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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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