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NLRB Law Memo 01/27/2006
by Ross Runkel at LawMemo
NLRB Law Memo 01/27/2006
by LawMemo - World's Best
NLRB - Staff summarized no decisions this week.
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NLRB Law Memo 01/23/2006
by Ross Runkel at LawMemo
NLRB Law Memo 01/23/2006
by LawMemo - World's Best
NLRB - Board now at full strength.
The President has recess appointed Dennis P. Walsh to be a Member of the National Labor Relations Board. This brings the Board to its full strength of five Members.
NLRB - Staff summarized 4 decisions this week.
Advocate South Suburban Hospital (13-CA-42246; 346 NLRB No. 23) Hazel Crest, IL Jan. 10, 2006.
The Board affirmed the findings of the administrative law judge and held that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating employee Susan Hall about her union sympathies, creating the impression that its employees' union activities were under surveillance, and threatening Susan Hall with unspecified reprisals because of her union activities.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Service Employees; complaint alleged violation of Section 8(a)(1). Hearing at Chicago, July 11-12, 2005. Adm. Law Judge Karl H. Buschmann issued his decision Sept. 21, 2005.
***
Alan Ritchey, Inc. (28-CA-18282, et al.; 346 NLRB No. 26) Flagstaff, AZ Jan. 13, 2006.
Chairman Battista and Member Schaumber, with Member Liebman concurring in part and dissenting in part, adopted the recommendations of the administrative law judge and dismissed the complaint allegations that the Respondent violated Section 8(a)(3) of the Act by discharging employee David LaValley and violated Section 8(a)(5), (2), and (1) by conducting its Dec. 13, 2002 poll of employees as to whether they wanted LaValley to remain as their bargaining representative.
The Board set forth its reasoning for dismissing the complaint because the judge, in dismissing the Section 8(a)(3) allegation, failed to articulate his analysis in terms of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); and because the judge failed to give adequate reasons for his finding that the Respondent did not violate Section 8(a)(5), (2), and (1).
Member Liebman did not agree with her colleagues that the Respondent's polling was not coercive. She explained that even if the Respondent had a legitimate interest in determining the identity of the Union's negotiator, the Respondent was not without less intrusive alternatives and could have and should have communicated with LaValley himself. Member Liebman added: "Employers simply are not entitled to intermeddle in union affairs as the employer here did. Accordingly, I would conclude that the Respondent's polling violated both Section 8(a)(1) and (2) of the Act." In view of this finding, she did not address the majority's 8(a)(5) direct-dealing discussion.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by David LaValley and Alan Ritchey Drivers Employed under USPS Contract HCR 75120, 38121; complaint alleged violation of Section 8(a)(1), (2), (3), and (5). Hearing at Phoenix, April 1-2, 2003. Adm. Law Judge Gerald A. Wacknov issued his decision July 3, 2003.
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Classic Sofa, Inc. (2-CA-34575, et al.; 346 NLRB No. 25) New York, NY Jan. 12, 2006.
The Board affirmed and reversed certain of the administrative law judge's findings that the Respondent committed numerous violations of Section 8(a)(1) and (3) of the Act. Among others, the Board found that the Respondent violated the Act by creating the impression of surveillance of its employees' activities on behalf of Amalgamated Industrial Union Local 76B and by laying off its employees because of their membership in or their activities on behalf of the Union. It reversed the judge's finding that the Respondent violated Section 8(a)(3) and (1) by delaying employee Francisca Rivera's return from layoff by 1 day, until May 13, 2002, and that the Respondent violated Section 8(a)(1) by soliciting employee Musa Iri to persuade other employees to oppose the Union. The Board modified the judge's recommended order to conform with its findings.
In his partial dissent, Member Schaumber wrote: "Unlike my colleagues, I would not find that the Respondent unlawfully created the impression of surveillance when (1) Maurice Stone told Musa Iri: 'Congratulations . . . you joined the Union' and (2) Jeffrey Stone told Musa Iri that Atlas had brought in the Union." In his view, Maurice Stone's remark to Iri would not reasonably lead Iri to believe that the Respondent acquired its knowledge of his activities by unlawful means because the judge found that Iri was an ardent and active union supporter who regularly engaged in pro-union activities both inside and outside an intimate and closely supervised workplace. Regarding Jeffrey Stone's remark to Iri, Member Schaumber found that Stone's statement was insufficient to establish an impression of surveillance violation.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Amalgamated Industrial Union Local 76B; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, Oct. 20-21, Nov. 25-26 and Dec. 23, 2003, and Aug. 30, 2004. Adm. Law Judge Howard Edelman issued his decision Jan. 11, 2005.
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Sheet Metal Workers Local 15 (12-CC-1258, et al., 12-CG-13; 346 NLRB No. 22) Brandon, FL Jan. 9, 2006.
The Board approved the administrative law judge's finding that the Respondent violated Section 8(b)(4)(ii)(B) of the Act by unqualifiedly threatening to picket with the object of forcing Beall's, Inc., to cease doing business with nonunion sheet metal contractor Energy Air, Inc., at its jobsites in Oldman and Ormond, FL; and violated Section 8(g) by failing to give notice to Brandon Regional Medical Center of its intention to picket on March 15, 2004.
In affirming the judge's finding that the Respondent, in furtherance of its primary dispute with Massey Metals and WTS, unlawfully picketed at the neutral secondary site of the Brandon Regional Medical Center, the Board agreed with the judge that the Respondent's conduct in holding a "mock funeral procession" at the site constituted picketing. The procession accompanied by leafleting, involved members of the Respondent patrolling on the public sidewalk in front of the Medical Center while carrying a faux casket and accompanied by a member dressed as the Grim Reaper. The Board reversed the judge's finding that the Respondent's leafleting conducted during the mock funeral was unlawful because the complaint did not allege the leafleting violated the Act and the General Counsel, in his answering brief, expressly disavowed that the leafleting as unlawful.
Member Liebman joined her colleagues in finding that the Respondent violated Section 8(b)(4)(ii)(B) by engaging in the mock funeral procession, saying: "The gravamen of the violation is not that patrollers carried a faux casket and a costumed 'grim reaper' figure carrying a large sickle, for these expressive displays offer 'mere persuasion' and do not serve to erect a physical or symbolic barrier to the Medical Center's entrance. Rather, it is the patrolling itself that erected a barrier to entering the hospital."
Chairman Battista and Member Schaumber agreed with Member Liebman as to the reasons why the Respondent's conduct was picketing. However, they did not necessarily agree with her to the extent that she implied that picketing required a physical or symbolic barrier.
The judge found, with Board approval, that Respondent, in its Sept. 26, 2003 letter to CVS pursuant to its labor dispute with Energy Air, did not violate Section 8(b)(4)(ii)(B). In its letter, the Respondent indicated that it understood that Energy Air "may be bidding" on future CVS projects and that there would be leafleting and protesting at the site if Energy Air worked on any CVS projects. The General Counsel and Energy Air argued that the letter should be read in context with an attached newspaper article that described the Respondent's display of a large inflatable rat during the Respondent's protest at a CVS construction site 3 months earlier.
Assuming that the letter is to be read in context with the newspaper article, and assuming further, but without deciding, that the previous display of the rat constituted picketing, the Board agreed with the judge that the newspaper article reported that the Respondent's activities at the previous CVS construction site appeared to have been confined to the primary employer and, therefore, would not have violated Section 8(b)(4)(ii)(B). It therefore determined that the letter and article indicated that whatever protest activity that the Respondent intended to undertake at a future CVS site would likewise be primary and in conformity with the standards set forth in Sailors Union (Moore Dry Dock), 92 NLRB 547 (1950).
The Board found it unnecessary to pass on the judge's findings that the Respondent additionally violated Section 8(b)(4)(ii)(B) by displaying a large inflatable rat on public property near the front vehicle and doorway entrances to the Medical Center and by the conduct of Brandon Holly who the judge found held a leaflet in front of his chest as a placard because such findings would be cumulative and would not affect its remedial order. Member Schaumber noted that the General Counsel alleges only that the display of the rat violated Section 8(b)(4)(ii)(B) and does not allege that the display violated Section 8(b)(4)(i)(B).
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Galencare, Inc., d/b/a Brandon Regional Medical Center and Energy Air, Inc.; complaint alleged violation of Section 8(b)(4)(ii)(B) and Section 8(g). Hearing at Tampa on Sept. 14, 2004. Adm. Law Judge George Carson II issued his decision Dec. 7, 2004.
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NLRB Law Memo 01/13/2006
by Ross Runkel at LawMemo
NLRB Law Memo 01/13/2006
by LawMemo - World's Best
NLRB - Staff summarized no decisions this week.
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NLRB Law Memo 01/09/2006
by Ross Runkel at LawMemo
NLRB Law Memo 01/09/2006
by LawMemo - World's Best
NLRB - Staff summarized 5 decisions.
Jackson Terrace Associates (29-RD-1037; 346 NLRB No. 18) Hempstead, NY Dec. 30, 2005.
The Board reversed the Regional Director's Decision and Direction of Election and dismissed the petition. It found, contrary to the Regional Director, that the Employer and Intervenors National Organization of Industrial Trade and Industrial Production Employees Local 72 signed a collective-bargaining agreement before Petitioner Delano Thompson filed his decertification petition and, therefore, the agreement constituted a bar to the petition.
The Employer and the Intervenors contended that the collective-bargaining agreement was signed on Dec. 31, 2004, before the petition was filed on Jan. 18, 2005. However, the Regional Director concluded that the agreement did not bar the certification, asserting that inconsistencies in the testimony and documentary evidence made it impossible to determine when the agreement was actually signed and that the evidence therefore was too uncertain to permit a finding that it was signed before the decertification was filed. The Board determined that based on the entire record, the Employer and the Intervenors have met their burden of showing that they signed their agreement on or before Dec. 31, 2004, prior to the Jan. 18, 2005 date on which the Petitioner filed a decertification petition.
(Chairman Battista and Members Liebman and Schaumber participated.)
***
Kentucky Electric Steel Acquisitions (9-CA-41511; 346 NLRB No. 20) Coalton, KY Dec. 30, 2005.
The Board adopted the recommendations of the administrative law judge and found that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to consider and hire Harry Chaffin because he engaged in protected concerted conduct, and violated Section 8(a)(1) and (4) by refusing to consider Chaffin for employment because he filed an unfair labor practice charge.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Harry K. Chaffin, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Ironton, OH, April 12-13, 2005. Adm. Law Judge Michael A. Rosas issued his decision Sept. 14, 2005.
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Mail Contractors of America, Inc., Kansas City Terminal (17-CA-21836; 346 NLRB No. 16) Kansas City, KS Dec. 28, 2005.
The Board adopted the recommendations of the administrative law judge and dismissed the complaint allegations that the Respondent violated Section 8(a)(1) and (5) of the Act by making unilateral changes in a health benefit plan for a unit of employees at the Employer's terminal in Kansas City, Kansas, without affording the exclusive representative of the employees prior notice and an adequate opportunity to bargain.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Postal Workers Des Moines Area Local; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Overland Park, KS, Aug. 26-27 and Nov. 4-6, 2003. Adm. Law Judge Thomas M. Patton issued his decision Sept. 9, 2004.
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Pan American Grain Co., Inc. and Pan American Grain Mfg. Co., Inc. (24-CA-10014; 346 NLRB No. 21) San Juan, PR Dec. 30, 2005.
The Board adopted the recommendations of the administrative law judge and found that by failing and refusing, since Aug. 17, 2004, to furnish Congreso de Uniones Industriales de Puerto Rico with the information requested in the Union's letters dated Aug. 17, Sept. 8, and Oct. 5, 2004, the Respondent has failed and refused to bargain in good faith in violation of Section 8(a)(1) and (5) of the Act.
The Board, in agreement with the judge, found it appropriate to issue a broad remedial order given the number, variety, and seriousness of the Respondent's unfair labor practices in this and other cases. It wrote: "We find that the Respondent has demonstrated a proclivity to violate the Act, not just Section 8(a)(5), as here, but also the Act as a whole. Further, the Respondent has repeatedly disregarded its obligation to provide relevant information sought by the Union. . . . [T]his is the third time in a 5-year period that the Respondent has willfully refused to provide relevant information."
Member Schaumber joined his colleagues in issuing a broad order. He agreed, as certain of the cases cited reflect, "that the Respondent has engaged in a widespread and persistent pattern of attempts by varying methods, to interfere with legislatively protected rights, and that this pattern of conduct demonstrates a general disregard for fundamental statutory rights and raises the threat of continuing and varying efforts to frustrate those rights in the future."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Congreso de Uniones Industriales de Puerto Rico; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Juan on Aug. 3, 2005. Adm. Law Judge Michael A. Marcionese issued his decision Aug. 26, 2005.
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WGE Federal Credit Union (25-CA-29101; 346 NLRB No. 19) Muncie, IN Dec. 30, 2005.
Chairman Battista and Member Schaumber, with Member Liebman dissenting, granted the Respondent's motion to file exceptions and brief in support beyond the time prescribed in the Board's Rules and Regulations. Accordingly, they transmitted the Respondent's exceptions and brief in support to the Board for consideration and advised the parties that pursuant to Section 102.111(c) of the Board's Rules and Regulations, briefs responding to the documents and/or cross-exceptions are due in Washington, DC by close of business Jan. 13, 2006.
Exceptions to the administrative law judge's decision were due on Sept. 7, 2005. The Respondent submitted its exceptions and brief in support using the Board's e-filing procedures on its Web site on Sept. 7 at 5:30 p.m. and 5:42 p.m. respectively. By letter dated Sept. 8, the Board's Associate Executive Secretary rejected the filings as untimely as the documents were received after the 5:00 p.m. "official closing time" of the Board. See Section 102.111(b) of the Board's Rules and Regulations.
The Respondent's counsel asserted that based on her experience with federal court e-filings, she incorrectly thought that she had until midnight on Sept. 7, 2005 to timely e-file exceptions. Shortly before 5 p.m. on the due date, counsel stated that she became aware that the Board's rules required that this filing occur by 5 p.m. When she spoke to the Board's Executive Secretary's Office about the deadline, she was told that she could seek an extension of time, but that there were no assurances that the request would be granted. Therefore, counsel decided to try to complete and file the exceptions and brief by the 5 p.m. deadline.
Chairman Battista and Member Schaumber concluded that although counsel for Respondent was guilty of neglect, the issue was whether the Board should, equitably, excuse this neglect. In this case, the majority concluded that they should excuse the neglect, noting that the attorney tried mightily, and in good faith, to complete the exceptions in time and, while she missed the deadline by a matter of minutes, no one was prejudiced by the delay.
Member Liebman would deny the Respondent's motion, which is opposed by the General Counsel and the Charging Party, saying "the Respondent fails to point to any substantial reason for excusing the neglect of its counsel." She noted that Respondent's counsel was charged with knowing the Board's rules and procedures, those rules and procedures were clear, and no factors outside of her control impeded her from complying with them. Member Liebman added that while the Board now permits parties to submit exceptions and any supporting brief electronically, such documents must be "received by the Board . . . before the official closing time [5:00 p.m.] . . . on the last day of the time limit."
(Chairman Battista and Members Liebman and Schaumber participated.)
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NLRB Law Memo 01/07/2006
by Ross Runkel at LawMemo
NLRB Law Memo 01/07/2006
by LawMemo - World's Best
NLRB - Recess appointments of Member and General Counsel
The President has recess appointed one NLRB Member and a new General Counsel.
Details: http://www.lawmemo.com/blog/
Peter N. Kirsanow was appointed to be a Member of the National Labor Relations Board for the remainder of a five-year term expiring August 27, 2008. Ronald E. Meisburg was appointed to be General Counsel. This bring the Board membership up to four (of a possible five): three Republicans and two Democrats. The nomination of Democrat Dennis P. Walsh to be a Member of the NLRB is still pending in the Senate.
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NLRB Law Memo 01/04/2006
by Ross Runkel at LawMemo
NLRB Law Memo 01/04/2006
by LawMemo - World's Best
NLRB - Staff summarized 6 decisions.
T-West Sales and Service, Inc. d/b/a Desert Toyota (28-CA-19447, 19524; 346 NLRB No. 1) Las Vegas, NV Dec 23, 2005.
Pursuant to its decisions in Desert Toyota, 346 NLRB No. 3 (2005) (Desert Toyota I) and Desert Toyota, 346 NLRB No. 4 (2005) (Desert Toyota II), the Board reversed the administrative law judge and dismissed the complaint allegation that the Respondent, among other things, violated Section 8(a)(5) and (1) of the Act by failing to bargain in good faith, failing to provide requested information, and failing to notify and bargain with Machinists Local 845 about disciplinary action taken with respect to two employees. In the absence of exceptions, the Board approved the judge's dismissal of the remaining allegations that the Respondent violated Section 8(a)(3), (4), and (1) when it suspended employees Clayton Lamoya and suspended and discharged employee Thomas Pranske.
In Desert Toyota I Chairman Battista and Member Schaumber found that the Respondent did not have an obligation to bargain with the Union as the exclusive collective-bargaining representative of its employees and reversed the judge's recommendation that a Gissel (NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)) bargaining order issue. Member Liebman dissented from the denial of a bargaining order in Desert Toyota I, but agreed that the Board majority's decision there is dispositive here.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Machinists Local 845; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Las Vegas, Oct. 5-7, 2004. Adm. Law Judge Albert A. Metz issued his decision March 25, 2005.
***
T-West Sales and Service, Inc. d/b/a Desert Toyota (28-CA-20207; 346 NLRB No. 2) Las Vegas, NV Dec. 23, 2005.
The Board adopted the recommendation of the administrative law judge and dismissed the complaint allegation that the Respondent violated Section 8(a)(5) and (1) of the Act when it refused to provide information on various dates between November 2004 and March 2005 and when it unilaterally changed the matching contributions for employees enrolled in its 401(k) plan.
In light of the Board's reversal of the bargaining order recommended in Desert Toyota, 346 NLRB No. 3 (2005) (Desert Toyota I), it found that the Respondent did not have an obligation to bargain with Machinists Local 845 as the exclusive collective-bargaining representative of its employees. Member Liebman dissented from the denial of a bargaining order in Desert Toyota I, but agreed that the Board majority's decision there is dispositive in this case.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Machinists Local 845; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Las Vegas on June 29, 2005. Adm. Law Judge William G. Kocol issued his decision Aug. 24, 2005.
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T-West Sales & Service, Inc. d/b/a Desert Toyota (22-CA-17904, 18065; 346 NLRB No. 3) (Desert Toyota I) Las Vegas, NV Dec. 23, 2005.
http://www.nlrb.gov/nlrb/shared_files/decisions/346/346-3.htm
The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) when it: (1) maintained an overly broad no-solicitation rule; (2) coercively interrogated the service advisors, who worked with the technicians, solicited them to report on others' union activities, and created an impression of surveillance; (3) coercively interrogated, solicited grievances from, and impliedly promised benefits to service technician Jorge Galindo; and (4) coercively interrogated service technician Thomas Pranske twice and made statements to Pranske linking Galindo's discharge to his support of Machinists Local 744. It also found that the Respondent violated Section 8(a)(3) and (1) when it discharged Galindo.
Unlike the judge, Chairman Battista and Member Schaumber found that the coercive effects of the Respondent's unlawful conduct can be alleviated by the use of the Board's traditional remedies and, therefore, reversed the judge's recommendation that a Gissel (NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)) bargaining order issue. Contrary to her colleagues, Member Liebman indicated in a footnote that she would find a Gissel bargaining order warranted in this case. In her view, the Respondent had committed hallmark violations, not only unlawfully discharging the primary union activist, Galindo, but also indirectly threatening another employee whom it questioned about Galindo's union involvement.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Machinists 744; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Las Vegas, Sept. 10-11, 2002. Adm. Law Judge Lana Parke issued her decision Nov. 13, 2002.
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T-West Sales & Service, Inc. d/b/a Desert Toyota (28-CA-18478, et al.; 346 NLRB No. 4) (Desert Toyota II) Las Vegas, NV Dec. 23, 2005.
http://www.nlrb.gov/nlrb/shared_files/decisions/346/346-4.htm
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by threatening employees about discussing union activity. While the judge found that the Respondent violated Section 8(a)(1), (3), (4), and (5), the Board reversed most of the judge's findings of violations pursuant to its decision in Desert Toyota, 346 NLRB No. 3 (2005) (Desert Toyota I). Among others, Chairman Battista and Member Schaumber reversed the complaint allegation that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the requested information and by refusing to bargain with Machinists Local 845 and violated Section 8(a)(3), (4), and (1) by disciplining Thomas Panske.
Chairman Battista and Member Schaumber adopted, in the absence of exceptions, the judge's dismissal of: (a) the allegation that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing terms and conditions of employment relating to employees' mopping their work areas, to the assignment of extended warranty work, and to employees use of the timeclock; (b) the allegation that the Respondent violated Section 8(a)(4), (3), and (1) by disciplining Thomas Pranske on January 24, 2003; (c) the allegations that the Respondent
violated Section 8(a)(3) and (1) by disciplining Charles Frankhouse on December 5, 2002, January 28 and April 24, 2003, threatening and discharging Frankhouse on February 25, 2003, imposing restrictions upon Frankhouse on April 17, 2003, and terminating Frankhouse's employment on or about May 8, 2003; and (d) the allegations that the Respondent violated Section 8(a)(3) and (1) by "diminishing work opportunities for union supporters" and by "reduc[ing] the flag or flat rate hours earned by employees who had signed cards with the Union." Member Liebman dissented in part. Contrary to her colleagues, Member Liebman agreed with the judge that the second discipline received by Thomas Pranske, arising from his angry response to the first unlawful discipline, was a continuation of the discrimination action taken against him, and also was unlawful. For the reasons set forth in her dissenting footnote in Desert Toyota I, Member Liebman would find that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union and by refusing to provide the Union with information concerning unit employees and by unilaterally implementing new work rules.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Machinists Local 845; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Las Vegas, July 1-2 and 17, 2003. Adm. Law Judge Albert A. Metz issued his decision Dec. 3, 2003.
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Dura Art Stone, Inc. and Amalgamated Industrial Workers Local 61 (31-CA-26009, 31-CB-11160; 346 NLRB No. 14) Fontana, CA Dec. 23, 2005.
http://www.nlrb.gov/nlrb/shared_files/decisions/346/346-14.htm
The Board affirmed the administrative law judge's finding that by negotiating and executing a collective-bargaining agreement covering the employees in the appropriate unit which included a union security clause and dues check-off provision, at a time when Respondent Local 61 no longer represented a majority of such employees, Respondent Dura Art Stone violated Section 8(a)(1), (2), and (3) of the Act and Respondent Local 61 violated Section 8(b)(1)(A) and 8(b)(2) of the Act.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Electrical, Radio and Machine Workers Local 1421; complaint alleged violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and 8(b)(2). Hearing at Los Angeles on May 19, 2003. Adm. Law Judge William L. Schmidt issued his decision July 31, 2003.
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Dynasteel Corp. (26-CA-20558; 346 NLRB No. 12) Millington, TN and Iuka, MS Dec. 19, 2005.
http://www.nlrb.gov/nlrb/shared_files/decisions/346/346-12.htm
The Board adopted certain of the administrative law judge's recommendations and found that the Respondent violated Section 8(a)(3) and (1) of the Act by threatening its employees; engaging in surveillance of its employees' union activities; interrogating them concerning their union sympathies or the union sympathies of their coworkers; instructing employees to commit unfair labor practices or threatening them with discipline if they refuse to commit unfair labor practices; disciplining, discharging, or otherwise discriminating against its employees in retaliation for their union or other protected activities; and failing or refusing to hire or consider applicants for hire because of their union affiliation or its belief or suspicion that they may engage in union activities once they are hire.
Chairman Battista and Member Schaumber reversed the judge and concluded that the Respondent's discipline of Tim Barnes did not violate Section 8(a)(3). They found no evidence was presented that Barnes engaged in any union activity prior to his discipline and disagreed with dissenting Member Liebman's assertion that their finding that the Respondent unlawfully compelled maintenance employee Edy Goss to sign the disciplinary warning against Barnes necessities a finding that the discipline was unlawful. Member Liebman would find that Barnes was unlawfully disciplined, stating: "Barnes' discipline was issued (as was Vaughn's) solely because the Respondent compelled Goss to issue these disciplines. She added that the majority rightly acknowledges that Goss was unlawfully compelled to sign disciplinary warnings against Barnes and Vaughn and in her view that conclusion necessarily establishes that the warning was unlawful.
The Board reversed the judge's finding that Respondent's General Counsel and Human Resources Director Jack Melvin's failure to disavow remarks by the Respondent's secretary, Glenna Basham, violated Section 8(a)(1). While the judge determined that Basham was not a supervisor or agent of Respondent, he nevertheless found that Melvin's failure to disavow Basham's statements that Vaughn and Goss would not be returned to work due to their union "stickers" violated Section 8(a)(1).
Member Schaumber would remand the following issues to the judge for an explanation of his credulity resolutions in determining whether the Respondent violated Section 8(a)(1): (1) whether Plant Manager Mark Jones threatened Goss during the summer of 2001; (2) whether Jones and Supervisor Bill Sanders threatened employees in Sept. 2001; (3) whether Shop Foreman Glen Adcock threatened employees in Sept. 2001; (4) whether Jones threatened employees in Sept. 2001; (5) whether Sanders threatened Goss in Sept. 2001; and (6) whether Jones interrogated Goss in Oct. 2001 following his discharge. While the judge summarily credited testimony regarding these issues without explaining why he discredited the Respondent's witnesses, Member Schaumber found that the judge's credibility resolution lack sufficient detail to provide an adequate basis for review.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Boilermakers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cornith, MS, Oct. 15-17, 2002. Adm. Law Judge Lawrence W. Cullen issued his decision May 14, 2003.
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NLRB Law Memo 01/04/2006
by Ross Runkel at LawMemo
NLRB Law Memo 01/04/2006
by LawMemo - World's Best
NLRB - Staff summarized 6 decisions.
T-West Sales and Service, Inc. d/b/a Desert Toyota (28-CA-19447, 19524; 346 NLRB No. 1) Las Vegas, NV Dec 23, 2005.
Pursuant to its decisions in Desert Toyota, 346 NLRB No. 3 (2005) (Desert Toyota I) and Desert Toyota, 346 NLRB No. 4 (2005) (Desert Toyota II), the Board reversed the administrative law judge and dismissed the complaint allegation that the Respondent, among other things, violated Section 8(a)(5) and (1) of the Act by failing to bargain in good faith, failing to provide requested information, and failing to notify and bargain with Machinists Local 845 about disciplinary action taken with respect to two employees. In the absence of exceptions, the Board approved the judge's dismissal of the remaining allegations that the Respondent violated Section 8(a)(3), (4), and (1) when it suspended employees Clayton Lamoya and suspended and discharged employee Thomas Pranske.
In Desert Toyota I Chairman Battista and Member Schaumber found that the Respondent did not have an obligation to bargain with the Union as the exclusive collective-bargaining representative of its employees and reversed the judge's recommendation that a Gissel (NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)) bargaining order issue. Member Liebman dissented from the denial of a bargaining order in Desert Toyota I, but agreed that the Board majority's decision there is dispositive here.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Machinists Local 845; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Las Vegas, Oct. 5-7, 2004. Adm. Law Judge Albert A. Metz issued his decision March 25, 2005.
***
T-West Sales and Service, Inc. d/b/a Desert Toyota (28-CA-20207; 346 NLRB No. 2) Las Vegas, NV Dec. 23, 2005.
The Board adopted the recommendation of the administrative law judge and dismissed the complaint allegation that the Respondent violated Section 8(a)(5) and (1) of the Act when it refused to provide information on various dates between November 2004 and March 2005 and when it unilaterally changed the matching contributions for employees enrolled in its 401(k) plan.
In light of the Board's reversal of the bargaining order recommended in Desert Toyota, 346 NLRB No. 3 (2005) (Desert Toyota I), it found that the Respondent did not have an obligation to bargain with Machinists Local 845 as the exclusive collective-bargaining representative of its employees. Member Liebman dissented from the denial of a bargaining order in Desert Toyota I, but agreed that the Board majority's decision there is dispositive in this case.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Machinists Local 845; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Las Vegas on June 29, 2005. Adm. Law Judge William G. Kocol issued his decision Aug. 24, 2005.
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T-West Sales & Service, Inc. d/b/a Desert Toyota (22-CA-17904, 18065; 346 NLRB No. 3) (Desert Toyota I) Las Vegas, NV Dec. 23, 2005.
The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) when it: (1) maintained an overly broad no-solicitation rule; (2) coercively interrogated the service advisors, who worked with the technicians, solicited them to report on others' union activities, and created an impression of surveillance; (3) coercively interrogated, solicited grievances from, and impliedly promised benefits to service technician Jorge Galindo; and (4) coercively interrogated service technician Thomas Pranske twice and made statements to Pranske linking Galindo's discharge to his support of Machinists Local 744. It also found that the Respondent violated Section 8(a)(3) and (1) when it discharged Galindo.
Unlike the judge, Chairman Battista and Member Schaumber found that the coercive effects of the Respondent's unlawful conduct can be alleviated by the use of the Board's traditional remedies and, therefore, reversed the judge's recommendation that a Gissel (NLRB v. Gissel Packing Co., 395 U.S. 575 (1969)) bargaining order issue. Contrary to her colleagues, Member Liebman indicated in a footnote that she would find a Gissel bargaining order warranted in this case. In her view, the Respondent had committed hallmark violations, not only unlawfully discharging the primary union activist, Galindo, but also indirectly threatening another employee whom it questioned about Galindo's union involvement.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Machinists 744; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Las Vegas, Sept. 10-11, 2002. Adm. Law Judge Lana Parke issued her decision Nov. 13, 2002.
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T-West Sales & Service, Inc. d/b/a Desert Toyota (28-CA-18478, et al.; 346 NLRB No. 4) (Desert Toyota II) Las Vegas, NV Dec. 23, 2005.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by threatening employees about discussing union activity. While the judge found that the Respondent violated Section 8(a)(1), (3), (4), and (5), the Board reversed most of the judge's findings of violations pursuant to its decision in Desert Toyota, 346 NLRB No. 3 (2005) (Desert Toyota I). Among others, Chairman Battista and Member Schaumber reversed the complaint allegation that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the requested information and by refusing to bargain with Machinists Local 845 and violated Section 8(a)(3), (4), and (1) by disciplining Thomas Panske.
Chairman Battista and Member Schaumber adopted, in the absence of exceptions, the judge's dismissal of: (a) the allegation that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing terms and conditions of employment relating to employees' mopping their work areas, to the assignment of extended warranty work, and to employees use of the timeclock; (b) the allegation that the Respondent violated Section 8(a)(4), (3), and (1) by disciplining Thomas Pranske on January 24, 2003; (c) the allegations that the Respondent
violated Section 8(a)(3) and (1) by disciplining Charles Frankhouse on December 5, 2002, January 28 and April 24, 2003, threatening and discharging Frankhouse on February 25, 2003, imposing restrictions upon Frankhouse on April 17, 2003, and terminating Frankhouse's employment on or about May 8, 2003; and (d) the allegations that the Respondent violated Section 8(a)(3) and (1) by "diminishing work opportunities for union supporters" and by "reduc[ing] the flag or flat rate hours earned by employees who had signed cards with the Union." Member Liebman dissented in part. Contrary to her colleagues, Member Liebman agreed with the judge that the second discipline received by Thomas Pranske, arising from his angry response to the first unlawful discipline, was a continuation of the discrimination action taken against him, and also was unlawful. For the reasons set forth in her dissenting footnote in Desert Toyota I, Member Liebman would find that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union and by refusing to provide the Union with information concerning unit employees and by unilaterally implementing new work rules.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Machinists Local 845; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Las Vegas, July 1-2 and 17, 2003. Adm. Law Judge Albert A. Metz issued his decision Dec. 3, 2003.
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Dura Art Stone, Inc. and Amalgamated Industrial Workers Local 61 (31-CA-26009, 31-CB-11160; 346 NLRB No. 14) Fontana, CA Dec. 23, 2005.
The Board affirmed the administrative law judge's finding that by negotiating and executing a collective-bargaining agreement covering the employees in the appropriate unit which included a union security clause and dues check-off provision, at a time when Respondent Local 61 no longer represented a majority of such employees, Respondent Dura Art Stone violated Section 8(a)(1), (2), and (3) of the Act and Respondent Local 61 violated Section 8(b)(1)(A) and 8(b)(2) of the Act.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Electrical, Radio and Machine Workers Local 1421; complaint alleged violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and 8(b)(2). Hearing at Los Angeles on May 19, 2003. Adm. Law Judge William L. Schmidt issued his decision July 31, 2003.
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Dynasteel Corp. (26-CA-20558; 346 NLRB No. 12) Millington, TN and Iuka, MS Dec. 19, 2005.
The Board adopted certain of the administrative law judge's recommendations and found that the Respondent violated Section 8(a)(3) and (1) of the Act by threatening its employees; engaging in surveillance of its employees' union activities; interrogating them concerning their union sympathies or the union sympathies of their coworkers; instructing employees to commit unfair labor practices or threatening them with discipline if they refuse to commit unfair labor practices; disciplining, discharging, or otherwise discriminating against its employees in retaliation for their union or other protected activities; and failing or refusing to hire or consider applicants for hire because of their union affiliation or its belief or suspicion that they may engage in union activities once they are hire.
Chairman Battista and Member Schaumber reversed the judge and concluded that the Respondent's discipline of Tim Barnes did not violate Section 8(a)(3). They found no evidence was presented that Barnes engaged in any union activity prior to his discipline and disagreed with dissenting Member Liebman's assertion that their finding that the Respondent unlawfully compelled maintenance employee Edy Goss to sign the disciplinary warning against Barnes necessities a finding that the discipline was unlawful. Member Liebman would find that Barnes was unlawfully disciplined, stating: "Barnes' discipline was issued (as was Vaughn's) solely because the Respondent compelled Goss to issue these disciplines. She added that the majority rightly acknowledges that Goss was unlawfully compelled to sign disciplinary warnings against Barnes and Vaughn and in her view that conclusion necessarily establishes that the warning was unlawful.
The Board reversed the judge's finding that Respondent's General Counsel and Human Resources Director Jack Melvin's failure to disavow remarks by the Respondent's secretary, Glenna Basham, violated Section 8(a)(1). While the judge determined that Basham was not a supervisor or agent of Respondent, he nevertheless found that Melvin's failure to disavow Basham's statements that Vaughn and Goss would not be returned to work due to their union "stickers" violated Section 8(a)(1).
Member Schaumber would remand the following issues to the judge for an explanation of his credulity resolutions in determining whether the Respondent violated Section 8(a)(1): (1) whether Plant Manager Mark Jones threatened Goss during the summer of 2001; (2) whether Jones and Supervisor Bill Sanders threatened employees in Sept. 2001; (3) whether Shop Foreman Glen Adcock threatened employees in Sept. 2001; (4) whether Jones threatened employees in Sept. 2001; (5) whether Sanders threatened Goss in Sept. 2001; and (6) whether Jones interrogated Goss in Oct. 2001 following his discharge. While the judge summarily credited testimony regarding these issues without explaining why he discredited the Respondent's witnesses, Member Schaumber found that the judge's credibility resolution lack sufficient detail to provide an adequate basis for review.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Boilermakers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cornith, MS, Oct. 15-17, 2002. Adm. Law Judge Lawrence W. Cullen issued his decision May 14, 2003.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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