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NLRB Law Memo 06/05/2006
by Ross Runkel at LawMemo
NLRB Law Memo 06/05/2006
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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.
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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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