« NLRB Law Memo 06/26/2007 | Main | NLRB Law Memo 07/13/2007 »
NLRB Law Memo 07/03/2007
by Ross Runkel at LawMemo
NLRB Law Memo 07/03/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 4 decisions.
Dean
Transportation, Inc. and Dean Transportation Employees Union (7-CA-49003,
7-CB-15014; 350 NLRB No. 4) Grand Rapids, MI June 22, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v3504.htm
The Board agreed with the administrative law judge
that Dean Transportation violated Section 8(a)(5) and (1) of the Act by
failing and refusing to recognize and bargain with Grand Rapids Educational
Support Personnel Association (GRESPA) as the representative of a unit of
its employees, and violated Section 8(a)(1), (2), and (3) by recognizing
Dean Transportation Employees Union (DTEU) as the representative of the bus
drivers in the unit and imposing the terms of its collective-bargaining
agreement with DTEU, including the union-security clause.
The Board also agreed with
the judge’s underlying findings that (1) Dean Transportation is the
successor to Grand Rapids Public Schools as the employer of bus drivers,
mechanics, and route planners at its 900 Union Street facility (the unit);
(2) GRESPA is a labor organization within the meaning of Section 2(5); (3)
the unit is an appropriate bargaining unit; (4) the bus drivers in the unit
were not accreted to the DTEU bargaining unit; and (5) GRESPA made an
appropriate demand for recognition and bargaining.
(Chairman
Battista and Members Liebman and Kirsanow participated.)
Charge filed by Grand Rapids Educational
Support Personnel Association; complaint alleged violation of Section
8(a)(1), (2), (3), and (5). Hearing
at Grand Rapids, May 9-16, 2006. Adm. Law Judge Michael A. Marcionese issued his decision
Sept. 27, 2006.
***
Foothill Sierra
Pest Control, Inc. (32-CA-22419; 350 NLRB No. 3) Sonora, CA June 18,
2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v3503.htm
The Board affirmed the administrative law judge’s
finding that the Respondent violated Section 8(a)(3) and (1) of the Act by
discharging employee Kirtlye Wheeler because she engaged in union or other
protected concerted activities.
(Members
Liebman, Schaumber, and Kirsanow participated.)
Charge filed by Teamsters
Local 439; complaint alleged violation of Section 8(a)(1) and (3).
Hearing at Sonora, Sept. 20-21, 2006.
Adm. Law Judge Lana H. Parke issued her decision Nov. 22, 2006.
***
Goodwill
Industries of North Georgia, Inc. (10-RC-15312; 350 NLRB No. 5) Chamblee, GA
June 21, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v3505.htm
The Board held, in agreement with the Acting Regional
Director, that the disabled individuals performing janitorial services for
Goodwill Industries of North Georgia, Inc. at the Chamblee, GA campus of the
Centers for Disease Control (CDC Chamblee) are employees within the meaning
of Section 2(3) of the Act. The
proceeding was remanded to the Regional Director for further appropriate
action.
The Acting Regional
Director found that the Employer had failed to show that its relationship
with the disabled workers is primarily rehabilitative and included them in
the unit of all janitorial workers employed by the Employer at CDC Chamblee
petitioned for by Operating Engineers Local 926.
The Employer filed a request for review of the Acting Regional
Director’s decision and the Board granted the request for review.
In its decision on review,
the Board explained that after the Acting Regional Director issued his
decision, it reexamined and reaffirmed the “typically industrial/primarily
rehabilitative” standard in Brevard
Achievement Center, 342 NLRB 982 (2004), applied by the Acting Regional
Director here, in assessing the statutory employee status of disabled
individuals working in rehabilitative vocational settings.
Applying that standard to this case, the Board concluded that the
Employer has not met its burden of showing that its relationship with its
disabled workers is primarily rehabilitative.
Although the Board decided that the Acting Regional Director properly
directed an election in a unit consisting of the employer’s disabled and
nondisabled janitorial workers at CDC Chamblee, it disagreed with certain
aspects of his application of the “typically industrial/primarily
rehabilitative” standard.
Member Liebman noted her
dissent in Brevard both from the
Board’s reaffirmation of the “typically industrial/primarily
rehabilitative” standard and from the result reached applying that
standard to the facts of the case. 342
NLRB at 989 (dissent of Member Liebman and Member Walsh).
She recognized Brevard as
controlling precedent and joined in this opinion.
In addition, she would find the disabled workers involved here to be
statutory employees applying the plain-language test endorsed by the Brevard dissent.
(Members
Liebman, Schaumber, and Kirsanow participated.)
***
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.
|
|
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
