« 07/22/2005 | Main | 08/05/2005 »
07/29/2005
by Ross Runkel at LawMemo
NLRB Law Memo 07/29/2005
by LawMemo - First in Employment Law
NLRB - Staff summarized 4 decisions.
Cargill Nutrena, Inc. (15-UD-26; 344 NLRB No. 139) Montgomery, AL July 21, 2005.
The Board granted the Employer's request for review of the Regional Director's dismissal of this "decertification" petition as it raises substantial issues warranting review with regard to whether the petition was timely filed. It concluded that the petition was timely mailed under the Board's "Postmark Rule" and should be processed and accordingly, remanded the case to the Regional Director for further appropriate action. The Union involved is the Retail, Wholesale and Department Store Union.
The employer marked the union deauthorization (UD) box on the petition. The Regional Director determined that the Petitioner seeks a decertification election (RD). The Board's analysis is premised on its treatment as an RD petition since it would not apply to an actual UD petition because contract-bar principles are not applicable to UD cases.
The 60- to 90-day "open" period for filing a petition ran from May 3 to June 1, 2005. Upon receipt of the petition on June 2, the Regional Director dismissed the petition as untimely filed because it was not received in the Regional Office during the "open" period before the contract's expiration date.
The Employer contended that the petition was postmarked on May 25, 2005 and that, pursuant to Section 102.111(b) of the Board's Rules and Regulations, the petition should be considered timely filed because it was postmarked earlier than the June 1 due date. The Board agreed that if the petition was postmarked prior to the end of the open period, it is timely filed, citing John I. Haas, Inc., 301 NLRB 300 (1991), that amended Section102.11(b) to bring representation petitions within the postmark rule. It wrote:
Thus, the Board in John I. Haas, Inc., as codified in amended Section 102.111(b), clearly stated its intention to apply the 'postmark' rule to representation petitions, and no longer to require that the timeliness of representation petitions be governed by the date on which they are received in the Regional Office.
Thus, if, as the Employer contends, the petition in this case was postmarked on May 25, 2005, we would find, contrary to the Regional Director, that the petition was timely filed because it was postmarked earlier than the June 1 due date, even though it was received by the Region in the insulated period after the due date.
(Chairman Battista and Members Liebman and Schaumber participated.)
***
Ellison Media Co. (28-CA-19026; 344 NLRB No. 136) Phoenix, AZ July 20, 2005.
The Board reversed the administrative law judge and found that the Respondent violated Section 8(a)(1) of the Act by promulgating an unlawfully broad no-communication rule and by threatening employees with discharge for violating that rule.
At the urging of employee Mary Christie, employee Daniel Miller confronted supervisor Joel Gable about a sexually suggestive comment that Miller thought Gable had made. Miller drafted an e-mail to Christie about the confrontation, but he mistakenly sent the e-mail to Gable. Holding a copy of the e-mail, Gable told Miller that "this needs to stop now" and that if he saw Miller and Christie gossiping anymore, Miller would lose his job. He directed the same order to Christie. The judge found that the order was a lawful prohibition of unprotected gossip, and therefore the threat of discharge for violation of the order was similarly lawful.
In reversing the judge, the Board wrote that the judge erred in failing to consider Gable's statement in its full context, but instead viewing it as referring solely to what the judge found was the unprotected gossip reflected in Miller's e-mail. It found Gable's statement that "this needs to stop now," uttered while holding Miller's e-mail, was unlawful because it reasonably tended to interfere with Miller's free exercise of his Section 7 rights to discuss sexual harassment complaints with other employees.
Chairman Battista and Member Schaumber, with Member Liebman concurring in the result, affirmed the judge's dismissal of the allegation that Christie's discharge violated Section 8(a)(1). Chairman Battista and Member Schaumber agreed with the judge that the General Counsel failed to establish that protected concerted activity was a motivating factor in Christie's discharge because he did not show that the Respondent had knowledge of that activity. While Member Liebman assumed arguendo that the General Counsel satisfied his initial burden under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), she concluded that the Respondent met its burden under Wright Line of establishing that it would have discharged Christie even absent her protected concerted activity.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Mary E. Christie, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Phoenix, Feb. 24-26, 2004. Adm. Law Judge Thomas M. Patton issued his decision Sept. 29, 2004.
***
Liberty Source W, LLC and/or Trafford Distribution Center, its alter ego (6-CA-33661, 33729; 344 NLRB No. 137) Trafford, PA July 22, 2005.
No exceptions were filed to the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide terminated unit employees with severance pay, accrued vacation pay, and compensation to which those employees were entitled under the existing collective-bargaining agreements with the Federation of Independent Salaried Unions and Electrical Workers IUE Local 601.
The Board found merit in the General Counsel's exception to the judge's finding that the record evidence did not demonstrate that the Respondent failed to pay terminated employees' health care benefits, security and protection plan benefits, and commissions required by the applicable contracts and failed to properly remit funds to employees' pension funds. It modified the conclusions of law, remedy, recommended Order, and notice accordingly.
In support of his finding that Trafford Distribution Center is the alter ego of Liberty Source W, LLC, the judge found that Trafford and Liberty Source had substantially identical ownership, management, supervision, business purposes, operations, equipment and premises, and customers. He concluded that the purpose behind the creation of Trafford was to avoid legal obligations under the Act.
Chairman Battista adhered to his position that the General Counsel must show, inter alia, an intent to avoid legal obligations under the Act in order to prove alter ego status. See Crossroads Electric, Inc., 343 NLRB No. 112, slip op. at fn. 2 (2004). However, recognizing that under extant Board law, unlawful motivation is not a necessary element of an alter ego finding, and in the absence of a three-member Board majority to overrule extant Board law, Chairman Battista concurred with his colleagues in the finding of alter ego status.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Federation of Independent Salaried Unions and Electronic Workers (IUE) Local 601; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Pittsburgh, July 19-20, 2004. Adm. Law Judge Paul Bogas issued his decision Nov. 4, 2004.
***
John Pomaville d/b/a John Pomaville Plumbing (7-CA-47830; 344 NLRB No. 138) Lansing, MI July 22, 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 and affirmed the complaint allegations. It found that the Respondent violated Section 8(a)(1) of the Act by advising employees that it did not want union activity in its shop, by directing employees to confirm in writing that they would not engage in union activity, and by conveying the impression to employees that their union activities were under surveillance; and violated Section 8(a)(3) and (1) by permanently laying off employees Tony Hernandez, George Urdiales, and Alfred Walters because of the employees' union sympathies.
The Respondent and Plumbers Local 333 entered into a settlement agreement, which was approved by the Regional Director and required the Respondent to, among other things: pay Hernandez $5244 in backpay, pay Urdiales $6293 in backpay, and pay Walters $7800 in backpay, by no later than Friday, February 18, 2005. The Respondent has failed to remit any of the agreed-upon backpay amounts due employees under the settlement agreement and, pursuant to the terms of the noncompliance provision of the settlement agreement, the Regional Director reissued the complaint and the General Counsel filed a motion for summary judgment.
(Chairman Battista and Members Liebman and Schaumber participated.)
General Counsel filed motion for summary judgment April 22, 2005.
|
|
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
