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NLRB Law Memo 10/12/2007
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NLRB Law Memo 10/12/2007
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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.)
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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