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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.
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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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