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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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