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NLRB Law Memo 10/18/2006
by Ross Runkel at LawMemo

NLRB Law Memo 10/18/2006
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Staff summarized 20 decisions.

ADB Utility Contractors, Inc. (14-CA-27386, et al.; 348 NLRB No. 53) St. Louis, MO Sept. 30, 2006.

The Board remanded this case to the administrative law judge for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. It allowed the parties to file briefs on the issue, and, if warranted, reopening of the record to obtain evidence relevant to deciding the case under the Oakwood Healthcare, Croft Metals, and Golden Crest framework. The Board ordered the judge to prepare a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended order, as appropriate on remand.

On Sept. 29, 2006, the Board issued its decisions in Oakwood Healthcare, Croft Metals, and Golden Crest, in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). These cases specifically address the meaning of "assign," "responsibly to direct," and "independent judgment," as those terms are used in Section 2(11) of the Act.

This case involves allegations that the Respondent discharged 13 individuals because of their activities for Electrical Workers IBEW Local 2. In defense, the Respondent denied that it violated the Act and contended that 8 of the 13 discharged employees were supervisors within the meaning of Kentucky River.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

Charges filed by Electrical Workers IBEW Local 2; complaint alleged violation of Section 8(a)(1) and (3). Hearing at St. Louis, on 16 days between Aug. 4, 2003 and Feb. 5, 2004. Adm. Law Judge Benjamin Schlesinger issued his decision May 10, 2005.

***

ATC, LLC d/b/a ATC of Nevada (28-CA-20076, 20197; 348 NLRB No. 43) Las Vegas, NV Sept. 29, 2006.

Affirming the administrative law judge's conclusions, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide Amalgamated Transit Local 1637 with information it requested concerning nonbargaining unit persons performing bargaining work, employees who no longer worked on their bids, and forced overtime work; Section 8(a)(2) and (1) by dealing with a labor organization other than Local 1637 in processing employee grievances; and Section 8(a)(1) when it directed four employee-union officers, under a threat of suspension, to complete a written questionnaire seeking information about a potential work stoppage.

No exceptions were filed to the judge's finding that the Respondent did not violate Section 8(a)(5) by implementing a memorandum of understanding that was agreed to by the Union and the Respondent, but was subsequently rejected by a vote of the Union's members. The General Counsel alleged in the complaint that the Respondent violated Section 8(a)(5) by processing a grievance filed by a union that was not the exclusive collective-bargaining

representative of the unit employees, but never pursued the allegation at the hearing or in subsequent submissions. The judge did not address the allegation and no exceptions were filed to the judge's failure to address the complaint allegation.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Amalgamated Transit Local 1637; complaint alleged violation of Section 8(a)(1), (2), and (5). Hearing at Las Vegas, Nov. 7-9, 2005. Adm. Law Judge William G. Kocol issued his decision Feb. 27, 2006.

***

Alyeska Pipeline Service Co. (19-RC-14600; 348 NLRB No. 44) Anchorage, AK Sept. 29, 2006.

After consideration of the Employer's request for review, Chairman Battista and Member Kirsanow reversed the Regional Director's Supplemental Decision and Direction of Election and remanded the proceeding to the Regional Director for further appropriate action. Member Walsh dissented.

The Petitioner (PACE Local 8-0369) sought to represent a unit of all operations and maintenance technicians at the Employer's Valdez Marine Terminal (VMT) facility, relying on the Board's longstanding presumption that a single-facility unit is appropriate for collective bargaining. The Employer contended that an alternative presumption should apply, namely, the "public utility" presumption that a systemwide unit is optimal. In its request for review, the Employer asserted that the Regional Director should have applied the "public utility presumption" and found only a systemwide unit of technicians to be appropriate.

The Trans Alaska Pipeline System (TAPS) is owned by five companies that formed the Alyeska Pipeline Service Co. for the purpose of operating and maintaining the pipeline system. The pipeline and VMT are a functionally integrated system designed to move crude oil from one point to another. The Regional Director noted that the Board has not decided whether to extend the public utility presumption to the crude oil industry. In determining whether the presumption should be applied, he found that the public utility presumption has been applied only to traditional public utilities such as electricity, natural gas, telephone, and cable television services, where the employers provide an essential service directly to the public and are the only providers of that service.

The Regional Director found that TAPS is merely a common carrier pipeline, moving oil from one point to another. He found that TAPS is not a "public utility" under Board law, and thus the systemwide unit presumption is not applicable. The Regional Director further found that the petitioned-for technicians at the VMT constitute a presumptively appropriate single-facility unit, and that the Employer failed to rebut the presumption. He therefore directed an election in a unit limited to VMT technicians. The Regional Director noted, however, that if TAPS were found to be a public utility under Board law, he would conclude differently and find that a systemwide unit of technicians would be the only appropriate unit.

Chairman Battista and Member Kirsanow wrote that the Board has not addressed the application of the systemwide "public utility" presumption to crude oil pipelines, but it has applied the systemwide presumption to natural gas pipelines that provide a vital service to public utilities. The majority further wrote: "The Board did not specifically find the natural gas pipelines to be public utilities per se, but nonetheless found that the public utility systemwide presumption should apply because the pipelines are relied on as the source of supply for public utilities." Michigan Wisconsin Pipe Line Co., 194 NLRB 569, 470 (1971), et al. Accordingly, Chairman Battista and Member Kirsanow found that the systemwide presumption should apply here as it does in the natural gas pipeline cases, whether or not the Employer is deemed to be a "public utility." The majority wrote:

The Board's presumption in favor of a systemwide unit is based, at least in part, on the judgment that an increase in the number of units leads to an increase in the number of potential labor disputes and work stoppages. And, given the essential nature of the transport of crude oil by TAPS, and the potentially serious consequences of a work stoppage, either on the pipeline or at the VMT, increasing the likelihood of a disruption by finding a less than systemwide unit to be appropriate is unacceptable.

Dissenting Member Walsh concluded that the petitioned-for single-facility unit of technicians working at the Employer's VMT facility is an appropriate unit for collective bargaining. He wrote that the Petitioner has satisfied all three prongs of the rebuttal test and has shown by compelling evidence that a less than systemwide unit is appropriate in this case. Member Walsh would, therefore, direct an election in the petitioned-for unit of VMT technicians.

(Chairman Battista and Members Kirsanow and Walsh participated.)

***

Amcast Automotive of Indiana, Inc. (25-CA-29199; 348 NLRB No. 47) Gas City, IN Sept. 29, 2006.

The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by telling John Rowe that activity for the Auto Workers played a role in his discharge. Chairman Battista and Member Schaumber, with Member Walsh dissenting, reversed the judge's findings that the Respondent violated Section 8(a)(3) and (1) by discharging Rowe and Section 8(a)(1) by interrogating Rowe. They found that the General Counsel failed to establish that the Respondent unlawfully discharged Rowe and that Manufacturing Manager Wilbur Kline's single question to Rowe about whether there was any truth to "the rumors," referring to a possible union organizing drive, reasonably tended to restrain, coerce, or interfere with Rowe's exercise of his Section 7 rights.

Rowe searched the Internet for information about a company called KPS on three separate occasions during working hours after hearing a rumor that KPS was purchasing the Respondent's Gas City facility. At times, employee Gene Sage, Jr. joined Rowe at his computer to view KPS-related websites. On one occasion, Rowe printed documents related to KPS on a printer located in his immediate Supervisor John Stambaugh's office, gave the documents to Stambaugh to read, and placed them on a table in the tool room for other employees to read. Upon being told that Rowe was accessing the Internet to get information on KPS, Human Resources Manager Larry Henn requested a report of every computer at the facility that had accessed the KPSfund.com website during the period from May 7-14. The report showed that Rowe had spent approximately 29 minutes accessing nonwork-related worksites during working hours between May 11 and 14, 2004. The Respondent discharged Rowe because his Internet usage violated employee work rules against loitering on the job, misuse of company equipment, and wasting time.

The judge found that two of Rowe's activities were protected: (1) his activity of surfing the Internet for information on KPS; and (2) his union activity in 1999 and 2002. Chairman Battista and Member Schaumber decided that neither is sufficient to support the General Counsel's case. First, although Rowe's Internet activity may have been concerted, it was not protected because there is insufficient evidence of a link between Rowe's activity and the employees' working conditions. Second, although Rowe engaged in union activity at times during his employment with the Respondent, the General Counsel failed to establish that union activity was a motivating factor in Rowe's discharge.

Member Walsh would find Kline's questioning of Rowe coercive, considering the totality of circumstances as required by Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. NLRB v. Hotel Employees Local 11, 760 F.2d 1006 (9th Cir. 1985). He agreed with the judge that the Respondent unlawfully discharged Rowe because of his actual or suspected union and other protected activity when he searched the Internet for information about KPS. Member Walsh said the Respondent's claim that Rowe engaged in misconduct warranting his discharge "is seriously undermined by the fact that Stambaugh effectively condoned Rowe's conduct." He noted that Stambaugh was aware of Rowe's Internet activity, yet he never told Rowe that he had violated any company rule, that he had engaged in any misconduct, or that he should stop using his computer to learn about KPS.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by John Rowe, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Marion, Nov. 15-16, 2004 and at Fort Wayne, Jan. 25-26, 2005. Adm. Law Judge Ira Sandron issued his decision June 16, 2005.

***

Barstow Community Hospital-Operated by Community Health Systems, Inc. (31-CA-26057; 348 NLRB No. 58) Barstow, CA Sept. 30, 2006.

The Board remanded this case to the administrative law judge for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. It allowed the parties to file briefs on the issue, and, if warranted, reopening the record to obtain evidence relevant to deciding the case under the Oakwood Healthcare, Croft Metals, and Golden Crest framework. The Board ordered the judge to prepare a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended order, as appropriate on remand.

On Sept. 29, 2006, the Board issued its decisions in Oakwood Healthcare, Croft Metals, and Golden Crest, in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2002). The three cases specifically address the meaning of "assign," "responsibly to direct," and "independent judgment," as those terms are used in Section 2(11) of the Act.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

Charge filed by the Nurses Association of California; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles, June 30 and July 1, 2003. Adm. Law Judge Lana H. Parke issued her decision Aug. 29, 2003.

***

Bay Harbour Electric, Inc. (6-CA-32166, et al.; 348 NLRB No. 59) Erie, PA Sept. 30, 2006.

The Board remanded this case to the administrative law judge for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. It allowed the parties to file briefs on the issue, and, if warranted, reopening the record to obtain evidence relevant to deciding the case under the Oakwood Healthcare, Croft Metals, and Golden Crest framework. The Board ordered the judge to prepare a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended order, as appropriate on remand.

On Sept. 29, 2006, the Board issued its decisions in Oakwood Healthcare, Croft Metals, and Golden Crest, in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2002). The three cases specifically address the meaning of "assign," "responsibly to direct," and "independent judgment," as those terms are used in Section 2(11) of the Act.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

Charges filed by Chris Watkins, an Individual and Electrical Workers IBEW Local 306; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Cleveland, May 7-10 and May 29-30, 2002. Adm. Law Judge David L. Evans issued his decision Nov. 25, 2002.

***

Bellaire General Hospital, LP, d/b/a Bellaire Medical Center (16-CA-22556, et al.; 348 NLRB No. 57) Houston, TX Sept. 30, 2006.

The Board remanded this case to the administrative law judge for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. It allowed the parties to file briefs on the issue, and, if warranted, reopening the record to obtain evidence relevant to deciding the case under the Oakwood Healthcare, Croft Metals, and Golden Crest, framework. The Board ordered the judge to prepare a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended order, as appropriate on remand.

On Sept. 29, 2006, the Board issued its decisions in Oakwood Healthcare, Croft Metals, and Golden Crest, in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2002). The three cases specifically address the meaning of "assign," "responsibly to direct," and "independent judgment," as those terms are used in Section 2(11) of the Act.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

Charges filed by Dannie Denise Coleman, Linda A. Coleman, and Iolene V. Williams, Individuals; complaint alleged violation of Section 8(a)(1). Hearing at Houston, June 30, July 1-3, and 8-9, 2003. Adm. Law Judge Margaret G. Brakebusch issued her decision Sept. 25, 2003.

***

Electrical Workers IBEW Local 2321 (Verizon New England) (1-CB-10559; 348 NLRB No. 50) Boston, MA Sept. 29, 2006.

The Board, concluding that the complaint does not sufficiently set forth grounds for finding a violation of Section 8(b)(1)(A) of the Act, denied the General Counsel's motion for summary judgment notwithstanding that the Respondent has admitted all of the factual allegations and legal conclusions in the complaint. It did so without prejudice to the Region amending the complaint and remanded the case to the Regional Director for further action.

The complaint alleges, among others, that the Respondent "charged" Gregory Burns in retaliation for his failure to participate in a concerted refusal to perform voluntary overtime work requested by Verizon New England.

The Board wrote: "Assuming that the charges referred to in the complaint were internal union fines, we note that such fines, within certain limitations, are permissible. See Scofield v. NLRB, 394 U.S. 423, 430 (1969) ('Section 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule.')." The Board explained that while Unions are not permitted to discipline members who refuse to engage in unprotected activity which would subject them to lawful discipline by their employer, a concerted refusal to work voluntary overtime is protected activity and a union does not violate Section 8(b)(1)(A) by imposing a reasonable fine on one of its members for refusing to participate in such protected concerted activity.

(Members Liebman, Schaumber, and Kirsanow participated.)

Charges filed by Gregory S. Burns, an individual; complaint alleged violation of Section 8(b)(1)(A). General Counsel filed motion for summary judgment June 22, 2006.

***

GFC Crane Consultants, Inc. (12-CA-21302, et al.; 348 NLRB No. 51) Ft. Lauderdale, FL Sept. 30, 2006.

The Board remanded this case to the administrative law judge for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. It allowed the parties to file briefs on the issue, and, if warranted, reopening of the record to obtain evidence relevant to deciding the case under the Oakwood Healthcare, Croft Metals, and Golden Crest framework.

On Sept. 29, 2006, the Board issued its decisions in Oakwood Healthcare, Croft Metals, Inc., and Golden Crest, in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). The three cases specifically address the meaning of "assign," "responsibly to direct," and "independent judgment," as those terms are used in Section 2(11) of the Act.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

Charges filed by District 1-Pacific Coast District, Marine Engineers Beneficial Association; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Tampa, Dec. 10-14, 2001. Adm. Law Judge Pargen Robertson issued his decision April 4, 2002.

***

HQM of Bayside, LLC (5-CA-30964; 348 NLRB No. 42) Lexington Park, MD Sept. 29, 2006.

In affirming the administrative law judge's finding, the Board held that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from Food & Commercial Workers Local 400 as the employees' collective-bargaining representative because the evidence on which the Respondent relied did not demonstrate the Union's actual loss of majority status. In addition, it agreed with the judge's recommendation that an affirmative bargaining order is warranted to remedy the Respondent's unlawful withdrawal of recognition.

(Members Liebman, Schaumber, and Walsh participated.)

Charge filed by Food & Commercial Workers Local 400; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Washington, D.C. on Oct. 14, 2003. Adm. Law Judge Karl H. Buschmann issued his decision Feb. 25, 2004.

***

Hacienda Hotel, Inc. (31-CA-26945; 348 NLRB No. 49) El Segundo, CA Sept. 29, 2006.

The Board affirmed the administrative law judge's finding and held that the Respondent violated Section 8(a)(5) and (1) of the Act by bypassing UNITE HERE Local 11 and engaging in direct dealing with its bargaining unit employees by involving itself in an unauthorized ratification vote on its own contract proposal; violated Section 8(a)(3) and (1) by issuing warning notices to its employees because they engaged in protected concerted activities that it believed were authorized by the Union; and violated Section 8(a)(1) by threatening its employees with reprisals or negative consequences because they engaged in activities in support of the Union, and with disciplinary hearings for engaging in protected concerted activities that it believed were authorized by the Union and thereby impliedly threatening its employees with reprisals if they engaged in activities in support of the Union.

(Chairman Battista and Members Liebman and Kirsanow participated.)

Charge filed by UNITE HERE, Local 11; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Los Angeles, Nov. 14-18, 2005. Adm. Law Judge Burton Litvack issued his decision May 31, 2006.

***

Loyalhanna Health Care Associates t/d/b/a Loyalhanna Care Center, a Pennsylvania Limited Partnership (6-CA-28609, et al.; 348 NLRB No. 54) Trafford, PA Sept. 30, 2006.

The Board to remanded this case to the administrative law judge for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. It allowed the parties to file briefs on the issue, and, if warranted, reopening the record to obtain relevant evidence to deciding the case under the Oakwood Healthcare, Croft Metals, and Golden Crest framework. The Board ordered the judge to prepare a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended order, as appropriate on remand.

On Sept. 29, 2006, the Board issued its decisions in Oakwood Healthcare, Croft Metals, and Golden Crest, in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2002). The three cases specifically address the meaning of "assign," "responsibly to direct," and "independent judgment," as those terms are used in Section 2(11) of the Act.

In an earlier decision reported at 332 NLRB 933 (2000), the Board overruled the judge's finding that registered nurses Cynthia Clark, Erica Lewis, and Melanie Fritz are statutory supervisors. It concluded that the nurses do not exercise independent judgment with regard to any of the indicia of supervisory authority set forth in Section 2(11) of the Act. The Respondent subsequently appealed the Board's decision in the United States Court of Appeals for the Third Circuit and the Board filed a cross-application for enforcement. In January 2001, the Board filed in the Third Circuit an unopposed motion to hold the case in abeyance, pending a decision by the Supreme Court in Kentucky River.

(Chairman Battista and Members Schaumber and Walsh participated.)

Adm. Law Judge Irwin H. Socoloff issued his decision April 7, 1998.

***

RCC Fabricators, Inc. (4-CA-31757, 4-RC-20569, 20572; 348 NLRB No. 56) Southampton, NJ Sept. 30, 2006.

The Board remanded the case to the administrative law judge for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. It allowed the parties to file briefs on the issue, and, if warranted, reopening of the record to obtain relevant evidence to deciding the case under the Oakwood Healthcare, Croft Metals, and Golden Crest framework. The Board ordered the judge to prepare a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended order, as appropriate on remand.

On Sept. 29, 2006, the Board issued its decisions in Oakwood Healthcare, Croft Metals, and Golden Crest, in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). The three cases specifically address the meaning of "assign," "responsibly to direct," and "independent judgment," as those terms are used in Section 2(11) of the Act.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

Charge filed by Carpenters Metropolitan Regional Council of Eastern Pennsylvania, State of Delaware and Eastern Shore of Maryland; complaint alleged violation of Section 8(a)(1). Hearing at Philadelphia, April 8 and 10 and May 15, 2003. Adm. Law Judge Paul Buxbaum issued his decision Oct. 23, 2003.

***

Raley's and United Wholesalers & Retailers Union (20-CA-24973, et al., 20-CB-9623, et al.; 348 NLRB No. 25) Sacramento, CA Sept. 29, 2006.

The Board affirmed the administrative law judge's findings that (1) specific actions by the Respondent Employer (Raley's) at some of its individual stores in Sept. 1993 did not unlawfully assist the Respondent Union (United Wholesalers & Retailers Union (UWRU)),an independent union then named United Drug Center Employees Association (UDCEA); (2) Raley's did not unlawfully assist UDCEA in September 1993 in obtaining a unit majority of signatures from Raley's drug clerks authorizing UDCEA to represent them, and did not unlawfully recognize UDCEA; and (3) Raley's and UDCEA lawfully entered into a collective-bargaining relationship and enforced UDCEA's dues-paying requirements. It also affirmed the judge's findings that the Respondents are not entitled to attorney fees from the General Counsel.

This case involves the competition between Food and Commercial Workers Local 58 and UDCEA to replace the Independent Drug Clerks Association (IDCA) as the representative of the drug clerks who worked in the pharmacy departments of Raley's California stores, after IDCA disclaimed interest in representing them. The judge found that when Raley's recognized UDCEA, 355 out of 673 drug clerks had objectively manifested their wish to be represented by UDCEA. Raley's did not except to the judge's findings that in Sept. 1993 Raley's violated Section 8(a)(1) in a few isolated instances at its stores in Fair Oaks and Placerville, and violated Section 8(a)(3) by giving IDCA's president Gilbert Eidam an unlawful disciplinary warning. The Board adopted, among others, the judge's finding that Raley's actions in violation of Section 8(a)(1) at its Fair Oaks and Placerville stores, from which UDCEA did not obtain any employee signatures, did not violate Section 8(a)(2) or taint UDCEA's majority showing.

(Chairman Battista and Members Liebman and Kirsanow participated.)

Charges filed by Independent Drug Clerks Association, Food and Commercial Workers Local 588, and Individuals; complaint alleged violation of Section 8(a)(1), (2), (3), and (5), and Section 8(b)(1)(A) and (2). Hearing at Sacramento for 63 days between Aug. 19, 1996 and Aug. 25, 1997. Adm. Law Judge Timothy D. Nelson issued his decision Nov. 29, 2000.

***

Talmadge Park, Inc. (34-CA-11295, 34-RC-2136; 348 NLRB No. 52) East Haven, CT Sept. 30, 2006.

The Board remanded this case to the administrative law judge for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. It allowed the parties to file briefs on the issue, and, if warranted, reopening of the record to obtain relevant evidence to deciding the case under the Oakwood Healthcare, Croft Metals, and Golden Crest framework. The Board ordered the judge to prepare a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended order, as appropriate on remand.

On Sept. 29, 2006, the Board issued its decisions in Oakwood Healthcare, Croft Metals, and Golden Crest, in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2002). The three cases specifically address the meaning of "assign," "responsibly to direct," and "independent judgment," as those terms are used in Section 2(11) of the Act.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

Charge filed by New England Health Care Employees District 1199, SEIU; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford, April 3-5, 2006. Adm. Law Judge Richard A. Scully issued his decision July 17, 2006.

***

Terry Machine Co., A Div. of S.P.S. Technologies, Inc. (7-RC-21581; 348 NLRB No. 55) Waterford, MI Sept. 30, 2006.

The Board remanded this case to the Regional Director for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37, Croft Metals, Inc., 348 NLRB No. 38, and Golden Crest Healthcare Center, 348 NLRB No. 39. It allowed the parties to file briefs on the issue, and, if warranted, reopening of the record to obtain evidence relevant to deciding the case under the Oakwood Healthcare, Croft Metals, and Golden Crest framework.

On Sept. 29, 2006, the Board issued its decisions in Oakwood Healthcare, Croft Metals, Inc., and Golden Crest, in light of the Supreme Court's decision in NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). These cases specifically address the meaning of "assign," "responsibly to direct," and "independent judgment," as those terms are used in Section 2(11) of the Act.

In a refusal-to-bargain case, the Respondent contested the Board's certification of Auto Workers Local 15 as the exclusive representative of its employees. On May 24, 2005, the Board remanded and reopened the record in this underlying representation case.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

***

Universal Truss, Inc., a Div. of Universal Forest Products, Inc. (31-CA-25477, et al.; 348 NLRB No. 41) Fontana, CA Sept. 29, 2006.

The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging economic strikers Jose Ramon Flores and Rodolfo Navidad for alleged strike-related misconduct, but they reversed his finding that the discharges of eight others—Jose Becerril, Fidel Burciaga, Juan Lopez, Enrique Luqueno, Eduardo Martinez Meja, Miguel Angel Padilla, Alfredo Raya, and Juan Carlos Vazquez—were unlawful. Member Walsh, dissenting in part, agreed with the judge that the Respondent unlawfully discharged Luqueno, Padilla, Raya, Mejia, and Burciaga.

Four days into the strike, several strikers and an associate followed a car carrying three nonstriking employees to an offsite parking lot, where the strikers assaulted the employees, and beat one of them, Luis Samayoa, so severely that he was knocked unconscious and required overnight hospitalization. The strikers also vandalized the nonstrikers' vehicle, flattening two tires, denting a door, and breaking the tail lights. The next day, other strikers endorsed the assault against Samayoa, asking employees as they arrived in vans to work, "[D]o you want what happened to [Samayoa] to happen to you?" One striker made this threat while aiming and shooting an imaginary gun at employees. During the remainder of the strike, strikers engaged in other misconduct, including threatening workers and their families with various acts of violence, and to follow workers home and rape female employees and the wives of male workers.

Chairman Battista and Member Schaumber observed that it is appropriate to consider all of the circumstances in which the alleged strike misconduct occurred, including other instances of vandalism, threats and violence occurring during the course of the strike because threats to inflict similar harm in the future are likely to have a greater coercive impact. Here, they noted that there were a large number of relevant circumstances, including: the ambush and violent assault on Samayoa, and the strikers' endorsement of that beating and threats to repeat it; "the threats of rape and beatings"; the following of employees home and harassment of employees while driving; the rock throwing; the vandalism and other attempts at vandalism; and the repeated incidents of sexual harassment. "This pattern of coercive misconduct directed at nonstrikers can, and does, color the subsequent similar threats directed at other employees," Chairman Battista and Member Schaumber wrote.

Member Walsh noted that the Respondent's belief that Burciaga engaged in serious strike misconduct was mistaken. Regarding Luqueno, Padilla, Raya, and Mejia, he concluded that their alleged acts do not meet the test for serious strike misconduct established by Clear Pine Mouldings, 268 NLRB 1044, 1046 (1984), adding: "In finding to the contrary, the majority misapplies the Clear Pine Mouldings standard, ignores the balancing of interests the Board must undertake in strike-misconduct cases, and condones the principle of collective punishment."

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Cabinet Makers, Millmen and Industrial Carpenters Local 721; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Los Angeles for 17 days between Nov. 4, 2002 and Feb. 19, 2003. Adm. Law Judge James J. Kennedy issued his decision Aug. 28, 2003.

***

Wal-Mart Stores, Inc. (28-CA-16832, et al.; 348 NLRB No. 46) Fort Smith, AR Sept. 29, 2006.

The Board held that any attorney-client privilege with respect to the Respondent's production of certain documents and files has been waived and that the Respondent must now produce them to the extent they are relevant to the complaint allegations. It remanded the proceeding to the judge to reopen the record to receive relevant evidence, to make findings, and to take further appropriate action.

During the underlying unfair labor practice hearing, the General Counsel served the Respondent with a subpoena duces tecum requiring it to produce, among other things, documents and electronic files from the Respondent's "Remedy System" for the years 2000 through 2004. The Respondent moved to quash those portions of the subpoena on the basis that the documents and files in the Remedy System were protected from disclosure by the attorney-client privilege and as attorney work product. The administrative law judge agreed and granted the motion to quash.

While the case was pending at the Board, the Respondent filed a motion to supplement the record, advising that in January 2004, pursuant to a court order in an unrelated State court proceeding, the Respondent had produced the Remedy System documents subpoenaed by the General Counsel. Thereafter, the Board issued a notice to show cause why the asserted privilege should not be deemed waived.

In this Order, the Board wrote in reversing the judge's ruling quashing the subpoena: "Once waived, the attorney-client privilege is lost in all forums for proceedings running concurrent with or after the waiver occurs." See, e.g., Genentech, Inc. v. U.S. International Trade Commission, 122 F.3d 1409, 1416-1417 (Fed. Cir. 1997). It found that the Respondent's disclosure took place while the case was pending before the Board on exceptions and because litigation of this unfair labor practice case is an ongoing matter, the Respondent's waiver of the privilege in the State court proceeding precludes the Respondent from asserting it in this case.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

Weldon, Williams & Lick, Inc. (26-CA-21926; 348 NLRB No. 45) Fort Smith, AR Sept. 29, 2006.

The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Dale Morfey. It decided that the Respondent's stated reason for discharging Morley was pretextual, and that the facts of this case warrant an inference that the Respondent's true motive was an unlawful one that it wished to conceal. Richard Mellow Electrical Contractors Corp., 327 NLRB 1112, 1115 fn. 17 (1999).

Chairman Battista and Member Schaumber, with Member Walsh dissenting, reversed the judge's finding that the Respondent violated Section 8(a)(1) by Supervisor Todd Friday threatening that the Respondent would not let the Union, Graphic Communications Conference/IBT, in. The judge viewed Supervisor Todd Friday's statement that "They are not going to happen. No way" as a threat that efforts at unionization would be futile. Chairman Battista and Member Schaumber disagreed, finding that Friday's statement did not unlawfully threaten that union representation would be futile. Rather, they reasoned that Friday was offering the prediction that management would vigorously resist a union and would prevail. In reversing the judge, they found that Friday's comparatively ambiguous remarks were made in response to a question posed by Morfey during a casual conversation over coffee in the context of a long-term working relationship.

Member Walsh would adopt the judge's finding that Friday's statement to Morfey violated the Act. He found Friday's unqualified "no way" statement conveyed the unlawful message that Morfey's organizing efforts would be futile because the Respondent would not allow a union to represent its employees. See D & F Industries, 339 NLRB 618, fn. 2 (2003); International Door, 303 NLRB 582, 590, 599 (1991), enfd. 985 F.2d 560 (5th Cir. 1993). Member Walsh also believed that the coercive tendency of Friday's statement was not dispelled by virtue of Friday's status as a front-line supervisor, the fact that he may have been expressing his own opinion, or the fact that he committed no additional unfair labor practices.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Graphic Communications Conference/IBT; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Fort Smith, Aug. 1-2, 2005. Adm. Law Judge Mary Miller Cracraft issued her decision Oct. 5, 2005.

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Staff summarized 21 decisions.

Carpenters Ohio and Vicinity Regional Council (8-CD-497; 348 NLRB No. 14) Massillon, OH Sept. 26, 2006.

Relying on the factors of employer preference, employer past practice, area practice, and economy and efficiency of operations, the Board concluded that employees of Competitive Interiors, Inc., represented by Carpenters Ohio and Vicinity Regional Council, are entitled to perform the handling of all unfinished material from the point of an employer-designated stockpile to the point of installation, and the handling of all finished material from point of delivery to point of installation, at the Target jobsite in Massillon, Ohio.

(Chairman Battista and Members Liebman and Kirsanow participated.)

***

Coastal Cargo Co., Inc. (15-CA-17862; 348 NLRB No. 32) New Orleans, LA Sept. 29, 2006.

The Board adopted the administrative law judge's recommended order and held that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing changes in the wages, hours, and other terms and conditions of employment of its unit employees represented by Teamsters Local 270. The judge found that the parties had not reached a good-faith impasse in negotiations when the Respondent implemented its last contract proposal on Oct. 17, 2005, and that the changes resulting from the implementation violated the Act.

The Board, in adopting the judge's finding that the parties had not reached impasse, relied particularly on the fact that the parties did not have an adequate opportunity to bargain because, while they agreed to discuss the economic proposals at future meetings, the Respondent presented its final offer before they had an opportunity to do so. See Ead Motors Eastern Air Devices, 346 NLRB No. 93, slip op. at 4-5 (2006). It also relied on the fact that the Respondent demonstrated that further movement was possible by presenting the Union with multiple final offers after indicating that it had reached a point where it could not bargain further. See Duane Reade, Inc., 342 NLRB 1016, 1017 (2004).

(Members Schaumber, Kirsanow, and Walsh participated.)

Charge filed by Teamsters Local 270; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New Orleans on June 12, 2006. Adm. Law Judge Michael A. Marcionese issued his decision June 30, 2006.

***

Croft Metals, Inc. (15-RC-8393; 348 NLRB No. 38) McComb, MI Sept. 29, 2006.

Chairman Battista and Members Schaumber and Kirsanow applied the definitions for "assign" and "responsibly to direct" set forth in the Oakwood Healthcare decision to find that the lead persons at the Croft Metals manufacturing facility did not exercise supervisory authority under the Act.

After finding that the lead persons did not possess the authority to "assign" under the Act, the Board then found that the lead persons responsibly directed their line or crew members. The Board found that the lead persons were required to manage their assigned teams, to correct improper performance, to shift employees, and to decide the order in which work was to be performed in order to achieve production goals. The Board further found that the lead persons were held accountable for the performance of their crew or line members.

The Board then found that Croft failed to meet its burden to establish that the lead persons exercised independent judgment in directing their crew or line members. The Board found that the lead persons' exercise of judgment was either fundamentally controlled by pre-established guidelines, such as delivery schedules, or was simply routine. Accordingly, the Board found that the lead persons did not exercise supervisory authority under the Act.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

***

ELC Electric, Inc. (25-CA-28270-1, et al.; 348 NLRB No. 17) Indianapolis, IN Sept. 28, 2006.

The Board granted the General Counsel's motion for partial summary judgment as to the following paragraphs and Appendixes of the compliance specification: Paragraphs 1-5, 6(b), 7(b), 8(b), 9(b)-(e), 10-11, 15-16, 20-21, 34(a), 36-37, 41-42, 46-47, 50(a)-(b), 52-53, 57-58, 62-63, 67-68, 71(a)-(b), 73-74, 78-79, 88-89; Appendixes A, C, E, K, M, O, Q, S, U, W, Y, AA, and EE. It denied the General Counsel's motion as to Paragraphs 25-26, 30-31, 34(b), 83-84; and Appendixes G-J and CC-DD.

The Board remanded the proceeding to the Regional Director to arrange a hearing before an administrative law judge limited to evidence concerning the paragraphs of the compliance specification as to which summary judgment was not granted.

In an earlier decision reported at 344 NLRB No. 144 (2005), the Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by laying off three named employees and an undetermined number of unnamed employees because of their union activities. The Board ordered that the Respondent make the affected individuals whole for any lost earnings and other benefits resulting from their unlawful layoffs. A controversy having arisen over the amounts of backpay and benefits due under the Board's Order, the Regional Director issued a compliance specification and notice of hearing.

The Board found that the Respondent, in its amended answer, failed to provide support for its assertions that some employees were "not eligible to work all of the hours" set forth in the compliance specification or were "not available for 80 hours" during certain periods, and that the General Counsel's "calculations of gross backpay are inaccurate" for some employees. The Respondent also failed to provide alternative figures as to what hours the individuals were eligible or available to work, or what amounts are proper for gross backpay. The corresponding allegations in the compliance specification were deemed admitted to be true. The Board found however that summary judgment regarding the gross backpay and other amounts for Ronald Hamilton, Matthew Aldrich, and Benjamin Adair was not appropriate because the Respondent set forth specific alternative figures for the pay rates of these three individuals and, accordingly raised a factual issue regarding their pay rates.

(Members Liebman, Schaumber, and Kirsanow participated.)

General Counsel filed motion for partial summary judgment June 20, 2006.

***

Southern Monterey County Hospital d/b/a George L. Mee Memorial Hospital (32-CA-17687-1, 32-RC-4664; 348 NLRB No. 15) King City, CA Sept. 29, 2006.

The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by various acts, including: Supervisor Virginia Rojas' coercively interrogating employees, creating the impression of surveillance, and threatening job loss in mid to late August; Rojas' ban on talking about the Union during "work hours" made on numerous occasions; and Rojas telling employees that they were liars and backstabbers after the ballot count on Oct. 7, 1999. The Board also adopted the judge's finding that the Respondent violated Section 8(a)(1) by maintaining and enforcing overbroad no-solicitation/no-distribution and no-access rules for employees.

It severed Case 32-RC-4664 from Case 32-CA-17687-1 and remanded Case 32-RC-4554 to the Regional Director to open and count the ballots cast by Lynn Clausen, Maryanne Woodford, Beth Bartel, Grasiela Sanchez, and Maria Rodriguez, to issue a revised tally of ballots, and for further appropriate action.

The Board found it unnecessary to pass on certain of the judge's unfair labor practice findings, including some that were not alleged in the complaint, because the additional violations would be cumulative and would not affect the remedy. Member Schaumber also found it unnecessary to pass on these unfair labor practices found by his colleagues: Supervisor Margeret Johnson's alleged coercive interrogation and threat of job loss of employees Mullanix-Ackerman and Williams; Supervisor Denise Miller's alleged coercive interrogation of Mullanix-Ackerman; and Barroso's threatening employees with unspecified reprisals. He did not reach the question of whether Rojas violated Section 8(a)(1) by calling the employees "liars."

Chairman Battista and Member Schaumber, with Member Walsh dissenting in part, reversed the judge's findings that the Respondent violated Section 8(a)(1) by the statements about striker replacement made by Supervisor Johnson on Aug. 5, 2000; by Rojas' Oct. 1 statement that all unions do is take employees' money; by Respondent's CEO Walter Beck's alleged solicitation of grievances at an Oct. 1 employee meeting; by Rojas' Oct. 1 alleged threats of job loss, reduction of wages, and loss benefits; by Rojas' Oct. 6 statement about striker replacement and questioning employee Natividad Felix and Henrietta Perez about a union flier; by Rojas' stating that employees do not need a union; and by maintaining a no-solicitation/no-distribution rule applicable to nonemployees; and violated Section 8(a)(3) by refusing to allow Mullanix-Ackerman to rescind her resignation or to rehire her.

Contrary to his colleagues, Member Walsh would affirm the judge's finding that: (1) CEO Beck unlawfully solicited grievances and impliedly promised to remedy them; (2) Rojas unlawfully interrogated employees Natividad Felix and Henrietta Perez; (3) the Respondent unlawfully refused to allow surgical technician Mullanix-Ackerman to withdraw her resignation; and (4) the Respondent violated the Act by maintaining a policy prohibiting solicitation and distribution by nonemployees on its premises.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Health Care Workers SEIU Local 250; complaint alleged violation of Section 8(a)(1) and (3). Hearing at King City, June 20, July 18-21 and 26, 2000. Adm. Law Judge Mary Miller Cracraft issued her decision Jan. 11, 2001.

***

Beverly Enterprises-Minnesota, Inc., d/b/a Golden Crest Healthcare Center (18-RC-16415, 16416; 348 NLRB No. 39) Hibbing, MN Sept. 29, 2006.

Applying the definitions for "assign" and "responsibly direct" set forth in Oakwood Healthcare, Inc., 348 NLRB No. 37, Chairman Battista and Members Schaumber and Kirsanow found that Golden Crest's charge nurses at a nursing home did not exercise supervisory authority under the Act.

First, the Board found that the charge nurses at issue lacked the authority to "assign" other employees under the Act, emphasizing that Golden Crest failed to establish that the charge nurses possessed the authority to require other employees to stay past the end of their shifts, to come in from off-duty status, or to shift section assignments.

The Board further found that the charge nurses at issue lacked the authority to "responsibly direct" other employees under the Act, insofar as Golden Crest failed to establish that the charge nurses were actually held accountable for the job performance of other employees. The Board found that the "accountability" requirement set forth in Oakwood Healthcare was not satisfied by Golden Crest's evidence that it had a practice of rating charge nurses in their annual evaluations on their performance in directing other employees. The Board found that this evidence constituted merely "paper" accountability and was insufficient to establish that there was an actual prospect that the charge nurses' terms and conditions of employment could be affected, either positively or negatively, as a result of their performance in directing other employees. Accordingly, having found that the charge nurses at issue neither "assigned" nor "responsibly directed" other employees within the meaning of Section 2(11) of the Act, the Board found that the Golden Crest charge nurses were statutory employees, not supervisors.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

***

Hi-Tech Interiors, Inc. (17-CA-22916; 348 NLRB No. 18) Manhattan, KS Sept. 28, 2006.

The Board found, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to consider applicants for hire, or failing and refusing to hire applicants because of their support for the Carpenters District Council of Kansas City & Vicinity. Specifically, it agreed that by refusing to hire, and to consider hiring, William Rogers and Bruce Hildebrandt because it knew from their applications that they intended to organize employees on behalf of the Union, the Respondent violated the Act. The Board also agreed with the judge that Field Superintendent Martin Baumgard violated Section 8(a)(1) by coercively interrogating applicant Woody Hall.

In exceptions, the Respondent argued that it is inappropriate to order instatement and backpay for Rogers and Hildebrandt without making those remedies conditional on their first passing the mandatory drug screening and physical capacity tests that all new employees must pass before beginning work. The Board said that in the circumstances of this case, passing the test is a condition of instatement and, therefore, the Respondent should be permitted to administer these tests, and it will not be required to hire a discriminatee who failed either test.

With respect to backpay, the Board wrote:

[I]f either discriminatee fails a test, that does not necessarily mean he would have done so during the time of the Respondent's discrimination in 2004. However, a present-day test failure is sufficient to raise an inference that the discriminatee would have also failed the test in 2004 at the time of the discrimination. . . . Consequently, upon showing of a test failure, the burden should shift to the General Counsel to go forward with evidence that the discriminatee would have passed the test if administered at the time of the Respondent's unlawful conduct. The ultimate burden of persuasion remains with the wrongdoing Respondent. Thus, if the evidence on the record as a whole is in equipoise, then the Respondent will not prevail in its claim that backpay should be limited based on the test results.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

Charge filed by Carpenters District Council of Kansas City and Vicinity; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Manhattan on April 12, 2005. Adm. Law Judge Albert A. Metz issued his decision June 20, 2005.

***

Human Development Assn. (29-CA-9367; 348 NLRB No. 35) Brooklyn, NY Sept. 29, 2006.

The Board, in this supplemental decision, adopted the recommended order of the administrative law judge that the Respondent make whole its employees by paying a total of $634,543.18 as specified in the compliance specification, as amended, plus interest. It agreed with the judge that the General Counsel is entitled to summary judgment on the amount of reimbursement owed to employees for years 1981-1987, because the Respondent failed to prove that its 1981-1987 records were unavailable for reasons other than the Respondent's own negligence.

Member Schaumber said he "reluctantly" joined his colleagues in adopting the judge's decision. He wrote: "The 13-year delay between enforcement and the issuance of the compliance specification in this case remains difficult to fathom or excuse. Such extended delays are plainly prejudicial to the interests of affected parties and weaken the credibility of the Board in the eyes of those we protect and regulate."

A controversy having arisen over the amount of backpay due the employees under the terms of the Board's order (293 NLRB 1228 (1989)), enforced by the U.S. Court of Appeals for the D.C. Circuit on July 9, 1991, the Regional Director issued a compliance specification on June 30, 2004, alleging the amount of backpay due to 3082 claimants. The Board had found that the Respondent violated Section 8(a)(1), (2), and (3) of the Act by recognizing Federation Health Professionals Local 6, Longshoremen at a time when Local 6 did not represent a valid majority, and by executing and enforcing union security and check off clauses in a collective-bargaining agreement. The backpay period began on June 24, 1981, the date of the execution of the contract, and ended on June 24, 1981, the date that the Respondent ceased deducting dues and fees from its employees' wages.

(Members Schaumber, Kirsanow, and Walsh participated.)

Hearing at Brooklyn, Feb. 7 and 27, 2006. Adm. Law Judge Steven Fish issued his supplemental decision May 31, 2006.

***

Metro Demolition Co., Inc., Phantom Demolition Corp., Circle Interior Demolition, Inc., World Class Demolition Corp., Alter Egos (29-CA-27317, et al.; 348 NLRB No. 21) Maspeth and Long Island City, NY Sept. 27, 2006.

The Board denied the General Counsel's motion for partial default judgment and remanded the proceeding to the Regional Director for further appropriate action.

The consolidated complaint alleges that Respondents Metro, Circle, World Class, and Phantom are a single employer; that World Class is an alter ego of Phantom; that Phantom and Circle are alter egos of Metro; and that Metro, Circle, World Class, and Phantom violated Section 8(a)(1), (3), and (5) of the Act. World Class filed a timely answer to the consolidated complaint. Metro, Circle, and Phantom did not file answers by the due date.

The General Counsel sought summary judgment against Respondents Metro and Circle on the ground that they failed to file timely answers to the consolidated complaint. No motion was filed as to Phantom. The Board denied the General Counsel's motion on the basis that World Class' timely filed answer serves to preclude the entry of a default judgment against Respondents Circle and Metro. It wrote: "The Board has declined to enter default judgment against a nonanswering respondent in circumstances where its alleged liability was derivative and stemmed from its alleged status as a single employer with (or alter ego of) another respondent who had filed a timely answer."

(Chairman Battista and Members Liebman and Walsh participated.)

Charges filed by Teamsters Local 813; complaint alleged violation of Section 8(a)(1), (3), and (5). General Counsel filed motion for partial default judgment June 19, 2006.

***

National Steel & Shipbuilding Co. (21-CA-36772; 348 NLRB No. 23) San Diego, CA Sept. 28, 2006.

The Board adopted the recommendations of the administrative law judge and found that the Respondent violated Section 8(a)(5) and (1) of the Act by on or about Feb. 18, 2005, appointing a union health and safety representative.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Boilermakers; complaint alleged violation of Section 8(a)(1) and (5). Hearing at San Diego, Nov. 14-15, 2005. Adm. Law Judge William N. Cates issued his decision March 15, 2006.

***

Newspaper and Mail Deliverers' Union of New York and Vicinity (2-CB-20110; 348 NLRB No. 19) New York, NY Sept. 28, 2006.

The Board upheld the administrative law judge's finding that the Respondent Union violated Section 8(b)(3) of the Act by failing and refusing, since on or about Sept. 8, 2004, to execute a written contract embodying the agreement reached on or about Aug. 25, 2004, with NYP Holdings, Inc.

(Members Schaumber, Kirsanow, and Walsh participated.)

Charges filed by NYP Holdings, Inc.; complaint alleged violation of Section 8(b)(3). Hearing at New York, Aug. 9-10, 2005. Adm. Law Judge Steven Davis issued his decision Nov. 9, 2005.

***

Oakwood Healthcare, Inc. (7-RC-22141; 348 NLRB No. 37) Taylor, MI Sept. 29, 2006.

The Board set forth guidelines for determining whether an individual is a supervisor under the National Labor Relations Act. In this decision, with a 3-2 vote, the Board held that the permanent charge nurses employed by the Employer, Oakwood Heritage Hospital, an acute care hospital, exercised supervisory authority in assigning employees within the meaning of Section 2(11) of the Act.

The Board found that the charge nurses, as a regular part of their duties, assigned nursing personnel to the specific patients for whom they would care during their shift. The Board found that such assignments, which consisted of giving "significant overall duties" to an employee, met the statutory definition of "assign" under the Act. The Board further found that the Employer met its burden to show that its charge nurses exercised independent judgment in making such assignments. Finally, the Board found that the Employer failed to establish that the rotating charge nurses exercised supervisory authority for a "substantial" part of their work time. As a result, the Board found that only the Employer's permanent charge nurses were supervisors, rather than employees, under the Act. The majority opinion is signed by Chairman Battista and Members Schaumber and Kirsanow. Members Liebman and Walsh dissented.

In NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), the Supreme Court criticized the Board's extant interpretation of the Section 2(11) term "independent judgment." As a result, the Board endeavored in this Oakwood Healthcare decision to reexamine and clarify its interpretations of the term "independent judgment" as well as the terms "assign" and "responsibly to direct," as those terms are set forth in Section 2(11). The Board proffered the following definitions.

The Board defined "assign" as the act of "designating an employee to a place (such as a location, department, or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee." Further, to "assign" for purposes of the Act, "refers to the . . . designation of significant overall duties to an employee, not to the . . . ad hoc instruction that the employee perform a discrete task."

The Board then defined the statutory term "responsibly to direct" as follows: "If a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both 'responsible' . . . and carried out with independent judgment." The Board held that the element of "responsible" direction involved a finding of accountability, so that it must be shown that the "employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary" and that "there is a prospect of adverse consequences for the putative supervisor" arising from his/her direction of other employees.

Finally, consistent with the Supreme Court's decision in Kentucky River, the Board adopted an interpretation of the term "independent judgment" that applies irrespective of the Section 2(11) supervisory function implicated, and without regard to whether the judgment is exercised using professional or technical expertise. The Board defined the statutory term "independent judgment" in relation to two concepts. First, to be independent, the judgment exercised must not be effectively controlled by another authority. Thus, where a judgment is dictated or controlled by detailed instructions or regulations, the judgment would not be found to be sufficiently "independent" under the Act. The Board further found that the degree of discretion exercised must rise above the "routine or clerical" in order to constitute "independent judgment" under the Act.

In dissent, Members Liebman and Walsh disagreed with the majority's definitions of the statutory terms "assign" and "responsibly to direct," and further disagreed with the majority's finding that the employer's charge nurses exercise supervisory authority in "assigning" other employees.

The dissent contends that the majority erred in defining the term "assign" to include the act of assigning overall tasks to employees. In the dissent's view, the assigning of tasks to employees is a "quintessential function of the minor supervisors whom Congress clearly did not intend to cover in Section 2(11)." Accordingly, the dissent would define "assign" under the Act as the act of determining "an employee's position with the employer," an employee's "designated work site," or an employee's "work hours."

The dissent also disagrees with the majority's definition of "responsibly to direct," contending that the drafters of Section 2(11) only intended the phrase to include "persons who were effectively in charge of a department-level work unit, even if they did not engage in the other supervisory functions identified in Section 2(11)." As a result, the dissent would require the following showing to establish that a putative supervisor has the authority to "responsibly direct": The individual has been delegated substantial authority to ensure that a work unit achieves management's objectives and is thus "in charge"; the individual is held accountable for the work of others; and the individual exercises significant discretion and judgment in directing his or her work unit.

(Full Board participated.)

***

Operating Engineers Local 150 (13-CD-746; 348 NLRB No. 33) Elmhurst, IL Sept. 29, 2006.

The Board determined that employees of Patten Industries, Inc. represented by Operating Engineers Local 150, rather than those represented by Machinists Local 701, are entitled to use hoses and pumps to dump oil and fill lube trucks at the Patten Industries facility in Elmhurst, IL, and to operate the Track Press for work performed by Patten Industries, Inc. at its facility in Elmhurst, IL in repairing track links brought in from the field by field technicians. It reached this conclusion relying on the factors of employer preference, current assignment, and economy and efficiency of operations.

(Members Schaumber, Kirsanow, and Walsh participated.)

***

Salmon Run Shopping Center, LLC (3-CA-24578; 348 NLRB No. 31) Watertown, NY Sept. 29, 2006.

The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by denying Carpenters Empire State Regional Council, Local 747 access to its mall for purposes of distributing union literature, but it relied on a different rationale.

Citing Lechmere, Inc. v. NLRB, 502 U.S. 537, the Board noted that the Supreme Court has established two exceptions to its general rule that an employer cannot be compelled to permit union agents to distribute literature on the employer's property. First, an employer violates Section 8(a)(1) by denying a union access to its property where the union has no other reasonable means of communicating its organizational message (the "inaccessibility exception"). See Lechmere, supra, 502 U.S. at 533-535. Second, an employer violates Section 8(a)(1) by prohibiting nonemployee distribution of union literature if its actions "discriminate against the union by allowing other distribution" (the "discrimination exception"). NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

The Board concluded that the Respondent excluded the Union from its property because it is a labor organization and that the discriminatorily motivated exclusion violated Section 8(a)(1) under the "discrimination exception" as set forth in Babcock & Wilcox.

(Members Liebman, Kirsanow, and Walsh participated.)

Charge filed by Carpenters Empire State Regional Council, Local 747; complaint alleged violation of Section 8(a)(1). Hearing at Syracuse on July 28, 2004. Adm. Law Judge Joel P. Biblowitz issued his decision Sept. 28, 2004.

***

Success Village Apartments, Inc. (34-CA-10622, et al.; 348 NLRB No. 28) Bridgeport, CT Sept. 29, 2006.

The administrative law judge found, and the Board agreed, that the Respondent committed numerous violations of Section 8(a)(5), (4), (3), and (1) of the Act from the summer of 2003 to the fall of 2004, including unilaterally changing existing terms and conditions of employment for unit employees by implementing a "Conflict of Interest" policy, removing a phone from an employee work area, and engaging in numerous acts of retaliation against Una Boulware, Dennis Brown, Lloyd Reid, and Tony Teja because of their activities for Auto Workers Local 376 and/or their prior Board testimony.

In a reversal of the judge, the Board found that the Respondent did not violate Section 8(a)(5) by unilaterally implementing a new parking policy. As a result of the Respondent's new policy, employees now have to walk approximately 200 additional yards from their vehicles to the main building. Relying on United Parcel Service, 336 NLRB 1134 (2001), the judge found that employee parking is a mandatory subject of bargaining, and that the Respondent had an obligation to bargain with the Union over the change. The Respondent argued that the parking policy's effect on working conditions was de minimis and therefore, it had no obligation to bargain over the change. The Board agreed.

(Members Liebman, Kirsanow, and Walsh participated.)

Charges filed by Auto Workers Local 376; complaint alleged violation of Section 8(a)(1), (3), (4), and (5). Hearing at Hartford, Dec. 6-10, 2004, Jan. 25-28, Feb. 1-3, March 14-17, 21-24 and 28 and 30, 2005. Adm. Law Judge Wallace H. Nations issued his decision May 16, 2006.

***

Sutter Health Center d/b/a Sutter Roseville Medical Center (20-CA-30946-1; 348 NLRB No. 29) Roseville, CA, Sept. 29, 2006.

The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by notifying certain unit employees that their reinstatement would be delayed for 4 days, and violated Section 8(a)(3) and (1) by delaying the reinstatement of certain strikers and by closing its cafeteria and thereby delaying reinstatement of the strikers employed there.

The Board approved the judge's finding that the Respondent violated Section 8(a)(3) with respect to those economic strikers replaced by Respondent's in-house supervisory and managerial employees. It found merit in the General Counsel's exceptions that the Respondent also violated Section 8(a)(3) by delaying the reinstatement of strikers replaced by the Respondent's in-house, nonunit employees.

This case involves the reinstatement of strikers following a 1-day economic strike at the Respondent's health care institution on Nov. 14, 2002. The Union, Health Care Workers SEIU Local 250, notified the Respondent on Nov. 1 of the impending strike and its duration and, at the same time, made an unconditional offer to return to work on Nov. 15 on behalf of the strikers. The Respondent determined that it would continue operations during the strike using temporary replacements and decided it would schedule all replacements for a 5-day period and that it would close the cafeteria, in which certain unit employees regularly worked, for 5 days in connection with the strike. On Nov. 6, the Respondent informed unit employees that if there were a strike "[r]eplacement staff will provide services for the full 5 days to provide continuity in patient care." At the end of the 1-day strike, the Respondent refused to reinstate the strikers until the announced 5-day period had elapsed.

The judge found that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with an opportunity to bargain about the terms and conditions of employment of nonunit replacements after they ceased to be lawful striker replacements during the 4-days between the end of the strike and the date the Respondent set for the strikers to return. Chairman Battista and Member Schaumber found it unnecessary to pass on this matter because finding the 8(a)(5) violations would not materially affect the remedy in light of the finding of an 8(a)(3) violation and the associated make-whole remedy. Contrary to her colleagues, Member Liebman would find that the Respondent violated Section 8(a)(5) by unilaterally assigning unit work to nonunit employees, and unilaterally deciding to keep its cafeteria closed during the period when the striking employees should have been reinstated.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Health Care Workers SEIU Local 250; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Sacramento, Feb. 5-6, 2004. Adm. Law Judge Clifford H. Anderson issued his decision April 20, 2004.

***

Starwood Hotels & Resorts Worldwide, Inc. d/b/a W San Diego (21-CA-36384; 348 NLRB No. 24) San Diego, CA Sept. 29, 2006.

Chairman Battista and Member Schaumber, with Member Liebman dissenting, agreed with the administrative law judge that the Respondent did not violate Section 8(a)(1) of the Act when it prohibited an employee from wearing a union button in public areas of the Respondent's hotel. Members Liebman and Schaumber, with Chairman Battista dissenting, adopted the judge's finding that the Respondent violated Section 8(a)(1) of the Act by prohibiting the same employee from wearing a union button in nonpublic areas.

Citing Pathmark Stores, Inc., 342 NLRB 378, 379 (2004); Alba Plastics, 335 NLRB 923, 924 (2001), the Board wrote that an employer may lawfully restrict the wearing of union insignia where "special circumstances" justify the restrictions. A unanimous Board reversed the judge's finding that the Respondent violated Section 8(a)(1) by prohibiting another employee from wearing union stickers in the hotel kitchen, a nonpublic area. It reasoned that health and safety concerns may constitute special circumstances—the danger that the loosely-attached stickers would fall into the food or onto food preparation surfaces justified restrictions on employees' right to wear union insignia.

Regarding the display of the union button in public areas, the judge found that the Respondent proved special circumstances—interference with the Respondent's public image—justified the no-button order while in-room delivery (IRD) server Sergio Gonzalez was in public areas where he would come in contact with guests. Chairman Battista and Member Schaumber noted that the button would have interfered with the Respondent's use of a particular in-room server uniform (professionally-designed all-black shirt, slacks, and apron) to create a special atmosphere for hotel customers.

Member Liebman disagreed with her colleagues' adoption of the judge's finding that the Respondent established "special circumstances" justifying its ban on wearing union buttons in public areas. She believes that the Respondent has submitted no evidence demonstrating that the Union's 2-inch square button would detract in any significant way from the Respondent's efforts to create a "wonderland" atmosphere and that the Respondent has failed to carry its burden of demonstrating that the employees' wearing of the Union's button on their uniforms in public areas could interfere with the creation of that atmosphere as to warrant the Respondent's ban.

Chairman Battista found that the Respondent demonstrated special circumstances justifying its order prohibiting IRD server Gonzalez from wearing the union button in public areas of the hotel. Contrary to his colleagues, he found that the Respondent demonstrated special circumstances—the impracticality of requiring Gonzalez to remove the union button each time he entered a public area—justified its order prohibiting Gonzalez from wearing the button in public and non-public areas.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Hotel & Restaurant Employees Local 30; complaint alleged violation of Section 8(a)(1). Hearing at San Diego on Dec. 7, 2004. Adm. Law Judge Lana H. Parke issued her decision Jan. 21, 2005.

***

The Wackenhut Corp. (1-CA-42113; 348 NLRB No. 30) Plymouth, MA Sept. 29, 2006.

Members Schaumber and Kirsanow agreed with the administrative law judge that the Respondent neither discharged nor constructively discharged employee Timothy Charette in violation of Section 8(a)(1) of the Act. They wrote that "the entire course of the Respondent's words and actions would not reasonably lead a prudent person in Charette's position to believe, when he later resigned, that his employment had been terminated."

Member Liebman, dissenting, found that Charette reasonably believed that he had been, or was about to be, unlawfully fired and that it is appropriate to hold the Respondent responsible for his resignation and liable for remedying its wrongdoing. She relied on case law that the Board must view the situation "'through the [employee's] eyes and not as the employer would have viewed them,'" and must hold the employer "responsible when its statements or conduct create an uncertain situation for the affected employee[]." Kolkka Tables & Finnish-American Saunas, 335 NLRB 844, 846 (2001), quoting Brunswick Hospital Center, 265 NLRB 803, 810 (1982).

No exceptions were filed to the judge's finding that the Respondent violated Section 8(a)(1) by suspending Charette.

(Members Liebman, Schaumber, and Kirsanow participated.)

Charge filed by Security, Police and Fire Professionals (SPFPA); complaint alleged violation of Section 8(a)(1). Hearing at Boston, Dec. 12-13, 2005. Adm. Law Judge David L. Evans issued his decision Jan. 23, 2006.

***

Wal-Mart Stores, Inc. (16-CA-20391-1, et al., 16-RC-10181; 348 NLRB No. 16) Palestine and Jacksonville, TX Sept. 28, 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 bargain with Food & Commercial Workers Local 540 about the effects of its decision to convert the meat department at its Jacksonville, TX store from a boxed meat to a case-ready operation, and by refusing to furnish Local 540 with requested information that was relevant and necessary for engaging in effects bargaining. In the absence of a complaint allegation that the Respondent's refusals to bargain for a contract before July 15, 2000 were unlawful, the Board reversed the judge's finding of an 8(a)(5) allegation covering the March-to-July 15, 2000 time period.

The judge found that the Respondent violated Section 8(a)(5) by refusing Local 540's bargaining requests between March and July 15, 2000, but that it did not unlawfully refuse to bargain with Local 540 after July 15, based on his finding that, by July 15, the meat-department unit at the Jacksonville store was no longer an appropriate unit for collective bargaining due to the Respondent's completion of a long-planned conversion of its meat department from a "boxed"-meat area operation to a "case-ready" operation.

The Board agreed with the judge that the meat-department became inappropriate by July 15, after the case-ready program was implemented and that the Respondent did not violate Section 8(a)(5) after July 15 by refusing to bargain with Local 540 for an initial contract.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Food & Commercial Workers Locals 455 and 540; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Tyler, Nov. 18-22, 2002. Adm. Law Judge Keltner W. Locke issued his decision June 10, 2003.

***

Washoe Medical Center, Inc. (34-CA-18511-1, et al.; 348 NLRB No. 22) Reno, NC Sept. 29, 2006.

No exceptions having been filed, the Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by interfering with protected employee solicitation and distribution. The Board also adopted the judge's finding that the Respondent violated Section 8(a)(1) by denying union representation to bargaining unit employees at grievance meetings, but it found it unnecessary to pass on his conclusion that this conduct also violated Section 8(a)(3).

Chairman Battista and Member Schaumber affirmed the judge's recommended dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) by declaring impasse on April 6, 2001, and implementing its economic proposals. Member Liebman would find that the impasse was tainted by the Respondent's ongoing refusal—found unlawful in Washoe Medical Center, 337 NLRB 202 (2001)—to bargain over starting wages for new hires. Chairman Battista and Member Schaumber found that the General Counsel failed to establish a causal nexus between the unfair labor practice of the prior case and the impasse in this case.

The Board reversed the judge's finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally discontinuing its pay-for-performance merit pay system for unit employees. Contrary to the judge, it found that the parties discussed the proposed change during their negotiations, and the Union acquiesced in the change.

Chairman Battista and Member Schaumber reversed the judge's finding that the Respondent violated Section 8(a)(1) by interrogating employees regarding a potential strike. The interrogation issue arose when immediately following service upon the Respondent of the Union's strike notice, the Respondent sent a letter and preprinted response card to unit employees informing them that it had received the strike notice and stating in part: "[W]e need to know whether you intend to work or not. Please indicate your decision on the enclosed response card and return it to the Nursing Administration Office by 4:00 p.m. on Tuesday, June []. If you do not complete and submit the enclosed response card by this date, we must assume you intend not to work on June 26."

The judge found that the Respondent violated the Act by failing to assure unit employees "that there would be no reprisals for failing to answer the interrogatory." Chairman Battista and Member Schaumber said "the judge has parsed the contents of the Respondent's prestrike letter and enclosed response card so finely as to rob that correspondence of its clear, commonsense meaning and, as well, to defeat the limited privilege accorded to employers to questions employees on matters related to their Section 7 rights under conditions established in Johnnie's Poultry," 146 NLRB 770 (1964), enfd. denied 344 F.2d 617 (1965). Member Liebman would find the letter coercive.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Operating Engineers Local 3; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Reno, Oct. 2-4, 2001. Adm. Law Judge Jay R. Pollack issued his decision Jan. 9, 2002.

***

E.C. Waste, Inc. d/b/a Waste Management de Puerto Rico (24-CA-9997, 10064; 348 NLRB No. 26) San Juan and Caguas, PR Sept. 29, 2006.

Affirming the administrative law judge's decision, the Board held that the Respondent violated the Act during the less than 1 month period between when employees working at the Respondent's Coqui San Juan and San Juan Transfer facilities voted in favor of Union de Tronquistas de Puerto Rico, Local 901, Teamsters. Specifically, the Board found that the Respondent violated Section 8(a)(5) and (1) by unilaterally eliminating the supplemental bonus for employees at its Coqui San Juan facility without first giving the Union notice and an opportunity to bargain.

There were no exceptions to the judge's finding that the Respondent, by Supervisor Pablo de Jesus, violated Section 8(a)(1) by threatening employees with unspecified reprisals at a Dec. 2004 meeting with employees at the Respondent's San Juan Transfer facility. No exceptions were filed to the judge's dismissal of the remaining 8(a)(1) complaint allegations.

In affirming the judges 8(a)(5) finding regarding the supplemental bonus, Chairman Battista and Member Schaumber distinguished North American Pipe Corp., 347 NLRB No. 78 (2006), in which the Board held that an employer's substantial one-time grant of stock to its employees was not subject to bargaining because it was a gift rather than wages or remuneration for work. They noted that the bonus here, unlike the grant of stock in North American Pipe, was given to employees annually for a number of years and was explicitly characterized by the Respondent as a part of employees' "salaries and benefits." Chairman Battista and Member Schaumber found it unnecessary to pass on the judge's conclusion that the Respondent's elimination of the supplemental bonus violated Section 8(a)(3) in addition to Section 8(a)(5) because it would not materially affect the remedy.

Member Walsh found it unnecessary to distinguish North American Pipe, as he dissented from the majority in that case, and he would adopt the judge's finding that the Respondent's conduct with regard to the supplemental bonus violated both Section 8(a)(3) and (5).

The Board modified the judge's recommended order to require, among others, posting of the notice to employees at both of the Respondent's facilities (Coqui San Juan and San Juan Transfer) where it found that unfair labor practices occurred. In the event hat the Coqui San Juan facility has closed, the modified Order provides for the mailing of the notice.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Union de Tronquistas de Puerto Rico, Local 901, Teamsters; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at San Juan on March 2, 2006. Adm. Law Judge Paul Bogas issued his decision July 19, 2006.

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NLRB Law Memo 10/03/2006
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NLRB Law Memo 10/03/2006
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NLRB issues "Kentucky River" cases

• Charge nurses in acute care hospital classified as supervisors (3-2).

• Charge nurses in nursing home classified as employees (3-0).

• Lead persons at manufacturing facility classified as employees (3-0).

Charge nurses in acute care hospital classified as supervisors (3-2).

Oakwood Healthcare, Inc., 348 NLRB No. 37 (Sept. 29, 2006)
http://www.nlrb.gov/nlrb/shared_files/decisions/348/348-37.htm

            The National Labor Relations Board has set forth guidelines for determining whether an individual is a supervisor under the National Labor Relations Act.  In a major decision made public today, with a 3-2 vote, the Board held that the permanent charge nurses employed by the Employer, Oakwood Heritage Hospital, an acute care hospital, exercised supervisory authority in assigning employees within the meaning of Section 2(11) of the Act

            The Board found that the charge nurses, as a regular part of their duties, assigned nursing personnel to the specific patients for whom they would care during their shift.  The Board found that such assignments, which consisted of giving "significant overall duties" to an employee, met the statutory definition of "assign" under the Act.  The Board further found that the Employer met its burden to show that its charge nurses exercised independent judgment in making such assignments.  Finally, the Board found that the Employer failed to establish that the rotating charge nurses exercised supervisory authority for a "substantial" part of their work time.  As a result, the Board found that only the Employer's permanent charge nurses were supervisors, rather than employees, under the Act.  The majority opinion is signed by Chairman Robert J. Battista and Members Peter C. Schaumber and Peter N. Kirsanow.  Members Wilma B. Liebman and Dennis P. Walsh dissented.

            In NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), the Supreme Court criticized the Board's extant interpretation of the Section 2(11) term "independent judgment."  As a result, the Board endeavored in today's Oakwood Healthcare decision to reexamine and clarify its interpretations of the term "independent judgment" as well as the terms "assign" and "responsibly to direct," as those terms are set forth in Section 2(11).  The Board proffered the following definitions.

            The Board defined "assign" as the act of "designating an employee to a place (such as a location, department, or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee."  Further, to "assign" for purposes of the Act, "refers to the . . . designation of significant overall duties to an employee, not to the . . . ad hoc instruction that the employee perform a discrete task."

            The Board then defined the statutory term "responsibly to direct" as follows:  "If a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both 'responsible' . . . and carried out with independent judgment."  The Board held that the element of "responsible" direction involved a finding of accountability, so that it must be shown that the "employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary" and that "there is a prospect of adverse consequences for the putative supervisor" arising from his/her direction of other employees.

            Finally, consistent with the Supreme Court's decision in Kentucky River, the Board adopted an interpretation of the term "independent judgment" that applies irrespective of the Section 2(11) supervisory function implicated, and without regard to whether the judgment is exercised using professional or technical expertise.  The Board defined the statutory term "independent judgment" in relation to two concepts.  First, to be independent, the judgment exercised must not be effectively controlled by another authority.  Thus, where a judgment is dictated or controlled by detailed instructions or regulations, the judgment would not be found to be sufficiently "independent" under the Act.   The Board further found that the degree of discretion exercised must rise above the "routine or clerical" in order to constitute "independent judgment" under the Act.

            In dissent, Members Liebman and Walsh disagreed with the majority's definitions of the statutory terms "assign" and "responsibly to direct," and further disagreed with the majority's finding that the employer's charge nurses exercise supervisory authority in "assigning" other employees.

            The dissent contends that the majority erred in defining the term "assign" to include the act of assigning overall tasks to employees.  In the dissent's view, the assigning of tasks to employees is a "quintessential function of the minor supervisors whom Congress clearly did not intend to cover in Section 2(11)."  Accordingly, the dissent would define "assign" under the Act as the act of determining "an employee's position with the employer," an employee's "designated work site," or an employee's "work hours."

             The dissent also disagrees with the majority's definition of "responsibly to direct," contending that the drafters of Section 2(11) only intended the phrase to include "persons who were effectively in charge of a department-level work unit, even if they did not engage in the other supervisory functions identified in Section 2(11)."  As a result, the dissent would require the following showing to establish that a putative supervisor has the authority to "responsibly direct":  The individual has been delegated substantial authority to ensure that a work unit achieves management's objectives and is thus "in charge"; the individual is held accountable for the work of others; and the individual exercises significant discretion and judgment in directing his or her work unit.

Charge nurses in nursing home classified as employees (3-0).

Golden Crest Healthcare Center, 348 NLRB No. 39 (Sept. 29, 2006)
http://www.nlrb.gov/nlrb/shared_files/decisions/348/348-39.htm

            The Board also released today its 3-0 decision in Golden Crest Healthcare Center, 348 NLRB No. 39 (Sept. 29, 2006), signed by Chairman Battista and Members Schaumber and Kirsanow.  Applying the definitions for "assign" and "responsibly direct" set forth in Oakwood Healthcare, the Board found that the Golden Crest's charge nurses at a nursing home did not exercise supervisory authority under the Act.

            First, the Board found that the charge nurses at issue lacked the authority to "assign" other employees under the Act, emphasizing that Golden Crest failed to establish that the charge nurses possessed the authority to require other employees to stay past the end of their shifts, to come in from off-duty status, or to shift section assignments.

            The Board further found that the charge nurses at issue lacked the authority to "responsibly direct" other employees under the Act, insofar as Golden Crest failed to establish that the charge nurses were actually held accountable for the job performance of other employees.  The Board found that the "accountability" requirement set forth in Oakwood Healthcare was not satisfied by Golden Crest's evidence that it had a practice of rating charge nurses in their annual evaluations on their performance in directing other employees.  The Board found that this evidence constituted merely "paper" accountability and was insufficient to establish that there was an actual prospect that the charge nurses' terms and conditions of employment could be affected, either positively or negatively, as a result of their performance in directing other employees.  Accordingly, having found that the charge nurses at issue neither "assigned" nor "responsibly directed" other employees within the meaning of Section 2(11) of the Act, the Board found that the Golden Crest charge nurses were statutory employees, not supervisors.

Lead persons at manufacturing facility classified as employees (3-0).

Croft Metals, Inc., 348 NLRB No. 38 (Sept. 29, 2006)
http://www.nlrb.gov/nlrb/shared_files/decisions/348/348-38.htm

            The Board issued another decision using the Oakwood Healthcare test for supervisory status, in Croft Metals, Inc., 348 NLRB No. 38 (Sept. 29, 2006), signed by Chairman Battista and Members Schaumber and Kirsanow.  In Croft, the Board applied the definitions for "assign" and "responsibly to direct" set forth in the Oakwood Healthcare decision to find that the lead persons at the manufacturing facility at issue did not exercise supervisory authority under the Act.

After finding that the lead persons did not possess the authority to "assign" under the Act, the Board then found that the lead persons responsibly directed their line or crew members.  The Board found that the lead persons were required to manage their assigned teams, to correct improper performance, to shift employees, and to decide the order in which work was to be performed in order to achieve production goals.  The Board further found that the lead persons were held accountable for the performance of their crew or line members.

            The Board then found that the Croft failed to meet its burden to establish that the lead persons exercised independent judgment in directing their crew or line members.  The Board found that the lead persons' exercise of judgment was either fundamentally controlled by pre-established guidelines, such as delivery schedules, or was simply routine.  Accordingly, the Board found that the lead persons did not exercise supervisory authority under the Act.

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