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NLRB Law Memo 11/30/2007
by Ross Runkel at LawMemo
NLRB Law Memo 11/30/2007
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 2 decisions.
Amersino Marketing Group, LLC
(29-CA-27623, et al.; 351 NLRB No. 58) Brooklyn, NY Nov. 19, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35158.htm
The Board, in a 3-0 decision, adopted the
administrative law judge’s decision that the Respondent did not violate
Section 8(a)(3) of the Act by discharging employee Eliezer Gallardo because
he engaged in protected union activity.
In the absence of exceptions, the Board adopted the judge’s other
findings that the Respondent violated 8(a)(1) by threatening the futility of
collective-bargaining if the employees selected the Union, that the
Respondent violated Section 8(a)(3) by discharging employees Lopez and
Rodriguez because of their protected activity, that the Respondent did not
violate the Act by discharging employee Lezama, and that the Respondent did
not violate Section 8(a)(1) during a physical altercation between Gallardo
and the Respondent’s president, Henry Wang.
The judge had found that
Gallardo, who was reprimanded by Wang for a mistake on the inventory, was
discharged because he refused to perform inventory, and that his actions had
not been unlawfully provoked by the Respondent.
Accordingly, because there was no connection between Gallardo’s
protected conduct and the termination, the judge found that the General
Counsel had failed to carry his burden of establishing that the Gallardo’s
protected conduct was a motivating factor in the Respondent’s decision to
discharge him. See 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).
The Board assumed, arguendo, that the
General Counsel had met his initial burden, but that the Respondent met its
rebuttal burden under Wright Line
by showing that it legitimately terminated Gallardo for refusing to perform
his assigned inventory. The
Board first noted that it is “axiomatic” that an employer may lawfully
discipline, including discharge, an employee who refuses to work.
Moody Chip Corp., 243 NLRB
265, 273 (1979). The Board then
noted that Wang did not discharge Gallardo until after Gallardo had refused
to perform inventory. Thus,
assuming, arguendo, that Wang’s reprimand of Gallardo was a pretext, as
the judge found, the reprimand did not provoke Gallardo’s outburst.
Gallardo reacted to a lawful directive to do perform his job.
The Board found inapposite cases cited by
the General Counsel, see, e.g., Louisiana Council No. 17, AFSCME, 250 NLRB 880, 886 (1980), which
hold that an employer may not provoke an employee into committing an
indiscretion and then use that indiscretion as a pretext to discharge the
employee because of his protected conduct.
Unlike those cases, where the respondent’s unlawful conduct
provoked the employee’s outburst, here Gallardo’s response was to the
Respondent’s lawful refusal to assign inventory duties to someone else.
Thus, the Board found that the Respondent showed that it would have
discharged Gallardo even in the absence of his protected activity.
(Chairman
Battista and Members Schaumber and Kirsanow participated.)
Charges filed by Industrial Workers of the
World; complaint alleged violations of Section 8(a)(1) and (3).
Hearing at Brooklyn, Nov. 8, 9, and 30, 2006.
Adm. Law Judge Michael A. Rosas issued his decision Feb. 27, 2007.
***
The
Bohemian Club
(20-CA-32922; 351 NLRB No. 59) San Francisco, CA Nov. 19, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35159.htm
The Board reversed the administrative law judge and found that the Respondent violated Section 8(a)(5) and (1) of
the Act by assigning stewards’ cleaning work to cooks without first giving
the Union notice and an opportunity to bargain over the assignment.
The Board rejected the judge’s reasoning that the Union failed to
request bargaining, noting that the Respondent had presented the Union with
a fait accompli. Accordingly,
the Board found that the Union had not waived its right to bargain.
The Board rejected, both on the merits and as not properly before the
Board, the Respondent’s defenses based on the terms of the parties’
expired collective-bargaining agreement. (The judge had rejected those arguments, and the Respondent
failed to except to the judge’s ruling.)
In concurrence, Member
Kirsanow indicated that, if the Board were writing on a clean slate, he
would be inclined to find the unilateral change here to be too trivial to
amount to an unfair labor practice, but he agreed with the other panel
Members that, in view of prior Board decisions, the assignment was a
material, substantial, and significant change in the cooks’ terms and
conditions of employment. Member
Kirsanow also rejected the Respondent’s contract-based defenses solely
because they were not properly before the Board.
(Members
Liebman, Kirsanow, and Walsh participated.)
Charge filed by Unite
HERE! Local 2; complaint alleged violation of Section 8(a)(5) and (1).
Hearing at San Francisco on Oct. 4, 2006. Adm. Law Judge Jay R. Pollack issued his decision Dec. 12,
2006.
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NLRB Law Memo 11/28/2007
by Ross Runkel at LawMemo
NLRB Law Memo 11/28/2007
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 4 decisions.
Newcor Bay City Division of Newcor, Inc.
(7-CA-48339; 351 NLRB No. 54) Bay City, MI Nov. 15, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35154.htm
The Board affirmed the
administrative law judge’s dismissal of the complaint allegation that the
Respondent subcontracted certain bargaining-unit work because the Union
filed an unfair labor practice charge against it, in violation of Section
8(a)(4) and (1) of the Act. Citing
his credibility determinations, the Board adopted the judge’s finding that
the General Counsel failed to meet his burden to show that the Union’s
filing of the charge was a motivating factor in the Respondent’s
subcontracting decision.
No exceptions were filed to the judge’s
finding that the Respondent did not violate Section 8(a)(5) and (1) by
transferring unit work to nonunit employees without affording the Union
notice and an opportunity to bargain.
(Chairman
Battista and Members Kirsanow and Walsh participated.)
Charge filed by Auto Workers Local 496;
complaint alleged violations of Section 8(a)(5), (4), and (1).
Hearing at Bay City, Sept. 14 and 15 and Oct. 10, 2006.
Adm. Law Judge Keltner W. Locke issued his decision Nov. 7, 2006.
***
PPG
Industries, Inc.
(25-CA-30018; 351 NLRB No. 57) Evansville, IN Nov. 16, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35157.htm
The Board adopted the administrative law judge’s
decision and found that the Respondent violated Section 8(a)(1) of the Act
(1) by prohibiting employees from distributing union handbills on the
driveway at the Respondent’s facility; (2) by interrogating an employee
about his union membership, activities, and sympathies and the union
membership, activities, and sympathies of other employees; and (3) by
threatening an employee with job loss if the employees selected the Union as
their collective-bargaining representative.
In adopting the judge’s finding that Supervisor Debes’
interrogation of employee Thomas was unlawful, the Board emphasized the
context: the questioning
occurred during a performance evaluation, the meeting was held in Debes’
office, only Debes and Thomas were present, and Debes asked Thomas about the
union activities of other employees.
(Members
Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Auto Workers International;
complaint alleged violation of Section 8(a)(1).
Hearing at Evansville on Jan. 25, 2007.
Adm. Law Judge William N. Cates issued his decision March 13, 2007.
***
Spirit
Construction Services, Inc. (30-CA-17601, 17604; 351 NLRB No. 56) Green Bay, WI Nov. 16, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35156.htm
The Board affirmed the administrative law judge’s
finding that the Respondent violated Section 8(a)(1) of the Act by stating,
through its agent Charles Jones, that it would be futile for employees to
select the Union, Wisconsin Pipe Trades Association, as their collective
bargaining representative, and that the Respondent would cease operations in
Wisconsin if a union were elected. In
addition, the Board affirmed the judge’s finding that the Respondent
violated Section 8(a)(1) by prohibiting employees Nathan Brunner and David
Neumeyer from wearing a union sticker on Oct. 11, 2006, and that the
Respondent violated Section 8(a)(3) by discharging Brunner on Oct. 12, 2006.
The events of this case occurred at one of
the Respondent’s construction sites in Green Bay, WI.
On Oct. 9, 2006, employee David Neumeyer gave his supervisor, Charles
Jones, a letter notifying the Respondent that he supported the Union and
that he would be working to organize the Respondent.
In the ensuing conversation, which Neumeyer secretly taped, Jones
stated that Respondent’s CEO would shut down its operations in Wisconsin
if the employees organized. On
Oct. 10, Neumeyer placed several union stickers on his hard hat, one of
which stated, “Catch the Union Spirit for a Better Living.”
Neumeyer gave an identical sticker to his helper, Brunner, who
displayed the sticker on his hard hat. On
Oct. 11, Jones ordered both Neumeyer and Brunner to remove the “Spirit”
stickers from their hard hats. As
noted above, the Board affirmed the judge’s finding that Jones was the
Respondent’s agent, and his conduct violated 8(a)(1).
On Oct. 12, the day after Brunner wore the
union sticker, he was laid off. The
Board affirmed the judge’s finding that the Respondent acted in response
to Brunner’s union activity, and thus it violated Section 8(a)(3).
(Members
Schaumber, Kirsanow, and Walsh participated)
Charges filed by Wisconsin Pipe Trades
Association; complaint alleged violation of Section 8(a)(1) and (3).
Hearing at Green Bay on March 13, 2007.
Adm. Law Judge Arthur J. Amchan issued his decision April 27, 2007.
***
T. Steele Construction, Inc. (33-CA-14914;
351 NLRB No. 55) Rock Island, IL Nov. 14, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35155.htm
The Board denied the Respondent’s motion for
reconsideration or rehearing of the Board’s decision at 348 NLRB No. 79
(2006). In that decision, the
Board denied, as untimely, the Respondent’s motion for leave to amend its
answer to the complaint to deny allegations that foreman Brian Brink was a
supervisor within the meaning of Section 2(11) of the Act and an agent
within the meaning of Section 2(13) of the Act.
The Board found, among other things, that through the actions of
Brink, the Respondent committed several violations of Section 8(a)(1) of the
Act, including interrogation, creating impression of surveillance, and three
threats. The Respondent had contended that its motion should be granted in
light of Oakwood Healthcare, Inc.,
348 NLRB No. 37 (2006), in which the Board addressed the meaning of
“assign,” “responsibly to direct,” and “independent judgment,”
as those terms are used in Section 2(11) of the Act, which defines the term
“supervisor.”
In its motion for reconsideration or rehearing, the
Respondent requested that the Board reconsider or rehear its decision
denying the Respondent’s motion for leave to amend its answer. The
Respondent cited decisions in which the Board remanded other cases for
further consideration in light of Oakwood Healthcare.
In denying the motion for reconsideration
or rehearing, the Board found that its earlier denial of the Respondent’s
motion for leave to amend its answer was consistent with Board precedent
declining to retroactively apply a change in law when a party had failed to
preserve the affected issue. The
Board noted that, unlike cases that the Board has remanded for further
consideration in light of Oakwood
Healthcare, in the present case the Respondent never placed Brink’s
supervisory status in issue. The
Board additionally pointed out that the Respondent had reason to know at the
time that it filed its answer that the Board’s interpretation of the term
“supervisor” was under review. It
also rejected the Respondent’s argument that the pleadings should be
amended to conform to the evidence. Finally,
noting that Oakwood Healthcare did
not affect the Board’s interpretation of the term “agent,” the Board
found that issuance of Oakwood
provided no basis for the Respondent to withdraw its admission that Brink
was an agent of the Respondent.
(Chairman
Battista and Members Liebman and Walsh participated.)
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NLRB Law Memo 11/14/2007
by Ross Runkel at LawMemo
NLRB Law Memo 11/14/2007
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 2 decisions.
Albertson’s,
Inc. (27-CA-13390
et al.; 351 NLRB No. 21) Boise, ID Sept. 29, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35121.htm
The Respondent is a major retail grocery chain with
numerous retail stores, warehouses, and distribution facilities located
throughout the country. Several
unions represent employees in separate bargaining units at facilities
located in the Respondent’s Western Region and Rocky Mountain Division.
A large portion of this consolidated case arose out of complaint
allegations regarding the obligations of the Respondent to respond to
information requests made by these unions over the course of several months
between 1994 and 1998. The
administrative law judge found that the Respondent unlawfully refused or
otherwise failed timely to provide requested information to the unions on
numerous occasions, unlawfully engaged in direct dealing with employees and
bypassed their designated bargaining representative, unlawfully disciplined
employees for their union or protected concerted activity, and unlawfully
maintained an overly broad badges and pins rule for employees.
The Board adopted most of
the judge’s findings of separate violations of Sections 8(a)(1), (3), and
(5) of the Act. It also agreed
with the judge’s dismissals of several independent 8(a)(1) violations
based on statements by certain Respondent officials.
However, the Board disagreed with the judge on the following
complaint allegations and the overall remedy to be imposed in this case.
The judge found that the Respondent
violated Section 8(a)(1) by maintaining rules that subjected employees to
immediate discharge for engaging in certain activity including the
following: (1) disclosure of confidential information, (2) participation in
activity described as “off-the-job conduct,” and (3) involvement in
activity described as “other misconduct.”
These rules are part of the company personnel policies and retail
store employee handbook. The
confidentiality rule punishes employees “for [d]isclosing confidential
information or any other similar act constituting disregard for the
Company’s best interest.” The
off-the-job-conduct rule prohibits employees from engaging in
“[o]ff-the-job conduct which has a negative effect on the Company’s
reputation or operation or employee morale or productivity.”
The other misconduct rule prohibits employees from engaging in
“[a]ny other misconduct which, in the Company’s judgment, warrants
immediate discharge.”
The Board unanimously
agreed that the Respondent unlawfully maintained the above confidentiality
rule. It found that the record
contained sufficient evidence showing that the Respondent notified employees
that it had applied the confidentiality rule to restrict an employee’s
exercise of her Section 7 rights. This
context provided a factual basis for the employees reasonably to view the
rule as prohibiting Section 7 rights. The
Board therefore found that the maintenance of the confidentiality rule would
reasonably tend to chill employees in the exercise of their Section 7
rights.
However, Chairman Battista
and Member Schaumber did not adopt the judge’s findings of violations
regarding the other two rules. They
observed that the challenged off-the-job-conduct and other misconduct rules
were sufficiently close to comparable rules found lawful in Lafayette
Park Hotel, 326 NLRB 824, 826-827 (1998), Flamingo Hilton-Laughlin, 330 NLRB 287, 288 (1999), and Ark
Las Vegas Restaurant Corp., 335 NLRB 1284, 1291 (2001).
Applying the principles of Lutheran
Heritage Village-Livonia, 343 NLRB 646, 646 (2004), the Board majority
found that neither rule expressly covered Section 7 activity, nor was there
any evidence
that the Respondent had applied either rule to
protected activity or that the Respondent adopted either rule in response to
protected activity. They also
found that neither rule could reasonably be read by employees as
encompassing Section 7 activity, and accordingly dismissed these
allegations. Member Walsh
dissented from his colleagues’ dismissal of these allegations because,
inter alia, he agreed with the judge’s analysis and with the views
expressed by Members Fox and Liebman in their partial dissent in Lafayette
Park Hotel, supra at 832.
The complaint also alleged that the
Respondent’s maintenance of certain nationwide no-solicitation rules
applicable to its 435 retail stores located in California was unlawful.
These rules, which appear in the Respondent’s company personnel
policies and its retail store employee handbook, proscribe nonemployee
solicitations and distributions of literature or information on the
Respondent’s premises at all times. The
rules were not initiated in response to any union or protected concerted
activity, and there was no evidence that the Respondent disciplined any
employee (or took action against any nonemployee) under these rules for
engaging in union or protected concerted activity on company premises in the
State of California or elsewhere. The
judge found that these no-solicitation rules constituted overly broad
restrictions on union and protected activity in violation of Section
8(a)(1).
Chairman Battista and
Member Schaumber reversed the judge and found that the General Counsel had
failed to satisfy his burden of proof.
Under extant precedent, the Board looks to State law to ascertain
whether an employer has a property right sufficient to deny access to
nonemployee union representatives. California
constitutional law limits a private property owner’s right to exclude
persons seeking access for purposes of exercising their free speech rights
“if the property is freely and openly accessible to the public” which
includes places that are the functional equivalent of a public forum. In this case, the General Counsel failed to show that the
Respondent’s California stores constituted public forums, which would
trigger an application of the California constitutional provision.
In the absence of such proof, the Board majority found that the
Respondent’s restriction on nonemployees’ activity on its premises did
not violate Section 8(a)(1) of the Act, citing George
L. Mee Memorial Hospital, 348 NLRB No. 15, slip op. at 5 (2006).
In view of his partial dissent in George
L. Mee Memorial Hospital, supra, slip op. at 15, Member Walsh dissented
from his colleague’s dismissal of this allegation.
He would find that the no-solicitations rules at issue constitute an
overbroad restriction of Section 7 rights and therefore were unlawful.
The judge’s recommended Order included
broad injunctive language, enjoining the Respondent from “in any other
manner” violating the Section 7 rights of employees, based on the
Respondent’s failure to adequately and/or timely respond to information
requests involving stores in the Respondent’s Rocky Mountain Division.
The judge also recommended special remedies that impose a series of
extraordinary and specific conduct requirements on the Respondent in order
for it to meet its statutory obligations to furnish requested information
relating to its Rocky Mountain Division facilities.
Contrary to the judge, Chairman Battista and Member Schaumber found
that the Respondent’s misconduct does not meet the stringent standard for
a broad order under Hickmott Foods,
Inc., 242 NLRB 1357 (1979).
For this reason, they considered a narrow cease-and-desist order as
the appropriate remedy in this case. They
also found that the special remedies directed by the
judge were unwarranted and went beyond what is needed to fully rectify the
unfair labor practices. In this
connection, they observed that there had been no showing that the Board’s
traditional remedies will not sufficiently ameliorate the effect of the
information request violations committed by the Respondent.
Accordingly, the Board majority substantially modified the remedy to
be imposed in this case. Member
Walsh disagreed with his colleagues. Like
the judge, he believed that the circumstances of this case warranted the
imposition of a broad cease-and-desist order against the Respondent’s
Rocky Mountain Division stores and the special remedies concerning the
Respondent’s obligation to comply with future information requests.
(Chairman
Battista and Members Schaumber and Walsh participated)
Charges filed by several
affiliated local unions of Food and Commercial Workers, Teamsters Local 537,
Bakery Workers Local 119, and Stuart Fishman, an individual; complaint
alleged violations of Section 8(a)(1), (3), and (5).
Hearing at Denver, CO, San Francisco, CA, and Portland, OR between
Oct. 1998 and May 2001. Adm.
Law Judge Clifford H. Anderson issued his decision July 3, 2002.
***
Paramus Ford, Inc.
(22-CA-27444; 351 NLRB No. 53) Paramus, NJ Oct. 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35153.htm
The Board adopted the administrative law judge’s
finding that Paramus Ford, Inc. is the successor employer to Pistilli Ford,
Inc., and therefore violated Section 8(a)(1) and (5) of the Act by failing
to recognize and bargain with the Union in a unit of service and parts
department employees. Because
the judge found that Paramus Ford’s duty to bargain was triggered
when (a) the Union made an effective demand for recognition and
bargaining and (b) a substantial and representative complement was in place,
on Feb. 13, 2006, the Board modified the
judge’s second conclusion of law and recommended Order to reflect that
date.
In finding that the Union
made a demand for recognition and bargaining on Feb. 2, 2006, Chairman
Battista and Member Schaumber relied only on the letter that the Union sent
to the Ford Motor Company on that date.
Member Liebman would affirm the judge’s finding that a substantial
and representative complement of employees was in place on
Feb. 13, 2006, but, consistent with her dissent in Elmhurst Care
Center, 345 NLRB No. 98, slip op. at 5 (2005), questioned the continued
viability of the “normal operations” test in unfair labor practice
cases, given the Board’s abandonment of that test in representation cases.
(Chairman
Battista and Members Liebman and Schaumber participated.)
Charge
filed by Service Workers Local 355, IUJAT; complaint alleged violation of
Section 8(a)(1) and (5). Hearing
at Newark on Oct. 31, 2006. Adm.
Law Judge Steven Davis issued his decision Jan. 31, 2007.
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