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NLRB Law Memo 01/08/2007
by Ross Runkel at LawMemo
NLRB Law Memo 01/08/2007
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Staff summarized 7 decisions.
Marine Spill Response Corp. (21-CA-36663; 348 NLRB No. 92) Long Beach, CA Dec. 18, 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 refusing to recognize and bargain with Inlandboatmen's Union of the Pacific ILWU as the exclusive collective-bargaining representative of its employees in the appropriate unit.
There were no exceptions to the judge's finding that at the time of the hearing, the Respondent had effectively merged its Carson facility with its Long Beach facility. No exceptions were filed to the judge's application of the presumption in favor of the appropriateness of a single-facility unit in concluding that the Carson-Long Beach facility is an appropriate bargaining unit. In the absence of exceptions, Members Schaumber and Walsh found it unnecessary to address Chairman Battista's discussion of the judge's analysis.
Chairman Battista joined his colleagues in affirming the judge's finding that a two-facility unit (one at Carson and one at Long Beach) is an appropriate unit, but he relied on a different reading of the judge's analysis. The judge found that each facility was presumptively an appropriate unit, but the presumption was overcome by a showing that a two-facility unit is appropriate. In response, Chairman Battista noted that a single-facility presumption exists only when a union seeks a single-facility unit, and the Union does not do so here. Thus, the issue is whether a two-facility unit is an appropriate unit. In concluding that it is, Chairman Battista relied on the significant operational integration, employee interaction, and employee interchange between the Carson facility and the Long Beach facility as well as the lack of such significant integration, interaction, and interchange between the two facilities and other Respondent facilities in California or nationwide.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Inlandboatmen's Union of the Pacific ILWU; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Los Angeles, Nov. 79, 2005. Adm. Law Judge John J. McCarrick issued his decision Feb. 5, 2006.
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Day Automotive Resources, Inc., d/b/a Day Automotive Group and Centennial Chevrolet, Inc., a Single Employer (6-CA-34843, 34895; 348 NLRB No. 90) Uniontown and Monroeville, PA Dec. 15, 2006.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by conditioning negotiations for a new collective bargaining agreement on acceptance by Steel, Paper and Forestry Workers Local 13836-03 of its proposal concerning health care coverage, refusing to meet and bargain with the Union, and unilaterally changing the unit employees' terms and conditions of employment by implementing its final contract offer when there was no impasse in bargaining.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Steel, Paper and Forestry Workers Local 13836-03; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Pittsburgh, March 7-9, 2006. Adm. Law Judge Richard A. Scully issued his decision June 9, 2006.
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National Grid USA Co., Inc. (1-CA-42703; 348 NLRB No. 88) Westboro, MA Dec. 11, 2006.
In agreement with the administrative law judge, the Board held that the Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to provide relevant requested information to Utility Workers Locals 310, 317, 322, 329, 330, and 654 since June 1, 2005, in the form of copies of the request for proposals for the contracting out of excess collection of delinquent customer accounts; and since July 1, 2005, failing to provide copies of all contracts
between Respondent and the winning bidder(s) concerning the excess collection of delinquent customer accounts.
Members Schaumber and Kirsanow modified the judge's recommended Order to delete the language directing the Respondent to post the "Notice to Employees" on its internet website. Although no exceptions were filed to this remedial provision, they reasoned that the Board has discretion to address remedial matters in the absence of exceptions. Indiana Hills Care Center, 321 NLRB 144 fn. 3 (1996). Regarding the matter in this case, Members Schaumber and Kirsanow found it appropriate to exercise that discretion. They noted that in Nordstrom, Inc., 347 NLRB No. 28 (2006), a panel majority denied a request for electronic notice-posting, citing International Business Machine Corp., 339 NLRB 966 (2003).
In Nordstrom, the Board based its decision on an absence of evidence that the employer customarily communicated with its employees through electronic means. It stated that it was open to considering the merits of a proposed modification to the standard notice-posting language in a particular case if the General Counsel or a charging party (1) adduces evidence at an unfair labor practice hearing demonstrating that a respondent customarily communicates with its employees electronically, and (2) proposes such a modification to the judge in the unfair labor practice proceeding. Here, the majority found that the first of these prerequisites for considering electronic posting on the merits is missing and there is no record that the Respondent customarily communicated with its employees electronically.
In accord with her dissent in Nordstrom, Member Liebman found that the Board's current notice-posting language, which unequivocally references all places where notices to employees customarily are posted, is sufficiently broad to encompass new communication formats, including electronic posting, which is now the norm in many workplaces. She found no need to request an evidentiary hearing before the Board rules, as a matter of general policy, that the current posting language encompasses electronic posting where appropriate. In this case, Member Liebman observed that, by failing to except to the electronic posting provision, the Respondent effectively conceded that there is a factual predicate for requiring such a provision.
(Members Liebman, Schaumber, and Kirsanow participated.)
Charge filed by Utility Workers Locals 310, 317, 322, 329, 330, and 654; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Boston on Jan. 31, 2006. Adm. Law Judge Eric M. Fine issued his decision June 14, 2006.
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Southwest Regional Council of Carpenters (21-CD-658; 348 NLRB No. 87) Los Angeles, CA Dec. 13, 2006.
Relying on the relevant factors of collective-bargaining agreements, employer preference and past practice, and economy and efficiency of operations, the Board determined that employees of Standard Drywall, Inc. represented by Southwest Regional Council of Carpenters are entitled to perform the work in dispute: plastering work at the public works projects in the 12 Southern California counties. Plastering work is defined as follows:
A. Corner beads when stuck on.
B. All interior or exterior plastering using gypsum, Portland Center plaster (excepting cement bases 6 inches (6") or lower), stucco, radian heat fill material, marble-crete, imitation brick or masonry, embedding of chips and stones, the finishing of same and mortars applied by the normal methods used by plasterers.
C. The waterproofing of plaster including such material as Thoroseal and Ironite.
D. The bonding and scratching of all ceilings and walls to receive terrazzo and tile; and bonding, scratching and borrowing to receive thin set tile.
E. The sticking, nailing and screwing on of all plaster caps and ornaments.
F. The application of bond coat plasters, bond dash coats and bonding agents to which plaster is to be applied regardless of tools used, method of application, color of material or type of base to which it is applied.
G. The application of materials used for contract fireproofing, fireproofing, acoustical finish, or decorative finish.
H. All moldings run in place. The making of all templates and the horsing of molds for interior and exterior work. The sticking in place of all staff work and plaster enrichments.
I. The initial clearing of areas immediately adjacent to the plastering and concurrent with the plastering operation.
J. Plasterers shall have the autonomy governing the mixing and applying of all materials used for plaster patching.
K. The installation of Exterior Insulation Finish Systems (EIFS), starting with the foam.
L. The carving or texturing of 'positive' rock and other theme work created from gypsum, Portland cement, or acrylic plaster.
(Chairman Battista and Members Liebman and Schaumber participated.)
The Budd Co. (9-CA-38113; 348 NLRB No. 85) Shelbyville, KY Dec. 6, 2006
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The Budd Co. (9-CA-38113; 348 NLRB No. 85) Shelbyville, KY Dec. 6, 2006.
The Board reversed the administrative law judge and dismissed the complaint allegations that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing a rule banishing radios from the plant. Contrary to the judge, the Board found that the Respondent was privileged by the collective-bargaining agreement to unilaterally make and enforce the radio ban. It also found that the contract provided Auto Workers Local 2383 with specific grounds and clear procedures to challenge the proposed rule, and by agreeing to the provision, the Union clearly and unmistakably waived its right to request bargaining over the Respondent's action.
(Members Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Auto Workers Local 2383; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Louisville on May 23, 2001. Adm. Law Judge Earl E. Shamwell Jr. issued his decision Dec. 20, 2001.
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Reliable Disposal, Inc. (7-CA-46874, 47389; 348 NLRB No. 83) Stevensville, MI Dec. 4, 2006.
The administrative law judge found, and the Board agreed, that the Respondent committed various violations of Section 8(a)(3) and (1) of the Act during Teamsters Local 7's organizing campaign, including discharging Jeff Winslett, interrogating and threatening employees, and soliciting and promising to remedy employee grievances because of the Union.
Members Schaumber and Kirsanow reversed the judge's finding that the Respondent's layoffs of drivers John Tomlinson and Dan Kuhens were attributable to their union activities in violation Section 8(a)(3) and (1). They concluded that there is insufficient proof that the Respondent was aware of Tomlinson's and Kuhens' union activities. Members Schaumber and Kirsanow also reversed the judge's finding that the Respondent violated Section 8(a)(1) when, on three occasions, Operations Manager Fuller told employee Winslett that he (Fuller) would lose his job if the Union came in.
Member Liebman, dissenting from her colleagues' reversals, reasoned that given the Respondent's numerous unfair labor practices, the Respondent harbored animus against employees' union activity. She observed that the Respondent was well aware that the Union's campaign was spearheaded by the drivers, and that the stated reason for the layoffs of Tomlinson and Kuhens-the anticipated loss of work-was pretextual, which supports an inference of knowledge. Turning to Fuller's statements that he would lose his job in the event of unionization, Member Liebman wrote that Fuller's threats clearly served to reinforce the Respondent's unlawful message that if the Union came all those who worked for the Respondent would lose their job. She would therefore find Fuller's threat coercive and violative of the Act.
(Members Liebman, Schaumber, and Kirsanow participated.)
Charges filed by Teamsters Local 7; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Stevensville on Sept. 22, 2004. Adm. Law Judge Pargen Robertson issued his decision March 8, 2005.
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Team Clean, Inc. (37-CA-6905-1; 348 NLRB No. 86) Honolulu, HI Dec. 7, 2006.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with UNITE HERE! Local 5 by failing to furnish the Union in a timely fashion with requested information that is relevant to fulfilling its role as the collective-bargaining representative of the unit employees. Specifically, the Respondent unlawfully delayed in providing the Union with information concerning bargaining
unit members' current addresses and telephone numbers, rates of pay, and week work schedules.
The Respondent argued that the parties' dispute over the Union's information request should be deferred to arbitration. The judge reasoned that Board precedent remains that refusals to provide information are not deferred under Collyer Insulated Wire, 192 NLRB (2002) and, denied the Respondent's request for deferral. In a footnote, the Board noted its consistent policy not to defer information disputes to arbitration. See, e.g., Shaw's Supermarkets, 339 NLRB 871 (2003); United Technologies Corp., 274 NLRB 504 (1985); General Dynamics Corp., 268 NLRB 1532 (1984).
Members Schaumber and Kirsanow viewed the information request at issue to be encompassed by the parties' arbitration clause and would defer the request to arbitration. In the absence of a majority to reverse Board precedent, however, they agreed to apply current Board law and adopt the judge's decision.
Chairman Battista noted that under Collyer, a fundamental prerequisite for deferral to arbitration is that the issue be arbitrable. He noted that the arbitration clause in this case covers disputes "concerning the interpretation or application of, or compliance with provisions of this Agreement." The agreement contains no contractual provision as to information. Thus, the Chairman would not defer because the informational dispute is not arbitrable.
Chairman Battista did not pass on whether the informational allegation would be deferrable if it were covered by the arbitration clause. He recognized that there is Board law stating that information allegations are not deferrable even if covered by a contractual arbitration clause. In an appropriate case, he would reconsider that doctrine.
(Full Board participated.)
Charge filed by UNITE HERE! Local 5; complaint alleged violation of Section 8(a)(1) and (5). Case tried by telephone conference call on Dec. 13, 2005. Adm. Law Judge William G. Kocol issued his decision Dec. 21, 2005.
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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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