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NLRB Law Memo 03/23/2007
by Ross Runkel at LawMemo
NLRB Law Memo 03/23/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 3 decisions.
Hempstead Lincoln Mercury Motors Corp. (29-CA-27601; 349 NLRB No. 52) Hempstead, NY March 16, 2007.
The Board denied the General Counsel's motion for summary judgment and remanded the proceeding to the Regional Director for further appropriate action.
In its opposition to the General Counsel's motion, the Respondent's counsel contended that he telephoned the Regional Office on Oct.16, 2006, and spoke with the supervisory attorney assigned to this case. He explained that he missed the Oct.12, 2006 deadline to file an answer to the complaint because of his recent work schedule, and stated that he would fax and send by overnight mail his answer that day. According to Respondent's counsel, the supervisory attorney responded "it was not a problem." The Regional Office received the answer on Oct. 17, without a request for an extension of time. The Respondent's counsel argued that a formal request to file an extension was "obviated" because he had "obtained authorization to file" late. He also submitted that the Regional Office disregarded Section 10280.3 of the Board's Casehandling Manual, Part One, which states: "If an answer has not been filed within the time allowed, counsel for the General Counsel should communicate in writing with respondent's counsel, or with respondent if it is not represented, advising that no answer has been filed . . . and if an answer is not filed within a certain period of time . . ., counsel for the General Counsel will file a Motion for Default Judgment with the Board."
Counsel for the General Counsel confirmed that the Respondent's counsel telephoned the Regional Office on Oct. 16, but did not admit or deny that the supervisory attorney stated that the late filing "was not a problem." She argued that, even if the supervisory attorney made the statement, the Respondent's counsel could not rely on it because the deadline for filing an answer had passed by that time. In addition, Counsel for the General Counsel cited cases holding that the Casehandling Manual is not binding on Regional Office personnel.
The Board found, in the absence of any denial, that the supervisory attorney made the statement attributed to her by the Respondent's counsel. It held that although the General Counsel is correct in asserting that the Respondent was already in default at the time of the telephone conversation, that fact is not dispositive. The Board wrote: "Section 10280.3 of the Casehandling Manual . . . contemplates that additional time will usually be granted after the time for filing the answer has passed, and our case law demonstrates that such informal extensions have been granted in those circumstances. On the facts of this case, we find that the supervisory attorney effectively extended the filing deadline, in a manner akin to that suggested by Casehandling Manual Section 10280.3, by her oral response to counsel for the Respondent."
In a footnote, Member Schaumber noted that the Board general disfavors default judgments. He found it "misleading" to argue that the Casehandling Manual provision regarding untimely filing is not binding while simultaneously holding the Casehandling Manual out to the public, including a link to it on the homepage of the agency's public website, as indicating the manner in which the General Counsel should operate.
(Members Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Teamsters Local 917; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for default summary judgment Oct. 30, 2006.
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Homer D. Bronson Co. (34-CA-9499, et al.; 349 NLRB No. 50) Winsted, CT March 16, 2007.
The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by various acts, including telling employees that they were prohibited from discussing Auto Workers Region 9 and from soliciting union support during company time; promulgating and maintaining overly broad and discriminatory solicitation and distribution rules; and creating the impression that it was watching employees' union activities.
Members Liebman and Walsh agreed with the judge that the Respondent violated Section 8(a)(1) in campaign speeches and posters by threatening employees with plant closure and job loss if they chose union representation. They found that the Respondent's speeches and posters, taken as a whole, conveyed unlawful consequences from unionization, rather than lawful, fact-based predictions of economic consequences beyond the Respondent's control.
Chairman Battista would reverse the judge's finding that the Respondent threatened plant closure. He found that there is nothing in the Respondent's campaign posters or speeches indicating that it would penalize employees for choosing union representation by closing its facility. The Chairman held that the Respondent's communications accurately recounted that, in recent years, numerous unionized facilities, including two of its own, had closed; that most of the closed plants were in Connecticut, where its facility was located; and that all of the closed companies employed work forces that had been represented by the same labor organization whose affiliate was now seeking to represent its employees—the UAW.
The Board, in agreeing with the judge that a Gissel bargaining order is not appropriate, noted the delay in processing the case and instead primarily relied on the Board's traditional remedies to erase the effects of the Respondent's unlawful conduct. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Members Liebman and Walsh agreed with the judge that a special remedy was warranted and ordered that the attached notice to employees be read aloud to the employees by the Respondent's president of manufacturing, Joseph Blancato, who was directly and personally involved in many of the violations or, at the Respondent's option, by a Board agent in Blancato's presence. Chairman Battista would not impose the extraordinary remedy. He believes that the Respondent is not a recidivist and that the violations found were not so egregious as to render insufficient the Board's traditional remedies.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Auto Workers Region 9A; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hartford, Dec. 3-6, 2001, Jan. 7-10, and Feb. 14, 2002. Adm. Law Judge Michael A. Marcionese issued his decision Oct. 10, 2002.
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Inter-Disciplinary Advantage, Inc. (7-CA-48706; 349 NLRB No. 49) Midland, MI March 15, 2007.
Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Kelly Lashbrook, Linda Foran, and Marie Abrakian because of their activities for the Auto Workers; and violated Section 8(a)(1) by the following conduct: maintaining an overly-broad confidentiality rule that restricts employees in the exercise of their Section 7 rights, creating the impression that it was keeping its employees' union activities under surveillance, threatening to discharge employees who engage in union activity, coercively interrogating employees about their union activities, prohibiting employees from talking about the Union at the workplace while allowing other nonwork-related discussions, soliciting and implicitly promising to remedy employee grievances, coercively interrogating employees about discussions they may have had with Board agents, and asking that employees provide them with copies of affidavits given to the Board.
The Board substituted a notice to employees because the notice in the judge's decision failed to include the requirement that the Respondent rescind its overbroad confidentiality rule.
(Members Liebman, Kirsanow, and Walsh participated.)
Charge filed by the Auto Workers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Detroit between Oct. 31 and Dec. 15, 2005. Adm. Law Judge George Alemàn issued his decision Aug. 8, 2006.
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NLRB Law Memo 03/16/2007
by Ross Runkel at LawMemo
NLRB Law Memo 03/16/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 2 decisions.
Cibao Meat Products, Inc. (2-CA-36943; 349 NLRB No. 47) Bronx, NY March 6, 2007.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to make payments to the UNITE Washable Clothing Sportswear and Allied Industries Funds and their successors, UNITE National Insurance Fund and UNITE National Retirement Fund, for its employees' coverage after March 1, 2005. The Board ordered the Respondent to make up all required contributions subsequent to that date and to reimburse unit employees for any expenses resulting from its failure to make such required payments or contributions. The panel further found merit in the General Counsel's exception that the issue of whether the parties ever reached a good-faith impasse, and the amount of contributions owed, should be resolved in a compliance proceeding.
(Members Schaumber, Kirsanow and Walsh participated.)
Charges filed by UNITE-HERE Local 169; complaint alleged violation of Section 8(a)(5) and (1). Hearing at New York on June 5, 2006. Adm. Law Judge Eleanor MacDonald issued her decision Sept. 25, 2006.
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Lowe's HIW, Inc. (21-RC-20900; 349 NLRB No. 48) Perris, CA March 8, 2007.
The Board certified the results of an election held on June 29 and 30, 2006, which Teamsters Local 166 lost 450 to 325. The hearing officer had recommended that the election be set aside, finding that the Employer engaged in objectionable conduct when its agent had conversations with, and created the impression of surveillance among, employees waiting to vote. The Board disagreed.
The election was held over four polling sessions in a 2-day period in a centrally located operations office. Maria Rodriguez, a trainer in the Employer's human resources department, transported individuals to the voting area in a golf cart. After transporting certain individuals to the voting area during the first hour of the first polling session, Rodriguez stood outside the operations office for at least 20 minutes, holding the office door for employees waiting in line to vote while telling them to "have their votes ready." A Board agent asked Rodriguez if she was going to vote and Rodriguez answered no. The Board agent told Rodriguez that she could not wait around or pass by the operations office. In a later instance during the first session, Rodriguez waited by the office with the golf cart. The Board agent again instructed Rodriguez that she could not loiter by the office if she was not voting.
The Board has long held that an election will be set aside if a party to the election engages in prolonged conversation with prospective voters waiting in line to cast their ballots, regardless of the content of that conversation. Milchem, Inc., 170 NLRB 362 (1968). Member Schaumber and Kirsanow said assuming, arguendo, that the Petitioner established Rodriguez's agency, the Petitioner failed to establish that Rodriguez violated the Milchem rule. They found the conduct in this case "comparable" to that of the four lead employees selected by the employer in Longs Drug Stores California, 347 NLRB No. 45 (2006), to maintain control in the vicinity of the voting line who told employees waiting in line to vote to "hurry up." Members Schaumber and Kirsanow decided that these brief statements cannot be considered prolonged conversation embodied in the Milchem rule. Further, they found no merit in the hearing officer's unsupported conclusion that Rodriguez' conduct created the impression of surveillance.
Member Walsh, concurring in the result, would find that the Petitioner failed to prove that Rodriguez was acting as the Employer's agent, and that Rodriquez's conduct, judged under the correct standard for evaluating electioneering at the polls, did not warrant setting aside the election. He noted that the Board considers a number of factors, including whether the alleged electioneering was conducted by a party or by employees, whether it occurred within or near the polling place, and whether it was conducted within a designated "no electioneering area," or contrary to the instructions of a Board agent. The Board also considers the nature and extent of the alleged electioneering. Boston Insulated Wire & Cable Co., 259 NLRB 1118, 1118–1119 (1982). Applying these standards, Member Walsh found merit in the argument that Rodriquez's conversations with voters and extended stays in the polling area may have been objectionable. However, since only about 30 voters were exposed to Rodriquez's conduct, and the Petitioner lost the election by 125 votes, he would not set the election aside on that basis.
(Members Schaumber, Kirsanow, and Walsh participated.)
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NLRB Law Memo 03/09/2007
by Ross Runkel at LawMemo
NLRB Law Memo 03/09/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 4 decisions.
E & I Specialists, Inc. (18-CA-16009-1; 349 NLRB No. 45) Lakeville, MN Feb. 28, 2007.
Finding that the General Counsel failed to establish antiunion animus so as to make out either a refusal-to-consider or a refusal-to-hire prima facie case, the Board dismissed the complaint, that had alleged that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to consider for hire or hire 23 individuals because of their union and/or concerted activities.
The Board stated: "Not only is there no direct evidence of animus, but there is evidence negating animus. Indeed, an employer's main defense against a finding of antiunion animus is a showing that it actually hired union applicants…. Here, the Respondent hired several union members. We disagree with the judge's finding that the Respondent's hiring of union affiliated applicants Chaplin and Kosbab did not negate a finding of animus because they were hired after the Union filed the unfair labor practice charges."
(Chairman Battista and Members Schaumber and Kirsanow participated.)
Charge filed by Electrical Workers (IBEW) Local 343; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Minneapolis Oct. 10-11, 2001. Adm. Law Judge Paul Bogas issued his decision March 8, 2002.
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Leiser Construction, LLC (17-CA-23177; 349 NLRB No. 41) Madison, KS Feb. 28, 2007.
In this FES case, the Board agreed with the administrative law judge that the Respondent, a nonunion company that performs ironwork in the construction of commercial buildings, violated Section 8(a)(3) and (1) of the Act by discharging David Coleman because of his union activity and by refusing to hire union applicants Michael Bright and Richard Christenson. Regarding other violations found by the judge, the panel was split.
Chairman Battista and Member Schaumber, with Member Walsh dissenting, reversed the judge's finding that employee Travis Williams was illegally discharged for union activity mainly on the basis that Williams had declared himself to be "on strike" and did not believe that he had been discharged. Member Walsh noted in his dissent: "Over a period of less than 24 hours, Williams was unlawfully suspended and threatened with violence and retaliation for his union activity. The Respondent then unequivocally refused to allow him to work, on the basis that the Respondent '[did not] work with liars.' Under these circumstances, a prudent employee would conclude that he had been discharged."
As for another violation involving Williams, Members Schaumber and Walsh, with Chairman Battista dissenting, affirmed the judge's finding that the Respondent illegally threatened this employee with physical violence because of his union activity. Finally, Chairman Battista and Member Schaumber, with Member Walsh again dissenting, dismissed the judge's finding that the Respondent violated Section 8(a)(1) by prohibiting Williams from displaying a rat sticker on his hard hat.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Iron Workers Local 10; complaint alleged violation of
Section 8(a)(1) and (3). Hearing at Overland Park, Jan. 31 and Feb. 1, 2006. Adm. Law Judge Lawrence W. Cullen issued his decision May 3, 2006.
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Surgener Electric, Inc. d/b/a McKee Electric Co. (31-CA-27113; 349 NLRB No. 46) Bakersfield, CA Feb. 28, 2007.
Members Liebman and Kirsanow held that the Respondent violated Section 8(a)(3) of the Act by failing to consider for employment and/or refusing to hire 15 journeyman electricians because of union animus and ordered instatement and backpay for all 15 unlawfully rejected applicants. Members Liebman and Kirsanow found without merit the Respondent's argument that the Board cannot find unlawful motivation with respect to its failure to hire applicants Tony Cook and Kevin Cole because their resumes did not indicate any union affiliation.
Chairman Battista, dissenting in part, does not agree that the General Counsel has shown a violation as to Cook and Cole because the evidence does not establish that the Respondent knew that Cook and Cole were union adherents.
The administrative law judge found a violation with regard to the Respondent's refusal to consider the 15 individuals only and failed to order instatement and backpay for Ronny Jungk and Mike Stein who admitted falsifying information regarding their employment history in order to obtain jobs with the Respondent.
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charge filed by Electrical Workers (IBEW) Local 428; complaint alleged violation of Section 8(a)(1) and (3). Hearing held July 11-13, 2005. Adm. Law Judge James L. Rose issued his decision Oct. 19, 2005.
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Turner Industries Group, LLC (15-RC-8596; 349 NLRB No. 42) Geismar, LA Feb. 28, 2007.
The Board considered the appropriateness of the petitioned-for multicraft unit comprised of boilermakers, carpenters, scaffold builders, ironworkers, laborers, millwrights, painters, pipefitters, welders, and cement masons at the Employer's BASF Geismar, LA facility and decided, contrary to the Regional Director, that the appropriate unit must also include all insulators, electricians, and Daily Support Team (DST) employees excluded by the Regional Director.
The Board agreed with the Regional Director that the construction industry eligibility formula as set forth in Daniel Construction Co., 133 NLRB 264 (1961), modified at 167 NLRB 1078 (1967), reaffirmed and further modified in Steiny & Co., 308 NLRB 1323 (1992), is appropriate under the circumstances presented in this case, but found it unnecessary to pass on the issue of whether the Employer meets the definition of a construction employer under the Act. In so doing, the Board agreed with the Regional Director that use of the Daniel/Steiny eligibility formula is reasonable, where, as here, the Employer performs more than a de minimis amount of construction work and its work patterns are comparable to a construction industry employer.
The Employer is a contractor that provides maintenance support services for various chemical plants. It has organized its operations into two sections: Alliance Contract Services (ACS) and Daily Maintenance Support, also known as Daily Support Team (DST). The Employer took over maintenance and other work at BASF's Geismar site in late 2004/early 2005.
The Regional Director found appropriate the petitioned-for unit, which encompassed only the historical unit previously represented by the Petitioner, Baton Rouge Building & Construction Trades Council. The Board concluded however that the Regional Director erred in relying on bargaining history as the determinative factor in supporting his unit determination, noting that there is no assertion or finding that the Employer is a successor employer to its predecessor. In addition, the Petitioner abandoned its successorship claim when it agreed to end its contract with the predecessor company in Nov. 2004, and did not seek recognition from the Employer as a successor.
The Board found it significant that the scope and organization of the Employer's operations expanded in Nov. 2004 when it took over all electrical and insulation work being performed at BASF and hired the employees who were performing that work at that time; and that the terms and conditions of employment for all of the employees, ACS and DST, are substantially similar. It found no basis for excluding the craft-employee insulators and craft-employee electricians, while including other craft employees. Also, it found a strong community of interest between DST employees and the other craft employees in the overall unit.
(Chairman Battista and Members Liebman and Schaumber participated.)
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NLRB Law Memo 03/02/2007
by Ross Runkel at LawMemo
NLRB Law Memo 03/02/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 6 decisions.
The Earthgrains Co., a wholly owned subsidiary of Sara Lee Bakery Group, Inc. (25-CA-29803; 349 NLRB No. 34) Owensboro, KY Feb. 22, 2007.
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 furnish to the Union requested relevant information for four months. However, the Board found it unnecessary to pass on the judge's apparent finding that the Respondent was obligated to return and furnish documents that were created after Oct. 11, 2005, the date of the information request.
(Members Liebman, Schaumber, and Kirsanow participated.)
Charge filed by Teamsters Local 215; complaint alleged violation of Section 8(a)(5) and (1). Hearing at Owensboro, May 16, 2006. Adm. Law Judge Paul Buxbaum issued his decision July 28, 2006.
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Midwest Television, Inc., d/b/a KFMB Stations (21-CA-34683, et al., 1-CA-35029-2; 349 NLRB No. 38) San Diego, CA Feb. 20, 2007.
This case concerns unfair labor practice allegations arising from abortive negotiations between the Respondent and the Union for a successor collective-bargaining agreement in 2001. The majority opinion by Members Schaumber and Kirsanow reverses the administrative law judge's finding that the Respondent's withdrawal of recognition from the Union -- after a majority of employees signed a decertification petition -- violated the Act. "[T]he Respondent withdrew recognition based on an untainted showing of majority disaffection from the Union," the majority stated.
The majority found no violation in the Respondent's unilateral reduction of Rick Moorten's wages to union scale, citing the Board's decision in KFMB Stations, 343 NLRB 748 (2004) (KFMB I ). It reasoned that "Moorten's above-scale wage rate resulted from direct dealing and, as such, was a permissive bargaining subject."
The majority also reversed the judge's finding that the Respondent's proposal to eliminate union security in the new collective-bargaining agreement constituted bad-faith bargaining because it was based on a valid reason, namely, "it wanted to eliminate the union-security clause because it did not want to be forced to remove on-the-air talent for nonpayment of union dues."
Dissenting Member Walsh argued that the Respondent unlawfully withdrew recognition based on his dissenting view in KFMB I and in the instant case that the Respondent committed pre-decertification petition unfair labor practices (the Respondent unilaterally changing Moorten's established wage rate and issuing a memorandum to employees on Sept. 19, 2001, blaming the Union for Moorten's wage reduction). Member Walsh would find that this unlawful conduct tainted the decertification petition and thus the Respondent's withdrawal of recognition also violated the Act.
The Board adopted the judge's findings that the Respondent violated the Act by telling employee Mike Effenberger that he was being discharged because station manager Ed Trimble was "eliminating bargaining units"; by offering the services of its attorney, Craig Schloss, to employees who had been subpoenaed during the Board investigation; and by coercively interrogating, through Schloss, employee Brian Wilson. The Board ordered the Respondent to reinstate Effenberger and to make him whole for any loss of pay or benefits resulting from his discharge.
(Members Schaumber, Kirsanow, and Walsh participated.)
Charges filed by Television Artists (AFTRA) San Diego Local; complaint alleged violation of Sections 8(a)(1)(3) and (5). Hearing at San Diego, on various dates from Mar. 31 to May 1, 2003. Adm. Law Judge James L. Rose issued his decision Feb. 25, 2004.
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Nichols & Wright Paving, Inc. (9-CA-41612, 41729; 349 NLRB No. 39) Huntington, WV Feb. 23, 2007.
The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (5) of the Act when it terminated its collective-bargaining agreements with the Laborers and the Operating Engineers and withdrew recognition. The Board ordered the Respondent to reinstate the contracts and to make whole employees by any loss of wages or benefits they may have suffered.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Operating Engineers Local 132, Laborers District Council/ Charleston, WV, and Laborers Local 543; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Huntington, Aug. 31, 2006. Adm. Law Judge Martin J. Linsky issued his decision Nov. 9, 2006.
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Service Employees International Union Local 87 (Able Building Maintenance Co.) (20-CB-12510; 349 NLRB No. 40) San Francisco, CA Feb. 23, 2007.
Agreeing with the administrative law judge, the Board dismissed the complaint against the Union alleging it had asked the employer to discharge employee Carlos Serrano for a reason other than Serrano's failure to tender uniformly required initiation fees and periodic dues. The complaint alleged that the Respondent caused the discharge of Serrano pursuant to an internal union bylaw which prohibits members from working for more than one company covered by the collective-bargaining agreement between San Francisco Maintenance Contractors Association (SFMCA) and the Respondent and/or from working simultaneously at two jobs in the same industry covered by the SFMCA contract.
(Members Schaumber, Kirsanow and Walsh participated.)
Charge filed by Carlos Serrano, an Individual; complaint alleged violation of Section 8(b)(1)(A) and 8(b)(2). Hearing at San Francisco, June 14 and July 20, 2006. Adm. Law Judge Mary Miller Cracraft issued her decision Nov. 16, 2006.
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St. Vincent Medical Center, a Division of Catholic Healthcare West, Southern California (31-CA-24325; 349 NLRB No. 36) Los Angeles, CA Feb. 16, 2007.
In a Supplemental Decision and Order, the Board accepted the remand of the U.S. Court of Appeals for the Ninth Circuit as the law of the case in concluding the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily subcontracting the work of the 27 employees in the respiratory care (RC) department and by discharging those employees because they participated in union activity. The court rejected the Respondent's business justification and concluded that "the true motive for the subcontracting decision was anti-union animus."
In its initial decision, 338 NLRB 888, issued on March 31, 2003, the Board affirmed the administrative law judge's decision that the Respondent had not violated the Act because the General Counsel had not established that anti-union animus was not a motivating factor in the Respondent's decision to subcontract out the work of the RC department; and the Respondent failed to demonstrate that the same action would have taken place even in the absence of the protected conduct.
In reversing the Board's earlier decision, the court concluded that the General Counsel met his Wright Line burden: "(1) the General Counsel presented unrebutted evidence concerning St. Vincent's knowledge of union activity, (2) the timing of St. Vincent's decision to subcontract raised a compelling inference of anti-union animus, (3) the ALJ mistakenly relied on post-subcontracting evidence to establish the cause of the subcontracting decision, and (4) St. Vincent's business justification was unreliable, therefore raising the inference that its justification was merely a pretext for anti-union animus.
The court rejected the Board's reliance on the Respondent's implementation of its subcontracting decision "within the 30 to 60 day timeframe it announced prior to the filing of the petition for a representation election."
(Chairman Battista and Members Schaumber and Walsh participated.)
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UMass Memorial Medical Center (1-RC-22044; 349 NLRB No. 35) Worcester, MA Feb. 20, 2007.
The majority, Members Liebman and Walsh, ruled that the Regional Director properly directed a self-determination election among the Employer's per diem EMTs, not withstanding that the Petitioner and Employer had executed a collective-bargaining agreement that had excluded per diem EMTs from the unit of regular EMTS.
Dissenting Member Schaumber would "hold the Petition to its contractual commitments" and dismiss the petition. He said "the exclusionary language in the contract bars a self-determination election among the per diem EMTs seeking to include them in the existing unit of regular EMTs."
The majority pointed out that the contract "does not contain a provision in which the Petitioner explicitly agrees not to seek to represent any employees who are excluded from the bargaining unit it currently represents." The majority also noted that the Petitioner never requested recognition of the per diem employees in the course of the bargaining that resulted in the contract.
(Members Liebman, Schaumber and Walsh participated.)
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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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