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NLRB Law Memo 12/23/2005
by Ross Runkel at LawMemo
NLRB Law Memo 12/23/2005
by LawMemo - World's Best
NLRB - Staff summarized 7 decisions this week.
Milford Manor Nursing & Rehabilitation Center (22-CA-26745; 346 NLRB No. 7) West Milford, NJ Dec. 13, 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 furnish all of the information requested in SEIU 1199 New Jersey Health Care Union's letter dated July 23, 2004.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by SEIU 1199 New Jersey Health Care Union's; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark, June 7 and 17, 2005. Adm. Law Judge D. Barry Morris issued his decision Aug. 18, 2005.
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Neptco, Inc. (11-CA-18576; 346 NLRB No. 6) Granite Falls, NC Dec. 13, 2005.
The Board agreed with the administrative law judge's dismissal of allegations that the Respondent threatened employees and prohibited them from wearing union insignia in violation of Section 8(a)(1) of the Act and discharged employees Ken Price and Gordon O'Meara because of their activities for Teamsters Local 61 in violation of Section 8(a)(3) and (1).
Chairman Battista and Member Schaumber reversed the judge's findings that the Respondent violated Section 8(a)(3) and (1) by discharging employees Donald Parnell and Alesa Tingler because of their union activities, and dismissed the complaint in its entirety. They found, unlike the judge, that the General Counsel failed to satisfy his initial Wright Line burden by showing that the discharges of Parnell and Tingler were motivated by union animus.
Dissenting in part, Member Liebman would affirm the judge's finding that the Respondent's discharges of Parnell and Tingler were motivated by antiunion animus and therefore violated Section 8(a)(3) and (1). Contrary to her colleagues, she found that the General Counsel has met his burden of establishing that the discharges were unlawfully motivated. Member Liebman concluded that the Respondent's explanation for summarily firing these two leading union supporters-job performance, socializing after being told to move on, and being away from their respective work areas during work time-without affording them the normal course of progressive discipline under its established disciplinary policy does not stand up.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Teamsters Local 61; complaint alleged violation of Section 8(a)(1)
and (3). Hearing at Morganton, June 12-15, 2000. Adm. Law Judge Richard J. Linton issued his decision Oct. 25, 2000.
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Media General Operations, Inc., d/b/a Richmond Times-Dispatch (5-CA-29157, et al.; 346 NLRB No. 11) Richmond, VA Dec. 16, 2005.
In agreement with the administrative law judge, the Board found that the Respondent violated Section 8(a)(5) of the Act by failing to negotiate over a change regarding paying union negotiators for time spent in bargaining sessions and that it did not violate the Act by unilaterally terminating the holiday bonus or by refusing to provide financial data requested by the Richmond Newspapers Professional Assn.
Chairman Battista and Member Schaumber agreed with the judge that the Respondent did not unilaterally change its past practice in refusing to pay a unit employee for time spent conducting official collective-bargaining functions during arbitration, noting there was no established practice of paying the Union's representatives at arbitration. Member Liebman would find that the Respondent violated Section 8(a)(5) and (1) because the Respondent's practice of paying employees for time spent performing collective-bargaining functions had become an implied term and condition of employment, and the unit employee's role as the Union's representative at the arbitration was such a function.
The Board reversed the judge's finding that Section 10(b) barred the allegation that the Respondent violated Section 8(a)(1) by its disparate enforcement of its computer/e-mail policy. However, it adopted his alternative finding that the Respondent disparately enforced its rule by informing the Union on July 13 and 20, 2000, that it was prohibited from utilizing the Respondent's email and computer systems to send union bulletins and other union-related notices.
The Union filed the unfair labor practice charges alleging disparate enforcement of the computer/e-mail policy on Aug. 7, 2000. The judge found that the Union had clear notice of the policy in 1999, when Union President Jonathan Pope was informed that the computers and e-mail were not to be used for union business. Contrary to the judge, Members Liebman and Schaumber viewed each incident of disparate enforcement of the Respondent's computer/e-mail policy as a separate independent act for purposes of Section 10(b). They noted the breadth of the e-mail usage permitted by the Respondent, which included a wide variety of e-mail messages unrelated to the Respondent's business, and found this case analogous to Seton Co., 332 NLRB 979 (2000). There, the Board held that the employer violated Section 8(a)(1) by discriminatorily enforcing a no-solicitation/no distribution rule against employees' prounion activities while knowingly allowing employees to solicit and distribute antiunion materials. Although the Board found evidence of disparate enforcement that occurred outside the 10(b) period, it emphasized that it was only relying on a warning within the period to establish the violation.
Chairman Battista concurred in the conclusion that there was no 10(b) bar to the complaint's allegation that the Respondent selectively and disparately enforced its policy concerning the use of the Respondent's computers, but he found Seton Co., is inapposite. In his view, where a party, outside the 10(b) period, gives clear and unequivocal notice of a discriminatory practice, and acts consistent with that practice, Section 10(b) would bar an attack on the practice as it continues into the 10(b) period. The Chairman noted that this Respondent gave such clear and unequivocal notice of its discriminatory conduct in May or June 1999, well outside the 10(b) period. However, the Union thereafter used the computers for union business, and the Respondent did not seek to enforce that discriminatory practice. Chairman Battista wrote:
Thus, the Union would reasonably believe that a discriminatory practice was no longer being followed, and would reasonably forego the filing of a charge. However, in July 2000, within the 10(b) period, Respondent renewed its disparate treatment of union activity, and there is no suggestion that it thereafter desisted in this practice. The Union filed its charge in August 2000. In these circumstances, I would find no 10(b) bar to an attack on the July 2000 action.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Richmond Newspapers Professional Assn.; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Richmond, March 18-20, 2002. Adm. Law Judge Bruce D. Rosenstein issued his decision June 4, 2002.
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Wisconsin Bell, Inc., an Ameritech Corp. d/b/a SBC Midwest (30-CA-16442-1; 346 NLRB No. 8) Milwaukee, WI Dec. 15, 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 provide information relating to the extent of subcontracting requested by Communications Workers Local 4603 that was relevant to the Union's grievance handling duties, but not by failing to provide copies of so-called contracts or information concerning pricing. Unlike the judge, the Board found that the Respondent complied with the Union's request for information concerning the subcontractors' identities and the nature and location of subcontracted work. Member Liebman did not participate in the decision on the merits.
(Chairman Battista and Member Schaumber participated.)
Charge filed by Communications Workers Local 4603; complaint alleged violation of Section 8(a)(5). Hearing at Milwaukee, July 22-23, 2004. Adm. Law Judge George Carson II issued his decision Sept. 15, 200.
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Siemens Building Technologies, Inc. (3-CA-24624; 346 NLRB No. 9) Rochester, NY Dec. 14, 2005.
In affirming the administrative law judge's recommendations, the Board found that the Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to recognize and bargain with Operating Engineers Local 832 as the exclusive bargaining representative of its employees at its Fleet facility.
In an earlier decision reported at 345 NLRB No. 91 (2005) (Siemens I), the Board found that the Respondent became a successor employer to Monroe County, New York when it took over the operations of the County's Iola power plant, that a subsequent poll of employees' union sentiments was unlawful, and that the Respondent violated Section 8(a)(1) and (5) by failing to recognize and bargain with the Union. The Respondent began operating the Fleet facility, the facility involved herein, when the Iola plant was decommissioned.
The judge, relying on the standard articulated in Rock Bottom Stores, 312 NLRB 400, 401 (1993), found that the Respondent had a continuing obligation to recognize and bargain with the Union because the operations at the Fleet facility are substantially the same as those at the Iola plant, and because employees formerly employed at Iola constitute a substantial percentage of the Fleet facility's employee complement. Chairman Battista and Member Schaumber noted that a majority of the Fleet employees were former unit employees from the Iola facility, and found it unnecessary to pass on whether the bargaining obligation would exist if some lesser percentage of employees had been transferred.
The Respondent asserted that it has no obligation to bargain regarding its employees at the Fleet facility, contending that it was not a successor of Monroe County at the time it took over the operation of the Iola plant, and that the poll it conducted in June 2003 was valid and demonstrated that the bargaining unit employees "oppose[d] representation by IUOE Local 832." The Board found no merit in the Respondent's exceptions, as to the issue of successorship, in light of its decision in Siemens I. See Detroit Newspapers, 326 NLRB 782 fn. 3, 784-85 (1998) (applying collateral estoppel), enf. denied on other grounds 216 F.3d 109 (D.C. Cir. 2000). The Board also found without merit the Respondent's contention that the judge erred in denying its motion to postpone the hearing in this case until the issuance of Siemens I. See Detroit Newspapers, 326 NLRB at 785.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Operating Engineers Local 832; complaint alleged violation of
Section 8(a)(1) and (5). Hearing at Buffalo, May 4-5, 2004. Adm. Law Judge C. Richard Miserendino issued his decision Aug. 25, 2004.
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Tap Express, Inc. (5-CA-32130, 32181; 346 NLRB No. 10) Virginia Beach, VA Dec. 14, 2005.
The Board granted the General Counsel's motion for summary judgment on the basis of the Respondent's failure to comply with the terms of a settlement agreement which required the Respondent to: (1) pay backpay owed to the discriminatees according to a set schedule; (2) offer reinstatement to five of the discriminatees; (3) expunge all references to unlawful discipline and terminations; and (4) post a notice to employees regarding its unlawful conduct.
The Board determined that by the terms of the settlement agreement, the Respondent's answer to the complaint has been withdrawn and all allegations of the complaint are now deemed to be true. It found that the Respondent committed numerous violations of Section 8(a)(1) and (3) of the Act, which, among others, restrained employees in the exercise of the rights guaranteed in Section 7 of the Act; discriminated in regard to the hire or tenure, or terms and conditions of employment of its employees; and interfered, restrained, and coerced employees, and discriminated in regard to the hire, tenure, or terms and conditions of employment of its employees, thereby discouraging membership in the labor organization.
(Chairman Battista and Members Liebman and Schaumber participated.)
General Counsel filed motion for summary judgment Aug. 4, 2005.
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Waste Management of Arizona, Inc. (28-CA-18542, et al.; 345 NLRB No. 114) Phoenix, AZ Dec. 9, 2005.
Chairman Battista and Member Schaumber found, contrary to the administrative law judge, that the Respondent did not violate Section 8(a)(1) of the Act by creating the impression of surveillance of employees' union activities when Route Manager Alan Rush told driver Samuel Wonderling that he knew employees had held a union meeting. They concluded that Rush's statement "would not have reasonably implied that Rush had monitored employees' activities, given the various other ways in which Rush might have learned of the nonsecret meeting."
In affirming the judge's dismissal of the allegation that the Respondent violated Section 8(a)(3) and (1) by terminating Troy Hoekstra, Chairman Battista and Member Schaumber applied Wright Line, 251 NLRB 1083 (1980). They found that the General Counsel made an initial showing that Hoekstra's union activity was a motivating factor in the Respondent's adverse action against him, and that the Respondent showed that it would have taken the same action even in the absence of the protected conduct. Like they judge, Chairman Battista and Member Schaumber decided that Hoestra lost the Act's protection by engaging in opprobrious and abusive conduct when he complained to Rush that he had been paid less than he was owed, saying: "Hoekstra screamed profanities at Rush in a crowded work area, and repeatedly refused to speak to him in private, preferring to loudly curse at him in front of other employees. His conduct was insubordinate, it disrupted the workplace, and undermined Rush's supervisory authority."
Member Liebman, dissenting, observed that Rush's comment that he knew about the Union meeting was made in the context of other statements that he thought he had been successful in firing all of the union supporters and had tried to make sure that he did not hire any supporters. These statements, considered together, strongly suggested that Rush's knowledge of the union meeting was acquired as part of his ongoing campaign to closely monitor the employees' union activities, Member Liebman said in finding a violation.
Contrary to the majority, Member Liebman concluded that the Respondent failed to show that Hoestra would have been terminated even if he had not engaged in union activity. She noted that Hoekstra, an open and active union supporter, was the target of at least three of the Respondent's violations of Section 8(a)(1) during the union campaign: an unlawful interrogation, a threat of loss of pay, and a threat of futility of organizing. What appeared to be a second pay shortage certainly established a degree of provocation, Member Liebman reasoned, stating: "Given this, the fact that workers often used profanity in the workplace, and Hoekstra's spotless employment record (he was a 7-year veteran with excellent evaluations and no prior disciplinary record), I do not accept that the Respondent would have fired Hoekstra over this one incident, even if he had not been a union supporter. Especially in light of Respondent's clearly intent to fire all union supporters, I would find that the discharge of Hoekstra, violated Section 8(a)(3)."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Teamsters Local 104; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Phoenix, Jan. 26-29, Feb. 17-19, and April 6, 2004. Adm. Law Judge Albert A. Metz issued his decision Aug. 16, 2004.
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NLRB Law Memo 12/16/2005
by Ross Runkel at LawMemo
NLRB Law Memo 12/16/2005
by LawMemo - World's Best
NLRB - Staff summarized 5 decisions this week.
Carpenters Locals 1506, 209, and 743 (31-CC-2121, et al.; 345 NLRB No. 112) Los Angeles, CA Dec. 7, 2005.
Members Liebman and Schaumber, citing Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), and Elevator Constructors Local 2 (Unitec Elevator Services Co.), 337 NLRB 426 (2002), denied Charging Party Marriott Warner Center Woodland Hills' request that the Board accept its late-filed reply brief based on excusable neglect. They found that the Charging Party's asserted reason for the lateness—that it "mis-calendared" the due date through "inadvertent oversight"—did not rise to the level of excusable neglect. Chairman Battista dissented.
Chairman Battista would accept a tardy brief where: (1) all parties have been contacted by the tardy party, and all of them affirmatively consent to the receipt of the tardy document; and (2) the Board has no valid reason of its own for rejecting the tardy document. In his view, the Act encourages parties to cooperate and reach accord. He sees no reason why the Board should reject an all-party agreement to accept a tardy brief, provided that fundamental Board interests are not undermined. Chairman Battista explained: "Accordingly, I would permit the Charging Party here to proceed promptly under step one above. Absent an all-party accord, I would reject the brief. With all-party accord, I would accept the brief. In this latter regard, I do not believe that receipt of a brief that is 1 day late would undermine fundamental Board interests."
While Member Schaumber agrees with those circuit courts that have taken issue with the Board's unduly harsh application of its procedural rules, see Patrician Assisted Living, 339 NLRB 1153 (2003), he agrees that the Board decision in Unitec controls the issue presented by the Charging Party's request. He noted that the new procedure suggested by the dissent was not contemplated by Unitec and thus must await agreement of three Board members to adopt.
(Chairman Battista and Members Liebman and Schaumber participated.)
***
J.J. Cassone Bakery, Inc. (2-CA-32559, et al., 2-RC-22152; 345 NLRB No. 111) Portchester, NY Dec. 6, 2005.
The Board set aside the administrative law judge's decision of Jan. 31, 2002, and remanded the proceeding to the chief administrative law judge for reassignment to a different administrative law judge.
The Respondent, in its exceptions, contended that the judge failed to conduct a careful and independent analysis of the evidence and acted improperly by extensive copying of the posthearing briefs filed by the General Counsel and the Charging Party Union, which provide virtually the entire legal analysis in his decision. The Respondent argued that the judge failed to consider or address any argument made by the Respondent in its own posthearing brief and that the judge's conduct demonstrated that it was biased against it. Therefore, the Respondent requested the Board to order a new hearing.
The Board determined that two aspects of the judge's conduct in copying the parties' posthearing briefs give the appearance of partiality. First, the extent of the judge's copying: comparison of the relevant documents revealed that the majority of the judge's decision was copied verbatim from briefs filed by the General Counsel and the Union. Second, the judge copied verbatim from the briefs both in his factual statement and his substantive legal discussion.
The Board reasoned that the impression given is that the judge failed to conduct an independent analysis of the case's underlying facts and legal issues. In order to dispel the impression of partiality, the Board remanded the case to the chief administrative law judge for reassignment to a different judge. However, it did not order a hearing de novo because a review of the record satisfied the Board that the judge conducted the hearing impartially and in an appropriate judicial manner.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Bakery Workers Local 3 and Cabrillo Flores and Lorenzo Macua, Individuals; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, June 27-29, Oct. 21 and 24, Dec. 11-13 and 15, 2000, and Feb. 26-28, 2001. Adm. Law Judge Howard Edelman issued his decision Jan. 31, 2002.
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Midwest Psychological Center, Inc. (25-CA-29381, 29405; 346 NLRB No. 5) Indianapolis, IN Dec. 9, 2005.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by discharging Yaina Williams and Hyun Kim because they concertedly complained to the Respondent regarding the wages, hours, and working conditions of the Respondent's employees and requested that employees be paid for attending mandatory meetings and compensated for the actual hours worked.
The Respondent excepted to the judge's finding that it is an employer subject to the Board's jurisdiction. The Board found that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act.
Chairman Battista agreed that the Respondent's contentions that the judge was biased in denying its motion for continuance because of a death in the family of the Respondent's president and in his questioning of the Respondent's witnesses, are without merit. He noted that the Respondent did not specifically except to the judge's denial of its motion and, therefore, the judge's decision to deny the motion is not before the Board, only the assertion that his denial of the motion is evidence of his bias. The Chairman also noted that while the judge on occasion engaged in extensive questioning of witnesses, his questioning did not give the appearance of partiality or constitute an attempt to take over the General Counsel's prosecutorial role.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Yaina Williams and Hyun Kim, Individuals; complaint alleged violation of Section 8(a)(1). Hearing at Indianapolis, June 20-21, 2005. Adm. Law Judge John H. West issued his decision Aug. 19, 2005.
***
River Oak Center for Children, Inc. (20-CA-31640-1; 345 NLRB No. 113) Sacramento, CA Dec. 9, 2005.
The Board denied the Respondent's motion summary judgment, granted the General Counsel's motion for summary judgment, and found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide the addresses and telephone numbers of unit employees, as requested in writing by Service Employees Local 535 on about Aug. 4, 2003, during negotiations for a new collective-bargaining agreement.
The Board found that there are no issues warranting a hearing because the Respondent has admitted all relevant factual allegations and it rejected the Respondent's arguments in support of its motion for summary judgment. The Respondent argued that it had already provided the unit employees' addresses to the Union, as required by the parties' collective-bargaining agreement, and that the Union had adequate alternative means to obtain the phone numbers; that even if the requested information was relevant, it was not required to provide the information because there were alternative methods available to the Union to obtain that information; and that because employees' addresses are subject to a contractual right of privacy and confidentiality, the unit employees' privacy rights outweigh the Union's need for the information. In addition, the Respondent argued that the California Constitution and statutes require it to keep personnel records confidential in the circumstances presented here.
The Board held that the Respondent has not shown that it has a legitimate privacy or confidentiality claim justifying its refusal to provide the requested information. It agreed with the General Counsel's contention that under extant precedent the information requested by the Union is relevant and necessary, that the Respondent has not established any affirmative defenses, and therefore that the Respondent must supply the information.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Service Employees Local 535; complaint alleged violation of Section 8(a)(1) and (5). Respondent filed motion for summary judgment April 30, 2004; General Counsel filed motion for summary judgment May 24, 2004.
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Sheet Metal Workers Local 7 (7-CC-1767; 345 NLRB No. 119) Walker, MI Dec. 6, 2005.
The Board approved the administrative law judge's dismissal of the complaint allegations that the Respondent Union violated Section 8(b)(4)(ii)(B) of the Act by threatening to picket Andy J. Egan, Co., a neutral employer, in order to force Egan to stop doing business with Target Construction, Inc., with whom the Union had a labor dispute; and by picketing on a pedestrian bridge and adjacent sidewalk near the jobsite. Chairman Battista and Member Schaumber, with Member Liebman concurring in part, reversed the judge and held that the Union violated Section 8(b)(4)(ii)(B) by picketing at gate 5, which was reserved for neutral employers.
Chairman Battista and Member Schaumber concluded that the picketing at gate 5 violated the standards set forth in Sailors' Union of the Pacific (Moore Dry Dock), 92 NLRB 547, 549 (1950), and gave rise to a presumption that the picketing had an unlawful secondary object, which the Respondent failed to rebut. They relied on: (1) the Union's picketing at gate 5 without any reason to believe that Target was using that gate, demonstrating that the object of the picketing was not limited to the legitimate primary objective of pressuring Target to pay union scale wages and benefits; (2) the Union's claim that it was confused by the reserved gate 7 sign, which listed both Egan and Target, was undermined by Union Business Representative Doug Adams' failure to make any effort to resolve the alleged confusion before sending pickets to gate 5; (3) the pickets' refusal to leave gate 5 even after clear notice from Hunt Construction Manager William Sewall that it was a neutral gate; and (4) the judge's reliance on the alleged "short duration" of the picketing to support his conclusion that the picketing was at most a "technical violation" of Moore Dry Dock that "did not rise to the level of noncompliance."
Member Liebman found that the gate 5 picketing violated Section 8(b)(4)(ii)(B) for two reasons. First, she agreed with her colleagues that the judge's emphasis that the picketing was of short duration (about 50 minutes) and his characterization that the picketing was, at most, a "technical violation" of Moore Dry Dock that "did not rise to the level of noncompliance" had no merit. In her view, if a respondent's conduct violates the Act, the Board should find and remedy that violation.
For her second reason, Member Liebman observed that under long-established precedent, the neutral gate 5 picketing violated the Moore Dry Dock standards. She noted that the Respondent, having picketed at a designated neutral gate, has the burden to justify its disregard of the reserved gate system. Accordingly, the issues are whether, as the Respondent contended, confusion was created because the sign at gate 7, the primary gate, stated that it was reserved for employees of both Target and Egan, and whether that confusion justified the gate 5 picketing. Citing NLRB v. Elevator Constructors, 902 F.2d 1297, 1301 (8th Cir. 1990), Member Liebman concluded that Egan employees' use of gate 7 did not "taint" the reserved gate system or thereby privilege the Union to picket at gate 5, or any other designated neutral gate.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Andy J. Egan Co., Inc.; complaint alleged violation of Section 8(b)(4)(ii)(B). Hearing at Grand Rapids, May 19-20, 2003. Adm. Law Judge Ira Sandron issued his decision Sept. 10, 2003.
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NLRB Law Memo 12/09/2005
by Ross Runkel at LawMemo
NLRB Law Memo 12/09/2005
by LawMemo - World's Best
NLRB - Staff summarized 5 decisions this week.
J.D. Consulting, LLC d/b/a Donaldson Traditional Interiors; J. Rosen Plastering, Inc.; and Cooper Plastering Corp. (29-RC-10336, et al.; 345 NLRB No. 117) Huntington, NY Nov. 30, 2005.
The Board found, contrary to the Regional Director, that the Association (Plastering and Spray Fireproofing Contractors of Greater New York, Inc.), to which the Employers voluntarily belong, voluntarily recognized Intervenor Plasterers and Cement Masons Local 530 under Section 9(a) of the Act and entered into a 9(a) contract. Accordingly it found, unlike the Regional Director, that the single-employer units of plasterers petitioned for by Petitioner Bricklayers Local 1 are not separately appropriate. The Board remanded the matter to the Regional Director for further appropriate action.
The Regional Director found that the collective-bargaining agreement between the Association and the Intervenor is a Section 8(f) agreement and that each of the three petitioned-for single-employer units is a separately appropriate unit. He directed three separate elections in the units sought by the Petitioner. The Employers, the Association, and the Intervenor filed requests for review of the Regional Director's decision. On Aug. 24, 2005, the Board granted the requests for review solely with respect to whether the contract between the Association and the Intervener is governed by Section 9(a) or 8(f) and whether the petitioned-for single employer units are appropriate.
In this decision on review, the Board concluded, contrary to the Regional Director, that (1) the Association voluntarily recognized the Intervenor as the 9(a) representative of a majority of employees employed by each Association member; (2) the Association and the Intervenor memorialized their 9(a) relationship in the current collective-bargaining agreement; and (3) the single-employer units are inappropriate in light of the Employer's bargaining history under Section 9(a) on a multiemployer basis.
(Chairman Battista and Members Liebman and Schaumber participated.)
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North Hills Office Services, Inc. (29-CA-26546; 345 NLRB No. 107) Port Jefferson, NY Nov. 30, 2005.
Chairman Battista and Member Schaumber, with Member Liebman dissenting, reversed the judge and dismissed the complaint allegation that the Respondent violated Section 8(a)(1) of the Act by instructing off duty employee Ruth Perez not to speak with union representatives who were not authorized to be on company property. The judge, although acknowledging that the Respondent would not have violated the Act by telling the union organizer to leave the property, nonetheless concluded that the Respondent could not legally tell its own employees not to talk to a union organizer about union business while on the property during their nonwork time.
The majority disagreed with the judge's conclusion, stating "[T]here is no meaningful difference between the Respondent's telling the union organizer to leave the property and the Respondent's telling Perez to stop talking to the union organizer while on the property. In both instances, the purpose and effect of the instruction is to obtain compliance with a property restriction, one that does not impermissibly restrict Section 7 activity."
Dissenting, Member Liebman would find that the Respondent violated Section 8(a)(1). She wrote that the Respondent did not "seek to enforce the no-access rule against an asserted trespasser. Instead, the Respondent used the rule in a manner that clearly had the effect of restraining Perez' protected activity during an organizing drive." Contrary to her colleagues, Member Liebman believes that: "[T]he Respondent was not really enforcing a no-access rule, it did not really care about the purported trespass. What it wanted was to halt the conversation."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Service Employees Local 32BJ; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn on Feb. 15, 2005. Adm. Law Judge Raymond P. Green issued his decision March 31, 2005.
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Ocean State Jobbers, Inc., d/b/a Ocean State Job Lot (1-CA-42065; 345 NLRB No. 109) North Kingston, RI Nov. 30, 2005.
The Board agreed with the administrative law judge's finding that by suspending and discharging employees Elio Padilla, Juan Saravia, and Edgar Anez because of their activities on behalf of Food & Commercial Workers Local 328, the Respondent violated Section 8(a)(3) and (1) of the Act. In adopting the judge's finding, the Board did not rely on footnote 19 of his decision or his statement that "[c]hanging one's social security number is not an easy, or a quick thing to do; changing one's name is even harder." It found no evidence to support this statement.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Food & Commercial Workers Local 328; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Pawtucket and Providence, May 2-4, 2005. Adm. Law Judge David L. Evans issued his decision Aug. 30, 2005.
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Postal Workers (13-CB-17865; 345 NLRB No. 115) Chicago, IL Nov. 30, 2005.
The Board affirmed the administrative law judge's finding and dismissed the complaint allegation that the Respondent violated Section 8(b)(1)(A) of the Act by failing and refusing to pay under a global grievance settlement agreement moneys owed to the estate of 10 former Postal Service employees, all of whom ceased working for the Postal Service prior to the consummation of the settlement agreement and passed away prior to the distribution of settlement moneys.
In affirming the judge's conclusions, the Board did not rely on his statement that a union owes no duty of fair representation to a deceased employee. Even assuming that the Union here owed such a duty, it found that the General Counsel failed to show that the Union acted arbitrarily.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Sylvia R. Williams, an Individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Chicago on June 16, 2005. Adm. Law Judge C. Richard Miserendino issued his decision Sept. 9, 2005.
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Riverboat Services of Indiana, Inc. (13-CA-36708, et al.; 345 NLRB No. 116) East Chicago, IN Nov. 30, 2005.
The Board affirmed the administrative law judge and held that by threatening its employees and discharging Adam Doncet, Thomas Trundy, Thomas Goodridge, and Robert Palmer, Jr. because of their protected concerted activities in contacting the Coast Guard about their working conditions, the Respondent violated Section 8(a)(1) of the Act.
The Respondent argued that the complaint should be dismissed because the Charging Parties, who were employed as assistant chief engineers, were supervisors under Section 2(11). The Board disagreed, citing NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, in which the Supreme Court upheld the Board's rule that the burden of providing 2(11) supervisory status rests with the party asserting it. The Board agreed with the judge that the Respondent failed to meet that burden.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Thomas Trundy, Thomas Goodridge, Adam Doncet, and Robert Palmer, Jr., Individuals; complaint alleged violation of Section 8(a)(1). Hearing at Chicago, IL, July 26-27, 1999. Adm. Law Judge David L. Evans issued his decision Sept. 23, 1999.
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