« NLRB Law Memo 10/03/2007 | Main | NLRB Law Memo 10/12/2007 »
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 free weekly 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.
|
|
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
