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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 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 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 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 mandatory subjects that are
excluded from the unilateral change doctrine under Katz,
i.e., which do not survive contract expiration.
He reasoned that dues checkoff is a form of economic weaponry, albeit
milder than a lockout, whereby the Respondent cuts off the automatic flow of
funds in order to persuade the Union to agree with the Respondent on
outstanding contract issues.
Members Liebman and Walsh
dissented, rejecting the majority’s position for the reasons stated in the
original dissent. They found
that as a general matter, dues check-off survives contract expiration, and
the Respondent violated Section 8(a)(5) and (1) by unilaterally ceasing to
honor employees’ dues-checkoff authorizations following expiration of the
collective-bargaining agreements, notwithstanding the contract language
relied on by the majority. The
dissent rejected the majority’s approach, stating that it “would
effectively drain the Katz
doctrine of any force.” The
dissent also rejected Chairman Battista’s economic weapon theory, stating
that “rather than justifying a principled exception to Katz,
his logic would vitiate the policy altogether.”
Chairman Battista countered the dissent, stating “That fear is
unfounded. The rationale of Indiana & Michigan Electric, on which I rely to exclude dues
checkoff from the Katz doctrine,
would be applicable to very few other terms and conditions of employment.”
(Full
Board participated.)
***
Jones
Plastic & Engineering Co. (26-CA-20861; 351 NLRB No. 11) Camden, TN
Sept. 27, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35111.htm
The Board announced that at-will employment status
does not detract from an employer’s otherwise valid showing that it has
permanently replaced striking employees.
The Board overruled Target
Rock, 324 NLRB 373, 374 (1997), enfd. 172 F.3d 921 (D.C. Cir. 1998), to
the extent it is inconsistent with that principle.
An economic striker who unconditionally
offers to return to work is entitled to immediate reinstatement unless the
employer has hired a permanent replacement for the striker in order to
continue its business operations during the strike. Mackay Radio &
Telegraph Co. v. NLRB, 304
U.S. 333, 345-346 (1938). Thus,
at the conclusion of a strike, an employer is not bound to discharge those
hired permanently to fill the places of economic strikers, but permanent
replacement status is an affirmative defense, with the burden on the
employer to show a mutual understanding with the replacements that they are
permanent.
Many employers hire
employees on an “at-will” basis, meaning that they can be discharged at
any time, with or without cause. In
Target Rock, the Board opined that statements advising replacement
employees of their at-will status “obviously do not support the [r]espondent’s
position that the striker replacements were permanent.”
In Jones Plastic, the
General Counsel asserted that because Target Rock could be read to deprive at-will replacement employees
of permanent status, the law should be changed to make clear that at-will
employment does not foreclose a finding of permanent replacement status.
A Board majority (Chairman
Battista and Members Schaumber and Kirsanow) concluded that at-will
employment status does not detract from permanent replacement status,
stating that
we view as untenable any
implication in Target Rock that
conditions on hiring other than those enumerated in Belknap
detract from a finding of permanent replacement status.
Instead, we find that the status of the replacements hired by the
Respondent in this case is indistinguishable from the status of probationary
employees found to be permanent replacements in Kansas Milling, [97 NLRB 219, 225-226 (1951)], and its progeny.
In those cases, the probationary employees were subject to discharge
without cause, and their post-probation employment was subject to their
satisfaction of the employer’s standards.
As a matter of law, then, equivalent conditions imposed by the
Respondent through its at-will disclaimers do not detract from other
evidence proving the replacements’ status as “permanent employees” for
the purpose of federal labor law.
Applying those principles, the Board found
that the Respondent’s issuance of at-will disclaimers informing employees
that their employment was for “no definite period” and could be
terminated for “any reason” and “at any time, with or without cause”
did not detract from its showing of permanent replacement status.
In reaching this conclusion, the Board noted that the Respondent was
following its normal employment practices because the strikers as well as
the replacements were employed on an at-will basis.
The Board found that the other evidence in
the case supported a finding of permanent replacement status. The Respondent
issued to the replacement employees forms stating that they were permanent
replacements, in many cases naming the striker whom the individual was hired
to permanently replace. The
Respondent also told striking employees that it had begun to hire permanent
replacements and that they risked permanent replacement if they did not
return to work. The
Respondent’s human resource manager also told one replacement that he was
a permanent employee. On these
facts, the Board concluded that the Respondent
established a mutual understanding with its replacement employees that they
would not be displaced by returning strikers at the end of the strike, which
is the meaning of “permanence” in this context.
Members Liebman and Walsh dissented.
In their view, Board precedent established that at-will employment was not incompatible with permanent replacement status, and nothing in Target
Rock required the overruling of that
case. What is required to show
permanent status, in their view, is “the promise to the replacements of
some right vis-à-vis the strikers” – “’strikers . . . are entitled
to reinstatement’ unless the employer has made a commitment to the
replacements that would be breached if the employer ‘discharg[ed] them to
make way for selected strikers . . .’ [Belknap, supra, 463 U.S. at
503-504].”
The dissent noted that the
Respondent had advised the replacements that their employment “may be
terminated as a result of a strike settlement agreement . . . or by order
the National Labor Relations Board” and stated that
[h]ad the Respondent made only
the latter statement, a finding that the replacements were permanent would
follow. But the Respondent did
not so limit itself. Rather, it
told the employees not only that they could be displaced as a result of a
strike settlement or Board order, but, additionally,
that they could be discharged at any time for any reason.
Taken together - and absent any other evidence of mutual
understanding of permanence - the Respondent’s statements did not reflect
any commitment by the Respondent to the replacements.
Certainly, the statements did not reflect a commitment that the
Respondent would refuse, in the absence of a strike settlement, to reinstate
strikers if it meant terminating replacements.
Although the Respondent used the term “permanent replacement,” it
then undercut that statement by failing to give the replacements any
assurance that they had rights vis-à-vis the strikers.
Because the dissent
concluded that a mutual understanding of permanent employment was not
established, in their view the Respondent violated Section 8(a)(3) and (1)
of the Act by refusing to reinstate the strikers upon their unconditional
offer to return to work.
(Full
Board participated.)
Charge filed by the Steelworkers; complaint
alleged violation of Section 8(a)(1) and (3). Parties waived their
right to a hearing before an administrative law judge.
***
Laborers
Local 210 (Surianello General Contractor) (3-CD-645; 351 NLRB No. 25) Buffalo, NY Sept. 28,
2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35125.htm
The Board found that employees of Surianello General
Concrete Contractor, Inc. represented by Laborers Local 210, rather than
those represented by Operating Engineers Local 17, are entitled to operate
the EZ Gang Drill at the Employer’s jobsite located on Interstate 90 in
Blasdell, New York. In finding
that there was reasonable cause to believe that Section 8(b)(4)(D) had
been violated, the Board rejected Local 17’s claims that:
(1) it did not assert a claim to the disputed work; (2) Local 210’s
threat of job action was a sham; (3) the dispute is not appropriate for a
Section 10(k) hearing because Local 210 merely asserts a work preservation
claim; and (4) an agreed-upon method of voluntary resolution exists.
On the merits of the dispute, the Board awarded the disputed work to
the Laborers-represented employees based on the factors of
collective-bargaining agreements, employer preference, current assignment
and past practice, area practice, relative skills and training, and economy
and efficiency of operations.
(Members
Schaumber, Kirsanow, and Walsh participated.)
***
Berthold
Nursing Care Center, Inc. d/b/a Oak Park Nursing Care Center
(14-RC-12485; 351 NLRB No. 9) St. Louis, MO Sept. 26, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v3519.htm
The Board majority (Chairman Battista and Member
Kirsanow) reversed the Regional Director’s finding that the petitioned-for
licensed practical nurses (LPNs) at the Employer’s long-term care facility
were not statutory supervisors under the Act.
The majority found that the LPNs were supervisors by virtue of their
authority to discipline, and effectively recommend discipline of, employees.
In so finding, the majority relied on the fact that the LPNs have the
authority to fill out employee counseling forms under the Employer’s
progressive disciplinary policy, which lay a foundation for future
discipline against an employee. Additionally,
the majority found that the LPNs have the authority to effectively recommend
discipline against employees; recommendations which are accepted without
further independent investigation. Accordingly,
the majority dismissed the petition.
In his dissent, Member
Walsh notes that he would have affirmed the Regional Director as the
authority to fill out counseling forms, without more, does not constitute
supervisory authority to discipline. In
this respect, Member Walsh noted that every counseling form that is filled
out by an LPN is reviewed by higher management; the forms do not contain
disciplinary recommendations; and any resulting discipline is not automatic,
but rather a result of upper management’s exercising independent judgment.
Moreover, Member Walsh found that the LPNs do not have the authority
to effectively recommend discipline either.
(Chairman
Battista and Members Kirsanow and Walsh participated.)
***
Pro-Tec
Fire Services Ltd., a subsidiary of JJ Protective Services (17-CA-21310,
21486; 351 NLRB No. 8)
Oklahoma City, OK Sept. 27, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v3518.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
banning all union activities at the workplace and by disparately restricting
the personal use of company vehicles to nonunion business.
The Board (Chairman
Battista and Member Schaumber; Member Liebman, dissenting) reversed the
judge’s finding that the Respondent violated Section 8(a)(3) of by
refusing to consider for hire employee Robert Manley.
The majority found no evidence that the selecting officials Rynerson
and Cashman independently bore animus at all toward Manley for his prior
union activity. Member Liebman would find sufficient circumstantial evidence
to establish by a preponderance of the evidence that the Respondent’s
refusal to hire Manley was motivated by antiunion animus toward Manley’s
union activity.
(Chairman
Battista and Members Liebman and Schaumber participated.)
Charges filed by Firefighters Local 3694;
complaint alleged violation of Section 8(a)(1) and (3).
Hearing at Oklahoma City on June 18, 2002.
Adm. Law Judge Lana Parke issued her decision Aug. 1, 2002.
***
Ray
Angelini, Inc.
(4-CA-24904; 351 NLRB No. 24) Philadelphia, PA Sept. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35124.htm
The Board in this supplemental decision and order
found that the Respondent’s lawsuit was reasonably based, and therefore
under the test set forth in the Board’s supplemental decision in BE&K, 351 NLRB No. 29 (2007), the filing and maintenance of
the lawsuit did not violate the Act. The
Board dismissed the complaint.
The lawsuit arose out of
the City of Philadelphia’s (City) bid process for electrical work at the
Philadelphia International Airport (Airport).
The City notified the Respondent that it was the lowest bidder.
However, the Charging Party Union (Union) notified the City that the
Respondent had violated prevailing-wage regulations on jobs it performed for
the State of New Jersey. The
City made inquiries and then notified the Respondent that it was
disqualified from receiving the Airport contract.
The Respondent requested a disqualification hearing but the
Respondent’s disqualification was upheld and the City awarded the Airport
contact to another company. The
Respondent filed suit in state court against the City and the other company.
The Respondent also made inquiries and, as a result, informed the
City that it awarded contracts to other bidders with much more serious
prevailing-wage violations than those alleged to have been committed by the
Respondent. Also, the Respondent’s attorney encountered the City’s
Director of Procurement who stated that the City’s political obligations
to the Union’s business agent were involved in the Airport contract.
The Union had a convention coming to the City and it would not look
good if a non-union contractor, such as the Respondent, was working on the
Airport contract. Thereafter,
the Respondent dropped its state court action and filed suit in federal
district court—the lawsuit at issue in this case—against the City, the
company awarded the Airport contract, and the Union. The Respondent alleged
that the defendants had acted in concert, under color of state law, to
deprive the Respondent of its 14th Amendment right to substantive
due process. The Respondent
alleged that the defendants conspired to have the Respondent, a non-union
contractor, disqualified from the Airport contract and divested of its bid
in favor of a union contractor. The
Respondent relied heavily on its attorney’s conversation with the City’s
Director of Procurement and the Respondent’s information about the City
awarding contracts to other bidders with much more serious prevailing-wage
violations than those alleged to have been committed by the Respondent.
The Union filed a motion
to dismiss the complaint for failure to state a claim on which relief may be
granted. The court denied this
motion, without opinion, and also denied a similar motion filed by other
defendants. The Union next filed
a motion for summary judgment which the court denied, again without opinion.
The court then conducted a five-day bench trial after which the court
dismissed the Respondent’s complaint in its entirety, with prejudice.
The Respondent failed to prove the existence of a conspiracy between
the Union and the City. The
court required the Respondent to pay the cost of the proceeding, but it
denied the Union’s request for attorneys’ fees.
The Respondent did not appeal the court’s decision.
Meanwhile the Union filed
a charge alleging that the Respondent’s lawsuit was filed in retaliation
against the Union’s exercise of Section 7 rights and thus violated
Section 8(a)(1). The Board’s
administrative law judge found the violation.
She applied Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (1983) and
reasoned that because the Respondent’s lawsuit was “unsuccessful,” it
was unlawful if filed in retaliation against the exercise of Section 7
rights. The administrative law judge so found citing the Respondent’s
opposition to the Union’s having reported its prevailing-wage violations
to City officials, to the Union’s lobbying those officials in an effort to
obtain City contracts for union contractors, and to the Union’s business
agent’s efforts to ingratiate himself with potential voters.
The Board adopted the administrative law judge’s decision.
The General Counsel and
the Respondent urged the Board to dismiss the complaint in light of the
Supreme Court’s decision in BE&K
Construction Company v. NLRB, 536 U.S. 516 (2002).
They argued that the lawsuit had a reasonable basis and did not
violate the Act. The Union urged
the Board to find the violation because it was not objectively reasonable
given the Union’s evidence.
In this supplemental
decision, the Board cited its recent BE&K
decision for the principle that: “the filing and maintenance of a
reasonably based lawsuit does not violate the Act, regardless of whether the
lawsuit is ongoing or completed, and regardless of the motive for initiating
the lawsuit.” The Board also
cited the Supreme Court’s decisions in Professional
Real Estate Investors, Inc. v. Columbia Picture Industries, 508 U.S. 49
(1993) and Bill Johnson’s
Restaurants, supra. The
former provides that “a lawsuit lacks a reasonable basis, or is
‘objectively baseless,’ if ‘no reasonable litigant could reasonably
expect success on the merits.’” The
latter provides that: “if there is a genuine issue of material fact that
turns on the credibility of witnesses or on the proper inferences to be
drawn from undisputed facts, it cannot, in our view, be concluded that the
suit should be enjoined,” and that the Board should “stay its hand”
unless “the plaintiff’s position is plainly foreclosed as a matter of
law or is otherwise frivolous.”
The Board applied these
principles here and found that the Respondent’s lawsuit was reasonably
based. The Board noted that the district court’s denial of the Union’s
motions to dismiss and for summary judgment
allowed the Board to infer, first, that the Respondent’s complaint
stated a claim upon which relief could be granted, and second, that disputed
issues of material fact existed precluding judgment as a matter of law in
the Union’s favor. Thus, the
Board could not say that the Respondent could not have reasonably expected
to succeed on the merits. Indeed,
the Board noted that the Union wanted the Board to readjudicate its motion
for summary judgment, i.e. to have the Board find no factual dispute as to
the existence of a conspiracy. However,
the court found to the contrary. The Board declined the Union’s invitation
to second-guess the court in this regard. The Board found the Respondent’s
lawsuit was reasonably based and dismissed the complaint.
(Chairman
Battista and Members Schaumber and Kirsanow participated.)
|
|
NLRB Law Memo 10/04/2007
by Ross Runkel at LawMemo
NLRB Law Memo 10/04/2007
by LawMemo - World's Best.
Also available by email.
NLRB - Staff summarized 3 decisions.
Cast-Matic
Corp., d/b/a Intermet Stevensville
(Intermet Stevensville
II) (7-CA-45550, et
al.; 350 NLRB
No. 93) Stevensville,
MI Sept. 17,
2007.
http://www.nlrb.gov/shared_files/Board
Decisions/350/v35093.htm
Intermet Stevensville II concerned the Respondent's alleged continuation of unfair labor practices directed at the Respondent's production and maintenance employees who supported the Union during the organizational campaign in issue in Intermet Stevensville, 350 NLRB No. 94 (Intermet I). Relying on its decision in Intermet Stevensville I, a divided panel in Intermet Stevensville II, dismissed the administrative law judge's finding of several Section 8(a)(5) violations arising from the Respondent's alleged refusal to bargain and provide information to the Union, direct dealing with employees, and unilateral changes in employees' terms and conditions of employment. Consistent with his dissent in Intermet Stevensville I, Member Walsh dissented on these Section 8(a)(5) issues.
The
panel also considered
several instances of
alleged discriminatory
conduct.
Contrary to
the judge, the
panel unanimously found
that the Respondent
had not constructively
discharged several foundry employees. The majority
rejected the judge's conclusion that
these employees, who
were unilaterally assigned
new tasks in the
months following the
election in issue
in Intermet I, faced a
"Hobson's Choice"; instead, the
panel found that
the Respondent did
not condition its
employees' continued
employment upon
their "abandonment
of . . .
the right to
bargain collectively
through representatives of
their own choosing."
Superior Sprinkler, 227 NLRB
204, 210 (1976).
Further,
the unanimous panel
refused to adopt
the judge's
findings that the
Respondent had discriminated
against its maintenance
technicians, several
of whom were involved
in the earlier
organizing drive.
First, the
panel found that
the Respondent lawfully
issued to these
employees job descriptions
that demonstrated a
heightened emphasis
on skills necessary to
maintain equipment
related to the Respondent's new manufacturing
process. Consistent
with this finding,
the panel reversed
the judge's
finding that the
Respondent violated
Section 8(a)(3) by giving
the maintenance technicians
unfavorable evaluations
when the failed to
obtain the skills
set forth in
the job descriptions.
Nevertheless,
the unanimous majority
adopted the judge's finding that
the Respondent violated
Section 8(a)(3) when
it subsequently laid
off and reassigned
several of the
maintenance technicians.
The panel
found, consistent with
the judge, that
the Respondent demonstrated
that its financial
situation was such
that layoffs were
necessary. Nevertheless,
the panel determined
that the Respondent
failed to show
that it would
have laid off
or reassigned these
specific individuals.
The panel
relied on the
Respondent's failure
to explain why
it targeted maintenance
technicians when its
stated concern was
a need to
stem production.
The panel
also relied on
shifting testimony,
all of which was
inconsistent with the
Respondent's established
layoff policy, concerning
how it decided
which employees within
the maintenance department
to lay off.
(Members
Schaumber, Kirsanow,
and Walsh participated.)
Charges filed by
Auto Workers (UAW);
complaint alleged violation
of Section 8(a)(5),
(3), and (1).
Hearing
at Stevensville on
11 days between
Oct. 28, 2003
and Aug. 18,
2004.
Adm. Law Judge
Earl E. Shamwell
Jr. issued his
decision July 21,
2005.
***
Cast-Matic
Corp., d/b/a Intermet Stevensville
(7-CA-44878, et
al.; 350 NLRB
No. 94) Stevensville,
MI Sept. 17.
2007.
http://www.nlrb.gov/shared_files/Board
Decisions/350/v35094.htm
In Intermet Stevensville
I,
a divided panel
refused to enforce
the administrative
law judge's recommended
Gissel bargaining
order, notwithstanding
the unanimous panel's
decision to adopt
the judge's
findings of several
unfair labor practices. The panel
instead ordered a
second election.
The case
concerned the Respondent's reaction to
an organizing drive
among the production
and maintenance employees
in its manufacturing
facility. In
agreement with the
judge, the unanimous
panel found that
the Respondent violated
Section 8(a)(1) of
the Act in
several ways, including: prohibiting, confiscating,
and disposing of
union paraphernalia;
interrogating applicants
about their union
sentiments; making
statements that
it would be
futile to select
the union; and
threatening loss of
benefits should the
employees select the
union. A
divided panel (Member
Schaumber dissenting)
also adopted the judge's findings that,
among other things,
the Respondent violated
Section 8(a)(1) by
removing employee bulletin
boards from the break
room, interrogating
employees about
their union sentiments
and activities.
The same
panel majority adopted
the judge's
findings that the
Respondent violated
Section 8(a)(3) by disciplining
an employee because
it suspected her
of supporting the
union. A
different panel majority
reversed the judge's findings that
subsequent adverse
actions taken against that
employee also violated
Section 8(a)(3), finding
instead that the
employee's poor
work record effectively
demonstrated that she
would have been
demoted even in
the absence of
her perceived union support.
Despite these
findings of violation,
a divided panel
refused to enforce
the judge's
recommended Gissel
bargaining order or
to find violations
of Section 8(a)(5). Noting that
no employees lost
their jobs as
a result of
the Respondent's
unfair labor practices,
and that only
a few of
the Respondent's
actions affected a
material portion of
the proposed unit,
the panel majority,
consistent with its
views in several
recent cases, determined
that the Respondent's unlawful conduct
could adequately be
remedied by traditional
remedies. Abramson,
LLC, 345
NLRB No. 8
(2005); Jewish
Home for
the Elderly of Fairfield
County, 343
NLRB 1069 (2004). Consistent with
the dissenting positions
in those cases,
and relying in
part on his
dissent from the
majority's decision
with respect tot
the demotion, Member
Walsh dissented from
the majority's
refusal to issue
a Gissel bargaining
order and to find
the Section 8(a)(5)
refusal to bargain
violation. In
his view, "the
seriousness of the
violations and the
pervasive nature of
the [unlawful] conduct,
considering such factors
as the number
of employees directly
affected by the
violations, the size
of the unit,
the extent of
dissemination among
employees, and
the identity and
position of the
individuals committing
the unfair labor practices"
supported the issuance of
a bargaining order.
(Members
Schaumber, Kirsanow, and Walsh
participated.)
Charges filed by
Auto Workers (UAW);
complaint alleged violation
of Sections 8(a)(5),
(3), and (1).
Hearing
at Stevensville on
5 days between
Sept. 11 and
Oct. 23, 2002.
Adm.
Law Judge C.
Richard Miserendino issued
his decision May
16, 2003.
***
Suburban
Electrical Engineers/Contractors,
Inc. (30-CA-15473, et al.;
351 NLRB No.
1) Appleton, WI
Sept. 20, 2007.
http://www.nlrb.gov/shared_files/Board
Decisions/351/v3511.htm
The
Board adopted the administrative
law judge's findings
that the Respondent
did not violate
Section 8(a)(1) of
the Act concerning
certain alleged misconduct
by the Respondent
during the Union's organizing campaign. The Board
noted that some
of this misconduct
was allegedly perpetrated
by three foremen. The judge
dismissed the allegations
against them on
the grounds that
none of the
three foremen was
a statutory supervisor. The Board
agreed with this
but also noted
that none of
the three foremen
was an agent
of the Respondent. Therefore the
Board adopted the
judge's recommended
dismissals of the
complaint allegations
against the three foremen. See Pan-Osten
Co., 336 NLRB
305, 305-307 (2001).
The judge found that
the Respondent violated
Section 8(a)(1) when
Project Manager Sam
Schultz unlawfully
threatened employees. The Board
reversed the judge
and found that
Schultz' statement
was ambiguous given the
surrounding circumstances.
The Board
noted the long-term organizing campaign,
the absence of
any express or
implicit references
to adverse employment
consequences for
the employee allegedly
threatened, an atmosphere
of morning geniality,
and the absence
of any other
unfair labor practices. See Illinois
Institute of Technology,
195 NLRB 375
(1972).
The Board also adopted
the judge's
findings that the
Respondent violated
Section 8(a)(3) when it
failed to hire
"salts" Terry Roovers
and Corey Wiegel
on two occasions. The Board
modified the judge's analysis pursuant
to FES, 331
NLRB 9 (2000),
supplemented by 333
NLRB 66 (2001),
enfd. 301 F.3d
83 (3d Cir.
2002). The
Board noted that
there was no
dispute as to
the first part
of the FES
test. The Respondent
was hiring at
the time of
the alleged unlawful
conduct. The
Board noted that
there was also
no dispute as
to the second
part of the
FES test. Roovers and
Wiegel had experience
or training relevant
to the job
at issue.
Finally, the
Board noted that
as to the
third and final
part of the
FES test,
the animus requirement,
the Board's
analysis was different
from that of
the judge.
The Board
found animus in
the Respondent's
proffering of false
reasons for its
failure to hire
Roovers and Wiegel. The Board
noted that it
was not true
that Roovers had
been rude and
Wiegel had refused
a prior job
offer, and that
both of them
were without current
experience because
they had been serving
as union agents
immediately before
they applied for the
Respondent's jobs. The Board
thereby rejected the
judge's finding
of animus in
the mere fact
that Roovers and
Wiegel were affiliated
with the Union
and the Union
was attempting to
organize the Respondent's employees.
See Loudon
Steel, 340
NLRB 307, 312
(2003).
Finally, the
Board reversed the
judge's finding
that the Respondent
violated Section 8(a)(3)
by failing to
consider for hire
Roovers and Wiegel
on yet another
occasion. The
Board again applied
FES and
its two part
test requiring showings
of exclusion from
the hiring process,
and antiunion animus. The Board
found that the
General Counsel failed
to establish the
first part of
the test.
The Board
noted the uncontroverted
testimony of Executive Vice
President David Maass
that he considered
all the relevant
applications, including
those of Roovers and
Wiegel. Compare
Progressive Electric,
344 NLRB no.
52, slip op.
at 10 (2005),
enfd. 453 F.3d
538 (D.C.Cir. 2006).
(Chairman
Battista and Members
Liebman and Schaumber
participated.)
Charges filed by Electrical Workers IBEW
Local 577; complaint alleged violations of Section 8(a)(1) and (3).
Hearing at Appleton, Aug. 7-9 and 20-21, 2002.
Adm. Law Judge Bruce D. Rosenstein issued his decision Dec. 2, 2002.
|
|
NLRB Law Memo 10/03/2007
by Ross Runkel at LawMemo
NLRB Law Memo 10/03/2007
by LawMemo - World's Best.
Also available by email.
NLRB - New rules for voluntary recognition bar (3-2).
Dana
Corporation, 351 NLRB No. 28 (September 29, 2007)
http://www.lawmemo.com/nlrb/vol/351/28.htm
The NLRB
(3-2) has modified the recognition bar rules for card-based recognitions,
whether or not the voluntary recognition is pursuant to a neutrality or
card-check agreement. In a nutshell: "No election bar will be imposed
after a card-based recognition unless (1) employees in the bargaining unit
receive notice of the recognition and of their right, within 45 days of the
notice, to file a decertification petition or to support the filing of a
petition by a rival union, and (2) 45 days pass from the date of notice
without the filing of a valid petition.
If a valid petition supported by 30 percent or more of the unit
employees is filed within 45 days of the notice, the petition will be
processed."
The Board
majority said:
"Metaldyne
Corporation and Dana Corporation (the Employers) independently entered into
separate neutrality and card-check agreements with the International Union,
United Automobile, Aerospace, and Agricultural Implement Workers of America,
AFL–CIO. Subsequently, the
Employers recognized the Union upon a showing of majority support of the
respective unit employees. Shortly
after the Employers' recognition of the Union (22 days for the Metaldyne
unit and 34 days for the Dana unit), employees in each unit filed a petition
seeking a decertification election. The
Metaldyne petitions were supported by over 50 percent of the unit employees,
while the Dana petition was supported by over 35 percent of the unit
employees. The Regional Director for Region 6 and the Regional Director
for Region 8 dismissed the Metaldyne and Dana petitions, respectively, based
on an application of the Board's recognition-bar doctrine. According to this doctrine, an employer's voluntary
recognition of a union, in good faith and based on a demonstrated majority
status, immediately bars an election petition filed by an employee or a
rival union for a reasonable period of time.
A collective-bargaining agreement executed during this insulated
period generally bars Board elections for up to 3 years of the new
contract's term.
"The
Petitioners filed timely requests for review of the Regional Directors'
dismissals. Through their petitions, the employees sought a change in Board
law in order to permit them to express their views, either for or against
unionization, in a decertification election.
The Board granted review to re-examine its recognition-bar doctrine.
"Our
inquiry here requires us to strike the proper balance between two important
but often competing interests under the National Labor Relations Act: 'protecting employee freedom of choice on the one hand, and
promoting stability of bargaining relationships on the other.'
It is a well-recognized judicial doctrine that 'the Board should be
left free to utilize its administrative expertise in striking the proper
balance.'] In striking that
balance here, we find that the immediate post-recognition imposition of an
election bar does not give sufficient weight to the protection of the
statutory rights of affected employees to exercise their choice on
collective-bargaining representation through the preferred method of a
Board-conducted election.
"In
order to achieve a 'finer balance' of interests that better protects
employees' free choice, we herein modify the Board's recognition-bar
doctrine and hold that no election bar will be imposed after a card-based
recognition unless (1) employees in the bargaining unit receive notice of
the recognition and of their right, within 45 days of the notice, to file a
decertification petition or to support the filing of a petition by a rival
union, and (2) 45 days pass from the date of notice without the filing of a
valid petition. If a valid
petition supported by 30 percent or more of the unit employees is filed
within 45 days of the notice, the petition will be processed.
The requisite showing of interest in support of a petition may
include employee signatures obtained before as well as after the
recognition. These principles
will govern regardless of whether a card-check and/or neutrality agreement
preceded the union's recognition.
"Modifications
of the recognition bar cannot be fully effective without also addressing the
election-bar status of contracts executed within the 45-day notice period,
or contracts executed without employees having been given the newly-required
notice of voluntary recognition. Consequently,
we make parallel modifications to current contract-bar rules as well such
that a collective-bargaining agreement executed on or after the date of
voluntary recognition will not bar a decertification or rival union petition
unless notice of recognition has been given and 45 days have passed without
a valid petition being filed.
"The
Board's usual practice is to apply a change in law retroactively, including
in the case in which the change is announced.
However, we find that an exception is warranted here to avoid
inequitable disruption of bargaining relationships established on the basis
of the former voluntary recognition-bar doctrine.
We therefore apply the recognition-bar modifications adopted herein
prospectively only. Accordingly,
we affirm the Regional Directors' administrative dismissals of the petitions
before us under extant law."
NLRB - GC must prove salts have "genuine interest" in employment relationship (3-2).
Toering
Electric Company, 351 NLRB No. 18 (September 29, 2007)
http://www.lawmemo.com/nlrb/vol/351/18.htm
The
NLRB (3-2) has modified the rules for the application of Section 8(a)(1) to
employer refusals to hire or to consider hiring an applicant because of
union considerations, requiring the General Counsel to prove that an
applicant was "genuinely interested in seeking to establish an
employment relationship with the employer."
The
majority said:
"Section 8(a)(3) of the Act makes it an unfair labor practice for an employer 'by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .' The protection of this provision has been extended to applicants for employment. Consequently, an employer can violate Section 8(a)(3) by refusing to hire or to consider hiring an applicant because of union considerations.
"In many instances, there is no question that an individual who applies for work with an employer does so pursuant to a good-faith interest in accepting a job if offered on acceptable terms. However, in some cases, it is apparent that alleged applicants have no such interest. In this case, we address such behavior under the standard adopted by the Board in FES for determining whether there has been a discriminatory refusal to hire or consider for hire. First, we define an applicant entitled to statutory protection against hiring discrimination as someone genuinely interested in seeking to establish an employment relationship with the employer. Second, we impose on the General Counsel the burden of proving under FES that an alleged discriminatee meets this definition.
"Requiring that the General
Counsel prove an applicant's genuine interest in securing employment is
essential to the effective administration of the Act. Our decision today
will insure that only those for whom Congress intended statutory protection
as actual or potential employees will receive it. As discussed below, the
Board's experience has shown that in some hiring discrimination cases,
particularly those involving 'salting' campaigns, unions submitted batched
applications on behalf of individuals who were neither aware of the
applications nor interested in employment opportunities with the employer.
In other cases, individuals submitted applications but were not interested
in obtaining employment with the employer. Their applications, sometimes
accompanied by conduct plainly inconsistent with an intent to seek
employment, were submitted solely to create a basis for unfair labor
practice charges and thereby to inflict substantial litigation costs on the
targeted employer. The absence of a clear and consistently applied
requirement that the General Counsel must prove an applicant's genuine
interest in securing employment has opened the door to these abusive
tactics. By imposing this requirement under FES, we shall prevent those who
are not in any genuine sense real applicants for employment from being
treated by the Board as if they were."
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