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06/28/2005
by Ross Runkel at LawMemo
NLRB Law Memo 06/28/2005
by LawMemo - First in Employment Law
NLRB - Staff summarized 6 decisions.
Adult Residential Care, Inc. and Flushing Assn. in Transitional Housing, Inc., a/k/a F.A.I.T.H., its Successor (7-CA-40701; 344 NLRB No. 101) Flushing, MI June 13, 2005.
The Board granted the Respondent's motion and dismissed the complaint based upon an unfair labor practice charge filed against the Respondent by Charging Party AFSCME.
On Feb. 25, 1994, AFSCME filed unfair practices charges against the Respondent, a group home provider, and the State of Michigan with the Michigan Employment Relations Commission (MERC). On March 31, 1997, the Michigan legislature amended its Public Employee Relations Act to exempt residential care workers from being classified as Michigan state employees and under MERC jurisdiction. MERC dismissed the underlying case on Nov. 10, 1997, citing lack of jurisdiction due to preemption, as the practices at issue were arguably subject to the NLRA and there had been no showing that the Board would decline to exercise jurisdiction.
The Board held that the Charging Party should have known by March 31, 1997, at the very latest, that MERC clearly lacked jurisdiction and that the Charging Party's proceedings before MERC would be dismissed. Accordingly, the Charging Party should have filed its charges with the Board in a timely manner, the Board wrote. It did not do so until Feb. 1998 or nearly 11 full months later—almost double the time provided by Section 10(b).
The Board explained that it need not decide whether the Charging Party should have known at an even earlier date that MERC lacked jurisdiction. It said arguably that the date, among others, is July 28, 1995, when the Board, in Management Training Corp., 317 NLRB 1355 (1995), reversed the discretionary jurisdictional standard of Res-Care, Inc., 280 NLRB 670 (1986), and established a new test for determining whether to assert jurisdiction over employers that provide services to or for an exempt entity. The Board noted also that the Michigan Court of Appeals decided on Jan. 12, 1996, that there was no longer a sufficient showing that the Board would refuse to assert its jurisdiction in group home cases and that MERC no longer had jurisdiction on grounds of Federal preemption. State County Employees AFSCME v. Dept. of Mental Heath (Quality Living Systems), 545 N.W.2d 363 (Mich. Ct. App. 1996), a consolidated case which included the Respondent and the Charging Party.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by State County Employees AFSCME. Parties waived their right to a hearing before an administrative law judge.
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Alternative Services, Inc. (7-CA-40702; 344 NLRB No. 99) Livonia, MI June 13, 2005.
The Board granted the Respondent's motion and dismissed the complaint based upon an unfair labor practice charge filed against the Respondent by Charging Party AFSCME.
On May 19, 1994, AFSCME filed unfair practices charges against the Respondent, a group home provider, and the State of Michigan with the Michigan Employment Relations Commission (MERC). At the time, the Board applied a discretionary jurisdictional standard over private employers receiving government funding. Res-Care, Inc., 280 NLRB 670 (1986).
After AFSCME filed its charges with MERC, the Board issued Management Training, Inc., 317 NLRB 1355 (1995), reversing the Res-Care discretionary jurisdictional standard and establishing that the Board's new test for asserting jurisdiction was solely whether the employer met the definition of "employer" under Section 2(2) and met the applicable monetary jurisdictional standard. The Board did not address whether it would retroactively apply its new jurisdictional standard.
On March 31, 1997, the Michigan legislature amended its Public Employee Relations Act to exempt residential care workers from being classified as Michigan state employees and under MERC jurisdiction. MERC dismissed the underlying case on November 10, 1997, citing lack of jurisdiction.
Turning to the Respondent's motion to dismiss, the Board noted that it has never held—nor has it previously been asked to decide—whether the doctrine of equitable tolling applies to a situation where, as here, a charging party excusably does not know of the existence of a cause of action before the Board and timely files charges in a non-Board state forum which, at the time of the filing, had competent jurisdiction over the matter. It wrote:
"Assuming, arguendo, that the doctrine of equitable tolling applies in this circumstance, we hold that it does not excuse the failure of the Charging Party to file the instant charges with the Board until February 1998. The doctrine requires the exercise of reasonable diligence on the part of a charging party." The Board held that the Charging Party should have known by March 31, 1997, at the very latest, that MERC clearly lacked jurisdiction and that the Charging Party's proceedings before MERC would be dismissed. Accordingly, it decided that the Charging Party should have filed its charges with the Board in a timely manner thereafter and granted the Respondent's motion to dismiss the complaint in light of the delay.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by State County Employees AFSCME. Parties waived their right to a hearing before an administrative law judge.
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KSL Claremont Resort, Inc. d/b/a Claremont Resort and Spa (32-CA-20417, 20433; 344 NLRB No. 105) Berkeley, CA June 16, 2005.
Affirming the administrative law judge's recommendations, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to recognize or deal with Leslie Fitzgerald as a union representative for unit employees and by denying Fitzgerald access to the facility in order to perform her collective-bargaining duties.
The Board determined that under the principles set forth in Lutheran Heritage Village-Livonia, 343 NLRB No. 75 (2004), the Respondent violated Section 8(a)(1) by its February 7, 2003 issuance and subsequent maintenance of a rule prohibiting "negative conversations" about associates or managers. The judge found that the Respondent did not cure the illegality by its later communication to employees as it failed to meet the requirements of Passavant Memorial Area Hospital, 237 NLRB 138 (1978). In agreeing with the judge that the Respondent did not cure its unlawful conduct, Chairman Battista and Member Schaumber did not pass on all aspects of Passavant. Member Liebman agreed with the judge's analysis concerning the rule's illegality and the failure of the Respondent's subsequent notice to satisfy the requirements of Passavant.
There were no exceptions to the judge's ruling granting the General Counsel's motion to strike Respondent's erratum to its posthearing brief. Chairman Battista and Member Schaumber noted that in ruling on the motion, the judge cited Elevator Constructors Local 2 (Unitec Elevator Services Co.), 337 NLRB 426 (2002), for the proposition that "excusable neglect" justifying untimely filing of documents "requires extenuating circumstances rather than a mistake." In their view, the holding in Unitec Elevator was more limited: "the miscalculation of a filing date, absent a showing of extenuating circumstances does not constitute excusable neglect" under the Board's Rules and Regulations. 337 NLRB at 426.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Hotel & Restaurant Employees Local 2850; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Oakland, Sept. 4-5, 2003. Adm. Law Judge Mary Miller Cracraft issued her decision Nov. 28, 2003.
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Electrical Workers (IBEW) Local 48 (36-CB-1798-1, et al.; 344 NLRB No. 102) Portland, OR June 13, 2005.
The Board granted in part and denied in part the Respondent's motion for reconsideration, rehearing, and reopening of the record of the Board's earlier decision reported at 342 NLRB No. 10 (2004). It granted the motion to correct the Board's factual findings as to (1) the date when the short-call limit was lengthened to 30 days and, consequently (2) the duration of the short-call limit during the relevant period. The motion was denied in all other respects because the Respondent did not demonstrate extraordinary circumstances warranting reconsideration, rehearing, or reopening of the record as required by Section 102.48(d)(1) of the Board's Rules and Regulations.
In the previous decision, the Board found: a "short-call" is a job that lasts less than a specified period of time; registrants dispatched to short-call jobs out of the Respondent's hiring hall retain their predispatch position on the out-of-work list (OWL) when those jobs end; and if a job exceeds the short-call time limit, the registrant loses his positions and "rolls" to the bottom of the OWL. The Board found that during the relevant period, October 1992 to May 1994, the short-call rule specified a 40-hour limit, and if a job lasted more than 40 hours, the registrant was supposed to "roll."
As contended by the Respondent, the Board should have found that the short-call limit was lengthened from 40 hours to 30 days effective September 1992 and not November 1994. Accordingly, it withdrew the short-call findings, together with other findings in the earlier decision dependent on those facts.
Chairman Battista and Member Schaumber reaffirmed their earlier finding that the Respondent's failure to police book 1 registrations, which enabled numerous book 1-ineligible applicants to receive dispatches that should have gone to applicants properly registered on book 1, constituted gross negligence and therefore violated Section 8(b)(1)(A) of the Act.
Although Member Liebman did not participate in the original decision, she agreed that its mistaken short-call findings should be corrected. However, she disagreed with her colleagues' conclusion that the remaining mistaken departures from the hiring hall rules nevertheless violated the Act. In her view, the Respondent's honor system for signing book 1 was not so far outside a "wide range of reasonableness" as to breach the duty of fair representation. Air Line Pilots v. O'Neill, 499 U.S. 65, 67 (1991); Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953).
(Chairman Battista and Members Liebman and Schaumber participated.)
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King Soopers, Inc. (27-CA-16934, 17102; 344 NLRB No. 103) Denver, CO June 17, 2005.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) of the Act by refusing to furnish and delaying furnishing certain information to PACE Local 5-920 concerning unit employees, including postings and bids for the "floater pool" and management notes and security reports taken in connection with investigations of employees' alleged violations of work rules.
Chairman Battista and Member Schaumber affirmed the judge's recommended order, disagreeing with Member Liebman's suggestion that a broad cease-and-desist order is appropriate. They noted that neither the General Counsel nor the Charging Party has excepted to the judge's failure to grant a broad cease-and-desist order. Chairman Battista and Member Schaumber further relied on the considerations cited in King Soopers, Inc., 344 NLRB No. 104 (2005), where they denied the General Counsel's request for a broad cease-and-desist order against the Respondent. As to the general matter of broad orders, the respective views of Chairman Battista and Member Schaumber are set forth in that opinion.
Member Liebman would grant a broad cease-and-desist order under Hickmott Foods, Inc., 242 NLRB 1357 (1979). Based on the violations found in this proceeding, and the violations found in other proceedings before the Board, she would conclude that the Respondent has demonstrated a proclivity to violate the Act.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by PACE Local 5-920; complaint alleged violation of Section 8(a)(5). Hearing at Denver, Feb. 21-22, 2001. Adm. Law Judge James L. Rose issued his decision May 22, 2001.
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King Soopers, Inc. (27-CA-16902-1, et al.; 344 NLRB No. 104) Colorado Springs, CO June 17, 2005.
The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) of the Act by refusing to furnish Food & Commercial Workers Local 7 necessary and relevant information concerning bargaining unit employees. This case arose from information requests by the Union concerning (1) a grievance filed by the Respondent against the Union and (2) the Respondent's reopening of store #53.
Regarding the first issue, the Board agreed with the judge that the Respondent unlawfully refused to furnish requested financial information that was relevant to the Union's defense against the grievance. It also found that the Respondent unlawfully refused the Union's request for a copy of the letter of understanding upon which the Respondent in part based its grievance (the Behlke-Mercer agreement), and other nonfinancial information concerning the Respondent's grievance.
As for the request for information concerning the opening of store #53, the Board affirmed the judge's finding that the Respondent refused to furnish certain items, but it also found, contrary to the judge, that the Respondent unlawfully failed to provide the requested timecards of employees from other stores who worked at store #53 during the week of that store's reopening. The Union had filed a grievance, alleging that the Respondent failed to apply article 10 of the parties' collective-bargaining agreement in scheduling employees to work at store #53 during the week it reopened.
Chairman Battista and Member Schaumber agreed with the judge that a broad cease-and-desist order is not warranted because the Respondent has not demonstrated a proclivity to violate the Act. They noted that the Respondent's unfair labor practices found here and in King Soopers, Inc., 344 NLRB No. 103 (2005), involve refusals to provide requested information. In support of their ruling, Chairman Battista and Member Schaumber wrote that the Respondent has contracts with at least five unions representing thousands of employees at over 60 stores in Colorado, processes at least 900 grievances annually, and, as the judge noted, complies with virtually all of the many information requests made with regard to those grievances.
Member Liebman, unlike her colleagues, would grant a broad cease-and-desist order under Hickmott Foods, Inc., 242 NLRB 1357 (1979). Based on the violations found here and in other proceedings before the Board, she would find that the Respondent has demonstrated a proclivity to violate the Act.
Chairman Battista believes that the test of Hickmott, properly applied, is consistent with the Supreme Court's decision in Express Publishing Co., 312 U.S. 426 (1941), and with Section 10(c) of the Act. In his opinion, the Board has the power to issue broad orders but that power should be exercised sparingly, and then only in the most egregious cases. He does not believe that this is such a case.
Member Schaumber noted that the Board's decision in Hickmott was in response to the Supreme Court's decision in Express Publishing, in which the Supreme Court admonished the Board for issuing an order restraining "any" violation of the Act; the Board's "broad order." He wrote that the Hickmott standard has not been met here.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Food & Commercial Workers Local 7; complaint alleged violation of Section 8(a)(5). Hearing at Denver, Feb. 20-21, 2001. Adm. Law Judge James L. Rose issued his decision May 22, 2001.
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06/17/2005
by Ross Runkel at LawMemo
NLRB Law Memo 06/17/2005
by LawMemo - First in Employment Law
NLRB - Staff summarized 2 decisions.
Guardsmark, LLC (20-CA-31495-1, 31573-1; 344 NLRB No. 97) San Francisco, CA June 7, 2005.
The Board unanimously adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by maintaining a rule that prohibits its employees from complaining about their terms and conditions of employment to the Respondent's customers.
Chairman Battista and Member Schaumber also adopted the judge's conclusion that the Respondent did not violate the Act by maintaining a rule that forbids employees from fraternizing with co-employees or with the employees of the Respondent's customers. Member Liebman found, contrary to her colleagues, that the Respondent's rule prohibiting employees from "fraterniz[ing]" with coemployees or customers offends Section 8(a)(1). She adhered to the views expressed in her dissent in Lafayette Park Hotel, 326 NLRB 824 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), where she concluded that a similar rule did not adequately define what is proscribed and that the ambiguity in the rule tended to chill reasonable employees in the exercise of their Section 7 rights.
The judge concluded that the Respondent's "no-solicitation-in-uniform" rule did not violate the Act. Unlike the judge, Chairman Battista and Member Liebman held that Section 8(a)(1) prohibits the Respondent from maintaining a rule that proscribes employee solicitation at any time while in uniform. In accord with their finding, they modified the judge's proposed order to require immediate rescission or modification of the unlawful rules and to provide for nationwide posting of a remedial notice.
Contrary to his colleagues, Member Schaumber found that the Respondent's "no-solicitation-in-uniform" rule did not violate Section 8(a)(1) and, like the judge, would dismiss this complaint allegation. He agreed with the judge that: (1) the rule is sufficiently clear on its face to advise employees that they should not engage in unofficial business while in uniform, which implies that such activities are permissible while not in uniform; and (2) that employees would reasonably understand, without having to be specifically told, that removing or covering their uniforms would constitute compliance with this provision.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Service Employees Local 24/7 and Jee Venish, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Francisco, April 29-30, 2004. Adm. Law Judge Gerald A. Wacknov issued his decision July 28, 2004.
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Maryland State Teachers Assn. (5-CA-31962, 31963; 344 NLRB No. 98) Annapolis, MD June 9, 2005.
The Board agreed with the administrative law judge's finding that Respondent Assistant Executive Director Dale Templeton's remarks to Charging Parties Jeffrey J. Dean and Edward Charles Fortney that she was tired of receiving their letters regarding the terms and conditions of their employment, and her admonition that such letters would have to stop if they were to remain Respondent's employees, violated Section 8(a)(1) of the Act. No exceptions were filed to the judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(1) by making job-security threats and by interrogating employees.
(Chairman Battista and Members Liebman and Schaumber participated.)
harges filed by Jeffrey J. Dean and Edward Charles Fortney, Individuals; complaint alleged violation of Section 8(a)(1). Hearing at Baltimore on Jan. 20, 2005. Adm. Law Judge Arthur J. Amchan issued his decision March 24, 2005.
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06/13/2005
by Ross Runkel at LawMemo
NLRB Law Memo 06/13/2005
by LawMemo - First in Employment Law
NLRB - Staff summarized 7 decisions.
Alpha Associates (11-CA-19638, 19828; 344 NLRB No. 95) North Charleston, SC May 31, 2005.
Based on the Respondent's affirmative defenses to the complaint allegations that are inadequate and without merit, the Board found no factual issues warranting a hearing and granted the General Counsel's motion for summary judgment. It held that the Respondent violated Section 8(a)(5) and (1) of the Act by: (1) unilaterally laying off unit employees without notifying or bargaining with UNITE; (2) unilaterally granting a wage increase to unit employees without notifying or bargaining with the Union; and (3) failing and refusing to meet and bargain with the Union since January 16, 2003.
The Board decided that an affirmative bargaining order, with its temporary decertification bar for a reasonable period of time, is warranted to fully remedy the Respondent's unlawful refusal to bargain.
The Respondent contended that its recognition of the Union was invalid as the Union never demonstrated or offered to demonstrate, that it represented a majority of the unit employees; that the recognized bargaining unit described in the complaint is inappropriate; that the alleged unilateral implementation of a wage increase was consistent with its past practice regarding wage increases at its other operations; and that the General Counsel's motion for summary judgment was not timely filed.
In answer to the Respondent's contentions, the Board, in agreement with the General Counsel, stated that Section 10(b) of the Act precludes an employer from defending against a refusal-to-bargain allegation on the basis that its initial recognition of the union, occurring more than 6 months prior to the filing of unfair labor practice raising the issue, was invalid or unlawful. It concluded that the Respondent additionally is estopped from withdrawing recognition from the Union based on either an absence of proof of majority status at the time of recognition, or the alleged inappropriateness of the recognized unit.
(Chairman Battista and Members Liebman and Schaumber participated.)
General Counsel filed motion for summary judgment May 5, 2003.
***
Catholic Healthcare West d/b/a Mercy Sacramento Hospital d/b/a Mercy General Hospital d/b/a Methodist Hospital d/b/a Mercy Hospital Folsom d/b/a Mercy Medical Center San Juan (20-RC-17967; 344 NLRB No. 93) Rancho Cordova, CA June 1, 2005.
Members Liebman and Schaumber, with Chairman Battista dissenting, reversed the Regional Director's finding that the single-facility presumption has been rebutted and remanded the proceeding to the Regional Director for further appropriate action. The Regional Director had found that the Employer met its burden of establishing that the petitioned-for single-facility unit of skilled maintenance employees at Mercy General Hospital is not appropriate for bargaining and that the petitioned-for unit must include the skilled maintenance employees at all four acute care hospitals within the Mercy Healthcare Sacramento (MHS) subdivision of Catholic Healthcare West (CHW).
The petitioning union is Operating Engineers Local 39. Members Liebman and Schaumber concluded that the Employer failed to demonstrate that the integration among the MHS facilities is so substantial as to negate the separate identity of Mercy General. They found that the Employer has failed to show that allowing representation of employees at the hospital alone in a single facility will have any greater impact on the provision of healthcare than that contemplated by the Board in Manor Healthcare Corp., 285 NLRB 224 (1987), in Rulemaking, or in subsequent cases.
Chairman Battista would affirm the Regional Director and find that the Employer correctly asserted that the appropriate unit consists of the skilled maintenance employees at all four of the Employer's facilities located in the Sacramento area. While Chairman Battista recognizes that there is presumption in favor of a single-facility unit, he wrote: "However, that presumption must be tempered by two important considerations: (1) Congress has admonished the Board to guard against the 'undue proliferation of units in health care institutions'; and (2) the history of collective bargaining of this Employer is consistent with that Congressional admonition."
(Chairman Battista and Members Liebman and Schaumber participated.)
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Daimler Chrysler Corp. (7-CA-46123, et al.; 344 NLRB No. 94) Detroit, MI May 31, 2005.
The Board adopted the administrative law judge's recommendations and held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide or to provide in a timely manner, Auto Workers Local 412 with relevant and necessary information it requested between April 3, 2003, and September 17, 2003, among others, in conjunction with a grievance and for an audit of merit-increase and lump-sum payment funds for unit employees for the years 1999-2003.
The Respondent asserted that the Union's request for information should be deferred to the parties' contractual grievance-arbitration procedures. Chairman Battista and Member Schaumber would defer if not bound by precedent. However, in the absence of a three-member Board majority to overrule current Board law, they find that the judge correctly applied the Board's policy of nondeferral in information request cases. Pacific Bell Telephone Co., 344 NLRB No. 11, slip op. at fn. 3 (2005).
At the General Counsel's request, the Board revised the judge's recommended order and notice to include specific dates of the information requests and the items to which the Respondent is ordered to respond.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Auto Workers Local 412 (Unit 21); complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit, Oct. 12 and 13, 2004. Adm. Law Judge George Carson II issued his decision Dec. 30, 2004.
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Erica Inc., General Partner d/b/a Foodbasket Partners, Limited Partnership (28-CA-17521; 344 NLRB No. 96) Truth or Consequences and Hobbs, NM June 3, 2005.
The Board adopted the administrative law judge's findings that the Respondent is a successor employer to Furr's Supermarkets, Inc. and violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with Food & Commercial Workers Local 1564 as the collective-bargaining representative of the unit employees working at the Respondent's grocery stores in Truth or Consequences and Hobbs, New Mexico.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Food & Commercial Workers Local 1564; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Truth or Consequences, April 17-19 and May 7, 2002. Adm. Law Judge Albert A. Metz issued his decision Oct. 11, 2002.
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Kellogg's Snack Co. (2-CA-36270; 344 NLRB No. 91) New York, NY May 31, 2005.
Affirming the administrative law judge, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish Teamsters Local 560 with information it requested in letters dated March 4, April 13, and April 27, 2004 regarding specific carriers in order to determine whether the Respondent used the carriers to make deliveries rather than unit drivers in violation of the parties' contract.
The Respondent argued that the Union did not need the requested information because the Respondent uses common carriers rather than unit drivers to deliver some of its products to independent distributors. Chairman Battista found the defense was based on "a faulty underlying premise-the Respondent's assertion that the disputed deliveries all originated from its bakeries rather than from its New York distribution centers where the unit drivers work and, as such, involved nonunit work." He explained that the argument "misperceives" the purpose of the Union's information request-to determine for itself whether, as the Respondent claims, the disputed deliveries originated from its bakeries. Chairman Battista concluded that the requested information, which shows where the disputed deliveries originated from, is relevant for the Union to decide whether or not it has a meritorious grievance and must be provided.
Chairman Battista and Member Schaumber noted that the Respondent does not argue that the Union's requests for information should be deferred to the parties' contractual grievance-arbitration procedures.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Teamsters Local 560; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York on Nov. 15, 2004. Adm. Law Judge Raymond P. Green issued his decision Feb. 25, 2004.
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Blasters, Drillrunners, and Miners, Laborers Local 29 (29-CE-120; 344 NLRB No. 90) Brooklyn, NY May 31, 2005.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(e) of the Act by maintaining, giving effect to, and enforcing article 10, section 2, paragraph 1 of its collective-bargaining agreement with RailWorks Transit, Inc., particularly the second sentence of the paragraph that reads:
To assure the maintenance of work opportunities, the Employer stipulates that any firm engaging in Heavy Construction Work under Article VIII, Section 1 and 2 of the Agreement, in which it has or acquires a financial interest or is participating in a venture with other contractors or operators, shall be responsible for compliance with all of the terms and conditions of this Agreement.
The Board held that the sentence reflects secondary objectives and that it is not saved by the construction industry provision. Member Liebman agreed that this finding is in accord with precedent. The Board modified the judge's recommended order and notice to reflect its finding.
This case involves the assignment of work for the New York City subway. RailWorks Transit, Inc. and L.K. Comstock & Co., Inc. formed a joint venture called RWKS Comstock to perform some of the work. The work awarded to the joint venture included electrical construction and track work. RailWorks Transit, one of the two partners in the joint venture, agreed to be bound by a collective-bargaining agreement between the General Contractors Association and various labor organizations including the Respondent, which contains the disputed contract clause.
The joint venture assigned some of its work to M-Track Enterprises, another member of the General Contractors Association that employed laborers who were represented by the Respondent or one of its affiliates. M-Track reassigned the work to employees who were members of or represented by Electrical Workers IBEW Local 3. The Respondent objected to the reassignment and demanded arbitration. The Union sought to enforce article 10, section 2, paragraph 1 in an effort to compel the joint venture to be bound by the collective-bargaining agreement with the Respondent and to employ employees who were members of or represented by the Respondent or an affiliated union. The Union argued that since RailWorks Transit was one of the partners to the joint venture and signatory to an agreement with the Union, the joint venture was also bound to the same agreement. RWKS Comstock filed the instant charge alleging that the agreement violated Section 8(e).
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by RWKS Comstock, a Joint Venture; complaint alleged violation of Section 8(e). Hearing at Brooklyn on April 27, 2004. Adm. Law Judge Raymond P. Green issued his decision June 18, 2004.
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Pontiac Care and Rehabilitation Center (3-CA-24724; 344 NLRB No. 92) Oswego, NY May 31, 2005.
The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by threatening employees with reduction in wages or unspecified reprisals if employees select a union as their collective-bargaining representative, interrogating employees about their union support or union activities, and conveying the impression to employees that their union activities are under surveillance. It also found that the Respondent violated Section 8(a)(3) and (1) by discharging employee Rebecca Gibson on March 25, 2004.
There were no exceptions filed to the judge's recommended dismissal of Section 8(a)(1) allegations that: (1) the Respondent threatened employees with a loss of future wage increases and with the reduction of their current wages; (2) the Respondent engaged in various acts of surveillance of employees' union activities; and (3) the Respondent prohibited employees from wearing carnations as a show of support for SEIU 1199 NY Upstate Division.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by SEIU 1199 NY Upstate Division; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Oswego, July 27-29, 2004. Adm. Law Judge Arthur J. Amchan issued his decision Sept. 28, 2004.
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06/03/2005
by Ross Runkel at LawMemo
NLRB Law Memo 06/03/2005
by LawMemo.Com - First in Employment Law
NLRB - Staff summarized 3 decisions.
Holsum de Puerto Rico, Inc. (24-CA-9408, et al.; 344 NLRB No. 85) Toa Baja, PR May 24, 2005.
Affirming the administrative law judge's recommendations, the Board held that the Respondent violated Section 8(a)(1) of the Act by: (a) engaging in surveillance of employees' protected activities; (b) creating the impression of surveillance of employees' protected activities; (c) threatening employees Ramon Cruz with unspecified adverse consequences; (d) coercively interrogating employees Cruz, David Montalvo, and Rolando Rodriguez; and (e) coercively interrogating employee Jose Santiago in May 2003. It also found that the Respondent violated Section 8(a)(3) and (1) by terminating the employment of Jose Torres Figueroa on May 1, 2003, and Jose Santiago Maldonado on May 29, 2003, because they supported Auto Workers Local 2429.
The Board amended the judge's third conclusion of law to correspond to the Section 8(a)(1) violations found and, at the General Counsel's request, modified the judge's recommended order to require the Respondent to post notices in both English and Spanish.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Carlos Martinez Toro, an Individual and Auto Workers Local 2429; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hato Rey on various dates between Nov. 17, 2003 and Jan. 13, 2004. Adm. Law Judge George Alemán issued his decision Sept. 10, 2004.
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Jerry's Chevrolet, Cadillac, Inc. (16-RC-10571; 344 NLRB No. 87) Hudson Oaks, TX May 23, 2005.
Chairman Battista and Member Schaumber reversed the Regional Director's finding appropriate the petitioned-for single-facility unit of service technicians, apprentices, and lube rack technicians at the Employer's Chevrolet/Cadillac dealership in Hudson Oaks, Texas. The majority concluded, contrary to the Regional Director and dissenting Member Liebman, that the Employer rebutted the single-facility presumption and that the appropriate unit must include service employees employed at all four of the Employer's Hudson Oaks dealerships-Buick, GMC, Pontiac (Buick/GMC), Nissan, Durant Toyota, and Chevrolet/Cadillac.
The majority acknowledged that the service employees work in separate buildings under their respective service center managers and that there is little employee interchange. They found however that those factors are overcome by the close proximity of the dealerships (the petitioned-for dealership is located within 1000 feet of the other three dealerships), the centralization of labor relations, the high functional integration of the dealerships, and the similarity of skills, pay, and job functions at all locations. Because the Petitioner (Machinists) has not indicated a willingness to proceed to an election in the broader unit found appropriate, Chairman Battista and Member Schaumber dismissed the petition.
Member Liebman concluded that the record as a whole supports the Regional Director's finding that the Employer failed to establish that the Chevrolet/Cadillac technicians lack a separate identity from the technicians at the Employer's other dealerships. She stated: "The evidence of substantial autonomy, differences in skills and duties, and lack of interchange, clearly outweighs other factors which might suggest that the Employer has met its burden of rebutting the single-facility presumption in this case. Arguably, a unit covering the technicians at all four of the Employer's dealerships would constitute an appropriate unit as well. That possibility, however, does not alter the fact that the petitioned-for single-facility unit of technicians is an appropriate unit in this case."
(Chairman Battista and Members Liebman and Schaumber participated.)
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Wild Oats Markets, Inc. (34-CA-9586, et al.; 344 NLRB No. 86) Westport, CT May 26, 2005.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1), (3), and (4) of the Act in response to an attempt by Food and Commercial Workers Local 371 to organize employees at the Respondent's store in Westport, Connecticut. The Respondent's misconduct included coercively interrogating employees about their union activities; threatening them with suspension, job loss, or other unspecified reprisals; maintaining an unlawfully broad no-solicitation rule; refusing to hire or consider hiring employees because of their union activities; and reducing the hours of Rosemary Reder because the Union filed NLRB charges on her behalf.
Chairman Battista and Member Schaumber reversed the judge's finding that the Respondent unlawfully threatened employees with loss of benefits, in violation of Section 8(a)(1), by stating in a flyer to employees that "in collective bargaining you could lose what you have now." In their view, considered by itself, the statement was a factually accurate observation regarding a possible negative outcome of collective bargaining, which is protected speech under Section 8(c). See UARCO, Inc., 286 NLRB 55, 58 (1987), petition for review denied 865 F.2d 258 (6th Cir. 1988).
Contrary to her colleagues, Member Liebman would find that, in context, the quoted statement from the Respondent's flyer violated Section 8(a)(1). She noted that:
The flyer equated signing a union authorization card with signing a "blank check", and listed a host of horrible consequences that could ensue, including loss of "what you have now." Thus, the statement in question, considered not in isolation but in the context of the flyer as a whole, could have reasonably led employees to believe that they could lose existing benefits merely by signing a card authorizing the Union to represent them in collective bargaining.
The Board found it unnecessary to pass on the judge's finding that the Respondent unlawfully threatened employees with job loss or other unspecified reprisals by stating in a letter to employees that the Union "would hurt business which we all depend on for our livelihood" because the finding of an additional job-loss threat would not materially affect the remedy and would therefore be cumulative. It modified the judge's recommended Order to conform to the remedy for an unlawful refusal to consider for hire as set forth in FES, 331 NLRB 9, 15 (2000), supplemental decision 333 NLRB 66 (2001), enfd. 301 F,.3d 83 (3d Cir. 2002).
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Food & Commercial Workers Local 371; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Hartford, Nov. 7-9 and 19, 2001. Adm. Law Judge Steven Fish issued his decision June 24, 2002.
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