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Add to Google button
by Ross Runkel at LawMemo
OK, I'm quite a Google fan.
- Look to the left margin. See the Add to Google button.
- Click it and you're on your way to two different ways to keep up-to-date with NLRB Law Memo.
- I use it to keep up-to-date with other sites, and it works quite well.
- Oh, yes, free is a very good price.
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11/25/2005
by Ross Runkel at LawMemo
NLRB Law Memo 11/25/2005
by LawMemo - World's Best
NLRB - Staff summarized 1 decision this week.
Arizona Mechanical Insulation, LLC (28-CA-28622(E); 345 NLRB No. 106) Hereford, AZ Nov. 16, 2005.
The Board affirmed the administrative law judge's recommendation, as modified, and ordered that the Applicant, Arizona Mechanical Insulation, LLC (AMI) be awarded $9,700.04 pursuant to its Equal Access to Justice Act application. No exceptions were filed to the judge's finding that the Applicant is entitled to $8,402.54 in fees and expenses. The Respondent requested, and the Board added, $1,297.50 for attorneys' fees incurred in responding to the General Counsel's exceptions.
By an unpublished Order dated May 20, 2004, the Board adopted, absent exceptions, the judge's dismissal of the complaint alleging that AMI violated Section 8(a)(5) and (1) of the Act by failing to sign the master agreement negotiated in 2002 between the Western Insulation Contractors Association and Asbestos Workers Local 73. The judge found that the evidence did not establish that AMI was bound by the group bargaining.
In his supplemental decision, the judge found that the General Counsel's position—that AMI had made a binding commitment to group negotiations—was not reasonable in law or fact and that there are no special circumstances that would make an award of attorney fees and expenses unjust.
(Chairman Battista and Members Liebman and Schaumber participated.)
Adm. Law Judge Thomas M. Patton issued his supplemental decision May 12, 2005.
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11/18/2005
by Ross Runkel at LawMemo
NLRB Law Memo 11/18/2005
by LawMemo - World's Best
NLRB - Staff summarized 2 decisions this week.
Ironwood Plastics, Inc. (30-CA-16852-1; 345 NLRB No. 105) Ironwood, MI Nov. 10, 2005.
The administrative law judge found, with Board approval, that the Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging Jodi Bennetts because she supported the Auto Workers and engaged in other protected concerted activities. In defense, the Respondent asserted that it discharged Bennetts for unacceptable behavior, including unprofessional treatment of other team members and disrupting other employees on the plant floor.
Assuming that the General Counsel met his initial burden to demonstrate that the Respondent's discharge of Bennetts was motivated by antiunion animus, Chairman Battista and Member Schaumber found that the Respondent met its burden of proving by a preponderance of the evidence that it would have discharged Bennetts even in the absence of her union activities. They also agreed with the judge that the General Counsel did not make an initial showing that the Respondent's denial of Bennetts' leave request was motivated by union animus.
In Member Liebman's view, the General Counsel clearly met its initial burden to show unlawful motivation for each act of alleged discrimination, but she found that the preponderance of the evidence showed that the Respondent would have denied Bennetts' leave request, disciplined her, and ultimately discharged her, even in the absence of her union activity.
There were no exceptions to the judge's findings that the Respondent violated Section 8(a)(1) by threatening employees with loss of their jobs and other unspecified reprisals for engaging in union or other protected concerted activities, restricting employees' exercise of their Section 7 rights, interrogating employees about their support for a union, and engaging in surveillance of the employees' union activities. Exceptions were also not filed to the judge's dismissal of complaint allegations that the Respondent violated Section 8(a)(1) by assisting an antiunion employee, and by soliciting grievances. The Board found that a broad order requiring the Respondent to cease and desist from violating the Act "in any other manner" is not warranted and substituted a narrow cease-and-desist order requiring the Respondent to cease and desist from violating the Act "in any like or related manner."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by the Auto Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Ironwood, Feb. 16-17, 1005. Adm. Law Judge Michael A. Rosas issued his decision June 30, 2005.
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Newcor Bay City Div. of Newcor, Inc. (7-CA-47590; 345 NLRB No. 104) Bay City, MI Nov. 8, 2005.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to supply the requested census data (bargaining unit employees' names, seniority dates and dates of birth) to the Auto Workers and its Local 496 without unnecessary delay; and by unilaterally implementing the terms set forth in its final contract proposal effective June 11, 2004, without bargaining in good faith to a valid impasse. The Board modified the judge's remedy to include appropriate remedial provisions for any loss of wages or benefits suffered by employees.
In affirming the judge's finding that the Respondent unlawfully implemented its final contract proposal without bargaining in good faith to a valid impasse, Member Schaumber did not rely on the judge's alternative rationale that the parties were not at a valid impasse because the Respondent had failed to provide the Union with requested information.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by the Auto Workers and its Local 496; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Bay City, Jan. 11-12, 2005. Adm. Law Judge Paul Bogas issued his decision April 26, 2005.
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11/16/2005
by Ross Runkel at LawMemo
The Whitehouse announced on November 16, 2005: "The President intends to nominate Peter N. Kirsanow, of Ohio, to be a Member of the National Labor Relations Board, for the remainder of a five-year term expiring August 27, 2008. Mr. Kirsanow is currently a Partner with Benesch Friedlander Coplan & Aronoff, LLP. In addition, he serves as a Member of the United States Commission on Civil Rights. Mr. Kirsanow previously served as Senior Legal Counsel for Leaseway Transportation Corporation in Cleveland, Ohio. Prior to that, he served as Labor Counsel for the City of Cleveland. Earlier in his career, Mr. Kirsanow practiced law with Calfee, Halter & Griswold, LLP. He received his bachelor's degree from Cornell University and his JD from Cleveland Marshall College of Law."
This biography from the web site of Benesch Friedlander Coplan & Aronoff, LLP.
Mr. Kirsanow focuses his practice on representing management in employment-related litigation, as well as in contract negotiations, NLRB proceedings, EEO matters, and arbitration. He frequently testifies before and advises members of the U.S. Congress on various employment laws and issues.Mr. Kirsanow formerly served as senior labor counsel of Leaseway Transportation Corp. and labor counsel for the city of Cleveland.
He has extensive experience in public sector employment matters as well as in industries such as heavy manufacturing, trucking, health care, radio and television and employee leasing.
Mr. Kirsanow is past chair of the board of directors of the Center for New Black Leadership, is on the advisory board of the National Center for Public Policy Research and has been an adjunct professor at Cleveland Marshall College of Law.
Mr. Kirsanow was appointed by President Bush to the U.S. Commission on Civil Rights in December 2001.
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11/14/2005
by Ross Runkel at LawMemo
NLRB Law Memo 11/14/2005
by LawMemo - World's Best
NLRB - Staff summarized no decisions this week.
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11/04/2005
by Ross Runkel at LawMemo
NLRB Law Memo 11/04/2005
by LawMemo - World's Best
NLRB - Staff summarized 3 decisions this week.
Land-O-Sun Dairies d/b/a Pet Dairy (10-CA-35522; 345 NLRB No. 101) Kingsport, TN Oct. 28, 2005.
The Board affirmed the administrative law judge's conclusion that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide Teamsters Local 549 with requested information (pay records of certain route salesmen), which was relevant and necessary to the Union as the collective-bargaining representative of the Respondent's production, distribution, maintenance, and clerical employees.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Teamsters Local 549; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Kingsport on June 29, 2005. Adm. Law Judge George Carson II issued his decision Aug. 10, 2005.
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Integrated Electrical Services, Inc., d/b/a Primo Electric (5-CA-31829; 345 NLRB No. 99) Glen Burnie, MD Oct. 24, 2005.
The Board agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating the employment of master electrician William Hughes on October 10, 2003, because he engaged in protected union activities. Chairman Battista concurred in the result, but with a different rationale.
Applying a Wright Line analysis, the judge found that the General Counsel showed that Hughes' protected activity was a motivating factor in the Respondent's decision to discharge him. He found that the Respondent's alleged nondiscriminatory reasons for discharging Hughes were pretextual and that the Respondent would not have discharged Hughes in the absence of his protected activity. In this regard, the judge concluded that human relations director, Perini, did not have a good faith belief that Hughes had engaged in misconduct. Citing NLRB v. Burnup & Sims, 379 U.S. 21, 23 (1964), and Keco Industries, 306 NLRB 15, 17 (1992), the judge alternatively found that even if Perini did have such a good-faith belief, Hughes' discharge would be unlawful because he was engaged in protected activity and did not engage in misconduct.
Members Liebman and Schaumber found that, in light of the judge's initial finding that Perini did not have a good faith belief that Hughes had engaged in misconduct, Burnup & Sims and its progeny do not apply to the facts here.
Chairman Battista observed that although the Respondent's reasons for Hughes' discharge were the distribution of a prounion CD and the alleged lying about it, the issue is not motive but whether Hughes engaged in misconduct during the course of that union activity, i.e., whether the distribution was on work time. He found that the Wright Line test for determining motive is unnecessary and that instead the issues are (1) whether the Respondent had a good-faith belief that Hughes engaged in the misconduct and (2) if Respondent had such a belief, whether Hughes in fact engaged in the misconduct. Chairman Battista concluded that the Respondent did not show that it had a good-faith belief that Hughes engaged in misconduct.
Member Schaumber agreed that the General Counsel established a prima facie case of discrimination under Wright Line and found it unnecessary to rely on the September 2, 2003 OSHA complaint as evidence of Respondent's antiunion animus.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Electrical Workers IBEW Local 24; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Baltimore, Sept. 28-29, 2004. Adm. Law Judge Eric M. Fine issued his decision Feb. 10, 2005.
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United States Postal Service and National Rural Letter Carriers' Assn. (28-CA-19175(P), 19618(P), and 28-CB-6075(P); 345 NLRB No. 100) Scottsdale, AZ Oct. 25, 2005.
In affirming the administrative law judge, the Board held that the Respondent Postal Service violated Section 8(a)(1) of the Act and Respondent National Rural Letter Carriers violated Section 8(b)(1)(A) and 8(b)(2) by maintaining in a document entitled "National Guidelines for the Quality of Work Life/Employee Involvement Process" a clause requiring that an employee selected for the position of rural letter carrier academy instructor be a member of the Respondent Union.
Further, the Board affirmed the judge's finding that the Respondent Postal Service violated Section 8(a)(1) by interrogating and threatening its employees, and informing them that they could reapply for a position as an instructor if they rejoined the Union and that they must be members of the Union in order to be selected for, or retain, the instructor position. The Board also agreed with the judge that the matter of assignment to the instructor position is a term of employment so that the Respondents' discrimination of Kathy O'Toole and Jeffrey Houlter regarding assignment to the instructor position violated Section 8(a)(3) and 8(b)(2).
Affirming the judge's recommendation, the Board required that the Respondent offer O'Toole reinstatement to the instructor position and offer Houlter appointment to the instructor position. It did not affirm the judge's recommended Order to the extent that it provided a reinstatement-appointment remedy for any other employees (other than O'Toole) at the Kachina station who were removed from the instructor position because they were not union members and rejected the General Counsel's request that the recommended order be modified to provide a nationwide reinstatement-appointment remedy.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Kathy O'Toole, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4) and Section 8(b)(1)(A) and 8(b)(2). Hearing at Phoenix, Sept. 28-30 and Nov. 15-16, 2004. Adm. Law Judge Gregory Z. Meyerson issued his decision Feb. 17, 2005.
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