« NLRB Law Memo 09/06/2007 | Main | NLRB Law Memo 09/24/2007 »
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.
|
|
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
