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03/24/2005
by Ross Runkel at LawMemo
NLRB Law Memo 03/24/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 4 decisions.
KSL DC Management, LLC d/b/a Hotel Del Coronado (21-CA-36119, 36195; 344 NLRB No. 35) Coronado, CA March 7, 2005.
The Board granted the General Counsel's motion to strike the Respondent's exceptions document and granted its request for an extension of time to file an answering brief.
The Respondent filed 439 exceptions in a 131-page document and a separate brief of 49-1/2 pages in length. The vast majority of the exceptions contain arguments, i.e., the reasoning or facts that assertedly establish the exceptions. Section 102.46(b)(1) of the Board's Rules and Regulations states that each exception must contain certain information, including a concise statement of the grounds for the exception. That section of the Rules also notes that when a separate brief is filed, as the Respondent has done, the exceptions "shall not contain any argument . . . in support of the exceptions." Such argument is to be confined to the brief, which pursuant to Section 102.46(j) of the Rules shall not exceed 50 pages or other limit set by the Board. The Respondent's arguments in its exceptions, when combined with the 49-1/2 pages of brief, far exceed the 50-page limit.
As the Board's general policy is to provide the filing party an opportunity to resubmit the noncompliant documents in a form that comports with the Board's Rules, the parties were advised that should the Respondent desire to resubmit its exceptions and a brief in support that comply with the Board's Rules, such resubmission is due in Washington, DC by close of business March 17, 2005 and any answering brief to the resubmitted brief will be due March 31, 2005. It was noted that no extensions will be granted for the resubmissions.
(Chairman Battista and Members Liebman and Schaumber participated.)
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Hubert Distributors, Inc. (7-CA-31719(6); 344 NLRB No. 29) Detroit, MI March 7, 2005.
The Board ordered that the Respondent pay the 338 individuals named in the Appendix the backpay and other reimbursable sums as shown in the Appendix, subject to the final, quarter-by-quarter calculation of interest, including the portion of the Respondent's voluntary payment attributable to interest.
The Respondent's obligation stems from a 1996 Board decision and order (322 NLRB 470, enfd. 145 F.3d 834 (6th Cir. 1998)). In November 2000, the Respondent made a "voluntary payment" directly to certain warehouse employees in the amount of $423,922.28, as an offset to accrued backpay. The Regional Director apportioned the payment "into principal and interest that would have been due at the time the payment was made." The Regional Director then estimated the portion of the interim payment attributable to interest by applying to each quarterly backpay amount the interest rate from the fourth quarter of 1994, the "medium quarter" between the second quarter of 1991, and the second quarter of 1998.
The administrative law judge accepted the Regional Director's determinations and directed the Respondent to "pay the individuals named in the Appendix the indicated amounts of total gross backpay and other reimbursable sums for the period from April 15, 1991 to, June 30, 1998, with interest." The Respondent contended that its entire interim payment should be treated as principal and that, even assuming the payment should be apportioned between principal and interest, the "median quarter" methodology is inconsistent with the Board's case law.
The Board found that the judge correctly treated the payment as part principle and part interest because applying the entire interim payment to principal would ignore that interest had already accrued during the 9-year period before the payment was made and that the discriminates are entitled to the interest. It decided that the judge properly allowed for interest to be calculated, on the whole, on a quarter-by-quarter basis.
The Board clarified that the judge's recommended order imposes a requirement on the Regional Director to calculate the final amounts of backpay, other reimbursable amounts, and interest due the employees listed in the compliance specification, including the interest portion of the Respondent's voluntary payment, on a quarter-by-quarter basis, as required by the Board's case law. It adopted the judge's decision and recommended order subject to any alterations in the backpay amounts attributable to the final calculation.
(Chairman Battista and Members Liebman and Schaumber participated.)
Hearing at Detroit, June 17-20 and July 22-23, 2003. Adm. Law Judge Ira Sandron issued his supplemental decision Dec. 16, 2003.
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Seaport Printing & Ad Specialties Inc. d/b/a Port Printing Ad and Specialties (15-CA-17300; 344 NLRB No. 34) Lake Charles, LA March 7, 2005.
In affirming the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by notifying Graphic Communications Workers Local 260 on December 19, 2003, that it wished to terminate the collective-bargaining agreement and that it was not interested in negotiating a new agreement; refusing as requested by the Union verbally on or about December 24, 2003, and by letter on January 13, 2004, to bargain with the Union, exclusive representative of unit employees; and refusing since December 19, 2003, and continuing thereafter, to recognize and bargain with the Union.
The judge relied on Levitz Furniture Co. of the Pacific, 333 NLRB 717, 725 (2001), in determining that the Respondent unlawfully withdrew recognition from the Union. Chairman Battista and Member Schaumber noted that, although the judge correctly applied the "actual loss of majority" standard established in Levitz, they did not participate in Levitz and express no view as to whether it was correctly decided. Chairman Battista further found that the same result would be obtained in this case under the pre-Levitz standard of whether the Respondent harbored "good faith uncertainty" as to the Union's majority status.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Graphic Communications Workers Local 260; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Lake Charles on July 12, 2004. Adm. Law Judge John H. West issued his decision Aug. 26, 2004.
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Staten Island Cable LLC d/b/a Time Warner Cable of New York City and Electrical Workers IBEW Local 3 (29-CE-118; 344 NLRB No. 36) Staten Island, NY March 8, 2005.
In agreement with the administrative law judge, the Board found that the Respondents violated Section 8(e) of the Act by entering into a collective bargaining agreement that included a union signatory clause, and by reaffirming and giving effect to that provision.
The judge's recommended order required, among others, the Respondent Employer to resume the subcontracting of work to Advantage Cable, and would also require the Respondents to inform Advantage Cable that they have no objection to such subcontracting. However, the Board concluded that to order Respondent Employer to resume the subcontracting of work to Advantage is inappropriate. They wrote: "The Act requires only that Respondent Time Warner not refuse, pursuant to an agreement with Respondent Local 3, to subcontract to Advantage Cable because Advantage is not signatory to a contract with Local 3. Insofar as the Act is concerned, Respondent Time Warner is free, based on other considerations, to resume that subcontract or not." Accordingly, the Board modified the judge's recommended order to conform with the Act's requirement.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by D.M. & M. Cable Services, Inc., d/b/a Advantage Cable; complaint alleged violation of Section 8(e). Hearing at Brooklyn on May 28, 2003. Adm. Law Judge Eleanor MacDonald issued her decision Sept. 17, 2003.
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03/16/2005
by Ross Runkel at LawMemo
NLRB Law Memo 03/16/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 3 decisions.
A & A Insulation Services, Inc. (22-CA-24669; 344 NLRB No. 27) Hazlet, NJ Feb. 28, 2005.
The Board granted the General Counsel's motion for summary judgment with respect to all issues except those relating to the use of Camilo Guzman as a replacement employee for discriminatee Ken Johnson and the inclusion of Guzman's earnings from January 5, 2002 to February 9, 2002 in Johnson's proposed reimbursement. It concluded that the amounts due discriminatees James Cunningham and Keith Wagner are as stated in the compliance specification, and ordered the Respondent to pay the amounts, plus interest accrued to the date of payment. The Board ordered a hearing limited to the issues relating to the use of Guzman as a replacement employee in the calculation of the backpay due to discriminatee Johnson.
In an unpublished order dated November 4, 2002, the Board directed the Respondent to make whole discriminatees Cunningham, Johnson, and Wagner for any loss of earnings and other benefits suffered as a result of the Respondent's discrimination against them. On April 30, 2003, the U.S. Court of Appeals for the Third Circuit entered an unpublished judgment enforcing the Board's order.
A controversy having arisen over the amount of backpay due the discriminatees under the Board's order, the Regional Director issued a compliance specification and notice of hearing identifying the amounts of backpay due. The Board found that the Respondent's answer is sufficiently specific under the Board's Rules and Regulations to warrant a hearing on the appropriateness of the use of Guzman as a replacement employee for Johnson in the calculation of backpay due Johnson and denied the General Counsel's motion for summary with respect to those issues. It deemed the other allegations in the compliance specification to be admitted as true and granted summary judgment as to them because the Respondent failed to deny the allegations in the manner prescribed in Section 102.56(b), or to explain its failure to do so.
(Chairman Battista and Members Liebman and Schaumber participated.)
General Counsel filed motion for summary judgment Nov. 5, 2004.
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Bliss Clearing Niagara, Inc. (7-CA-46528, et al.; 344 NLRB No. 26) Hastings, MI Feb. 28, 2005.
In affirming the administrative law judge's findings, the Board held that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging employees Mike Shapley and Duane Schantz because they participated in protected union activities; violated Section 8(a)(1) by threatening, verbally harassing, and interrogating its employees, and by creating an impression of surveillance of its employees; and violated Section 8(a)(1) and (4) by depriving employees Larry Moran of the opportunity to work an additional shift due to his participation in proceedings before the National Labor Relations Board.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by the Machinists International and William L. Moran, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Grand Rapids, June 2-4, and July 26-28, 2004. Adm. Law Judge Paul Buxbaum issued his decision Nov. 5, 2004.
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Clarian Health Partners, Inc. (25-RC-10225; 344 NLRB No. 28) Indianapolis, IN Feb. 28, 2005.
After consideration of the Employer's request for review of the Regional Director's Decision and Direction of Election, the Board reversed the Regional Director's unit determination and remanded this case for further proceedings.
The Regional Director found appropriate the petitioned-for multifacility unit of skilled maintenance employees at the Employer's Indiana University Hospital (IU) and James Whitcomb Riley Hospital for Children (Riley). The Employer contended that the appropriate unit should also include skilled maintenance employees at its Methodist Hospital (Methodist) and four satellite facilities.
In determining whether a petitioned-for multifacility unit is appropriate, the Board evaluates the following factors: employees' skills and duties; terms and conditions of employment; employee interchange; functional integration; geographic proximity; centralized control of management and supervision; and bargaining history. Laboratory Corp. of America Holdings, 341 NLRB No. 140 (2004); Bashas', Inc., 337 NLRB 710 (2002).
Evaluating the above factors, the Board found, contrary to the Regional Director, that the petitioned-for unit which includes employees only at IU and Riley, but not at Methodist, is not an appropriate unit for bargaining. It found that there is evidence of contact and interchange among employees at all three hospitals. The Board found that the skilled maintenance employees at IU and Riley do not share a community of interest distinct from that shared with skilled maintenance employees at Methodist; and that the employees at Methodist do not share a community of interest among themselves distinct from that they share with employees at IU and Riley. Accordingly, the Board deemed the petitioned-for unit inappropriate. As the Petitioner has not taken a clear position in regard to its willingness to proceed to an election in a unit different than the one found appropriate by the Regional Director, the case was remanded to the Regional Director for further appropriate action.
(Chairman Battista and Members Liebman and Schaumber participated.)
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03/04/2005
by Ross Runkel at LawMemo
NLRB Law Memo 03/04/2005
by LawMemo.Com - First in Employment Law
NLRB Adopts Alternative Procedure In Representation Election Cases.
Press release: http://www.lawmemo.com/nlrb/r2555.htm
Effective March 1, the NLRB has a new (and third) voluntary method for conducting representation elections. The new "Full Consent Election" Agreement allows the Regional Director to make a final determination as to all election disputes, with that decision having the same force and effect as a Board decision.
NLRB - Staff summarized 1 decision.
Family Fare d/b/a Glen's Market (7-RC-22118; 344 NLRB No. 25) Oscoda, MI Feb. 22, 2005.
The Board adopted the hearing officer's recommendation to overrule the Employer's objections and certified the Petitioner (Food & Commercial Workers Local 87) as the exclusive collective-bargaining representative of the employees in the appropriate unit. The tally of ballots showed 28 for and 20 against, the Petitioner, with 8 challenged ballots. One of the challenges was resolved by stipulation of the parties before the hearing and as a result, the remaining challenged ballots are not determinative.
Relying on the Sixth Circuit's decision in Harborside Healthcare Inc. v. NLRB, 230 F.3d 206, 212 (6th Cir. 2000), the Employer argued that the prounion activities of Deli Manager Vicki Doran and Bakery Manager Matt Kovachevich prior to the election had interfered with employees' free choice. In overruling the objections, the hearing officer held that even assuming that the department managers were statutory supervisors, their conduct was not objectionable because it was devoid of any threats of reprisal or promises of benefit.
In an earlier determination, the Regional Director found that the department managers are statutory supervisors solely because they have authority to evaluate employees, and their independent assessment of an employee's progress determines how the employee will fare under the reward system. This authority extended only to the employees in each manager's department. The Board concluded that because there was no evidence in the record that Doran and Kovachevich directed their prounion activities toward any employee over whom they exercised their supervisory authority, their conduct could not reasonably have coerced or interfered with employees' free choice in the election.
(Chairman Battista and Members Liebman and Schaumber 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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