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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 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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