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04/22/2005
by Ross Runkel at LawMemo
NLRB Law Memo 04/22/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 2 decisions.
Millennium Maintenance & Electrical Contracting, Inc. (2-CA-35054; 344 NLRB No. 62) New York, NY April 14, 2005.
Chairman Battista and Member Liebman adopted the recommendation of the administrative law judge and ordered that the Respondent pay Ilya Kleyn $25,778.00 in backpay and dental expenses, and remit $1480.00 to United Service Workers Local 363's annuity fund on Kleyn's behalf. Member Schaumber dissented in part.
The issue before the Board is whether the Respondent sustained its burden of proving that Kleyn failed to mitigate backpay damages by making a reasonable search for interim employment after his unlawful layoff on October 10, 2002. The Respondent argued that Kleyn entered into an agreement with a representative of Electrical Workers IBEW Local 3 to remain unemployed and, therefore, did not diligently search for work. However, Chairman Battista and Member Liebman agreed with the judge that the Respondent did not sustain its burden of proving that Kleyn failed to conduct a reasonable search for work, explaining: "[W]e do not find that a clear preponderance of all the relevant evidence runs counter to the judge's partly demeanor-based decision to credit Kleyn's denial that he agreed to remain unemployed."
Member Schaumber joined his colleagues in adopting the judge's finding that the Respondent's ambiguous discussions with Kleyn about future employment did not constitute an unconditional offer of reinstatement under Board precedent. Contrary to his colleagues, he concluded that the record evidence fully supports the Respondent's contention that Kleyn failed to make reasonable efforts to mitigate his damages and, in fact, willfully incurred a loss of income during the 4-month period following his layoff.
(Chairman Battista and Members Liebman and Schaumber participated.)
Hearing at New York City on July 12, 2004. Adm. Law Judge Raymond P. Green issued his decision Sept. 10, 2004.
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Rogers Corp. (34-CA-9117; 344 NLRB No. 60) Rogers and Woodstock, CT April 12, 2005.
Affirming the administrative law judge's recommendations, the Board held that the Respondent violated Section 8(a)(1) of the Act by refusing to grant, or consider granting, a permanent position to Jeremiah Lamothe, and by terminating him on October 25, 1999 because he invoked a right under the Respondent's collective-bargaining agreement with Oak Lodge-Rogers Local 46 and PACE International Union. The Board modified the judge's recommended Order and notice to more closely reflect the violations found.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Jeremiah Lamothe, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Hartford, Oct. 2-3, 2000. Adm. Law Judge Michael A. Marcionese issued his decision Jan. 26, 2001.
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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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