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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.
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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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