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NLRB Law Memo 04/11/2006
by Ross Runkel at LawMemo
NLRB Law Memo 04/11/2006
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NLRB - Board invites amici briefs in Dana Corporation and Auto Workers (UAW) International. Notice | ALJ decision
The NLRB set a deadline of April 27, 2006 for amici briefs in Dana Corporation and Auto Workers (UAW) International. The case presents the issue, among others, of whether and to what extent an employer and a union can lawfully negotiate and reach an agreement which sets forth the conditions under which union organizing will occur, a provision for card-check recognition, and some of the terms and conditions which will be embodied in any eventual collective-bargaining agreement. This is a separate case from Dana Corporation and Metaldyne Corporation, raising similar issues.
NLRB - Staff summarized 2 decisions this week.
Engineered Comfort Systems, Inc. (7-CA-48348; 346 NLRB No. 62) Dearborn Heights, MI March 20, 2006.
The administrative law judge found, and the Board agreed, that the Respondent's president, Ronald Rodorigo, violated Section 8(a)(1) of the Act by telling employee Russell Gallette, "I can't believe you're going union; you want to bring the whole f---ing world down with you." It also agreed with the judge's dismissal of the allegation that the Respondent violated Section 8(a)(3) prior to discharging Gallette, by transferring Gallette from service to installation work, changing his start time, and withdrawing his vehicle and cell phone privileges.
The Board reversed the judge's finding that the Respondent, in discharging Gallette, violated Section 8(a)(3). The judge found that the General Counsel established his initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982). She decided that the Respondent failed to rebut that case, concluding that Gallette's discharge for his attendance infraction was inconsistent with the Respondent's lenient treatment of similar infractions by other employees. Assuming without deciding that the General Counsel has met his Wright Line burden, the Board found, contrary to the judge, that the Respondent successfully rebutted the General Counsel's case by showing that it would have discharged Gallette for being a 2-day no-call/no-show even in the absence of his protected activity. It agreed with the Respondent that the judge improperly based her finding on the Respondent's treatment of employees who were not similarly situated to Gallette.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Plumbers Local 636; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit, May 25-26, 2005. Adm. Law Judge Margaret G. Brakebusch issued her decision Aug. 5, 2005.
***
State Bar of New Mexico (28-RC-6077; 346 NLRB No. 64) Albuquerque, NM March 24, 2006.
Chairman Battista and Member Schaumber, with Member Walsh dissenting, determined that the Employer is exempt from the Board's jurisdiction and, accordingly, reversed the Regional Director's Decision and Direction of Election and dismissed the petition filed by Communications Workers Local 7011.
The issue presented in this case of first impression is whether the State Bar of New Mexico is exempt from the Board's jurisdiction under Section 2(2) of the Act. The Regional Director found that the Employer is not a political subdivision within the meaning of Section 2(2) and is subject to the jurisdiction of the Board. The Regional Director thereafter, directed an election in the petitioned-for unit of employees employed at the Employer's Albuquerque, NM facility.
Citing NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600, 604-605 (1971), the majority wrote: "[A]n entity is exempt from the Board's jurisdiction as a political subdivision if it is either: (1) created directly by the State so as to constitute a department or an administrative arm of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate." They found, contrary to the Regional Director and their dissenting colleague, that the State Bar of New Mexico is exempt from the Board's jurisdiction as a political subdivision because it was directly created by the State as an administrative arm of the judicial branch of government.
In dissent, Member Walsh wrote:
In finding the State Bar of New Mexico to be exempt,… the majority focuses on its quasi-public functions and certain indirect indices of control which the New Mexico Supreme Court exercises over it. I would focus, as other Board decisions have, on the State Bar's day-to-day operations and the personnel and labor relations issues that directly affect its employees. The New Mexico Supreme Court has little or no control over these matters; they are instead controlled by private actors who are acting within the structure of a private nonprofit organization. When viewed in this light, it seems clear that the State Bar does not qualify as a political subdivision under Section 2(2) of the Act. Accordingly, in agreement with the Regional Director, I would find that the Board has jurisdiction over the State Bar's employees, and I would process this petition.
(Chairman Battista and Members Schaumber and Walsh participated.)
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