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NLRB Law Memo 12/07/2007
by Ross Runkel at LawMemo
NLRB Law Memo 12/07/2007
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 3 decisions.
Consolidated
Equities Realty #3, LLC d/b/a Bob Townsend/Colerain Ford
(9-CA-42545, et al.; 351 NLRB No. 64) Cincinnati, OH, Nov. 29, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35164.htm
The Board adopted the administrative law judge’s
findings that the Respondent made the decision to lay off unit employees
after the Union had demonstrated its majority status in those units, and
that the Respondent accordingly violated Section 8(a)(5) and (1) of the Act
by failing to give the Union notice and an opportunity to bargain over the
layoff decision. The Board
rejected the Respondent’s contention that the judge’s findings
demonstrated prejudice.
(Chairman
Battista and Members Liebman and Walsh participated.)
Charges filed by Machinists District Lodge
34; complaint alleged violation of Section 8(a)(1), (3), and (5).
Hearing at Cincinnati on Jan. 23, 2007.
Adm. Law Judge George Carson II issued his decision March 26, 2007.
***
Columbine
Cable Company, Inc. (27-RC-8467; 351 NLRB No. 65) Arvada, CO Nov. 30, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35165.htm
The Board, in a 2-1 decision, adopted the hearing
officer’s recommendation that an election held November 15, 2006 be set
aside and a new election held.
Two late arriving voters were allowed to
cast ballots, by agreement of the parties.
However, the Board agent in charge of the election did not
re-assemble the voting booth for these voters.
Instead, they cast ballots on a counter in a break room.
The Board agent and observers were positioned about 15 feet away, and
could see each voter’s back and left shoulder from their vantage point.
Moreover, the voters’ arm movements were fully exposed as they
voted.
The panel majority
(Chairman Battista and Member Schaumber) noted that “it is manifestly
essential that employees be balloted in a secret election, for the secret
ballot is a requisite for a free election.”
The Royal Lumber Co., 118
NLRB 1015, 1017 (1957) (internal footnote omitted).
Accord: Northwest Packing Co., 65
NLRB 890, 891 (1946). Applying
this standard, the majority concluded that the voting arrangements were
“entirely too open and too subject to observation to insure secrecy of the
ballot and freedom of choice by the employees in the selection of a
bargaining representative.” These
circumstances “raise doubts concerning the integrity and secrecy of the
election,” even though there was no affirmative proof that any person
actually saw how the ballots were marked.
Member Walsh, dissenting,
agreed that the circumstances in which the two voters cast their ballots
were not ideal. However, he
rejected the idea that there was a per se rule that an election must be set
aside whenever there is even a possibility that voter privacy has been
compromised. Rather, the
objecting party must show that “the manner in which the election was conducted raises a reasonable
doubt as to the fairness and validity of the election.”
He concluded that the Employer failed to meet this burden.
He noted that there was no evidence that anyone saw, or attempted to
see, how the two employees voted. While
both employees testified that they felt they should have been afforded more
privacy, there was no objective evidence that they were unable to (or did
not) freely vote their choice. In
his view, these facts simply do not establish any reason to question the
validity of the election result.
(Chairman
Battista and Members Schaumber and Walsh participated.)
***
Wegmans
Food Markets, Inc. (5-CA-33228; 351 NLRB No. 61) Hunt Valley, MD Nov. 29, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35161.htm
The Board adopted the administrative law judge’s
decision, dismissing the complaint allegations that the Respondent violated
Section 8(a)(3) and (1) of the Act by terminating employee Edwin R. Melhorn
because he engaged in protected concerted activity, and that it violated
Section 8(a)(1) by interrogating Melhorn about his union and protected
concerted activities. The Board
agreed with the judge’s finding that Melhorn was not a credible witness.
As Melhorn’s testimony provided the only support for complaint’s
allegations, the Board found that there was no reliable evidence that
Melhorn engaged in, or that the Respondent believed that he engaged in,
protected concerted activity. On
the same basis, the Board also found that there was no reliable evidence
that the Respondent’s supervisors interrogated Melhorn about such
activity.
(Members
Liebman, Schaumber, and Kirsanow participated.)
Charge filed by Edwin R.
Melhorn, an individual; complaint alleged violations of Section 8(a)(3) and
(1). Hearing at Baltimore, March
15, 16, and 19 and April 3, 2007. Adm.
Law Judge Richard A. Scully issued his decision Aug. 3, 2007.
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