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NLRB Law Memo 09/24/2007
by Ross Runkel at LawMemo
NLRB Law Memo 09/24/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 7 decisions.
California
Newspapers Partnership d/b/a ANG Newspapers (32-CA-19276-1; 350 NLRB No. 89) San
Francisco Bay Area, CA Sept. 10, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35089.htm
The Board affirmed the administrative law judge’s
finding that the Respondent violated Section 8(a)(5) of the Act by
implementing a revised electronic mail policy on June 13, 2001, without
reaching impasse or agreement with the Union.
The Respondent argued, inter alia, that through management-rights and
“zipper” clauses in the parties’ collective-bargaining agreement, the
Union waived its right to bargain over the revised policy.
The Board agreed with the judge that the evidence failed to show a
clear and unmistakable waiver.
In a concurring footnote,
Member Kirsanow stated that in his view, the language of the zipper clause,
without more, would demonstrate a waiver.
However, he acknowledged Board precedent to the contrary.
While not passing on the soundness of those decisions, he observed
that they were the law at the time the parties entered into their agreement,
and therefore the parties could not have contemplated that the zipper clause
would constitute a waiver of the right to bargain over the revised e-mail
policy. On that basis, Member
Kirsanow agreed that the Respondent violated Section 8(a)(5) by implementing
the revised policy.
The Board’s Order
included a provision requiring the Respondent to rescind the June 13, 2001
revised e-mail policy. However,
the Board majority agreed with the Respondent that after rescission of the
June 13 policy, the Respondent’s January 1, 2001 e-mail policy will remain
in effect. The majority
emphasized that the judge found that there were two policies:
the January 1 policy and the June 13 revised policy. Only the June 13 policy was alleged to be unlawful.
Member Walsh, dissenting in part in a footnote, found that the
January 1 policy was never fully implemented.
Therefore, he found, there would be no e-mail policy in effect after
rescission of the June 13 revised policy, and the Respondent should be
required to bargain before implementing one.
(Members
Liebman, Kirsanow, and Walsh participated.)
Charge filed by Northern
California Media Workers Guild/Typographical Local #39521, TNG-CWA;
complaint alleged violations of Section 8(a)(1), (3), and (5).
Hearing at Oakland on Oct. 2, 2002.
Adm. Law Judge Clifford H. Anderson issued his decision Dec. 23,
2002.
***
Disneyland
Park (21-CA-35222;
350 NLRB No. 88) Los Angeles, CA Sept. 13, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35088.htm
The Board, in a 2-1 decision affirmed the
administrative law judge’s finding that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by denying the Union’s requests to view
certain subcontracts and files related to the bidding and performance of the
subcontracts; and reversed the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) by refusing to provide the Union with the
dates of each subcontract, the nature of the work, the dates upon which the
work was performed, and the names of the subcontractors performing the work.
In the latter connection, the Board noted that the requested
information was not presumptively relevant because it concerned
subcontracting agreements, and thus the General Counsel had the burden of
establishing either that (a) the Union had demonstrated the relevance of the
information, or (b) the relevance of the information should have been
apparent under the circumstances. The
Board found that the General Counsel failed to meet this burden.
In this regard, the Board stated that Section 23 of the parties’
collective-bargaining agreement allowed the Respondent to subcontract work,
provided that such subcontracting did not result in a termination, layoff or
failure to recall unit employees from recall.
The Board noted that, in its information requests, the Union had
stated that: it had observed
that there had been a number of subcontracts for work covered by the
agreement; it believed there had been an increase in subcontracts; at least
one employee had retired and not been replaced; and no new steward had been
hired, thus indicating that the Respondent was reducing its workforce and
subcontracting additional work. The
Board found that, under the circumstances, these explanations were
insufficient to demonstrate the relevance of the requested information
because there were no claims that: any
employee had been terminated or laid off; any previously laid-off employee
had not been recalled; or any such actions had resulted from subcontracting.
The Board noted that Section 23 began with a general sentence
prohibiting the Respondent from subcontracting “for the purpose of evading
its obligations under the agreement[,]” but the Board found that the Union
never had claimed that the subcontracting had that evasive purpose, and that
the surrounding circumstances would not have made the Respondent aware that
this was the Union’s concern.
Member Liebman dissented, stating that the
majority’s approach effectively required the Union to prove that it had a
meritorious grievance, contrary to the liberal, “discovery-type”
standard that is applied to information requests even in cases involving
subcontracting information. Member
Liebman stated that the asserted need to police compliance with a contract
provision on subcontracting can establish the relevance of
subcontracting-related information. Member
Liebman found that the Union had met its burden of establishing relevance by
pointing not only to a relevant contractual provision, but also to facts
prompting its concern that the contract had been violated:
an apparent increase in the volume of subcontracts and a possible
decrease of two bargaining-unit positions, coupled with the Union business
agent’s observation that unit employees seemed to be idle while
subcontractors were busy with bargaining-unit work.
Member Liebman stated that the contract prohibited subcontracting
“for the purpose of evading . . . obligations” under the agreement, and
thus the factual basis asserted by the Union was sufficient to support the
information request, even absent an actual layoff.
(Chairman
Battista and Members Liebman and Schaumber participated.)
Charge filed by Iron Workers Local 433;
complaint alleged violation of Section 8(a)(1) and (5).
Hearing at Los Angeles on March 31, 2003.
Adm. Law Judge Lana H. Parke issued her decision May 15, 2003.
***
Exceptional
Professional, Inc. d/b/a EPI Construction (17-CA-19272, et al.; 350 NLRB No. 81) Nixa,
MO Aug. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35081.htm
The Board adopted the administrative law judge’s
findings that the Respondent, a drywall installation contractor, violated
Section 8(a)(3) and (1) of the Act by refusing to hire two applicants. The
Board also adopted the judge’s findings that the Respondent violated
Section 8(a)(3) and (1) by refusing to consider eight applicants but that
the Respondent’s refusal to hire them did not violate the Act.
The Board found that the General Counsel
established his initial burden for showing that the Respondent’s refusal
to hire all 10 union-affiliated applicants, who were journeymen carpenters,
violated the Act. The Board
further found, however, that the Respondent met its rebuttal burden of
showing that it would not have hired 8 of them even in the absence of their
union activity or affiliations. The
Respondent did so by showing that the employees whom it hired to fill 8 of
the job openings had superior qualifications to those of the
union-affiliated applicants. These
8 had “immediate, observed, steady drywall employment.” They had substantial, recent experience in drywall work, and
the Respondent had directly observed the work of all but one, and that
individual came highly recommended by current employees.
Contrary to the judge, the Board found that
the Respondent did not fail to adhere to its hiring criteria but merely
deviated from its usual procedures for determining whether applicants met
those criteria. Thus, while the
Respondent did not consistently require that applicants follow the
procedures of completing an application, giving personal references, or
having interviews, those whom it hired satisfied the Respondent’s criteria
that applicants have substantial, recent experience in drywall work.
Member Walsh dissented from the Board’s
adoption of the judge’s dismissal of the refusal to hire allegations
regarding the 8 union-affiliated applicants.
In Member Walsh’s view, it was illogical for the judge, having
found that the Respondent applied its hiring criteria pretextually, to then
allow the Respondent to show that it would have refused to hire 8 of the
union applicants because it hired 8 other applicants who possessed stronger
qualifications. Having found
that the Respondent acted with antiunion animus and applied its hiring
criteria pretextually, the judge, in Member Walsh’s view, should not have
found that the Respondent acted lawfully in hiring 8 nonunion applicants,
based on their allegedly superior credentials.
Member Walsh further found that, regardless of whether it was the
Respondent’s hiring criteria or its hiring procedures that it applied
discriminatorily, the Respondent skewed its overall process to give
preferential treatment to nonunion applicants.
(Chairman
Battista and Members Walsh and Kirsanow participated.)
Adm. Law Judge Mary Miller
Cracraft issued her decision on remand Jan. 11, 2002.
***
Sunshine Piping, Inc.
(15-CA-16530; 350 NLRB No. 90) Panama City, FL Sept. 10, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35090.htm
In this case, the Board
adopted the administrative law judge’s finding that the Respondent
committed numerous 8(a)(1) violations, including unlawfully threatening
employees with plant closure if they selected a union as their
collective-bargaining representative, coercively interrogating employees
regarding their union membership, and enforcing a rule prohibiting employees
from displaying union logos or insignia on their personal attire.
The Board also adopted the administrative law judge’s findings that
the Respondent violated Section 8(a)(3) and (1) by unlawfully laying off and
failing to recall employees because of their union activity.
The Board (Members
Schaumber and Kirsanow; Member Liebman, dissenting) reversed the judge’s
finding that the Respondent violated 8(a)(1) by unlawfully creating the
impression that employees’ union activities were under surveillance.
The majority reasoned that a supervisor’s statement that “about
80 percent of the shop” had signed authorization cards was insufficient to
create an unlawful impression of surveillance because the statement
suggested only that the supervisor had been observing open activity
occurring on Respondent’s property, not that the Respondent was “closely
monitoring the degree and extent of [the employees’] organizing efforts
and activities.” Member Liebman would find that statement unlawful because it
“suggested (and surely was intended to suggest) a close and sustained
scrutiny, reasonably conveying the impression that [employees’] union
activities were under surveillance.”
(Members
Liebman, Schaumber, and Kirsanow participated.)
Charge filed by Plumbers Local 366;
complaint alleged violation of Section 8(a)(1) and (3).
Hearing at Panama City, Aug. 26-28, 2002.
Adm. Law Judge George Carson II issued his decision Nov. 1, 2002.
***
Grosvenor
Orlando Associates, LTD., d/b/a The Grosvenor Resort, and its general
partners (12-CA-18190;
350 NLRB No. 86) Lake Buena Vista, FL Sept. 11, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35086.htm
In Grosvenor
Resort, 336 NLRB 613 (2001), enfd. Grosvenor
Orlando Associates, Ltd. v. NLRB, 52 Fed. Appx. 485 (11th
Cir. 2002) (Table), the Board found that the Respondent unlawfully
discharged 44 of its housekeeping, service, and maintenance employees and
directed the Respondent to reinstate the employees and to make them whole
for any loss of earning and benefits resulting from their discharges.
In a supplemental decision, the administrative law judge resolved
numerous issues raised by the Respondent in opposition to the General
Counsel’s compliance specification alleging the amounts of backpay due to
the discriminatees.
The Board adopted the
judge’s findings regarding many of the discriminatees, but reversed his
findings regarding others. Specifically,
the Board reversed the judge’s findings that certain discriminatees did
not incur a willful loss of earnings by delaying their initial search for
interim work. In doing so, the
Board found that, absent circumstances justifying a longer delay, the
discriminatees should have begun their initial search for interim work
within the 2-week period following their discharges.
As the Board found that several discriminatees did not begin their
search at any time during this period, the Board tolled the
discriminatees’ backpay until they commenced a proper job search.
The Board also reversed the judge’s findings that several
discriminatees reasonably mitigated their damages once they commenced their
search for interim work. In
this connection, the Board found that several discriminatees did not conduct
adequate searches for interim work because they applied to only a few
employers during the relevant time period.
The Board thus tolled their backpay for the relevant period.
Member Walsh dissented,
stating that he would affirm the judge’s findings, for the reasons the
judge states in his decision.
(Chairman
Battista and Members Schaumber and Walsh participated.)
Hearing at Lake Buena Vista and Orlando on
12 days between Nov. 15, 2004 and Jan. 20, 2005.
Adm. Law Judge Benjamin Schlesinger issued his decision June 29,
2005.
***
Towne
Bus LLC
(29-RC-11389, 11390; 350 NLRB No. 91) Holtsville, NY Sept. 12, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35091.htm
The Board, in a 2-1 decision involving Towne Bus LLC,
a Holtsville, NY bus company, adopted the hearing officer’s report
recommending that an election held Dec. 8, 2006 be set aside and a new
election held.
An election objection
filed by Amalgamated Transit Local 1181-1061 alleged, inter alia, that the
Employer promised future benefits to employees in order to dissuade them
from voting for the Union. In
agreement with the hearing officer, a majority of the panel (Members
Kirsanow and Walsh) found that the Employer’s issuance of a new employee
manual shortly before the election that stated that employees would receive
future increases in wages and benefits was a promise of future benefits
because it represented a change in existing terms and conditions of
employment. They relied on
precedent holding that the employer had the burden of demonstrating that the
future benefits promised in the manual were part of an already-established
company policy. See Mercy
Hospital Mercy Southwest Hospital, 338 NLRB 545 (2002).
Chairman Battista,
dissenting, would have overruled the objection.
In his view, the Union failed to establish that the existing terms
and conditions of employment differed from those stated in the employee
manual and the Union failed to show that the announced increases had not
been previously scheduled to occur on those dates.
These were matters as to which the objecting party had the burden of
proof, in his view.
(Chairman
Battista and Members Kirsanow and Walsh participated.)
***
United
Workers of America (2-CB-18037; 350 NLRB No. 92) New York, NY Sept. 13, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35092.htm
In the absence of good cause being shown for the
Respondent’s failure to file a timely answer to the complaint, the Board
partially granted the General Counsel’s motion for summary judgment and
held that the Respondent violated Section 8(b)(1)(A) of the Act by accepting
assistance from Planned Building Services, Inc. (PBS) in soliciting
authorization from employees to deduct union dues from their paychecks, and
by telling PBS employees that they were required to sign authorization
cards.
Chairman Battista and
Member Kirsanow denied the General Counsel’s motion for summary judgment
concerning allegations that the Respondent violated Section 8(b)(1)(A) and
(2) by accepting recognition from PBS and entering into a
collective-bargaining agreement with PBS at 80-90 Maiden Lane, New York
City, NY and dismissed that portion of the complaint.
They relied on their prior dismissal of the allegation that PBS’
recognition of the Respondent at 80-90 Maiden Lane violated the Act (see 350
NLRB No. 80, slip op. at 8). Member
Liebman found that PBS’ recognition of the Respondent at 80-90 Maiden Lane
violated the Act. Therefore,
she would find that the Respondent violated Section 8(b)(2) and (1)(A) by
accepting recognition from PBS and maintaining the collective-bargaining
agreement. See 350 NLRB No. 80,
slip op. at 16.
(Chairman
Battista and Members Liebman and Kirsanow participated.)
Charge filed by Service Employees Local
32B-32J; complaint alleged violation of Section 8(b)(1)(A) and (2).
General Counsel filed motion for summary judgment Feb. 19, 2002.
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NLRB Law Memo 09/17/2007
by Ross Runkel at LawMemo
NLRB Law Memo 09/17/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 7 decisions.
DTR
Industries, Inc.
(8-CA-33708-1; 350 NLRB No. 85) Bluffton, OH Sept. 7, 2007.
http://www.nlrb.gov/shared_files/Board
Decisions/350/v35085.htm
A
three-member Board Panel unanimously adopted the administrative law judge's
finding that the Respondent violated Section 8(a)(1) of the Act by creating
the impression that employees' union activities were under surveillance,
threatening to discipline an employee if he continued to engage in union
activities, disparately enforcing its uniform policy, and threatening
employees with job loss and layoffs if they unionized.
The Board also unanimously reversed the judge's finding that the
Respondent violated Section 8(a)(3) by discharging Daniel Gahman.
In addition, a majority composed of Chairman Battista and Member
Schaumber reversed the judge's finding that the Respondent violated Section
8(a)(3) by suspending, discharging, re-suspending, and failing properly to
reinstate John Callahan. Member
Liebman dissented.
The Respondent manufactures and supplies parts for
automobile companies. The
allegations arose in the context of an organizational campaign.
In upholding the threat of job loss violation, the
Board distinguished a Sixth Circuit case involving the same Respondent, DTR Industries, Inc., v. NLRB, 39 F.3d 106 (6th Cir.
1994), in which the court reversed the Board's finding of violation and
found that arguably similar remarks were protected by Section 8(c) of the
Act. In the earlier case, the
Respondent's then-president distributed a letter to employees summarizing
what he described as critical factors to consider with respect to an
upcoming representation election. Among
those considerations was the possibility of losing business.
The court determined that the letter provided an objective context
and explained reasons why he believed that the Respondent might lose its
"sole source" status with certain customers who might "split
their business in order to have an alternative supply source in the event of
a strike." Because the
letter explained that the president's perspective was based upon his
industry experience and knowledge of the customer base, his statement was
not unlawful. In the
instant case there is no objective documentation of the alleged unlawful
statements, but rather the evidence consists entirely of witnesses'
testimonial accounts. Credited
employee testimony established that the Respondent's executive coordinator
simply conveyed the message that unionizing would result in the loss of
customers, a decrease in business, and ultimately the loss of jobs, without
providing a basis for such beliefs or context for his perspective.
Because his predictions were not "carefully phrased on the basis
of objective fact . . . as to demonstrably probable consequences beyond . .
. [the Respondent's] control," as required under NLRB
v. Gissel Packing Co., 395 U.S. 575, at 618 (1969), the Board agreed
with the judge's finding of violation of Section 8(a)(1).
With respect to both Section 8(a)(3) allegations, the
Board assumed that the General Counsel had carried its initial Wright-Line
burdens and that it was necessary for the Respondent to establish that it
would have taken those disciplinary actions irrespective of unlawful
considerations. Regarding
Gahman, who was discharged following the receipt of drug test results, the
Board rejected the judge's disparate treatment analysis as
"fundamentally flawed," and based on a "strained
interpretation" of the lab report as well as an erroneous comparison of
non-equivalent situations. The Board concluded that he was legitimately discharged for
violating company policy by attempting to circumvent the purpose of the test
and acting dishonestly. As for
Callahan, the majority found that the Respondent acted upon a reasonable
belief that during a two-day period, he deliberately produced hundreds of
defective, useless parts, costing the Respondent several thousand dollars in
losses. Absent an alternative
objective explanation for this experienced and skilled employee's sudden
soaring error rate, the majority concluded that the Respondent would have
disciplined Callahan as it did irrespective of his union activity.
In dissent, Member Liebman observed that absent any
evidence that Callahan was motivated to sabotage his own work, his spurt of
production errors may have been the result of difficulty in adjusting to the
configuration of the line to which he was assigned, one that was set up in a
mirror-image of his usual work station.
In any event, the evidence shows that the Respondent initially
discharged Callahan without a thorough investigation and that the severity
of the discipline imposed following the "peer review" panel's vote
to overturn his discharge (three and one half month unpaid suspension
followed by reassignment to a less desirable job and shift) appear to be at
odds with the Respondent's more typical disciplinary practices involving
employees who were not involved in union activity
(Chairman
Battista and Members Liebman and Schaumber participated.)
Charge filed by the Auto Workers; complaint
alleged violations of Section 8(a)(1) and (3).
Hearing at Lima, Ohio, Dec. 16-18, 2003.
Adm. Law Judge John H. West issued his decision April 9, 2004.
***
Teamsters
Local 579 (Chambers & Owen, Inc.) (30-CB-4550-1; 350 NLRB No. 87)
Janesville, WI Sept. 7, 2007.
http://www.nlrb.gov/shared_files/Board
Decisions/350/v35087.htm
The Board majority of Chairman
Battista and Members Schaumber and Kirsanow found that the Respondent-Union
breached its duty of fair representation and violated Section 8(b)(1)(A) of
the Act by failing to provide certain data relating to expenditures to
"Beck objectors." In Communications
Workers v. Beck, 487 U.S. 735 (1988), the Supreme Court found that
Section 8(a)(3) does not permit a union to spend funds collected from
objecting non-members under a union security provision on activities
unrelated to collective bargaining, contract administration,
or grievance adjustment. These
employees are entitled to a reduction in their dues based on the percentage
of union expenditure spent on "non-chargeable" activities.
The
Board majority denied the Union's motion for summary judgment requesting
dismissal of the allegation and granted Charging Party Jones' cross-motion
for summary judgment requesting a finding of the violation.
The Board found that under the Supreme Court's decision in Chicago Teachers' Union Local 1 v. Hudson, 475 U.S. 292 (1986),
"basic considerations of fairness" require that Beck objectors be given sufficient information so as to determine
whether they should challenge the union's apportionment of expenditures into
chargeable and non-chargeable categories.
The Board also noted that in Penrod
v. NLRB, 203 F.3d 41 (D.C. Cir. 2000) (denying enforcement of Teamsters
Local 166 (Dyncorp Support Services), 327 NLRB 950 (1990)(Dyncorp
I), decision upon remand, 333 NLRB 1145 (2001)(Dyncorp II)), the D.C. Circuit rejected the Board's finding in Dyncorp
I, supra, that the duty of fair representation does not require a union
to identify "per capita" payments to affiliate organizations
prior to a challenge of the unions' reduced dues and fees calculation. Accordingly,
the Board here ordered the Union to cease and desist and provide Jones with
the following information regarding its affiliate expenditures for 1999:
the major categories of expenditures of each of the affiliates with
which it shared income from dues and fees, the percentages of each such
category of each affiliate that it allocated to chargeable and nonchargeable
expenses, and a detailed explanation of how the affiliates' expense
allocations were calculated.
In dissent, Members Liebman and Walsh stated that,
pursuant to the three-step procedure announced in California
Saw & Knife Works, 320 NLRB 224, 230 (1990), they would find that
the union had no legal duty of fair representation to provide the
information at issue prior to the filing of a challenge to the union's
reduced fee calculation. Specifically,
the dissent asserts that: [t]he
procedure announced in California Saw
and applied in Dyncorp I
appropriately balances unions' interest in administrative economy and
efficiency and Beck objectors' need for information concerning the expenditures of
affiliates with which unions share income from dues and fees.
The dissent criticized the majority on two grounds:
first, its reliance on the Supreme Court's opinion in Hudson,
supra, is inapposite because Hudson
concerned a public sector union and was decided the case on constitutional
grounds – and not under the duty of fair representation.
Second, the majority ignored the possibility that the Supreme Court
would have deferred to the Board' prior view in Dyncorp
I because of its administrative expertise in interpreting the
Act. Chevron U.S.A. v. Natural Resources Defense Council,
467 U.S. 837, 844 (1984).
(Full
Board participated.)
Charge filed by Brandon M. Jones, an
individual; complaint alleged violation of Section 8(b)(1)(A).
Respondent filed motion for summary judgment Nov. 24, 2003 and
Charging Party filed cross motion for summary judgment Dec. 22, 2003.
***
AM
Property Holding Corp., et
al. (2-CA-33146-1, et al.; 350 NLRB No. 80) New York, NY Aug. 30,
2007.
http://www.nlrb.gov/shared_files/Board
Decisions/350/v35080.htm
The
Board reversed the administrative law judge's finding that AM Property
Holding Corporation and Planned Building Services, Inc., and AM Property
Holding Corporation and Servco Industries, Inc., respectively, were joint
employers of the maintenance employees at a building located at 80-90 Maiden
Lane in the Wall Street section of New York City.
Having rejected the judge's joint employer findings, the Board
reversed his findings that the Respondents were joint successors as alleged
in the complaint, that they had a successorship obligation to recognize and
bargain with Service Employees Local 32BJ, and that they violated Section
8(a)(5) and (1) of the Act by refusing to bargain with that Union.
Member Liebman concurred, finding that the majority had correctly
applied controlling law. However,
she urged the Board to reconsider its current joint employer standard,
maintaining that the standard effectively frustrates collective bargaining
in the context of the subcontracting of work.
Based on the Board's conclusion that Planned Building
Services had no obligation to bargain with Local 32BJ as a successor
employer, a majority consisting of Chairman Battista and Member Kirsanow
reversed the judge's finding that Planned Building Services violated Section
8(a)(2) and (1) by recognizing the United Workers of America as the
representative of its employees at 80-90 Maiden Lane.
Although the General Counsel had also alleged and argued to the judge
that the recognition was unlawful because the United Workers of America did
not represent an uncoerced majority at the time of recognition, the Board
majority found that it was precluded from deciding whether there was a
violation on that basis because the General Counsel did not except to the
judge's failure to reach the issue. Dissenting,
Member Liebman would excuse the General Counsel's technical error in the
circumstances of this case, find that the issue was properly before the
Board, and find that the recognition was unlawful.
The Board affirmed the judge's findings that AM
Property Holding Corporation and Planned Building Services independently
violated Section 8(a)(3) and (1) by refusing to hire the building's former
maintenance employees because they supported Local 32BJ.
Chairman Battista and Member Kirsanow dismissed an allegation that
Servco similarly violated the Act by refusing to hire striking employees of
Planned Building Services, rejecting the judge's finding that Servco had
acted to prevent the employees from applying for positions.
Member Liebman dissented, finding that various statements made by
officials of Servco and AM Property Holding Corporation established that the
strikers were effectively precluded from seeking positions with Servco.
The Board affirmed the judge's findings that AM
Property Holding Corporation violated Section 8(a)(1) by threatening
employees with discharge for supporting Local 32BJ, interrogating employees
about their support for that Union, creating the impression of surveillance,
and indicating to employees that support for Local 32BJ would be futile.
The Board also affirmed the judge's finding that Servco violated
Section 8(a)(1) by threatening employees with discharge for speaking with
representatives of Local 32BJ. Finally,
the Board affirmed the judge's findings that Planned Building Services
violated the Act by unlawfully assisting the United Workers of America,
threatening employees with discharge for supporting Local 32BJ, and
threatening a witness during the hearing.
(Chairman
Battista and Members Liebman and Kirsanow participated.)
Charges filed by Service Employees Local
32BJ; complaint alleged violation of Section 8(a)(1), (2), (3), and (5).
Hearing at New York City on 17 days in March, April, and May 2002.
Adm. Law Judge Steven Davis issued his decision May 13, 2003.
***
BCE
Construction, Inc.
(17-CA-18556, et al.; 350 NLRB No. 78) Branson, MO Aug. 31, 2007.
http://www.nlrb.gov/shared_files/Board
Decisions/350/v35078.htm
The
Board adopted the administrative law judge's findings that the Respondent
violated Section 8(a)(1) of the Act by threatening to discharge employees
because of their protected concerted activities, by creating an impression
of surveillance of employee union activities, by forbidding employees to
talk about the Union, and by
interrogating employees about their protected concerted activities.
As to this last violation, the Board based its finding on one
specific incident and found it unnecessary to pass on two other alleged
incidents of unlawful interrogation because they would be cumulative and
have no effect on the remedy. The
Board also adopted the judge's finding that the Respondent violated Section
8(a)(1) by informing employees that it would be futile to support
unionization. The Board adopted
this finding pro forma because the Respondent's exception on this point
failed to conform to Section 102.46 of the Board's Rules and
Regulations.
The Board also adopted the judge's findings that the
Respondent violated Section 8(a)(3) by unlawfully refusing to consider for
hire and to hire nine "salts" pursuant to the Board's holding in FES, 331 NLRB 9 (2000), supplemental decision 333 NLRB 66 (2001),
enfd. 301 F.3d 83 (3d Cir. 2002). The
Board noted that the duration of the backpay of these discriminatees would
be determined in accordance with Oil
Capitol Sheet Metal, 349 NLRB No. 118 (2007).
The Board also adopted the judge's finding that the Respondent
violated Section 8(a)(3) by
unlawfully discharging one employee pursuant to the Board's holding in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983).
The Board noted that this discriminatee was not a "salt"
like the other nine discriminatees, and, therefore, Oil Capitol did not apply to this discriminatee.
(Chairman
Battista and Members Liebman and Schaumber participated.)
Charges filed by Carpenters Local 978; complaint
alleged violations of Section 8(a)(1) and (3).
Hearing at Overland Park, KS, April 25, 2001, and Springfield, MO,
May 5 and 6, 1997. Adm. Law
Judge Pargen Robertson issued his decision Aug. 11, 1997 and supplemental
decision July 9, 2001.
***
CGLM, Inc. (15-CA-17889;
350 NLRB No. 77) Jefferson, LA Aug. 27, 2007.
http://www.nlrb.gov/shared_files/Board
Decisions/350/v35077.htm
In this case, the Board adopted the administrative law judge's finding
that the Respondent violated Section 8(a)(1) of the Act by discharging
several employees for their act of "going on strike," which
constituted concerted protected activity.
The Board also affirmed the judge's finding that the Respondent
failed to establish that the Respondent's warehouse manager was a
Section 2(11) supervisor.
(Chairman
Battista and Members Kirsanow and Walsh participated.)
Charge filed by Alan Kansas, an individual;
complaint alleged violation of Section 8(a)(1).
Hearing at New Orleans, June 26-27, 2006.
Adm. Law Judge George Carson II issued his decision Aug. 28, 2006.
***
Consolidated
Bus Transit, Inc. and
Teamsters Local 854 (2-CA-34661, et al., 2-CB-19125, et al.; 350 NLRB
No. 92) Brooklyn, NY Aug. 31, 2007.
http://www.nlrb.gov/shared_files/Board
Decisions/350/v35092.htm
Reversing
the administrative law judge, the Board held that the Respondent Employer
violated Section 8(a)(3) and (1) of the Act by discharging bus driver Juan
Carlos Rodriguez. The Board
found that the Respondent Employer knew of Rodriguez's protected activities
of organizing and leading four to six employee meetings to discuss the
quality of representation by the Respondent Union, Teamsters Local 854,
which represented the bus drivers and contacting Teamsters for a Democratic
Union, which brought the unfair labor practice charges.
The Board also found that the Respondent Employer demonstrated union
animus by, among other things, following, video-taping, and disciplining
Rodriguez because of those activities.
The General Counsel demonstrated to the Board that the
Respondent Employer's union animus was a substantial or motivating factor
leading to Rodriguez's discharge. Rodriguez
was singled out for driver testing for unlawful reasons (to which finding no
party excepted). Even though
Rodriguez failed two tests due to his deficient performance, his
qualification for employment would never have been jeopardized were it not
for the Respondent Employer's unlawful actions.
Absent circumstances not present, he should have remained qualified
for employment until his next lawfully-administered test.
The Board found that, by unlawfully singling out Rodriguez for
testing, the Respondent Employer orchestrated the circumstances leading to
his premature disqualification from driving and that he would not have been
discharged but for his protected concerted activities.
The Board ordered that Rodriguez be reinstated conditioned upon his
demonstrating that he has reestablished his driver certification within a
reasonable time of the offer of reinstatement and that he be made whole from
the date of his discharge to the date when he would have been required,
under standard testing procedures, to be recertified.
The Board also found a violation of Section 8(b)(1)(A)
by the Respondent Union. The
day that the Respondent Union received a copy of a charge filed by employee
Jona Fleurimont against it, Respondent Union President Daniel Gatto engaged
in a heated exchange with Fleurimont at a meeting after Fleurimont accused
Gatto and the Respondent Union of breaking his car windows.
Gatto told Fleurimont that, if he "had a beef with [Fleurimont],"
he would not break his windows; he would "break something else."
The Board reversed the administrative law judge's recommended
dismissal of the allegation that Gatto's statement constituted an 8(b)(1)(A)
threat. The Board found that
Gatto's statement would reasonably have been interpreted by Gatto as a
threat of physical violence. Gatto
admitted that his anger toward Fleurimont stemmed from the Board charges, to
which Gatto made specific reference prior to the threat.
The Board found that Gatto's statement would reasonably have a
tendency to coerce and restrain Fleurimont in the exercise of his rights
under the Act and thereby violated Section 8(b)(1)(A).
(Chairman
Battista and Members Liebman and Schaumber participated.)
Charges filed by Jona Fleurimont and Jose
Guzman, individuals; complaint alleged violation of Section 8(a)(1) and (3)
Section 8(b)(1)(A). Hearing at
New York on 15 days between March 22 and July 21, 2004; reopened hearing
held May 9-12, 2005. Adm. Law
Judge Eleanor MacDonald issued her decision July 21, 2005.
***
Electrical
Workers IBEW Local 98 (TRI-M Group, LLC)
(4-CB-9713; 350 NLRB No. 83) Philadelphia, PA Aug. 31, 2007.
http://www.nlrb.gov/shared_files/Board
Decisions/350/v35083.htm
The
Board affirmed the administrative law judge's finding that the Respondent
violated Section 8(b)(1)(A) of the Act by blocking an employee from entering
a jobsite who was attempting to perform a work task.
The Board also adopted the judge's finding that a broad
cease-and-desist order was warranted. In
so doing, the Board noted that it is proper to consider prior Board and
court orders when determining whether a respondent has a proclivity
to violate the Act.
(Chairman
Battista and Members Kirsanow and Walsh participated.)
Charge filed by TRI-M Group, LLC; complaint alleged
violation of Section 8(b)(1)(A). Hearing
at Philadelphia on Jan. 25, 2007. Adm.
Law Judge Paul Buxbaum issued his decision April 10, 2007.
***
Starwood
Hotels & Resorts Worldwide, Inc., d/b/a Sheraton Universal Hotel (21-CA-36429; 350 NLRB No. 84) Universal City, CA Aug. 31, 2007.
http://www.nlrb.gov/shared_files/Board
Decisions/350/v35084.htm
The
Board majority of Chairman Battista and Member Schaumber reversed the
administrative law judge's finding that Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Front Desk Supervisor Kevin Grace for his
refusal to remove a union button from his shirt.
The majority found that the discharge was lawful because Grace was a
supervisor under Section 2(11) and therefore excluded from the coverage of
the Act. The supervisory
finding was based on Grace's authority to effectively recommend discipline
and to effectively recommend against hiring applicants, as well as secondary
indicia. The complaint was
dismissed in its entirety.
In finding Grace possessed supervisory
authority to effectively recommend discipline, the majority discussed how
Grace initiated disciplinary action through "coach-and-counsel"
sessions and made a recommendation that an employee be harshly disciplined
after Grace had repeatedly coached the employee about treating hotel guests
rudely. Management followed
Grace's recommendation without evidence of an independent investigation.
The majority relied on Progressive
Transportation Services, 340 NLRB 1044 (2003) and Mountaineer
Park, Inc., 343 NLRB 1473 (1474-1475) (2004), both cases where
supervisors similarly made recommendations to discipline employees and such
recommendations were typically accepted by upper management without further
investigation.
In finding Grace possessed supervisory authority to
effectively recommend against hiring, the majority relied on the testimony
of Director of Rooms Tony Fernandez. Fernandez
testified that the Front Desk Supervisors' hiring recommendations were
"very, very key," and if Grace recommended that a candidate not be
hired, that "would be fatal."
The majority cited Berger
Transfer & Storage, 253 NLRB 5, 10 (1980), enfd. 678 F.2d 679 (7th
Cir. 1982), supplemented by 281 NLRB 1157 (1986) and HS Lordships, 274 NLRB 1167, 1173 (1985) for the proposition that
the authority to effectively recommend against
hiring a candidate establishes supervisory authority.
And while Fernandez did not discuss specific examples of Grace giving
a negative hiring recommendation, the majority noted that Section 2(11)
requires only possession of supervisor authority and not its actual
exercise, citing N.L.R.B. v. Southern
Seating Co., 468 F.2d 1345, 1347 (4th Cir. 1972).
Member Walsh dissented arguing that Grace was the sort
of "minor supervisory employee" whom Congress intended the Act to
protect, citing NLRB v. Bell Aerospace
Co., 416 U.S. 267, 279-283 (1974).
He agreed with the judge that Respondent violated 8(a)(3) of the Act
by discharging Grace for refusing to remove a union button.
Member Walsh asserted that the majority ignored the strongly worded,
on-point decision, Jochims v. NLRB,
480 F.3d 1161 (2007), reversing Wilshire
at Lakewood, 345 NLRB No. 80 (2005).
That case admonished the Board for broadening the scope of
supervisory authority without regard to precedent.
Member Walsh found that Grace's couch-and-counsel duties were merely
reportorial. He also found the
one example of Grace's recommendation to discipline an employee insufficient
to establish supervisory authority. In
his view, the recommendation was vague, and there was no showing that
management disciplined the employee as a result of Grace's recommendation. As for Grace's authority to effectively recommend against
hiring, Member Walsh found the evidence was insufficient because it
consisted of Fernandez's conclusory testimony alone.
(Chairman
Battista and Members Schaumber and Walsh participated.)
Charges filed by UNITE HERE Local 11;
complaint alleged violation of Section 8(a)(1) and (3).
Hearing at Los Angeles, Sept. 28 and 29, 2005.
Adm. Law Judge Lana H. Parke issued her decision Dec. 2, 2005.
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NLRB Law Memo 09/06/2007
by Ross Runkel at LawMemo
NLRB Law Memo 09/06/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 6 decisions.
Can-Am
Plumbing, Inc. (32-CA-16097; 350 NLRB No. 75) Pleasanton, CA Aug. 24,
2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35075.htm
Upon remand from the United States Court of Appeals for the District of Columbia Circuit, the Board affirmed its previous holding, reported at 335 NLRB 1217 (2001), that the Respondent violated Section 8(a)(1) of the Act by maintaining and prosecuting a preempted state court lawsuit against competitor L. J. Kruse Company for accepting job targeting program funds from the Union for a construction project. The state lawsuit alleged that the acceptance of the funds violated the California Labor Code and the California Business and Professions Code, because some of the money collected by the Union for the job targeting program was derived from wages earned on state prevailing wage projects.
The court agreed with the Board that the state lawsuit was preempted with respect to dues from employees on projects not funded by the Davis-Bacon Act, and further ruled that preempted lawsuits are unlawful without regard to the First Amendment analysis of Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983). Can-Am Plumbing v. NLRB, 321 F.3d 145 (D.C. Cir. 2003). However, the court remanded the proceeding to the Board for further consideration of whether the inclusion of dues from federal prevailing wage projects under the Davis-Bacon Act rendered the entire JTP unprotected by the National Labor Relations Act.
The Board accepted the court's decision as the law of the case. In response to the court's remand, the Board found that the Respondent did not contend in Board proceedings, including its exceptions to the administrative law judge's decision, that the Union's job targeting program was unprotected because it included money from Davis-Bacon project wages. Rather, the Respondent alleged only a conflict with state law. Therefore, the Board concluded that, under Section 102.46 of its Rules and Regulations, the Respondent waived the argument that the job targeting program violated the Davis-Bacon Act and was consequently unprotected.
In view of the Respondent's failure to raise this issue, the Board relied on its decision in Manno Electric, 321 NLRB 278, 298 (1996), enfd. mem. 127 F.3d 34 (5th Cir. 1997), that job targeting programs are protected. On that basis, and applying the court's decision, the Board affirmed its determination that the Respondent unlawfully maintained and prosecuted the preempted state court lawsuit.
(Chairman Battista and Members Liebman and Walsh participated.)
***
Goya
Foods of Florida (12-CA-21168, et al.; 350 NLRB No. 74) Miami, FL August
23, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35074.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 unilateral actions without giving the Union notice and an opportunity to bargain: (i) assigning a new store account to a bargaining unit driver's delivery route; (ii) reassigning a store vacated by a departing employee to another sales employee; (iii) changing the night shift starting time for warehouse employees; (iv) assigning stores previously serviced by a unit driver to non-unit agency drivers; (v) changing the delivery routes of drivers; and (vi) eliminating drivers' ability to arrange both the order of daily deliveries and the order in which goods were to be loaded onto their delivery trucks. The Board found no need to pass on whether these last two changes also violated Section 8(a)(3).
The Board
relied on its decision in an earlier case involving the same parties to
reject two common defenses raised by the Respondent against unilateral
change allegations. The
Respondent contended that all changes took place after it lawfully withdrew
recognition from the Union as the previously certified bargaining
representative of employees in two bargaining units.
However, in Goya Foods of Florida, 347 NLRB No. 103 (2006)(Goya I), the Board found that the withdrawal of recognition was
unlawful and ordered the Respondent to recognize and bargain with the Union
as the continuing majority representative of unit employees.
The Respondent also contended that it had no obligation to bargain
about changes in route and store assignments because such changes were
consistent with an alleged past practice of maintaining a dynamic status quo
in which the stores assigned to sales employees and drivers varied daily.
The Board rejected the same argument in Goya
I, finding that the Respondent relied on "an historic right to act
unilaterally, as distinct from an established practice of doing so . . . . [T]hat
right to exercise sole discretion changed once the Union became the
certified representative." 347
NLRB No. 103, slip op. at 3.
The Board affirmed the judge's ruling that the General Counsel did not engage in impermissible relitigation or piecemeal litigation of various allegations in this proceeding. It rejected the Respondent's contention that the judge erred by issuing a decision before the Board issued its decision in Goya I. Finally, the Board summarily affirmed the judge's dismissal of allegations that the Respondent violated Section 8(a)(5) by its assignment of overtime to warehouse employees and that it violated Section 8(a)(1) by threatening an employee.
(Members Liebman, Schaumber, and Kirsanow participated.)
Charges filed by UNITE!; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Miami, Feb. 24 and 25, 2003. Adm. Law Judge George Carson II issued his decision April 24, 2003.
***
Success
Village Apartments, Inc. (34-CA-11110, et al.; 350 NLRB No. 72)
Bridgeport, CT Aug. 20, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35072.htm
The Board, reversing the administrative law judge, found that the Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to bargain over its new policy that precluded union-represented employees from purchasing apartments at its cooperative apartment complex. The Board also found that the Respondent did not violate Section 8(a)(3) and (1) by refusing to allow employee Luis Andrade to purchase an apartment. The Board majority of Chairman Battista and Member Kirsanow found that the subject matter of housing for employees in this case was not a term or condition of employment and did not pertain to the employment relation. Accordingly, the Board found that it was not a mandatory subject of bargaining under Section 8(a)(5) or discrimination as to working conditions or tenure of employment under Section 8(a)(3).
The Board distinguished prior Board cases in which housing for employees was intimately connected to the employment relation, the so-called "company housing" cases. In those cases, company housing was maintained to assure or promote the continuous availability of employees and the convenience and economic benefit of the special accommodations were an important part of the employment relation. Here, in contrast, the Respondent offered housing to the general public and only a small fraction of apartments was occupied by bargaining unit employees. Further, employees had historically paid market rates and the subject of housing had never been contained in any collective-bargaining agreement or had been a subject of meaningful bargaining.
Member Liebman dissented. In her view, the former longstanding policy of permitting employees to purchase apartments was an emolument of value that was connected to terms and conditions of employment because it impacted commuting to work, enhanced the ability to work overtime, and made housing available, near their employment, at below-market cost compared to surrounding area housing. The dissent also found that the new policy was directly linked to employment tenure because the opportunity to purchase an apartment was effectively conditioned on an employee's resignation from employment and was implemented in retaliation for the exercise of Section 7 rights.
The Board unanimously found also that the Respondent violated Section 8(a)(1) when its property manager told an employee that the Respondent's board of directors did not want union-represented employees to live at the apartment complex. The Board noted that the complaint did not allege that the Respondent's new housing policy independently violated Section 8(a)(1) and that the Board was not considering whether the policy may have independently violated Section 8(a)(1).
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charges filed by Auto Workers Local 376; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Hartford, Oct. 17-19 and 25, 2005. Adm. Law Judge Raymond P. Green issued his decision Jan. 25, 2006.
***
United
Rentals, Inc. (8-CA-34853, et al.; 350 NLRB No. 76) Columbiana and East
Liverpool, OH Aug. 24, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35076.htm
The Board adopted all of the administrative law judge's unfair labor practice findings. There were multiple Section 8(a)(1) findings as well as Section 8(a)(3) and 8(a)(5) findings. The Respondent engaged in these unfair labor practices during the Union's successful effort to organize approximately 15 employees working for the Respondent.
The Board affirmed the judge's findings that the Respondent violated Section 8(a)(3) by suspending annual performance evaluations and pay raises; by discontinuing its practice of permitting employees to rent equipment without charge; by imposing a stricter dress code; and by changing its practice of permitting employees to call in before a scheduled shift to advise that they would be late. In so doing, the Board clarified the applicable legal standard. The General Counsel easily met his initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U. S. 393, 399-403 (1983). The Respondent's proffered nondiscriminatory reasons for the conduct at issue were unworthy of belief and therefore pretextual. Thus the Respondent failed to show that it would have taken the same actions even in the absence of its employees' union activity. Golden State Foods Corp., 340 NLRB 382,385 (2003); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F. 2d 799 (6th Cir. 1982).
The Board also affirmed the judge's findings that the Respondent violated Section 8(a)(5) as well as Section 8(a)(3) concerning the conduct at issue. In so doing, the Board rejected the Respondent's contention that there was no material, substantial, and significant change with respect to the Respondent's equipment rental, uniform and call-in policies. The loss of free equipment rentals, the Respondent's enforcement of a more stringent uniform policy, and the Respondent's imposition of discipline pursuant to the changed call-in policy clearly had a detrimental effect on employees. Vanguard Fire & Security Systems, 345 NLRB No. 77, slip op. at 2 (2005); Toledo Blade Co., 343 NLRB 385, 388 (2004).
Member Schaumber agreed with his colleagues and the judge that the Respondent violated Section 8(a)(3) by withholding annual evaluations and pay raises, and by changing its equipment rental, uniform, and call-in policies. However, he found it unnecessary to pass on the judge's additional findings that the Respondent's conduct also violated Section 8(a)(5) because the additional findings would not materially affect the remedy. Strand Theatre of Shreveport Corp., 346 NLRB No. 51, slip op. at 1, fn. 2 (2006).
(Members Liebman, Schaumber and Kirsanow participated.)
Charges filed by Operating Engineers Locals 66, 66A, B, C, D, O, and R; complaint alleged violations of Sections 8(a)(1), (3), and (5). Hearing at Columbiana, Feb. 1-3, March 15, and Aug. 30, 2005. Adm. Law Judge Michael A. Rosas issued his decision Jan. 30, 2006.
***
Virginia
Mason Medical Center (19-CA-29046; 350
NLRB No. 73) Bainbridge Island, WA Aug. 21, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35073.htm
The
Respondent is a non-profit corporation, and operates
an acute-care
hospital in Seattle, Washington, and 19 non-acute care outpatient
facilities, one of which is located in Winslow, Washington on Bainbridge
Island. The Board adopted the administrative law judge's
findings that per diem employees Denise Janetos and Maree Zawoysky were
terminated pursuant to an established past practice of terminating per diem
employees when the extent of their availability was insufficient to justify
their retention. Accordingly, the Board adopted the judge's dismissal of the
complaint allegation that the Respondent had violated Section 8(a)(5) and
(1) of the Act by making a series of decisions concerning the restructuring
of its Winslow facility, resulting in the layoffs, without prior notice to
the Union, and without affording the Union an opportunity to bargain.
The majority adopted the judge's finding that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union, on September 26, 2003 (based on a September 23, 2003 decertification petition) during the certification year.
There had been nearly a year-and-a-half delay from the certification of the Union as the exclusive bargaining representative of unit employees until the D.C. Court of Appeals enforced the Board's bargaining order. The Board's majority noted that where an employer refuses to bargain with a certified union while pursuing judicial review of the certification, the certification year begins on the date of the parties' first bargaining session, unless "there is a significant delay in the start of bargaining attributable to inexcusable procrastination or other manifestation of bad faith on the part of the union," citing Van Dorn Plastic Machinery Co., 300 NLRB 278 fn. 4 (1990), enfd. 939 F.2d 402 (6th Cir. 1991).
The majority noted that only four months had passed from the court's enforcement of the bargaining order to the start of bargaining. Less than a month after the enforcement of the order the Union requested information, and it sought bargaining within 2 months of receiving the requested information. The Respondent accepted the first bargaining date, October 1, 2002, suggested by the Union, and the parties first bargaining session was held on that date. There was no evidence of bad faith on the Union's part, nor any evidence that the Respondent complained about the delay or requested an earlier bargaining date. The majority thus found that the delay was not inexcusably long and agreed with the judge that the Respondent had not shown that the delay was attributable to inexcusable procrastination or bad faith on the part of the Union, and that therefore the certification year began on October 1, 2002. The majority therefore found that recognition was withdrawn from the Union during the certification year, and that it was thus unnecessary to pass on the judge's finding that the Respondent was also precluded from relying on the petition, because the petition predated the expiration of the certification year.
In dissent Member Schaumber would reverse the judge's finding that the Respondent violated Section 8(a)(5)and (1) by withdrawing recognition from the Union on September 26, 2003. Member Schaumber would rely on the 4 months delay between the date that the court's order issued and the parties' first bargaining session, the fact that none of the delay was attributable to the Respondent, and the absence of any explanation from the Union for the delay.
(Chairman Battista and Members Schaumber and Kirsanow participated.)
Charges filed by Staff Nurses Local 141, a/w UFCW; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Seattle, March 23 and 25 2004. Adm. Law Judge Clifford H. Anderson issued his decision on June 14, 2004.
***
Wal-Mart
Stores, Inc. (28-CA-16831, et al.; 350 NLRB No.71) Las Vegas, NV Aug.
20, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/350/v35071.htm
This case involved alleged violations of Section 8(a)(1) and (3) arising in the context of a union organizational campaign conducted at three of the Respondent's retail stores in Las Vegas, Nevada. The stores were located at South Rainbow Boulevard, East Tropicana Avenue, and West Craig Road.
Regarding the allegations of unfair labor practices at the South Rainbow store, a panel majority consisting of Chairman Battista and Member Walsh affirmed the judge's finding that the Respondent violated Section 8(a)(1) when a district manager told employee Avis Hammond that he was not "worthy" of working for the Respondent if he believed the contents of a union press release. The majority found that the district manager's comment disparaged the employee for engaging in protected activity and suggested that his protected activity was incompatible with continued employment. Member Schaumber, dissenting, would have dismissed the complaint allegation on the ground that the comment was an off-the-cuff expression of personal opinion. A different panel majority consisting of Chairman Battista and Member Schaumber reversed the judge's finding that the Respondent violated Section 8(a)(1) by warning Hammond for distributing union literature on the sales floor. The majority found that the record did not support the judge's finding that the Respondent had disparately enforced its no-solicitation rule against union activity. Member Walsh, dissenting, agreed with the judge's disparate enforcement finding.
Regarding the unfair labor practice allegations at the East Tropicana store, the Board unanimously affirmed the judge's finding that the Respondent violated Section 8(a)(3) and (1) by issuing a warning to employee Diana "Angie" Griego. However, citing IBM Corp., 341 NLRB 1228 (2004), which issued after the judge's decision, the Board unanimously reversed the judge's finding that the Respondent violated Section 8(a)(1) by denying Griego's request for a coworker representative to be present at an interview with managers. A panel majority consisting of Chairman Battista and Member Schaumber also reversed the judge's finding that the Respondent violated Section 8(a)(1) by creating the impression of surveillance of its employees' union activities. The facts showed that when Griego handed another employee a union pen, an assistant manager told them to "take this to the break room." The majority relied on the principle that it is lawful for management officials to observe open union activity, particularly when it occurs on company premises, unless the officials act in a manner that is out of the ordinary. Member Walsh, dissenting, would have found the violation on the ground that the assistant manager was paying unusual attention to employees' union activities.
Regarding the unfair labor practice allegations at the West Craig store, the Board unanimously affirmed the judge's finding that the Respondent violated Section 8(a)(1) by interfering with union handbilling, as well as his dismissal of the allegation that the Respondent unlawfully created the impression of surveillance by observing the handbilling.
Finally, a panel majority consisting of Chairman Battista and Member Schaumber amended the judge's remedy in two respects. First, the majority removed the provision ordering the Respondent to offer Griego instatement to the position of pharmacy clerk, and limited her entitlement to backpay to the period from the date she was denied this position to the date she voluntarily resigned from the Respondent's employ. Second, the majority ordered the Respondent to post separate notices conforming to the specific violations found at each store. Member Walsh, dissenting, would have granted Griego the standard instatement and make-whole remedy and left to compliance the issue of whether she would have quit even in the absence of the Respondent's unlawful conduct. In addition, Member Walsh would have required the Respondent to post the same notice to employees at all three stores.
(Chairman Battista and Members Schaumber and Walsh participated.)
Charge filed by Food and Commercial Workers
International; complaint alleged violations of Section 8(a)(1) and (3).
Hearing at Las Vegas on various trial dates between Jan. 15 and Feb.
28, 2002. Adm. Law Judge Albert
A. Metz issued his decision Sept. 24, 2002.
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NLRB Law Memo 09/05/2007
by Ross Runkel at LawMemo
NLRB Law Memo 09/05/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB seeks briefs on handbilling issues.
New York New York Hotel (pending oral argument) Press release and Notice: http://www.nlrb.gov/shared_files/Press%20Releases/2007/R-2632.htm
Related briefs and documents: http://www.nlrb.gov/research/frequently_requested_documents.aspx
NLRB has invited parties and amici to file briefs (due October 2, 2007) in this case.
Issues include whether Ark Las Vegas Restaurant Corporation's employees, who are employed by Ark on the premises of the New York New York Hotel and Casino, have a statutory right to distribute handbills at various places on hotel property during the employees' off-duty hours. The handbills were aimed at guests and customers and protested Ark's nonunion status and wages. Oral arguments before the full Board are scheduled for November 9, 2007.
Briefs may address the following, plus any other relevant issues:
1. Without more, does the fact that the Ark employees work on NYNY's premises give them Republic Aviation rights (324 U.S. 793 [1945]) throughout all of the non-work areas of the hotel and casino?
2. Or are the Ark employees invitees of some sort but with rights inferior to those of NYNY's employees?
3. Or should they be considered the same as nonemployees when they distribute literature on NYNY's premises outside Ark's leasehold?
4. Does it matter that the Ark employees here had returned to NYNY after their shifts had ended and thus might be considered guests, as NYNY argues?
5. Is it of any consequence that the Ark employees were communicating, not to other Ark employees, but to guests and customers of NYNY (and possibly customers of Ark)? Compare United Food & Commercial Workers, 74 F.3d at 298. (Derivative access rights, the Supreme Court has held, stem 'entirely from on-site employees' Section 7 organizational right to receive union-related information.' ITT Industries, 251 F.3d at 997.)
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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