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NLRB Law Memo 05/14/2007
by Ross Runkel at LawMemo
NLRB Law Memo 05/14/2007
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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.)
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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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