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01/28/2005
by Ross Runkel at LawMemo
NLRB Law Memo 01/28/2005
by LawMemo.Com
- First in Employment Law
The President has re-nominated Ronald E. Meisburg to the NLRB. The nomination is subject to confirmation by the Senate. Meisburg served as a Member of the National Labor Relations Board under a recess appointment made by President Bush on December 26, 2003. That appointment expired December 16, 2004. The five-Member Board now has two vacancies.
NLRB - Staff summarized 2 decisions.
National Specialties Installations, Inc. (7-CA-46698; 344 NLRB No. 2) Detroit, MI Jan. 18, 2005.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by discharging employees Erin Hardcastle-Mehlhose and Matthew Mehlhose because they concertedly complained to Company President Michael Beydoun regarding their payroll checks being returned for insufficient funds.
The Board found merit in the General Counsel's cross-exception to the judge's ruling during the hearing that the General Counsel violated the Board's Jencks rule by failing to produce a July 12, 2003 notice sent to the discriminatees by their bank. See Board's Rules and Regulations ยง 102.118(b)-(d); see also Jencks v. United States, 353 U.S. 657, 667-672 (1957). But, it did not disturb the judge's factual findings regarding the July 12 notice, concluding that the judge properly declined to draw an adverse inference against the General Counsel for failing to produce the notice. The Board said it would not, however, rely on the judge's finding that the notice was "misplaced with no unlawful motive attached thereto" because there is no basis in the record for such a conclusion.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Erin Hardcastle-Mehlhose, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Detroit on July 13 and 14, 2004. Adm. Law Judge William N. Cates issued his decision Aug. 16, 2004.
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WSNCHS North, Inc. d/b/a New Island Hospital (29-CA-26162; 344 NLRB No. 3) Hempstead, NY Jan. 21, 2005.
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 refusing to furnish the information requested by the Union, New York State Nurses Association.
The Union filed grievances over the staffing-guideline dispute in January 2003 and demanded arbitration in September 2003. On February 11, 2004, the Union served a subpoena duces tecum on the Respondent seeking the information at issue in this case. The Respondent moved the arbitrator to quash the subpoena and as of the date of this Board's decision, the Union has not received a ruling on whether it is entitled to the requested information. Chairman Battista and Member Schaumber noted that because the arbitrator has not promptly resolved the parties' information-request dispute, deferral is inappropriate. They found it unnecessary to pass on whether, absent such a delay, the Board properly should defer an information-request allegation to arbitration where a charging party has invoked the grievance-arbitration process and has also filed a charge with the Board. Citing Postal Service, 302 NLRB 918 (1991), Member Liebman agreed that the Board should not defer the information-request allegation to arbitration, but would rely on the Board's longstanding policy of not deferring such matters.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by New York State Nurses Assn.; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on June 23, 2004. Adm. Law Judge D. Barry Morris issued his decision Aug. 20, 2004.
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01/21/2005
by Ross Runkel at LawMemo
NLRB Law Memo 01/21/2005
by LawMemo.Com
- First in Employment Law
The NLRB has announced that it has expanded its E-Filing Project to include all documents in both representation and unfair labor practice cases. Parties can go to the NLRB web site and fill out a one page form and submit documents directly to the Office of the Executive Secretary.
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01/05/2005
by Ross Runkel at LawMemo
NLRB Law Memo 01/05/2005
by LawMemo.Com
- First in Employment Law
Ark Las Vegas Restaurant Corp. (28-CA-14228, et al.; 343 NLRB No. 126) Las Vegas, NV Dec. 16, 2004.
On remand from the U.S. Court of Appeals for the District of Columbia Circuit, Members Liebman and Walsh reaffirmed the Board's previous Order reported at 335 NLRB 1284 (2001). The court denied enforcement of the Board's order with respect to the Respondent's Rules 30 and 45 and remanded the case to the Board for further proceeding.
In the prior decision, the Board found, among others, that the Respondent violated Section 8(a)(1) of the Act by maintaining work rules forbidding its employees from "[r]eporting to property more than 30 minutes before a shift is to start or staying on property more than 30 minutes after a shift ends," and from "[r]eturning to the Company's premises, other than as a guest, during unscheduled hours."
In dissent, Chairman Battista would not find that the General Counsel has established that the Respondent violated Section 8(a)(1) of the Act by maintaining Rules 30 and 45 in its handbook. He said there are no evidence of unlawful application and no evidence that any employee has been deterred from engaging in Section 7 activity. Chairman Battista stated: "absent evidence of unlawful application, I would not seek to stretch these rules beyond their reasonable meaning. . . . I would not infer that a reasonable employee would read Rules 30 and 45 as prohibiting Section 7 activity outside the restaurants."
(Chairman Battista and Members Liebman and Walsh participated.)
***
Crossroads Electric, Inc, and its alter ego Greer and Associates Electrical, Inc. (26-CA-21574; 343 NLRB No. 112) Nashville, TN Dec. 20, 2004.
The Board adopted the administrative law judge's finding that by failing to honor the terms of the collective-bargaining agreement with Electrical Workers Local 429, the Respondent and its alter ego Greer and Associates Electrical, Inc., violated Section 8(a)(5) of the Act.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Electrical Workers Local 429; complaint alleged violation of Section 8(a)(5). Hearing at Nashville on July 14 and 15, 2004. Adm. Law Judge George Carson II issued his decision Sept. 1, 2004.
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DynCorp (9-CA-37324, et al., 9-RC-17352; 343 NLRB No. 124) West Chester, OH Dec. 16, 2004.
Members Liebman and Walsh adopted certain of the administrative law judge's finding and held that the Respondent, by prohibiting employees from posting union literature on its bulletin Board or threatening employees for posting such literature; interrogating or soliciting employees about their union activities, membership, or sympathies; and threatening employees with more onerous working conditions because of their union support, violated Section 8(a)(1) and (3) of the Act.
Members Liebman and Walsh held, contrary to the judge and Chairman Battista, that the Respondent violated the Act by promising improved conditions of employment and by threatening employees with the loss of their Employee Stock Ownership Plan (ESOP) benefits if they chose union representation. They set aside the election of March 8, 2000, and severed and remanded Case 9-RC-17352 to the Regional Director to conduct a new election. The tally of ballots showed that of 226 eligible voters, 94 were for and 114 were against, Postal Workers Local 164, with no challenged ballots.
Dissenting in part, Chairman Battista would dismiss the allegation that the Respondent unlawfully interrogated employee Jon Groves, and would adopt the judge's dismissal of allegations relating to the alleged promise of benefits and the alleged threat to discontinue the Respondent's ESOP contribution if the Union prevailed in the election. While he agreed with his colleagues with regard to the remaining allegations, he said that he found them insufficient to warrant a second election and would direct the Regional Director to issue to appropriate certification.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Postal Workers Local 164 and Grant Turner, Carl D. Moore, and Robert Honnerlaw, Individuals; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Cincinnati on March 12-15, 2001. Adm. Law Judge Jerry M. Hermele issued his decision July 31, 2001.
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Electrical Workers Local 357 (Newtron Heat Trace, Inc.) (28-CB-5957, 6013; 343 NLRB No. 136) Primm, NV Dec. 16, 2004.
In agreement with the administrative law judge, Members Liebman and Walsh determined that the Respondent violated Section 8(b)(1)(A) of the Act by, among others, restraining and coercing three travelers (members of sister local union, who seek work in the Respondent's jurisdiction) into surrendering job referrals to the Respondent's members and by refusing a hiring hall registrant's request for a copy of the October 3, 2002 side list. The Respondent's coercive conduct, directed at the three travelers, included verbal harassment and threats by groups of union members occurring in the hiring hall and the hiring hall parking lot. This conduct occurred on four dates over a 6-month period starting on March 7, 2003.
The judge in her remedial order required the Respondent to make whole the three identified travelers (Michael Cieklinski, Richard Henderson, and Allan Naim) and to make whole "other travelers affected by Respondent's unlawful conduct" and stated that "[d]etermining the identities and job opportunity losses of and giving notification to such travelers as may have been coerced is left to the compliance stage of this matter."
The Respondent excepted to the judge's extension of the make whole remedy beyond the three identified travelers. The majority, pursuant to Electrical Workers Local 48 (Oregon-Columbia NECA), 342 NLRB No. 10, slip op. at 9 (2004), wrote that the Board will order the respondent to make whole such unidentified persons only where they constitute a "defined and easily identified class." Here, they found that there is no "defined and easily identified class" sufficient to warrant a broader-make whole Order. Accordingly, they modified the judge's recommended Order to limit the make-whole remedy to the three identified travelers.
In partial dissent, Chairman Battista wrote: "I disagree with my colleagues' conclusion that the unidentified travelers who lost job opportunities as a result of the Respondent's coercive conduct are not a 'defined and easily identifiable class,' entitled to remedial relief." He would affirm the judge's recommended Order providing a make-whole remedy for all travelers who lost job opportunities as a result of the Respondent's coercive conduct and deferring to compliance proceedings issued related to which, if any, travelers are entitled to be made whole.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Michael J. Cieklinski and Richard Brian Henderson, Individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Las Vegas on March 9 and 10, 2004. Adm. Law Judge Lana H. Parke issued her decision June 15, 2004.
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Sonic Automotive, formerly d/b/a Capitol Ford, currently d/b/a Friendly Ford (32-CA-19327-1; 343 NLRB No. 116) San Jose, CA Dec. 16, 2004.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union (Machinists District Lodge 190 Local 1101) as the exclusive bargaining representative of its employees in the bargaining unit, by unilaterally changing the payroll period, and by dealing directly with bargaining unit employees with respect to their rates of pay, wages, hours, or other terms and conditions of employment.
Chairman Battista and Member Schaumber adopted the judge's dismissal of the complaint allegations that the Respondent made statements threatening employees in violation of Section 8(a)(1). They agreed with the judge's finding that the Respondent is an undisputed Burns successor employer and therefore, did not violate Section 8(a)(5) by unilaterally implementing the October 2001 productivity bonus program, and thereafter unilaterally modifying the bonus program. They said that the record showed similar bonus programs utilized by the Respondent's predecessor and this discretion was authorized under the union-predecessor collective-bargaining agreement.
The majority held that the Respondent did not violate Section 8(a)(5) by unilaterally implementing two paid holidays, the day after Thanksgiving and the day of Christmas Eve. They found no change from the predecessor's established practice of granting the day after Thanksgiving as a paid holiday and agreed with the judge that the Respondent did not engage in unlawful direct dealing with employees with respect to these holidays.
Contrary to his colleagues, Member Walsh contended that the Respondent violated Section 8(a)(5) by unilaterally modifying the productivity bonus program it implemented in October 2001, by unilaterally implementing the day after Thanksgiving holiday, and by direct dealing with employees. He wrote that while the Union had no objection to the productivity bonus program, the Respondent was not privileged to unilaterally modify the bonus program it put into effect. With respect to the implementation of the day after Thanksgiving holiday, he said it was a change from the Respondent's initial terms and conditions of employment, that the Respondent never bargained with the Union about the change, and that the Respondent met directly with employees regarding the change and excluded the Union from the process.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Machinists District Lodge 190 Local 1101; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Jose on Sept. 18, 2002. Adm. Law Judge James M. Kennedy issued his decision Feb. 28, 2003.
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Jewish Home for the Elderly of Fairfield County (34-CA-9920, et al., 34-RC-1947; 343 NLRB No. 117) Fairfield, CT Dec. 16, 2004.
The Board affirmed the administrative law judge's findings that the Respondent committed numerous violations of the Act. Among others, it found that the Respondent violated Section 8(a)(1) of the Act by maintaining a rule denying off-duty employees access to "the facility" unless visiting residents, clients, or conducting official business. The Board set aside the election conducted in Case 34-RC-1947 and remanded this case to the Regional Director to conduct a new election when he deems the circumstances permit the free choice of a bargaining representative. In the absence of exceptions, it adopted the judge's recommendations to overrule Objections 2, 4, 10, 12, and 15.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by New England Health Care Employees (SEIU) District 1199; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford over 16 days between Nov. 13, 2002 and Feb. 11, 2003. Adm. Law Judge Michael A. Marcionese issued his decision Nov. 21, 2003.
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Mountaineer Park, Inc. (6-RC-12289; 343 NLRB No. 135) Chester, WV Dec. 16, 2004
In the absence of exceptions, the Board adopted the hearing officer's recommendation to overrule the Petitioner's (Food & Commercial Workers Local 23) Objections 1 and 3, and to overrule the challenges to the ballots of employees Wanda Board, Dwayne Edward Franklin, Crystal D. Gajitka, Julie Lynne Krynicki, and Laura Lynne Smith. It directed the Regional Director to open and count the overruled ballots, and to prepare and serve on the parties a revised tally of ballots and the appropriate certification. The tally of ballots for the election held December 19, 2003 showed 75 for and 70 against the Petitioner, with seven challenged ballots, a number sufficient to affect the results of the election.
Chairman Battista and Member Schaumber held, contrary to the hearing officer, that Evelyn Fullerton and Cheryl Guzzo are supervisors within the meaning of Section 2(11) of the Act and, accordingly, sustained the challenges to their ballots. The two employees are "assistant supervisors" in the Employer's housekeeping department. Member Walsh disagreed with the majority's finding that the Employer has met its burden of proving that Fullerton and Guzzo exercise independent judgment in effectively recommending employee discipline. He would adopt the hearing officer's finding and overrule the challenges to their ballots.
(Chairman Battista and Members Schaumber and Walsh participated.)
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Overnite Transportation Co. (26-CA-19037, et al.; 343 NLRB No. 134) Memphis, TN Dec. 16, 2004.
The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to respond to Teamsters Local 667's information request. It affirmed the judge's finding that the Respondent did not violate Section 8(a)(3) and (1) by allegedly terminating employees Walter Jones and Terry Holcomb for engaging in protected concerted activity.
Chairman Battista and Member Liebman disagreed with the judge that the Respondent violated Section 8(a)(3) and (1) by suspending and then discharging seven employees in February 1999. Dissenting in part, Member Walsh held that the Respondent failed to prove it would have imposed the discharges in the absence of the employees' union activity. Accordingly, he found that the Respondent violated Section 8(a)(3) and (1) when it suspended and discharged six employees because of their union activities and when it discharged a seventh employee to mask its reason for discharging the other six.
A different majority (Members Liebman and Walsh) agreed with the judge that the Respondent violated Section 8(a)(3) and (1) by twice disciplining employee Sam Powell, suspending him, and discharging him because of his protected concerted union activity. Chairman Battista disagreed, contending that the Respondent adequately demonstrated that it decided to twice discipline, suspend, and then to terminate Powell for legitimate reasons (i.e. because he engaged in misconduct), rather than for discriminatory reasons.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Teamsters Local 667; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Memphis on various days in June, July, and Nov. 2000 and March 2001. Adm. Law Judge Leonard M. Wagman issued his decision July 17, 2002.
Promedica Health Systems, Inc, et al. (8-CA-31818, 32345, 8-RC-16175, 16176; 343 NLRB No. 131) Toledo, OH Dec. 16, 2004.
The administrative law judge found, and Members Liebman and Walsh agreed, that the Respondents violated Section 8(a)(3) of the Act by issuing coachings (performance counseling) to employees Dea Lyn Keckler, Robert Hasenfratz, Christine Gallagher, Billie Smith, and Cynthia Miller, directed at the union activity. They also adopted the judge's findings that the Respondents violated Section 8(a)(1) by creating the impression of surveillance of Robert Hasenfratz' union activities, and by telling the PTs (preanalytical technicians in the clinical laboratory) that a previously promised wage increase was placed on hold because the Auto Workers had filed an election petition.
The Union filed four separate representation petitions for the units composed of: skilled maintenance, nursing, technical, and support services. The tally of ballots showed that a majority of ballots were against the Union in all of the units. Objections considered in this case pertain to the elections held in the technical and support service units. The judge asserted that the announced withholding of the PT wage increase constituted objectionable conduct and set aside the election in both the support services unit, in which the PTs were included, and the technical unit. Members Liebman and Walsh agreed with the judge to set aside the election in the support services unit and directed that a second election be conducted in Case 8-RC-16176. However, contrary to the judge, they found no basis to set aside the election in the technical unit and certified the results of the election in Case 8-RC-16175.
Chairman Battista, contrary to the judge and his colleagues, would not find that the Respondent violated Section 8(a)(1) by creating the impression of surveillance, or by making statements regarding the withholding of wage increase for the PTs. He found that the statements themselves reflected current law and wrote: "Once the election matter was resolved, the Respondents would be free to unilaterally grant the increase if the Union lost, and the Respondents would be obligated to bargain about the matter if the Union won. The Respondents told employees the truth. That is neither unlawful nor objectionable."
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Auto Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Toledo on various dates in Oct. and Dec. 2001, and Jan. 2002. Adm. Law Judge Earl E. Shamwell, Jr. issued his decision May 6, 2003.
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Publix Super Markets, Inc. (13-RC-20891, et al.; 343 NLRB No. 109) Deerfield Beach, FL Dec. 16, 2004.
Reversing the Regional Director's unit determination, the Board found that the smallest appropriate unit is a plant-wide production and maintenance unit including all employees working out of the satellite buildings but excluding truckdrivers. It remanded the case to the Regional Director for further appropriate action.
In her decision and direction of election, the Regional Director directed an election in two units: a fluid processing unit and a "Dallas/non-Dallas" or distribution unit. The Board found, contrary to the Regional Director, that there was insufficient evidence to warrant finding that a separate fluid processing unit is appropriate apart from the other production and maintenance employees.
(Chairman Battista and Members Schaumber and Walsh participated.)
***
Robert Orr/Sysco Food Services, LLC (26-CA-20384, et al.; 343 NLRB No. 123) Nashville, TN Dec. 16, 2004.
Members Liebman and Walsh adopted the administrative law judge's finding that the Respondent committed numerous violations of Section 8(a)(1), (3), and (4) of the Act in the period before, during, and after a rerun representation campaign. Among others, they affirmed the judge's finding that the Respondent violated Section 8(a)(3) and (1) by discharging employees Tommy Thomas, James Garza, and Chris Shouse, and by issuing a warning to and discharging employee James Utley. Contrary to Chairman Battista, the majority, in agreement with the judge, held that Ben Kelley and Greg Jaster were discharged because of their union activities and not because they engaged in workplace violence.
Dissenting in part, Chairman Battista asserted that Kelley and Jaster were discharged for violating the Respondent's "zero tolerance" policy concerning hostile physical conduct and that the discharges did not violate Section 8(a)(3). In his view the decisive factor in the decision to discharge was that there was physical touching in the course of an argument between the two men. He wrote: "[T]he prevention of violence in the workplace is a legitimate and serious concern, and an employer should be free to establish what constitutes impermissible violent behavior. The Board should not, as here, substitute its judgment for that of the employer."
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Teamsters Local 480; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Nashville on 7 days in Aug. and Sept. 2002. Adm. Law Judge Jane Vandeventer issued her decision May 9, 2003.
***
Tyson Fresh Meats, Inc. (19-RD-3576; 343 NLRB No. 129) Wallula, WA Dec. 16, 2004.
Contrary to the hearing officer, the Board sustained the Employer's Objections 1 and 5, set aside the election of April 8 and 9, 2004, and directed a second election. The tally of ballots showed 708 votes for and 657 against, General Teamsters Local 556, with 5 challenged ballots, an insufficient number to affect the results of the election.
Objection 1 alleged that the Union, through its agents and adherents, improperly communicated and campaigned to employees who were waiting in line to vote and to employees who were entering the polling place and Objection 5 alleged that the Union engaged in electioneering in the voting area that was intended to intimidate employees into voting for the Union.
In overruling Objections 1 and 5, the hearing officer found that the union stewards were not union agents because they had neither actual nor apparent authority to act on behalf of the Union and, pursuant to Milchem, Inc., 170 NLRB 362 (1968), found that the stewards did not violate the rule which applies only to party misconduct. The Board noted that the hearing officer inadvertently applied the wrong standard for determining objectionable electioneering by a third-party, and concluded that the electioneering by the stewards was not so "aggravated" as to have "create[d] a general atmosphere of fear and reprisal rendering a fair election impossible."
(Chairman Battista and Members Schaumber and Walsh participated.)
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01/03/2005
by Ross Runkel at LawMemo
NLRB Law Memo 01/03/2005
by LawMemo.Com
- First in Employment Law
Argix Direct, Inc. (22-RC-12480; 343 NLRB No. 108) Ridgefield, NJ Dec. 16, 2004.
The Board concluded, contrary to the Regional Director, that the Employer's truckdrivers (owner-operators) at its Ridgefield, NJ facility, are independent contractors rather than employees within the meaning of Section 2(3) of the Act. Among factors cited by the Board in making this finding, it noted the owner-operators personally own or lease their trucks and are responsible for the trucks' maintenance, repairs, and insurance. Accordingly, the Board reversed the Regional Director's Decision and Direction of Election and dismissed the petition.
To determine whether individuals are statutory employees or independent contractors, the Board applies the common law agency test and considers all the incidents of the individual's relationship with the employing entity. See Roadway Package System, 326 NLRB 842, 850 (1998); Dial-A-Mattress Operating Corp., 326 NLRB 884, 892 (1998); Slay Transportation Co., 331 NLRB 1292, 1293 (2000). The Board also considered the multifactor analysis set forth in Restatement (Second) of Agency, Sec. 220. After consideration of all the relevant factors, the Board determined that the facts weigh more strongly in favor of independent contractor status.
(Chairman Battista and Members Schaumber and Walsh participated.)
***
Bricklayers (Cretex Construction Services, Inc.) (13-CD-720; 343 NLRB No. 110) Chicago, IL Dec. 16, 2004.
Relying on the factors of collective-bargaining agreements, employer preference, employer past practice, and economy and efficiency of operations, the Board determined that Cretex Construction Services, Inc.'s employees represented by the Bricklayers are entitled to perform the precast concrete erection work for an elevated parking structure and dedicated busway route at Midway Airport in Chicago, Illinois.
(Chairman Battista and Members Schaumber and Walsh participated.)
***
Sprint Communications d/b/a Central Telephone Co. of Texas (16-CA-21792-2, 21858; 343 NLRB No. 99) San Antonio, TX Dec. 13, 2004.
Affirming the administrative law judge, Chairman Battista and Member Schaumber dismissed the complaint alleging that the Respondent violated Section 8(a)(5) of the Act by failing to furnish "Personnel Action Forms" prepared in connection with the discharges of four union officers/employees and (2) by instituting a change in the method of holding third-step grievance meetings such that the Respondent's employee relations specialist might participate via conference call, in addition to the physical presence of another management representative. Member Walsh dissented in part.
The judge found, and the majority agreed, that: (1) the "Personnel Action Forms" were not within the scope of information requested by Communications Workers Local 6174, and (2) the change concerning the physical presence of the employee relations specialist third step meetings was not "material, substantial or significant" so as to create a duty to bargain."
Dissenting in part, Member Walsh disagreed with the majority's finding that the Respondent did not violate Section 8(a)(5) by failing to produce notes recording statements made by employees during interviews conducted as part of the Respondent's factual investigation into alleged misconduct of four union officers/employees. He wrote: "In holding these notes to be protected work product, my colleagues disregard the universally followed principle that documents prepared in the 'ordinary course of business' or for 'other non-litigation purposes' are not protected work product. They thereby extend the work product doctrine beyond its intended scope and unjustifiably impair the ability of unions to protect their members' contractual and statutory rights."
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by Communications Workers Local 6174; complaint alleged violation of Section 8(a)(5). Hearing at San Antonio on Nov. 7, 2002. Adm. Law Judge Keltner W. Locke issued his decision Dec. 9, 2002.
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Detroit Newspaper Agency, d/b/a Detroit Newspapers (7-CA-38079, et al.; 343 NLRB No. 113) Detroit, MI Dec. 16, 2004.
The Board granted the Charging Parties' and the General Counsel's motions for reconsideration of the Board's earlier Decision reported at 342 NLRB No. 24. The parties contended that the Board erred in focusing on whether the discriminatees were permanently replaced before or after the Unions' unconditional offer to return, and not on whether they were lawfully permanently replaced before they were discharged and, therefore, the Board inaccurately treated the discriminates as economic strikers rather than as unlawfully discharged strikers. In agreement with the Charging Parties' and the General Counsel's contentions that the Board inadvertently made a material error with respect to the appropriate remedy and order for the unfair labor practices found, the Board amended its decision accordingly.
In the prior Decision, the Board found, in relevant part, that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging a number of economic strikers, either without a good faith belief that they had committed strike misconduct or where the strikers had not in fact committed the acts relied upon for the discharges.
(Members Liebman, Schaumber, and Walsh participated.)
***
Harborside Healthcare, Inc. (8-CA-30592; 343 NLRB No. 100) Beachwood, OH Dec. 8, 2004.
The Board, in a 3-2 decision, reaffirmed long-standing Board precedent that pro-union supervisory conduct may be grounds for setting aside an election without there being an explicit threat of reprisal or promise of benefit. The majority was comprised of Chairman Robert J. Battista and Members Peter C. Schaumber and Ronald Meisburg. The dissenters were Members Wilma B. Liebman and Dennis P. Walsh.
The decision responded to a remand from the U.S. Court of Appeals for the Sixth Circuit in Harborside Healthcare Inc. v. NLRB, 230 F.3d 206 (2000). The appellate court decision criticized the Board for finding pro-union supervisory conduct non-objectionable using a legal standard that deviated from earlier standing Board precedent. The standard applied appeared to require an explicit threat of reprisal or promise of benefit for such conduct to be objectionable. In its decision on remand, the Board disavowed that standard as "represent[ing] a departure from established precedent" and the language of relatively recent Board cases that seemed to apply it. The Board then reaffirmed its established standard restating it to include the elements of the inquiry to be conducted in applying it. The restated two-part standard states:
I. Whether the supervisor's pro-union conduct reasonably tended to coerce or interfere with the employees' exercise of free choice in the election. This inquiry includes: (a) consideration of the nature and degree of supervisory authority possessed by those who engage in the pro-union conduct; and (b) an examination of the nature, extent, and context of the conduct in question.
II. Whether the conduct interfered with freedom of choice to the extent that it materially affected the outcome of the election, based on factors such as (a) the margin of victory in the election; (b) whether the conduct at issue was widespread or isolated; (c) the timing of the conduct; (d) the extent to which the conduct became known; and (e) the lingering effect of the conduct.
In determining whether the supervisory conduct affected the election outcome, the majority stated that it would consider, among other things, whether the employer opposed the union's campaign, including any anti-union statements by higher-level officials and whether the employer disavowed the pro-union supervisory conduct.
After emphasizing that it is incumbent on the Board to protect employees from the conduct of supervisors, whether pro-union or anti-union, which interferes with employees' freedom of choice, the Board modified prior Board law involving the supervisory solicitation of union authorization cards. In lieu of the then-existing rule that such solicitation is not objectionable unless it "contains the seeds of potential reprisal, punishment or intimidation," the Board adopted a rule that supervisory solicitation of union authorization cards is inherently coercive absent mitigating circumstances. The Board reasoned that a supervisor, by definition, has the power to affect the working life of employees, and the solicitation of cards affords the supervisor the opportunity to obtain a graphic illustration of who is pro-union and, by the process of eliminating non-signers, who likely is not. Therefore, employees solicited by a supervisor
would reasonably be concerned that the "right" response will be viewed with favor, and a "wrong" response with disfavor.
In dissent, Members Liebman and Walsh criticized the majority for reaching far beyond the issue raised by the Sixth Circuit's remand--whether actual threats or promises are required to find supervisory taint. In their view, the majority abandoned well-established precedent and declared a "restatement of the law governing pro-union conduct of supervisors" not sought by the court or the parties.
The dissent gave several reasons why the "new legal test" is problematic. First, it "minimizes the importance of . . . the employer's anti-union stance, which the Board has long recognized as limiting the impact of a pro-union supervisor's conduct":
In that context, a pro-union supervisor acts against his employer's direct orders, and always at the risk of lawful discharge. In most workplaces, employees have little to fear from such a supervisor: they need simply bring his actions to the attention of another manager.
The dissent described the majority's failure to recognize the centrality of that factor as "not evenhanded" but "arbitrary."
Second, the dissent strongly opposed the majority's restating of the law to treat as coercive pro-union supervisory conduct that the Board has previously recognized as legitimate. The dissent warned that the majority's ruling that supervisory card solicitation is inherently coercive "jeopardizes the outcome of many elections" because such solicitation tends to be by borderline supervisors, who may be unaware of their supervisory status until their conduct is challenged:
To avoid creating a basis for setting aside an election, unions must now avoid using any person who might later be found to be a statutory supervisor to solicit authorization cards . . . . If unions err on the side of caution, the number of potential card solicitors will be reduced significantly, excluding many people who might be natural leaders . . . . If, on the other hand, unions guess wrong, the results of many elections will be subject to challenge. Either way, employees who want union representation lose.
(Full Board participated.)
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Midnight Rose Hotel & Casino, Inc. (27-CA-17885-1; 343 NLRB No. 107) Cripple Creek, CO Dec. 16, 2004.
Members Liebman and Walsh adopted the recommendations of the administrative law judge and held that the Respondent violated Section 8(a)(1) of the Act by interrogating employees about their union activities, sympathies, and desires and about the union activities, sympathies and desires of other employees, soliciting an employee to spy on the union activities of employee Maureen Ostler and to inform Respondent of his findings, and threatening employees with loss of jobs for seeking representation by Teamsters Local 537. The majority also found that the Respondent violated Section 8(a)(3) and (1) when it discharged employee Ostler. Member Schaumber dissented.
The majority noted that the issue before the Board is whether the judge correctly found that the Respondent discharged union activist Ostler in violation of Section 8(a)(3) and (1) because of her union organizing activities, rather than because of what the Respondent asserted was theft by Ostler stemming from her repeated clocking in as a bartender when she was in fact working as a cocktail waitress (which has a lower base wage rate than a bartender).
Member Schaumber wrote that that the record does not support the conclusion that the Respondent engaged in disparate treatment when it terminated Ostler. He contended that the evidence supports the Respondent's reasonable belief that Ostler was engaged in misconduct and that the Respondent acted on that belief, that the Respondent conducted an adequate investigation, and that the Respondent did not engage in disparate treatment by terminating Ostler for theft. In his view, the Respondent established by a preponderance of the evidence that it would have terminated Ostler for theft even in the absence of her protected concerted activity and that the decision to discharge Ostler was lawful.
(Members Liebman, Schaumber, and Walsh participated.)
Charge filed by Teamsters Local 537; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Denver on June 18-19, 2002. Adm. Law Judge James M. Kennedy issued his decision Dec. 16, 2002.
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OPW Fueling Components (9-CA-40071; 343 NLRB No. 111) Butler County, OH Dec. 16, 2004.
Affirming the administrative law judge, the Board held that the Respondent violated Section 8(a)(3) of the Act by suspending Logan Cox on October 28, 2002, and by discharging him on November 8, 2002. Chairman Battista and Member Walsh found that the Respondent violated Section 8(a)(1) by threatening employees that if they continued to file charges with the NLRB, the Respondent would not bring work back into the plant. Dissenting in part, Member Schaumber wrote that he would not adopt the judge's finding that the Respondent violated Section 8(a)(1) by the alleged threatening statement. Instead, he would dismiss or remand the issue for reconsideration and issuance of a supplemental decision.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Logan Cox, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Cincinnati on Sept. 9, 2003. Adm. Law Judge John T. Clark issued his decision June 10, 2004.
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RC Aluminum Industries, Inc., and RC Erectors, Inc. (12-CA-21207, 21453; 343 NLRB No. 103) Dade County, FL Dec. 8, 2004.
The Board agreed with the administrative law judge's conclusion that the Respondent violated the Act on several occasions following a Board election of June 21, 2000, by discharging union supporter Alba Huembes in violation of Section 8(a)(3) of the Act, unlawfully transferring union supporter Pedro Nunez to more onerous work, but it clarified the judge's make-whole-remedy, and threatening Nunez with unspecified reprisals in violation of Section 8(a)(1).
Concurring in part and dissenting in part, Chairman Battista would find, contrary to his colleagues, that the General Counsel has failed to prove, by a preponderance of the evidence, that the Respondent discharged Huembes. He wrote: "Neither party disputes that Huembes' employment ended on November 16, as the checks state. What is in dispute is whether the termination was voluntary or not. The presence of the handwritten word 'termination' does little to answer this question. In sum, the check fails to establish that Huembes was involuntary terminated."
(Chairman Battista and Members Liebman and Meisburg participated.)
Charges filed by Iron Workers Local 272; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Miami, Nov. 26-28, 2001. Adm. Law Judge George Carson II issued his decision May 14, 2002.
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Schwickert's of Rochester, Inc. and Schwickert, Inc. (18-CA-16899, et al.; 343 NLRB No. 114) Rochester, MN Dec. 16, 2004.
The Board adopted the recommendations of the administrative law judge and held that the Respondents violated Section 8(a)(5) of the Act by withdrawing from multiemployer bargaining; by withdrawing recognition from Roofers Local 96 and refusing to bargain with it; and by unilaterally implementing changes in terms and conditions of employment; and violated Section 8(a)(3) by constructively discharging five employees.
Members Liebman and Walsh also adopted the judge's finding that by Respondents violated Section 8(a)(1) by telling employees that they would no longer be represented by the Union and by providing employees with union resignation forms and envelopes in which to mail them. Chairman Battista disagreed with his colleagues on this issue. In his view, the Respondents' June 19, 2003 speech at which the employees were told that the Respondents had repudiated its bargaining relationship with the Union was lawful. Chairman Battista wrote: "Although the Board (and I) are today finding that this withdrawal of recognition was unlawful, this does not gainsay the point that the Respondents were reciting a true fact to their employees."
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Roofers Local 96; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Minneapolis on Feb. 4 and 5, 2004. Adm. Law Judge Mark D. Rubin issued his decision May 25, 2004.
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