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02/25/2005
by Ross Runkel at LawMemo
NLRB Law Memo 02/25/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 4 decisions.
NLRB General Counsel Advice Memos - 4 cases.
Big Sky Locators, Inc. (28-CA-17698; 344 NLRB No. 15) Las Vegas, NV, Feb. 14, 2005.
In affirming the administrative law judge's findings, the Board held that the Respondent violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from Electrical Workers IBEW Local 396 as the recognized collective-bargaining representative of the Respondent's employees in the appropriate unit; failing to continue in effect terms and conditions of employment as set forth in the parties' collective-bargaining agreement; failing to make Line Construction Benefit Fund health insurance premium payments and thereby failing to continue in effect employees' coverage; and unilaterally placing into effect an alternative health care plan and imposing premium costs on employees.
The Board modified the order and notice to conform with the judge's findings and to require the Respondent to make available all records necessary to reimburse employees for unremitted dues and to add standard language regarding conditional notice mailing.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Electrical Workers IBEW Local 396; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Las Vegas, June 11 and 12, 2002. Adm. Law Judge Gerald A. Wacknov issued his decision Aug. 27, 2002.
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Center for the Disabled (3-RC-11255; 344 NLRB No. 21) Albany, NY Feb. 16, 2005.
The Board adopted the hearing officer's conclusion that the Employer established a valid business justification with respect to both the grant of the wage increases and the timing of their announcement and, overruled the Petitioner's (Needletrades Employees) Objection 1, and certified the results of the rerun mail ballot election conducted from May 13 through 28, 2004. In the absence of exceptions, it also adopted the hearing officer's recommendation that the Petitioner's Objection 3 be overruled. The tally of ballots showed 285 for and 381 against, the Petitioner, with 83 challenged ballots, an insufficient number to affect the results of the election.
Objection 1 alleged that the Employer, by announcing and then partially granting a "Twelve Month 10% Pay Plan for Center Staff" during the critical period between the first and second elections, engaged in objectionable conduct. The Petitioner argued that while the "presence of a legitimate business justification may be a viable defense to a ยง 8(a)(1) allegation, it does not allow the employer to escape responsibility here in an unconsolidated representation case."
Contrary to the Petitioner's argument, the Board cited Sun Mart Foods, 342 NLRB No. 22, slip op. at 2 (2004), also an "unconsolidated representation case" which in pertinent part reads:
The Board will infer that an announcement or grant of benefits during the critical period is objectionable; however, the employer may rebut the inference by establishing an explanation other than the pending election for the timing of the announcement or the bestowal of the benefit. Star, Inc., 337 NLRB 962, 963 (2002). The employer may rebut the inference by showing that there was a legitimate business reason for the timing of the announcement or for the grant of the benefit.
While Member Schaumber dissented in Sun Mart Foods, he did not do so here because the hearing officer considered the employer's business justification defense. In Sun Mart Foods, the Board majority found that although the employer presented a legitimate business justification for its preelection decision to grant employees a benefit by remodeling the grocery where they worked, it failed to establish such a defense with respect to the timing of the announcement just 2 days before the election, thereby interfering with the election.
(Chairman Battista and Members Liebman and Schaumber participated.)
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Electric By Miller, Inc. (17-CA-22667; 344 NLRB No. 20) Grove, OK, Feb. 16, 2005.
The Board adopted the recommendations of the administrative law judge and found that the Respondent violated Section 8(a)(1) of the Act by threatening its employees with closure of the business if they selected Electrical Workers IBEW Local 584 as their collective-bargaining representative and falsely announcing closure of the business in order to effectuate the discharge of a prounion employee, and violated Section 8(a)(1) and (3) by discharging John R. Carter because of his union activities.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Electrical Workers IBEW Local 584; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Miami, OK on Sept. 14, 2004. Adm. Law Judge George Carson II issued his decision Nov. 3, 2004.
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International Transportation Service, Inc. (21-CA-34968; 344 NLRB No. 22) Long Beach, CA Feb. 18, 2005.
In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(1) of the Act by informing an employee that she was being discharged because she engaged in union and protected concerted activity, specifically picket line activity on behalf of Longshoremen Local 63 , and violated Section 8(a)(1) and (3) by terminating employee Deanna Tartaglia because she engaged in union and protected concerted activity, specifically picket line activity on behalf of the Union.
Chairman Battista and Member Schaumber noted that the judge relied on the Board's decision in Teamsters Local 115 (Vila-Barr Co.), 157 NLRB 588 (1966), in finding that the picket line activity was protected. While they do not pass on the correctness of the Vila-Barr decision, and in the absence of a three-member Board majority to overrule Vila-Barr, Chairman Battista and Member Schaumber applied that precedent and joined their colleague in affirming the judge's finding that the picketing was protected.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Longshoremen Local 63; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, June 5-6, 2003. Adm. Law Judge Gregory Z. Meyerson issued his decision Sept. 10, 2003.
NLRB General Counsel Advice Memos - 4 cases.
UNITE HERE Local 2 (San Francisco Hotels Multi-Employer Group) (20-CB-12268) January 25, 2005
Two separate Union locals were engaged in collective bargaining with two separate multiemployer groups of hotels in San Francisco and Los Angeles. Each local insisted on a two-year agreement. Previous agreements had been five or six years. By getting two-year agreements, the expiration of the agreements would coincide with expirations of agreements in other major cities such as New York, Chicago, Boston, Honolulu, and Toronto. The question was whether the Unions were unlawfully attempting to broaden the scope of their separate bargaining units and merge them into a single national bargaining unit. The General Counsel concluded that the local unions acted lawfully because "each local's demand has a direct impact on terms and conditions of employment affecting the unit employees it represents, and neither local has conditioned reaching agreement on resolution of any matter outside its bargaining unit." [Editor's Note: Additional comments on this case in the new LawMemo Employment Law Blog.]
Armstrong Air Conditioning, Inc. (8-CA-34846) January 21, 2005
The General Counsel concluded that the Employer did not violate Section 8(a)(5) by refusing to provide the Union with bargaining notes that the Union asserts are relevant to pending or potential grievances and pending arbitrations. The Union failed to show that the bargaining notes were relevant. As to one grievance that the Union had already moved to arbitration, the notes would not be relevant to deciding whether to file a grievance, whether to go to arbitration, or what position to take. "Once arbitration has been initiated . . . a party may not utilize the duty to supply information as a mechanism for arbitral discovery." Also, the Employer reasonably contended that its notes were confidential because they contained its bargaining strategy. As to other potential grievances, the Union failed to show that the notes had any application.
IBEW Local 6 (Signal Solutions) (20-CD-736) January 19, 2005
The Union threatened an Employer with picketing. The question was whether there was reasonable cause to believe this violated Section 8(b)(4)(D) because the Union's objective was jurisdictional rather than for area standards. The General Counsel concluded that there was not cause to believe that the objective was jurisdictional. The Union never demanded, expressly or impliedly, that work be assigned to its members. Although the Union's investigation of area standards was "insubstantial," that did not establish the forbidden objective.
Pacific Maritime Association (21-CA-36465) January 25, 2005
The General Counsel concluded that the collectively bargained system for hiring 3,000 longshoremen was not discriminatory in favor of union membership. Applicants were ultimately hired through a lottery system open to the general public; that system gave a preference to applicants referred by certain employees a majority of whom were union members but a significant number of whom were non-union employees, foremen and the Employers.
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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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