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NLRB Law Memo 10/27/2007
by Ross Runkel at LawMemo
NLRB Law Memo 10/27/2007
by LawMemo - First in Employment Law.
Also available by free weekly email.
NLRB - Staff summarized 1 decision.
Carpenters
Metropolitan Regional Council, Southeastern Pennsylvania, State of Delaware
and Eastern Shore of Maryland (Adams-Bickel Associates, Inc.)
(4-CC-2463, 2482; 351 NLRB No. 51) Philadelphia, PA Oct. 18, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35151.htm
The
Board affirmed the administrative law judge’s finding that the Respondent
violated Section 8(b)(4)(ii)(B) of the Act in two instances by threatening
neutral employers with the object of forcing the employers to cease dealing
and doing business with certain primary employers and unspecified “unfair
subcontractors.” The Board
also adopted the judge’s finding that a broad cease-and-desist order was
warranted.
(Chairman
Battista and Members Schaumber and Walsh participated.)
Charges filed by Adams-Bickel Associates, Inc. and
Penn Valley Constructors, Inc.; complaint alleged violations of Section
8(b)(4)(ii)(B). Hearing at
Philadelphia on March 15, 2007. Adm.
Law Judge Paul Buxbaum issued his decision June 1, 2007.
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NLRB Law Memo 10/13/2007
by Ross Runkel at LawMemo
NLRB Law Memo 10/13/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 8 decisions.
Raymond
F. Kravis Center for the Performing Arts (12-CA-21361; 351 NLRB No. 19) West Palm Beach, FL
Sept. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35119.htm
In a 3-0 decision, the Board modified its standard for
determining under what circumstances a union merger or affiliation may
relieve an employer of its obligation to recognize and bargain with an
incumbent union. Reversing
precedent, the Board determined that an employer could not withdraw
recognition after a merger or affiliation merely because the merger or
affiliation was not conducted with adequate “due process.”
Rather, the Board held that the employer’s obligation to recognize
the union continues unless the merger or affiliation resulted in changes so
significant as to alter the identity of the bargaining representative.
The Board affirmed the administrative law
judge’s finding that the Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally withdrawing recognition from the International
Alliance of Theatrical Stage Employees and Moving Picture Technicians and
Allied Crafts of the United States, its Territories and Canada, Local 623
(Local 623) on September 11, 2000. On
February 1, 2002, shortly before the hearing in this case began, Local 623
merged with five other locals to form Local 500.
Applying existing Board law, the judge rejected the General
Counsel’s contention that Local 500 was the successor to Local 623,
finding that the merger had occurred without due process because union
members had not been provided the opportunity to vote on the merger.
Accordingly, the judge found that the Respondent had no obligation to
recognize and bargain with Local 500, and that any bargaining obligation the
Respondent had with Local 623 terminated as of the date of the merger.
Having determined that the due process
requirement was no longer viable in light of the Supreme Court’s decision
in N.L.R.B. v. Financial Institution
Employees of America Local 1182 (Seattle-First), 475 U.S. 192 (1986),
the Board examined whether the merger resulted in such a dramatic change to
the Union as to alter its identity as the bargaining representative of the
Respondent's employees. Because
the Board found no such change had occurred, it reversed the judge and found
that the Respondent's obligation to recognize and bargain with the Union
continued after the merger.
The Board affirmed the judge’s finding
that the Respondent violated Section 8(a)(5) and (1) by unilaterally
changing terms and conditions of employment, including eliminating
department head positions and refusing to use the Union’s hiring hall,
without complying with the requirements of Section 8(d)(3) and without
having first lawfully bargained to impasse with respect to those terms and
conditions. The Board also
affirmed the judge’s finding that the Respondent violated Section 8(a)(5)
and (1) by declaring impasse over a change in the scope of the bargaining
unit.
(Chairman
Battista and Members Liebman and Kirsanow participated.)
Charge filed by Theatrical Stage Employees
Local 623; complaint alleged violation of Section 8(a)(1) and (5).
Hearing at Miami on various dates between Feb. 4 and Aug. 7,
2002. Adm. Law Judge Raymond P.
Green issued his decision Sept. 28, 2007.
***
River Ranch Fresh Foods,
LLC (32-CA-19938; 351 NLRB No.15) Salinas, CA Sept. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35115.htm
The Board (Members Schaumber and Kirsanow; Member
Liebman dissenting) reversed the administrative
law judge’s finding that the Respondent violated Section 8(a)(3) and (1)
of the Act by discharging Eduardo Moran because of his union activities.
In June 2002, the
Respondent purchased the predecessor’s business, hiring all of the
employees subject to a 90-day probationary period.
On August 9, the Respondent and the Union concluded negotiations for
a successor collective-bargaining agreement, retroactive to July 1, which
restored the prior 60-day probationary period.
During the probationary period, an employee could be terminated for
any nondiscriminatory reason. Moran,
a mechanic in the maintenance department, and two other maintenance
employees were discharged by the Respondent about 2 weeks before the end of
the shortened probationary period. The
judge dismissed allegations that the Respondent unlawfully discharged the
other two maintenance employees.
The judge, however, found
that the Respondent violated Section 8(a)(3) by firing Moran.
The judge found that the General Counsel satisfied his initial Wright
Line burden of proving that the discharge was unlawfully motivated.
The judge also found the timing of Moran's discharge suspect because
it occurred “within weeks” of his union activity. The judge rejected the
Respondent’s defense that Moran was discharged during the probationary
period because of his poor work performance.
The judge concluded that the Respondent’s witnesses’ stated
reasons for discharging Moran were inconsistent and, therefore, pretextual.
The judge found the true reason was that Moran “talked to the Union
and to employees about the Union.”
In reversing the judge,
the Board assumed that the General Counsel met his initial burden but found
that the Respondent’s reasons were not pretextual.
The judge based his conclusion that the reasons were pretextual on
his explicit findings that Carolyn Humphreys, Respondent’s vice president
of human resources, testified that “talking too much” was the only
reason for the discharge and that her testimony was inconsistent with the
reasons given by Maintenance Manager Gary Elk.
The Board found that Humphreys did not in fact testify that
“talking too much” was the only reason Elk gave her.
Rather Elk’s reason was that, because of Moran’s excessive
talking, Moran was “not getting the work done.”
Elk’s testimony about his conversation with Humphreys was
substantially the same. The
judge also took out of context, or otherwise distorted, portions of the
Elk’s testimony. Rather,
viewed in context, the Board found that the consistent reason given by the
Respondent’s witnesses for discharging Moran was that he was not
performing his work. Thus, the
Respondent’s reason was not pretextual.
The Respondent
also satisfied its rebuttal burden that it would have discharged Moran even
in the absence of his union activity. The
judge did not discredit Elk’s testimony that Moran was not performing his
work and no evidence was introduced contradicting Elk’s assessment of
Moran’s performance. Neither
did any evidence show Moran’s discharge to be disparate.
The Board noted that the Respondent could discharge a probationary
employee for any nondiscriminatory reason. Further, any inference of
suspicious timing was undermined by the approaching end of the probationary
period, which influenced the timing of Moran’s discharge as well as that
of other employees. Contrary to
their dissenting colleague’s view, the Board held that regardless of what
Moran was talking about, the Respondent could, nevertheless, legitimately
discharge him for his resulting failure to perform his work.
In dissent, Member Liebman
would adopt the judge’s conclusion that the Respondent unlawfully
discharged Moran. She agreed
with the judge that the General Counsel met his initial Wright
Line burden. She would
further find that the Respondent did not show that it would have discharged
Moran even in the absence of his union activity because Moran’s protected
union speech is inextricably intertwined with the Respondent’s reason for
discharging Moran. Member
Liebman also disagreed that the upcoming end of the probationary period
undermines other evidence of illegal motive.
No exceptions
were filed to the judge’s findings that the Respondent committed five
Section 8(a)(1) violations. The
Board, therefore, found it unnecessary to pass on the findings of other
8(a)(1) violations, which the Respondent filed exceptions to, because those
violations would be cumulative of the unexcepted-to violations.
(Members
Liebman, Schaumber, and Kirsanow participated.)
Charge filed by Teamsters
Local 890; complaint alleged violations of Section 8(a)(1) and (3).
Hearing at Salinas, May 20-22, June 25-27, and Aug. 13-15, 2003.
Adm. Law Judge John J. McCarrick issued his decision Jan. 8, 2004.
***
Ryder
Memorial Hospital (24-RC-8370; 351 NLRB No. 26) Humacao, PR Sept. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35126.htm
In this case, the Board announced the revision of its
official election ballot to explicitly include language that asserts the
Board’s neutrality in the election process and disclaims the Board’s
participation in the alteration of any sample ballots. The Board indicated
its position that the inclusion of this language will preclude any
reasonable impression by employees that the Board endorses a particular
choice in any election and, accordingly, it eliminates the need for the
Board to engage in a case-by-case evaluation of allegedly objectionable
altered sample ballots. Thus, in
future cases, the Board will decline to set aside an election based on a
party’s distribution of an altered sample ballot, provided that the
altered sample ballot is an actual reproduction of the Board’s sample
ballot, i.e., it includes the new disclaimer language; if a party
distributes an altered sample ballot from which the disclaimer language has
been deleted, however, the Board will consider the deletion intentional, and
will deem the altered ballots per se objectionable.
As the altered sample ballot alleged to be
objectionable in this case did not include the Board’s new disclaimer
language, the Board applied extant precedent requiring a case-specific
evaluation of the nature and contents, and circumstances of the distribution
of, the altered sample ballot. See
3-Day Blinds, 299 NLRB 110 (1990);
SDC Investment, 274 NLRB 556
(1985). Pursuant to that
analysis, a panel majority concluded that the altered sample ballot was not
objectionable. In so concluding,
the panel majority relied on the facts that, inter alia, the ballot was
distributed by the Petitioner by the same method it used to distribute other
campaign propaganda, various markings on the ballot indicated that the
document was a photocopy of the Board’s sample ballot, the ballot
contained a portion of the disclaimer language appearing on the Board’s
Notice of Election, and the Employer had posted copies of the Board’s
Notice of Election (containing disclaimer language) at various locations
throughout its facility. Chairman
Battista indicated that, consistent with his dissenting opinion in Oak
Hill Funeral Home and Memorial Park, 345 NLRB No. 35 (2005), he would
have found the altered sample ballot to be objectionable.
(Chairman
Battista and Members Schaumber and Walsh participated.)
***
The
Painting Co.
(9-CA-33482, et al.; 351 NLRB No. 6) Columbus, OH Sept. 27, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v3516.htm
The main issue before the Board in this supplemental
decision was the reasonableness of the formula used in the compliance
specification to calculate backpay for discriminatees Charles Crisp, Warren
Hull, Robert Meade, and Mark Pratt. The
administrative law judge found the Region’s calculation was reasonable and
ordered the Respondent pay discriminatees Crisp, Meade, and Pratt amounts
totaling $183,387, plus interest. The
judge ordered that the backpay due to discriminatee Warren Hull, whose
whereabouts are unknown, be placed in escrow with the Regional Director for
one year.
Contrary to the judge, the
Board concluded that the General Counsel failed to establish that the
Region’s backpay calculation was reasonable and reversed the judge's
finding. The Board recomputed
the backpay to more closely approximate the amount the discriminatees would
have earned had they not been unlawfully discharged and ordered the
Respondent to pay the three discriminatees amounts totaling $63,522, plus
interest. Chairman Battista and
Member Schaumber found that the calculation of backpay for a missing
discriminatee raises significant legal and policy issues.
Accordingly, they severed the backpay issue related to discriminatee
Hull and remanded the matter to the Regional Director to further investigate
his whereabouts and resolve the issue pursuant to the Supplemental Decision.
Parts Depot, Inc., 348 NLRB
No. 9 (2006). In Member
Liebman’s view, Hull’s gross backpay was approximately determined under
extant law and should be placed in escrow.
Starlite Cutting, Inc., 284 NLRB 620 (1987).
In 2000, the Board found
that the Respondent, a painting contractor, violated Section 8(a)(3)
and (1) by discharging the discriminatees on Jan. 2, 1996 and ordered that
they be made whole for their losses. The
Painting Co., 330 NLRB 1000 (2000), enfd. 298 F.3d 492 (6th Cir. 2002).
The compliance specification calculation assumed that the
discriminatees would have worked continuously and exclusively for the
Respondent during each year of the 6-year backpay period which ended on
April 1, 2002. To derive yearly
lost earnings for the discriminatees, the specification extrapolated
annualized earnings for all of the Respondent’s painters from their actual
earnings (regardless of the number of days they worked) and then averaged
those extrapolated earnings.
The Respondent’s
evidence showed that most of its painters worked neither continuously nor
exclusively for the Respondent during the backpay period.
During the back pay period, the Respondent employed 350 painters for
various periods of time. Only
5-12 painters in a given year worked what could be considered a full year.
The 6-year average annual number of workdays was only 91 and ranged
from 63 workdays in 1996 to 130 workdays in 2001.
Thus, the Board concluded that the backpay formula was unreasonable
because very few painters worked a full year for the Respondent, yet the
specification assumed that to be the standard.
The Board held that,
absent evidence that the discriminatees would have worked more than the
average number of workdays, the most accurate method to determine their
backpay was to assume the discriminatees would have worked the same number
of workdays and would have had the same annual earning as the average
painter the Respondent employed. The
Board presumed that the average workdays occur in one or two consecutive
calendar quarters because most painters worked in consecutive periods during
the year. The Board further
found it reasonable to consider 65 workdays as representing the number of
workdays in a full calendar quarter given that the average number of
workdays each year was so few.
To compute net backpay,
the Board’s revised formula offset between one and two quarters of the
discriminatee’s interim earnings, depending on the average number of
workdays for that year. For 1996
and 2002, when the average number of workdays was respectively 63 and 65,
one full quarter of interim earnings is offset.
In 2001, when the average was 130 workdays, the offset is two full
quarters. In the other years,
with more than 65 workdays but less than 130, the offset amount equals one
full quarter plus a percentage of the discriminatee’s quarterly interim
earnings.
The backpay for
discriminatees Crisp, Meade, and Pratt was recalculated based on the revised
formula. Two other
discriminatees, whose backpay amounts the Respondent conceded the Region had
correctly calculated, are included in the Board’s Order Remanding in Part.
(Chairman
Battista and Members Liebman and Schaumber participated.)
Hearing at Columbus, May 19-20,
2003. Adm. Law Judge Joseph
Gontram issued his decision Sept. 8, 2003.
***
Toering Electric Co. (7-CA-37786,
et al.; 351 NLRB No. 18) Muskegon, MI Sept. 29, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35118.htm
The Board, in a 3-2
decision, ruled that an applicant for employment must be genuinely
interested in seeking to establish an employment relationship with the
employer in order to qualify as a Section 2(3) employee and thus be
protected against hiring discrimination based on union affiliation or
activity. The Board explained
that “one cannot be denied what one does not genuinely seek.”
The Board further held that the General Counsel bears the ultimate
burden of proving an individual’s genuine interest in seeking to go to
work for the employer.
The Board majority of Chairman Battista and
Members Schaumber and Kirsanow held in Toering
that the presumption that any individual who submitted an application
was entitled to protection was inconsistent with the text of the Act and its
basic purposes. Only applicants
who are statutory employees within the meaning of Section 2(3) are entitled
to protection against hiring discrimination, and statutory employee status,
in turn, requires the existence of “at least a rudimentary economic
relationship, actual or anticipated, between employee and employer.”
WBAI Pacifica Foundation,
328 NLRB 1273, 1274 (1999). No
such economic relationship is anticipated in the case of applicants with no
genuine aspiration to work for an employer.
Thus, job applicants without a genuine interest in an employment
relationship are not employees within the meaning of Section 2(3).
Although some salts, paid or unpaid, may
genuinely desire to work for a nonunion employer and to proselytize
co-workers on behalf of a union, other salts clearly have no such interest.
According to the Board, “submitting applications with no intention
of seeking work but rather to generate meritless unfair labor practice
charges is not protected activity. Indeed,
such conduct manifests a fundamental conflict of interests ab initio between
the employer’s interest in doing business and the applicant’s interest
in disrupting or eliminating this business.”
Such conduct, the Board observed, also collides with the employer’s
right, recognized by the Supreme Court, to insist on employee loyalty and on
a cooperative employee-employer relationship. NLRB v. IBEW Local 1229
(Jefferson Standard), 346 U.S. 464, 472 (1953).
For these reasons, the Board imposed on the
General Counsel in all hiring discrimination cases the burden of proving
that the alleged discriminatee was genuinely interested in seeking to establish an employment
relationship and was thereby qualified for protection as a Section 2(3)
employee. The Board explained
that this requirement embraces two components:
(1) there was an application for
employment, and (2) the application reflected a genuine interest in becoming
employed by the employer. As to
the first component, the General Counsel must introduce evidence that the
individual applied for employment with the employer or
that someone authorized by that individual did so on his or her behalf.
….As to the second component (genuine interest in becoming employed), the
employer must put at issue the genuineness of the applicant’s interest
through evidence that creates a reasonable question as to the applicant’s
actual interest in going to work for the employer.
In other words, while we will no longer conclusively presume that an
applicant is entitled to protection as a statutory employee, neither will we
presume, in the absence of contrary evidence that an application for
employment is anything other than what it purports to be.
The
Board concluded that although some evidence in Toering suggested the alleged discriminatees’ genuine interest in
seeking employment, other evidence suggested the opposite.
In these circumstances, the Board remanded this case to the judge in
order to apply the new analytical framework to the facts of this case.
Members Liebman and Walsh,
dissenting, would have retained without modifications
the standard for litigating hiring discrimination cases set forth in FES,
331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83
(3d Cir. 2002). They commented
that the Board’s decision in Toering,
reached without the benefit of
briefs, oral argument, or even a request to reconsider precedent,
“continues the Board’s roll-back of statutory protections for union
salts who seek to uncover hiring discrimination by non-union employers and
to organize their workers” by legalizing hiring discrimination in some,
perhaps many, cases involving salts.
In the dissent’s view,
the majority’s new approach cannot be reconciled with the Act, its
policies, or Supreme Court precedent. They
pointed out that in Phelps Dodge, the
Supreme Court stated that
Discrimination against union
labor in the hiring of men is a dam to self organization at the source of
supply. The effect of such
discrimination is not confined to the actual denial of employment; it
inevitably operates against the whole idea of the legitimacy of
organization. In a word, it
undermines the principle which ... is recognized as basic to the attainment
of industrial peace.
According to the dissent, the Act’s aims
are, therefore, furthered by finding unlawful an employer’s refusal to
hire or consider an applicant because of his union affiliation, even where
it cannot be established that an applicant would have accepted a job if
offered.
The dissent noted that Section 2(3) and
8(a)(3) make clear that the employer’s motive, and not the applicant’s
intentions, is the proper focus in cases like this one.
If Congress had intended to exclude “non-genuine” job applicants,
they argue, it presumably would have done so.
Instead, Congress has repeatedly declined to enact numerous
anti-salting bills in the 12 years since the Supreme Court decided NLRB
v. Town & Country Electric, Inc., 516 U.S. 85 (1995) (unanimously
approving Board’s holding that paid union organizers who seek employment
are statutory employees).
The dissent further stated
that the majority’s new standard, even considered on its own terms, is
critically flawed because it fails to provide clear guidance with respect to
determining an applicant’s genuine status.
Moreover, they observe that the new standard places an unfair burden
on the General Counsel by allowing an employer to first raise the
genuineness issue during the unfair labor practice hearing.
And, they argue, it will both spawn and prolong the course of
litigation by creating a new fact-intensive defense.
The dissenters summarized
their disagreement with the majority in the following terms:
By any measure, today’s
decision represents a failure in the administration of the National Labor
Relations Act. The majority
unnecessarily overturns carefully considered precedent and implements an
untenable approach that will not even accomplish the majority’s professed
goals. Worse, the Board now
creates a legalized form of hiring discrimination, a step that would have
been considered unthinkable by the Phelps
Dodge Court when it held that the prevention of hiring discrimination
against union members was “the driving force behind the enactment of the
National Labor Relations Act.” 313
U.S. at 186. Because we still
believe that it is crucial to the Act’s basic mandate to uncover and
redress discrimination against union members, we dissent.
(Full
Board participated.)
Adm. Law Judge Arthur J. Amchan issued
his supplemental decision Sept. 29, 2000.
***
Tribune
Publishing Co.
(17-CA-21700; 351 NLRB No. 22) Columbia, MO Sept. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35122.htm
The Board affirmed the administrative law judge’s
finding that the Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally terminating the use of its direct-deposit system for the
deduction of union dues. In this
case, after unilaterally ceasing dues checkoff upon the expiration of the
parties’ collective-bargaining agreement, the Respondent reached a new
agreement with the Union to allow employees to use its direct-deposit system
for the deduction of their union dues. After
conducting a full trial run of the system for that purpose and implementing
direct deposit for a full pay period, the Respondent unilaterally terminated
the use of direct deposit for union dues.
The Board found that, by allowing employees to use direct deposit for
this purpose, the employer had established a term and condition of
employment that was a mandatory subject of bargaining, and by failing to
bargain, the Respondent violated Section 8(a)(5) and (1).
The Board also found that the Respondent’s employee handbook, which
provided for the direct-deposit system, did not permit the Respondent to
unilaterally interpret and modify that system.
(Members
Liebman, Schaumber, and Kirsanow participated.)
Charge filed by Graphic Communications
Local 16-C; complaint alleged violation of Section 8(a)(1) and (5).
Hearing at Columbia, Jan. 16, and 17, 2003.
Adm. Law Judge William N. Cates issued his bench decision Feb.
5, 2003.
***
United
States Postal Service (15-CA-17506(P); 351 NLRB No. 23) Destin, FL Sept. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35123.htm
The Board denied the Respondent’s motion for
reconsideration of its Decision and Order issued on June 28, 2007 (350 NLRB
No. 12). In that decision, the
Board affirmed the finding of the administrative law judge that the
Respondent violated Section 8(a)(1) of the Act by threatening an employee
with a lawsuit and unspecified reprisals because he had filed an unfair
labor practice charge with the Board. In
denying the motion for reconsideration, the Board found that the Respondent
had not raised any extraordinary circumstances warranting reconsideration.
(Chairman
Battista and Members Liebman and Walsh participated.)
***
Wal-Mart
Stores, Inc. (19-CA-27720; 351 NLRB No. 17) Wasilla, AK Sept. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35117.htm
The Board, in a 2-1 decision, reversed the
administrative law judge’s supplemental decision that the Respondent did
not violate Section 8(a)(1) of the Act by discharging employee Kenneth
Stanhope because he refused to attend an investigatory interview without a
witness.
At the time that the
Respondent, whose employees were not represented by a union, denied Stanhope
his request for a witness, Stanhope in fact had the right to such a witness.
Epilepsy Foundation of
Northeast Ohio, 331 NLRB 676 (2000), enfd. in relevant part 268 F.3d
1095 (D.C. Cir. 2001), cert. denied 536 U.S. 904 (2002).
Accordingly, the judge found that the denial of a witness and the
discharge for Stanhope’s refusal to attend the meeting violated the Act
under Epilepsy.
However, while the
judge’s decision was pending before the Board, the Board reversed Epilepsy in IBM, 341 NLRB
1288 (2004), holding that non-unionized employees did not have the right to
such a witness. Consequently, in
Wal-Mart I, 343 NLRB 1287 (2004),
the Board applied IBM
retroactively and reversed the judge’s finding that the denial of the
witness violated the Act, but remanded on the discharge for the judge to
determine whether the Respondent discharged Stanhope for requesting a
witness or for refusing to attend the interview without a witness.
After that decision, the Charging Party filed a motion for
reconsideration, requesting the Board to not apply IBM
retroactively because it would cause “manifest injustice.”
The Board held the motion in abeyance as to the discharge because if
the judge determined that Stanhope was discharged for simply requesting a
witness, still protected under IBM,
there would be no need to determine whether IBM
should be applied retroactively.
In his supplemental
decision, the judge found that Stanhope was discharged for both requesting a
witness and refusing to attend the interview without one, but that the
refusal to attend the interview, unprotected under IBM
and thus insubordination, was most central. Accordingly, the judge found
that the Respondent did not violate the Act by discharging Stanhope. The
judge’s decision thus squarely presented the Board with the decision to
apply IBM retroactively.
The Board first analyzed the case as if Epilepsy,
the law at the time, was controlling, and found that Stanhope’s refusal to
attend the interview without a witness was protected and thus his discharge
was unlawful. The Board applied the framework of 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), and
found that Stanhope’s refusal to attend the interview without a witness
was a motivating factor in his discharge. The Board relied on the fact that
Co-Manager Bruce Manderson admitted that Stanhope’s refusal to attend the
interview without a witness was a factor in his discharge. The Board then
found that the Respondent failed to carry its Wright
Line burden in proving that it would have discharged Stanhope even in
the absence of his protected activity. The
Board relied on Manderson’s admission and on the fact that the Respondent
could not prove that it would have discharged Stanhope for the underlying
conduct that triggered the investigatory interview: profanity and upsetting
a co-worker. Accordingly, the
Board found that under Epilepsy,
Stanhope’s discharge was unlawful.
The Board then found, under SNE
Enterprises, Inc., 344 NLRB 673 (2005), that to apply IBM
retroactively to this case would cause “manifest injustice.”
The Board applied the three factors of SNE
and found that Stanhope “relied” on pre-existing law, i.e., Epilepsy,
that the “purposes of the Act” would be accomplished by not
retroactively applying IBM because
otherwise employees would be discouraged from exercising their rights and
employers would be encouraged to violate the Act, and that a “particular
injustice” would result because Stanhope would be discharged for relying
on his rights at the time. Weighing all these factors, the Board found that
applying IBM retroactively here
would cause a manifest injustice. Accordingly,
the Board granted the motion for reconsideration, applied the existing law
at the time, Epilepsy, and found
that the Respondent violated Section 8(a)(1) of the Act by discharging
Stanhope for refusing to attend the investigatory interview without a
witness.
In dissent, Chairman Battista stated that
the Board had found no “extraordinary circumstances” warranting
reconsideration, but rather had simply changed its mind about retroactively
applying IBM. Chairman Battista
also stated that the Board’s original decision was quite consistent with
the Board’s principles on retroactivity, particularly as applied in Epilepsy.
Chairman Battista found that Epilepsy
was indistinguishable from the instant case in that all the retroactivity
factors favored retroactive application of IBM:
there was no evidence that Stanhope had relied on pre-existing law; IBM is Board policy and failing to apply it frustrates the Board’s
effectuation of that policy; and discharging Stanhope under IBM
is no more unjust than saddling the employer in Epilepsy
with reinstatement and backpay after it had followed pre-existing law.
According to the Chairman, the Board’s decision was not reasoned
decision-making.
(Chairman
Battista and Members Liebman and Walsh participated.)
Charge filed by Food and Commercial
Workers; complaint alleged violations of Section 8(a)(1) and (3).
Hearing at Anchorage, Alaska, June 27-28, 2002.
Adm. Law Judge Burton Litvack issued his decision Nov. 8, 2002.
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NLRB Law Memo 10/12/2007
by Ross Runkel at LawMemo
NLRB Law Memo 10/12/2007
by LawMemo - World's Best.
Also available by free weekly email.
NLRB - Staff summarized 14 decisions.
Asbestos Workers Local 84 (DST Insulation, Inc.)
(8-CB-10424; 351 NLRB No. 3) Bedford, OH Sept. 24, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v3513.htm
The Board, adopting the administrative law judge,
found that the Respondent did not violate Section 8(b)(3) of the Act by
failing to bargain with the Employer. The Board majority of Chairman
Battista and Member Liebman found that the Employer adopted by its conduct
the terms of a collective-bargaining agreement and, therefore, the
Respondent had no duty to bargain over terms of an entirely new contract.
The Board majority found that the Employer adopted the contract by engaging
in substantial conduct manifesting an intent to be bound, including paying
new wage rates under the contract, making fringe benefit contributions,
acquiescing to a stipulated judgment in federal court and paying the amounts
owed under the agreement, honoring the contractual union-security clause and
deducting and remitting union dues, using the Respondent’s exclusive
hiring hall to secure employees as a union contractor, and corresponding and
meeting with the Respondent in a manner consistent with the status of a
union contractor. The Board majority found that, under prevailing precedent,
this course of conduct was compelling evidence that the Employer had
manifested an intent to be contractually bound.
Member Kirsanow dissented
and found that the Respondent violated Section 8(b)(3). Viewing the evidence
as a whole, Member Kirsanow found that the Employer did not evince an intent
to be bound to the current agreement. In
his view, the Employer did not adopt the contract because the Employer’s
president made statements indicating an intent not to be bound and the
Respondent did not claim that the Employer adopted the agreement.
In Member Kirsanow’s view, the Employer’s statements put its
subsequent adherence to particular terms of the agreement in a different
light and supported a finding that there was no binding contract.
Accordingly, Member Kirsanow found that the Respondent breached its duty to
bargain by declining the Employer’s request to bargain over a new
contract.
(Chairman
Battista and Members Liebman and Kirsanow participated.)
Charge
filed by DST Insulation, Inc.; complaint alleged violation of Section 8(b)(3).
Hearing at Cleveland on Feb. 14, 2006.
Adm. Law Judge Karl H. Buschmann issued his decision May 24,
2006.
***
Baptist
Hospital of East Tennessee (10-CA-33684; 351 NLRB No. 12) Knoxville, TN Sept. 27, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35112.htm
A Board majority of Chairman Battista and Member
Schaumber, affirming the administrative law judge, found that the Respondent
did not violate Section 8(a)(5) of the Act by unilaterally implementing a
change on January 1, 2002, concerning the scheduling of holiday shift work
for unit employees assigned to the Respondent’s in-patient radiology unit.
The Board majority
determined initially that the General Counsel’s theory of the case
involved solely a unilateral-change violation, noting that the General
Counsel never clearly asserted an alternative Section 8(d)
contract-modification theory.
The Respondent had argued
that, through the management-rights clause in the parties’
collective-bargaining agreement, the Union waived its right to bargain over
the scheduling change. The Board majority agreed with the Respondent and the
judge that the evidence showed a clear and unmistakable waiver. They found
in particular that the language in the management-rights clause giving the
employer the right “to determine and change starting times, quitting times
and shifts,” to “assign” employees, and to “change methods and means
by which its operations are to be carried on” provided the Respondent with
the fundamental right to schedule employees. The Respondent’s unilateral
change in scheduling employees for holiday-shift work was consistent with
this right. Accordingly, the majority affirmed the judge’s recommended
dismissal of the complaint.
In a footnote, Chairman
Battista, citing his dissent in Provena
St. Joseph Medical Center, 350 NLRB No. 64 (2007), stated that his
conclusion that dismissal is appropriate would be the same under a
“contract coverage” test. Member Schaumber agreed, citing his dissenting
position in California Offset Printers, 349 NLRB No. 71 (2007).
Member Liebman, dissenting
in the present case, would reverse the judge’s dismissal of the complaint.
Citing her dissent in Bath Iron Works
Corp., 345 NLRB No. 33 (2005), affd. sub
nom. Bath
Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14 (1st. Cir.
2007), she observed that her “clear and unmistakable waiver” analysis
would be the same whether the General Counsel’s theory was “unilateral
change” or “contract modification” under Section 8(d).
In her view, the management-rights language relied on by her
colleagues did not establish a clear and unmistakable waiver, because
language in the collective-bargaining agreement separate from the
management-rights clause appeared to prohibit the Respondent from making the
scheduling change.
(Chairman
Battista and Members Liebman and Schaumber participated.)
Charge filed by
Professional Employees Local 2001; complaint alleged violations of Section
8(a)(5) and (1). Hearing held by
telephone by agreement of the parties on Jan. 10, 2003.
Adm. Law Judge Lawrence W. Cullen issued his decision Feb. 20, 2003.
***
BE&K
Construction Co. (32-CA-9479, et al.; 351 NLRB No. 29) Pittsburg, CA Sept. 29, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35129.htm
The Board, in a 3-2 decision, held that the filing and
maintenance of a reasonably based lawsuit does not violate the National
Labor Relations Act, regardless of the motive for bringing the suit.
BE&K filed a lawsuit
against several unions in federal district court in California. Ultimately,
the suit alleged that the unions were engaged in activities violating both
the Act and antitrust laws. The district court granted the unions’ motions
for summary judgment and dismissed the employer’s suit. The United States
Court of Appeals for the Ninth Circuit affirmed the district court’s
decision.
The unions filed unfair
labor practice charges alleging that the lawsuit was unlawful because it was
retaliatory, and the General Counsel issued a complaint.
In an earlier decision in this proceeding, the Board found, pursuant
to Bill Johnson’s Restaurants, Inc.
v. NLRB, 461 U.S. 731 (1983), that the employer’s unsuccessful suit
violated Section 8(a)(1) because it was filed to retaliate against the
exercise of activities protected by the Act. BE&K
Construction Company, 329 NLRB 717 (1999).
The United States Court of Appeals for the Sixth Circuit enforced the
Board’s decision. BE&K
Construction Co. v. NLRB, 246 F.3d 619 (2001).
The Supreme Court, however, rejected the
Board’s analysis on First Amendment grounds.
BE&K Construction Co. v.
NLRB, 536 U.S. 516 (2002). The
Court first evaluated its relevant precedent concerning the First
Amendment’s right to petition the government through the courts, most of
which had been developed in antitrust cases.
The Court found that the threat of an NLRB adjudication amounted to a
burden on such petitioning. It
also found that the Board’s standard for evaluating the lawfulness of
completed, unsuccessful lawsuits raised a difficult First Amendment issue.
The Court adopted a limiting construction of Section 8(a)(1) to avoid
this constitutional issue, and it invalidated the Board’s legal standard
because it did not comport with that limited construction.
The Court remanded the case to the Board for further proceedings
consistent with its opinion.
On remand, the Board
majority of Chairman Battista and Members Schaumber and Kirsanow noted,
first, that in Bill Johnson’s,
the Court had held that, in order to protect the First Amendment right to
petition, an ongoing, reasonably
based lawsuit could not be enjoined as an unfair labor practice even if its
motive was to retaliate against the exercise of rights protected by the Act.
In light of the Court’s opinion in BE&K,
the Board then found:
These principles, in our view, are equally
applicable to both completed and ongoing lawsuits. ...
[The] chilling effect on the right to
petition exists whether the Board burdens a lawsuit in its initial phase or
after its conclusion. Indeed,
the very prospect of liability may deter prospective plaintiffs from filing
legitimate claims. Thus, the same weighty First Amendment considerations
catalogued by the Court in Bill Johnson’s with respect to ongoing lawsuits apply with equal
force to completed lawsuits. In
sum, we see no logical basis for finding that an ongoing, reasonably based
lawsuit is protected by the First Amendment right to petition, but that the
same lawsuit, once completed, loses that protection solely because the
plaintiff failed to ultimately prevail.
Nothing in the Constitution restricts the right to petition to
winning litigants.
... Accordingly, we find that, just as with
an ongoing lawsuit, a completed lawsuit that is reasonably based cannot be
found to be an unfair labor practice. In
determining whether a lawsuit is reasonably based, we will apply the same
test as that articulated by the Court in the antitrust context: a lawsuit
lacks a reasonable basis, or is “objectively baseless,” if “no
reasonable litigant could realistically expect success on the merits.”
Professional Real Estate
Investors, 508 U.S. at 60.
In applying its new
standard to the facts of the case, the Board found that it was bound by the
Court’s view that the employer’s lawsuit was reasonably based, but it
reached the same conclusion based on its own analysis of the suit.
Although the suit ultimately was unsuccessful, it was not shown to
lack a reasonable basis. Accordingly,
the Board dismissed the complaint without evaluating the employer’s motive
for filing the suit.
In dissent, Members
Liebman and Walsh disagreed with the breadth of the majority’s decision.
In their view, the Supreme Court did not hold that all reasonably
based suits are constitutionally immune from liability under the Act, and
the majority went too far in protecting First Amendment interests at the
expense of rights protected by the Act.
The dissent stated:
What the BE
& K decision leaves open is
convincingly described by the concurring opinion of Justice Breyer in BE
& K, which was joined by Justices Stevens, Souter, and Ginsburg:
The Board may not “rest its finding of ‘retaliatory motive’ almost
exclusively upon the simple fact that the employer filed a reasonably based
but unsuccessful lawsuit and the employer did not like the union.”
536 U.S. at 539. Left
open, in contrast, is the possibility of imposing unfair labor practice
liability in “other circumstances in which the evidence of
‘retaliation’ or antiunion motive might be stronger or different.”
Id.
One example, as Justice Breyer’s
concurrence observes, is the situation expressly referred to by the
Court’s opinion: a case involving “an employer, indifferent to outcome,
who intends the reasonably based but unsuccessful lawsuit simply to impose
litigation costs on the union.” Id.
A second example is the lawsuit brought by an employer “as part of
a broader course of conduct aimed at harming the unions and interfering with
employees’ exercise of their rights under” the Act.
Id.
In the dissent’s view, Bill Johnson’s requires the Board to balance the need to protect
Section 7 rights from incursion by lawsuits against the need to safeguard
the constitutional right of access to the courts.
Although the BE&K
Court, distanced itself from Bill
Johnson’s, the dissent asserts that it did not reject this balancing
principle, or preclude the Board from imposing a measured burden on the
right to petition in order to protect rights under the Act.
The dissent would have
remanded the case for further litigation to evaluate whether the
employer’s suit was retaliatory because it was brought to impose
litigation costs on the unions or as part of a broader pattern of conduct
unlawful under the Act.
(Full
Board participated.)
Brown & Root Power and Mfg., Inc., A Subsidiary
of Brown and Root, Inc. (15-CA-12752,
12875; 351 NLRB No. 20) Panama
City, FL Sept. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35120.htm
The Board, adopting the administrative law judge in
part, found unanimously that the Respondent violated Section 8(a)(3) and (1)
of the Act by failing to hire, and to consider for hire, applicants at a
jobsite who had an intent to organize. The
Board found that the Respondent had plans to hire at the jobsite, that the
applicants had experience or training relevant to the positions to be
filled, and that antiunion animus contributed to the decision not to hire
and consider for hire. Accordingly, the Board found that the General
Counsel had met its burden under FES, 331 NLRB No. 9 (2000).
Although the Board held
that the Respondent demonstrated it had a preferential hiring system based
on applicants’ status as former employees and referral from supervisors
and the on-site project operator, the Board found that the Respondent did
not show that it maintained an additional preference category pertaining to
“gate hires.” The Board held
that instatement was appropriate for openings within each of the
Respondent’s hiring classifications that were discriminatorily filled by
nonpreference hires.
Additionally, the Board
found that the Respondent was aware that certain individual applicants had
an active union involvement and organizational intent, but found that the
applications of certain other applicants did not show an active intent to
organize or present union affiliation.
(Chairman
Battista and Members Liebman and Kirsanow participated.)
Adm. Law Judge J. Pargen Robertson issued
his supplemental decision May 10, 2001.
***
Contractor
Services, Inc. (10-CA-28856 et al.; 351 NLRB No. 4) Davenport, IA Sept. 27,
2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v3514.htm
Chairman Battista and Members Schaumber and Kirsanow
found, contrary to the administrative law judge, that backpay claimant Tracy
Landers, a paid union organizer, was not entitled to any backpay.
The backpay claim of discriminatee William Hunt was remanded to the
judge for further consideration in light of the Board’s decision in Oil
Capitol Sheet Metal, 349 NLRB No. 118 (2007).
In a 1997 decision subsequently enforced by
the 11th Circuit, the Board held that the Respondent
discriminatorily denied employment to Landers and Hunt following their
submission of applications for work in 1995.
Contractor Services,
324 NLRB 1254 (1997), enfd. Contractor Services v. NLRB,
No. 00-10668 (11th Cir. 2000). Thereafter,
a compliance proceeding was held to determine their entitlement to backpay.
Hunt, a volunteer union organizer, was a salt.
Pursuant to Oil Capitol Sheet
Metal, the General Counsel therefore had the burden of proving the
duration of his backpay period. The
Board remanded the case to the judge for further proceedings on that issue.
Landers, a paid union organizer, also was a
salt. The Board did not remand
his backpay claim, however, because he was entitled to no backpay under
established law. First, the
Board held that the General Counsel failed to show that his backpay
calculations for Landers were reasonable and not arbitrary.
Those calculations assumed that he would have accepted referrals to
any location even those that required significant travel, despite
substantial evidence that he would not have accepted referrals to locations
outside of the union’s geographic jurisdiction because such work would
have interfered with his responsibilities to the union.
Second, the Board held that he failed to mitigate his damages by
making an honest, good faith effort to find interim work.
He limited his search to nonunion employers, and did not seek
employment on many short duration jobs, or jobs outside the union’s
geographic jurisdiction, because they did not offer substantial organizing
opportunities. Moreover, he
failed to expand his search when his initial efforts were unsuccessful and
only applied to 23 employers during the 46-month backpay period.
Taken as a whole, the Board found these haphazard efforts
insufficient especially when contrasted with the success in obtaining
employment of Hunt and another discriminatee, who did not similarly limit
their search efforts.
(Chairman
Battista and Members Schaumber and Kirsanow participated.)
Hearing
at Atlanta, GA, Dec. 3 and 4, 2001. Adm.
Law Judge Lawrence W. Cullen issued his decision April 24, 2002.
***
Dana
Corp. and Metaldyne Corp. (6-RD-1518, 1519 and 8-RD-1976; 351 NLRB No. 28) St. Mary’s, PA and
Upper Sandusky, OH Sept. 29, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35128.htm
The Board, in a 3-2 decision, modified its
recognition-bar doctrine, and held that an employer’s voluntary
recognition of a labor organization does not bar a decertification or rival
union petition that is filed within 45 days of the notice of recognition.
In deciding this case the Board considered
the positions of the parties and amicus submissions from various companies,
organizations, and individuals, as well as Members of the U.S. Senate and
U.S. House of Representatives.
Under its former policy, established in Keller
Plastics Eastern, Inc., 157 NLRB 583 (1966), an employer’s voluntary
recognition of a union, based on a showing of the union’s majority status,
barred a decertification petition filed by employees or a rival union’s
petition for a reasonable period of time.
The Board had reasoned that labor-relations stability was promoted by
a rule under which a voluntarily recognized union was insulated from
challenge to its status while negotiating for a first collective-bargaining
agreement.
In Dana,
the Board majority of Chairman Battista and Members Schaumber and Kirsanow
concluded that although the basic justifications for providing an insulated
period are sound, they do not warrant immediate
imposition of an election bar following voluntary recognition.
The Board held that the uncertainty surrounding voluntary recognition
based on an authorization card majority, as opposed to union certification
after a Board election, justifies delaying the election bar for a brief
period during which unit employees can decide whether they prefer a
Board-conducted election. Under
the Board’s new policy, an employee or rival union may file a petition
during a 45-day period following notice that a union has been voluntarily
recognized. The petition will be
processed if, like other petitions, it is supported by 30 percent of the
bargaining unit. The Board will
apply this modified procedure prospectively only.
In dissent, Members
Liebman and Walsh stated that nothing in the majority’s decision justifies
its radical departure from the longstanding and judicially approved
procedure first announced in Keller
Plastics. The dissent
maintains that voluntary recognition is a favored element of national labor
policy, yet the majority relegates it to disfavored status by allowing a
minority of employees, the number needed to file a decertification petition,
to disrupt the bargaining process just as it is getting started.
This, the dissent contends, will discourage voluntary recognition
altogether.
(Full
Board participated.)
***
Fluor
Daniel, Inc.
(26-CA-13842; 351 NLRB No. 14) Greenville, SC Sept. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35114.htm
This case involved compliance proceedings concerning
the portion of the Board’s original decision in 311 NLRB 498 (1993)
that the United States Court of Appeals for the Sixth Circuit had upheld in
161 F.3d 953 (6th Cir. 1998).
(The court had remanded a separate portion of the case for further
findings; the Board resolved exceptions to that portion of the case in Fluor
Daniel, Inc., 350 NLRB No. 66 (2007).)
The compliance proceedings involved one discharged employee (employee
Bolen) and two union salt-applicants (the Coons brothers) whom the
Respondent had discriminatorily refused to hire.
With respect to employee Bolen, a Board
majority (Members Schaumber and Kirsanow) assumed, without deciding, that
the presumption of continued employment set forth in Dean
General Contractors, 285 NLRB 573 (1987), did not apply, but found that
the General Counsel nevertheless provided sufficient affirmative evidence
that Bolen would have been employed throughout the backpay period because
Bolen would have been subject to the Respondent’s preference for hiring
former employees and because Bolen worked continuously throughout the
backpay period. The Board also
rejected the Respondent’s claim that Bolen was obligated to, but failed,
to reapply, and found that the Respondent failed to demonstrate that it
lacked available positions that were substantially equivalent to Bolen’s
former position. In addition,
the Board rejected the Respondent’s claim that the judge erred by allowing
the General Counsel to exclude lower-level “helper” positions in
calculating Bolen’s backpay, noting the compliance officer’s testimony
that Bolen would not have accepted such a position.
The Board also affirmed the judge’s approval of the General
Counsel’s use, in calculating gross backpay, of the top 10 percent of
employees in terms of number of hours worked in each individual year of the
backpay period, because Bolen had been consistently employed, and the
Respondent had jobs available for which Bolen was qualified, throughout that
entire period. The Board
rejected, as unsupported by pertinent evidence, the Respondent’s claim
that a “seasonal” variation should have applied in calculating Bolen’s
backpay. Finally, a Board
majority (Members Liebman and Kirsanow) found that the judge did not err by
beginning Bolen’s backpay period on May 3, 1990, as that had been the date
on which the initial judge’s decision had found that Bolen had been
“effectively discharged,” the Board and the court had not disturbed that
holding, and the Respondent had not established facts that would have
warranted altering the date.
With respect to the Coons brothers, the
majority (Members Schaumber and Kirsanow) remanded the portion of the case
concerning them for further findings in light of the Board’s decision in Oil
Capitol Sheet Metal, Inc., 349 NLRB No. 118 (2007).
In doing so, the majority noted that on remand, the judge would be
foreclosed from revisiting the Board’s previous order of instatement, as
the Order had been enforced by the court.
However, the majority found that the judge would not be precluded
from applying Oil Capitol in
determining the duration of the backpay periods.
Member Liebman dissented in part, stating
that she would find that the law of the case required the application of Dean
General to Bolen and the Coons brothers.
Member Schaumber also dissented in part,
stating that the record did not support beginning Bolen’s backpay period
on May 3, as Bolen had indicated that he would not return to work until
picketing ended, and the court had assumed that picketing had continued
beyond that date.
(Members
Liebman, Schaumber, and Kirsanow participated.)
***
Goya
Foods of Florida (12-CA-21464, et al.; 351 NLRB No. 13) Miami, FL Sept. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35113.htm
In the third of recent decisions involving the same
parties, the Board adopted the administrative law judge’s findings that
the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally
changing bargaining unit drivers’ routes, wages, and hours when
implementing a new Roadnet software routing program.
The Board reversed the judge to find that the Respondent also
violated Section 8(a)(5) and (1) by unilaterally implementing a new
inspection procedure for drivers returning to the Respondent’s warehouse
with goods refused by customers, and by unilaterally reassigning stores on
the delivery route of a discharged driver to other drivers.
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 Board relied on Goya I in rejecting the Respondent’s argument in the present case
that it had no general statutory obligation to bargain.
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 relied on this rationale in finding similar unilateral change
violations in Goya Foods of Florida,
350 NLRB No. 74 (2007)(Goya II) and did so again in the present case in finding that
changes in routes, wages, and hours resulting from implementation of the
Roadnet program and the reassignment of stores on a discharged driver’s
route violated Section 8(a)(5). Reversing
the judge in finding the latter violation, the Board stated that the judge
mischaracterized the issue as involving an employer’s right to take action
as a temporary expedient to meet the next day’s delivery demands.
Instead, the Board found that the issue involved the permanent or
long-term reassignment of stores on the discharged driver’s route and, as
in similar reassignment situations litigated in Goya
I, the Respondent failed to meet its obligation to bargain before making
those changes.
In reversing the judge’s
recommended dismissal of the allegation that the Respondent’s
implementation of a new inspection procedure for refused goods, the Board
disagreed with the judge that the change had a de minimus effect on
bargaining unit drivers. The
Board emphasized that the Respondent’s new requirement that drivers sign
to verify the accuracy of the refused goods inspection formalized drivers’
responsibility and created the potential of discipline for failing to follow
the new procedure. As such, the
change was substantial and material, triggering the Respondent’s
obligation to bargain with the Union prior to imposing the new inspection
procedure.
The Board ordered the
Respondent to rescind the unlawfully implemented inspection procedure.
In light of the fact that the decision to implement the new Roadnet
program companywide preceded the Union’s certification, the Board agreed
with the judge that the Respondent should not be ordered to rescind its use
of that program, although the Respondent will have to bargain about its
effects on bargaining unit drivers. However,
the Board disagreed with the judge that no remedial backpay remedy was
warranted for the Roadnet violation. It
ordered the Respondent to make whole the drivers for any losses resulting
from the implementation of Roadnet.
As in Goya
II, the Board rejected the Respondent’s contentions the General
Counsel engaged in impermissible relitigation or piecemeal litigation of
various allegations in this proceeding and that the judge erred by issuing a
decision before the Board issued its decision in Goya
I.
(Members
Liebman, Schaumber, and Kirsanow participated.)
Charges filed by UNITE HERE; complaint
alleged violation of Section 8(a)(1), (3), and (5).
Hearing at Miami, Nov. 8, 9, and 13, 2001.
Adm. Law Judge Raymond P. Green issued his decision July 2, 2004.
***
Hacienda
Hotel, Inc. Gaming Corp., d/b/a Hacienda Resort Hotel & Casino
(28-CA-13274, 13275; 351 NLRB No. 32 ) Las Vegas, NV Sept. 29, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35132.htm
The Board accepted the remand
of the U.S. Court of Appeals for the Ninth Circuit (Local Joint Executive Board of Las Vegas, Culinary Workers Union Local
226 v. NLRB, 309 F.3d 578 (9th Cir. 2002)), as the law of the
case in concluding that the Respondents did not violate Section 8(a)(5) and
(1) of the Act by unilaterally ceasing dues checkoff after the parties'
collective-bargaining agreements expired.
The Board based its finding on the particular circumstances of this
case, in which the dues-checkoff clauses in the parties'
collective-bargaining agreements contained explicit language limiting the
Respondents' dues-checkoff obligation to the duration of the agreements.
In its initial decision,
331 NLRB 665, issued on July 7, 2000, the Board affirmed the administrative
law judge’s decision that the Respondents had not violated the Act by
unilaterally ceasing dues checkoff. The
judge reasoned that the dues-checkoff provisions contained explicit
language, which limited the Respondents’ dues-checkoff obligation to the
duration of the agreements. The
Board, however, relied on a different rationale based on
"well-established precedent that an employer's obligation to continue a
dues-checkoff arrangement expires with the contract that created the
obligation," citing Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962), remanded on other grounds sub nom. Marine
& Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert.
denied 375 U.S. 984 (1964), and its progeny.
In vacating the Board’s
earlier Decision and Order, the court concluded that it was “unable to
discern the Board’s rationale for excluding dues-checkoff from the
unilateral change doctrine in the absence of union security,” and,
therefore, the court did “not reach the question whether such a rule would
be ‘rational and consistent’ with the Act and therefore entitled to
deference.” Therefore, the
court remanded the case to the Board with instructions to articulate a
reasoned explanation for its decision, whether the Board decides to reaffirm
its earlier decision or adopt a different rule.
Chairman Battista concurred in the Board’s newly articulated rationale, agreeing with his colleagues and the judge that the language of the dues checkoff clause specifically made clear that its duration was coterminous with that of the collective-bargaining agreement. He noted his view that this rationale is further supported by the alternate rationale in the Third’s Circuit’s opinion enforcing the Board’s decision in Bethlehem Steel Co., supra. Chairman Battista wrote separately to convey his view that even if the parties, unlike here, fail to express this intention in their collective-bargaining agreement, he would include dues checkoff among the class of mandato