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05/27/2005
by Ross Runkel at LawMemo
NLRB Law Memo 05/27/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 4 decisions.
Smurfit-Stone Container Corp., Container Division (12-CA-20804; 344 NLRB No. 82) San Fernandina Beach, FL May 16, 2005.
Chairman Battista and Member Schaumber reversed the administrative law judge, deferred to an arbitrator's award, and dismissed the complaint alleging that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing an attendance control policy without affording Electrical Workers IBEW Local 192A an opportunity to bargain about the changes or their effect on bargaining unit employees. Member Liebman dissented.
The Union claimed in its grievance that the Respondent's new attendance policy violated the parties' collective-bargaining agreement and past practice. The arbitrator found that the Respondent had the right to unilaterally implement the new policy and denied the grievance. The judge declined to defer to the arbitrator's award, concluding that the issues considered by the arbitrator were not parallel to the unfair labor practice issues and that the award was clearly repugnant to the Act. She decided that the Respondent's implementation of the new policy was an unlawful mid-term modification of the collective-bargaining agreement and a unilateral change in the employees' working conditions in violation of Section 8(a)(5).
Chairman Battista and Member Schaumber disagreed, finding deferral was warranted because the General Counsel failed to show that the statutory and contractual issues are factually dissimilar or that facts relevant to the unfair labor practice issue were withheld from the arbitrator. The majority also noted that the General Counsel did not allege that the arbitrator lacked an adequate factual basis to decide the relevant issue and, additionally, failed to show that the arbitrator's award was clearly repugnant to the Act. They noted it is uncontested that the arbitral process was fair and regular, that the arbitrator adequately considered the unfair labor practice issue, and that the parties presented the arbitrator generally with the facts relevant to resolving the unfair labor practice issue. The majority said "an interpretation of the arbitral opinion is that the management-rights clause gave the Respondent the right to act" and accordingly, it is consistent with the Act and is not clearly repugnant to the Act. In support of its conclusion, the majority noted that the General Counsel failed to prove that the arbitrator did not rely upon the management-rights clause.
In dissent, Member Liebman stated that there is no basis for deferring to the arbitration decision, and that the Board should reach the merits and find a violation of Section 8(a)(5), essentially for the reason the judge did. She wrote: [T]he majority's decision permits a violation of the Act to go unremedied, based on an arbitrator's decision with a premise antithetical to the Act. . . . The result represents exactly the abdication of responsibility that the Board had resolved to void, even while adopting a liberal policy of deferral. See United Technologies Corp., 268 NLRB 557, 560 (1984)."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Electrical Workers IBEW Local 1924; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Jacksonvillle on July 23, 2003. Adm. Law Judge Margaret G. Brakebusch issued her decision Sept. 11, 2003.
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SNE Enterprises, Inc. (9-RC-17883; 344 NLRB No. 81) Huntington, WV May 17, 2005.
Applying Harborside Healthcare, Inc., 343 NLRB No. 100 (2004), which clarified the standard for determining when supervisory prounion activity is objectionable, Chairman Battista and Member Schaumber granted the Employer's request for review of the Regional Director's Second Supplemental Decision and Certification of Representative. They remanded the proceeding to the Regional Director for reconsideration of the supervisors' prounion activity, including but not limited to whether their solicitation of authorization cards constitutes objectionable conduct, without prejudicing whether any of the conduct, alone or in context, is objectionable and warrants a new election. Member Liebman dissented.
Contrary to their colleague, Chairman Battista and Member Schaumber found that retroactively applying the Board's decision in Harborside to this case is consistent with the Harborside ruling itself and longstanding Board practice and would not result in manifest injustice. They said that the Board has already applied the Harborside standard retroactively, in the Harborside decision itself, and that the dissent in that case did not even argue the point. The majority noted that the Board's usual practice is to apply new policies and standards retroactively "to all pending cases in whatever stage." See Aramark School Services, 337 NLRB 1063 fn. 1 (2002) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006-1007 (1958)).
The majority acknowledged that setting aside a union victory in an election does represent a setback for the union, saying: "However, at bottom, it is employee free choice that is at issue, not the victory or loss of any particular party. That free choice can be undermined by supervisory conduct. In any event, a union's election loss need only be temporary. If the employees freely vote for the union in a second election, the union will have its certification."
Based on her dissent in Harborside, Member Liebman found that the conduct engaged in by the supervisors in this case was clearly not objectionable. She said that it would work a manifest injustice on the parties to retroactively apply the new rule to this case or any other case that was pending before Harborside was decided and while the Board's settled rules were in effect. Accordingly, Member Liebman would affirm the Regional Director's decision and would not remand the proceeding for hearing.
(Chairman Battista and Members Liebman and Schaumber participated.)
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Symphony Cleaners 44, Inc. (2-CA-36133; 344 NLRB No. 84) New York, NY May 18, 2005.
In view of the Respondent's failure to comply with the requirements of a settlement agreement, the Board granted the General Counsel's motion for summary judgment, finding that the Respondent failed to remit the agreed-upon backpay amounts due employees Piedad Granados and Maria Rojas, failed to remove from its files all references to their discharges, and failed to post the notice to employees. Pursuant to the terms of the default provision of the settlement agreement, the General Counsel revoked the settlement agreement and reissued the complaint.
The Board affirmed the complaint allegations that the Respondent violated Section 8(a)(1) of the Act by interrogating employees about their concerted activities on behalf of Association Tepeyac, Project Chamba; and violated Section 8(a)(3) and (1) by discharging Granados and by transferring Rojas to another facility, reducing her hours of work, and causing her termination.
(Chairman Battista and Members Liebman and Schaumber participated.)
General Counsel filed motion for summary judgment January 31, 2005.
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Teamsters Local 115 (4-CB-9164, 9175; 344 NLRB No. 83) Philadelphia, PA May 16, 2005.
The Board affirmed the administrative law judge's decision and held that the Respondent violated Section 8(b)(1)(A) of the Act when its agent, Charles Argeros, physically assaulted and threatened dissident union member Joseph J. Fanelli because of his activities that were designed to protest, criticize, or question the policies and practices of the Union and its leaders.
No exceptions were filed to the judge's dismissal of the complaint allegations that the Respondent violated Section 8(b)(1)(A): (1) when its agent, Patrick Stasen, allegedly brandished an iron poker in front of employee Clinton Barnes and threatened to hit Barnes with the poker; and (2) when Argeros allegedly bumped Barnes and incited others to jump on him.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Joseph J. Fanelli and Clinton Barnes, Individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Philadelphia, Oct. 19-21, 2004. Adm. Law Judge David L. Evans issued his decision March 1, 2005.
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05/26/2005
by Ross Runkel at LawMemo
NLRB Law Memo 05/26/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 5 decisions.
The Geweke Co. d/b/a Larry Geweke Ford (20-CA-31889; 344 NLRB No. 78) Yuba City, CA May 12, 2005.
In agreement with the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) and (5) of the Act by failing to bargain with Machinists District Lodge 190, Local Lodge 2182 regarding a change in health care plans and the Respondent's contribution to health care plans, and by implementing a new health care plan without bargaining with the Union.
The Board found merit in the General Counsel's exception to the judge's rejection of his request that the Respondent be required to restore the status quo ante by returning to the 2003 health care plan with its 2003 costs and benefits. Therefore, it modified the order to require that the Respondent make available the health and medical coverage benefits that were provided to unit employees before the 2003 Blue Cross health care plan was unilaterally terminated and reimburse unit employees for any expenses ensuing from the unilateral change from the 2003 Blue Cross plan.
Member Schaumber observed, in distinguishing this case from the Board's decision in The Courier-Journal, 342 NLRB No. 113 (2004), that the judge is correct that in The Courier-Journal, the health insurance changes at issue were implemented pursuant to a well established past practice to which the union had acquiesced for 10 years, both during contract terms and during contract hiatuses. He noted that as the Board pointed out in The Courier-Journal, an employer's "unilateral change made pursuant to a longstanding practice is essentially a continuation of the status quo—not a violation of Section 8(a)(5)." He further observed that the judge, citing Mid-Continent Concrete, 336 NLRB 258, 259 (2001), accurately states that "[h]ealth insurance is a mandatory subject of bargaining and the fact that the Respondent has a past practice of providing the same health plan for all its employees on a company-wide basis does not exempt it from its bargaining obligation."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Machinists District Lodge 190, Local Lodge 2182; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Yuba City on Oct. 27, 2004. Adm. Law Judge Gerald A. Wacknov issued his decision Dec. 29, 2004.
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McNulty Plastering, Inc. (7-CA-47571; 344 NLRB No. 80) North Vernon, IN May 12, 2005.
The Board granted the General Counsel's motion for summary judgment based on the Respondent's failure to comply with the terms of a settlement agreement by failing to remit the agreed-upon amounts due employees and failing to post a notice to employees. Pursuant to the noncompliance provisions of the settlement agreement, the Board found that all allegations of the complaint are true and that the Respondent violated Section 8(a)(1), (2), and (3) of the Act.
Specifically, the Board found that the Respondent violated Section 8(a)(1) and (2) by assisting Plasterers Local 67 in obtaining signed authorization cards from its employees and granting recognition to, and entering into a collective-bargaining agreement with, Plasterers Local 67, even though Bricklayers Local 9 had filed a valid petition seeking an election among the unit employees; and violated Section 8(a)(1) and (3) by entering into a collective-bargaining agreement that contains a provision requiring employees to remain or become members of Plasterers Local 67 as a condition of employment, and by deducting union dues and fringe benefit contributions from employees' pay, even though Plasterers Local 67 was not the lawfully recognized collective-bargaining representative of the employees.
(Chairman Battista and Members Liebman and Schaumber participated.)
General Counsel filed motion for summary judgment January 27, 2005.
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Michigan Road Maintenance Co., LLC d/b/a Michigan Roads Maintenance Co., LLC (7-CA-46426, 46891; 344 NLRB No. 77) Trenton, MI May 11, 2005.
The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by making a threat to employees regarding the futility of union activity; by making a threat to discharge employees and to close its business if its employees engaged in union activities; and by maintaining a rule prohibiting its employees from soliciting for unions or distributing union literature on its property.
It also found that the Respondent violated Section 8(a)(2) and (1) by distributing and soliciting signatures on authorization cards for Party in Interest, Construction Trades and Industrial Employees Local 614, and by recognizing Local 614 as the exclusive representative of the Respondent's truckdrivers and shop employees based on tainted authorization cards; and violated Section 8(a)(3) and (1) by unlawfully discharging Jeffrey A. Crawford.
Members Liebman and Schaumber reversed the judge's finding that the Respondent's operations manager, Adam Edwards, did not violate Section 8(a)(1) when he approached employee James Murray and asked Murray if he had heard about Teamsters Local 247's efforts to organize the Respondent's employees. Contrary to his colleagues, Chairman Battista found that the question Edwards posed to Murrary was not unlawful. In his view, the purpose of the question was not to extract from Murrary his sentiments regarding unionization but rather, the question was a lead-in to Edwards' threat. Chairman Battista agreed that the threat was unlawful.
Chairman Battista and Member Schaumber agreed with the judge's conclusion that the General Counsel failed to establish that Edwards created the impression of surveillance in his remarks to Crawford. Dissenting, Member Liebman would reverse the judge's conclusion that the Respondent did not violate Section 8(a)(1) by creating the impression of surveillance in the course of a conversation between Edwards and Crawford. In her view, Crawford could reasonably have assumed from Edwards' statement that his activities were under surveillance.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Teamsters Local 247 and Jeffrey A. Crawford, an Individual; complaint alleged violation of Section 8(a)(1), (2), and (3). Hearing at Detroit on June 16, 2004. Adm. Law Judge Joseph Gontram issued his decision Oct. 27, 2004.
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Southside Hospital (29-CA-25210; 344 NLRB No. 79) Bay Shore, NY May 12, 2005.
Chairman Battista and Member Liebman agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act when it unilaterally changed the terms and conditions of employment of the "nutrition supervisors" without affording New York's Health & Human Service Union 1199, SEIU notice and an opportunity to bargain, and violated Section 8(a)(3) by changing its nutrition supervisors' terms and conditions of employment because they joined and supported the Union.
Dissenting in part, Member Schaumber wrote that while he agrees with the judge and his colleagues that the Respondent's unilateral changes to the unit employees' terms and conditions of employment violated Section 8(a)(5), he does not agree that the same actions violated Section 8(a)(3). In his view the General Counsel failed to establish by a preponderance of the evidence that the Respondent's actions were motivated by antiunion animus.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by New York's Health & Human Service Union 1199, SEIU; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Brooklyn on April 9, 2003. Adm. Law Judge Jesse Kleiman issued his decision Sept. 19, 2003.
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Virtua Health, Inc. (4-RC-20692; 344 NLRB No. 76) Marlton, Voorhees, Berlin, Mt. Holly, and Camden, NJ May 11, 2005.
Chairman Battista and Member Schaumber, with Member Liebman dissenting, found, contrary to the Regional Director, that a unit limited to the Employer's paramedics is not appropriate and, accordingly, reversed the Regional Director's decision and dismissed the petition filed by Operating Engineers JNESO-District Council 1. The Petitioner sought to represent a systemwide unit of 150 paramedics employed by the Employer at various locations throughout its southern New Jersey territory and has indicated that it is unwilling to represent paramedics in a broader unit including all technical employees.
The Regional Director determined that the Board's Healthcare Rulemaking (Appropriate Bargaining Units in the Healthcare Industry), 29 CFR § 103.30, 54 Fed. Reg. 16336-16348 (1989), which requires that all technicals be included in one unit, absent extraordinary circumstances, was inapplicable in determining whether a unit limited to the Employer's paramedics was appropriate. She found that Rulemaking, which is limited to acute care hospitals, did not apply to Employer's healthcare system and that the "extraordinary circumstances" provision of the Rulemaking removed the Employer from the Rulemaking's
coverage. Applying the test for determining units in nonacute health care facilities set forth in Park Manor Care Center, 305 NLRB 872 (1991), the Regional Director limited the unit to the paramedics, excluding the Employer's remaining 950 technicals. She agreed with the Employer that the paramedics are technical employees. No party requested review of this finding.
Chairman Battista and Member Schaumber found it unnecessary to decide whether the Rulemaking is applicable, noting that even under the broader standard set forth in Park Manor, a unit limited to the Employer's paramedics is inappropriate. They concluded, contrary to the Regional Director, that Albuquerque Ambulance Service, 263 NLRB 1 (1982), enf. denied sub nom. Southwest Community Health Services v. NLRB, 726 F.2d 611 (10th Cir. 1984), is not a comparable situation. In that case, the Board refused to reconsider its denial of review of the Regional Director's finding that a separate unit of ambulance service employees, including paramedics, EMTs, drivers, and dispatchers, was appropriate. The Regional Director had found that the ambulance service provided a service separate and apart from operations traditionally associated with service provided by a hospital or health care institution. In this case, the Employer does not operate an ambulance service, but rather provides advanced life support like medical staff in emergency rooms. See, by contrast, North Memorial Medical Center, 224 NLRB 218 (1976), where, in a pre-Rule case, the Board found that separation of an EMT unit from the acute care hospital's employees was not warranted.
In her dissenting opinion, Member Liebman wrote she would adopt the Regional Director's "well-reasoned and comprehensive decision" finding that a systemwide unit of the Employer's paramedics is appropriate.
(Chairman Battista and Members Liebman and Schaumber participated.)
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05/13/2005
by Ross Runkel at LawMemo
NLRB Law Memo 05/13/2005
by LawMemo.Com - First in Employment Law
NLRB General Counsel responds to questions on casehandling practices.
The General Counsel has prepared written answers to a number of questions submitted by the Practice and Procedure Committee of the ABA Section on Labor and Employment Relations. These cover a wide range of topics dealing with processing cases - both representation cases and unfair labor practice cases.
NLRB - Staff summarized no decisions this week.
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05/06/2005
by Ross Runkel at LawMemo
NLRB Law Memo 05/06/2005
by LawMemo.Com - First in Employment Law
Meisburg and Walsh nominated to NLRB.
The President has re-nominated two former NLRB Members to serve on the Board: Republican Ronald E. Meisburg and Democrat Dennis P. Walsh. Both nominations are pending confirmation by the Senate. The Board is currently working with only three Members instead of five. Current Members, all appointed by President Bush, are: Chairman Robert J. Battista (Rep) for a term expiring in December 2007; Peter Schaumber (Rep) August 2005; and Wilma Liebman (Dem) August 2006.
Latest entries: Walsh re-nominated to NLRB; FLSA opinion letters on line; Skimpy EEOC charge was good enough; Legalese torpedoes waiver of ADEA claims; Military recruiting issue goes to Supreme Court; Feds target OSHA crimes.
NLRB - Staff summarized 8 decisions.
Aramark Services, Inc. (7-CA-43748; 344 NLRB No. 68) Sterling Heights, MI April 29, 2005.
Chairman Battista and Member Schaumber held, contrary to the administrative law judge, that the arbitrator's conclusion that the Respondent properly disciplined Charging Party Leslie Lauria, for harassing other employees in connection with a union-related issue, was not clearly repugnant to the Act within the meaning of Spielberg Mfg. Corp., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984). Chairman Battista and Member Schaumber, in dismissing the complaint, found that the judge erred by declining to defer to the arbitrator's decision because the General Counsel failed to show, under Olin, that the decision—to reinstate Lauria without backpay—was not consistent with the Act.
Member Liebman, dissenting, concluded that the judge correctly found that Lauria's discharge violated Section 8(a)(3) and (1). She explained that the arbitrator's decision—which upheld the Respondent's discipline of Lauria, who gathered signatures on a petition involving a union steward's election—disregarded well-established principles of Board law because he improperly relied on the subjective reactions of other employees in concluding that Lauria harassed her coworkers. Member Liebman wrote: "The arbitrator's own fact findings rather confirm that Lauria's discharge violated the Act. When there is no dispute that an employer's disciplinary action was directed at Section 7 activity, a Wright Line analysis to determine the employer's motive is unnecessary. Because the discharge was directed at Lauria's protected activity and she never lost the Act's protection, her discharge violated Section 8(a)(3) and (1)."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Leslie Lauria, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit on July 30, 2002. Adm. Law Judge Karl H. Buschmann issued his decision Nov. 26, 2002.
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Consolidated Delivery & Logistics, Inc. (22-CA-23543; 344 NLRB No. 67) Woodbury, NJ April 28, 2005.
The Board granted the General Counsel's motion for partial summary judgment as to paragraph 1 of the compliance specification which identifies the 13 discriminatees and alleges that the backpay period for all discriminatees begins on August 9, 1999, and ends on February 21, 2000. It denied the General Counsel's motion to strike the records (invoices that showed Labor Ready billed the Respondent for only about 201 to 336 hours per week—not 520 per week—during the backpay period). The General Counsel's position is that all 13 discriminatees worked 40 hours per week during the backpay period. The Board's earlier decision is reported at 337 NLRB 524 (2002).
Chairman Battista and Member Schaumber denied the motion for partial summary judgment with respect to the gross backpay formula and calculations set forth in paragraphs 2-4 of the backpay specification. They remanded the proceeding to the Regional Director for the purpose of scheduling a hearing before an administrative law judge limited to taking evidence concerning paragraphs 2-4 of the compliance specification. Because the General Counsel did not seek summary judgment with respect to the discriminatees' interim earnings and expenses, the majority ordered a hearing on those issues as well.
Dissenting in part, Member Liebman said that she would grant the General Counsel's motion for summary judgment as to the gross backpay formula and calculations. She found that while the Respondent objects to the premise that the 13 discriminatees would have worked 40 hours per week during the backpay period, the Respondent does not allege an alternative number of hours that any of the individual discriminatees would have worked and has "failed to provide details about the application" of its alternative method of backpay calculation. Member Liebman contended that because the information provided by the Respondent is not sufficiently specific to meet the requirements of Section 102.56(b), the General Counsel is entitled to summary judgment as to the gross backpay formula and calculations.
(Chairman Battista and Members Liebman and Schaumber participated.)
General Counsel filed motion for summary judgment December 13, 2004.
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Gaetano & Associates Inc., aka Gaetano, Diplacidi & Associates, Inc. (2-CA-35437, et al.; 344 NLRB No. 65) New York, NY April 25, 2005.
The Board affirmed the administrative law judge's recommendations and held that the Respondent committed numerous violations of the Act. Among others, it found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to meet and bargain with the Carpenters District Council of New York and Vicinity, and by unilaterally subcontracting sheetrocking and related work without first notifying the Carpenters Union and affording it an opportunity to bargain about the subcontracting; violated Section 8(a)(3) and (1) by its mass layoff of carpenters on April 16, 2003, by discharging employees Benedict Plentie and Davidson Plenty, and by subcontracting window installation work; and violated Section 8(a)(1) by threatening Sean Logan when Supervisor Sammy Superville cautioned Logan to "be careful talking to him," referring to union agent Anthony Williamson.
The allegations of unfair labor practices by the Respondent were in connection with two representation elections held in separate units at the Respondent's two construction sites in New York City. The Carpenters Union won the first election held on May 30, 2003 and was certified as the bargaining representative of a unit of carpenters. Laborers Local 79 lost the second election held June 16, 2003 in a bargaining unit of laborers and the judge recommended that a rerun election be held because of objectionable conduct by the Respondent. In an unpublished order dated Nov.16, 2004, the Board adopted the judge's recommendation, set aside the election, and directed a second election.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Carpenters District Council of New York City and Vicinity, Laborers Local 79, and Kelvin Greenidge and Wendell Henderson, Individuals; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at New York City, Feb. 26-27 and March 1
and 5, 2004. Adm. Law Judge Raymond P. Green issued his decision May 27, 2004.
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Hotel and Restaurant Employees Local 26 (1-CA-37883; 344 NLRB No. 70) Boston, MA April 29, 2005.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by discharging Emma Johnson because of her protected concerted activities when she complained about employee leafletling schedules during the Respondent's corporate campaign against the Hilton Hotel in Boston, MA; and by telling an employee that Johnson had been discharged because of her complaints.
Chairman Battista and Member Schaumber granted the General Counsel's unopposed motion to withdraw the request for a special remedy made in the General Counsel's exceptions to the judge's decision. The General Counsel originally sought a remedial order requiring the Respondent to reimburse any discriminatee entitled to a monetary award, for any extra Federal and/or State income taxes that would or may result from the lump sum payment of the award.
Member Liebman would deny the General Counsel's motion to withdraw the request for a tax compensation remedy, noting that the General Counsel has not adequately explained his reasons and only cited the passage of time and "changed circumstances." She pointed out that since the Board is free to consider remedial issues sua sponte and a victim of discrimination who receives a lump sum backpay award may incur a heightened tax burden, the Board is wasting an opportunity to align its remedies with the realities of existing tax law by declining to order the tax compensation remedy.
Chairman Battista and Member Schaumber did not reach the remedial issue as discussed by Member Liebman because the General Counsel does not seek the remedy and the Charging Party never sought it. They acknowledged that the Board has the power, sua sponte, to impose its own remedies, but they also observed that where, as here, the Board is considering a significant and substantial change in remedial policy, it is important to hear and consider the parties' views, which are not presented in the instant case. Chairman Battista and Member Schaumber wrote: "In an appropriate case, a charging party can present its views, a respondent can present an opposing view, and the General Counsel can present his views, including any problems he may foresee in regard to implementation of the remedy. We invite parties to present these matters in an appropriate case."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Emma S. Johnson; complaint alleged violation of Section 8(a)(1) and (3). Adm. Law Judge Raymond P. Green issued his decision May 4, 2001.
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A L Investors Orlando, LLC, d/b/a The Pavilion at Crossing Pointe (12-RC-8965; 344 NLRB No. 73) Orlando, FL April 29, 2005.
Chairman Battista and Member Schaumber found that challenged voter Carlos Mogollon was a regular part-time employee who had been temporarily laid off and that, as of the Sept. 13, 2003 payroll eligibility date, he had a reasonable expectation of recall in the near future and therefore was eligible to vote in the election held Oct. 24, 2003. They overruled the challenge to Mogollon's ballot and directed that the Regional Director open and count his ballot, along with those of Mary Cooper and Kenneth Lee, and issue a revised tally of ballots and the appropriate certification.
Member Liebman, dissenting, would find Mogollon ineligible to vote, saying: "Even assuming that Mogollon reasonably expected to be recalled some day, there is no basis for finding that as of the payroll eligibility dates he would reasonably have expected recall in the near future."
The tally of ballots for the election shows 17 for and 14 against the Petitioner, Service Employees 1199 Florida. In the absence of exceptions, the Board adopted the hearing officer's recommendation to overrule the challenges to the ballots of Lee and Cooper and Petitioner's Objection 3. The Petitioner withdrew Objections 1, 2, and 4. The Petitioner challenged the ballot of Mogollon on the ground that he was not employed on the stipulated payroll eligibility date of Sept. 13, 2003. The hearing officer recommended that the challenge to Mogollon's ballot be sustained, finding that Mogollon was not a regular part-time employee because he worked no hours between his layoff on July 5, 2003 and his recall on Oct. 16, 2003, after the eligibility date.
(Chairman Battista and Members Liebman and Schaumber participated.)
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Spartech Corp. (21-CA-36049, et al.; 344 NLRB No. 72) La Mirada, CA April 29, 2005.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by interrogating employee Mauricio Pena regarding his union activity. It found it unnecessary to pass on the other interrogation allegations as any findings of additional violations would not affect the remedy.
Chairman Battista and Member Liebman also adopted the judge's finding that the Respondent created an impression of surveillance and violated Section 8(a)(1) when its agent, Sales Representative Zavala, told employee Soria, in the course of statements regarding the upcoming union election, that Respondent's vice president, Hiatt, knew who had attended a union meeting held a day or two prior.
Contrary to the judge and his colleagues, Member Schaumber would dismiss the complaint allegation that the Respondent created the impression of surveillance because in his view, the union meeting was held in an open park near the Respondent's plant, and there was no indication the employees were attempting to keep the meeting from the Respondent's attention. In light of the openness of the meeting and its proximity to the plant, he found that the General Counsel has not established by a preponderance of evidence that Soria would reasonably assume the Respondent had been informed of the meeting through surveillance.
The Board found merit in the General Counsel's contention that the judge failed to include in his recommended order a provision that the notice to employees be posted in both English and Spanish. Noting that a great number of the employees at the Respondent's facility are primarily Spanish-speaking, it modified the order to provide that the notice be posted in both English and Spanish.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Sheet Metal Workers Local 170; complaint alleged violation of Section 8(a)(1). Hearing at Los Angeles, Oct. 18-19, 2004. Adm. Law Judge Gerald A. Wacknov issued his decision Jan. 18, 2005.
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St. Vincent Hospital, LLC (1-RC-21717; 344 NLRB No. 71) Worcester, MA April 29, 2005.
Members Liebman and Schaumber directed the Regional Director to count two "void" ballots as "No" votes; to open and count the ballots of Ife Bath, Lisa Hall, Yvonne Jones, Jane Lantz, Lynne Mello, Donna Mosher, Jennifer Nedoroscik, Roberta Ohman, Kim Pilat, and Ellen Randall; and to issue a revised tally of ballots and the appropriate certification. The tally of ballots for the election held Feb. 27, 2004 shows 218 votes for and 207 against, Food & Commercial Workers Local 1445, with two void ballots and 21 challenged ballots, a sufficient number to affect the election results. The two void ballots had the word "No" written in both the "Yes" and "No" boxes.
The Board reversed the administrative law judge's recommendation to overrule the challenge to the ballot of Kathy Bernard, finding that the unit description did not include employees employed at the Employer's 10 Washington Square location, where Bernard was employed. Members Liebman and Schaumber, with Chairman Battista dissenting in part, adopted the administrative law judge's recommendation to overrule the Employer's objections in their entirety. The objections alleged, among others, that the Petitioner improperly used employees' photographs in its campaign materials without their permission, that the Board agents engaged in misconduct and conducted the election in a lax and inattentive manner, that the method for identifying the voters was inadequate, that certain eligible voters were disfranchised, and that improper communications occurred between Petitioner observers and voters during the election.
Contrary to his colleagues, Chairman Battista found conditional merit in the Employer's objections insofar as they allege that the integrity of the election was compromised because two employees were permitted in a voting booth at the same time. He would remand the case to the Region to: open and count the ten ballots of the above-named individuals; count the two "void" ballots as "No" votes; and prepare and serve on the parties a revised tally of ballots. If the revised tally of ballots shows that the number of compromised votes was determinative, Chairman Battista would set aside the election.
(Chairman Battista and Members Liebman and Schaumber participated.)
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Stanford New York, LLC d/b/a Stanford Hotel (2-CA-35910; 344 NLRB No. 69) New York, NY April 29, 2005.
The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)( 1) of the Act by threatening to discharge Joong Hyun Park if he did not agree to be excluded from the collective-bargaining unit, and violated Section 8(a)(1) and (3) by discharging Park.
General Manager Kevin Kim contended that Park was a supervisor and thus not eligible for union membership. At a meeting with Union Agent Leo Lanci to determine whether Park was a supervisor, Kim continued to insist that Park was a supervisor and threatened Park in Korean that if he did not tell Lanci that he was a supervisor, he would be fired. A heated discussion ensued and Park loudly called Kim a "f—ing son of a bitch" in English. Kim discharged Park that evening and sent Park a letter stating: "You are terminated as an employee of the Hotel Stanford as of October 31, 2003 for gross improprieties in your conduct with hotel management."
The Board agreed with the judge that Park engaged in protected activity when he met with Lanci and Kim and asserted his right to union representation and inclusion in the collective bargaining unit. In making this determination, the Board examined the following factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice. It found all factors weighed in favor of protection and that Park did not lose the protection of the Act by his conduct.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Joong Hyun Park, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York on June 22, 2004. Adm. Law Judge Steven Davis issued his decision Oct. 7, 2004.
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05/02/2005
by Ross Runkel at LawMemo
NLRB Law Memo 05/02/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 2 decisions.
Friendly Cab Co., Inc., et al. (32-CA-21613-1; 344 NLRB No. 64) Oakland, CA April 20, 2005.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing on and after August 19, 2004, to meet and bargain with East Bay Taxi Drivers Association as the exclusive collective-bargaining representative of its taxicab drivers.
The Respondent contended that the Union was improperly certified because its taxicab drivers are independent contractors and not employees. In the underlying representation proceeding reported at 341 NLRB No. 103 (2004), the Respondent raised the same argument in its request for review of the Regional Director's determination that the drivers were employees. The Board granted the request for review but concluded, on the merits, that the drivers were employees and not independent contractors.
Chairman Battista and Member Schaumber did not participate in the representation case but agreed with the judge that the Respondent has not offered any newly discovered and previously unavailable evidence, nor alleged any special circumstances that would require the Board to reconsider its decision in the representation case.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by East Bay Taxi Drivers Assn.; complaint alleged violation of
Section 8(a)(1) and (5). Hearing at Oakland on Jan. 27, 2005. Adm. Law Judge Jay R. Pollack issued his decision Feb. 10, 2005.
***
North Hills Office Services, Inc. (22-CA-26250; 344 NLRB No. 63) Woodbury, NJ April 18, 2005.
The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to implement the wage increase for part-time unit employees as agreed to by the Respondent and Service Employees Local 32B-32J. It amended the judge's recommended remedy to provide that backpay shall be computed in the manner provided in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), rather than F. W. Woolworth Co., 90 NLRB 289 (1950).
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark on Sept. 28, 2004. Adm. Law Judge Margaret M. Kern issued her decision Jan. 7, 2005.
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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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