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NLRB Law Memo 06/26/2007
by Ross Runkel at LawMemo
NLRB Law Memo 06/26/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 4 decisions.
Mid-Wilshire Healthcare
Center d/b/a Fidelity Healthcare
and Rehab Center (21-RC-20895; 349
NLRB No. 120)
El Monte, CA
June 4, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/349/v349120.htm
Applying
Harborside
Healthcare, Inc., 343 NLRB
906 (2004), the
Board concluded, in
agreement with the
hearing officer, that
Housekeeping and Maintenance
Supervisor Marlon Dayot's conduct was
insufficient to warrant
setting aside the
election held on
June 13, 2006. The Board
certified Service Employees
Local 434B, winner of
the election by
a 45-to-25 vote, as
the exclusive representative
of certain employees working
at the Employer's El Monte,
CA facility.
There were no
exceptions to the
hearing officer's
findings that Dayot
is a statutory
supervisor. In
its objection, the
Employer alleged that
Dayot "engaged
in prounion campaigning,
which tainted the environment
for a fair
election."
The Board held
that the Employer,
as the objecting
party, failed to
carry its burden
of showing that
the election was
materially affected
by Dayot's conduct. It agreed
with the hearing
officer
that
the evidence
failed
to
substantiate the
Employer's
allegations that
Dayot held
meetings of
prounion employees
in his
office;
that
Dayot bought
lunch for
prounion employees;
and that
Dayot locked
his office
(in which
work supplies
were stored)
to retaliate
against
employees
Linda Filimaua
and Mary
Smay after
they stopped
supporting the
Union.
It also
adopted
the
hearing
officer's conclusions
that the
Memorial Day
barbeque that
Dayot attended
was not
a union
function and
that Dayot's introduction
of a
schedule for
employees' breaks and
lunches
was
not related
to Filimaua
and Smay's decision
to stop
supporting the
Union.
Based on
her dissenting
views in
Haborside,
Member
Liebman
noted that
Dayot's
conduct
was
clearly
not
objectionable.
She found,
however, that
even applying
Harborside,
Dayot's
conduct
was
insufficient to
justify
setting
aside the
election.
(Chairman
Battista and
Members
Liebman
and Kirsanow
participated.)
***
John
T. Jones
Construction Co., Inc. (17-CA-22607, et
al.; 349 NLRB
No. 119) Springfield,
MO June 4,
2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/349/v349119.htm
In
a supplemental decision
and order, the majority,
Members Liebman and
Walsh, affirmed the
administrative law
judge's finding that
contributions to benefit
funds made by
interim employers on
behalf of the
discriminatees are
not an appropriate offset
against the discriminatees'
gross backpay (citing Tualatin
Electric, Inc.,
331 NLRB 36,
42-43 (2000),
enfd. 253 F.3d
714 (D.C. Cir.
2001). The
majority noted the
Respondent provided
no benefits to employees,
only wages; the
interim benefits received
by the discriminatees
were not available as
wages. "In
these circumstances,
the Respondent has failed
to show that
the wages it
paid are equivalent
in nature to
the interim benefits
received by the
discriminatees," it
stated.
In dissent, Chairman
Battista found merit
in the Respondent's contention that
the interim employers'
fringe benefit contributions
are an offset. He did
not agree that
Tualatin Electric
constituted a
compelling precedent
on this issue, pointing
out: "The
judge in that
case said the
fringe benefits paid
by the interim
employer were like
supplementary income,
and the judge therefore
declined to offset
such benefits from
gross backpay.
He cited
no case in
support of this
position." Chairman
Battista thought the
judge's finding
that interim contributions
are not an
offset against gross
backpay would result
in a "windfall"
to discriminatees.
(Chairman
Battista and Members
Liebman and Walsh
participated.)
Hearing at
Springfield, March
1 and 2, 2006. Adm. Law
Judge Lana H.
Parke issued her
decision June 8,
2006.
***
Medical
Express Ambulance
Service, Inc. (13-CA-43531;
350 NLRB No.
1) Skokie, IL
June 8, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v3501.htm
Affirming the administrative law judge's decision, the Board held that the Respondent violated Section 8(a)(1) of the Act by interrogating an employee about the union activities of other employees, soliciting an employee to report on the union activities of other employees, and promising benefits to an employee if she provided information about the union activities of other employees.
The Board substituted
a narrow cease-and-desist provision
for the broad
order recommended by
judge and a
new notice because
it has not
been shown that
the Respondent has
a proclivity to
violate the Act
or has engaged
in such egregious
or widespread misconduct
as to demonstrate
a general disregard
for employees' statutory
rights.
(Members
Liebman, Schaumber,
and Kirsanow participated.)
Charge filed
by EMTS and
Paramedics, SEIU/NAGE;
complaint alleged
violation of Section
8(a)(1). Hearing
at Chicago on
Nov. 29, 2006. Adm. Law
Judge Bruce D.
Rosenstein issued his
decision Feb. 9,
2007.
***
University
Moving &
Storage Co. (7-CA-47352,
47750; 350 NLRB
No. 2) Farmington
Hills, MI June
11, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v3502.htm
The
Board ruled that the
allegations regarding
the Respondent's denial
of sick leave
and vacation pay
to locked out
employees after the
expiration of the
parties' contract are
timely and adopted
the administrative
law judge's finding
that the denial
violated Section 8(a)(5)
of the Act,
without passing on
the judge's
finding that the
denial also violated
Section 8(a)(3) because
it would not
affect the remedy. Member Liebman
would find that
the Respondent's
actions violated Section
8(a)(3) for the
reasons stated by
the judge.
The Board extended
the limited remedy
recommended by the
judge to all
unit employees who
had accrued leave,
regardless of whether
they requested it.
The judge
found that employees
who did not
request vacation leave
prior to the
expiration of that
leave had forfeited
their rights to
the leave under
the contract.
The Board
disagreed, concluding
that the Respondent created
an impression of
futility that reasonably
would have discouraged
employees from requesting
the leave to
which they were
entitled. It
noted that following
the expiration of
the contract, the
Respondent ceased making
payments for accrued
sick leave, which
had in previous
years been paid
to employees at
the end of
each contract year. The Board's remedy runs
to all unit
employees who had
accrued vacation and
sick leave at
the time of
the contract's
expiration.
Chairman Battista and
Member Schaumber, concluding
that the Respondent acted
consistent with its
past practice, reversed
the judge's
finding that the
Respondent's refusal
to release Timothy
Johns and John
Nagel for long-distance driving certification
with other employers
during the lockout
violated Section 8(a)(3). They noted
the Respondent's
consistently applied
policy is to issue
such releases only
to employees who
have terminated their
employment. Member
Liebman, dissenting
on this issue, concluded
that the Respondent's asserted reasons
for denying Johns
and Nagel a
certification release
were pretextual and that
the denial was
unlawfully motivated
and violated Section 8(a)(3).
(Chairman
Battista and Members
Liebman and Schaumber
participated.)
Charge filed by Teamsters Local 243;
complaint alleged violation of Section 8(a)(1), (3), and (5).
Hearing at Detroit, April 26-27, 2005.
Adm. Law Judge Paul Bogas issued his decision Aug. 29, 2005.
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NLRB Law Memo 06/15/2007
by Ross Runkel at LawMemo
NLRB Law Memo 06/15/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 8 decisions.
Aero Ambulance Service, Inc. (22-CA-20950; 349 NLRB No. 115) Hackensack, NJ May 31, 2007.
The Board ordered that the Respondent pay to Guy Greene the sum of $19,793.13 and to Michael Goldblatt the sum of $23,821.99 to satisfy its obligations as found in the underlying unfair labor practice decision reported at 327 NLRB 639, enfd. mem. 302 F.3d 816 (1999). Member Liebman, dissenting in part, would affirm the administrative law judge's finding that Goldblatt's backpay period commenced with his discharge on Oct. 6, 1995 and continued until Jan. 31, 2000, when it terminated based on the Respondent's valid offer of reinstatement and thus, the Respondent owes Goldblatt $44,358.65.
Chairman Battista and Member Schaumber agreed with the judge that Goldblatt's backpay commenced with his discharge and continued during his interim employment as an EMT-during which interim employment period Goldblatt properly mitigated his damages. However, they concluded, contrary to the judge, that Goldblatt's backpay period tolled on Feb. 9, 1998, finding that after Feb. 9, Goldblatt was unable or unwilling to perform work substantially equivalent to his EMT duties for the Respondent. Consequently, Chairman Battista and Member Schaumber held that the Respondent owed Goldblatt $23,821.99 in backpay, and not $44,358.65 as found by the judge.
Member Liebman noted that the majority mistakenly discounted evidence (1) that Goldblatt could, and did work after Feb. 1998; and (2) that Goldblatt's physical condition was largely based on his having used a worn-out prosthesis, whose replacement he could not afford, after being unlawfully discharged. She stated: "In sum, the actual evidence . . . is that Goldblatt could and did work after applying for disability benefits and obtaining a new prosthesis for his leg. The record does not establish that he was unable to work, nor would I engage in speculation on that point. The sole question, then, is whether Goldblatt's efforts to find interim employment were sufficient." Member Liebman agreed with the judge's finding that they were.
(Chairman Battista and Members Liebman and Schaumber participated.)
Adm. Law Judge Raymond P. Green issued his second supplemental decision Sept. 21, 2001.
***
Tower Industries, Inc., d/b/a Allied Mechanical (31-CA-26605, et al.; 349 NLRB No. 117) Ontario, CA May 31, 2007.
The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by telling Marcelo Pinheiro that the Respondent would go by the employee handbook regarding seniority because of the Steelworkers' organizing campaign and the Respondent's trouble with the Board, and violated Section 8(a)(1), (3), and (4) by disciplining employee Edwin Shook and by denying Pinheiro's request to transfer to the night shift. It reversed the judge's findings that the Respondent unlawfully denied Pinheiro overtime, issued him a written disciplinary warning, and suspended and discharged him.
Member Schaumber dissented from the finding that the Respondent violated Section 8(a)(1), (3), and (4) by refusing to transfer Pinheiro to a night-shift position operating its 5-Axis machine. He concluded that the evidence established that Pinheiro did not meet the Respondent's standards as a 5-Axis operator and that the Respondent would have reached the same decision even in the absence of Pinheiro's union activity.
Chairman Battista and Member Walsh wrote in finding that the Respondent failed to establish that it would have denied Pinheiro's transfer request in the absence of his union activity:
Our dissenting colleague asserts that the Respondent did not transfer Pinheiro to the night-shift job because of Pinheiro's alleged difficulty in operating the 5-Axis machine. However, it is significant that the Respondent did not give that as the reason for the failure to transfer Pinheiro. Rather, the Respondent told Pinheiro that he was more productive on the day shift. However, we have found no evidence to support that claim. More likely, the Respondent was suggesting Pinheiro would do better during the day because he could be watched more carefully during the day.Further, even if we take into account the belated explanation of poor performance on that machine, the explanation does not withstand scrutiny.
Chairman Battista and Member Walsh also disagreed with Member Schaumber's conclusion that the Respondent's selection of Steven Butkus over Pinheiro to fill the 5-Axis evening-shift position was a legitimate exercise of its business judgment.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charges filed by Steelworkers; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Los Angeles, April 12-14, 2004. Adm. Law Judge Mary Miller Cracraft issued her decision July 15, 2004.
***
Correctional Medical Services, Inc. (3-CA-23855; 349 NLRB No. 111) Albany, NY May 31, 2007.
The issues presented based on a stipulation of facts are whether the Respondent violated Section 8(a)(1) of the Act by interrogating employees about their participation in certain conduct, Section 8(a)(3) by terminating them for that conduct, and Section 8(a)(1) by subsequently threatening employees with discipline if they engaged in such conduct; and whether the conduct amounted to picketing within the meaning of Section 8(g). Chairman Battista and Member Schaumber dismissed the complaint. Member Liebman dissented.
On April 1, 2002, the Respondent began operating the medical clinic at the Albany County Correctional Facility, an 840-inmate facility in Albany, NY, under a 3-year contract with the State of New York. AFSCME Local 1000 represents the correctional officers at the jail, who are employed by the State of New York. On Aug. 15, 2002, the Union requested that the Respondent recognize it as the representative of all clinic employees except the physician, the supervisors, and the office clerical. The Respondent rejected the request. On Sept. 12, under the direction of the Union and another Albany area labor organization, about 20 individuals, including 5 clinic employees undertook action in support of the Union's demand for recognition. Four of the employees had completed their shifts and were off duty; the fifth took part during his dinner break and returned to work afterwards. All were in uniform. The action lasted about 40 minutes, during which the 20 individuals continually walked in a circle across the jail's main entrance and exit.
Chairman Battista and Member Schaumber found that the conduct constituted picketing within the meaning of Sec. 8(g), that the Union failed to comply with the notice requirements of that section and, therefore the Union, under whose auspices the picketing was conducted, violated Sec. 8(g). They wrote: "[T]he conduct of the participating employees and other individuals had the potential to influence other employees to withhold their labor, or to deter suppliers or their employees from attempting to enter the clinic. Those potential consequences are sufficient to bring the Union's conduct within the ambit of Section 8(g). See, e.g., United Hospitals of Newark, 232 NLRB at 443 ('while the Union may attempt to . . . prevent a work stoppage or disruption of services, it cannot control the actions or reactions that the mere presence of a picket line may induce in others.')."
Chairman Battista and Member Schaumber held that the employees who engaged in the picketing were not protected by the Act and that the Respondent did not violate the Act by discharging them. In dismissing the 8(a)(1) allegations, they noted that the alleged threats and coercive interrogations occurred after the employees engaged in the unlawful and unprotected picketing, saying: "As the General Counsel appears to concede, if the employee conduct that was the subject of the threats and interrogations was itself unprotected, it was not unlawful for the Respondent to respond in that manner."
Member Liebman said the Act plainly forecloses the discharge of employees where the union has failed to provide an 8(g) notice of their picketing. She wrote: "In enacting the Health Care Amendments, which added Section 8(g) and amended Section 8(d) to incorporate the 8(g) notice period, Congress decided both what conduct to proscribe and what sanctions would be applicable to which conduct. Unlike the Section 8(b) context, it did not leave the Board free to fashion its own rule with respect to sanctions. Rather, by restricting the loss-of-status provision in Section 8(d) to employees who strike in violation of Section 8(g)-and deliberately omitting picketing as a ground for loss of status-Congress clearly expressed its intention to preclude employers from taking action against individual picketing employees."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charge filed by Civil Service Employees Local 1000, AFSCME; complaint alleged violation of Section 8(a)(1) and (3). Parties waived their right to a hearing.
***
Country Lane Construction, Inc. (7-CA-44949; 349 NLRB No. 116) Goshen, IN May 31, 2007.
Pursuant to the noncompliance provisions of a settlement agreement, the Board found that the allegations of the compliance specification are true, granted the General Counsel's motion for summary judgment, concluded that the net backpay due discriminatee Jeff Blair is as stated in the compliance specification, and ordered the Respondent to make Blair whole by paying him $13,090.
In a 2003 decision and order reported at 339 NLRB 1321, the Board directed the Respondent to make Blair whole for any loss of earnings and other benefits suffered as a result of the Respondent's refusal to hire him in violation of Section 8(a)(3) and (1) of the Act. On April 23, 2004, the U.S. Court of Appeals for the Sixth Circuit enforced in full the Board's decision. 95 Fed. Appx. 817. Subsequently, the Regional Director issued a compliance specification alleging the amount due under the terms of the Board's Order. On Jan. 16, 2007, the Respondent entered into a settlement agreement, approved by the Acting Regional Director on Jan. 17, 2007, that required the Respondent to make Blair whole by paying him backpay no later than Jan. 31, 2007. The Respondent has not submitted any of the backpay required under the terms of the settlement agreement. On May 2, 2007, the Regional Director reissued the compliance specification pursuant to the noncompliance provisions of the settlement agreement.
(Members Liebman, Schaumber, and Walsh participated.)
General Counsel filed motion for summary judgment May 8, 2007.
***
Elevator Constructors Local 2 (13-CD-760; 349 NLRB No. 112) Chicago, IL May 31, 2007.
Relying on the factors of collective-bargaining agreements, employer preference and past practice, area and industry practice, and economy and efficiency of operations, the Board decided that employees of Kone, Inc., represented by Elevator Constructors Local 2, rather than those represented by Iron Workers Local 63, are entitled to perform the work in dispute. That work is the installation of elevator door frames and related material, including off-loading, handling, hoisting, and installation of the sill, sill supports, struts, header, door jamb/buck, door frame and fascia at the Trump Tower, 401 N. Wabash, in Chicago, IL.
(Chairman Battista and Members Schaumber and Walsh participated.)
***
Gallup, Inc. (16-CA-19898, et al.; 349 NLRB No. 113) Houston, TX May 31, 2007.
The Board reversed the administrative law judge and found that the Respondent violated Section 8(a)(1) of the Act when Supervisor Gisela Uria-Ruiz told prounion interviewers that they could only distribute their literature with the permission from a supervisor. The judge found that Uria-Ruiz's statement "applied to all distributions" and therefore did not constitute disparate enforcement. The Board disagreed, saying "although Uria-Ruiz may not have referred explicitly to 'union' literature when she imposed an oral restriction on distribution, she was applying a new and restrictive policy specifically to a union distribution." The Respondent had not previously restricted any nonunion-related distribution or posting.
In another reversal of the judge, the Board found merit in the General Counsel's exception to the judge's failure to find that the Respondent, by Supervisor Heidi Roberts, violated Section 8(a)(1) on three occasions when she told employees who acted as mentors for new interviewer trainees not to talk to the trainees about the Union during training sessions. The Board noted that antiunion mentors wore antiunion T-shirts and buttons and that Roberts addressed only the prounion mentors, who wore no insignia, and told them to refrain from talking about the Steelworkers.
The Board upheld the judge's dismissal of the complaint allegation that on May 19, 1999, Supervisor Heidi Roberts removed union flyers from employees' cubicle walls and desks, and told employees they could not post union literature. The Board noted that the record evidence pertained only to other misconduct allegedly committed by Roberts on different dates and that the General Counsel neither amended the complaint in this regard nor cited any evidence to support the complaint allegation.
No exceptions were filed to the judge's findings that the Respondent violated Section 8(a)(1) by, among others, restricting employees from posting, distributing, or possessing union-related literature; by removing and confiscating such material; by requiring employees to notify a supervisor before distributing union literature; and by instructing new employees to report attempts by other employees to speak to them about union matters.
(Chairman Battista and Members Schaumber and Kirsanow participated.)
Charges filed by Steelworkers; complaint alleged violation of Section 8(a)(1). Hearing at Houston for 16 days between Nov. 16, 1999 and June 27, 2000. Adm. Law Judge Richard J. Linton issued his decision May 25, 2001.
***
Madison Industries, Inc. (21-CA-34759, 34927; 349 NLRB No. 114) Los Angeles, CA May 31, 2007.
Chairman Battista and Member Schaumber found, contrary to the administrative law judge, that the parties' relationship was governed by Section 8(f) of the Act, rather than by Section 9(a), and that the Respondent lawfully repudiated its relationship with, and lawfully refused to provide requested information to, the Union following the expiration of their bargaining agreement. The majority dismissed the complaint in its entirety.
In dissent, Member Liebman found that the Respondent violated Section 8(a)(5) and (1), as alleged, by refusing to bargain and to provide information relevant to bargaining. She found that the language of the recognition clause in the parties' contract meets the requirements of Staunton Fuel & Material, 335 NLRB 717 (2001), for establishing a relationship under Section 9(a), (as opposed to Section 8(f)), and the Respondent's repudiation of that relationship thus was unlawful.
The majority, applying the Staunton Fuel standard, examined the parties' entire agreement to determine whether a 9(a) relationship was intended. They wrote after deciding that the General Counsel has not established that the Agreement reflects a Section 9(a) relationship: "Specifically, the Agreement contains a provision waiving the Respondent's right to file a petition for an election with the Board during the term of the Agreement. If the agreement were a 9(a) agreement, there would be no need for such a provision. That is, an agreement governed by Section 9(a) bars an employer from filing a petition for an election during its term. By contrast, a petition can be processed during the life of an 8(f) contract. Thus, it would appear that the parties contemplated an 8(f) contract, and yet wished to waive the Respondent's right to file a petition during the term of the Agreement." Absent extrinsic evidence to clarify the ambiguity of the contractual language, the General Counsel has not rebutted the 8(f) presumption, the majority held.
Member Liebman said her colleagues' approach "stretches the entire-agreement rule too far." She explained: "This is not a dispute over a single term that could arguably be interpreted in two different ways. Where, as here, a contract provision clearly addresses an issue with an unambiguous meaning, there can be no ambiguity unless another provision squarely contradicts it. The recognition clause in this contract states categorically that the Union is the 'majority representative' and that the Employer recognizes it as such. A separate clause that only waives the Respondent's right to file a Board petition-which would merely be consistent with the Union's having Section 8(f) status-simply does not negate or contradict the recognition clause in a manner that creates a genuine ambiguity."
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Iron Workers District Council of the State of California and Vicinity; complaint alleged violation of Section 8(a)(1) and (5). Parties waived their right to a hearing. Adm. Law Judge Jay R. Pollack issued his decision Sept. 26, 2002.
***
Oil Capitol Sheet Metal, Inc. (17-CA-19714; 349 NLRB No. 118) Tulsa, OK May 31, 2007.
The Board announced new evidentiary standards for determining the duration of the backpay period when the discriminatee is a "salt."
In cases of this kind, a union has sent members to seek employment from a nonunion employer with the intent of obtaining employment and then organizing the employer's employees. Those members are commonly referred to as "salts." Under the law, if the employer discharges or refuses to hire the salt because of his union affiliation or activity, the employer's conduct is unlawful.
In this decision, the Board found unanimously that the employer, Oil Capitol Sheet Metal, Inc., violated Section 8(a)(3) and (1) of the Act by refusing to hire a salt. The Board split, however, over the remedy to be ordered.
Prior to this decision, the remedy for an unlawful discharge or refusal to hire included the employer's payment of backpay to the employee for the period from the unlawful act until the employer made a valid offer of reinstatement (or instatement, in the case of an unlawful refusal to hire). The Board applied a presumption that, if hired, the "salt" would have stayed on the job for an indefinite period. If the job was a construction job, the Board applied a further presumption that the employer would have transferred the employee to other jobsites when the job from which he was discharged (or for which he should have been hired) came to an end.
Chairman Battista and Members Schaumber and Kirsanow declined to continue to apply those presumptions. The majority reasoned that they are inconsistent with the reality of salting. The reality is that salts, when hired, stay on the job until they succeed in their organizational effort or reach the point where such efforts are unsuccessful. In either situation the union typically then sends the salt to seek to organize the employees of another nonunion employer.
The majority recognized that this will not always be the case. There may be instances where the union will permit a member to work for the targeted employer for an indefinite period. However, the Board majority view is that the union is in the better position to explain its intentions, and thus the burden to establish the fact should be on the union. The burden should not be on the employer to prove the contrary.
In its opinion, the majority stated:
The traditional presumption that the backpay period should run from the date of discrimination until the respondent extends a valid offer of reinstatement loses force both as a matter of fact and as a matter of policy in the context of a salting campaign. Indeed, as discussed below, rote application of the presumption has resulted in backpay awards that bear no rational relationship to the period of time a salt would have remained employed with a targeted nonunion employer. In this context, the presumption has no validity and creates undue tension with well-established precepts that a backpay remedy must be sufficiently tailored to expunge only actual, not speculative, consequences of an unfair labor practice, and that the Board's authority to command affirmative action is remedial, not punitive.
In reaching its conclusions, the majority relied in part on the Fourth Circuit's decision in Aneco v. NLRB, 285 F.3d 326, where the court deemed "indefensible" the Board's assumption that the hired salt would have worked for the respondent employer for 5 years.
The majority acknowledged that the parties to the case before it had not sought a reversal of Board law. However, the Board said that it was its responsibility to ensure that its remedies are compensatory and not punitive.
The majority also held that instatement to the job would not be ordered where the "salt" would have left the job prior to the Board's decision.
In dissent, Members Liebman and Walsh criticized the majority for overturning Board precedent endorsed by two appellate courts and rejected by none, without any party having raised the issue, without the benefit of briefing, and without any sound legal or empirical basis. The dissent would have continued to treat salts as the Board treats all other employees who are subjected to employment discrimination. The dissent stated that, in backpay cases, it is fundamental that the Board resolves factual uncertainties against the wrongdoer, the employer. This approach is not unique to the Board. Rather, as the Supreme Court stated in Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265 (1946), the "most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created." In the view of the dissenting members, the majority's new approach not only violates that well-established principle of resolving remedial uncertainties against the wrongdoer, but it treats salts "as a uniquely disfavored class of discriminatees, notwithstanding the Supreme Court's ruling that salts are protected employees under the National Labor Relations Act. NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995)."
The dissent also stated that the majority's reasons for adopting its new evidentiary approach were "dubious at best," and that it was unreasonable to presume that salts would leave employment at some fixed point in time, known by a union in advance. For those same reasons, the dissenters found that there was no justification for the majority's departure from the presumption that a salt, like any other employee at a construction site, would have been transferred to one of the employer's other projects upon completion of the project at the site where the discrimination occurred.
(Full Board participated.)
Charges filed by Sheet Metal Workers Local 270; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Tulsa for 2 days in 1999. Adm. Law Judge William N. Cates issued his decision Jan. 3, 2000.
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NLRB Law Memo 06/07/2007
by Ross Runkel at LawMemo
NLRB Law Memo 06/07/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 6 decisions.
A.M. Ortega Construction, Inc. (21-CA-37055, 37167, and 21-RC-20823; 349 NLRB No. 105) San Diego, CA May 21, 2007.
The Board adopted pro forma the administrative law judge's overruling of the Joint Petitioners' objection alleging that the Respondent engaged in objectionable conduct by granting preferential access to the Intervenor.
The election was held on Sept. 21, 2005, pursuant to a Stipulated Election Agreement. The tally of ballots showed 17 votes for the Joint Petitioners, 21 votes for the Intervenors, and no employees voting against representation, with 3 nondeterminative challenged ballots.
There were no exceptions to the judge's findings that the Respondent violated Section 8(a)(1) of the Act by telling employees they should quit if they supported the Joint Petitioners, telling employees that it would be futile for them to support the Joint Petitioners, threatening employees that they would be fired because they support the Joint Petitioners, and threatening employees that it would close its doors rather than sign a contract with the Joint Petitioners. Finally, there were no exceptions to the judge's dismissal of the allegation that the Respondent violated the Act by interrogating employees.
(Members Schaumber, Kirsanow, and Walsh participated.)
Charges filed by Laborers Southern California District Council; complaint alleged violation of Section 8(a)(1). Hearing at San Diego, June 26-28, and Aug. 7, 2006. Adm. Law Judge William G. Kocol issued his decision Nov. 16, 2006.
***
New Concept Solutions, LLC (5-CA-30312; 349 NLRB No. 106) Baltimore, MD May 25, 2007.
Affirming the administrative law judge, the Board found that the Respondent violated Section 8(a)(3) of the Act by failing to hire bargaining unit employees of Leaseway Motorcar Transport Co., the predecessor employer, to avoid having to recognize and bargain with Teamsters Local 557. The Board further held that Respondent, as the legal successor to Leaseway, violated Section 8(a)(5) by unilaterally setting initial terms and conditions of employment.
(Members Liebman, Schaumber, and Kirsanow participated.)
Charge filed by Teamsters Local 557; complaint alleged violation of Section 8(a)(1), (2), (3), and (5). Hearing at Baltimore, Oct. 30-31 and Nov. 1, 18, and 19, 2002. Adm. Law Judge C. Richard Miserendino issued his decision Aug. 12, 2003.
***
Northeast Beverage Corp. (34-CA-10139, 10156; 349 NLRB No. 110) Bristol, CT May 25, 2007.
The unfair labor practice allegations in this case arose in 2001, out of the Respondent's purchase of two beverage distributorships. The following year, the Respondent closed the smaller, unionized facility, B. Vetrano Distributors, and relocated and consolidated its operations with those at the larger nonunionized facility, Burt's Beverages. Before the closing, the Respondent and the Union engaged in bargaining over the effects of the Vetrano closing. During one such bargaining session, on May 29, 2002, eight Vetrano delivery drivers, six of whom were scheduled to drive that day, walked off the job and drove to the union hall to seek information at the negotiating session about their job prospects. They were away from their jobs for more that 3 hours. The Respondent suspended for the rest of that day the six drivers who were to be at work and subsequently terminated five of them for their walkout. It subsequently refused to consider the five discharged drivers for hire or to hire them at Burt's.
The administrative law judge found that the Respondent violated Section 8(a)(1) of the Act by threatening the drivers with discipline and discharge, violated Section 8(a)(1) and (3) by suspending and discharging the drivers, and also violated Section 8(a)(1) and (3) by refusing to consider for hire, and refusing to hire, the five discharged drivers. Chairman Battista and Member Liebman adopted these findings. In dissent, Member Schaumber would reverse the judge and dismiss the allegations because he found that the walkout by these represented employees was not protected. Member Schaumber concluded that the Respondent would have discharged these five drivers and refused to rehire them even in the absence of the alleged plan to avoid employing a significant number of union-represented employees at the merged Burt's facility.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Teamsters Local 1035; complaint alleged violation Section 8(a)(1) and (3). Hearing at Hartford and New Haven, Dec. 9, 2002 and Jan. 17, 2003. Adm. Law Judge Eleanor MacDonald issued her decision Aug. 7, 2003.
***
Albert Eaddy d/b/a Recana Solutions (16-RC-10754; 349 NLRB No. 109) Dallas, TX May 25, 2007.
The Board found, contrary to the Regional Director, that Recana Solutions is an employer of the petitioned-for temporary day laborers; reinstated the petition filed by Service Employees Local 100; and remanded the case to the Regional Director for further processing.
Recana Solutions (Recana) is a sole proprietorship. In January 2005, Recana entered into a 3-year, $6 million contract with the City of Dallas, Texas (the City), to provide temporary day laborers to work in the City's sanitation department. The Regional Director found that Recana is not "the" employer of the petitioned-for employees because, in her view, Recana "plays no actual role in the employment relationship with" the temporary day laborers. Contrary to the Regional Director, the Board found that Recana has control of some matters relating to the employment relationship involving the petitioned-for employees and, therefore, is an employer of the employees.
The Board explained, in reversing the Regional Director, that the issue is not whether Recana is "the" employer of the temporary day laborers the Petitioner seeks to represent, but rather whether Recana, a supplier of temporary labor, is "an" employer, within the meaning of Section 2(2) of the Act of the employees. See Management Training Corp., 317 NLRB 1355 (1995). In Management Training, the Board held that where a government entity controls most of the petitioned-for employees' terms and conditions of employment, the Board's assertion of jurisdiction over a private company with close ties to that exempt governmental entity would be based on whether the company itself meets the definition of "employer" under Section 2(2) of the Act, and whether such an employer meets the applicable monetary jurisdictional standards. The parties stipulated in this case that Recana satisfies the Board's monetary standards for asserting jurisdiction. Accordingly, the Board found that Recana is an employer of the petitioned-for employees and meets the Management Training test.
(Members Liebman, Schaumber, and Kirsanow participated.)
***
Sweetener Supply Corp. (13-RC-21492; 349 NLRB No. 104) Brookfield, IL May 23, 2007.
The Board reversed the hearing officer's recommendations to sustain the Petitioner's challenges to the ballots of Michael Pew, Mark Pelafas, and David Cohen. The primary issue is whether they were eligible to vote in a second election held on July 14, 2006. The eligibility cut off date for the election was June 18. The Employer timely submitted an updated Excelsior list that included the names of Pew, Pelafas, and Cohen. At the election, however, the Board agent stated that the updated Excelsior list was not in the file and that she would use instead the list from the first election. The Board agent challenged the ballots of Pew, Pelafas, and Cohen on the basis that their names were not on that list.
The hearing officer found that there was no evidence that Pelafas, Pew, or Cohen performed any bargaining-unit work on June 18. Accordingly, she concluded that none of the three employees performed bargaining-unit work during the eligibility period.
However, the Board held that "the burden of proof rests on the party seeking to exclude a challenged individual from voting," citing Golden Fan Inn, 281 NLRB 226, 230 fn.24 (1986).
The record showed that the three employees were in training on June 18 but did not establish that these employees did not perform any bargaining-unit work on June 18, either as part of the training or in addition to the training.
Therefore, the Petitioner failed to meet its burden and the Board overruled the challenges.
(Members Liebman, Schaumber, and Kirsanow participated.)
***
Valley Central Emergency Veterinary Hospital (4-CA-33631, et al.; 349 NLRB No. 107) Whitehall, PA May 23, 2007.
The Board majority of Members Liebman and Walsh agreed with the administrative law judge's finding that the Respondent violated Section 8(a)(5) of the Act when it failed to abide by the Tentative Agreement negotiated on January 6, 2005, including the agreement's strike settlement terms. The majority found that on January 6, 2005, after meeting with a Federal mediator, the parties reached a Tentative Agreement which contained terms and conditions of employment. The Tentative Agreement also provided that the striking employees were to return to work on their former shifts commencing on January 7.
In dissent, Chairman Battista disagreed that a contract was formed when the Union agreed on January 6 to accept the Respondent's last offer. He noted that the Tentative Agreement was contingent on the approval of the complete agreement by the Respondent's Board of Directors. "Thus, since there never was an approval by the Respondent's board of directors, there never was a contract" Chairman Battista stated.
Member Liebman and Walsh stated:
[W]e interpret the Tentative Agreement, as a matter of law, to include both the Respondent's promise that it would present the Agreement to its board of directors and the promise that the Board would act lawfully in accepting or rejecting the Agreement. In any event, we cannot accept the potential consequences of the dissent's analysis, which would permit one bargaining party, acting unilaterally and in bath faith, to frustrate a contractual condition.
(Chairman Battista and Members Liebman and Walsh participated.)
Charges filed by AFSCME Local 488; complaint alleged violation Section 8(a)(1), (3), and (5). Hearing at Philadelphia, Aug. 9, 2005. Adm. Law Judge Richard A. Scully issued his decision Dec. 14, 2005.
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NLRB Law Memo 06/05/2007
by Ross Runkel at LawMemo
NLRB Law Memo 06/05/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB changes evidence standard in salting backpay cases.
Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (05/31/2007)
Here is the full NLRB press release:
Tuesday, June 5, 2007
NLRB ANNOUNCES NEW EVIDENTIARY STANDARDS FOR ESTABLISHING DURATION OF BACKPAY PERIOD IN CERTAIN DISCRIMINATION CASES
In Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118, the National Labor Relations Board has announced new evidentiary standards for determining the duration of the backpay period when the discriminatee is a "salt."
In cases of this kind, a union has sent members to seek employment from a nonunion employer with the intent of obtaining employment and then organizing the employer's employees. Those members are commonly referred to as "salts." Under the law, if the employer discharges or refuses to hire the salt because of his union affiliation or activity, the employer's conduct is unlawful.
In this decision, the Board found unanimously that the employer, Oil Capitol Sheet Metal, Inc., violated Section 8(a)(3) and (1) of the National Labor Relations Act by refusing to hire a salt. The Board split, however, over the remedy to be ordered. The decision is signed by Chairman Robert J. Battista and Members Peter C. Schaumber and Peter N. Kirsanow. Members Wilma B. Liebman and Dennis P. Walsh dissented in regard to the remedy. The decision is posted on the Board's website at www.nlrb.gov.
Prior to this decision, the remedy for an unlawful discharge or refusal to hire included the employer's payment of backpay to the employee for the period from the unlawful act until the employer made a valid offer of reinstatement (or instatement, in the case of an unlawful refusal to hire). The Board applied a presumption that, if hired, the "salt" would have stayed on the job for an indefinite period. If the job was a construction job, the Board applied a further presumption that the employer would have transferred the employee to other jobsites when the job from which he was discharged (or for which he should have been hired) came to an end.
The Board majority declined to continue to apply those presumptions. The Board reasoned that they are inconsistent with the reality of salting. The reality is that salts, when hired, stay on the job until they succeed in their organizational effort or reach the point where such efforts are unsuccessful. In either situation the union typically then sends the salt to seek to organize the employees of another nonunion employer.
The Board recognized that this will not always be the case. There may be instances where the union will permit a member to work for the targeted employer for an indefinite period.
However, the Board majority view is that the union is in the better p