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NLRB Law Memo 07/28/2006
by Ross Runkel at LawMemo
NLRB Law Memo 07/28/2006
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized 1 decision this week.
Plumbers Local 420 (4-CB-9413, 9421; 347 NLRB No. 53) Plymouth Meeting, PA July 17, 2006.
The Board adopted the recommendations of the administrative law judge and found that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by causing or attempting to cause Carrier Corp. not to hire Kip Traffican because he was a member of Local 420 who had gone to work for Merck, an employer that did not have a collective-bargaining agreement with the Respondent Union. It agreed with the judge's conclusion that the complaint allegation concerning John C. Csekitz should be dismissed.
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charges filed by Kip Traffican and John C. Csekitz, Individuals; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Philadelphia on Oct. 4, 2005. Adm. Law Judge Richard A. Scully issued his decision April 27, 2006.
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NLRB Law Memo 07/21/2006
by Ross Runkel at LawMemo
NLRB Law Memo 07/21/2006
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized no decisions this week.
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NLRB Law Memo 07/14/2006
by Ross Runkel at LawMemo
NLRB Law Memo 07/14/2006
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized no decisions this week.
NLRB - Statement Regarding "Kentucky River" Cases
NLRB Press Release 07/13/2006:
An important issue pending before the National Labor Relations Board is the proper legal standards for determining whether a nurse or other skilled employee is a supervisor as defined in Section 2(11) of the National Labor Relations Act. In Oakwood Healthcare Inc., Case 7-RC-22141; Golden Crest Healthcare Center, Case 18-RC-16415; and Croft Metals Inc., Case 15-RC-8393, the Board is considering the test for determining whether an individual assigns or responsibly directs employees using independent judgment, and thus qualifies as a supervisor under Section 2(11).
The United States Supreme Court has twice rejected prior Board rulings for minimizing the importance of independent judgment in the assignment or direction of employees by nursing personnel. In those cases, the Board found that nurses who direct other employees in their patient care duties are not statutory supervisors. In the first case [NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 579-580 (1994)], the court rejected the Board's analysis as "inconsistent with ··· the statutory language," because it "rea[d] the responsible direction portion of § 2(11) out of the statute in nurse cases." In the second case [NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 721 (2001)], the court found the Board's interpretation of "independent judgment" to be incorrect.
In deciding the three pending cases, the Board is bound by the decisions of the Supreme Court. After reviewing the written record, the briefs and arguments of the parties, the relevant case precedent and the applicable sections of the Act, the Board will issue its decisions in the pending cases.
The three cases have been pending before the Board since 2002. As part of its consideration of the cases, the Board issued a Notice and Invitation to File Briefs in July 2003, to which 22 interested parties responded, in addition to eight briefs that previously had been filed by the parties.
On February 10, 2006, the AFL-CIO filed a motion for oral argument in Oakwood Healthcare, 7-RC-22141, and Croft Metals, 15-RC-8393; and on May 4, 2006, the Service Employees International Union filed a request for oral argument. On June 23, 2006, the Board denied the requests for oral argument on the basis that "the record and briefs adequately present and address the issues and the positions of the parties and amici." Member Liebman would have granted the requests.
[Briefs and other documents related to these cases can be found at http://www.nlrb.gov/nlrb/about/foia/FrequentlyRequestedDocuments.asp ]
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NLRB Law Memo 07/10/2006
by Ross Runkel at LawMemo
NLRB Law Memo 07/10/2006
by LawMemo - World's Best.
Also available by free weekly email.
Staff summarized 12 decisions.
Extendicare Health Services, Inc. d/b/a Arbors at New Castle (4-RC-21062; 347 NLRB No. 50) New Castle, DE June 30, 2006.
The Board overruled the Employer's objection and directed the Regional Director to open and count 3 ballots and thereafter to serve on the parties a revised tally of ballots and issue the appropriate certification. The tally of ballots showed 22 votes for and 19 against the Petitioner, Food & Commercial Workers Local 27, with 3 determinative challenged ballots. The challenge to the ballot of Teresa Waldridge was resolved prior to the hearing in favor of Waldridge's eligibility to vote.
At issue are the challenges to the ballots of Ayub Ndgiri and Lorraine Gibson and the Employer's objection alleging that the Board agent's late opening of the election polls (16 minutes) resulted in the possible disenfranchisement of five eligible employees who did not vote. The hearing officer sustained the challenge to the ballot of Ndgiri, concluding that he was ineligible to vote because the parties had agreed to exclude his job classification from the voting unit. The hearing officer chose not to resolve the challenge to the ballot of Gibson, whom the Petitioner asserted was a statutory supervisor. He sustained the Employer's objection and recommended that a new election be conducted because the ballots of the five employees would have been determinative if they had voted.
The Board reversed the hearing officer's disposition of the objection and the challenges to the ballots of Ndgiri and Gibson. With respect to the objection, it found that the parties' stipulation established affirmatively that the five nonvoting employees "did not appear at the polls at any time during the scheduled polling hours," which included the 16 minutes when the polls were scheduled to be open and were not; that two of the employees clocked in for work after the 16-minute delay occurred and three of the employees did not work at all on the day of the election. The Board noted that neither party called any of the five employees to testify concerning his or her whereabouts between 6 and 6:16 a.m. on September 22, 2005. In light of the parties' stipulation, the Board overruled the objection.
The Petitioner contended that Gibson was a supervisor in light of her authority to schedule employees for work. The Board concluded that there is no evidence that she exercised independent judgment in scheduling employees and that the Petitioner did not establish that Gibson's role in the scheduling of staff is supervisory. Ndgiri's ballot was challenged by the Petitioner because at the time of the election, he was classified as a "graduate practical nurse" (GPN). The hearing officer sustained the challenge, finding that Ndgiri's wages and work as a GPN were equivalent to an LPN's, and, because LPNs were excluded from the unit, the parties intended to exclude GPNs as well. The Board determined that at the time of the election, Ndgiri was given a short-term transfer pending clarification of his permanent status and had a reasonable expectation of returning to the unit. Accordingly, it concluded that Ndgiri was a temporary transfer, that he retained a strong community of interest with the other unit employees, and that he was an eligible voter.
(Chairman Battista and Members Liebman and Kirsanow participated.)
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Carpenters Chicago Regional Council, Local 1 (13-CD-745; 347 NLRB No. 49) Chicago, IL June 30, 2006.
The Board determined that employees of Brewer Concrete Construction, Inc. represented by Laborers Local 6 are entitled to perform the work in dispute on the Access Living Headquarters Project at 111 W. Chicago in Chicago, Illinois. It reached this determination by relying on the factors of collective-bargaining agreements, employer preference, employer past practice, area practice, economy and efficiency of operations, and job loss.
The disputed work involves the fabricating, erecting, placement, stripping, shoring, re-shoring, cleaning and oiling, dismantling and stockpiling of all wall forms (Symons, Simplex, plywood, aluminum, Styrofoam, Peri Systems, etc.), gang forms, deck forms and flying forms; loading and unloading of all forms; the setting of all bulkheads, beam sides, beam bottoms and beam pockets; the framing of doorways, window openings, chamfer and all layout work in conjunction with the above; the hoisting, framing, pouring, setting and other work pertaining to tilt-up walls and panels; footings; cement finishing, by trowel or machine; the operation of all boom trucks, laser guided grader boxes, skid steers, uniloaders and all their attachments on the Access Living Headquarters Project at 111 W. Chicago in Chicago, Illinois.
(Members Schaumber, Kirsanow, and Walsh participated.)
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Clear Channel Outdoor, Inc. (1-CA-42337; 347 NLRB No. 47) Stoneham, MA June 30, 2006.
The Board agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish relevant and necessary information requested by Painters District Council 35 on July 21, 2004, relating to the subcontracting work performed on property owned by the Massachusetts Bay Transportation Authority on Albany St. in Boston, MA (the Albany project).
In affirming the information request violation, Chairman Battista and Member Schaumber relied specifically on the judge's finding that both the grievance filed by the Union's business agent, Charles Fogell, on April 23 and the phone discussion between Fogell and the Respondent's operations manager, Gary Shay, on April 22 would have put Shay on notice that the Union needed the requested information to confirm its belief that the contract had been violated. Member Schaumber also noted that the Board's order should not be read to request the production of confidential or proprietary information, or portions of documents that are not relevant and necessary to the processing of the Union's grievance.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Painters District Council 35; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston on July 19, 2005. Adm. Law Judge George Allemán issued his decision Jan. 19, 2006.
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Electrical Workers (IBEW) Local 429 and its Agent Nashville Electrical Joint Apprenticeship Training Committee (26-CB-4240; 347 NLRB No. 46) Nashville, TN June 30, 2006.
The Board reversed the administrative law judge and found that the Respondent Union through its agent Nashville Electrical Joint Apprenticeship Training Committee (JATC or the Committee) violated Section 8(b)(1)(A) and (2) of the Act by attempting to rotate apprentice Daniel Page to a different employer and by imposing discipline on Page by delaying his scheduled pay increase and his completion of his program by 6 months.
The complaint allegation is based on the actions taken by the JATC against Page because he was delinquent in his dues and because of his antiunion views. Specifically, the JATC attempted to require Page's employer, Elec Tech, to acquiesce in an attempt to rotate Page to another employer, a practice viewed as disruptive and hence undesirable by apprentices and their employers.
In dismissing the complaint, the judge found that the JATC was not the Union's agent and therefore that the Union could not be held liable for its actions. In addition, he found that, even assuming agency, the JATC's actions were reasonable and "the record contain[ed] very little evidence to suggest unlawful motivation."
The Board, in reversing the judge, agreed with the General Counsel's argument that this case is governed by the Board's decision in Plumbers Local 375, 228 NLRB 1191, 1195 (1977), in which the Board found that a joint apprenticeship training committee was an agent of the union and the employer who jointly created it through their collective-bargaining agreement. Accordingly, it concluded that JATC acted as the Union's agent, and within the scope of its authority as defined by the parties' collective-bargaining agreement, in administering the joint apprenticeship program.
The Board noted that absent a valid union-security clause as in this case, a union violates Section 8(b)(1)(A) and (2) by taking an action that adversely affects an employee's employment or by causing or attempting to cause an employer to take such action because the employee failed to pay his union dues. Applying a Wright Line analysis, the Board determined that the General Counsel demonstrated that Page's dues delinquency and antiunion views were motivating factors in the Committee's actions and that the Respondents failed to rebut the inference of unlawful motive. It determined that the Respondents' stated reason for the discipline is pretextual and that the Respondents' more severe treatment and discipline of Page as compared with another apprentice who lied, was unlawfully motivated.
(Chairman Battista and Members Schaumber and Kirsanow participated.)
Charge filed by Danny Page, an Individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Nashville, March 13-14, 2003. Adm. Law Judge Keltner W. Locke issued his decision April 15, 2003.
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Firstline Transportation Security, Inc. (17-RC-12354; 347 NLRB No. 40) Kansas City, MO June 28, 2006.
Chairman Battista and Members Liebman, Schaumber, and Walsh held that Firstline Transportation Security, 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. The majority found that employees of Firstline are covered by the National Labor Relations Act (NLRA) and can organize for the purpose of bargaining collectively with their employer. Member 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.
(Full Board participated.)
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Longs Drug Stores California, Inc. (32-CB-21550, 32-RC-5259; 347 NLRB No. 45) Lathrop, CA June 28, 2006.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by maintaining overbroad confidentiality provisions in its employee handbooks. Chairman Battista and Member Schaumber, with Member Liebman dissenting, reversed the judge's finding that the Respondent engaged in objectionable conduct by maintaining the confidentiality provisions, and by campaigning near the voting area during the election held in Case 32-RC-5259 on June 10, 2004. They certified that a majority of the valid ballots have not been cast for Teamsters Local 439. The tally of ballots showed that 107 for and 175 against the Union.
Contrary to the majority, Member Liebman would set aside the election based on the two alleged instances of Employer objectionable conduct. She explained that given Board precedent, the majority erred in finding the electioneering unobjectionable and in concluding that it is "virtually impossible" that the confidentiality rules could have affected the election results. Member Liebman concluded that whether or not the two instances of objectionable conduct present independent grounds for setting aside the election, certainly together they interfered with employees' free choice to a degree that the election result cannot stand.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Teamsters Local 439; complaint alleged violation of Section 8(a)(1). Hearing at Oakland on Jan. 10, 2005. Adm. Law Judge Burton Litvack issued his decision April 13, 2005.
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Machinists District Lodge 160, Local Lodge 289 (19-CD-490; 347 NLRB No. 51) Everett, WA June 30, 2006.
Relying on employer preference, past practice, and relative skills, the Board determined that employees of SSA Marine, represented by Machinists District Lodge 160, Local Lodge 289, are entitled to perform maintenance and repair work on SSA Marine's Everett-based stevedoring equipment.
(Chairman Battista and Members Liebman and Kirsanow participated.)
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The Neighborhood House Assn. (21-CA-35986; 347 NLRB No. 52) San Diego, CA June 30, 2006.
Chairman Battista and Member Schaumber reversed the administrative law judge's findings and dismissed the complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by withholding a regularly scheduled cost-of-living increase (COLA) from its employees and by proposing a 2.2-percent COLA increase and then conditioning implementation of that proposed COLA on Service Employees Local 2028's waiving its right to bargain further over the COLA amount. Member Walsh dissented.
Contrary to the judge and their dissenting colleague, the majority determined that the principles set forth in Stone Container Corp., 313 NLRB 336 (1993) and TXU Electric Co., 343 NLRB No. 132 (2004), dispose of both issues. They wrote:
Because the COLA constituted a discrete event that was scheduled to recur during negotiations for an initial contract, the Respondent was free to implement its proposal so long as the Respondent provided the Union with reasonable advance notice and an opportunity to bargain. The Respondent met this obligation. Accordingly, we find that the Respondent did not violate Section 8(a)(5) and (1), and we dismiss the complaint.
The majority agreed with the Respondent's contention that its actions were lawful under the principles set forth in Stone Container and Allied Kentucky, Inc., 324 NLRB 1350 (1994). In Stone Container, the employer had an established practice of conducting an annual wage and benefit survey and implementing an increase, if appropriate, each April; in Allied Kentucky, the employer told the union during bargaining that, based on a wage survey it had conducted, it would not increase employees' wages in January as it had done annually for the previous several years.
Dissenting, Member Walsh found that his colleagues' reliance on TXU, Stone Container, and Allied Kentucky is unavailing and would adopt the judge's unfair labor practice findings.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Service Employees Local 2028; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Diego on April 28, 2004. Adm. Law Judge James L. Rose issued his decision June 15, 2004.
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Pennant Foods Co., a wholly owned subsidiary of CS Bakery Holdings, Inc., a wholly owned subsidiary of Chef Solution Holdings, LLC (34-CA-11195, et al.; 347 NLRB No. 41) North Haven, CT June 27, 2006.
The Board adopted the recommendations of the administrative law judge and held that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing written warnings to Jack Toporovsky on May 9 and 12, 2005, by removing the laptop computer from his office and telephones from the maintenance department on about May 10, 2005, and by failing and refusing to reinstate Toporovsky and Gregory Borukhovich to their former positions of employment. No exceptions having been filed, it approved the judge's finding that the Respondent violated Section 8(a)(1) by threatening unfair labor practice strikers with permanent replacement if they refused to abandon the strike.
(Members Liebman, Kirsanow, and Walsh participated.)
Charges filed by Auto Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford, Nov. 1-3, 2005. Adm. Law Judge Joel P. Biblowitz issued his decision Jan. 19, 2006.
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SNE Enterprises, Inc. (9-CA-40915, et al.; 347 NLRB No. 43) Huntington, WV June 28, 2006.
The administrative law judge found, and the Board agreed, that the Respondent committed numerous violations of the Act. Among others, the Board adopted the judge's findings that the Respondent violated Section 8(a)(1): (1) by posting two notices (one in March and one in April 2004) that blamed the Steelworkers for the Respondent's failure to grant a wage increase in March 2004; (2) by prohibiting Dana Adkins from speaking with coworkers about a disciplinary incident; (3) by discharging Dana Adkins for violating that prohibition; and (4) by discharging statutory supervisor Ruth Adkins because she testified against the Respondent's interests.
While Chairman Battista concurred with the finding that the Respondent violated Section 8(a)(1) by posting two notices in March and April 2004, he does not agree that the notices blamed the Union. He found that the Respondent's notices, which communicated to employees that it was legally prohibited from granting a wage increase because of a pending election petition, inaccurately characterized the law.
The Board adopted the judge's finding that the Respondent also violated Section 8(a)(3) and (1) by withholding the general wage increase in March 2004 and by discharging employee Benny Moore because of his union activity. The judge further found that the Respondent violated Section 8(a)(3) and (1) by withholding general wage increases in Sept. 2004 and twice a year thereafter in March and Sept. The Board however found only that the Respondent departed from its policy of performing wage reviews in Sept. 2004 and March 2005 in violation of Section 8(a)(3) and (1).
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by the Steelworkers; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Huntington, May 4-6, 2005. Adm. Law Judge Eric M. Fine issued his decision Oct. 31, 2005.
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Sacred Heart Medical Center (19-CA-29150; 347 NLRB No. 48) Spokane, WA June 30, 2006.
Chairman Battista and Member Schaumber reversed the administrative law judge's findings and dismissed the complaint allegations that the Respondent violated Section 8(a)(1) of the Act by promulgating, maintaining, and enforcing a policy that prohibits its employees from wearing an "RNs Demand Safe Staffing" union button in those parts of the Respondent's medical facility where employees might encounter patients or their families. Member Liebman dissented.
The majority agreed with the judge that the Respondent's restriction on wearing the "RNs Demand Safe Staffing" button is presumptively invalid because it extended beyond immediate patient care areas to areas where employees might encounter patients or their families. Contrary to the judge, however, they found that the Respondent has rebutted the presumption of invalidity by showing "special circumstances" that justify the restriction:
1. The Respondent established that the message presented by the button is one that would inherently disturb patients.
2. The nurses' direct supervisors, who work on the hospital floor and are in a position to gauge patients' reaction to the button, expressed concern over the impact the button may have on the patients.
The majority said the mere fact that an employer has not previously forbidden union insignia does not foreclose that employer from ever imposing restrictions on buttons, particularly where, as here, that insignia is potentially disruptive. They found that the Respondent took appropriate steps to protect the atmosphere of patient care in the facility, not by banning all buttons, but by narrowly restricting the use of this single button, and only in locations where they might be seen by patients or their families
In dissent, Member Liebman wrote that the majority's decision is flawed in two critical respects:
First, the Respondent has not even come close to showing that its "special circumstances" defense is supported by anything other than mere speculation that the button's message would likely disturb patients and their families. Second, the undisputed fact that the Respondent imposed no restrictions whatsoever on the wearing of a second button with a much more controversial message completely undermines its asserted reasons for broadly prohibiting the wearing of the button at issue. Accordingly, on this record, there should be no doubt that the Respondent violated Section 8(a)(1 of the Act.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Washington State Nurses Assn.; complaint alleged violation of Section 8(a)(1). Hearing at Spokane on Oct. 7, 2004. Adm. Law Judge Mary Miller Cracraft issued her decision March 24, 2005.
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Teamsters Local 705 (K-Mart) (33-CB-3889, 33-RD-801; 347 NLRB No. 42) Bourbonnais, IL June 27, 2006.
The Board affirmed the findings of the administrative law judge and held that the Respondent Union violated Section 8(b)(1)(A) of the Act by threatening employees with internal union fines and discharge from their employment because of their support for the decertification of the Union. It adopted the judge's recommendation to overrule the Petitioner's (Greta Paschall) Objections 1, 2, and 3. As the Union received a majority of the valid votes cast, the Board certified the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit. The tally of ballots for the election held on Aug. 22, 2002, showed 211 for and 166 against the Union.
The Petitioner's Objection 1 alleged that the election should be set aside because the Region delayed providing the Excelsior list to the Petitioner, who received it after the Union. The judge concluded that the Petitioner constructively received the list approximately 17 hours after the Union, hardly a significant delay, and that no prejudice resulted to the Petitioner from the slight delay in transmission of the list. Objections 2 and 3 alleged that the Union engaged in various acts of misconduct, including but not limited to the actions alleged to be unfair labor practices. The judge determined that the Petitioner failed to meet its evidentiary burden of showing that union conduct affected the outcome of the election and warranted setting it aside.
(Members Liebman, Kirsanow, and Walsh participated.)
Charge filed by Stephen P. Dayhoff, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Kankakee, April 22-23, 2002. Adm. Law Judge Ira Sandron issued his decision Aug. 20, 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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