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NLRB Law Memo 03/24/2006
by Ross Runkel at LawMemo
NLRB Law Memo 03/24/2006
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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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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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