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NLRB Law Memo 05/25/2007
by Ross Runkel at LawMemo
NLRB Law Memo 05/25/2007
by LawMemo - World's Best.
Also available by email.
NLRB - Staff summarized 2 decisions.
The Arizona Republic, a Div. of Phoenix Newspapers, Inc. (28-RC-6304; 349 NLRB No. 95) Phoenix, AZ May 8, 2007.
Chairman Battista and Member Schaumber found, contrary to the Regional Director, that under the standards of St. Joseph News-Press, 345 NLRB No. 31 (2005) (News-Press), the Employer's newspaper carriers are independent contractors excluded from the protection of the Act, and not statutory employees within the meaning of Section 2(3). The majority reversed the Regional Director and dismissed the petition filed by Graphic Communications Local 58-M seeking an election in a carrier unit. Member Liebman dissented.
The Board remanded this case to the Regional Director in 2004 for further consideration in light of its finding in News-Press, applying the common-law agency test, that the News-Press newspaper carriers were independent contractors. The Board noted in News-Press that its finding was consistent with cases decided before Roadway Package System, 326 NLRB 842 (1998), and Dial-A-Mattress Operating System, 326 NLRB 842 (1998), in which it found newspaper carriers to be independent contractors. See, e.g., The Evening News, 308 NLRB 563 (1992); Thomson Newspapers, 273 NLRB 350 (1984).
In his supplemental decision, the Regional Director found that the facts in News-Press were "significantly different" from those in this case and that all of the News-Press factors weighed in favor of finding employee status. He reaffirmed his original conclusion that the Employer's newspaper carriers are statutory employees and that the petitioned-for unit was appropriate.
The majority, in this decision on review, found the facts in this case are remarkably similar to those in News-Press and accordingly, relied on the Board's analysis of the common-law factors as applied to the newspaper carriers in News-Press. Chairman Battista and Member Schaumber wrote: "We find that a comparison of the common-law factors in this case with those factors in News-Press demonstrates, on balance, that the Employer's newspaper carriers are independent contractors. Moreover, our finding here is consistent with the pre-Roadway cases finding newspaper carriers to be independent contractors."
Dissenting Member Liebman wrote:
Contrary to the majority's view, economic dependence is a relevant factor in determining employee status under the common-law test incorporated by the National Labor Relations Act. By refusing to consider this factor, the majority wrongly ignores economic realities and present legal trends, as fully discussed in my dissent in St. Joseph News-Press, 345 NLRB No. 31 (2005). Here, based on their economic dependence on the newspaper, together with other relevant factors, I would find that the carriers were statutory employees, and not independent contractors. But even under the majority's view of the common-law test, I would reach the same conclusion, in agreement with the Regional Director.
(Chairman Battista and Members Liebman and Schaumber participated.)
***
G.E. Maier Co. (9-CA-42602; 349 NLRB No. 98) Cincinnati, OH May 9, 2007.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide Carpenters Ohio and Vicinity Regional Council the information it requested in its Jan. 5, 2006 letter, regarding the Respondent's relationship with two other companies.
In defense, the Respondent argued that it never had a duty to bargain with the Union because James Fangmeyer acted without authority when, at a jobsite in Wellston, OH in May 2002, he signed the Union's "Acceptance of Agreements," which provided that the Respondent agreed to recognize the Union and to abide by the Union's collective-bargaining agreement with area contractor associations. The Board, in agreeing with the judge that Fangmeyer had apparent authority to bind the Respondent, explained:
Here, the Respondent had provided Fangmeyer with business cards identifying him as its 'Vice-President Installations," and Fangmeyer had given one of those cards to union organizer Mark Johnson at the Wellston jobsite. Moreover, the Respondent had authorized Fangmeyer to hire workers and to take any other necessary steps to complete the work at a jobsite, and Fangmeyer had exercised that authority in hiring an apprentice through the Union at the Wellston jobsite. In these circumstances, we find it reasonable for the Union to believe that Fangmeyer was authorized to sign the Acceptance of Agreements on the Respondent's behalf. See Horizon Group of New England, 347 NLRB No. 74, slip op at 12 (2006).
No exceptions were filed to the judge's findings that the Respondent did not timely terminate its obligations to the Union under the June 1, 2005 collective-bargaining agreement, and that the Union established the relevance of the information requested in the Jan. 5, 2006 letter to the Respondent.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Carpenters Ohio and Vicinity Regional Council; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Cincinnati on June 20, 2006. Adm. Law Judge Arthur J. Amchan issued his decision Aug. 28, 2006.
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NLRB Law Memo 05/18/2007
by Ross Runkel at LawMemo
NLRB Law Memo 05/18/2007
by LawMemo - World's Best.
Also available by email.
NLRB - Staff summarized 10 decisions.
The Boeing Co. (31-UC-311; 349 NLRB No. 91) Palmdale, CA April 30, 2007.
Chairman Battista and Member Schaumber granted the Employer's request for review of the Regional Director's decision and order, reversed the Regional Director's dismissal of the Employer's unit clarification petition, and remanded the case to the Regional Director for further processing, including reopening the hearing. The majority found, contrary to the Regional Director, that the representation issues presented concerning whether the disputed employees are excluded or included in the units are matters for resolution by the Board and not by an arbitrator.
In her dissent, Member Liebman wrote:
In its eagerness to protect the Board's authority to decide representation questions under the Act, the majority today remands a legally-insufficient unit-clarification petition, preempting an arbitration proceeding that might resolve the matter without the need for Board intervention and that would at least conserve the Board's resources. Consistent with my dissenting position in other cases, I would dismiss the Employer's petition and await the arbitrator's ruling.
Society of Professional Engineering Employees, IFPTE Local 2001 has represented certain professional employees and technical employees working at the Employer's facilities in Washington State and Edwards, CA since at least 1975, adding facilities at Palmdale, CA in 1989. In 1996, the Employer acquired Rockwell International and in 1997, merged with McDonnell Douglas. The Employer began consolidating and restructuring work at its Edwards/Palmdale facilities. The Union learned that the Employer was hiring and placing or transferring certain professional/technical employees at Edwards/Palmdale outside the units when they allegedly should have been in the units. After unsuccessfully attempting to resolve the issue with the Employer, the Union filed a grievance, which is pending arbitration. The Employer filed the instant petition seeking to clarify the existing bargaining units encompassing facilities in Washington State and Edwards/Palmdale facilities in California to exclude certain disputed professional and technical employees.
The majority wrote in reversing the Regional Director's dismissal of the petition: "The Regional Director's dismissal, in effect, allows the arbitrator to decide the representational issues, subject only to a deferential Board review. This result clearly conflicts with Board policy. Thus, we find that the Board has the authority to, and should, define the unit in this case."
(Chairman Battista and Members Liebman and Schaumber participated.)
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The Cajun Co., Inc. (15-RC-8615; 349 NLRB No. 96) Gulfport and Escatawpa, MS May 4, 2007.
The Board affirmed the Regional Director's finding that the Employer, a contractor that provides maintenance services at power plants, is engaged in the building and construction industry as defined by the Board, and thus 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 applicable. The Board found it unnecessary to pass on the issue of whether the Employer is actually engaged in the building and construction industry as defined under the Act. It remanded the case to the Regional Director for further appropriate action. The Board wrote:
In sum, the Employer performs a substantial amount of construction work during the January through May outage months (when the work force may more than double), and a smaller amount during the remainder of the year. Moreover, the total amount of construction work performed year-round is more than de minimis or incidental, and such functions are integral to the Employer's work at these plants. In addition, the Employer's employment pattern of hiring intermittent employees on an outage-by-outage basis and laying off employees at various times is similar to the hiring pattern in the construction industry. Further, the evidence does not establish that the Employer is a seasonal employer. Under these circumstances, in agreement with the Regional Director, we find that the application of the Daniel/Steiny formula is reasonable, regardless of whether the Employer meets the definition of construction employer under the Act.
In his decision, the Regional Director found that the Employer is engaged in the building and construction industry, and that use of the Daniel/Steiny formula is necessary to enfranchise employees who are hired intermittently for "outages" that occur during the months of January through May. He found that the "outage" employees are hired for a specific outage and not an entire outage season, rejecting the Employer's contention that Daniel/Steiny should not apply in this case because the Employer is a seasonal employer. The Employer filed a timely request for review of the Regional Director's decision, contending that it is not an employer in the building and construction industry, and that the majority of construction tasks are performed during the outage season, and not year-round. The Employer further contended that it is a seasonal employer, and thus that the Daniel/Steiny formula does not apply. On July 20, 2005, the Board granted the Employer's request for review.
(Chairman Battista and Members Liebman and Walsh participated.)
***
Detroit East, Inc. (7-RD-3494; 349 NLRB No. 87) Detroit, MI April 30, 2007.
Members Liebman and Walsh remanded the case to the hearing officer for further consideration and issuance of a supplemental report, declining to adopt the hearing officer's recommendation to overrule the Union's objection, which alleges that the Employer improperly used its attorney's paralegal Maurine Payne as its election observer. The hearing officer found that the Union waived this objection by failing to raise it during the preelection conference. Members Liebman and Walsh noted the testimony of Elaine Crenshaw, the Union' designated election observer, that during the conference, she informed the Board agent that Payne was the Employer's attorney and asked her why she was present. Crenshaw testified that, in response, the Board agent called her supervisor at the Regional Office and thereafter pulled Payne aside. The majority decided that Crenshaw's testimony, if credited, would sufficiently establish that the Union raised the status of the Employer's observer during the preelection conference.
Chairman Battista, dissenting, concluded that Crenshaw's testimony, even if credited, is insufficient to establish that the Union raised this objection during the preelection conference and agreed with the hearing officer that the Union waived this objection.
The tally of ballots for the election held on Aug. 18, 2006, shows 17 votes for, and 19 votes against, AFSCME Local 1640, Michigan Council 25, and no challenged ballots. The hearing officer found that Crenshaw did understand the difference between an attorney and a paralegal in referring to Payne as an attorney.
(Chairman Battista and Members Liebman and Walsh participated.)
***
Diverse Steel, Inc. and Pinnacle Steel, Inc., alter egos (26-CA-20799; 349 NLRB No. 90) Roland and Little Rock, AR April 30, 2007.
The administrative law judge found, and the Board agreed, that Respondent Pinnacle Steel was an alter ego of Respondent Diverse Steel, and that the Respondents violated Section 8(a)(5) and (1) of the Act when Pinnacle failed to apply the terms of Diverse's collective-bargaining agreement with Iron Workers Local 321 to its ironwork employees. The Board also agreed with the judge that the Respondent did not violate Section 8(a)(3) and (1) by refusing to recall Diverse's employees to work on the Rave 18 Theater Project.
In finding that Pinnacle and Diverse were alter egos, the judge concluded that "Pinnacle ultimately became the means by which Diverse could [] continue to do business without the limitations and expenses of the Union contract" and that "since May 2002, Pinnacle has functioned as a disguised continuance of Diverse." The Board agreed. Contrary to the judge who failed to also find that Pinnacle was created for the purpose of evading the Union, the Board concluded that the record supported a finding that one of the reasons for forming Pinnacle was to avoid Diverse's contractual and statutory obligations under the Act.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Iron Workers Local 321; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Little Rock, Feb. 13-14, 2003. Adm. Law Judge Margaret G. Brakebusch issued her decision March 21, 2003.
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Downtown Hartford YMCA (34-CA-10011, et al.; 349 NLRB No. 92) Hartford, CT April 30, 2007.
The Board, in agreeing with the administrative law judge that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to hire 12 employees of its predecessor, relied on Planned Building Services, 347 NLRB No. 64 (2006), rather than FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), applied by the judge.
In Planned Building Services, which issued after the judge's decision, the Board held that Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), provides the appropriate framework for deciding whether a successor employer violated Section 8(a)(3) by refusing to hire employees of its predecessor to avoid a bargaining obligation. The judge found, and the Board agreed, that the General Counsel established that the Respondent's decision not to hire its predecessor's employees was motivated by antiunion animus and that the Respondent failed to meet its burden by establishing that it would not have hired those employees absent its hostility toward the Union.
Turning to other alleged violations, the Board affirmed, as modified, the judge's findings that the Respondent violated Section 8(a)(5) and (1) by unilaterally setting initial terms and conditions of employment upon becoming a successor and violated Section 8(a)(1) by denying Union Representative Rebecca Maran access to its facility to meet with employees, threatening to and causing Maran's arrest for meeting with employees on its premises, promulgating and enforcing a discriminatory and overly broad no-solicitation-distribution rule, and telling employees during job interviews that they would not be hired because of their union affiliation.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Service Employees 32BJ District 531; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Hartford, Aug. 19-23 and Sept. 17-20, 2002. Adm. Law Judge Michael A. Marcionese issued his decision June 19, 2003.
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Extreme Building Services Corp. (29-CA-24894, et al.; 349 NLRB No. 86) Great Neck, NY April 30, 2007.
The Board upheld the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act in several respects, including discharging employees Fabio Morales, Betsey Arruda, Maria Ortega, Jerry Sokol, and Andrej Siemek and physically assaulting an employee, preventing him from washing up, and destroying his asbestos worker's license, all in reprisal for union activity. The Board explained its basis, which differed from that of the judge, for finding the violations regarding the discharges of Morales, Arruda, Ortega, and Sokol.
There were no exceptions to the judge's recommended dismissal of the complaint allegations that the Respondent violated Section 8(a)(3) by discharging employees Caryl Vargas and William Leon, or to his failure to find that Morales was fired based on his contact with OSHA. The Board found it unnecessary to pass on the judge's finding that Segundo Moposita is a statutory supervisor or that his questioning of an employee about his union membership and implicitly threatening him with discharge violated Section 8(a)(1).
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Laborers Local 78; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Brooklyn, Sept. 24, Oct. 16-18, and Oct. 21-24, 2002. Adm. Law Judge Steven Davis issued his decision Feb. 10, 2003.
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J. Shaw Associates, LLC (8-CA-36568; 349 NLRB No. 88) Perrysburg, OH April 30, 2007.
Affirming the administrative law judge's recommendation, the Board dismissed the complaint. The Charging Party, Therese Haskell, did not except to the judge's findings that the Respondent did not discriminate against her by issuing her a written warning on Feb. 1, 2006, that Manager Bryant's statements did not unlawfully prohibit Haskell from discussing wages with other employees, and that the Respondent did not verbally promulgate a rule prohibiting such discussions. Haskell excepted to the judge's failure to find that the Feb. 1 written warning independently violated Section 8(a)(1) by prohibiting her from discussing wages with other employees.
In agreeing with the judge's dismissal of the 8(a)(1) discriminatory discharge allegation, the Board found it unnecessary to pass on the judge's finding that Haskell was not engaged in protected concerted activity. Even assuming arguendo that the General Counsel met his threshold burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), the Board agreed with the judge's finding that the Respondent demonstrated that it would have discharged Haskell even in the absence of any protected concerted activity. The judge found that Respondent's owner Shaw and Haskell were romantically involved prior to and continuing after her employment. Haskell's conduct, including harassing Shaw at work and using profanity in their conversations after Shaw wanted to end the relationship and she wanted it to continue, "constituted ample grounds to justify her termination, regardless of any protected activity in which she might have engaged," the judge held.
(Chairman Battista and Members Schaumber and Kirsanow participated.)
Charge filed by Therese Haskell, an individual; complaint allege violation of Section 8(a)(1). Hearing at Toledo, Nov. 7-9, 2006. Adm. Law Judge Ira Sandron issued his decision Dec. 27, 2006.
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R.J. Corman Railroad Construction, L.L.C., f/k/a and successor-in-interest to R.J. Corman Railroad Co., L.L.C. (13-CA-38807-1; 349 NLRB No. 89) Nicholasville, KY May 2, 2007.
The Board upheld the administrative law judge's findings that the Respondent committed several unfair labor practices following an attempt by 15 Union applicants to apply for work with the Respondent on May 4, 2000. Specifically, the judge found, with Board approval, that the Respondent violated Section 8(a)(1) of the Act by interrogating employee Scott Bell, conveying to Bell that union activity would be futile, and threatening employees that the Respondent would close its facility in Bedford Park and take away their benefits if the employees selected Operating Engineers Local 150 as their collective-bargaining representative; and violated Section 8(a)(3) and (1) by refusing to consider for hire and refusing to hire the Union applicants. The Board analyzed the refusal-to-hire allegation under the framework set forth in FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), because the judge's analysis does not fully conform with the FES standard. [HTML] [PDF]
(Members Liebman, Kirsanow, and Walsh participated.)
Charge filed by Operating Engineers Local 150; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago, May 29-31, 2001. Adm. Law Judge William G. Kocol issued his decision Aug. 22, 2001.
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St. George Warehouse, Inc. (22-CA-25400, 25938; 349 NLRB No. 84) South Kearny, NJ April 30, 2007.
The administrative law judge found that the Respondent violated Section 8(a)(1) of the Act by assisting employee Louis Guono in circulating a decertification petition; Section 8(a)(5) and (1) by engaging in surface bargaining and unilaterally enforcing a 15-minute break limitation without giving Teamsters Local 641 notice and an opportunity to bargain; Section 8(a)(3), (4), and (1) by issuing written warnings and suspensions to employee Tony Daniels for supporting the Union and giving testimony under the Act; and Section 8(a)(3) and (1) by issuing written warnings to employee Purcell Robert Wallace because of his union activities.
Chairman Battista and Member Schaumber dismissed the surface bargaining allegation, dismissed or found it unnecessary to pass on certain allegations involving the discipline of Daniels and Wallace, and affirmed the remaining violations. Member Walsh, dissenting in part, agreed with the judge that the Respondent violated Section 8(a)(5) and (1) by engaging in surface bargaining. Chairman Battista and Member Schaumber found, contrary to the judge and dissenting Member Walsh, that the totality of the Respondent's conduct, both at and away from the bargaining table failed to warrant a finding of surface bargaining. Member Walsh wrote: "The Respondent, a repeat offender of the Act, is no stranger to Board proceedings or to allegations of surface bargaining. Here, for the second time since 2002, an administrative law judge has found that the Respondent engaged in surface bargaining. For the second time, the majority reverses that finding. I dissented in the prior case, and I do so again here. Through the conduct and statements of its president and chief negotiator, the Respondent demonstrated its intent to frustrate agreement, continuing its longstanding pattern of hostility to the Union and the collective-bargaining process."
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by Teamsters Local 641; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Newark on 7 days between July 22, 2003 and Jan. 6, 2004. Adm. Law Judge Eleanor MacDonald issued her decision Jan. 10, 2005.
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Sam's Club, a Div. of Wal-Mart Stores, Inc. (28-CA-17057, et al.; 349 NLRB No. 94) Las Vegas, NV May 4, 2007.
The Board agreed with the administrative law judge that the Respondent violated Section 8(a)(1) of the Act by announcing an unlawful rule against talking about the Food and Commercial Workers and by promulgating an employee dress code that effectively prohibited employees from wearing "badge backers" bearing statements of their rights under the Act at its Spring Mountain store.
The Board reversed the judge's findings that the Respondent's dress code was otherwise unlawful and that the Respondent violated the Act by: suspending Ida Williams because of her reaction to being denied a witness at a meeting with management, which she reasonably believed would result in discipline; suspending merit raises pending a representation election without telling employees that the raises would be reinstated after the election regardless of who won the election; and soliciting employee signatures on letters stating opposition to the Union. Contrary to the judge, the Board ordered the Respondent to post remedial notices only at the facility at which employees were affected by the Respondent's unlawful actions.
Member Liebman, dissenting in part, would find that Williams' suspension was unlawful. She explained that Williams exercised her right to request an employee witness at a disciplinary interview and the Respondent seized on her alleged emotional state as a pretext for retaliating against her.
The judge found that the Respondent violated Section 8(a)(1) by refusing to allow Williams to have a coworker representative present at a June 19, 2001, meeting with Store Manager Roberts and violated Section 8(a)(3) and (1) when it suspended Williams for the remainder of the day because she protested Roberts' denial of the representative. In IBM Corp., 341 NLRB 1288 (2004), which issued subsequent to the judge's decision, the Board held that an employee not represented by a union has no statutory right to the presence of a coworkers at an investigatory interview that the employee reasonably believes could lead to discipline.
As the Respondent's employees were not represented by any union when Williams asked for a witness, the General Counsel moved to withdraw the portions of the complaint alleging that Roberts unlawfully denied Williams' request to have a coworker representative present at their June 19 meeting. In light of IBM Corp., and the lack of opposition, Chairman Battista and Member Schaumber granted the motion. They found, contrary to the judge, that the Respondent did not unlawfully suspend Williams because of her outburst in questioning Roberts' denial of her request to have an employee witness at their meeting, saying: "Williams' heated statement, 'this is a bunch of crap,' was not an act of protected activity, i.e., a request for a witness, but rather an intemperate response to a lawful act of the Respondent."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by UFCW; complaint alleged violation of Section 8(a)(1) and (3). Adm. Law Judge James L. Rose issued his decision Nov. 29, 2002 and his supplemental decision May 25, 2004.
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NLRB Law Memo 05/14/2007
by Ross Runkel at LawMemo
NLRB Law Memo 05/14/2007
by LawMemo - World's Best.
Also available by email.
NLRB - Staff summarized 5 decisions.
Church Homes, Inc. d/b/a Avery Heights (34-CA-9168; 349 NLRB No. 81) Hartford, CT April 27, 2007.
In a supplemental decision and order, the Board determined the Respondent shall pay three discriminatees $286,411 in backpay and make payments on behalf of the three individuals to the New England Pension Fund totaling $45,459.
Chairman Battista and Member Walsh agreed with the administrative law judge that the uniform/longevity allowance in the collective-bargaining agreement is properly included in the calculation of gross backpay for the discriminatees, and that the 18% interest on the union pension fund contributions is appropriate. Member Schaumber agreed that the allowance should be included in the award of backpay, though for reasons different from the judge. In his view, the allowance payment was a benefit that the Respondent provided to employees. If an interim employer did not provide the same type of uniform maintenance benefit, then it would obviously constitute a loss to the employee. Here, the Respondent failed to show that the three discriminatees either received such a benefit or were not required to maintain uniforms during any interim employment.
For the reasons set forth in his dissent in Ryan Iron Works, Inc., 345 NLRB No. 56 (2005), Member Schaumber, contrary to his colleagues and the judge, would not award 18% interest on the Union pension fund contributions to be made pursuant to the order in this case.
(Chairman Battista and Members Schaumber and Walsh participated.)
Hearing at Hartford on Aug. 23, 2006. Adm. Law Judge Eleanor MacDonald issued her supplemental decision Dec. 27, 2006.
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The Commercial Division 67 of the Boston Printing Pressmen Local 3 (1-CD-1060; 349 NLRB No. 80) Braintree, MA April 23, 2007.
This is a jurisdictional dispute proceeding under Section 10(k) of the Act. The charge was filed by George H. Dean Co. (the Employer) on Oct. 18, 2006, alleging that the Respondent, the Commercial Division 67 of the Boston Printing Pressmen's Local 3 (Local 3), violated Section 8(b)(4)(D) by engaging in proscribed activity with an object of forcing the Employer to assign bindery work at a new copy center at the Employer's Braintree, MA facility to employees it represents rather than to employees represented by Graphic Communications Conference/Teamsters, Boston Local 600M.
After considering all the relevant factors, the Board concluded that employees represented by Local 3 are entitled to continue performing the work in dispute based on employer preference, and economy and efficiency of operations.
(Chairman Battista and Members Liebman and Kirsanow participated.)
***
Reliable Trucking, Inc. (32-RC-5367; 349 NLRB No. 79) Stockton, Pleasanton, Redding, and Woodland, CA April 23, 2007.
In this mail-ballot election case, the Board majority (Members Kirsanow and Walsh; Chairman Battista dissented in part), applying the factors set forth in Phillips Chrysler Plymouth, 304 NLRB 16 (1991), agreed with the administrative law judge, who served as hearing officer, that the Employer has not met its burden of showing that the election should be set aside on the basis of a single incident in which Teamsters Local 853 interrupted the Employer's off-site meeting with employees. In so concluding, however, they disagreed with the judge's finding that the Union's actions were likely to cause fear among the employees, particularly given that the Union did not direct any threats towards employees, and one employee stood up and directly challenged the Union.
The election, held between Aug. 10 and 31, 2005, resulted in a tally of ballots with 43 votes for and 38 votes against the Petitioner (Teamsters Local 853), with six challenged ballots, a sufficient member to affect the results. The Petitioner and Employer subsequently withdrew two challenges. In the absence of exceptions, the Board adopted the judge's sustaining of the remaining four challenges and his recommendation not to count the two ballots as to which the challenges were withdrawn because the ballots no longer were determinative.
The incident at issue took place on Aug. 9, 2005, at a private hotel room rented by the Employer to hold a meeting for 15-20 employees regarding the election that was to commence the next day. During the meeting, in a darkened room while a slide show was underway, seven or eight union agents barged in, disrupted the meeting, yelled at, and exchanged profanities with, employees and the Employer's representatives. In his dissenting opinion, Chairman Battista, explaining why he would find the Union's conduct objectionable, noted: "The union agents' belligerent conduct conveyed to the employees at the meeting that the Employer was powerless to enforce its own right to conduct the meeting and to control the premises. Even the hotel's agents were unable to enforce the hotel's property rights. The union agents left only after the police arrived and led them out."
(Chairman Battista and Members Kirsanow and Walsh participated.)
***
Shisler Electrical Contractors, Inc. (3-CA-22768; 349 NLRB No. 82) Ithaca, NY April 27, 2007.
In this FES case, the administrative law judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to consider and hire applicants and paid union organizers Gary Kirton and Gary Fulcher because of their union activities. The Board adopted the judge's finding that the Respondent unlawfully refused to consider and hire Kirton, but reversed his findings as to Fulcher. The Board deferred the General Counsel's request for a tax reimbursement remedy to the compliance stage of this proceeding. Member Schaumber would find that the General Counsel failed to establish a prima facie case of discriminatory refusal to consider and hire Kirton.
As to Fulcher, the Board found that the General Counsel had not satisfied the first prong of the FES refusal-to-consider test because the record does not show that the Respondent excluded him from the hiring process. To the contrary, the Respondent's president accepted Fulcher's employment application and resume, interviewed him at the firm's offices, and discussed Fulcher's experience and qualifications.
However, contrary to the judge, the Board found that the General Counsel had not established all the elements of a discriminatory refusal to hire Fulcher; specifically, that the General Counsel failed to satisfy his burden of showing that the Respondent was hiring or had concrete plans to hire at a time when Fulcher's applications was active.
Contrary to his colleagues (Chairman Battista and Member Schaumber), Member Walsh, dissenting on this issue, would find that the Respondent violated Section 8(a)(3) and (1) by refusing to hire Fulcher. Member Walsh recognizes the existence of language in footnote. 18 of FES, relied on by his colleagues, that places on the General Counsel the burden of showing that an application "would still be regarded as active when [an] opening occurred." However, he would find that an application would "still be regarded as active" if the employer could have chosen to consider it and there is nothing that would have precluded the employer from doing so.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Electrical Workers IBEW Local 241; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Ithaca, June 12-13 and Sept. 27, 2001. Adm. Law Judge Paul Buxbaum issued his decision Jan. 7, 2002.
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United Rentals, Inc. (21-CA-36814, 36930; 349 NLRB No. 83) Pico Rivera, CA April 27, 2007.
Affirming the administrative law judge, the Board found that by discontinuing reviews and increases in 2005 for unit employees at its Pico Rivera, CA facility, the Respondent violated Section 8(a)(5) of the Act. "[T]he Respondent's practice of conducting merit reviews and adjusting wages based on those reviews and other fixed criteria was an established practice regularly expected by its employees, and consequently a term or condition of employment," the Board held.
Since at least 2001, the Respondent's annual practice had been to evaluate employee performance and, effective April 1 of each year, to grant merit-based wage increases. On March 4, 2005, Operating Engineers Local 12 was certified as the bargaining representative of a unit of the Respondent's employees at its facility in Pico Rivera. In 2005, without providing the Union notice and an opportunity to bargain, the Respondent failed to give evaluations and wage increases to Pico Rivera's newly-represented unit employees, though it continued its established practice for the nonunit employees at Pico Rivera and employees at its other facilities.
(Members Liebman, Schaumber, and Kirsanow participated.)
Charges filed by Operating Engineers Local 2; complaint alleged violation Section 8(a)(1) and (3). Hearing at Los Angeles on Nov. 1-2, 2005. Adm. Law Judge William G. Kocol issued his decision Jan. 13, 2006.
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NLRB Law Memo 05/04/2007
by Ross Runkel at LawMemo
NLRB Law Memo 05/04/2007
by LawMemo - World's Best.
Also available by email.
NLRB - Staff summarized 6 decisions.
Harmony Corp. (15-CA-13913, 14102; 349 NLRB No. 74) Baton Rouge, LA April 19, 2007.
The Board held that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to hire or to consider for hire certain applicants on Feb. 22, April 29, May 1, and May 8, 1996, because they openly indicated their support for Electrical Workers IBEW Local 995. It decided that the General Counsel established all three elements of the legal framework set forth in FES, 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), for determining whether an employer has discriminatorily refused to consider or hire individuals because of their union affiliation or activity. First, that the employer was hiring or had definite plans to hire at the time of the alleged unlawful conduct; second, that the alleged discriminatees had experience or training relevant to the requirements of the position, or alternatively, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and third, that antiunion animus contributed to the decision not to hire the alleged discriminatees.
The Board had remanded the proceeding to the administrative law judge in 2000 to reconsider his original decision in light of FES. The judge found that a violation occurred on Feb. 22, but he dismissed the complaint allegations regarding the Respondent's refusal to hire overt union applicants on April 29, May 1 and 8. He concluded that entry into the Respondent's hiring process was accomplished only by speaking to the Respondent's recruiter, Buddy Meaut, that signing the Respondent's applicant log did not constitute entry into the hiring process, and that the applicants who sought employment on April 29, May 1 and 8, did not actually apply for jobs because they did not insist on speaking with Meaut.
The Board disagreed. It noted the lack of evidence showing that the Respondent, through its receptionist or otherwise, ever informed the union applicants of the desirability or importance of speaking with Meaut. Instead, the record shows that the receptionist essentially dictated who spoke with Meaut, endeavored to see to it that overt union applicants did not speak with him, selectively referred the covert applicants to Meaut and falsely advised overt applicants that Meaut was unavailable, and instructed individuals who appeared at the Respondent's office seeking employment to sign the logbooks for job applicants.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by Electrical Workers IBEW Local 995; complaint alleged violation of Section 8(a)(1) and (3). Adm. Law Judge George Carson II issued his decision May 4, 1998, and his supplemental decision Aug. 28, 2000.
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Mickey's Linen & Towel Supply, Inc. (13-CA-43153; 349 NLRB No. 76) Hammond, IN April 20, 2007.
The Board held, in agreement with the administrative law judge, that the Respondent violated Section 8(a)(1) of the Act by making unlawful promises of benefits to employees, that the Respondent did not violate Section 8(a)(1) by disparately enforcing its no-solicitation and distribution policy or by encouraging its employees to sign a decertification petition, and that the Respondent did not violate Section 8(a)(5) by unilaterally changing its access provision.
The Board reversed the judge and found that the Respondent violated Section 8(a)(1) by assisting employees in their attempts to decertify the Union when it performed translations for an employee who was soliciting signatures for a decertification petition.
The Board found that the judge's recommended broad order requiring the Respondent to cease and desist from violating the Act "in any other manner" was not warranted. It substituted a narrow order requiring the Respondent to cease and desist from violating the Act "in any like or related manner." See Hickmott Foods, 242 NLRB 1357 (1979).
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by UNITE-HERE Chicago Midwest Regional Joint Board; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago, July 12-13, 2006. Adm. Law Judge Bruce D. Rosenstein issued his decision Oct. 2, 2006.
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Precipitator Services Group, Inc. (4-CA-24627; 349 NLRB No. 77) Elizabethton, TN April 20, 2007.
The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act on Jan. 23, 1996, when its Field Superintendent, Ken Fortner, implicitly threatened employees David Packer, James Neumane, and Richard Deuhaut with unspecified reprisals when they gave him a letter from the Boilermakers and displayed union insignia; and violated Section 8(a)(3) and (1) by discriminatorily refusing to consider and hire the Union's paid organizer, Millard "JD" Howell, on Jan. 25, 1996, the second time he sought employment. The Board had remanded the case to the administrative law judge in 2000 for further consideration in light of its decision in FES, 331 NLRB 9 (2000), supplemental decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002).
Contrary to the judge, the Board found that the Respondent did not violate the Act by refusing to consider or hire Howell when he first sought employment with the Respondent on or about Dec. 13, 1995, or on Jan. 9 and 10, 1996, when the Respondent hired Packer, Neumane, and Deuhaut; and did not violate Section 8(a)(3) and (1) on Feb. 5, 1996, by discriminatorily refusing to consider and hire union members Ernest Patterson, Michael Manculich, and John LaPoint. The Board concluded that the General Counsel failed to prove that the Respondent unlawfully refused to consider and to hire Howell when he sought employment on Dec. 13, 1995 and failed to prove that the individual to whom Patterson, Manculich, and LaPoint gave their applications was an agent of the Respondent.
Citing Eckert Fire Protection, 332 NLRB 1988 (2000), the judge found that the Respondent unlawfully refused to consider and hire Howell on Jan. 9 and 10, when the Respondent hired the three employees who responded to the newspaper ad for welders, saying Howell's Dec. 13, 1995 "attempt for employment was within 30 days of the noted hiring and was 'fresh.'" The Board disagreed. It noted that here, unlike in Eckert Fire Protection, where the employer considered job applications to be current for 30 days, there was no showing that the Respondent had any such "freshness" policy. The Respondent was free to consider and hire exclusively from among those employees who applied for work in response to the Jan. ad. Howell admitted that after Dec. 13, he did not contact the Respondent about the advertised welder positions and did not attempt to reapply until Jan. 25. The Board, in agreeing with the judge that the Respondent discriminatorily refused to hire Howell on Jan. 25, found that the General Counsel met his burden of proof under FES and that the Respondent failed to show that it would not have hired Howell even in the absence of his union affiliation.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by the Boilermakers; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Philadelphia on May 1, 1997. Adm. Law Judge Richard H. Beddow issued his decision Sept. 5, 1997 and his supplemental decision Oct. 27, 2000.
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SEIU Heathcare Workers West (Kaiser Foundation Health Plan, Inc., et al.) (32-CB-5893-1; 349 NLRB No. 73) Walnut Creek, CA April 17, 2007.
The administrative law judge found, with Board approval, that the Respondent violated Section 8(b)(1)(A) of the Act when Union Representative/Organizer Greg Tegenkamp urged the stewards' council to suspend shop steward Charles Barnes for filing an unfair labor practice charge with the Board, and suspending and then removing Barnes from his position as a steward to the Kaiser Foundation Hospital in Walnut Creek, CA. The judge found "that Respondent failed to prove that its council suspended and removed Barnes for abusing his steward's position in any manner and that assertions to that effect are a pretext designed to mask its retaliation against Barnes for filing an NLRB charge."
(Members Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Charles Barnes; complaint alleged violation of Section 8(b)(1)(A). Hearing at Oakland on Aug. 29, 2006. Adm. Law Judge William L. Schmidt issued his decision Dec. 7, 2006.
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Special Touch Home Care Services, Inc. (29-CA-26661; 349 NLRB No. 75) Brooklyn, NY April 18, 2007.
Members Liebman and Kirsanow accepted the Respondent's revised 38-page exceptions to the administrative law judge's Sept. 15, 2005 decision, but rejected the Respondent's revised 73-page accompanying brief. The Respondent on Nov. 23, 2005 timely filed an exceptions document that was 92 pages long and a 50-page brief in support. By order dated July 6, 2006, the Associate Executive Secretary advised the Respondent's counsel that the arguments in the exceptions combined with the 50 page-brief, exceeded the 75 pages of permitted argument, cited cases for guidance, and afforded the Respondent an opportunity to resubmit exceptions and a brief in compliance with the Board's Rules and Regulations. Members Liebman and Kirsanow noted that the Respondent filed another noncompliant document despite the order. They wrote:
Striking the defective exceptions, however, may impair the Respondent's right under Section 10(e) of the Act to appeal. Under the present circumstances, we believe it strikes a fairer balance to deny the [General Counsel's] motion to strike the exceptions and instead strike the brief. Thus, our ruling on the motion serves to uphold the Board's rules without unduly penalizing the Respondent. Moreover, we do not think that the Respondent will be unfairly prejudiced by our rejection of the brief that was filed on its behalf, given the substantial amount of factual and legal argument contained in the exceptions, which will be considered in our review.
The General Counsel and the Charging Party may file answering briefs and cross-exceptions no later than 14 days from the date of the Board's supplemental order.
Chairman Battista, dissenting in part, did not agree that the Respondent's exceptions were improper. He noted that the Board's rules are not a "model of clarity," as the excepting party must not 'argue' in its exceptions, but must set forth, in the exceptions, the concise "grounds" for the exception. The Chairman believes that the Respondent made a good faith and successful effort "to resolve the dilemma." He disagreed with the majority that eight exceptions—2, 3, 5, 21, 22, 26, 31, and 87—contain argument, noting that all, except 87, challenge the judge's failure to find and give weight to specific alleged facts, which would be relevant to the argument set forth in the brief. Viewing the exceptions as a whole, Chairman Battista found that the General Counsel failed to prove that the Respondent's exceptions were deficient under the Board's Rules. He would accept the exceptions and would not impose any sanctions.
(Chairman Battista and Members Liebman and Kirsanow participated.)
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Young Women's Christian Association of Western Massachusetts (1-CA-42618; 349 NLRB No. 78) Springfield, MA April 18, 2007.
Members Liebman and Walsh affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to reduce to writing and sign a contract reached with Auto Workers Local 2322 and ratified by employees on April 20, 2005, and by withdrawing recognition from the Union when it received evidence that the Union had lost majority support after the parties had reached a final agreement.
Chairman Battista, dissenting, found that the April 20 agreement did not render unlawful the withdrawal of recognition. Citing Appalachian Shale Products Co., 121 NLRB 1160, 1161 (1958), he noted that the Board has held that a document containing substantial terms and conditions of employment can serve as a contract bar only if it is signed by the parties. The Chairman decided that the contract-bar principles are applicable to this case, saying if there is no signed contract as a bar, an employer can withdraw recognition based upon the union's loss of majority status. He acknowledged that an oral agreement followed by an uncertainty or doubt as to the union's majority status, will not privilege a refusal to sign a contract. Chairman Battista pointed out however that in this case, the oral agreement was followed by the fact of loss of the union's majority status and that under Levitz Furniture, 333 NLRB 717 (2001), an employer can withdraw recognition based on the fact of loss of majority status. The only exception is that majority status cannot be challenged during the term of a sign contract, which is not applicable here.
Members Liebman and Walsh rejected their colleague's contention, also advanced by the Respondent, that because, under Appalachian Shale, an unwritten, unsigned agreement does not bar the Board from processing an employee decertification petition, such an agreement should not preclude an employer's unilateral withdrawal of recognition, based on evidence of the union's actual minority status. They explained:
The Respondent and the dissent fail to recognize the crucial distinction between employees challenging a union's representational status by asking the Board to hold an election and an employer withdrawing recognition from a union unilaterally. The Board, with court approval, has repeatedly stated that the decertification election process, with the safeguards for Section 7 rights, is the preferred method of resolving questions regarding employees' support for an incumbent union. See Levitz, supra at 723, 727. Employer self-help, by contrast, has always been judged by different standards. As the judge pointed out, the distinction that the Board makes between the effect of an unwritten, unsigned agreement concerning, on the one hand, the processing of a decertification election petition, and, on the other, an employer's withdrawal of recognition, is fully consistent with the Board's duty to balance stability in collective-bargaining relationships against the effectuation of employees' representational desires.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Auto Workers Local 2322; complaint alleged violation of Section 8(a)(1) and (5). Adm. Law Judge David I. Goldman issued his decision Feb. 10, 2006.
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