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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 free weekly 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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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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