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04/01/2005
by Ross Runkel at LawMemo
NLRB Law Memo 04/01/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 4 decisions.
Glenn's Trucking Co., Inc. (9-CA-35666; 344 NLRB No. 41) Hazard, KY March 21, 2005.
The Board adopted the administrative law judge's recommendations, as modified, and ordered that the Respondent make whole 22 discriminatees by paying them amounts totaling $147,483. It remanded the proceeding to the Regional Director for the limited purpose of recalculating the backpay award for Michael Hayes.
The judge concluded that Hayes was entitled to backpay for the entire backpay period ending September 3, 1998, the date the Respondent offered Hayes reinstatement. The Respondent, however, contended that testimony from the Board's compliance officer at the hearing revealed that Hayes filed four applications for employment between August and October 1997, and none thereafter. In agreement with the Respondent, the Board found that backpay for Hayes is tolled as of October 31, 1997 because he failed to exercise reasonable diligence in searching for work after that date and thus Hayes failed to mitigate damages thereafter.
In the underlying case reported at 332 NLRB 880 (2000), enfd. 298 F.3d 502 (6th Cir. 2002), the Board found that the Respondent violated Section 8(a)(3) and (1) of the Act by delaying the employment of, or denying employment to, 23 named discriminatees.
(Chairman Battista and Members Liebman and Schaumber participated.)
Hearing at Hazard on July 15, 2003. Adm. Law Judge Lawrence W. Cullen issued his supplemental decision Sept. 25, 2003.
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PCT Services, Inc. (5-CA-31610; 344 NLRB No. 42) Fort Eustis, VA March 24, 2005.
The Board granted the General Counsel's motion for summary judgment, finding that by failing and refusing to bargain collectively and in good faith with Operating Engineers Local 147, the Respondent violated Section 8(a)(5) and (1) of the Act.
On May 4, 2004, the Regional Director approved a bilateral informal settlement agreement entered into by the parties that required the Respondent, among others, to make whole 27 bargaining unit employees by paying them certain amounts of backpay and health and welfare benefits, plus interest, and to make contributions to the Union's pension fund on behalf of the employees. On or about September 8, 2004, the Respondent forwarded checks representing backpay, benefits, and interest payments to the Regional Director. However, the checks were not backed by sufficient funds in the bank account on which they were drawn.
By letter dated October 5, 2004, the compliance officer advised the Respondent that it had failed to comply with the terms of the settlement agreement and that its failure to remit the moneys owed by October 19, 2004 could result in a motion for summary judgment. To date, the Respondent has neither replied to the compliance officer's letter nor fully complied with the terms of the settlement agreement by satisfying its make-whole obligations to the employees listed in the settlement agreement. Pursuant to the noncompliance provision of the settlement agreement, the Board found all allegations of the January 29, 2004 complaint to be true.
(Chairman Battista and Members Liebman and Schaumber participated.)
General Counsel filed motion for summary judgment Dec. 6, 2004.
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Ohio and Vicinity Regional Council of Carpenters (The Schaefer Group, Inc.) (9-CB-10964; 344 NLRB No. 37) Dayton, OH March 14, 2005.
The administrative law judge found that the Respondent violated Section 8(b)(1)(A) of the Act by failing to obtain the Employer's compliance with an arbitrator's award, thus allowing Charging Party Sidney J. Tompkins' right to enforcement of the award to lapse. The Board, however, reversed the judge's finding and dismissed the complaint without reaching the merits of the unfair labor practice allegation.
The Respondent contended that the complaint is time-barred under Section 10(b) of the Act. The Board held that the Respondent raised a valid affirmative defense by showing that the Charging Party had clear and unequivocal notice before the 6-month limitations period that the Respondent would not seek to enforce the Charging Party's arbitration award.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Sidney J. Tompkins, an Individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Cincinnati, March 23-24, 2004. Adm. Law Judge William N. Cates issued his decision April 21, 2004.
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South Mountain Healthcare and Rehabilitation Center (22-RC-12461; 344 NLRB No. 40) Vauxhall, NJ March 18, 2005.
The Board granted the Petitioner's (District 6, Service, Transport, and Health Employees) request for review and reversed the Regional Director's Supplemental Decision and Order finding that the Memorandum of Agreement (MOA) executed by the Intervenor (PACE Local 1-300) and the Employer contained a clear effective date of March 5, 2004 and that the MOA constituted a bar to the election petition.
The Petitioner is seeking to represent the same unit of nurses aides, dietary staff, housekeeping and laundry employees covered by the MOA between the Employer and the Intervenor. The MOA is a 3-page document and is dated "March 5, 2004" on the upper left-hand corner of its cover page. Its stated duration is "[f]our (4) year[s]."
In making its determination that the MOA did not serve as a bar to the petition, the Board found that the contract does not set forth an ascertainable effective date or expiration date sufficient to impart stability to the bargaining relationship because third parties cannot discern the appropriate time for filing a representation petition given the conflict among the various effective dates. It wrote:
To serve as a bar to a petition, a contract must contain substantial terms and conditions of employment deemed sufficient to stabilize the bargaining relationship. Cind-R-Lite, 239 NLRB 1255, 1256 (1979) . . . . Both an effective date and an expiration date are material terms of a contract. Id. Unless these dates are apparent from the face of the contract, without resort to parol evidence, the contract will not serve as a bar. Id. The terms of the agreement must be clear from its face so that employees and outside unions may look to it to determine the appropriate time to file a representation petition. Cooper Tire & Rubber Co.,
181 NLRB 509 (1970).
The Board reinstated the petition and remanded the proceeding to the Regional Director for further appropriate action.
(Chairman Battista and Members Liebman and Schaumber participated.)
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