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NLRB Law Memo 09/24/2007
by Ross Runkel at LawMemo
NLRB Law Memo 09/24/2007
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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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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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