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NLRB Law Memo 06/30/2006
by Ross Runkel at LawMemo
NLRB Law Memo 06/30/2006
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized 1 decision.
Supervalu Holdings, Inc. d/b/a Bigg's Foods (9-CA-39206, et al.; 347 NLRB No. 39) Cincinnati, OH June 23, 2006.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by orally amending its written no-distribution rule in response to its off-duty employees' union handbilling activities and prohibiting off-duty employees from distributing union handbills to customers, and violated Section 8(a)(3) and (1) by disciplining employees Amy Roberson, Helen Reardon, and Karen Brown.
In the absence of exceptions, the Board approved the judge's findings that the Respondent violated Section 8(a)(1) by tape recording a conversation with and interrogating an employee on Feb. 26, 2002; promulgating a rule prohibiting employees from wearing union pins during working time; and maintaining and enforcing a rule prohibiting employees from entering its facilities (unless shopping) more than 10 minutes prior to the start of their scheduled shift or remaining for more than 10 minutes after the end of their scheduled shifts; and violated Section 8(a)(3) and (1) by suspending employee Tina Morgan on March 8, 2002.
(Members Liebman, Kirsanow, and Walsh participated.)
Charges filed by Food & Commercial Workers Local 1099; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cincinnati, April 28-May 1 and June 2-3, 2003. Adm. Law Judge Arthur J. Amchan issued his decision Sept. 23, 2003.
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NLRB Law Memo 06/29/2006
by Ross Runkel at LawMemo
NLRB Law Memo 06/29/2006
by LawMemo - World's Best.
Also available by free weekly email.
NLRB Asserts Jurisdiction Over A Private Company Providing Passenger And Baggage Screening Services
Firstline Transportation Security, Inc (347 NLRB No. 40 - 06/28/2006)
The National Labor Relations Board (Board), in a 4-1 decision involving Firstline Transportation Security, found that Firstline, a private company that provides passenger and baggage screening services at Kansas City International Airport in Kansas City, Missouri, pursuant to a contract with the Transportation Security Administration (TSA), is subject to the Board's jurisdiction.
Thus, the Board found that employees of Firstline Transportation are covered by the National Labor Relations Act (NLRA) and can organize for the purpose of bargaining collectively with their employer. The majority opinion is signed by Chairman Robert J. Battista and Members Wilma B. Liebman, Peter C. Schaumber, and Dennis P. Walsh. Member Peter N. Kirsanow dissented.
The decision found that the Board is not statutorily barred from asserting jurisdiction over Firstline by TSA Under Secretary James Loy's determination that Federally-employed airport security screeners are not entitled to engage in collective bargaining. Further, in accordance with a long line of Board precedent, the Board would not decline to assert jurisdiction. In this regard, the Board concluded that the assertion of jurisdiction is not incompatible with the interests of national security. As the majority stated:
"The Board has been confronted with issues concerning national security and national defense since its early days. Our examination of the relevant precedent reveals that for over 60 years, in times of both war and peace, the Board has asserted jurisdiction over employers and employees that have been involved in national security and defense. We can find no case in which our protection of employees' Section 7 rights had an adverse impact on national security or defense."
In 2003, Admiral Loy issued a memorandum denying collective-bargaining rights and the right to representation to security screeners employed by the TSA. The first issue confronting the Board was whether this memo applied to employees of private contractors. In issuing his memorandum, the Under Secretary relied on the annotation to Section 44935 of the Aviation and Transportation Security Act (ATSA), which vests the Under Secretary with the authority to set the terms and conditions of employment of screeners in the "Federal Service." The Board queried the TSA, and the TSA responded that the annotation to Section 44935 applies only to security screeners employed by the TSA and not to privately-employed security screeners and, therefore, does not prohibit privately-employed screeners from engaging in collective bargaining.
The majority found that:
"Given this interpretation, the Memorandum issued by the Under Secretary cannot apply to privately employed security screeners because of a lack of statutory underpinning. The Under Secretary only has the statutory authority to 'fix the compensation' and the 'terms and conditions of employment' of Federally-employed screeners and can consequently use that power to prohibit them from being represented for the purposes of collective-bargaining. The annotation does not provide the Under Secretary the statutory authority to prohibit private screeners from being represented for the purposes of collective bargaining, even though those individuals carry out the same security screening function as Federally-employed screeners."
The majority in Firstline concluded:
"Since the TSA is the agency charged with administering the ATSA, we defer to the TSA's interpretation of that statute. Indeed, its interpretation is our primary reason for rejecting the Employer's and amici curiae's argument that Admiral Loy's Memorandum applies to privately employed screeners."
Further, after reviewing over 60 years of Board precedent, the majority rejected calls that the Board decline to assert jurisdiction in the interest of national security. The majority further found that "[a]bsent both a clear statement of Congressional intent and a clear statement from the TSA that would support our refusal to exercise jurisdiction, we will not create a non-statutory, policy-based exemption for private screeners," who are otherwise entitled to the protections of the NLRB. The majority concluded that, "we should leave the policy decision to Congress, since the issue is essentially not one of federal labor policy, but of national-security policy." [emphasis in original]
In reaching its decision, the Board upheld a representation petition filed by the Security, Police, and Fire Professionals of America International (SPFPA) seeking to represent approximately 400 screeners and lead screeners at the Kansas City International Airport. It affirmed a Regional Director's Decision and Direction of Election. The election was conducted on June 23, 2005, and the ballots were impounded pending the disposition of the Employer's request for review. The ballots will now be opened and counted.
In dissent, Member Kirsanow agreed with the majority that the Board is not statutorily barred from asserting jurisdiction over private employers of airport security screeners. However, as a matter of public policy, he would decline to assert jurisdiction over such employees in the interest of national security.
Member Kirsanow stated he would:
"[D]efer to the finding of the federal official entrusted with responsibility over airport security, which is that unionization and collective bargaining are incompatible with the critical national security responsibilities of individuals carrying out the security-screening function."
Member Kirsanow stressed that his position was "based on two circumstances never before presented to the Board and unlikely ever to be presented again." First, Federal and private employees perform indistinguishable functions deemed critical to national security and second, the responsible agency head has found that these functions are incompatible with collective bargaining.
Member Kirsanow concluded:
"This is not a situation in which national security and Section 7 rights may be harmonized and reconciled. A contrary determination has been made. Thus, although I am deeply mindful of employee rights, in this highly unusual and perhaps even unique case I cannot accord them primacy."
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NLRB Law Memo 06/23/2006
by Ross Runkel at LawMemo
NLRB Law Memo 06/23/2006
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized 2 decisions.
Sunoco, Inc. (R&M) (4-UC-413; 347 NLRB No. 38) Philadelphia, PA June 16, 2006.
The Board reversed the Regional Director's Decision and Order dismissing the Employer-Petitioner's unit clarification petition as untimely, reinstated the petition as timely filed, and remanded the proceeding to the Regional Director for further appropriate action.
For a number of years, the Atlantic Independent Union has represented a bargaining unit comprised of three different job classifications: terminal operators, drivers, and mechanics. In February 2002, Sunoco restructured its operations by transferring its assets relating to pipeline and terminal operations from the Employer to a newly-created limited partnership called Sunoco Logistics Partners, LP (Logistics) and concurrently created Sunoco Partners, LLC (Partners), another subsidiary, to serve as a general partner of Logistics.
Following the restructuring, bargaining unit terminal operators were transferred from the Employer's payroll to that of Partners and the drivers and mechanics remained on the Employer's payroll. During an October 2003 bargaining session, the Employer and Partners proposed splitting the bargaining unit into two separate units. The Union rejected this proposal. By February 5, 2004, the parties had agreed on all contractual matters except for the unit scope. On or before April 1, representatives of the Employer withdrew the proposal for separate units to permit the parties to reach a contract agreement, while expressly communicating to the Union the Employer's intent to file a unit clarification petition. The contract was ratified by the Union's membership on May 17.
Subsequent negotiations between the parties were unsuccessful and the Employer filed its unit clarification petition on January 19, 2005. At the opening of the hearing the Regional Director denied the Union's argument that the Employer's petition should be dismissed as untimely. However, at the conclusion of the hearing, the Regional Director granted the Union's motion to dismiss the petition.
In its request for review, the Employer contended that the Regional Director erred in measuring the timeliness of the petition from the date on which the employees ratified the collective-bargaining agreement, rather than using as a benchmark the date of the contract's execution. The Employer further contended that the Regional Director's finding that the Employer failed to file its petition "shortly after" ratification of the contract runs contrary to the Board's policy of encouraging voluntary resolution between parties.
The Board found that in the context of this case, the gap between contract ratification and the start of negotiations was not so long as to go beyond the Board's "shortly after" requirements and render the petition untimely. It noted that its discussion is limited to the question that is currently before the Board on review: whether the unit clarification petition was timely filed.
(Chairman Battista and Members Schaumber and Walsh participated.)
***
Supervalu, Inc. (26-CA-21274; 347 NLRB No. 37) Indianola, MS June 13, 2006.
The Board adopted the administrative law judge's finding that the Respondent did not violate Section 8(a)(1) of the Act by refusing to reinstate 33 of 36 strikers who walked off the job in protest of the Respondent's implementation of a production and tracking system and other economic issues. Contrary to the judge, it found that the Respondent violated Section 8(a)(1) by refusing to reinstate part-time employees Leslie Hall, Melvin Norris, and Reggie Crawford because they had not been permanently replaced when they made unconditional offers to return to work.
The judge determined that the Respondent did not unlawfully refuse to reinstate 36 strikers because it had permanently replaced all of them before any striker made any unconditional offer to return to work. Six of the strikers made unconditional offers to return to work while the Respondent was still in the process of hiring permanent replacements.
The Board noted that when three of the strikers, full-time employees Will Hampton, Steve Lyons, and Elvis Lyons made unconditional offers, they had been permanently replaced as full-time employees and they declined part-time employment. However, it found that there were still about 39 open part-time positions for which the Respondent had not yet hired permanent replacements when Hall, Norris, and Crawford made unconditional offers to return to work. Therefore, the Board found that the Respondent's refusal to hire them upon their unconditional offers to return to work violated Section 8(a)(1).
Member Schaumber would not order a remedy for Hall, Norris, or Crawford. He reasoned that, even assuming that they had not been permanently replaced by the time that they unconditionally offered to return to work, any technical violation was isolated and de minimis, and was cured the next morning.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Irish Johnson, an Individual; complaint alleged violation of Section 8(a)(1). Hearing at Greenville, March 10-12 and 31 and April 1-2, 2003. Adm. Law Judge Margaret G. Brakebusch issued her decision May 28, 2004.
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NLRB Law Memo 06/19/2006
by Ross Runkel at LawMemo
NLRB Law Memo 06/19/2006
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized 4 decisions.
American Red Cross Missouri-Illinois Blood Services Region (14-CA-27956, 14-RC-12500; 347 NLRB No. 33) St. Louis, MO June 5, 2006.
The Board adopted the administrative law judge's findings that the Respondent, in response to Teamsters Local 682's organizing campaign, violated Section 8(a)(1) of the Act by coercively interrogating employee Judy Allen and violated Section 8(a)(3) and (1) by isolating employees Jerri Thompson, Nicole Bishop, and Catherine Pendleton because of their union activities. Chairman Battista and Member Liebman additionally found that the Respondent unlawfully harassed Thompson because of her protected activities and the adverse testimony she gave at the representation hearing. Member Schaumber dissented from this finding.
Chairman Battista and Member Schaumber (1) affirmed the judge's dismissal of the allegation that the Respondent threatened to freeze wages; (2) reversed the judge's finding that the Respondent violated Section 8(a)(1) by soliciting employees' grievances; (3) agreed with the judge that the Respondent did not maintain an overly broad no-solicitation policy; and (4) overruled Objection 14, unlike the judge who sustained the objection in part. Member Liebman dissented from the dismissal or overruling of all four of these allegations.
The Board set aside the election of July 8, 2004, based on the Respondent's unfair labor practices and directed that a second election be held. The tally of ballots showed 102 for and 118 against, the Union, and 1 nondeterminative challenged ballot. The Union filed timely objections: 5 were withdrawn, 8 were coextensive with the unfair labor practice allegations, 2 were sustained, and the remaining objections were overruled consistent with the decision to dismiss the corresponding unfair labor practice allegations.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Teamsters Local 682; complaint alleged violation of Section 8(a)(1) and (3). Hearing at St. Louis, Nov. 29 through Dec. 2, 2004. Adm. Law Judge Bruce D. Rosenstein issued his decision Feb. 14, 2005.
***
Kvaerner Philadelphia Shipyard, Inc. (4-CA-32182; 347 NLRB No. 36) Philadelphia, PA June 9, 2006.
Chairman Battista and Member Schaumber affirmed the administrative law judge's deferral to the arbitrator's decision and dismissed the complaint allegation that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee William Smith because he engaged in concerted protected activities. Dissenting, Member Liebman would not defer to the arbitrator's award, because in her view, it was palpably wrong and repugnant to the Act. She would find that the Respondent unlawfully discharged Smith on the basis of his exercise of protected concerted activities, as alleged.
On June 1, 2003, Smith, a former shop steward, addressed a letter to all employees questioning the Respondent's deductions for union dues and medical and dental benefits from their paychecks when there are 3 pay periods in a month like May 2003. He claimed that union dues, medical and dental are set amounts that the Respondent takes out in two payments each month. Later that day, Smith was fired. Although asserting that he would find the discharge unlawful, the judge determined that the arbitrator's decision was not palpably wrong and thus deferral was appropriate under Board law.
Chairman Battista and Member Schaumber, in affirming the judge's deferral finding, did not pass on his finding that Smith was, in fact, discharged for engaging in protected activity. They concluded that the arbitrator adequately addressed the components of the unfair labor practice allegation and found that Smith lost the protection of the Act because he had acted with reckless disregard for the truth, with the intent to incite employee distrust of the Respondent and to defame the Respondent. The majority observed that in finding the arbitrator's decision was not palpably wrong, the judge wrote: "Smith went further, however, than merely voice his erroneous assumptions. He also queried what the company was doing with the extra money, and stated that the 'extra money being taken out of your pocket . . . is probably being put into a bank earning interest' . . . Clearly, his erroneous accusations about the Company's ill-gotten gains was both, unnecessary to his stated purpose and, therefore, inflammatory."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by William Smith, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia on Dec. 15, 2004. Adm. Law Judge Karl H. Buschmann issued his decision Feb. 23, 2005.
***
St. Francis Medical Center, an operating division of Catholic Healthcare West Southern California Region (21-CA-33315; 347 NLRB No. 35) Lynwood, CA June 6, 2006.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by refusing to remove from various work areas flyers that disparaged and personally attacked employee Heang Botelho because of her union activities. The Board relied solely on the judge's finding that supervisor Luis Carillo took no action in response to Botelho's complaint when Botelho saw the flyers posted throughout the workplace.
Contrary to the judge, the Board held that the Respondent did not violate Section 8(a)(1) by disparately enforcing its no-solicitation, no-distribution rule as to posting materials in the workplace. It found that the General Counsel did not produce any evidence that the Respondent had acted disparately in regard to what else it permits to be posted. Without this predicate against which to compare the Respondent's actions regarding posting in this case, the Board reasoned that it cannot find that the Respondent disparately enforced a no-solicitation no-distribution against union supporters as alleged in the complaint.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Service Employees Local 399; complaint alleged violation of Section 8(a)(1). Hearing at Los Angeles, March 16-17, 2000. Adm. Law Judge Mary Miller Cracraft issued her decision Dec. 15, 2000.
***
U-Haul Co. of California (32-CA-20665-1; 346 NLRB No. 34) Fremont, CA June 8, 2006.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Michael Warren and Andrew Johnson because of their union and protected concerted activities.
Members Liebman and Schaumber agreed with the judge that the Respondent violated Section 8(a)(4) and (1) by maintaining a mandatory arbitration policy as a condition of employment with Respondent. The judge found that the arbitration policy, as stated, violated the Act because it would reasonably tend to inhibit employees from filing charges with the Board. Specifically, the judge found that the phrase "any other legal or equitable claims and causes of action recognized by local, state, or federal law or regulations" reasonably includes the filing of unfair labor practice charges with the Board, and thus employees could reasonably believe that they are precluded from filing such charges with the Board. Dissenting, Chairman Battista would find that the policy is not unlawful. He contended that there is no evidence that the rule has been applied to the protected activity of invoking Board processes, that there is no evidence that it was intended to apply to such activity, and that the policy does not explicitly bar any Section 7 activity.
The judge found that the Respondent violated Section 8(a)(1) when its shop manager, Chip Thorn, during an employee meeting, asked Warren, "What do you know about the Union in Vegas, Warren?" The judge relied on the fact that the questioning took place in front of 30 employees, that in that meeting Thorn also expressed an opinion that employees would gain nothing by union representation, and that Thorn discharged Warren and Johnson shortly after the interrogation.
Chairman Battista and Member Schaumber reversed the judge, finding that neither the subject matter of Thorn's question, nor the circumstances in which it was asked, was coercive. They said that Thorn's question, about an event at a different location, was the subject of literature that Warren had openly distributed, that the question was not about Warren's union activity, and Warren was not asked to reveal his union sentiments or those of his fellow employees. Contrary to her colleagues, Member Liebman wrote that "a careful examination of the circumstances demonstrates that, in each instance, the Respondent's action reasonably tended to coerce employees in the exercise of their Section 7 rights." In her view, Warren was singled out for questioning about union activity, by the shop's highest-ranking manager, before 30 other employees in a mandatory meeting-and was unlawfully fired soon afterward.
Chairman Battista and Member Schaumber also reversed the judge's finding that the statement in the Respondent's employee handbook ". . . if your supervisors cannot resolve your problems, you are expected to see me" violated Section 8(a)(1). The judge asserted that the statement would reasonably be interpreted by employees as requiring them to resolve their workplace problems through internal measures rather than by exercising rights guaranteed them by Section 7 of the Act. However, the majority maintained that the judge erred in reading the disputed statement in isolation, rather than considering it in the context in which it appears. The statement appears in the same paragraph, and immediately follows, the Respondent's assertion that its employees "can speak up for yourselves at all levels of management" and that it will "listen" and do its best to give them a "responsible reply."
The majority reasoned that the statement that employees "can speak up for yourself" invites, but does not require, the presentation of workplace problems to management. They further contended that even if the disputed statement could be read as a direction to employees to present their workplace problems to the Respondent's managers, or at least an encouragement to do so, the handbook does not foreclose employees from also using other avenues (e.g., the union, fellow employees, the NLRB).
Member Liebman agreed with the judge that the Respondent unlawfully interfered with employees' right to seek redress of employment problems through protected concerted activities by maintaining a policy implicitly prohibiting resolution of employee complaints through entities other than the Respondent's supervisory hierarchy. In addressing the rule in the employee handbook requiring employees to report work-related complaints to management, she wrote: "while the Respondent's statement does not explicitly threaten disciplinary action, there is an implicit threat of adverse consequences if employees do not meet the Respondent's 'expectation' that they first discuss complaints with their supervisor and Shoen."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Machinists Lodge 190, Local 1173; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Oakland, Oct. 15-17 and 22-23, 2003. Adm. Law Judge Jay R. Pollack issued his decision Feb. 6, 2004.
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NLRB Law Memo 06/16/2006
by Ross Runkel at LawMemo
NLRB Law Memo 06/16/2006
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized no decisions this week.
Report on Case Developments January through March 2006 (06/15/2006)
General Counsel Ronald Meisburg has issued his first report on cases decided on a request for advice or on appeal from a Regional Director's dismissal of unfair labor practices, plus requests for Board authorization for injunction proceedings under Section 10(j).
Cases include a General Counsel decision to ask the NLRB to modify a 2001 holding that contract language standing alone is sufficient to establish a Section 9(a) relationship in the construction industry, a decision on whether a union's display of an inflatable rat is a secondary boycott, and a proposed remedy for an employer unilaterally implementing surveillance cameras.
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NLRB Law Memo 06/09/2006
by Ross Runkel at LawMemo
NLRB Law Memo 06/09/2006
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 21 decisions.
Allied Aviation Fueling of Dallas, LP (16-CA-24267, 24288; 347 NLRB No. 22) Dallas, TX May 31, 2006.
Affirming the administrative law judge's conclusions, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging employee and union maintenance chair Patrick Sanford because of his protected concerted activity and/or activity on behalf of Air Transport Workers Local 513; and violated Section 8(a)(5) and (1) by changing its drug-testing policy as it applied to the employees in the appropriate unit without first giving notice to and affording the Union an opportunity to bargain over the proposed changes.
The Respondent admitted that it discharged Sanford for his actions in filing a grievance under the parties' collective-bargaining agreement. The Board found that Sanford did not engage in conduct so egregious as to lose the Act's protection when he deliberately altered his own signature style and signed the name of another employee on a grievance form without that employee's permission. The Board limited its finding to the facts of this case, which show that Sanford acted in the good-faith belief that his action was necessary to preserve a contractual grievance claim, that he derived no direct benefit from the grievance filing, and that he quickly and voluntarily withdrew the grievance and acknowledged the forgery to management upon learning that the affected employee opposed the filing. It did not pass on whether deliberate falsification of signatures on grievance forms would be protected in other circumstances.
In finding that Sanford's suspension and discharge violated Section 8(a)(3) and (1), the Board did not rely on the judge's analysis of Sanford's discharge under Wright Line, 251 NLRB 1083 (1980), noting that where, as here, an employer admits that it discharged an employee for engaging in protected activity, a Wright Line analysis is inapplicable.
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charges filed by Air Transport Workers Local 513; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Fort Worth, Nov. 2-3, 2005. Adm. Law Judge William N. Cates issued his decision Dec. 21, 2005.
***
Bud Ante, Inc. (32-CA-21181, 21596; 347 NLRB No. 9) Yuma, AZ and Marina and Huron, CA May 30, 2006.
This case involves the end of a 14-year-long lockout pursuant to an agreement between the Respondent, Charging Party Food and Commercial Workers Local 1096, and Teamsters Local 890. The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate, without a legitimate and substantial business justification, from Jan. 23 through Feb. 23, 2004, the formerly locked out employees, who had accepted its offer of reinstatement.
While the judge found that the Respondent's obligation to reinstate the formerly locked-out employees began on Dec. 19, 2003, the Board decided that the obligation did not mature until Jan. 23, 2004, the date the Respondent knew how many formerly locked-out employees wanted to return to work and their varying degrees of seniority.
Contrary to the judge, Chairman Battista and Member Schaumber found that the Respondent did not violate Section 8(a)(3) and (1) by treating the returning employees as new employees during their first 4 weeks back on the job for purposes of assigning overtime. They found that the Respondent's decision had only a "comparatively slight" impact on employee rights and that the Respondent had a substantial and legitimate business justification for its decision given the many years that the returning employees had not worked for the Respondent and the operational changes that took place between 1989 and 2004. "It was reasonable for the Respondent to require these employees to be retrained and not take on full overtime until that training period had been completed," Chairman Battista and Member Schaumber held.
Member Liebman, dissenting on this issue, found that the Respondent's business justification for treating the returning employees as new employees in terms of overtime assignments "fails to withstand scrutiny." She explained that the returning employees were analogous to returning economic strikers, who must be treated as qualified to perform their job, unless their inability to perform is actually demonstrated (and not merely assumed).
Chairman Battista and Member Schaumber modified the judge's backpay remedy that required the Respondent to make whole all 24 employees who accepted its offer of reinstatement from Dec. 19 through Feb. 23, 2004, by ordering the Respondent to make the employees whole for the period of Jan. 23 through Feb. 23, 2004, and by ordering make-whole relief only for the seven employees who requested reinstatement and actually reported for work on Feb. 23, 2004.
Member Liebman found that the majority erred by denying make-whole relief to 16 locked-out employees whose reinstatement was unlawfully delayed by the Respondent, without requiring the Respondent to prove that the failure of those employees to report to work was unrelated to the delay.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed Food and Commercial Workers Local 1096; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Oakland. Adm. Law Judge Burton Litvack issued his decision Feb. 17, 2005.
***
Centerline Construction Co. (5-CA-32001; 347 NLRB No. 31) Baltimore, MD May 31, 2006.
The Board affirmed the administrative law judge's findings and held that the Respondent violated Section 8(a)(1) and (3) of the Act by interrogating applicants for employment concerning their union affiliation; threatening not to rehire employees because of their union activity; refusing to hire job applicants because of their union affiliation; and laying off an employee because of his union affiliation or other protected activities.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Carpenters Mid-Atlantic Regional Council; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Baltimore, Jan. 12-14 and Jan. 30-Feb. 2, 2005. Adm. Law Judge Joseph Gontram issued his decision June 30, 2005.
***
CMC Electrical Construction and Maintenance, Inc. (2-CA-35489; 347 NLRB No. 25) Wallkill, NY May 31, 2006.
The Board set aside the administrative law judge's decision of April 5, 2004, and remanded the proceeding to the chief administrative law judge for reassignment to a different administrative law judge.
In exceptions, the Respondent asserted that the judge demonstrated bias in favor of Electrical Workers IBEW Local 363 and, thus, denied the Respondent due process. The Respondent contended that the judge "practically advocates the position of the General Counsel without regard to the voice of the evidence." Therefore, the Respondent requested that the Board decline to adopt the judge's decision, or alternatively, that it conduct a hearing de novo before the Board.
Consistent with its decision in Dish Network Service Corp., 345 NLRB No. 83 (2005), the Board decided to remand this case to another judge in order for him or her to review the record and issue an appropriate decision. In the Board's view, the impression given is that the judge simply adopted, by rote, the views of the General Counsel and failed to conduct an independent analysis of the case's underlying facts and legal issues. No hearing de novo was ordered because review of the record satisfied the Board that the judge conducted the hearing itself properly.
The Board recognized that the Respondent did not specifically except to the judge's extensive copying. However, the Board stated "that fact does not, and should not, preclude the Board from taking corrective measures. It is the Board's solemn obligation to insure that its decisions and those of its judges are free from partiality and the appearance of partiality."
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charge filed by Electrical Workers IBEW Local 363; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York on Feb. 9, 2004. Adm. Law Judge Howard Edelman issued his decision April 5, 2004.
***
CNP Mechanical, Inc. (3-CA-23731-2; 347 NLRB No. 14) Hilton, NY May 31, 2006.
The Board, in affirming the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire or consider for hire 11 discriminatees, modified her requirement that the Respondent offer instatement and other make whole remedies to all 11 discriminatees because the remedy does not conform to current Board law. Member Schaumber, dissenting in part, would not find that the Respondent's refusal to hire or consider Union Business Agent James Caternolo violated Section 8(a)(3).
Turning to the modified remedy, the Board applied FES, 331 NLRB 9 (2005). It noted that the General Counsel knew or should have known of three openings available before the hearing and accordingly, deferred the determination as to which discriminatees must be offered instatement and backpay to the compliance stage. In addition, the Respondent has been ordered to reinstate Trevor Claffey to one of the three positions and Claffey is presumptively entitled to reinstatement with backpay pending a contrary determination at the compliance stage. If Claffey is reinstated, the compliance stage should determine which discriminatees would have been hired to the remaining two positions. If Claffey is not due reinstatement, then three of the discriminatees are due instatement. The remaining discriminatees are due the remedy for refusal to consider for hire.
(Members Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Plumbers Local 13; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Rochester, Feb. 3-5, 2003. Adm. Law Judge Margaret M. Kern issued her decision June 24, 2004.
***
Crossing Recovery Systems, Inc. d/b/a Crossing Rehabilitation Services (29-CA-26118, et al.; 347 NLRB No. 21) Islip Terrace, NY May 31, 2006.
The Board set aside the administrative law judge's decision of Aug. 8, 2005, and remanded the proceeding to the chief administrative law judge for reassignment to a different administrative law judge. Member Liebman dissented from the remand order for the reasons stated in her dissent in Regency House of Wallingford, 347 NLRB No. 15 (2006).
Consistent with the Board's decision in Dish Network Service Corp., 345 NLRB No. 83 (2005), the majority remanded this case to another judge in order for him or her to review the record and issue an appropriate decision. In their view, the impression given is that the judge simply adopted, by rote, the views of the General Counsel and failed to conduct an independent analysis of the case's underlying facts and legal issues. No hearing de novo was ordered because a review of the record showed that the judge conducted the hearing itself properly.
The majority recognized that the Respondent did not specifically except to the judge's extensive copying. However, they contended "that fact does not, and should not, preclude the Board from taking corrective measures. It is the Board's solemn obligation to insure that its decisions and those of its judges are free from partiality and the appearance of partiality."
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charges filed by Novelty and Production Workers Local 298; complaint alleged violation of Section 8(a)(1) and (3). Hearing at New York, Aug. 3-5 and Sept. 20-21, 2004. Adm. Law Judge Howard Edelman issued his decision Aug. 8, 2005.
***
Dairyland USA Corp. and Food and Commercial Workers Local 348-S (2-CA-35632, 35633 and 2-CB-19388, 19389; 347 NLRB No. 30) Bronx, NY May 31, 2006.
The Board affirmed the administrative law judge's findings that the Respondent Employer violated Section 8(a)(1) of the Act in various respects, including interrogating employees about their activities for Teamsters Local 202, threatening them with loss of work if the Teamsters came into Dairyland's facility, and promising employees increased medical benefits if they supported Respondent Food and Commercial Workers Local 348-S; and violated Section 8(a)(2) by directing employees to sign the Respondent Union's authorization cards.
Reversing the judge, the Board found that the Respondent Employer violated Section 8(a)(2) by recognizing the Respondent Union as the employees' collective-bargaining representative at a time when the Respondent Union did not have the support of an uncoerced majority of employees; that the Respondent Union violated Section 8(b)(1)(A) by accepting recognition; and that the Respondent Employer violated Section 8(a)(3) and the Respondent Union violated Section 8(b)(2) by entering into, maintaining, and enforcing a collective-bargaining agreement containing a union security clause when the Union did not represent an uncoerced majority of employees.
In her separate concurring opinion Member Liebman wrote:
Under the Board's precedent, applying Section 8(a)(2) . . ., a pattern of employer assistance or coercion precludes a union from establishing majority support among employees by signed authorization cards, even without a showing that the employer's conduct affected a sufficient number of card-signers to deprive the union of an actual majority. That precedent dictates the results in this case, and so I concur.
I write separately to point out that the Board's approach in this area-which has never been carefully explained-seems to be at odds with its approach to analogous legal issues. In the context of bargaining orders issued to remedy employer unfair labor practices during union-organizing campaigns, the Board requires a union to demonstrate an actual card majority. And in the election context, the Board requires specific proof that objectionable conduct potentially affected enough employees to change the result of the election. But where, as here, the issue is employer conduct that aids a union, no analogous showing is demanded. At some point, the Board should reconcile its precedents.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Miguel Pierre and William Urizar, Individuals; complaint alleged violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2). Hearing at New York during 16 days of hearing commencing on March 29, 2004. Adm. Law Judge D. Barry Morris issued his decision July 19, 2005.
***
Eugene Iovine, Inc. (29-CA-21052, et al.; 347 NLRB No. 23) Farmingdale, NY May 31, 2006.
The Board set aside the administrative law judge's decision of April 17, 2002, and remanded the proceeding to the chief administrative law judge for reassignment to a different administrative law judge.
The Respondent objected to the judge's extensive copying and requested, among other things, that this case be remanded to the chief administrative law judge for a new hearing and decision because the judge had improperly created the appearance of partiality by copying extensive portions of the General Counsel's post-hearing brief into his decision.
Consistent with its decision in Dish Network Service Corp., 345 NLRB No. 83 (2005), the Board decided to remand this case to another judge in order for him or her to review the record and issue an appropriate decision. In the Board's view, the impression given is that the judge simply adopted, by rote, the views of the General Counsel and failed to conduct an independent analysis of the case's underlying facts and legal issues. It further stated that "it is the Board's solemn obligation to insure that its decisions and those of its judges are free from partiality and the appearance of partiality." No hearing de novo was ordered because review of the record satisfied the Board that the judge conducted the hearing itself properly.
(Chairman Battista and Members Schaumber and Kirsanow participated.)
Charges filed by Electrical Workers IBEW Local 3; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on Feb. 21, 2002. Adm. Law Judge Howard Edelman issued his decision April 17, 2002.
***
Garden Ridge Management, Inc. (16-CA-22275, 22756; 347 NLRB No. 13) Dallas, TX May 31, 2006.
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to meet at reasonable times with Teamsters Local 745, following its certification as exclusive bargaining representative on April 22, 2002. Contrary to the judge, Chairman Battista and Member Schaumber, with Member Liebman dissenting, found that the Respondent did not violate Section 8(a)(5) and (1) by engaging in surface bargaining and withdrawing recognition from the Union.
The parties began negotiations for a first collective-bargaining agreement on May 15, 2002. They negotiated on 20 occasions over 11 months and reached tentative agreement on 28 articles. During negotiations, the Respondent refused without explanation approximately eight requests from the Union that they meet more frequently. On April 25, 2003, the Respondent withdraw recognition of the Union based on an employee petition indicating that a majority of the unit employees no longer wanted the Union to represent them.
Chairman Battista and Member Schaumber found that the General Counsel failed to prove that the Respondent did not intend to reach agreement with the Union, an "essential aspect of a surface-bargaining allegation." They also found no specific proof that the Respondent's unlawful refusal to meet at reasonable times caused the Union's loss of majority support. Member Liebman noted that the Respondent had expressed its intent to engage in surface bargaining prior to the election and later followed through on its intent. She wrote: "Predictably, the Union, which had failed to produce a contract, lost majority support-and by then the Union's certification year, which insulated it from challenges to its representative status had run out." While the Respondent's unlawful refusal to meet with the Union at reasonable times was enough, by itself, to taint the Respondent's withdrawal of recognition from the Union, Member Liebman explained, the record also demonstrates that the Respondent engaged in surface bargaining.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Teamsters Local 745; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Fort Worth, June 30, July 1-3, and July 16-17, 2003. Adm. Law Judge Keltner W. Locke issued his decision Aug. 19, 2003.
***
Halsted Communications (2-RC-23006; 347 NLRB No. 20) Yonkers, NY May 31, 2006.
The Board sustained the challenges to the ballots of Contractor Technician Supervisors Jayson McCoy, Uton Cousins, and Collie Smith; and certified Electrical Workers IBEW Local 1430, winner of a Sept. 12, 2005 election by a 28-to-24 vote, as the exclusive representative of the installation technicians employed by Halsted Communications in and out of its Yonkers, NY facility.
The hearing officer found that McCoy, Cousins, and Smith were eligible to vote as dual-function employees because they regularly performed unit work and overruled the challenges to their ballots. Members Schaumber and Walsh found merit in the Employer's exception, arguing that McCoy, Cousins, and Smith should be excluded from the bargaining unit by the clear terms of the stipulated election agreement. They concluded that the parties' intent to exclude the three disputed employees is clear and that the parties' stipulation is not contrary to any statutory provision or established Board policy.
Chairman Battista agreed that the three challenges should be sustained, but on a different basis. He found that there is an insufficient community of interest between the contractor technician supervisors and the other unit employees to warrant their inclusion in the unit.
(Chairman Battista and Members Schaumber and Walsh participated.)
***
J.C. Penney Corp., Inc. (29-RC-11193; 347 NLRB No. 11) Elmhurst, NY May 30, 2006.
The Board directed the Regional Director to open and count 9 ballots and thereafter to serve on the parties a revised tally of ballots and the appropriate certification. The tally of ballots for the election held on Aug. 19 and 20, 2005, showed 123 votes for and 117 against the Petitioner, Food & Commercial Workers Local 3, with 12 challenged ballots, a number sufficient to affect the results of the election.
At issue are the challenges to the ballots of Magaly Ochoa and Betty Pawlak. The hearing officer recommended that the challenge to Ochoa's ballot be overruled and the challenge to Pawlak's ballot be sustained. The Board reversed the hearing officer's recommendations. It agreed with the Employer that Ochoa was terminated on Aug. 12, 2005 and was thus ineligible to vote in the election. The Petitioner challenged Pawlak's ballot on the ground that she was a supervisor under Section 2(11) of the Act based on her alleged authority to hire new employees. The Board held that the Petitioner did not meet its burden of establishing Pawlak's supervisory status and overruled the challenge to her ballot.
In the absence of exceptions, the Board adopted pro forma the hearing officer's recommendations regarding the remaining 10 challenged ballots and that all remaining objections are withdrawn.
(Members Schaumber, Kirsanow, and Walsh participated.)
***
Letter Carriers Branch 1227 (United States Postal Service) (16-CB-6815, 6874; 347 NLRB No. 27) Wichita Falls, TX May 31, 2006.
The Board adopted the administrative law judge's recommendation and dismissed the complaint alleging that the Respondent violated Section 8(b)(1)(A) of the Act by allocating a lesser portion of the proceeds of a grievance settlement to retirees than to active employees.
As a result of a "class action grievance," an arbitrator issued an award stating that the Union was "entitled to a make-whole remedy for the carriers," as a compensation for the Postal Service's forcing them to work an additional 10 minutes per day. The Union and the Postal Service agreed that the Postal Service would pay $800,000 and that the Union would provide the Postal Service with the names and amounts to be paid each letter carrier.
In deciding how to apportion the settlement proceeds, the Union officials sought the advice of counsel who informed the officials that the Union had no duty to include the retirees in the distribution of the proceeds, basing his advice on the Supreme Court's decision in Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass, 404 U.S. 157 (1971), in which the Court held that an employer did not violate Section 8(a)(5) and (1) of the Act by refusing to negotiate over its modification of retiree benefits, because retirees are not "employees" under the Act.
Notwithstanding its counsel's advice, the Union decided to allocate some of the settlement proceeds to the retired carriers, who received approximately half as much as carriers actively employed at the time of the settlement. The charging parties, who are retired carriers, contended that the Union violated its duty of fair representation by failing to treat the retirees in the same manner as active employees.
The Board noted under counsel's advice, the Union could have given the retirees nothing. However in an effort to be fair, the Union adopted a compromise position and gave each retiree a half share. In the Board's view, the Union's distribution of the settlement proceeds cannot be said to be arbitrary, discriminatory, or in bad faith and it found that the Union did not breach any duty of fair representation that it may have owed to the retirees.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Terry Erwin and Terry Pennington, Individuals; complaint alleged violation of Section 8(b)(1)(A). Hearing at Wichita Falls on Sept. 7, 2005. Adm. Law Judge Keltner W. Locke issued his decision Oct. 7, 2005.
***
Nordstrom, Inc. (19-CA-29729; 347 NLRB No. 28) Bellevue, WA May 31, 2006.
The Board adopted, absent exceptions, the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing disciplinary warnings to three employees, Yvonne Chung, Thomas Luis, and Jose Luciano, and issuing a low score on a component of Chung's annual evaluation because it believed that the three employees concertedly refused to speak to coworker Maryam Aghdassi due to her testimony on behalf of Respondent in an NLRB objections hearing.
The Board found it unnecessary to consider UNITE HERE Local 71JT's request that the Respondent explicitly be ordered to expunge from its electronic records and litigation files all references to the unlawful "opportunity checks" (discipline) of the three employees and the "unsatisfactory" evaluation of Yvonne Chung. It noted that the Respondent did not contest application of the Order to its electronic records, and any question as to the existence of, or the Order's application to, litigation files may be addressed in compliance proceedings.
Because the General Counsel and the Union presented no supporting evidence to indicate that the Respondent customarily communicates with its employees through an intranet, Chairman Battista and Member Kirsanow denied the Union's further request for intranet posting of the Board's notice to employees. See International Business Machines Corp., 339 NLRB 966 (2003).
Contrary to her colleagues, Member Liebman said there is no need for evidence on this matter. She would modify the standard notice-posting language to require intranet posting when a respondent customarily communicates to employees via an intranet and would make this modification based on general consideration. Member Liebman would leave to compliance the issue of whether the Respondent customarily communicates to its employees via an intranet.
Chairman Battista and Member Kirsanow disagreed with their colleague's approach and noted that they would like the benefit of a concrete fact pattern before deciding whether to depart from the standard notice-posting remedy and take the unprecedented step of requiring intranet or some other electronic posting. In their view, "such a record should be made before we enter such an order, not afterward in the compliance stage."
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charge filed by UNITE HERE Local 71JT; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Seattle on Nov. 15, 2005. Adm. Law Judge Mary Miller Cracraft issued her decision March 2, 2006.
***
Northern Indiana Public Service Co. (25-CA-28040-1; 347 NLRB No. 17) Wheatfield, IN May 31, 2006.
Chairman Battista and Member Schaumber reversed the administrative law judge and held that the Respondent did not violate the Act by refusing, on the basis of confidentiality, to furnish Steelworkers Local 12775 with a copy of notes from interviews conducted by the Respondent in investigating bargaining unit employee Randy Chaplin's complaint about the threatening conduct of his supervisor, Patrick Long.
The majority held, contrary to the judge, that the requested information is confidential and that the Respondent's interest in confidentiality outweighed the Union's need for the information. In addition, the majority found that the Respondent did not fail to meet its duty to offer an accommodation of the conflicting interests.
Dissenting Member Liebman would find the interview notes relevant and reject the Respondent's arguments that the related grievance filed on Chaplin's behalf is invalid, untimely, and moot. She also disagreed with the majority's finding that the Respondent's confidentiality interest is legitimate and substantial, saying the majority disregards protective measures available with regard to the assertedly confidential information and ordered by the judge without challenge by the Union or the General Counsel to answer Respondent's concerns. "The majority departs from Board precedent at each step."
On Aug. 27, 2001, Chaplain complained to his union representative, James Blythe, that Long behaved in a threatening manner toward employees, including an incident on July 27, 2001, when Long allegedly approached Chaplin and stated, "Peace, love, and understanding, and then you empty the clip," while pointing his finger at Chaplin as if it were a gun. Blythe informed management of Chaplin's concerns. Among other things, Respondent's EEO manager and labor relations coordinator, Barbara Sacha, interviewed Chaplin, Operations Superintendent Mickey Bellard, and Long. Each individual spoke to Sacha voluntarily, and she prefaced her interviews by assuring each of them that she would keep their conversation confidential. Sacha personally typed up her handwritten notes of the interviews (the Sacha notes), protected them with a computer password, and did not provide them to the Respondent's other managers.
Long's immediate supervisor, Lawrence Dora, met with Long, Chaplin, and Union Representative Vern Beck on Oct. 22 to discuss their concerns and resolve the matter. Dora concluded the meeting by instructing Long to keep his conversations with Chaplin strictly work related. Blythe later filed a grievance on Chaplin's behalf and requested information regarding the Respondent's investigation of Chaplin's complaint about Long. The Respondent provided the names of employees who were interviewed in connection with Chaplin's claims, but it refused, citing confidentiality, to provide the Sacha notes to the Union.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Steelworkers Local 12775; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Valparaiso on Aug. 1, 2002. Adm. Law Judge William N. Cates issued his decision Aug. 30, 2002.
***
O.G.S. Technologies, Inc. (34-CA-9336, 9458; 347 NLRB No. 29) Waterbury, CT May 31, 2006.
The Board set aside the administrative law judge's decision of Nov. 29, 2002, and remanded the proceeding to the chief administrative law judge for reassignment to a different administrative law judge. Member Liebman dissented from the remand order for the reasons stated in her dissent in Regency House of Wallingford, 347 NLRB No. 15 (2006).
Consistent with the Board's decision in Dish Network Service Corp., 345 NLRB No. 83 (2005), the majority remanded this case to another judge in order for him or her to review the record and issue an appropriate decision. In their view, the impression given is that the judge simply adopted, by rote, the views of the General Counsel and failed to conduct an independent analysis of the case's underlying facts and legal issues. No hearing de novo was ordered because a review of the record showed that the judge conducted the hearing itself properly.
The majority recognized that the Respondent did not specifically except to the judge's extensive copying. However, they said "that fact does not, and should not, preclude the Board from taking corrective measures. It is the Board's solemn obligation to insure that its decisions and those of its judges are free from partiality and the appearance of partiality."
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charges filed by Auto Workers Local 376; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Hartford, Dec. 11, 2001, March 21 and Sept. 5, 2002. Adm. Law Judge Howard Edelman issued his decision Nov. 29, 2002.
***
Ogihara America Corp. (7-CA-47942, 48024; 347 NLRB No. 10) Howell, MI May 30, 2006.
The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by threatening employees with a monetary penalty if they engage in union activity. It reversed the judge and dismissed the complaint allegations that the Respondent violated Section 8(a)(1) by discharging Leo Andre Ahern for engaging in protected concerted activity and interrogating Bruce Pierson as to who sent a letter and photographs critical of a supervisor's work performance; and violated Section 8(a)(4), (3), and (1) by discharging Ahern because he testified at a representation hearing before the Board and because of his support for the Auto Workers.
(Chairman Battista and Members Schaumber and Kirsanow participated.)
Charges filed by Auto Workers and Leo Andre Ahern, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Detroit, May 17-19, 2005. Adm. Law Judge Michael A. Rosas issued his decision Nov. 3, 2005.
***
Regency House of Wallingford, Inc. (34-CA-9895, et al.; 347 NLRB No. 15) Wallingford, CT May 31, 2006.
The Board set aside the administrative law judge's decision of Jan. 24, 2003 and remanded the proceeding to the chief administrative law judge for reassignment to a different administrative law judge. Member Liebman dissented from the remand order.
Consistent with the Board's decision in Dish Network Service Corp., 345 NLRB No. 83 (2005), the majority decided to remand this case to another judge in order for him or her to review the record and issue an appropriate decision. In their view, the impression given is that the judge simply adopted, by rote, the views of the General Counsel and failed to conduct an independent analysis of the case's underlying facts and legal issues. No hearing de novo was ordered because review of the record satisfied the majority that the judge conducted the hearing itself properly.
While the majority recognized that the Respondent did not specifically except to the judge's extensive copying, they held "that fact does not, and should not, preclude the Board from taking corrective measures. It is the Board's solemn obligation to insure that its decisions and those of its judges are free from partiality and the appearance of partiality."
In dissent, Member Liebman stated that although she does not approve of the judge's conduct, she was opposed to the Board disposing of a case on a basis that could have been, but was not raised, by any party. She said:
I believe the better course of action is to decide this case with dispatch based on our own independent review of the record, rather than to further delay processing of the case and increase the costs to the parties, by remanding the case for assignment to another judge. By not raising the copying issue, the parties have implicitly indicated their willingness to have the Board decide the case as it now stands. Our independent review, coupled with the multiple rebukes of the judge, adequately addresses any concerns over the appearance of partiality.
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charges filed by Chemical Workers/UFCW Local 560C; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Hartford, June 11-12 and July 9, 2002. Adm. Law Judge Howard Edelman issued his decision Jan. 24, 2003.
***
Simon Debartelo Group a/w M. S. Management Associates, Inc. (29-CA-23218-1; 347 NLRB No. 26) Garden City, NY May 31, 2006.
The Board set aside the administrative law judge's decision of Dec. 1, 2000, and remanded the proceeding to the chief administrative law judge for reassignment to a different administrative law judge. Member Liebman dissented from the remand order for the reasons stated in her dissent in Regency House of Wallingford, 347 NLRB No. 15 (2006).
Consistent with the Board's decision in Dish Network Service Corp., 345 NLRB No. 83 (2005), the majority remanded this case to another judge in order for him or her to review the record and issue an appropriate decision. In their view, the impression given is that the judge simply adopted, by rote, the views of the General Counsel and failed to conduct an independent analysis of the case's underlying facts and legal issues. No hearing de novo was ordered because a review of the record showed that the judge conducted the hearing itself properly.
The majority recognized that the Respondent did not specifically except to the judge's extensive copying. However, they said "that fact does not, and should not, preclude the Board from taking corrective measures. It is the Board's solemn obligation to insure that its decisions and those of its judges are free from partiality and the appearance of partiality."
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charge filed by Service Employees Local 32B-32J; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn on June 20, 2000. Adm. Law Judge Howard Edelman issued his decision Dec. 1, 2000.
***
JLL Restaurant, Inc. and Smoke House Restaurant (31-CA-26240, et al.; 347 NLRB No. 16) Burbank, CA May 31, 2006.
The Board upheld the administrative law judge's findings that Respondent Smokehouse (Respondent) violated Section 8(a)(1) of the Act by advising the employees of its predecessor, Respondent JLL, and other applicants for employment that it intended to operate nonunion, and telling a JLL employee not to speak to Hotel Employees and Restaurant Employees Local 11 about employment with the Respondent.
The judge also found, with Board approval, that the Respondent violated Section 8(a)(3) and (1) by refusing to hire Frederico Cruz, Tomas Garcia Rodriguez, Raul Martinez, and Alex Vaquerano because they engaged in union activity; and violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union, failing to apply the terms of the collective-bargaining agreement between JLL and the Union, and unilaterally changing certain contractual terms and conditions of employment.
Agreeing with the judge, the Board dismissed allegations that the Respondent violated Section 8(a)(3) by failing to hire former JLL employees Lori Barnes, Alice Colon, and Hector Uribe. The Board agreed with the judge that the Respondent is a successor to JLL within the meaning of Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973), and that it is liable to remedy JLL's unfair labor practices. In addition, it agreed that an affirmative bargaining order is warranted as a remedy for the Respondent's unlawful refusal to recognize and bargain with the Union.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Hotel Employees and Restaurant Employees Local 11; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Los Angeles, Jan. 26-29, 2004. Adm. Law Judge Lana H. Parke issued her decision April 6, 2004.
***
Teamsters Local 287 (32-CB-5817-1; 347 NLRB No. 32) San Jose, CA May 31, 2006.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(b)(3) of the Act by unlawfully delaying the ratification vote on the tentative agreement reached with the Employer, Granite Rock Company, on July 2, 2004, and by unilaterally imposing conditions on the submission of that agreement to a ratification vote by the employees.
The judge rejected the Employer's request that the Respondent be ordered to honor the collective-bargaining agreement retroactively to July 2, 2004. Because the parties had agreed that employee ratification was a condition precedent to a final binding agreement, and because that ratification did not occur until Aug. 22, the judge determined that a final and binding agreement was not formed until the latter date.
The Board agreed with the Respondent's argument that, remedially, it should require that the tentative agreement be made retroactive to July 2. The Board determined that, but for the Respondent's unlawful delay of the ratification vote, the tentative agreement would have been ratified and become final as of July 2. It modified the judge's recommended order and required that the Respondent give retroactive effect to the terms of the agreement reached with the Employer on July 2, 2004, as if ratified on that date.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Granite Rock Company; complaint alleged violation of Section 8(b)(3). Hearing at Oakland, May 11-12, 2005. Adm. Law Judge Jay R. Pollack issued his decision July 14, 2005.
***
Trim Corp. of America, Inc. (29-CA-26325, et al.; 347 NLRB No. 24) Brooklyn, NY May 31, 2006.
The Board set aside the administrative law judge's decision of Sept. 7, 2005, and remanded the proceeding to the chief administrative law judge for reassignment to a different administrative law judge.
The Respondent objected to the judge's extensive copying. In exceptions, it asserted that the judge failed to issue a reasoned decision and created the appearance of partiality by copying extensive portions of the General Counsel's posthearing brief into his decision. The Respondent claimed that this conduct demonstrated that the judge was biased against it and requested the Board to remand the case to a different judge and that the judge review the record and issue a proper decision.
Consistent with its decision in Dish Network Service Corp., 345 NLRB No. 83 (2005), the Board decided to remand this case to another judge in order for him or her to review the record and issue an appropriate decision. In the Board's view, the impression given is that the judge simply adopted, by rote, the views of the General Counsel and failed to conduct an independent analysis of the case's underlying facts and legal issues. It further stated that "it is the Board's solemn obligation to insure that its decisions and those of its judges are free from partiality and the appearance of partiality." No hearing de novo was ordered because review of the record satisfied the Board that the judge conducted the hearing itself properly.
(Chairman Battista and Members Schaumber and Kirsanow participated.)
Charges filed by Auto Workers Local 2179; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on May 3, 2005. Adm. Law Judge Howard Edelman issued his decision Sept. 7, 2005.
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NLRB Law Memo 06/05/2006
by Ross Runkel at LawMemo
NLRB Law Memo 06/05/2006
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 2 decisions.
Children's Services International, Inc. (32-CA-21495-1; 347 NLRB No. 7) Salinas, CA May 22, 2006.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by interrogating employees about their union activities. Chairman Battista and Member Schaumber reversed the judge and dismissed the allegation that the Respondent violated Section 8(a)(3) and (1) by laying off Aurora Urzua and Griselda Palafox because of their union activities. Member Liebman disagreed with her colleagues on this issue.
The Respondent runs child-care centers for low-income families and administers a state grant program for independent child-care providers and their clients. In April 2004, the Respondent learned that it would have a shortfall in the funds it received from the state for the upcoming fiscal year, which was to begin on July 1. Ruben Guajardo, the Respondent's human resources director decided that he could eliminate three positions if he merged the provider-contract and payout departments. The majority found that when Guajardo first notified Service Employees Local 817 about the identity of the employees slated for layoff, he justified their selection by reference to their qualification.
The Respondent sought to minimize training costs and disruption to the administration of the grant program. In order to accomplish this, the majority found that the Respondent's conduct in choosing Urzua and Palafox for layoff served that goal. It wrote:
We emphasize that it is not our objective to determine whether the Respondent's choice of Urzua and Palafox was the correct decision or that the Respondent used the best decision-making process. The Respondent may make its layoff decision on any basis it chooses, good, bad, or indifferent—as long as it is not an unlawful basis. . . . We are concerned only with discerning the sincerity of the Respondent's contention that the decision was not motivated by union animus.
Contrary to her colleagues, Member Liebman would adopt the judge's conclusion that the Respondent unlawfully selected Aurora Urzua and Griselda Palafox for layoff based on their union activities. She would also adopt his findings that the pretextual nature of the Respondent's rationale was shown by: (1) the Respondent's failure to consult Supervisors Alderete and Diaz regarding the relative qualifications of the various provider-contract and payout employees; (2) its disregard of Palafox's recent and highly positive employee appraisals; and (3) its disregard of Urzua's experience performing (for almost 20 years, some of the time singlehandedly), as well as supervising, the payout employees' work. She wrote: "the Respondent's definition of employees' 'qualifications' as only their recent experience working in the payout department seems designed simply to justify laying off Urzua and Palafox despite their seniority."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Service Employees Local 817; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Oakland, Jan 11-14, 2005. Adm. Law Judge Jay R. Pollack issued his decision April 19, 2005.
***
S.T.A.R., Inc., Lighting The Way (34-RC-2111; 347 NLRB No. 8) Norwalk, CT May 25, 2006.
Chairman Battista and Member Schaumber, with Member Liebman dissenting, reversed the hearing officer and sustained the Employer's Objection 3, set aside the election of March 25, 2005, and directed a second election. The tally of ballots showed 74 ballots for and 47 ballots against, the Petitioner, New England Health Care Employees District 1199, with 4 nondeterminative challenged ballots.
Objection 3 alleged that the Petitioner tainted the election by communicating to employees that it would waive initiation fees for only those employees who actively supported the Union. During the critical period before the election, Union Agent Ariel Lambe gave a brochure to employee Michael Gallo. In relevant part, the last page of the brochure provides: "There is a one-time $50 initiation fee. Workers who organize to join 1199 are exempt, and begin paying dues once a contract is won." [Emphasis added.]
On his own initiative, Gallo gave the brochure to Supervisor Linda Snell, who, in turn, gave it to the Employer's executive director Katie Banzhaf. Banzhaf photocopied the last page of the brochure and placed a copy in each employee's mailbox approximately 2 to 3 weeks before the election. The facts revealed that at some point before Lambe had given the brochure to Gallo, the Petitioner described its fee-waiver policy at an organizing meeting where about 18 of the 136 unit employees attended. Union Agent David Pickus explained to the employees in attendance that "there is no initiation fee for anyone working at the facility before [the Petitioner] obtains a contract." He also told them that only employees hired by the Employer after the Petitioner won a contract would pay the initiation fee. Pickus informed Gallo by telephone that "you don't pay any dues until we get a contract, there is no initiation fee, that's the policy of the Union, as stated in the Union's bylaws."
Citing NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973), the majority wrote: "A union interferes with free choice when it offers to waive initiation fees for only those employees who manifest support for the union before an election." Chairman Battista and Member Schaumber disagreed with the hearing officer's finding that the Petitioner adequately clarified its fee-waiver policy, stating: "The Board does not presume dissemination of a union's clarifications of an ambiguous offer to waive fees." The majority found that the coercive brochure was "corrected" for only about 19 employees and that the brochure was the sole source of information about initiation fees for as many as 117 employees.
In dissent, Member Liebman wrote that the Petitioner's only objectionable conduct was giving one employee, Michael Gallo, an ambiguously-worded brochure that arguably ran afoul of the Savair rule with respect to the waiver of initiation fees. She found that the Petitioner's actual fee-waiver policy was entirely lawful and that all of its other communications on the subject were proper. Member Liebman further found that the Petitioner did clearly publicize its lawful fee-waiver policy in a manner reasonably calculated to reach unit employees before they signed cards and apparently explained that policy to every employee with whom it had direct contact—including Gallo, the only employee who received the ambiguous brochure from the Petitioner. She contended that setting aside the election unfairly punishes the Petitioner and the employees who supported it for conduct over which they had no control.
(Chairman Battista and Members Liebman and Schaumber participated.)
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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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