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NLRB Law Memo 03/24/2006
by Ross Runkel at LawMemo
NLRB Law Memo 03/24/2006
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 2 decisions this week.
Construction Products, Inc. (9-CA-40056, 40294; 346 NLRB No. 60) Columbus, OH March 13, 2006.
The Board affirmed the administrative law judge's finding and held that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Richard Carper and Anthony Richards because of their union activities. It agreed with the judge that the General Counsel satisfied his initial burden of proving that union activity was the motivating factor in the Respondent's decision to discharge them. See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981). The Respondent failed to prove that it would have discharged the two employees absent their union activities.
The Board approved the judge's finding that the Respondent violated Section 8(a)(3)
and (1) by refusing to hire Fred Clapper, Gregory Coe, Todd Hoffman, James Jackson, Mary Miller, and Larry Seymour Jr., and his dismissal of the allegation that the Respondent violated the Act by refusing to hire Kurt Thompson.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Iron Workers Local 172; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Columbus on Sept. 25, 2003. Adm. Law Judge Ira Sandron issued his decision Dec. 29, 2003.
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Jupiter Medical Center Pavilion (12-CA-22478, et al.; 346 NLRB No. 61) Jupiter, FL March 13, 2006.
The Board agreed with the administrative law judge that the Respondent lawfully instructed certified nursing assistant (CNA) Dieuseul Mirtil to take off his union button while he was working with a patient, noting that in the health care industry, rules prohibiting the wearing of buttons in patient care areas are presumptively valid, and that the Respondent lawfully chose to put a premium on patient safety.
The Board also agreed with the judge that the Respondent lawfully disciplined CNA Paula Thimot on three occasions, but it explained its reasons for finding a violation regarding the discipline imposed on Oct. 15, 2002. In her partial dissenting opinion, Member Liebman contended that her colleagues erred in finding that the Respondent lawfully disciplined union supporter Thimot for her role in two confrontations with coworkers. She wrote: "Because the judge made no factual findings or explicit credibility determination concerning those episodes and did not analyze the evidence in light of relevant law, and because the record evidence arguably would support finding a violation, we should remand that issue."
Contrary to the judge, Chairman Battista and Member Liebman, with Member Schaumber dissenting, found that the Respondent violated Section 8(a)(1) by impliedly threatening to discharge Thimot by suggesting that she leave rather than engage in union activity.
The implied threat of discharge occurred after the Respondent's administrator, Jay Mikosch, and Director of Nursing Linda Nelson held a meeting with employees on Sept. 26, 2002, to present arguments against union representation. Thimot commented that the Respondent spent a lot of time and money trying to find out who started the Union instead of figuring out the problems. Nelson commented that Thimot "seem[ed] unhappy here," and Thimot responded that Nelson would be
unhappy if she had to work under the same conditions. Thereafter, Nelson asked each employee at the meeting how long they had worked for the Respondent and after learning that Thimot was relatively new, Nelson told Thimot "Maybe this isn't the place for you . . . there are a lot of jobs out there." Thimot questioned whether that was the solution, and Nelson answered, "If you are unhappy here, and you seem to be unhappy, then yes."
Member Schaumber wrote: "Not only did Nelson's remark not occur in a context of other severe unfair labor practices; the evidence indicates that the Respondent tolerated open and vigorous discussion and support of the Union among its employees. . . . Thimot never experienced retaliation from the Respondent for her prounion views." Given the totality of circumstances, he did not find that Nelson's ambiguous statements could reasonably be interpreted as threats.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Service Employees District 1199 Florida; complaint alleged violation of Section 8(a)(1). Hearing at Miami, Aug. 18-19, 2003. Adm. Law Judge Keltner W. Locke issued his decision Sept. 22, 2003.
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NLRB Law Memo 03/17/2006
by Ross Runkel at LawMemo
NLRB Law Memo 03/17/2006
by LawMemo - World's Best.
NLRB - Staff summarized no decisions this week.
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NLRB Law Memo 03/14/2006
by Ross Runkel at LawMemo
NLRB Law Memo 03/14/2006
by LawMemo - World's Best.
NLRB - Staff summarized 7 decisions last week.
BellSouth Telecommunications, Inc. and Communications Workers (11-CA-17096, 17140, 11-CB-2688, 2699; 346 NLRB No. 59) Atlanta, GA Feb. 28, 2006.
On remand from the U.S. Court of Appeals for the Fourth Circuit, the Board held that BellSouth Telecommunications, Inc. violated Section 8(a)(1), (2), and (3) of the Act and that the Communications Workers violated Section 8(b)(1)(A) and (2) of the Act, as alleged, by entering into a contractual provision requiring employees in specified job classifications, and those who had contract with the public, to wear a uniform bearing both the BellSouth and CWA logos. The Board required the Respondents to rescind any contractual provisions which mandate the wearing of the CWA logo on uniforms, and to post notices in all locations where unit employees covered by those contractual provisions are employed.
In an earlier decision reported at 335 NLRB 1066 (2001), the Board found that the Respondents did not violate the Act, as alleged. It specifically found that the Respondents could lawfully agree to and implement a policy requiring employees to wear a company uniform that displays both the BellSouth and CWA logos despite the objections of certain employees to displaying the CWA logo. Although recognizing that the compelled wearing of the CWA logo implicated employees' Section 7 rights to refrain from engaging in activities in support of a labor organization, the Board found that the Section 7 interest was outweighed by special circumstances underlying the collectively bargained uniform policy.
The court granted the Charging Party Individuals' petition for review and vacated the Board's dismissal order based on its finding that the Respondents had violated the Act. The court held that the Board's finding of special circumstances validating the uniform policy was not supported by substantial evidence and that "(b)y paying to place the union logo on the uniforms and making the wearing of the union logo on uniforms a condition of employment, BellSouth violated Section 8(a)(1), (2), and (3) of the Act. Similarly, CWA violated Section 8(b)(1)(A) and 8(b)(2) of the Act by proposing and agreeing to require employees to wear the union logo and by accepting BellSouth's financial support." 393 F.3d at 497. The court remanded the proceeding to the Board with directions to modify its order consistent with the court's opinion.
(Chairman Battista and Members Liebman and Schaumber participated.)
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E.I. du Pont de Nemours & Co. (3-CA-22854, et al.; 346 NLRB No. 55) Tonawanda, NY Feb. 27, 2006.
The Board adopted the administrative law judge's findings that the Respondent's failure adequately to respond to the Union's (PACE International and its Local I-6992) information requests violated Section 8(a)(5) of the Act and prevented a lawful impasse in negotiations over subcontracting milling and finishing work. Thus, the Respondent's subsequent subcontracting of this work in the absence of a lawful impasse further violated Section 8(a)(5). It also adopted the judge's finding that the Respondent violated Section 8(a)(5) by failing adequately to respond to the Union's request for information with regard to the discipline of Supervisor Angelo Paradise.
Chairman Battista and Member Schaumber reversed the judge's finding that the Respondent violated Section 8(a)(5) by declaring impasse in contract negotiations and implementing the terms of its final contract offer and by unilaterally changing the employees' healthcare benefits. The judge found that the Respondent rigidly and unreasonably fragmented negotiations by removing discussion of milling and finishing work from its negotiation of other issues and that the Respondent's unlawful bifurcation of bargaining tainted the impasse in contract negotiations. Chairman Battista and Member Schaumber concluded that it was not unlawful for the Respondent to separate out, from general bargaining, the issue of subcontracting the milling and finishing work, noting the parties' history of piecemeal bargaining and that the work was not even in the unit and had been subcontracted for about 10 years. They also concluded that the parties were at impasse over the Respondent's healthcare proposal and, therefore, the Respondent could lawfully implement its plan.
Member Liebman disagreed with her colleagues' reversal of the judge's findings. She wrote: "The majority's failure to hold the Respondent fully responsible for its attempts to divide and conquer the unit by bifurcating bargaining (over the Union's objections) and then by declaring impasse with respect to most issues effectively vindicates the Respondent's attempt to marginalize the Union. Similarly, the majority endorses the unlawful implementation of the Respondent's health insurance proposal, which grants the Respondent wide-ranging discretion to make ongoing changes in this area without further bargaining. I dissent from these aspects of the majority's decision."
In the absence of exceptions, the Board approved the judge's finding that the Respondent violated Section 8(a)(5) and (1) by: (1) delaying providing information in response to the Union's Sept. 28, 2000 information request until March 12, 2001; (2) failing adequately to respond to the Union's Jan. 19, 2001 request for information regarding gifts and incentives; (3) denying union representatives access to certain facilities to investigate potential grievances and refusing to bargain over visitation of jobsites where bargaining unit work was being performed; and violated Section 8(a)(1) by threatening union representatives with discipline if they failed to leave the Tonawanda facility. No exceptions were filed to the judge's recommended dismissals.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by PACE International and its Local 1-6992; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Buffalo on various dates between Feb. 11 and July 16, 2002. Adm. Law Judge John T. Clark issued his decision Dec. 24, 2003.
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Marquette Transportation/Bluegrass Marine (26-CA-18650; 346 NLRB No. 54) Paducah, KY Feb. 27, 2006.
Affirming the administrative law judge's supplemental decision, the Board found that the Respondent's tugboat pilots were supervisors and therefore, dismissed the complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating the pilots for participating in a strike and by making various statements to them.
Member Liebman concurred in the dismissal only because the material facts concerning the supervisory issue cannot be meaningfully distinguished from those in current Board precedent involving the same pilot classifications in which supervisory status was found. See Alter Barge Line, Inc., 336 NLRB 1266 fn. 1 (2001); Ingram Barge Co., 336 NLRB 1259 fn. 1 (2001).
In his original decision, the judge found that the Respondent's tugboat pilots were not supervisors and that the Respondent violated Section 8(a)(3) and (1), as alleged. On June 28, 2001, the Board remanded the case to the judge for further consideration in light of NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001); Brusco Tug & Barge Co. v. NLRB, 247 F.3d 273 (D.C. Cir. 2001); and Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719 (7th Cir. 2000).
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Pilots Agree Association of the Great Lakes and Rivers Maritime Region Membership Group, Masters, Mates and Pilots, ILA; complaint alleged violation of Section 8(a)(1) and (3). Adm. Law Judge Lawrence W. Cullen issued his decision June 30, 1999 and his supplemental decision Aug. 28, 2001.
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Midwestern Personnel Services, Inc. (25-CA-25503, et al.; 346 NLRB No. 58) Olive Branch, MS and Louisville, KY Feb. 28, 2006.
Chairman Battista and Member Walsh, with Member Schaumber dissenting in part, adopted the administrative law judge's recommendations and ordered the Respondent to pay 24 individuals backpay amounts totaling $649,593.93.
The Board found in 2000 that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate its truckdrivers, who had commenced an unfair labor practice strike on Jan. 17, 1998, after Teamsters Local 215 made an unconditional offer to return to work on their behalf on March 27, 1998. Midwestern Personnel Services, 331 NLRB 348 (2000), enfd. 322 F.3d 969 (7PthP Cir. 2003). The issues presented in this backpay proceeding are whether the Respondent made a valid offer of reinstatement to the discriminatees on April 12, 1999, and whether the Respondent sustained its burden of showing that any of the discriminatees failed to make a reasonable search for interim employment.
The Board found that the Respondent's April 12 letter was not a valid offer of reinstatement sufficient to toll backpay because the positions were not substantially equivalent to those the discrminatees previously held as they would not have retained their rates of pay or seniority. It accordingly found that an evaluation of the discriminatees' response to the letter is unnecessary.
The Respondent filed exceptions to the judge's recommended amounts of backpay for 12 of the 24 discriminatees: Timothy Cronin, Jerry Fickas, Greg Harris, Wade Carter, Robert Linendoll Jr., Scott Taylor, Randal Underhill, Garry Williams, David Wyatt, Henry Langdon, Randy Leinenbach, and Christopher Pentecost. In support of its position that these 12 discriminatees should not receive either part or all of the backpay awarded by the judge, the Respondent called an expert witness, Dr. Malcolm Cohen, to testify about the conditions of the job market at the time in question.
Chairman Battista and Member Walsh found, as did the judge, that Dr. Cohen's report and testimony were insufficient to meet the Respondent's burden of demonstrating that the discriminatees failed to seek interim employment with due diligence. Turning to the individual discriminatees, they found that the Respondent failed to establish that any of them failed to exercise reasonable diligence in their search for interim employment and adopted the judge's backpay awards.
Member Schaumber agreed with his colleagues in all respects except their decision to affirm the judge's awards of full backpay to Langdon, Leinenbach, and Pentecost. He wrote: "Each of these individuals was an experienced truckdriver employed by the Respondent at it facilities in Indiana and Kentucky prior to a strike in 1998. Their remarkable lack of success in obtaining interim employment for many months at a time, despite a strong job market for truckdrivers, is, in my view, a predictable consequence of their sporadic and desultory efforts to obtain work. Accordingly, I decline to hold the Respondent liable for all their lost income." Member Schaumber would reduce Langdon's backpay award by an amount equal to 6 months' pay, find that Leinenbach was not entitled to a backpay award, and deny Pentecost backpay for the last three quarters of 1999.
(Chairman Battista and Members Schaumber and Walsh participated.)
Adm. Law Judge Ira Sandron issued his supplemental decision July 22, 2004
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New Seasons, Inc. (34-CA-10946; 346 NLRB No. 57) Manchester, CT Feb. 28, 2006.
The Board agreed with the administrative law judge's conclusions that the Respondent violated Section 8(a)(5) and (1) and Section 8(d) of the Act by failing to continue in effect the terms and conditions of its 2003-2005 collective-bargaining agreement with New England Health Care Employees District 1199 SEIU by, without the Union's consent, modifying the language of article 13(L), a subject that was outside the scope of the existing collective-bargaining agreement's reopener clause; and violated Section 8(a)(5) and (1) by unilaterally implementing changes to article 13(F) of that agreement, and by voiding the December 2000 settlement agreement. The Board modified the judge's recommended order to conform with its findings and, at the request of the General Counsel, included a make-whole remedy to the decision and order.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by New England Health Care Employees District 1199 SEIU; complaint alleged violation of Section 8(a)(1) and (5) and Section 8(d). Hearing at Hartford on Feb. 23, 2005. Adm. Law Judge Wallace H. Nations issued his decision July 8, 2005.
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The Strand Theatre of Shreveport Corp. (15-CA-17548; 346 NLRB No. 51) Shreveport, LA Feb. 27, 2006.
The Board affirmed the findings of the administrative law judge and held that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain in good faith with Stage Employees IATSE Local 298 as the exclusive collective-bargaining representative of employees in the appropriate unit, unilaterally ceasing the application of the terms and conditions set out in the 1999-2004 (as extended) collective-bargaining agreement to unit employees, and eliminating the position of Regular Employee without prior notice to and without affording the Union an opportunity to bargain with respect to this conduct and its effects. The Respondent also violated Section 8(a)(5) and (1) by failing to use the Union's hiring hall in hiring its employees without prior notice to or affording the Union an opportunity to bargain with respect to this conduct and its effects, insisting that it would not reach agreement with the Union on a collective-bargaining agreement and insisting on changing the scope of the unit, and refusing to hire employees affiliated with the Union's hiring hall.
In view of their agreement with the judge's finding that the Respondent violated Section 8(a)(5) by unilaterally eliminating employee Steve Palmer's "Regular Employee" position, Chairman Battista and Member Schaumber found it unnecessary to pass on the judge's finding that Palmer's termination violated Section 8(a)(3) because that additional finding would not materially affect the reinstatement and make-whole remedy for Palmer. Member Liebman, in agreement with the judge, found that Palmer's termination violated Section 8(a)(3) as alleged.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Stage Employees IATSE Local 298; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Shreveport, April 25-26, 2005. Adm. Law Judge John H. West issued his decision Aug. 3, 2005.
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Unifirst Corp. (1-CA-39267, 39321; 346 NLRB No. 52) Indian Orchard, MA Feb. 28, 2006.
Chairman Battista and Member Schaumber dismissed the complaint, reversing the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by making impermissible promises of benefits to employees, indicating that employees could only obtain the Respondent's 401(k) plan and profit sharing plan by decertifying Laundry Workers Local 66L, a/w UNITE, polling employees' sentiments in an atmosphere tainted by an unremedied unfair labor practice; and that the Respondent's subsequent reliance on the poll results to withdraw recognition, withhold requested information, and refuse to bargain with the Union violated Section 8(a)(5). Finding that the Respondent did not make impermissible promises of benefits and that its poll was lawful, the majority held that Respondent's subsequent actions were likewise lawful, as the Respondent had evidence that the Union had actually lost majority support.
Dissenting, Member Liebman wrote: "This case turns primarily on whether the Respondent's officials unlawfully told employees that if they voted the Union out, they would have profit sharing and a 401(k) plan, but if they kept the Union in, they could get neither benefit. If this statement was made, then it was clearly unlawful and tainted . . . ." In her view, the judge correctly found that the statements of the Respondent's managers violated Section 8(a)(1), that its subsequent poll of employees was tainted by unfair labor practices, and that the Respondent unlawfully withdrew recognition from the Union. Member Liebman contended that the majority also erred in reversing the judge's alternative holding with respect to the poll: that it was unlawful because it was taken while a decertification petition was pending. She said the judge's alternative conclusion was mandated by Board precedent, which the majority fails to heed.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Laundry Workers Local 66L, a/w UNITE; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Northampton, April 29-30 and May 1 and 9, 2002. Adm. Law Judge Wallace H. Nations issued his decision March 18, 2003.
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NLRB Law Memo 03/03/2006
by Ross Runkel at LawMemo
NLRB Law Memo 03/03/2006
by LawMemo - World's Best.
NLRB - Staff summarized 2 decisions this week.
Rogers Electric, Inc. (6-CA-33880; 346 NLRB No. 53) Orbisonia, PA Feb. 24, 2006.
The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by threatening employees with job loss and discharge, and by laying off employees Eric Bailey, San Eddinger, Rodney Ellinger, Jacob Hunsinger, Roy Melius, and Brian Smith because of their protected concerted activities.
Members Liebman and Schaumber further agreed with the judge that the Respondent violated Section 8(a)(1) by creating an impression that its employees' protected activities were under surveillance when Respondent's president Bradley D. Rogers held up the highlighted telephone list and told employees that he knew calls to the Pennsylvania Department of Labor & Industry (L&I) had been made from the jobsite. Dissenting in part, Chairman Battista would dismiss this allegation. In his view, employees who use a company phone can reasonably expect that their call would show up on the Employer's phone bill and thus, "employees would reasonably know that their activity, i.e., the phone call, was not discovered through some act of surreptitious spying, but rather because of the overt nature of their own activity."
As a result of the L&I notification to the Respondent that at least one employee had filed a complaint concerning the Respondent's handling of the employees' fringe benefits, Rogers met with the Lewistown project employees and told them that "going to L&I" was the "wrong way to make changes". The judge concluded that by disparaging employees' concerted complaints and by indicating that those complaints were futile, the Respondent violated Section 8(a)(1).
On that issue, the Board (with Chairman Battista and Member Schaumber in the majority and Member Liebman dissenting), disagreed with the judge's conclusion, finding that Rogers was merely expressing his opinion concerning the employees' action of contacting the L&I. Citing Trailmobile Trailer, LLC, 343 NLRB No. 17 (2004), the majority wrote: "Disparaging remarks 'that [do] not suggest that the employees' protected activities, [do] not reasonably convey any explicit or implicit threats, and [do] not constitute harassment that would reasonably tend to interfere with employees' Section rights' do not violate Section 8(a)(1)."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Electrical Workers IBEW Local 5; complaint alleged violation of Section 8(a)(1). Hearing at Burnham, PA, July 14-15, 2004. Adm. Law Judge John T. Clark issued his decision March 21, 2005.
***
Septix Waste, Inc. (24-CA-9230, 9346; 346 NLRB No. 50) Ponce, PR Feb. 23, 2006.
The Board adopted the findings of the administrative law judge that the Respondent violated Section 8(a)(3) of the Act by discharging Roberto Rentas because of his union activities and Section 8(a)(5) by refusing to furnish the Union with relevant information. Chairman Battista and Member Liebman also agreed with the judge that the Respondent violated Section 8(a)(3) by discharging Hector Algarin. Member Schaumber separately dissented with his colleagues on this issue. Citing Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945), he wrote: "[I]n light of the rash of incidents of misconduct engaged by Algarin, and the long recognized 'right of employers to maintain discipline in their establishments,' . . . the Respondent carried its burden of demonstrating that it would have discharged Algarin despite his union activities."
Chairman Battista, joined by Member Schaumber, however, reversed the judge's finding that the Respondent violated Section 8(a)(1) by interrogating is employees about their union activities, soliciting its employees to gather signatures to decertify the Union, informing its employees that it would be futile to file grievances, threatening its employees with job loss, and telling its employees that they would be subject to more onerous working conditions or reprisals in retaliation for the Union's continued presence as their exclusive bargaining agent. They agreed with the Respondent's argument that the Union waived the Section 8(a)(1) allegations when they agreed to a stipulation which stated: "[t]he Union by the present resigns all claims made or that could have been made to this date save for [the discharges of Rentas and Algarin, and a claim regarding wage negotiations]." After execution of the stipulation, the Union filed additional Section 8(a)(1) allegations, all of which were based on facts in existence as of the date of the stipulation.
In dismissing the 8(a)(1) allegations, Chairman Battista and Member Schaumber asserted that despite voluntarily agreeing to the stipulation, the Union effectively attempted to circumvent its terms by making the 8(a)(1) allegations at issue. They said that such conduct "cannot be squared with the salutary policy affording finality to the informal settlement of [labor] disputes." Courier-Journal, 342 NLRB No. 118, slip op. at 2 (2004). Dissenting in part on the majority's finding that the Union waived the independent 8(a)(1) allegations by the July 2002 stipulation, Member Liebman said "the majority fails to apply applicable precedent. Under that precedent, the Regional Director was free to issue a complaint alleging the independent 8(a)(1) violations."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Tronquistas de Puerto Rico Local 901; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at San Juan, March 26-27, 2003. Adm. Law Judge Karl H. Buschmann issued his decision Dec. 17, 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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