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NLRB Law Memo 11/17/2006
by Ross Runkel at LawMemo
NLRB Law Memo 11/17/2006
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Staff summarized 6 decisions.
Heartland Industrial Partners, LLC and Steelworkers (34-CE-9; 348 NLRB No. 72) Greenwich, CT Nov. 7, 2006.
Members Schaumber and Walsh affirmed the administrative law judge's dismissal of the complaint alleging that two clauses in the Respondents' agreement governing union organizing at companies that Heartland may acquire, violate Section 8(e) of the Act because the clauses require Heartland to cease doing business with another person or employer. Chairman Battista dissented.
Heartland is an investment firm that invests in manufacturing firms located in the Midwest. On Nov. 27, 2000, Heartland and the Union executed the Heartland Agreement, which consists of two parts: a Side Letter and a Framework for a Constructive Collective-Bargaining Relationship (Framework). The Side Letter specifies the circumstances and conditions for applying the Framework to future acquisitions of Heartland known as "covered business entities" (CBEs). Section 3 of the Side Letter defines a CBE as one in which Heartland directly or indirectly owns more than 50 percent of the common stock; controls more than 50 percent of the voting power; or has the power, based on contracts, constituent documents or other means, to direct the management and policies of the enterprise.
Section 2 of the Side Letter provides that no less than 6 months after Heartland has invested in a CBE, the Union may notify Heartland of its intent to organize that CBE. Heartland will then cause the CBE to execute a Side Letter and Framework with the Union that is, in form and substance, identical to the Heartland Agreement. The Framework states, among others, that the CBE will adopt a position of neutrality during an organizing campaign; post a notice to its employees advising them of its neutral position; grant the Union access to its premises to distribute information and to meet with employees; furnish the Union with employee names and addresses; and recognize the Union based on a majority showing after a card check. Also, upon a showing of majority support, the CBE will bargain within 14 days of recognition, and will submit to interest arbitration any issues that remain open after 90 days of bargaining.
In early 2001, Heartland acquired Collins & Aikman Corp. and in Jan. 2003, caused Collins & Aikman to enter into a Side Letter and Framework with the Union (Collins & Aikman agreement). In June 2002, Heartland acquired Trimas Corp. and, on July 11, 2003, caused Trimas to enter into a Side Letter and Framework with the Union (Trimas agreement). The complaint alleges that the Heartland Agreement was reaffirmed by the Trimas agreement on July 11, 2003, and that Sections 2 and 3 of the Side Letter violate Section 8(e).
Members Schaumber and Walsh rejected the Respondent's contention that the complaint is time-barred by Section 10(b). And, in finding that the General Counsel has not established that the challenged clauses violate Section 8(e), they wrote:
[T]he General Counsel does not challenge the neutrality and card check provisions of the Framework. Instead, the sole provisions alleged to be unlawful are Sections 2 and 3 of the Side Letter, which define a CBE and require Heartland to cause a CBE to execute the Side Letter and Framework under specified conditions. According to the General Counsel, this requirement, as a matter of law, establishes a prohibited cease doing business object because it operates as a restriction on Heartland's investments. In the absence of record evidence sufficient to support the General Counsel's complaint, and in agreement with the judge, we reject the General Counsel's position.
On their face, the challenged clauses do not limit Heartland's discretion to invest in or acquire any company it chooses. Indeed, the clauses impose no obligation whatsoever on Heartland either at the time of an investment or during the ensuing 6 months. Even after the 6-month period has expired, the clauses on their face do not require Heartland to cease doing business with anyone. Rather, Heartland's obligation is to cause the company it has invested in to execute a Side Letter and Framework, if the company qualifies as a CBE and if the Union requests that it do so. There is also no evidence that the challenged clauses have had the effect of causing Heartland to refrain from investing in any company.
Chairman Battista, in dissent, concluded that the agreement between Heartland and the Union is aimed squarely at the labor relations of the CBEs and is therefore a secondary agreement proscribed by Section 8(e). He noted that the CBE must give up its statutory rights to: (1) speak freely against the Union campaign; (2) have a Board-conducted election to determine the representational desires of its employees; and (3) to determine what contractual provisions it will agree to, i.e., the CBE will proceed to interest arbitration if it does not agree to the Union's contractual demands. The Chairman wrote: "I believe that an employer's statutory right to speak freely and its right to a Board election are highly significant matters, and to take these away can reasonably be viewed as onerous. The same can be said about an employer's right to negotiate its own contract. See Section 8(b)(1)(B) of the Act."
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Linda Kandel, Galen E. Raber, Juanita M. Miler, and Renate Croll, Individuals; complaint alleged violation of Section 8(e). Hearing at Hartford on March 21, 2005. Adm. Law Judge Raymond P. Green issued his decision June 16, 2005.
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M. Mogul Enterprises, Inc. d/b/a MSK Cargo/King Express (16-CA-24374; 348 NLRB No. 73) Harlingen, TX Nov. 8, 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 refusing to recognize and bargain with Teamsters Local 657, and violated Section 8(a)(3) and (1) by discriminatorily refusing to hire nine employees who worked for its predecessor Act Fast Delivery of Corpus Christi, Inc. (Act Fast) in order to avoid a successor collective-bargaining obligation.
On April 13, 2005, the Union was certified as the exclusive collective-bargaining representative of a unit of employees working for Act Fast at its Harlingen, TX facility. On July 5, 2005, the Respondent commenced operations at a DHL facility in Harlingen, TX (the HRL Station) pursuant to a cartage agreement with DHL. Pursuant to the agreement, the Respondent picked up and delivered freight in the McAllen, TX area. Prior to July 5, Act Fast provided courier services out of the HRL Station pursuant to a similar cartage agreement. Act Fast picked up and delivered freight in the Harlingen and McAllen areas. Upon termination of Act Fast's cartage agreement, DHL divided the area serviced out of the HRL Station into two separate areas-the Harlingen area and the McAllen area-and bid them out separately. The Respondent was awarded the contract for the McAllen area and Third Garage was awarded the one for the Harlingen area. Third Garage and the Respondent have operated out of the HRL Station since July 5, 2005. The judge found that other than the geographical separation in the McAllen and Harlingen contracts, Respondent MSK's operations were similar, in most respects, to that of Act Fast.
In agreeing with his colleagues that the Respondent unlawfully failed to recognize and bargain with the Union, Chairman Battista noted that the Respondent did not argue that there can be no violation because the Union did not request bargaining. Accordingly, he does not pass on the validity of precedent arguably holding that there can be a violation even absent a union demand for bargaining. See Smith & Johnson Construction Co., 324 NLRB 970 (1997). Chairman Battista, in finding that the Respondent unlawfully refused to hire the nine discriminatees, relied solely on credited testimony that the Respondent's owner John Gunn, its General Manager Glynn Smith, and its Manager Anthony Soto made several statements evidencing animus to DHL's Manager Hugo Moya, Act Fast Supervisor Omar Juarez, and former Act Fast employee Margarito Garcia.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Teamsters Local 657; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Harlingen, Feb. 6-7, 2006. Adm. Law Judge Lawrence W. Cullen issued his decision June 16, 2006.
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Avante at Wilson, Inc. (11-RC-6495, 6496; 348 NLRB No. 71) Wilson, NC Oct. 31, 2006.
The Board concluded, contrary to the Regional Director, that the Employer failed to establish that the petitioned-for licensed practices nurses (LPNs) and registered nurses (RNs) (staff nurses) at its Wilson, NC facility possess Section 2(11) authority with respect to disciplining certified nursing assistants (CNAs) by sending them home or adjusting CNA grievances. It reinstated the petitions filed by Food and Commercial Workers Local 204 and remanded the cases to the Regional Director for further appropriate action.
The Employer and Petitioner are parties to a collective-bargaining agreement that covers a unit of service and maintenance employees, including the CNAs. A facility administrator heads the Employer's overall operations, and a director of nursing (DON) reports to the facility administrator. Two unit managers report to the DON. The staff nurses report to the unit managers, and the CNAs are subordinate to the staff nurses.
The Regional Director, in dismissing the petitions, found that the staff nurses are supervisors within the meaning of Section 2(11) of the Act because of their authority to discipline CNAs by sending them home for refusing to carry out an assignment and their authority to adjust CNA grievances. He found that the staff nurses use independent judgment in deciding whether or not to send CNAs home. The Board found that the record does not substantiate the Regional Director's conclusions about the staff nurses' authority to discipline CNAs and therefore, that he erred in determining that staff nurses are statutory supervisors on that basis.
In finding that the staff nurses adjust CNA grievances, the Regional Director relied on a collective-bargaining agreement provision stating that employees may present their complaints to their "immediate supervisors" for adjustment, CNA Dorothea Lucas's assertion that she understands her "immediate supervisor" to be a staff nurse, the LPN and RN job descriptions stating that the LPNs and RNs supervise CNAs, the RN job description stating that RNs serve as the facility's representative during the first step of the facility's problem-solving process, and Unit Manager Barnes's testimony that she personally resolved disputes between CNAs when she was a staff nurse.
The Board noted that although contractual and handbook provisions exist relating to grievance handling, the Employer provided no evidence to show that current staff nurses actually possess that authority through evidence of participating in the grievance-adjustment process. It also noted that while the RN job description states that the RNs supervise the LPNs, the Employer stipulated at the hearing that the LPN and RN jobs are identical. "Clear evidence of a significant inaccuracy renders the reliability of the LPN and RN job descriptions suspect," the Board wrote. In addition, it found that the Regional Director placed undue emphasis on the testimony by Unit Manager Barnes, who is no longer a staff nurse, saying her testimony reveals little about staff nurses' current duties, particularly given the fact that it contained no reference to the time period or individuals involved.
(Chairman Battista and Members Kirsanow and Walsh participated.)
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Extendicare Homes, Inc. d/b/a Bon Harbor Nursing and Rehabilitation Center (25-CA-28991, et al.; 348 NLRB No. 70) Owensboro, KY N0v. 3, 2006.
The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by discharging Certified Nursing Assistants Sheila Kelley, Stacy Kjelsen, Misty Paulin, and Tammy Snyder, and Certified Medication Aide (CMA) Tammy Hamilton because of their protected concerted activity in protesting staffing conditions at the Respondent's facility; and by conditioning each employee's return on a promise that she would not walk out in protest of future short-staffing issues.
Chairman Battista and Member Schaumber reversed the judge's findings that the Respondent also violated Section 8(a)(1) by discharging Licensed Practical Nurses (LPNs) Norma Lemon and Rita Adkisson for joining their fellow employees in the concerted protest and conditioning their reinstatement on a promise that they would not engage in a similar protest in the future. They agreed with the Respondent that Lemon and Adkisson are supervisors and therefore, their participation in the employees' protest was not protected and the Respondent was free to discipline them. Member Walsh, dissenting on this issue, found that the Employer failed to carry its burden of showing that LPNs Lemon and Adkisson are supervisors within the meaning of the Act and would adopt the judge's finding that the Respondent violated Section 8(a)(1) with respect to Lemon and Adkisson.
Turning to other alleged violations, the Board affirmed the judge's separate finding that the Respondent violated Section 8(a)(1) when, 1 week following the employees' protest, Unit Manager Della Boehman removed union literature from a bulletin board in the employee breakroom while continuing to allow employees to post nonwork-related material on the same bulletin board. In agreement with the judge, the Board found that the Respondent violated Section 8(a)(1) and (3) when Boehman orally warned CNA Paulin for assisting the Steelworkers by making a written record of Boehman's removal of union literature from the employee bulletin board.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by Steelworkers; complaint alleged violation of Section 8(a)(1). Hearing at Owensboro on Sept. 14, 2004. Adm. Law Judge John H. West issued his decision Mar. 3, 2005.
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SNE Enterprises, Inc. (9-RC-17883; 348 NLRB No. 69) Huntington, WV Oct. 31, 2006.
Contrary to the Regional Director, Chairman Battista and Member Schaumber, with Member Liebman dissenting, found that two lead persons' active role in soliciting authorization cards constituted objectionable conduct and materially affected the outcome of the election held on April 21, 2004, which Steel, Paper, Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers won by a 87-to-82 vote. The majority granted the Employer's request for review in this regard, set aside the results of the election, remanded the case to the Regional Director to conduct a new election, and denied the Employer's request for review in all other respects.
In his third supplemental decision on remand, the Regional Director reconsidered the case in light of Harborside Healthcare, Inc., 343 NLRB No. 100 (2004), and certified the Union as the exclusive representative of the Employer's production and maintenance employees. He found that the lead persons' solicitation of cards was not coercive and thus did not materially affect the results of the election because of mitigating circumstances, including the leads' lack of power to significantly affect the working lives of employees including those directly under them; the employees' perception of the leads as little more than regular employees with no significant authority over their terms and conditions of employment; that the lead persons had been eligible to vote in three earlier representation elections; the solicitation occurred in otherwise noncoercive circumstances; the Employer's campaign literature, which countered any perceived coercion by telling employees that they could vote against the Petitioner even if they had signed a card; and the cessation of any prounion supervisory conduct a month prior to the election.
Chairman Battista and Member Schaumber agreed with the Regional Director that the leads' comments during the campaign were not objectionable and that the hearing officer's conduct did not warrant setting aside the election. They disagreed however with the Regional Director's finding that mitigating circumstances in this case sufficiently negated the inherently coercive effect of the supervisory solicitation of authorization cards on the subsequent election, which the Union won by a very narrow margin.
In dissent, Member Liebman said this case illustrates the errors of the Board's divided decision in Harborside and underscores the unfairness inherently in applying it retroactively. She noted that the solicitations were lawful under existing Board precedent when they occurred; that the supervisory status of the solicitors was undetermined at the time of the solicitations; that the supervisors did not implicitly or explicitly threaten or make promises to employees, or engage in otherwise coercive conduct; and that there were circumstances mitigating any effect the card solicitations may have had on employees, including statements by the Employer affirming that employees did not have to vote for the Union, even if they had initially signed authorization cards.
Member Liebman wrote: "Before Harborside, the Board would never have overturned the election in this case. But even under the Harborside standard, the behavior of the supervisors did not rise to the level of objectionable conduct. The majority applies Harborside to the facts of this case far more aggressively than that decision itself warrants."
(Chairman Battista and Members Liebman and Schaumber participated.)
***
St. George Warehouse, Inc. (22-CA-24902; 348 NLRB No. 67) Kearny, NJ Oct. 30, 2006.
Affirming the administrative law judge's recommendation, the Board ordered that the Respondent comply with a prior Board Order to restore a bargaining unit that had been reduced by the Respondent's unilateral transfer of unit work to nonunit employees in violation of Section 8(a)(5) and (1) of the Act. St. George Warehouse, 341 NLRB 904, 909 (2004), enfd. 420 F.3d 294 (3d Cir. 2005).
The Respondent argued that an alleged loss of majority support among the remaining unit employees makes the Board's Order to restore the bargaining inappropriate. The Board agreed with the judge that under Master Slack Corp., 271 NLRB 78, 84 (1984), the alleged loss of majority support is tainted by the Respondent's unlawful transfer of unit work to nonunit employees. It also rejected the Respondent's argument that restoration would require the hiring of additional employees who have not chosen to be represented by Teamsters Local 641 and therefore, the Union will lack majority status in the restored unit. The Board explained that the new employees will be hired as a result of a court-enforced Board order to restore the status quo to remedy the Respondent's unilateral transfer of unit work and that the Respondent is objecting to the very situation that it caused.
Member Walsh, in rejecting the Respondent's argument that the Union will lack majority support in the restored unit, also relied on the Board's well-established presumption that new hires support the union in the same ratio as the employees they replace. See, e.g., NLRB v. Curtin Matheson Scientific, 494 U.S. 775, 779 (1990); Furniture Renters of America v. NLRB, 36 F.3d 1240, 1244 (3d Cir. 1994); Spellman Co., 311 NLRB 95 (1993), end. mem. 41 F.3d 1507 (6th Cir. 1994).
(Chairman Battista and Members Schaumber and Walsh participated.)
Hearing held on April 27, 2006. Adm. Law Judge Eleanor MacDonald issued her decision July 28, 2006.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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