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NLRB Law Memo 08/29/2007
by Ross Runkel at LawMemo

NLRB Law Memo 08/29/2007
by LawMemo - World's Best.

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NLRB - Staff summarized 9 decisions.

Boehringer Ingelheim Vetmedica, Inc. (17-CA-22964; 350 NLRB No. 60) St. Joseph, MO Aug  13, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35060.htm

The Board, in a 2-1 decision, found that the Respondent lawfully locked out employees and presented them with individual no-strike forms that they would have to sign before being permitted to return to work.  The Board reversed a 2005 decision of an administrative law judge that found that, although the lockout was initially lawful, the Respondent's presentation of no-strike forms to individual employees constituted direct dealing and, from that time forward, the lockout violated Section 8(a)(1), (3), and (5) of the Act.  The Board found that the Respondent timely informed the Union of its intentions, giving it the option of ending the lockout by providing assurances that there would not be a strike, either by providing such assurance on behalf of bargaining unit employees or by providing no-strike assurances from individual employees.  Dissenting, Member Walsh found that the Respondent violated the Act by dealing directly with locked-out bargaining unit employees.  He found that the Respondent bypassed the Union by failing to inform it specifically of the Respondent's intent to present the no-strike forms to individual employees

(Members Schaumber, Kirsanow, and Walsh participated.)

Charge filed by Food and Commercial Workers District Local Two; complaint alleged violation of Section 8(a)(1), (3), and (5).  Hearing at Overland Park, Kansas, Aug. 16 and 17, 2005.  Adm. Law Judge Gregory Z. Meyerson issued his decision Oct. 21, 2005.

***

The Carney Hospital (1-CA-38280; 350 NLRB No. 56) Boston, MA Aug. 13, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35056.htm

This case sets forth new guidelines in applying the test set forth in Redd-I, Inc., 290 NLRB 1115 (1988), for determining whether unfair labor practice allegations that are otherwise time-barred by the 6-month limitations period in Section 10(b) may be litigated.  The Board in Redd-I held that otherwise untimely allegations may be litigated if they were "closely related" to allegations  in a prior timely filed charge, and set forth the following test for making that determination:  (1), the otherwise untimely allegations must involve the same legal theory as the allegations in timely charge; (2), the otherwise untimely allegations must arise from the same factual situation or sequence of events as the allegations in timely charge; and (3) the defenses raised to both the untimely and timely charged allegations may, but need not be, the same or similar. (The third part of this test is not a mandatory aspect of the Redd-I test).

The Board's focus in Carney Hospital centered on whether the second prong of the Redd-I test was met. The judge, relying on the Board's decision in Ross Stores, Inc., 329 NLRB 573 (1999), found that this prong was met because the conduct alleged in the timely and otherwise untimely charges all arose out of an antiunion campaign carried on by the Respondent. The Board agreed, but the D.C. Circuit disagreed, stating that the "Board's contention that the factual relationship prong can be satisfied solely on the basis that the separate acts arise out of the same anti-union campaign here is a deviation from the very precedent it cites."  Ross Stores, Inc. v. NLRB, 235 F.3d 669, 673 (2001).

In response to this judicial criticism, the Board in Carney Hospital overruled its decision in Ross Stores and stated that it would no longer "find that the second prong [of the Redd-I test] is satisfied merely because timely and untimely allegations pertain to events that occurred during or in response to the same union campaign."  350 NLRB No. 56, slip op. at 4.  The following new test was set forth:  "where the two sets of allegations 'demonstrate similar conduct, usually during the same time period with a similar object,' or there is a causal nexus between the allegations and they are part of a chain or progression of events, or they are part of an overall plan to undermine union activity, we will find that the second prong of the Redd-I  test has been satisfied." Id. (citations omitted).

(Chairman Battista and Members Schaumber and Walsh participated)

Charges filed by Service Employees Local 285; complaint alleged violations of Section 8(a)(3) and (1). Hearing at Boston, Sept. 22-23, 2003.  Adm. Law Judge Paul Bogas issued his decision Jan. 21, 2004.

***

Champion Enterprises, Inc., d/b/a Champion Home Builders Co. (32-CA-19152-1, et al.; 350 NLRB No. 62) Lindsay, CA Aug. 16, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35062.htm

The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(1) of the Act by confiscating union materials from employees and telling employees that the Union's picketing of its dealer would force the Respondent out of business.  The Board further adopted the judge's finding, but a majority applied a different rationale, that the Respondent violated Section 8(a)(5) by failing to provide the Union with notice and an opportunity to bargain regarding the announcement of the shutdown of the plant, layoff of employees, selection of employees for work during the shutdown, and performance of bargaining unit work by supervisors.  A Board majority adopted the judge's finding that the Respondent violated Section 8(a)(5) by failing to provide the Union with information requested on February 11, 2002.  Member Schaumber dissented on this issue.

The Board majority reversed the judge's finding that the Respondent violated Section 8(a)(1) by soliciting employees to report to management the names of union supporters who "interfer[ed]" with their work or "threaten[ed]" them with job loss or other unspecified harm.  The Board majority reasoned that the judge took the Respondent's speech out of context.  It concluded that the Respondent did not solicit reports of employees' protected Section 7 activities, but only sought information regarding instances in which union solicitors interfered with plant production or made unprotected threats of harm and job loss.  Member Walsh dissenting, explained that the Respondent's speech, viewed in its total context, contained an unlawful invitation to report protected activity to management.

The majority also reversed the judge's finding that the Respondent violated Section 8(a)(5) by withdrawing recognition from the Union on April 18, 2002.  The majority explained that applying the factors set forth in Master Slack Corp., 271 NLRB 78, 84 (1984), the unlawful conduct at issue was insufficient to taint the employees' petition indicating that they no longer desired union representation.  Member Walsh dissenting, found that the majority failed to properly apply the relevant factors under Master Slack, and would find that the employee petition was tainted and, consequently, that the Respondent's April 18 withdrawal of recognition was unlawful.

The Board majority, having reversed the judge's finding regarding the unlawful withdrawal of recognition, reversed the judge's findings that the Respondent violated Section 8(a)(5) by granting a unitwide wage increase on the day after its withdrawal of recognition and failing to provide information requested on February 14, April 22 and May 15,  2002.  It also reversed the judge's recommended remedy to include an affirmative bargaining order.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Carpenters Local 1109; complaint alleged violations of Section 8(a)(1), (3), and (5).  Hearing at Visalia, Aug. 27-30, 2002.  Adm. Law Judge Mary Miller Cracraft issued her decision Jan. 17, 2003.

***

Datwyler Rubber and Plastics, Inc. (11-CA-21185; 350 NLRB No. 58) Marion, SC Aug. 13, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35058.htm

The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by threatening its employees with plant closure if a union were brought in, and by threatening its employees with termination for making statements at group meetings concerning terms and conditions of employment.  The Board also affirmed the judge's finding that the Respondent violated Section 8(a)(1) for discharging employee Mononga Moore for engaging in protected concerted activities.  Applying the factors set forth in Atlantic Steel Company, 245 NLRB 814 (1979), the panel majority found that all four factors weighed in favor of Moore not losing the protection of the Act.

In a personal footnote, the Chairman found that assuming arguendo the Atlantic Steel factor of nature of the outburst weighs against protection, it is outweighed by the other three Atlantic Steel factors.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by Mononga Moore, an individual; complaint alleged violations of Section 8(a)(1).  Hearing at Florence, Nov. 6-7, 2006.  Adm. Law Judge Lawrence W. Cullen issued his decision March 2, 2007.

***

First Transit, Inc. (21-CA-32146, et al.; 350 NLRB No. 68) Pomona, CA Aug. 17, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35068.htm

The Board, in this supplemental backpay decision, ordered that the Respondent pay 30 claimants amounts totaling $925,687.99.  In doing so, a shifting majority of the Board overruled the administrative law judge's backpay determination as to four claimants:  Frances Carmona, Juanita Madden, Cindy O'Neal, and Joyce Robinson.

The Board found in 2000 that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing its attendance policy.  Ryder/Ate, Inc., 331 NLRB 889 (2000), enfd. 22 Fed.Appx. 3 (D.C. Cir. 2001).  The Board ordered the Respondent to reinstate and make whole any employee who had been discharged, suspended or disciplined as a result of the unlawfully implemented policy. Subsequently, the Regional Director identified 37 employees whose employment was allegedly lost pursuant to the policy.  An administrative law judge ordered backpay awards for 28 claimants in amounts totaling $840,347.82.  The Respondent and the General Counsel filed exceptions to the judge's decision.

As to claimant Frances Carmona, Chairman Battista and Member Kirsanow overturned the judge and reduced her backpay award, finding that she unreasonably quit interim employment.  They found that the General Counsel failed to meet his burden of proving that Carmona's decision to quit was reasonable.  Member Liebman, dissenting, would have adopted the judge's decision and awarded Carmona the backpay award set out in the specification, arguing that the Respondent did not meet its initial burden of proving Carmona's interim employment was substantially equivalent to her employment with the Respondent.

As to claimant Juanita Madden, Chairman Battista and Member Kirsanow reversed the judge and found that Madden was not entitled to backpay.  They found that the General Counsel did not meet his burden of showing that Madden was discharged pursuant to the Respondent's unlawfully implemented policy.  In doing so, they relied on Madden's testimony that she resigned from employment rather than the Respondent's personnel records, which indicated that Madden had been terminated.  Member Liebman, dissenting, would have adopted the judge's decision, relying on the Respondent's personnel records rather than Madden's testimony.

As to claimant Cindy O'Neal, Chairman Battista and Member Liebman reversed the judge and found that O'Neal lost her employment pursuant to the Respondent's unlawfully implemented attendance policy.  O'Neal was scheduled for imminent termination under the Respondent's policy, but was given the option to resign by the Respondent.  Rejecting the judge's reliance on a constructive discharge theory, Chairman Battista and Member Liebman found that O'Neal lost her employment as a result of the Respondent's policy and was thus entitled to backpay.  Member Kirsanow, dissenting, would have denied O'Neal backpay based on her testimony that she "intended on quitting" the job even if she had not violated the Respondent's policy.

            As to claimant Joyce Robinson, Chairman Battista and Member Liebman reversed the judge and found that Robinson was entitled to the full backpay award set forth in the specification. During the backpay hearing, Robinson came forward with testimony that she had been convicted of second degree robbery prior to her employment with the Respondent. Robinson also testified, erroneously, that she had disclosed this felony on her initial employment application with the Respondent.  Chairman Battista and Member Liebman, applying the Board's holding in John Cuneo, Inc., 298 NLRB 856 (1990), held that Robinson was entitled to backpay because the Respondent did not become aware of her misconduct until after her backpay period had ended. Member Kirsanow, dissenting, would have denied Robinson backpay completely, rejecting the majority's "broad characterization" of John Cueno. "Weighing the equities" of this case, Member Kirsanow would have found that Robinson was not entitled to backpay.

            The Board also rejected Respondent's exception to the judge's denial of its motion to reopen the record to admit employee personnel records into evidence for all of the claimants. In addition, the Board rejected the Respondent's request for an oral argument.

(Chairman Battista and Members Liebman and Kirsanow participated.)

            Hearing at Los Angeles 8 days between Nov. 1 and 18, 2004.  Adm. Law Judge James M. Kennedy issued his supplemental decision July 29, 2005.

***

Fluor Daniel, Inc. (26-CA-13842; 350 NLRB No. 66) Greenville, SC Aug. 13, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35066.htm

This case was on remand to the Board from the United States Court of Appeals for the Sixth Circuit.  In its initial decision, 311 NLRB 498 (1993), the Board had held that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to hire 53 voluntary union organizers, or "salts."  The Board had petitioned the Sixth Circuit for enforcement of its decision, but the Sixth Circuit declined (161 F.3d 953 (6^th Cir. 1998)), finding that the Board had failed to address whether the General Counsel had sufficiently matched each of the salts with a vacant position for which the salt was qualified.

            Applying the court's decision as the law of the case, the Board remanded the case to the administrative law judge, who found that the General Counsel had met his burden of matching the salts with available positions for which they were qualified.

On exceptions, the Board dismissed the complaint as to two salts, Richard Bowlds and George Saltsman.  With respect to Bowlds, a majority of the panel (Members Schaumber and Kirsanow) found that Bowlds' application did not sufficiently indicate his status as a union salt.  In this regard, while the application listed the business agent and assistant business agent of Iron Workers Local 103 as his references and had been submitted along with applications from other salts, the applications had been submitted to a job service that lumped hundreds of applications together and gave them to the Respondent.  Thus, under the circumstances, there was an insufficient basis to find that the Respondent would have known that Bowlds was a salt.  Member Liebman disagreed on this point, finding that Bowlds' listed references and the fact that the salting operation was undertaken by Bowlds' union (among others) were sufficient grounds to find that the Respondent would have considered Bowlds a salt.  With respect to Saltsman, the Board found that the Respondent's failure to hire him was based on the fact that he submitted an incomplete application, not because of anti-union animus.

            With regard to the remaining salts, the Board found that, in assessing whether there were available jobs for them, it would not consider jobs for which offers already had been extended, or jobs that already had been vacated, before the salts applied.  Instead, the Board considered only jobs that were filled after the salts applied.  The Board found that, for several salts, the General Counsel matched them up with positions that were not truly available at the time they applied, and thus that the General Counsel failed to prove that they were discriminated against in the hiring that occurred in the spring of 1990.  However, the Board found that the General Counsel sufficiently matched those salts up with available jobs in the fall of 1990, and thus dismissal of the complaint as to those salts was not warranted.

            With regard to whether the salts were qualified for the available positions, the Board found that, in assessing qualifications, the judge properly relied on the experience and education listed on the salts' job applications, and correctly found that the salts were more qualified than the individuals who were hired over them.  In addition, the Board rejected the Respondent's affirmative defenses that its hiring decisions were justified by:  (1) the alleged "staleness" of the salts' applications, which were filed in the spring of 1990, when it hired for the fall; (2) the Respondent's preference for hiring former employees; (3) the Respondent's alleged preference for hiring people who applied for jobs at the gates of its construction projects; (4) the Respondent's claimed preference for hiring applicants with connections to incumbent employees; and (5) the fact that there was picketing in the spring, which the Respondent argued made it believe that the salts would not be willing to come to work.

(Members Liebman, Schaumber, and Kirsanow participated)

***

J & R Roofing Company, Inc. (5-CA-30913; 350 NLRB No. 61) Jessup, MD Aug. 13, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35061.htm

The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by telling job applicants that it did not, and would not, hire any person affiliated with the Union; threatening to throw away the application of any individual affiliated with the Union or other labor organization; throwing into a trash can applications completed by applicants for employment who were affiliated with the Union; and interrogating applicants through its employment application forms about their union membership, activities and sympathies.

The Board reversed the judge's finding that the Respondent violated Section 8(a)(3) by failing to hire eight union-affiliated applicants.  The Board found that the Respondent met its rebuttal burden of showing that it would not have hired the applicants regardless of their union activities, because of lewd and sexually offensive comments directed to the Respondent's manager and the sister of the Respondent's president.  The Board found that the conduct of the applicants was wholly separate from any antiunion animus on the part of the Respondent and a legitimate basis for not hiring them.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

            Charge filed by Roofers, Waterproofers & Allied Workers Local 30; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Baltimore, Sept. 9-10, and Dec. 9, 2002. Adm. Law Judge John T. Clark issued his decision Feb. 11, 2004.

***

Mid-Mountain Foods, Inc. (11-CA-17684; 350 NLRB No. 67) Abingdon, VA Aug. 13, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35067.htm

The Board reversed the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (4) of the Act by discharging employee Brian Blevins.  The Board found that the judge improperly heightened the applicable burden of proof under Wright Line by describing the Respondent's burden as one of establishing that Blevins' discharge was "inevitable or almost inevitable under the circumstances."  Applying the appropriate Wright Line standard, the Board found that the Respondent met its rebuttal burden.  The Board found that the discipline imposed on Blevins was consistent with the Respondent's disciplinary policy, and there were no identifiable instances in which the Respondent disparately applied this policy. 

(Chairman Battista and Members Schaumber and Kirsanow participated.)

            Charge filed by Food and Commercial Workers Local 400; complaint alleged violation of Section 8(a)(1), (3), and (4).  Hearing at Abingdon, April 16-17, 2001.  Adm. Law Judge Keltner W. Locke issued his decision May 22, 2001.

***

Norton Health Care Inc. d/b/a Norton Audubon Hospital and Norton Suburban Hospital, successor to Audubon Regional Medical Center (9-CA-31725, et al.; 350 NLRB No. 57) Louisville, KY Aug. 13, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35057.htm

In this compliance proceeding, the Board adopted the administrative law judge's finding that the Respondent made invalid offers of reinstatement to its former employee RN Joanne Sandusky and promotion to RNs Patricia Clark and Martha Ann Hurst, and adopted the judge's findings that Counsel for the General Counsel correctly calculated the mileage reimbursement rate owed Sandusky in connection with her travel expenses while she worked for her interim employer.  The Board also found merit to the Respondent's exception to the judge's extension of its obligation to supply names and addresses of unit employees to the Union. The Board remanded the case to the judge to consider two issues:  First, the Board granted the Charging Party's motion to remand and reopen the record to determine whether Sandusky's prior position still exists for reinstatement purposes.  Secondly, the Board remanded the issue of the supervisory status of the Respondent's clinical coordinator position in light of the Board's decisions in Oakwood Healthcare, 348 NLRB No. 37 (2006), Croft Metals, Inc., 348 NLRB No. 38 (2006), and Golden Crest Healthcare Center, 348 NLRB No. 39 (2006).

In its earlier decision, at 337 NLRB 374 (2000), the Board found that in January 1996 the Respondent's predecessor unlawfully denied Clark and Hurst promotions to patient care leader positions (now titled clinical coordinator). The Board ordered the Respondent's predecessor to offer Clark and Hurst those positions, and adopted the judge's finding that the positions were nonsupervisory. In July 2000, the Respondent offered Clark and Hurst the positions on the condition that they accept the positions as supervisory.  They declined because they did not want to give up their right to engage in union activity.  At the compliance hearing, the judge found the initial offers invalid and ordered the Respondent to reoffer the positions without the improper qualification that the positions were supervisory.  Subsequent to the compliance hearing, the Board issued its decisions in Oakwood Healthcare, Croft Metals, and Golden Crest Healthcare, in which it refined its analysis of supervisory status under the Act.  In remanding, the Board agreed with the judge that the offers were invalid, but concluded that the current supervisory status is relevant to the Respondent's continuing obligation to reoffer the positions.  Specifically, the Board stated that it could not compel the Respondent to designate a supervisory position as nonsupervisory and require the Respondent to fill it with employees who would be free to exercise Section 7 rights under the Act. Thus, if the judge determines that the clinical coordinator positions are now supervisory under the Act, he must determine (a) whether a substantially equivalent position exists for promotion purposes, and (b) the Respondent's backpay obligation.

           

Dissenting in part, Member Walsh would have denied the Charging Party's motion to remand and reopen the issue of RN Sandusky's position, because it had not shown that its "newly discovered evidence" would require a different result.  He also dissented from the decision to remand the supervisory status of the clinical coordinator position, finding that the status is not relevant to the Respondent's obligation to offer the position to Clark and Hurst.  The Respondent had not sought reconsideration or review of the prior determination that the position was not supervisory, and that determination should be treated as the law of the case for all aspects of the compliance proceeding.

Also dissenting in part, Member Kirsanow would have extended the Respondent's original 1-year requirement for providing names and addresses of unit employees. He noted, inter alia, that the original election in this case occurred in 1994, that the Board ordered the second election in 2000, that the second election still has not been held due to additional unremedied unfair labor practices, and that the 2nd election may be years away.  It would thus effectuate the purposes of the Act to extend the names-and-addresses remedy.

(Members Schaumber, Kirsanow, and Walsh participated.)

Hearing at Louisville, October 21, 22, and 23, 2002.  Adm. Law Judge Ira Sandron issued his supplemental decision March 14, 2003.

***

Provena Hospitals d/b/a Provena St. Joseph Medical Center (13-CA-39122-1; 350 NLRB No. 64) Frankfort, IL  Aug. 16, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35064.htm

A Board panel majority of Members Liebman and Walsh affirmed the administrative law judge's application of the "clear and unmistakable waiver" standard for determining whether an employer has fulfilled its statutory bargaining obligation and found that the Respondent, Provena St. Joseph Medical Center, violated Section 8(a)(5) of the Act by unilaterally and without notice to the Union (Illinois Nurses Association) implementing a staff incentive policy, but reversed the judge and dismissed another 8(a)(5) allegation with respect to the Respondent's unilaterally implementing a new attendance and tardiness policy.

            Admitting that it acted unilaterally with respect to both matters, the Respondent asserted that it was privileged to do so because the Union had waived its right to bargain about these matters and, alternatively, that the "contract coverage" standard should be followed rather than the "clear and unmistakable waiver" standard applied by the judge.

In explaining its reasons for adhering to the waiver standard, the majority acknowledged that "contract coverage" has been endorsed by the Seventh and DC Circuits, and specifically addressed those courts' concerns.  The majority pointed to the approval by many courts, including the Supreme Court, of the Board's long-established waiver analysis, the Board's unique responsibility of ensuring that the mandates of the Act are carried out, and the likelihood of complicating the collective-bargaining process by switching to a different analytical approach. 

Applying the Board's traditional "clear and unmistakable waiver" test, the majority determined that because (1) the parties collective-bargaining agreement did not contain an express provision regarding incentive pay, and (2) there was no evidence that during the course of negotiations, the subject of incentive pay was consciously explored or that the Union intentionally relinquished its right to bargain over the topic, the Respondent was not privileged to act unilaterally on the matter.  With respect to the attendance and tardiness policy, however, the majority determined that several parts of the contract's management rights clause, read together, explicitly authorized the Respondent to take unilateral action.

In dissent, Chairman Battista embraced contract coverage, stating that it would eliminate the conflict between the Board and certain courts as well as harmonize the Board's views with the grievance-arbitration process.  He stated that under contract coverage, where there is a clause relevant to the dispute within the collective-bargaining agreement, it can reasonably be said that the parties have bargained about the subject, not that there has been a refusal to bargain.  Applied to the instant case, he determined that the Respondent acted lawfully in both matters because (1) the management rights clause contained several provisions relevant to time and attendance and (2) a provision relating to "extraordinary pay" as well as language in the management rights section arguably permitted the Respondent to act unilaterally with respect to incentive pay.

(Chairman Battista and Members Liebman and Walsh participated.)

Charge filed by Illinois Nurses Association; complaint alleged violations of Section 8(a)(5) and (1).  Hearing at Chicago on Oct. 16, 2001.  Adm. Law Judge Bruce D. Rosenstein issued his decision Dec. 21, 2001.

***

SKC Electric, Inc. (17-CA-19438, et al.; 350 NLRB No. 70) Lenexa, KS and Columbia, MO Aug. 17, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35070.htm

The Board reversed the findings of the administrative law judge that (1) certain untimely 8(a)(1) complaint allegations were "closely related" to a timely filed 8(a)(3) charge; and (2) the Respondent unlawfully refused to hire union applicants Jim Beem, Roger Lake, Matt Mapes, Chris Heegn, and Gary Fisher.  In reversing the judge's finding that the timely and untimely allegations were "closely related," the Board applied Carney Hospital, 350 NLRB No. 56 (2007), in which it overruled Ross Stores, Inc., 329 NLRB 573 (1999), enf. denied 235 F.3d 669 (D.C. Cir. 2001), to the extent that it held that "the requisite factual relationship under the 'closely related' test may be based on acts that arise out of the same antiunion campaign." 329 NLRB at 574.  Applying Carney, the Board concluded that Section 10(b) of the Act bars the complaint allegations that the Respondent violated 8(a)(1) by threatening employees with job loss and by telling employees that the Respondent would never sign a contract, but does not bar the allegation that the Respondent violated 8(a)(1) by interrogating employee Kevin O'Brian.

            The Board also adopted, with modified rationale, the judge's finding that the Respondent unlawfully withdrew recognition from IBEW Local 257 after the certification year.  In addition, the Board adopted the remaining 8(a)(3) and (1) violations found by the judge (discharging Robert Terhune, denying training to Kevin O'Brian, transferring Eric Yatsook, imposing more onerous working conditions on Rick Brockman; threatening employees with stricter supervision and working conditions, discriminatorily restricting employees from discussing the Union, telling employees it will try to keep them segregated so as to prevent union organizational efforts, coercively interrogating employee Kevin O'Brian, telling employees that the Respondent will avoid hiring union sympathizers, discriminatorily refusing to permit striking employees to attend company meetings, and telling employees they were transferred because they engaged in protected activities.)

(Members Schaumber, Kirsanow, and Walsh participated.)

            Charges filed by Electrical Workers IBEW Locals 24 and 257; complaint alleged violations of Section 8(a)(1), (3), and (5).  Hearing at Overland Park, KS March 23-26, 1999.  Adm. Law Judge Albert A. Metz issued his decision Nov. 16, 1999.

***

Sproule Construction Company (33-CA-12381; 350 NLRB No. 65) Galena, IL Aug. 15, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35065.htm

The Board, affirming the administrative law judge, found that the Respondent violated Section 8(a)(1) of the Act by interrogating two employees and violated Section 8(a)(3) by discharging an employee for distributing authorization cards and by refusing to reinstate three unfair labor practice strikers.  With regard to the interrogation violation, the Board applied the all-the-circumstances standard announced in Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub nom. H.E.R.E, Local 11 v. NLRB, 760 F.2d 1006 (9^th Cir. 1985); Member Walsh applied the inherently-coercive standard.  With regard to the refusal-to-reinstate violation, the Board rejected the Respondent's contention that union direction of a strike renders the strike unprotected.

            The Board also found that the Respondent violated Section 8(a)(3) and (1) by refusing to hire nine applicants and by refusing to consider 20 applicants.  Relying on the Supreme Court's decision in NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995), the Board rejected the Respondent's contention that those applicants who were full-time paid union officials were not bona fide applicants.  In reversing, in part, the administrative law judge's finding of a refusal-to-hire violation with regard to all 29 applicants, the Board, applying FES (A Division of Thermo Power), 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3^rd Cir. 2002), affirmed the administrative law judge's finding that the General Counsel proved 12 vacancies, allocated 3 of the vacancies to the discharged employee and 2 of the unreinstated strikers, allocated the remaining 9 vacancies to the applicants, found a refusal-to-hire violation with regard to 9 applicants, found a refusal-to-consider violation with regard to the remaining applicants, and struck that portion of the administrative law judge's decision that would have allowed the General Counsel to prove additional pre-unfair-labor-practice-hearing vacancies in compliance.  The Board deferred to compliance the determination as to which of the applicants would have been hired for the vacancies and would accordingly be entitled to a make-whole remedy.  Noting that all of the discriminatees were salts, the Board modified the make-whole remedial provisions in accordance with the Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (2007).

            Chairman Battista and Member Kirsanow, in rejecting the Respondent's contention that the applicants were not bona fide applicants, stated that they were not passing on whether there could be circumstances were an alleged discriminatee was not a bona fide applicant.  Member Walsh joined in finding that the General Counsel proved four vacancies for one group of applicants but found that the General Counsel proved 17 vacancies for a second group of applicants.

(Chairman Battista and Members Kirsanow and Walsh participated.)

            Charges filed by Operating Engineers Locals 139, 150, and 234; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Peoria, Oct. 6-9, 1998.  Adm. Law Judge Arthur J. Amchan issued his decision Dec. 30, 1998 and his supplemental decision Oct. 3, 2000.

***

Syracuse University (3-CA-23985; 350 NLRB No. 63) Syracuse, NY Aug. 15, 2007. 
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35063.htm

The central issue in this case is whether the Respondent's employee complaint procedure, the Staff Complaint Process (SCP), is a labor organization within the meaning of Section 2(5) of the Act.  The Board reversed the administrative law judge and found that the SCP is not a labor organization.  Accordingly, it found that the Respondent did not violate Section 8(a)(2) and (1) of the Act by establishing and maintaining the SCP nor Section 8(a)(1) by interfering with employee rights to refrain from supporting a labor organization.  The complaint was dismissed.

The Board concluded that the SCP is not a labor organization because it does not "deal with" the employer on terms and conditions of employment.  Rather, the Board found that the SCP is limited to an adjudicative function, similar to the entities found not to be labor organizations in Mercy-Memorial Hospital, 231 NLRB 1108 (1977) and John Ascuaga's Nugget, 230 NLRB 275 (1977), enfd. in pertinent part 623 F.2d 571 (9^th Cir. 1980), cert denied 451 U.S. 906 (1981).

(Chairman Battista and Members Liebman and Schaumber participated.)

            Charge filed by Teamsters Local 317; complaint alleged violation of Section 8(a)(1) and (2).  Hearing at Syracuse, June 23-24, 2003.  Adm. Law Judge Eric M. Fine issued his decision Oct. 29, 2003.

***

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NLRB Law Memo 08/24/2007
by Ross Runkel at LawMemo

NLRB Law Memo 08/24/2007
by LawMemo - World's Best.

Also available by email.

NLRB - Staff summarized 9 decisions.

AGI Klearfold, LLC (13-RC-21129; 350 NLRB No. 50) Melrose Park, IL Aug. 9, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35050.htm

The Board reversed the Regional Director's finding that the petitioned-for unit of all press department employees is appropriate. The Board concluded that the smallest appropriate unit is one consisting of the Employer's press and pre-press employees, rejecting the Employer's contention that only an overall production and maintenance unit is the only appropriate unit.

            The Board found that their decision was controlled by the Board's decision in Moore Business Forms, Inc., 216 NLRB 833, 834 (1975). As in Moore, the Board found that, under a traditional community-of-interest analysis and according appropriate weight to the long-standing Board precedent that the "traditional lithographic unit" in the printing industry is a combined unit of press and pre-press employees, a unit limited to press department employees is not appropriate and that the smallest appropriate unit consists of the traditional lithographic unit of the Employer's press and pre-press employees.

(Chairman Battista and Members Schaumber and Walsh participated.)

***

Bradley Pacific Aviation, Inc. (37-RC-4134; 350 NLRB No. 59) Maui, HI Aug. 9, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35059.htm

The Board found that the Employer is engaged in interstate air common carriage so as to bring it within the jurisdiction of the National Mediation Board (NMB) pursuant to Section 201 of Title II of the Railway Labor Act (RLA).  Accordingly, it vacated the election and dismissed the petition filed by Petitioner Teamsters Local 996 seeking to represent all full-time and regular part-time fuelers and mechanics employed by the Employer at Maui Kahului Airport in Maui, HI. 

At the Board's request, the NMB considered the record in this case and issued an opinion stating that in its view the Employer is a carrier subject to the RLA.

(Members Schaumber, Kirsanow, and Walsh participated.)

***

Bridgestone Firestone South Carolina (11-CA-20424; 350 NLRB No. 52) Graniteville, SC Aug. 8, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35052.htm

A Board panel unanimously adopted the judge's finding that the Respondent, which operates a tire-manufacturing plant in Graniteville, South Carolina, did not violate Section 8(a)(3) and (1) of the Act by terminating employee Jeffrey Cockrell.  But the Board reversed the judge's findings that the Respondent violated Section 8(a)(1) by creating an impression of surveillance or by unlawfully interrogating and threatening Cockrell.  Finally, the Board reversed the judge's finding that the Respondent violated Section 8(a)(3) and (1) by issuing Cockrell a written disciplinary action.

            The Board overturned the judge's finding that the Respondent's letter to plant employees thanking employees "who have chosen to provide information . . . regarding the recent attempt" to organize the facility constituted the creation of an unlawful impression of surveillance.  The Board found that employees would not reasonably assume from the statement that their union activities had been placed under surveillance because the Respondent merely relayed to employees that certain coworkers had voluntarily provided information about the existence of the union campaign; there was no evidence or implication that management had previously solicited or coerced that information.

            The Board also overturned the judge's finding that the Respondent unlawfully interrogated Cockrell, who was questioned by the Respondent after being involved in a heated exchange about unionization with other workers in the employee break room at the plant.  After the exchange took place, a coworker complained about Cockrell's alleged profane verbal and physical conduct, leading the Respondent to solicit an explanation from Cockrell.  In the course of questioning Cockrell, the Respondent repeatedly asked him to verify whether he made the profane statements attributed to him by coworkers, but made clear to him that they were not asking him to discuss his views on unionization.  Therefore, the Board found that the interrogation did not reasonably tend to restrain, coerce, or interfere with rights guaranteed by the Act.  Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. 760 F.2d 1006 (9th Cir. 1989).

            Likewise, the Board overruled the judge's finding that supervisor Dovie Majors unlawfully threatened Cockrell at the end of the investigation by telling him that she would recommend his termination unless he was more forthcoming with his side of the story.  Majors' statement could not reasonably been understood as a threat to discipline Cockrell because of his union activities.  Waste Stream Management, 315 NLRB 1099, 1100 (1994).

            The Board also found that the discipline imposed on Cockrell for his break room conduct did not violate Section 8(a)(3) and (1) because there was no evidence of employer animus.  Sears, Roebuck & Co. 337 NLRB 443, 443 (2002).  The Board went on to note that even if animus had been established, the Respondent successfully demonstrated that the discipline would have been imposed on Cockrell anyway.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

            Charge filed by the Steelworkers; complaint alleged violation of Section 8(a)(1) and (3).  Hearing at Aiken, Jan. 19-21, 2005.  Adm. Law Judge Lawrence W. Cullen issued his decision May 4, 2005.

***

Columbus Symphony Orchestra, Inc. (9-RC-18137; 350 NLRB No. 49) Columbus, OH Aug. 6, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35049.htm

Contrary to the Regional Director, the Board found that there were no special circumstances that would warrant deviating from applying the traditional voting eligibility formula set out in Davison-Paxon Co., 185 NLRB 21 (1970), to determine the voting eligibility of employees in the petitioned-for unit of full-time, part-time, per diem and casual stagehands.  The Board remanded the proceeding to the Regional Director for further appropriate action.

The Employer is a professional symphony orchestra that performs on a 46-week, year-round schedule that includes a 7-week schedule of performances in the summer that are held in a tent set up on the lawn of a corporate sponsor.  The Employer hires casual employees during the entire year, with the majority of casual employees hired in the summer to set up and take down the tent.  The Employer also hires one casual employee to directly assist its full-time stagehand with summer concert production work.  The Employer regularly hires for this position from a "pool" of four stagehands with previous experience working for the Employer.  In 2005, the person who filled this position worked approximately 200 hours, while the three other casual employees hired from the "pool" worked between 15 and 19 hours each.  In 2006, one casual employee worked 140 hours, while three others worked between 37 and 63 hours each. 

The Regional Director found that the use of an outdoor venue for summer performances and the Employer's reliance on casual employees to perform a significant percentage of summer production work were "special circumstances" that warranted the application of a modified Davison-Paxon formula.  The Regional Director further found that the Employer's repeated hiring of the same four casual employees from the "pool" and the fact that they performed the same work as the full-time stagehand, showed that they had a reasonable expectation of future employment with the Employer and possessed a continuing interest in the Employer's terms and conditions of employment.  Instead of the standard election eligibility period, which would have been the payroll period preceding the May 2007 election, the Regional Director fashioned a formula based on the number of hours that unit employees worked during the summer of the Employer's 2006 season.

The Board reversed the Regional Director's use of a modified Davison-Paxon voting eligibility formula.  The Board reiterated that the traditional Davison-Paxon formula, under which a part-time or on-call employee is considered to have a sufficient regularity of employment to demonstrate a community of interest with unit employees if that employee regularly averages 4 or more hours of work per week for the last quarter prior to the election eligibility date, is to be applied unless "special circumstances" exist.  The Board has found "special circumstances" in the entertainment industry where irregular patterns of employment have required the Board to tailor eligibility formulas to meet those circumstances.  However, the Board has consistently applied the standard Davison-Paxon formula to entertainment industry employers that operate on a regular, year-round basis.  Wadsworth Theatre Mgmt., 349 NLRB No. 22 (2007) and Steppenwolf Theatre Co., 342 NLRB 69 (2004).

The Board emphasized that the Employer has a regular, year-round, 46-week schedule of performances, and found, contrary to the Regional Director, that summer performances at an outdoor venue are not "special circumstances" requiring the traditional Davison-Paxon formula to be modified.  The Board further found, unlike the Regional Director, that the irregular employment pattern experienced by casual employees during the summers of 2005 and 2006 did not show that they could reasonably expect to be employed in the summer of 2007.  The Board directed that the traditional Davison-Paxon formula be used.

(Chairman Battista and Members Liebman and Schaumber participated.)

***

P.G.H.C.C., Inc. d/b/a Pacific Grove Convalescent Hospital (32-CA-22879, 22894; 350 NLRB No. 48) Pacific Grove, CA Aug. 6, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35048.htm

The Board affirmed the administrative law judge's finding that the Respondent's withdrawal of recognition from the Union did not violate Section 8(a)(1) and (5) of the Act.  The Board also found it unnecessary to rule on the Respondent's motion to strike the Charging Party's exceptions, because the Charging Party's exceptions were denied.  Further, the Board denied the Respondent's request for attorney's fees, finding that the Charging Party's exceptions were not frivolous.  The Board ordered that the Respondent cease and desist from soliciting employees to sign a decertification petition.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charges filed by SEIU United Healthcare Workers West, Service Employees; complaint alleged violations of Section 8(a)(1) and (5).  Hearing at Pacific Grove, Feb.27-28 and March 1, 2007.  Adm. Law Judge Gerald A. Wacknov issued his decision May 9, 2007.

***

Shaw's Supermarkets, Inc. (1-CA-39764, et al.; 350 NLRB No. 55) East Bridgewater, MA Aug. 10, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35055.htm

The Board, in a 2-1 decision, found that the Respondent lawfully withdrew recognition from Food and Commercial Workers Local 1445 after the third year of a 5-year contract.

The case was before the Board on competing motions for partial summary judgment.  The majority noted inter alia that the Respondent had evidence of an actual loss of majority support by the Union, and that there was no contention that the loss of majority support relied on by the Respondent was tainted by unfair labor practices.  Dissenting, Member Liebman argued that it was anomalous to permit the Respondent to withdraw recognition at a time when it would not have been permitted to file an election petition, and that Hexton Furniture Co., 111 NLRB 342 (1955) stands for the principle that when an employer may not file an election petition, it is also prohibited from unilaterally withdrawing recognition.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charges filed by Food and Commercial Workers Local 1445; complaint alleged violation of Section 8(a)(1) and (5).  General Counsel filed motion for partial summary judgment Feb. 13, 2003 and Respondent filed cross-motion for summary judgment March 6, 2003.

***

Summit Express, Inc., Summit Truck Leasing, Inc., and Great Lakes Building Materials, Inc., a Single Integrated Enterprise and SG Construction, LLC (13-CA-41938-1; 350 NLRB No. 51) Aurora, IL Aug. 10, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35051.htm

The administrative law judge found that three respondents owned by the same individual—Summit Express, Inc., Summit Truck Leasing, Inc., and Great Lakes Building Materials, Inc.—were a single employer (Summit/Great Lakes) engaged in the business of selling drywall to commercial customers.  In June 2004, Summit/Great Lakes discharged its truck drivers and warehousemen and contracted with SG Construction, LLC to take over its drywall-delivery operations.  SG Construction hired the former Summit/Great Lakes employees.  The judge found that Summit/Great Lakes and SG Construction were alter egos and that they were jointly and severally liable for all Section 8(a)(1), (2), and (3)  violations that he found were committed.  No exceptions were filed to the judge's single employer finding or to his unfair labor practice findings.  The Respondents did except to the judge's alter ego finding.

The judge found no evidence of common ownership between Summit/Great Lakes and SG Construction but found that common ownership was not indispensable to finding alter ego status.  He concluded that they were alter egos because Summit/Great Lakes' decision to terminate its employees and contract with SG Construction was to avoid having to deal with Teamsters Local 673 that its employees were supporting.  He also drew an adverse inference against the Respondents because they failed to call the owner of SG Construction to testify.

Although common ownership is not a prerequisite for an alter ego finding, the Board has found an alter ego relationship in the absence of substantially identical ownership only where both companies were either wholly owned by members of the same family or nearly totally owned by the same individual, or where the older company maintained substantial control over the new company. Superior Export Packing Co., 284 NLRB 1169, 1170 (1987), enfd. 845 F.2d 1013 (3rd Cir. 1988).

In reversing the judge, the Board majority of Chairman Battista and Member Schaumber noted that the General Counsel had the burden of proving the existence of the alter ego relationship but presented no direct evidence that Summit/Great Lakes and SG Construction shared common ownership or that Summit/Great Lakes substantially controlled SG Construction.  The majority acknowledged that Summit/Great Lakes may have had an unlawful motive for contracting with SG Construction, but that does not establish that they are alter egos.  The record shows SG Construction to be independently owned, and that Summit/Great Lakes had no financial interest in it. Absent evidence of common ownership and substantial control, the Board will not find alter ego status.  The absence of substantially identical management and supervision reinforces that conclusion.

In dissent Member Liebman would find there was overwhelming evidence of unlawful motive as well as evidence that Summit/ Great Lakes exercised substantial control over SG Construction.  In Member Liebman's view, the "overwhelming favorable" contract terms allowed Summit/Great Lakes to control SG Construction's hiring and the terms and conditions of its employees.  Further, because Summit/Great Lakes was SG Construction's sole customer it could economically dominate SG Construction.  Member Liebman would also find that the judge properly drew an adverse inference from the failure of SG Construction's owner to testify.

The majority disagreed that the contract terms showed that SG Construction was substantially controlled by Summit/Great Lakes.  They found it is not surprising or unusual that the contract terms, for example, permitted Summit/Great Lakes to set "minimum qualifications" for SG Construction employees who would be performing services for Summit/Great Lakes.  While Summit/Great Lakes may have some control, that control was consistent with the interest of a company that hires another to perform services for it.  Further, the fact that Summit/Great Lakes was SG Construction's only customer does not establish that it was substantially controlled by Summit/Great Lakes.

The majority also disagreed that it was appropriate to draw an adverse inference.   The General Counsel issued a subpoena duces tecum to SG Construction's owner, or the keeper of the records, to produce SG Construction corporate and business records.  The records were produced and the keeper of records testified.  The General Counsel did not assert that SG Construction failed to adequately respond to the subpoena and, at the hearing, reserved the right to also call the owner, if necessary, but never called him.

Because the Respondents were not alter egos, they are not jointly and severally liable for all violations. Each Respondent is liable only for the violations it committed. Certain violations found to have been committed by SG Construction, and predicated on it being Summit/Great Lakes' alter ego, were dismissed.  Accordingly, the Board modified the conclusions of law, remedy, and substituted new Orders and Notices.

(Chairman Battista and Members Liebman and Schaumber participated.)

Charge filed by Teamsters Local 673; complaint alleged violation of Section 8(a)(1), (2) and (3).  Hearing at Chicago, March 28-29 and April 7-8, 2005.  Adm. Law Judge David L. Evans issued his decision Aug. 4, 2005.

***

Trustees of Columbia University in the City of New York (2-RC-22355; 350 NLRB No. 54) New York, NY Aug. 9, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35054.htm

The majority of Members Schaumber and Kirsanow reversed the Regional Director and overruled the Petitioner's objection, which alleged that the Employer's refusal to provide the Petitioner with the electronic mail (e-mail) addresses of eligible voters thwarted the manifest purpose of the requirements of Excelsior Underwear, 156 NLRB 1236 (1966).  The Board majority found that the Employer fully complied with its Excelsior requirements as heretofore defined by the Board.

            The Employer operates an institute of higher learning, including a research vessel named the R/V Maurice Ewing.  The parties stipulated that a unit of all unlicensed crew members of the R/V Maurice Ewing constitute an appropriate unit.  The parties also stipulated to the date, time, and location of the mixed manual and mail ballot election.  The vessel and crew are typically at sea for several days or weeks at a time.  The vessel was at sea for most of the preelection period, and the manual election was held aboard the vessel.  Although there is no evidence whether the vessel receives U.S. Mail, the crew did have access to the Employer's e-mail system aboard the vessel for personal business.  The Petitioner is a long-standing maritime labor organization, and its organizing campaign began while the vessel was being repaired in Tampa, Florida.

            At the pre-election hearing, the Petitioner requested that, in addition to providing it with the names and home addresses of eligible voters as required by Excelsior, the Employer be required to provide Petitioner with the e-mail addresses of eligible voters because of the unique circumstances of this case.  The hearing officer rejected the request, and in the Decision and Direction of Election, the Regional Director affirmed the hearing officer.  The Petitioner filed a request for review.  The Board denied the request for review, but "without prejudice to the Petitioner's right to file an objection concerning the issue raised on review."  Following the election, the Petitioner filed an objection, alleging that the Employer's failure to provide the e-mail addresses thwarted the manifest purpose of the Excelsior rule.

            The Regional Director found merit in the Petitioner's objection.  In the Supplemental Decision and Direction of Second Election, the Regional Director found that based on the unusual circumstances of this case, it would be inconsistent with the "animating principles" of Excelsior and its progeny to find that the Employer's submission of names and home addresses to the Petitioner, without the e-mail addresses, satisfied the requirements of Excelsior.  The Employer sought review, contending that it was not compelled to furnish the Petitioner with the e-mail addresses at issue in this case, under Excelsior or otherwise, and that requiring e-mail production here would be a retroactive modification of Excelsior requirements, which would deprive it of due process.  The Petitioner urged affirmance of the Regional Director's Supplemental Decision.

            Contrary to the Regional Director and the dissent, the majority found that the Employer timely provided the Regional Director with a complete and accurate list of unit employees and their home address, and thus fully complied with existing Board precedent interpreting Excelsior.  The majority emphasized that no Board case ever has held that the failure to provide the e-mail addresses of eligible voters constitutes objectionable conduct.  The majority therefore could not agree with the dissent's contentions that the Employer did not "substantially comply" with Excelsior, emphasizing that the list was both complete and accurate.  In addition, the majority pointed out that the Petitioner is a maritime union with vast experience and a long history of organizing and representing employees at sea.  Although its communication with many of the eligible voters may have been limited while they were at sea, the Petitioner agreed to the election date and details of the election with full knowledge that the vessel would be at sea during most of the election period, and with full knowledge that no Board decision ever had required production of e-mail address in the context of a Board-conducted election.

            The majority also emphasized that a "multitude of unanswered and difficult questions exist regarding the potential ramifications, for both employers and employees, of requiring employers to furnish employee e-mail addresses."  The majority concludes that the Board is not in a position to extend Excelsior, as the Union asks it to do, without the benefit of amicus briefing and a fully developed record.  Given the Employer's undisputed compliance with its Excelsior obligations as they stood as of the date of the Union's request, the majority is unwilling on the facts of this case to characterize that compliance as objectionable conduct.

            In dissent, Member Walsh stated:

In the particular circumstances of this case…a list of employees home addresses failed to effectuate the purposes of the Excelsior rule: to facilitate an informed electorate by "giving unions the right of access to employees that employers already have." Special Citizens Futures Unlimited, 331 NLRB 160, 161 (2000).  As the Regional Director found, mailings or visits to the employees' home addresses would have been futile.  Because the Petitioner could not contact the employees using the information contained in the Excelsior list, the employees were prevented from receiving information with respect to one of their choices, and thereby prevented from exercising their Section 7 rights.  Accordingly, the Employer has not substantially complied with the Excelsior requirement under the facts of this case.

            Member Walsh also rejected the majority's argument that Petitioner agreed to the timing of the election knowing it would be limited in its ability to communicate with the unit employees:

This argument essentially amounts to a contention that by agreeing to the election date, the Petitioner waived its right to communicate with the voters during the preelection period.  Although it is true that the Petitioner agreed to the timing of the lection, the Petitioner did not know that the Employer would refuse to provide it with the employees' e-mail addresses.

(Members Schaumber, Kirsanow, and Walsh participated.)

***

Verizon and its Subsidiary Telesector Resources Group (2-CA-32858; 350 NLRB No. 53) New York, NY Aug. 9, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35053.htm

This case involves a team of workers (the "Hazmat team") who removed hazardous materials from obsolete equipment for the Respondent from 1989 through December 2000.  The Board affirmed the judge's findings that the Respondent was an employer of the Hazmat team and that the General Counsel failed to establish that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide the Hazmat team with the benefits provided to bargaining unit employees represented by the Union.

            A Board majority (Chairman Battista and Member Liebman) found that the Respondent violated Section 8(a)(4), (3), and (1) by temporarily laying off nine members of the Hazmat team in May 2000.  In finding the violation, the Board majority found that the General Counsel met the initial Wright Line burden of proving unlawful motivation for the layoffs, based on the following factors:  1) the timing of the layoffs relative to the Union's March 2000 filling of a charge on behalf of the nine Hazmat workers who were subsequently laid off and the Union's claim that the bargaining unit's contract should apply to those nine Hazmat workers; 2) the absence of evidence that any Hazmat  employees other than those subject to the Union's contract coverage claim were laid off; 3) the "precipitate nature of the layoffs"; 4) the absence of any credible evidence supporting the Respondent's claim that the layoffs were due to a lack of available work; 5) credited testimony that, in fact, work was available for the laid-off employees; and 6) the postrecall employment of the full Hazmat team for the remainder of 2000.  The majority then found that the Respondent failed to rebut the General Counsel's prima facie case by establishing that the layoffs would have occurred in the absence of protected conduct.  Member Schaumber, dissenting, would dismiss the unlawful layoff allegation, finding that the General Counsel failed to meet its initial burden to establish that the layoffs were motivated by the Respondent's animus against any protected concerted activity.

            A different Board majority (Chairman Battista and Member Schaumber) reversed the judge and dismisses allegations that the Respondent unlawfully terminated the Hazmat team in December 2000, assigning its work instead to outside contractors.  The majority found that the General Counsel failed to establish a prima facie case under Wright Line that animus against protected conduct was a motivating factor in the Respondent's decision to terminate the Hazmat team and outsource their work.  Citing credited testimony and a series of management emails pertaining to the outsourcing decision, the majority found that the Respondent decided to "terminate the unintended employment relationship" that it held with the Hazmat team, and thereby avoid potential liability that it might incur as the team's employer.  The majority, citing Oklahoma Fixture Co., 314 NLRB 958 (1994), found that because the Respondent's termination of the Hazmat team was based on a desire to avoid legal liability, rather than motivated by antiunion animus, the terminations did not violate Section 8(a)(3) or (1).  Although the majority recognized that the Respondent's concerns about employer liability were triggered by complaints raised by Hazmat team employees, and that those complaints constituted protected concerted activity, the majority concluded that it does not necessarily follow that the Respondent's decision was "'motivated by animus' toward those complaints."

            In dissent, Member Liebman would affirm the judge and find the Respondent's termination of the Hazmat team violated Section 8(a)(3) and (1).  In her view, a violation arises because it is clear that the Respondent would not have terminated the Hazmat employees but for the fact that they engaged in protected concerted activity; the Respondent was not "free to terminate statutory employees, who had complained about being miscategorized as nonemployees, in order to avoid having to recognize their statutory rights and in retaliation for their statutorily protected activity."  Further, Member Liebman disagreed with the majority's finding that the employees' protected activities in 2000, which took place prior to their December 2000 termination, were not relevant to establishing that the terminations were motivated, at least in part, by animus.

(Chairman Battista and Members Liebman and Schaumber participated.)

            Charges filed by Communications Workers Local 1108; complaint alleged violation of Section 8(a)(1), (3), and (5).  Hearing at New York, May 29-31, July 22-24, and Aug. 5-6, 2002.  Adm. Law Judge Steven Fish issued his decision Sept. 30, 2003.

LawMemo publishes Employment Law Memo.

NLRB Law Memo 08/23/2007
by Ross Runkel at LawMemo

NLRB Law Memo 08/23/2007
by LawMemo - World's Best.

Also available by email.

NLRB - Staff summarized 7 decisions.

All Pro Vending, Inc. (5-CA-32734; 350 NLRB No. 46) Baltimore, MD July 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35046.htm

The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by threatening not to reinstate employee Frederic Traube because of his protected activities and by telling Traube that he could not engage in union activities at work.  In addition, the Board affirmed the judge's finding that the Respondent violated Section 8(a)(1) and (3) by suspending and discharging Traube from his vending position at RFK Stadium because of his protected activities.  Finally, the Board affirmed the judge's finding that the Respondent violated Section 8(a)(1), (3), and (4) by discharging Traube from his vending position at M & T Bank (Ravens) Stadium because of his protected activities and because he filed an unfair labor practice charge with the Board.

            The Respondent provides food and beverage vending services at various stadiums and arenas.  On Aug. 4, 2005, Traube was engaged in an altercation with another employee at RFK Stadium, and he was suspended from his position.  When he spoke to Respondent's president David McDonald about getting his job back, McDonald told him that he could not help someone who was trying to organize the workers and bring in a union.  Traube was fired a few days later.  On Aug. 29, he filed an unfair labor practice charge against the Respondent.  On Sept.11, 2005, Traube reported to Ravens Stadium to work at an exhibition football game.  McDonald told Traube that he would not let Traube stir up union trouble at that stadium too.  McDonald told Traube that he did not work for All Pro anymore and that he would see him "at the hearing."  The judge found that the "hearing" referred to the unfair labor practice hearing before the Board.  On the basis of this conduct, the judge found, and the Board affirmed, the violations cited above. 

(Members Schaumber, Kirsanow, and Walsh participated)

            Charges filed by Frederic Traube, an individual; complaint alleged violations of Section 8(a)(1), (3), and (4).  Hearing at Baltimore, May 23-25, 2006.  Adm. Law Judge John T. Clark issued his decision Dec. 27, 2006.

***

B.A. Mullican Lumber & Manufacturing Company (11-CA-19451, 19547; 350 NLRB No. 45) Norton, VA July 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35045.htm

The Board adopted the administrative law judge's finding that the Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to execute a collective-bargaining agreement because the parties had not agreed upon a substantive term of the agreement – that is, the effective date.  The Board, applying the withdrawal-of-recognition test announced in Levitz Furniture Co., 333 NLRB 717 (2001), also adopted the judge's finding that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition because the Respondent did not prove that the Union had lost the support of a majority of the unit employees.

            Chairman Battista, concurring in the Section 8(a)(5) withdrawal-of-recognition finding, expressed "substantial doubts" regarding Levitz but applied Levitz here in the absence of a full-Board majority to use the case as a vehicle to overrule or modify Levitz.  In Chairman Battista's view, a Board election pursuant to an RM petition is superior to a unilateral withdrawal of recognition but RM petitions are often blocked by unfair labor practice charges; he explained that, for these reasons, he was "inclined" to retain Levitz subject to a requirement that an employer's RM petition would be processed notwithstanding the filing of unfair labor practice charges.

(Chairman Battista and Members Liebman and Walsh participated.)

            Charges filed by the Mine Workers; complaint alleged violation of Section 8(a)(1) and (5).  Hearing at Norton, Oct. 7-8, 2002.  Adm. Law Judge George Carson II issued his decision Nov. 27, 2002.

***

Glens Falls Building and Construction Trades Council, et al. (3-CE-55; 350 NLRB No. 42) Corinth, NY July 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35042.htm

The Board found that the Respondents violated Section 8(e) of the Act by entering into agreements with Indeck, the owner of a planned power cogeneration plant, and CRS Sirrine, Inc. (Sirrine), Indeck's project manager for construction of the plant, in which Indeck agreed that it would instruct its construction contractor to execute a specified project labor agreement with the Respondents, and Sirrine agreed that any contractor or subcontractor employed on the project shall be a signatory to and abide by all the terms of a specified project labor agreement with the Respondents.  The Board found that the Respondents violated Section 8(e) by entering into the union signatory subcontracting provisions of the above agreements and by reaffirming those agreements by filing a civil breach of contract action against Indeck.  Both the Indeck and Sirrine agreements prohibited the construction contractor from contracting or permitting subcontracting of any work on the project to a company that was not itself a party to the project labor agreement with the Respondents and that did not agree to perform all work on the project under the terms of the project labor agreement.

            The Board found that the agreements were not protected by the construction industry proviso to Section 8(e) because they were not entered into in the context of a collective-bargaining relationship between the Respondents and Indeck and were not executed for the purpose of preventing conflict between union and nonunion labor on a common construction situs.  See Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616 (1975).

            The Board found it unnecessary to decide whether Indeck was an employer in the construction industry within the scope of the construction industry proviso or whether a union signatory subcontracting agreement that is not executed in the context of a collective-bargaining relationship may still be protected by the construction industry proviso if it in fact was intended to prevent common-situs labor friction.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

            Hearing at New York on six days between Dec. 14, 1998 and Feb. 9, 1999.  Adm. Law Eleanor MacDonald issued her supplemental decision Feb. 15, 2000.

***

Shaw, Inc., Rapid River Enterprises, Inc., S&R Cable, Inc., Kimron, Inc., a Single Employer and/or Joint Employers (7-CA-37450(3), et al., 350 NLRB No. 37) Atlanta, MI July 30, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35037.htm 

A unanimous Board Panel adopted the administrative law judge's supplemental decision finding that the Respondents violated Section 8(a)(3) of the Act by discriminatorily failing to hire 13 union affiliated applicants – 10 operating engineers and 3 laborers – but not by refusing to hire 12 union affiliated welders and/or pipefitter applicants.  The record established that the Respondents were hiring operating engineers and laborers at the time qualified union-affiliated applicants in those classifications applied, but there was no evidence that they were hiring or had plans to hire welders or pipefitters.

The Board also adopted several Section 8(a)(1) violations, including the  maintenance of an overly-broad "no-distribution" rule and making various threats and promises linked to employees' union activities.

In addition, the Board unanimously reversed the judge's determination that the Respondents' foremen are statutory supervisors, finding that the evidence fails to establish that they exercise independent judgment in the performance of their duties.  Given their non-supervisory status, the Board accordingly reversed the judge's finding of Section 8(a)(1) violations (interrogation and creating the impression of surveillance) attributable to certain foremen.

Finally, a panel majority (Chairman Battista and Member Kirsanow) reversed a finding of Section 8(a)(1) based on a statement made to employees by a foreman in the presence of an admitted supervisor, i.e., that unionized employees had to provide their own transportation to work sites.  It was the Respondents' practice to drive employees to job sites in company trucks.  The majority found the comment not coercive, but rather merely reflective of the foreman's understanding of how union jobs operated.  Member Liebman disagreed, observing that the circumstances in which the statement was made—during a meeting called by the Respondents to counter the nascent union organizing effort and in which other unlawful threats and promises were made—were such that employees would reasonably interpret it as a threat that unionizing would result in more onerous working conditions.

(Chairman Battista and Members Liebman and Kirsanow participated.)

Charges filed by the Plumbers, Laborers Local 324, and Operating Engineers Local 324; complaint alleged violations of Section 8(a)(3) and (1).  Hearing at Alpena, MI, March 12-15, May 14-16, June 18-19, and Aug. 20-22, 1996.  Adm. Law Judge John H. West issued his decision Sept. 18, 1997 and his supplemental decision March 23, 2001.

***

United States Postal Service (28-CA-18682(P), et al.; 350 NLRB No. 43) Albuquerque, NM July 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35043.htm

In this case, the Board considered numerous 8(a)(5), 8(a)(3), and 8(a)(1) allegations against the Respondent.  The Board unanimously adopted, without comment, the majority of the administrative law judge's numerous findings.  In addition, the Board adopted (Member Liebman dissenting) the judge's finding that the Respondent did not violate Section 8(a)(5) and (1) by implementing a rule prohibiting union stewards from soliciting grievances at "stand up" meetings, and reversed (Member Schaumber dissenting) the judge's finding that the Respondent did not violate Section 8(a)(5) and (1) by implementing a new rule requiring  stewards to obtain pre-approval of all statements or announcements that they wanted to make at such meetings.

The Board adopted (Member Schaumber dissenting) the judge's finding that the Respondent violated Section 8(a)(3) and (1) by threatening a union steward after the steward visited the union's office and for disciplining the steward for his protected conduct.  The Board also found (Member Liebman dissenting), contrary to the judge, that the Respondent violated Section 8(a)(3) and (1) by placing the steward on off-duty status after the steward insubordinately removed information requests from a supervisor's table and ignored direct orders to return the documents.

(Chairman Battista and Members Liebman and Schaumber participated.)

            Charges filed by Letter Carriers, Sunshine Branch 504; complaint alleged violation of Section 8(a)(1) and (5).  Hearing at Albuquerque, March 9-12, 2004.  Adm. Law Judge Thomas M. Patton issued his decision April 21, 2005.

***

US Reinforcing, Inc., and its alter ego, U.S. Steelworkers, LLC (3-CA-25314; 350 NLRB No. 41) Gouverneur, NY July 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35041.htm

The Board majority of Chairman Battista and Member Schaumber reversed the administrative law judge's finding that a non-union rebar company, U.S. Steelworkers, was the alter ego of a unionized rebar company, US Reinforcing.  The majority thus found that U.S. Steelworkers, which was started and owned by the girlfriend of US Reinforcing's owner, was not bound by the collective-bargaining agreement previously entered into by US Reinforcing.  The majority held that the lack of substantially identical common ownership precludes a finding of alter-ego status.  It noted that the Board frequently infers substantially identical ownership where people in a close familial relationship are owners of the alleged alter egos. The majority found, however, that such inference was not warranted here.  Although the owners of the two companies lived together and testified that they were a committed couple, the majority pointed out that:

[t]hey have not taken the stop of entering into the legal arrangement of a marriage, with the familial connection and attendant presumption of commonality of finances that such a legal arrangement may imply.  In no instance has the Board applied this inference in the context of unmarried cohabitating couples.

The majority also found no evidence of any shared financial arrangements between the two owners and no claim by the General Counsel that their personal arrangement was that of a common-law marriage.

Further, the majority found that the evidence does not show that the owner of US Reinforcing retained financial control over the operations of U.S. Steelworkers such that their relationship warrants application of the "close familial" exception.  The owner of U.S. Steelworkers independently incorporated and capitalized her company, and she was the only person authorized to conduct business on its behalf.  Although the owner of US Reinforcing was a key employee of U.S. Steelworkers, the majority noted that he was not an owner or financial controller, and he was not shown to participate in its profits.  The majority also pointed out that the General Counsel did not show that U.S. Steelworkers went into business with an anti-union motive or that it was created to evade US Reinforcing's contractual and statutory obligations.

            In dissent on this issue, Member Walsh found that the facts and the law overwhelmingly support the judge's finding that U.S. Steelworkers is an alter ego of the unionized company. Finding this to be a classic alter-ego case, he stated:

A unionized company is unable to meet its obligations under a collective-bargaining agreement and goes out of business.  With no hiatus in operations, a nonunion company comes into existence at the same address to perform the same work, operating out of the same office, with essentially the same employees, supervisors, managers, equipment, and customers.  The new company is ostensibly owned and operated by an individual who has absolutely no relevant business experience, but who lives with the owner of the unionized company, with whom she shares a close personal relationship.  The owner of the unionized company confesses to the union that 'he was having a little financial problem,' that 'he was more or less thinking of going nonunion,' and that 'he wanted to go with his girlfriend [who] was going to start another company.'

Accordingly, he would find that U.S. Steelworkers unlawfully failed to abide by the collective-bargaining agreement entered into by US Reinforcing.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Iron Workers Local 12, 33, 60, and 440; complaint alleged violation of Section 8(a)(5) and (1).  Hearing at Syracuse on Aug. 23, 2005.  Adm. Law Judge Richard A. Scully issued his decision Feb. 21, 2006.

***

Writers Guild of America, West, Inc. (31-CB-12062, 12063; 350 NLRB No. 40) Universal City, CA July 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35040.htm

The Board affirmed the administrative law judge's findings that the Respondent did not violate Section 8(b)(1)(B) of the Act by restricting its show runners' contract interpretation duties through implicit threats of fines or punishment.  The Board ordered that the complaint be dismissed.

(Chairman Battista and Members Liebman and Walsh participated)

Charges filed by Universal Network Television, LLC and NBC Studios, Inc.; complaint alleged violation of Section 8(b)(1)(B).  Hearing at Los Angeles, Dec. 11-13, 2006.  Adm. Law Judge Gregory Z. Meyerson issued his decision Feb. 13, 2007.

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NLRB Law Memo 08/10/2007
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NLRB - Staff summarized 7 decisions.

Bill's Electric, Inc. (17-CA-18629-1, et al: 350 NLRB No. 31) Webb City, MO July 24, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35031.htm

Applying the test of unlawful motivation in refusal to hire and consider cases in FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), which issued after the administrative law judge's decision in this case, the Board affirmed the judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire union organizer Ron Lundien in April 1996, but that the Respondent did not unlawfully refuse to hire or consider for hire other union applicants on and after May 14, 1996.   The Board found that the General Counsel proved a prima facie case of unlawful motivation for refusing to hire Lundien and for refusing to hire or consider hiring 4 applicants who later appeared with Lundien at the Respondent's office on May 14.  As to Lundien, the Board found the Respondent failed to meet its FES rebuttal burden of showing it would not have hired him in the absence of his declared intent to organize.  As to the May 14 applicants, however, the Board affirmed the judge's finding that the Respondent lawfully refused to hire or consider hiring them because they acted in concert with Lundien, who ignored the request of the Respondent's president to cease videotaping the application process in the office area and continued videotaping until police arrived to remove him from the premises.   The Board agreed with the judge that the refusal to cease videotaping was "sufficiently disruptive and disrespectful" to justify the refusal to hire or consider hiring these four applicants on and after May 14.  Finally, as to two union members who applied for work in the fall of 1996, the Board found that the General Counsel failed to meet his initial FES burden of proving that the Respondent was hiring or had concrete plans to hire during the 30-day period when their applications were active.

            The Board was divided in its analysis of the impact of Lundien's May 14 conduct on the remedy for the Respondent's earlier unlawful refusal to hire him.  Members Liebman and Walsh rejected the judge's recommendation that backpay for Lundien should toll as of May 14 and that the Respondent should be relieved of the obligation to offer him instatement to the job for which he had applied.  Finding that the parties did not litigate the "discrete, separate issue" whether the Respondent would have terminated Lundien for his May 14 conduct if it had not unlawfully refused to hire him prior to that date, they modified the Order to provide for full backpay and instatement and left the issue of limiting this remedy to compliance proceedings where the Respondent will bear the burden of proving that Lundien engaged in misconduct for which it would have discharged any employee.  Member Kirsanow, dissenting, would not provide any make-whole relief for Lundien beyond the limited backpay recommended by the judge.  In his view, the matter was fully litigated as part of the merits of the unfair labor practice issue and insubordinate conduct proven sufficient to justify a refusal to hire would a fortiori justify Lundien's discharge if he were an employee.

            The Board also affirmed the judge's findings that the Respondent violated Section 8(a)(1)  by maintaining and enforcing a mandatory grievance and arbitration policy that restricted employee and job-applicant access to the Board.  It also violated Section 8(a)(4) by attempting to enforce this policy in letters it sent to the four alleged discriminatees who applied for work on May 14.  The Board found that although the policy did not expressly prohibit applicants and employees from filing unfair labor practice charges, the application forms and letters sent to discriminatees portrayed mandatory grievance and arbitration as the exclusive method for dispute resolution, subject only to limited judicial review, and the policy threatened that any applicant or employee who sought Board relief before completion of the arbitration process could be compelled to bear the costs of any litigation to compel their compliance with that process.  At the least, applicants and employees would reasonably read this policy as "substantially restricting, if not totally prohibiting, their access to the Board's processes."  The Board noted that it was only deciding the legality of this specific policy and not otherwise passing on the lawfulness of mandatory arbitration in an unorganized work force.

            Finally, the Board affirmed the judge's findings that the Respondent lawfully gave its employees a wage increase in May 1996 as the result of an "exceptionally good" fiscal year, but that the Respondent's foremen, acting as its agents, violated Section 8(a)(1) by threatening that its shop would close if the Respondent had to recognize the Union, by promulgating or maintaining a no-solicitation policy that pertained only to union solicitation, by asking employees to report violations of this policy, and by telling employees that union sympathizers would be laid off first

(Members Liebman, Kirsanow, and Walsh participated)

            Charges filed by Electrical Workers IBEW Local 95; complaint alleged violations of Section 8(a)(1), (3), and (4).  Hearing at Joplin, April 21 and 22, 1998.  Adm. Law Judge William L. Schmidt issued his decision August 10, 1999.

***

Champion Home Builders Co., a subsidiary of Champion Enterprises, Inc. (32-CA-17185; 350 NLRB No. 35) Lindsay, CA July 23, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35035.htm

The Board accepted the remand of the U.S. Court of Appeals for the Ninth Circuit (Carpenters Union Local No. 1109 v. NLRB, 219 Fed. Appx. 654 (9^th Cir. Jan. 22, 2007), amending 209 Fed. Appx. 692 (9^th Cir. Dec. 4, 2006)) to find that the Respondent violated Section 8(a)(1) of the Act by failing or refusing to stay or seek the dissolution of a state court restraining order issued against a former employee whose termination was found unlawful (see 343 NLRB 671 (2004)).  In its earlier decision in this case, the Board found that Board law preempted the state court restraining order as of the date the Board issued its decision.  The court disagreed and found that the restraining order (to the extent that it prohibited protected concerted activity) was preempted earlier, as of the date the complaint issued.  Thus, on remand, the Board found that the Respondent's maintenance of the restraining order while the Board case was pending violated the Act, to the extent that the order prohibited activity protected under Section 7 of the Act.

(Members Schaumber, Kirsanow, and Walsh participated.)

***

Detroit Newspaper Agency, d/b/a Detroit Newspapers (7-CA-42544; 350 NLRB No. 38) Detroit, MI July 27, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35038.htm

On remand from the U.S. Court of Appeals for the D.C. Circuit (Detroit Newspaper Agency v. NLRB, 435 F.3d 302, 312 (D.C. Cir. 2006)), the Board dismissed the complaint alleging that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Thomas Hydorn because he participated in a strike against the Respondent and engaged in protected activity by questioning whose responsibility it was to perform a particular work task, and because of his union membership and support.  In an earlier decision and order reported at 342 NLRB 1268 (2004), the Board found that the Respondent violated Section 8(a)(3) and (1) by discharging Hydron.  Member Schaumber dissented.  The Court remanded the proceeding to the Board for clarification and further review.

The Board accepted the Court's holding as the law of the case and reexamined the original decision.  It interpreted the Court's remand to hold that "the Board is not free now to consider the disparate treatment evidence if, in fact, we did not originally rely on this evidence in finding that the General Counsel had established a prima facie case." After reviewing the original decision, the Board concluded that it did not consider the evidence of disparate treatment in finding that the General Counsel had presented a prima facie case of discriminatory motive.  It wrote:  "Under the terms of the court's remand, we may not do so here for the first time.  In view of the court's rejection of the grounds upon which the Board relied in finding animus, we conclude that the General Counsel failed to establish a prima facie case."

            Member Schaumber agreed that the Board's prior decision did not consider disparate treatment in analyzing the General Counsel's prima facie case.  In addition, he reaffirmed his original dissent.  Accordingly, Member Schaumber concurred in the dismissal of the complaint.

(Members Liebman, Schaumber, and Walsh participated.)

***

Gruma Corp. d/b/a Mission Foods (28-CA-17946, et al.; 350 NLRB No. 36) Tempe, AZ July 27, 2007.

http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35036.htm

The Board adopted the administrative law judge's findings that Respondent violated Section 8(a)(5) and (1) of the Act by taking the following actions without giving the Union notice and an opportunity to bargain: (i) eliminating a bargaining unit position from the sanitation department; (ii) transferring employee Michaela Burgara from the sanitation department to another department; (iii) subcontracting the sanitation department work; and (iv) eliminating its employee-of-the-quarter award.

The Board also adopted the judge's findings that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing its method for determining whether to grant an annual wage increase and by unilaterally failing to grant a wage increase in 2002.  In adopting the judge's findings, the Board clarified the judge's rationale.  Specifically, the Board found that the increase at issue was a structural scale increase and not a merit-based increase.  The Board found, however, that the type of increase did not alter the judge's conclusion that the Respondent's unilateral changes violated the Section 8(a)(5) and (1).

Finally, the Board adopted the judge's dismissal of the complaint allegations that the Respondent unlawfully suspended and discharged employee Ramon Marquez.  In adopting the judge's dismissal, the Board relied only on the judge's finding that the General Counsel failed to show that the Respondent had knowledge of Marquez' union activity.

(Chairman Battista and Members Schaumber and Walsh participated.)

            Charges filed by Food and Commercial Workers Local 99; complaint alleged violation of Section 8(a)(1), (3), and (5).  Hearing at Phoenix, April 18-20 and Nov. 30, 2005.  Adm. Law Judge Albert A. Metz issued his decision March 29, 2006.

***

Plumbers Local 447 (Rudolph & Sletten, Inc.) (20-CD-738; 350 NLRB No. 33) Roseville, CA July 23, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35033.htm

In this jurisdictional dispute, the Board found reasonable cause to believe that the Respondent, Plumbers Local 447 (the Plumbers) had violated Section 8(b)(4)(D) of the Act.  The Board awarded the disputed work (the receiving, inventory, distribution, layout and installation of headwall/headboard units in patient rooms at the Kaiser Women's and Children's Center) to employees represented by Carpenters Local 46 (the Carpenters) rather than to a composite crew consisting of employees represented by the Plumbers and by the Electrical Workers IBEW Local 340 (the Electricians).

After considering all of the relevant factors, the Board found that although the factors of relative skills and training and economy and efficiency of operations slightly favored awarding the disputed work to a composite crew of employees represented by the Plumbers and the Electricians, those factors were outweighed by the factors of Employer's preference, past practice, and current assignment, and collective-bargaining agreement that favored awarding the disputed work to employees represented by the Carpenters.

Member Walsh agreed that the disputed work should be awarded to employees represented by the Carpenters, but he did not rely on the collective-bargaining agreement factor.  In awarding the disputed work to employees represented by the Carpenters, Member Walsh found that the factors of Employer's preference, past practice, and current assignment, which clearly favored awarding the work to Carpenters-represented employees, outweighed the factors of relative skills and training and economy and efficiency of operations, which only slightly favored awarding the work to a composite crew of employees represented by the Plumbers and the Electricians.

(Chairman Battista and Members Liebman and Walsh participated.)

***

Fresh Organics, Inc., d/b/a Real Foods Co., a wholly-owned subsidiary of Nutraceutical Corp. and Nutraceutical Corp. (20-CA-31416-1 et al.; 350 NLRB No. 32) San Francisco, CA July 24, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35032.htm

A Board panel unanimously found that the single-employer Respondents, a chain of organic grocery stores and its corporate parent, violated Section 8(a)(3) and (1) of the Act by closing a store for a lengthy remodeling in the face of a nascent organizing drive.  Contrary to the rationale rooted in business analysis advanced by the administrative law judge, the Board instead found that the Respondents had not proven the store would have been closed in the absence of the organizing drive.  In its analysis, the Board largely relied on a series of "escalating events," including the Respondents' awareness of the drive, their unlawful termination of two prominent pro-union employees (the Board unanimously adopted the judge's finding of those Section 8(a)(3) violations), their receipt of a list of demands from two different pro-union employees, and their ultimate closure of the store and the consequent termination of its employees.  The panel also unanimously reversed the judge's finding that the Respondents violated Section 8(a)(1) by downgrading an employee's evaluation, finding instead that that issue was neither alleged in the complaint nor fully litigated.  Bouley, Inc., 306 NLRB 385, 386 (1992), supplemented by 308 NLRB 653 (1992), enfd. mem. 998 F.2d 1004 (3d Cir. 1993).

A divided panel adopted the judge's finding that the Respondents did not violate Section 8(a)(1) in two separate instances when low-level managers not involved in the closure decision expressed personal opinions to a pro-union employee concerning job loss and store closure.  A divided panel also found that the General Counsel failed to prove that the Respondents' implementation of a length-of-service award violated Section 8(a)(1), reversing the judge's finding of a violation.  On this, the Board focused on the fact that the award was a preexisting benefit of the corporate parent, which extended the benefit to all of its newly-acquired grocery stores.  See Nalco Chemical Co., 163 NLRB 68, 70-71 (1967) (finding improvements to vacation and holiday benefits did not violate Section 8(a)(1) in part because improvements applied corporate-wide).  Finally, a divided panel reversed the judge's conclusion that the Respondents' refusal to rehire a former employee violated Section 8(a)(3), finding instead that the Respondents were privileged to refuse to rehire the former employee due to her rude and disrespectful conduct in her application process.  Exterior Systems, Inc., 338 NLRB 677, 678 (2002).

Member Walsh dissented from the Board's findings on the alleged threats of job loss and store closure, the alleged unlawful service award, and the alleged unlawful refusal to rehire a former employee.  On the alleged threats, Member Walsh determined that the statements, because they involved job loss and store closure, had a tendency to coerce employees and violated Section 8(a)(1), regardless of the fact that the statements were made by store department managers not directly involved in the closure decision.  As for the service award which he found to violate Section 8(a)(1), Member Walsh relied largely on its timing, coming shortly after the organizing effort began at the store, as well as the lack of additional evidence regarding the corporate parent's decision to extend the benefit to its subsidiary stores.  Finally, Member Walsh would have affirmed the judge's finding that the refusal to rehire the former employee violated Section 8(a)(3), finding that the Respondents had not established that the former employee's rudeness was the actual reason she was not rehired.

(Members Schaumber, Kirsanow, and Walsh participated)

            Charges filed by Food and Commercial Workers Local 648, and Adriel Ahern, Joshua Peach, and Sarah Genlot-Joslyn, individuals; complaint alleged violation of Section 8(a)(3) and (1).  Hearing at San Francisco for 8 days between March 21 and April 22, 2005.  Adm. Law Judge James M. Kennedy issued his decision Nov. 18, 2005.

***

SEIU United Healthcare Workers-West (California Pacific Medical Center) (20-CG-65; 350 NLRB No. 34) San Francisco, CA July 23, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35034.htm

The Board majority of Chairman Battista and Member Kirsanow upheld the administrative law judge's finding that the Respondent Union violated Section 8(g) of the Act by inducing and directing employees of California Pacific Medical Center to refuse to volunteer to work overtime or extra shifts without providing the Hospital and the Federal Mediation and Conciliation Service (FMCS) 10 days' notice of the job action as required by the statute. On June 1, 2006, Union officials notified the Hospital that its members intended not to work overtime over the week of June 5.  The Union did not provide any prior notice of its action to FMCS.

The Board rejected the Respondent's argument that the Section 8(g) allegation be deferred to the parties' arbitration mechanism because the argument was not timely raised.  In adopting the judge's finding of a violation, the majority agreed with the judge that the employees' concerted refusal to volunteer for overtime fell within Section 8(g)'s notice requirement for "other concerted refusals to work."  The majority did not reach the issue of whether the employees' conduct in this case constituted a strike.  The majority also substituted a new order and notice.

In dissent, Member Liebman would find that the Union did not violate Section 8(g), relying on her earlier dissent in New York State Nurses Association (Mt. Sinai Hospital), 334 NLRB 798 (2001).  In that case, Member Liebman concluded that employees' refusal to volunteer for overtime did not constitute a "concerted refusal to work" within the meaning of Section 8(g) and therefore that the Union did not violate that provision by failing to provide the required notices.  Citing Alexandria Clinic, P.A., 339 NLRB 1262 (2003), enfd. 406 F.3d 1020 (8th Cir. 2005), Member Liebman also stated that, as a practical matter, there is no way for unions to comply with Section 8(g)'s notice requirements in cases involving concerted refusals to volunteer.  In such cases, Member Liebman noted that the employer exercises complete control over when employees will be asked to work overtime. As such, even where a union sets a prospective date and time for employees' refusal to volunteer, there is no guarantee that overtime will be offered precisely then.

Responding to Member Liebman's dissent, the majority stated that, at the very least, the Union was required to delay the start of its concerted refusal to volunteer for 10 days after announcing it on June 1. Noting that the Union sent no notice at all to FMCS, the majority also noted that the Union made no attempt to comply with Section 8(g)'s notice requirements. Accordingly, the majority found it unnecessary to address Member Liebman's "hypothetical concern."

(Chairman Battista and Members Liebman and Kirsanow participated.)

            Charge filed by California Pacific Medical Center; complaint alleged violation of Section 8(g).  Hearing at San Francisco, Oct. 3 and 25, 2006.  Adm. Law Judge Jay R. Pollack issued his decision Dec. 29, 2006.

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NLRB Law Memo 08/03/2007
by Ross Runkel at LawMemo

NLRB Law Memo 08/03/2007
by LawMemo - World's Best.

Also available by email.

NLRB - Staff summarized 2 decisions.

American Golf Corp. d/b/a Badlands Golf Course (28-CA-18753, et al.; 350 NLRB No. 28) Las Vegas, NV July 19, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35028.htm

The Board, in a 3-2 decision, found that the Respondent lawfully withdrew recognition from Laborers Local 872 a little more than 6 months after resuming bargaining pursuant to an Order of the Board, which had found that the Respondent's previous withdrawal of recognition was unlawful.

The Board reversed a 2004 decision of an administrative law judge that found that the second withdrawal violated Section 8(a)(5) of the Act. Applying the factors identified in Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), the Board found that a reasonable period of time for bargaining had elapsed after the resumption of negotiations pursuant to the Board's Nov. 2002 Order. The majority found it relevant that the parties had bargained for 8 months before the first withdrawal of recognition. Dissenting, Members Liebman and Walsh contended that the majority had misapplied Lee Lumber, in part by improperly relying on the earlier period of bargaining.

(Full Board participated.)

Charges filed by Laborers Local 872; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Las Vegas on Nov. 20, 2003. Adm. Law Judge Albert A. Metz issued his decision March 15, 2004.

***

Electrical Workers IBEW Local 2321 (Verizon New England) (1-CB-10559; 350 NLRB No. 29) Lawrence, MA July 18, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35029.htm

The Board adopted the administrative law judge's finding that the Respondent Union violated Section 8(b)(1)(A) of the Act by charging Gregory Burns with the overtime hours he worked during a concerted refusal to work overtime, but not charging the employees who had refused overtime as part of the concerted refusal. The Board modified the Order to conform to judge's recommendation that the overtime rule be rescinded and to conform to the Board's standard remedial language.

(Chairman Battista and Members Schaumber and Walsh participated.)

Charge filed by Gregory Burns, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Boston on Feb. 5, 2007. Adm. Law Judge Joel P. Biblowitz issued his decision April 11, 2007.

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