issued his decision Feb. 3, 2003.
***
Republic Die and Tool Co. (7-CA-46194; 343 NLRB No. 78) Belleville, MI Nov. 19, 2004.
The Board amended the administrative law judge's conclusions of law to provide that by repudiating the January 16, 2000 to January 16, 2004 collective-bargaining agreement, the Respondent failed and refused to bargain collectively within the meaning of Section 8(d) of the Act and that by failing and refusing to provide Auto Workers Local 174, upon its request, with information relevant to its averred economic inability to comply with the wage and fringe benefits provisions of the agreement, the Respondent violated Section 8(a)(5) and (1) of the Act.
Members Schaumber and Meisburg found no merit in the General Counsel's exception that the judge's recommended order did not contain affirmative relief for the Respondent's refusal to provide financial information to the Union. Member Liebman would grant the affirmative relief.
(Members Liebman, Schaumber, and Meisburg participated.)
Charge filed by Auto Workers Local 174; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit on Oct. 9, 2003. Adm. Law Judge Ira Sandron issued his decision Feb. 6, 2004.
***
Wal-Mart, Inc. (29-CA-18255, et al.; 343 NLRB No. 71) Las Vegas and Henderson, NV Nov. 15, 2004.
The Board granted Charging Party UFCW's motion to strike pages 51-82 of Wal-Mart's answer to the Charging Party's brief on exceptions to the administrative law judge's decision (JD(SF)-33-04), but it granted the Respondent permission to file a responsive brief that conforms to the 50-page limit in accordance with the Board's Rules and Regulations.
The Charging Party requested and was granted permission to exceed the 50-page limit for its brief in support of exceptions. It filed exceptions and a 70-page brief in support. The Respondent filed an 82-page answering brief and the Charging Party filed a 10-page reply brief. In its motion to strike, the Charging Party argued that the Respondent failed to obtain permission to exceed the 50-page limit on briefs. The Respondent admitted it did not request permission, but claimed that it telephoned an employee in the Executive Secretary's office, who allegedly verified that, like extensions of time to file documents, page enlargements granted at one party's request are shared by all parties. The Respondent contended that even if it misinterpreted the conversation, the rationale for sharing an extension in a due date also applies to the sharing by all parties of a page enlargement, citing P & M Cedar Products, 282 NLRB 772 (1987).
The Board noted that Section 102.46(j) of the Board's Rules and Regulations indicates that any party that desires additional pages beyond the 50-page limit must request its own permission from the Board, which has been the Board's policy since the rule was established in 1982, and that any advice to the contrary was erroneous. Accordingly, it granted the Respondent permission to file a responsive brief that conforms to the 50-page limit (the Charging Party may refile a reply to the resubmitted responsive brief). Chairman Battista, in granting permission, relied in part on the Respondent counsel's assertion as to the telephone conversation that he allegedly had with the Board's offices. He assumed arguendo that the assertion is correct since there is no counter-assertion and there is no basis for discrediting the assertion made by counsel.
(Chairman Battista and Members Liebman and Meisburg participated.)
***
Champion Home Builders Co. a Subsidiary of Champion Enterprises Inc. (32-CA-17185; 343 NLRB No. 77) Lindsay, CA Nov. 19, 2004.
The administrative law judge found, and Members Schaumber and Meisburg, with Member Walsh concurring, held that the Respondent violated Section 8(a)(1) of the Act by discharging Ramon Rivas because of his protected concerted activity in complaining to other employees about the Respondent's employee production system and posting a letter about it.
The majority reversed the judge's finding that the Respondent violated Section 8(a)(1) by failing and refusing to stay or seek the dissolution of the restraining order issued against Rivas by the California State court. The restraining order, following the hearing to show cause, prohibited Rivas from, among others, coming within 50 yards of the Respondent's facility and contacting the Respondent's employees during working hours.
Members Schaumber and Meisburg determined that nothing in the Act prevented the State court from enjoining Rivas from engaging in acts of violence or intimidation and the State court lawsuit was not preempted upon the issuance of the complaint alleging that the Respondent had unlawfully discharged Rivas. They found that the judge's analysis failed to explain why the State court lawsuit was preempted upon issuance of the complaint alleging that Rivas has been unlawfully discharged and why it was unlawful for the Respondent to fail to stay or seek the dissolution of the lawsuit.
Contrary to his colleagues, Member Walsh would find that the Respondent violated Section 8(a)(1) as found by the judge by failing and refusing to seek or stay the dissolution of the restraining order against Rivas. He concluded that the evidence does not support a claim that the lawsuit against Rivas was actually based on threats of violence. Member Walsh wrote that the documents and allegations submitted by the Respondent to the court in pursuit of a lawsuit against Rivas were based on the same conduct by Rivas that the General Counsel alleged was protected by the Act in the unfair labor practice proceeding.
(Members Schaumber, Walsh, and Meisburg participated.)
Charge filed by Carpenters Local 1109; complaint alleged violation of Section 8(a)(3). Hearing at Visalia on Sept. 21, 1999. Adm. Law Judge Jay R. Pollack issued his decision May 16, 2000.
***
Crittenton Hospital (7-CA-42695, et al.; 343 NLRB No. 81) Rochester, MI Nov. 23, 2004.
The Board affirmed the administrative law judge's findings that the Respondent committed several unfair labor practices affecting its hospital employees who are represented in separate bargaining units by four Unions. Among others, it held that the Respondent violated Section 8(a)(5) of the Act by refusing to provide OPEIU Local 40 information concerning the discipline of nurse Adelaida Cruz, and by requiring the registered nurses (RNs) to become certified in advance cardiac life support without providing prior notification to OPEIU Local 40 and affording it the opportunity to bargain about the change and dealing directly with the bargaining unit employees.
The Board agreed with the judge's finding, but it relied on a different rationale, that the Respondent failed to respond to the OPEIU's request for information concerning unresolved pending grievances filed by OPEIU's predecessor, the Michigan Nurses Association.
Concluding that the General Counsel failed to establish that the parties agreed to retain two disputed provisions in the finalized collective-bargaining agreement, the Board reversed the judge's finding that the Respondent violated Section 8(a)(5) and (1) by deleting two provisions from the prior collective-bargaining agreement with SEIU Local 79 for the LPN unit, refusing to reinsert them, and refusing to execute a final agreement containing those provisions.
The Board amended the judge's recommended Order to require the Respondent to provide the requested information to the extent consistent with the Board's findings and that the Respondent reimburse the employees represented by the four Charging Parties Unions for any and all losses they incurred by virtue of the Respondent's unlawful unilateral changes in employees' terms and conditions of employment.
(Chairman Battista and Members Schaumber and Meisburg participated.)
Charges filed by Office Employees Local 40, Service Employees Local 79, Rochester Crittenton Medical Laboratory Employees Assn. (RCMLEA), and Rochester Crittenton Radiological Employees Assn. (RCREA); complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit, Jan. 8-10, 2001. Adm. Law Judge C. Richard Miserendino issued his decision Nov. 13, 2001.
***
The Hearst Corp. Capital Newspaper Division (3-CA-22256; 343 NLRB No. 79) Albany, NY Nov. 19, 2004.
The Board adopted the recommendations of the administrative law judge and held that the Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to deduct and remit to Newspaper Guild of Albany Local 31034 dues and/or fees owed by employee Valeria Shea.
(Members Schaumber, Walsh, and Meisburg participated.)
Charge filed by Newspaper Guild of Albany Local 31034, CWA; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Albany on April 30, 2001. Adm. Law Judge Wallace H. Nations issued his decision Aug. 30, 2001.
***
Midwest Television, Inc., d/b/a KFMB Stations (21-CA-32858; 343 NLRB No. 83) San Diego, CA Nov. 23, 2004.
Members Schaumber and Meisburg affirmed the administrative law judge's finding that the Respondent did not violate Section 8(a)(5) of the Act either by reducing employee Harry Clement's above-scale salary to the contractual rate or by insisting to impasse on a permissive subject of bargaining. They reversed the judge's finding that the
Respondent violated Section 8(a)(1) by soliciting the decertification of the Union (AFTRA Local 225) and Section 8(a)(3) by reducing Clement's wages to union scale and by constructively discharging Clement based on his pay reduction and, accordingly, dismissed the complaint.
Member Walsh, dissenting in part, joined the majority decision except he found that the Respondent violated Section 8(a)(5) by unilaterally reducing Clement's above-scale salary, a wage topic that is a mandatory subject of bargaining. Agreeing with his colleagues' dismissal of the allegation that the reduction in Clement's pay violated Section 8(a)(3), Member Walsh found, in light of the finding that Clement was not treated disparately, it unnecessary to address-as does the majority in assuming arguendo disparate treatment-the alternative theory that the reduction was inherently destructive of employee rights under NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
(Members Schaumber, Walsh, and Meisburg participated.)
Charge filed by Harry Clement, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at San Diego, Jan. 16-18, 2001. Adm. Law Judge Lana H. Parke issued her decision May 4, 2001.
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Rhee Brothers, Inc. (5-CA-29127; 343 NLRB No. 80) Columbia, MD Nov. 23, 2004.
Chairman Battista and Member Liebman, with Member Meisburg concurring, adopted the recommendations of the administrative law judge and held that the Respondent violated Section 8(a)(1) of the Act by, among others: discharging Ui Dal Kim, Nak Hoon Chong, Kwang Joon Park, Man Ho Kim, and Chul Hyun Chong because they concertedly complained regarding
the abusive treatment by a supervisor and because they engaged in a strike in support of their complaint; issuing a notification letter to its striking employees telling them that the strike was totally unacceptable; and interrogating employees concerning their own and other employees' union activities and about the subject of unfair labor practice proceedings.
It affirmed the judge's finding that the Respondent violated Section 8(a)(1) by interrogating employee Sang Hui Yun about the strike at the Respondent's facility without providing the safeguards required by Johnnie's Poultry, 146 NLRB 770, 775 (1964) enfd. denied 344 F.2d 617 (8th Cir. 1965). Agreeing with the Respondent that employee Bok Hwan Bae was given the Johnnie's Poultry safeguards, the Board reversed the judge's finding that the interrogation of Bae was unlawful.
Member Meisburg wrote separately to address the issue of whether employee Hee Wong Kim was the agent of other employees when he told President Rhee that the employees would refrain from striking. The Respondent claimed that Kim created an enforceable agreement not to strike on behalf of the other employees but produced no evidence that the employees authorized Kim to make any such agreement. Member Meisburg found that those employees were not bound by Kim's purported agreement and therefore, their failure to delay the strike did not cause them to lose the protections of the Act. Chairman Battista and Member Liebman agreed with the judge's finding that Kim made no promise that those employees would refrain from striking and found it unnecessary to address that issue.
(Chairman Battista and Members Liebman and Meisburg participated.)
Charge filed by Ui Dal Kim, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Baltimore on various days in May, July, Sept., and Nov. 2001, and Jan. and Feb. 2002. Adm. Law Judge Leonard M. Wagman issued his decision Jan. 8, 2003.
***
French Redwood, Inc. d/b/a Sofitel San Francisco Bay (20-RC-17923; 343 NLRB No. 82) Redwood City, CA Nov. 24, 2004.
Members Schaumber and Meisburg held that the hearing officer erred in overruling the Employer's Objection 2 alleging that Cemetery Workers SEIU Local 2 misled voters to believe that the government favored the Petitioner in the election. Accordingly, they sustained the Employer's Objection 2, set aside the election held February 18, 2004, and directed a second election. They found it unnecessary to rule on the hearing officer's recommendation to overrule the Employer's remaining objections. The tally of ballots showed 27 votes for and 24 against, the Petitioner, with no challenged ballots.
The objection in question concerned a photocopy of an altered sample ballot which the Petitioner distributed to several employees. The Employer argued that the hearing officer erred in finding that the handwritten markings on the document would lead a voter to believe it was from the Petitioner.
In dissent, Member Walsh wrote that he would adopt the hearing officer's recommendation to overrule the Employer's objection stemming from what he found to be campaign propaganda and issue a certification of representative.
(Members Schaumber, Walsh, and Meisburg participated.)
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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