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NLRB Law Memo 01/26/2008
by Ross Runkel at LawMemo
NLRB Law Memo 01/26/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 1 decision.
Aluminum Casting & Engineering Co., Inc. (30-CA-12855, et al.; 352 NLRB No. 1) Milwaukee, WI Jan. 18, 2008.
The Board ordered the Respondent to pay the discriminatees the amounts specified in the amended compliance specification as further amended by the parties' Stipulation. In the stipulation, the parties agreed to correct the omission of certain hours worked by the discriminatees that were not accounted for in the amended compliance specification. Absent any dispute as to the accuracy of those amounts, the Board granted the General Counsel's motion for summary judgment and found the Respondent liable for backpay as alleged. The Board's decision and order in the underlying unfair labor practice proceeding is reported at 328 NLRB 9 (1999). On Oct. 13, 2000, the U.S. Court of Appeals for the Seventh Circuit enforced the Board's decision in part and remanded it in part. NLRB v. Aluminum Casting & Engineering Co., 230 F.3d 286 (7th Cir. 2000). The Board's 2001 supplemental decision and order, substituting a new Order and notice for those previously issued in 1999, is reported at 334 NLRB 1.
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NLRB Law Memo 01/18/2008
by Ross Runkel at LawMemo
NLRB Law Memo 01/18/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 15 decisions.
Acklin Stamping Co. (8-CA-36788,
8-CB-10622; 351 NLRB No. 90) Toledo, OH Dec. 28, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35190.htm
The Board remanded the case to
the administrative law judge for additional findings and credibility
resolutions. The judge found
that the Respondent Union violated Section 8(b)(1)(A) and 8(b)(2) and the
Respondent Employer violated Section 8(a)(3) and (1) of the Act by
discharging employee Niles Menard, based on the Respondent Union’s
request, for reasons other than failure to pay dues or satisfy other
eligibility criteria. The Board
acknowledged that under Operating Engineers Local 478 (Stone & Webster),
271 NLRB 1382 fn. 2 (1984), and related cases, there is a presumption of a
violation where a union causes an employee’s discharge.
However, the Board also noted that this presumption can be rebutted
by evidence that the employee failed to meet membership requirements under a
union security clause or by showing that the union’s interference was
necessary to the effective performance of its function as employee
representative. The Board found
that the judge failed to fully consider Respondent Union’s proffered
evidence potentially rebutting this presumption and failed to make full
factual and credibility findings that would allow the Board to do so.
The Board concluded that remand was appropriate to resolve these
issues and make a determination as to whether the Respondent Union and
Respondent Employer violated the Act.
(Members
Liebman, Schaumber, and Walsh participated.)
Charges filed by Niles Menard, an Individual; complaint alleged
violations of
Sections 8(a)(1) and (3) and
Section 8(b)(1)(A) and (b)(2). Hearing at Toledo on Feb. 22, 2007. Adm. Law Judge Bruce D. Rosenstein issued his decision May 4,
2007.
***
A and G, Inc., d/b/a Alstyle
Apparel (21-CA-37029; 351 NLRB No. 92) Anaheim, CA
Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35192.htm
This case involves the
Respondent’s discharge of several production employees for allegedly
playing soccer on the work floor and one shift leader for failing to stop
the employees from engaging in the alleged misconduct.
The Board adopted the administrative law judge’s finding that the
shift leader was not a Section 2(11) supervisor.
In doing so, the Board found that the Respondent failed to prove that
the shift leader responsibly directed the employees or assigned work using
the requisite amount of independent judgment.
Applying Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), the Board also adopted the judge’s finding that the Respondent
unlawfully discharged the production employees and the shift leader in
violation of Section 8(a)(3) of the Act.
Regarding the production employees, the Board concluded that the
Respondent failed to meet its Wright Line rebuttal burden because its
limited investigation of the alleged misconduct and its cursory decision to
discharge the employees supports a conclusion that the discharges were
discriminatorily motivated and not based on a reasonable belief of
misconduct. The Board similarly
concluded that the Respondent failed to meet its Wright Line rebuttal burden
with regard to the shift leader. The
Board found that the Respondent’s disparate treatment of the shift leader
and its limited investigation into his alleged misconduct indicates that his
discharge was pretextual and discriminatorily motivated.
The Board further found that the Respondent engaged in unlawful
surveillance in violation of Section 8(a)(1).
In absence of exceptions, the Board adopted the judge’s findings
that the Respondent violated Section 8(a)(1) by threatening plant closure in
the event of unionization, interrogating employees about their union
activities, and coercively questioning a union organizer.
The Board granted the General Counsel’s request that the notice be
posted in English, Spanish, and Vietnamese, but denied his requests for a
broad cease-and-desist order and that the notice be read aloud to the
Respondent’s employees.
(Members
Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Food and Commercial Workers Local 324; complaint
alleged violation of Section 8(a)(1) and (3).
Hearing at Los Angeles, April 3-7 and 17-19, 2006.
Adm. Law Judge Lana H. Parke issued her decision July 12, 2006.
***
E. P. Donnelly, Inc. (4-CD-1178;
351 NLRB No. 97) Jamison, PA Dec. 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35197.htm
The Board in this Decision and
Determination of Dispute under Section 10(k) of the Act decided that the
employees represented by Carpenters Local 623 are entitled to continue
performing the work in dispute. The
work constituted “the installation of prefabricated standing seam metal
roofing, soffit, fascia, and related trim to be performed by the Employer at
the Egg Harbor Township Community Center.”
The Employer is E.P. Donnelly, Inc.
The work was also claimed by Sheet Metal Workers Local 27.
In finding that the dispute was properly before the Board pursuant to
Section 10(k), the Board rejected Local 27’s contention that the Board was
precluded from making an affirmative award of the work because of the
existence of a Project Labor Agreement (PLA) which covered the work and was
signed by both Local 27 and the Employer.
Local 27 contended that the PLA was authorized by a New Jersey
statute which was not subject to NLRA preemption.
Local 27 further contended that any exercise of Board jurisdiction
would impermissibly preempt New Jersey law authorizing public entities such
as Egg Harbor Township from negotiating PLAs.
The Board found that an award of the disputed work to Local 623 would
not prevent Egg Harbor Township from exercising its authority under state
law to negotiate and execute PLAs, nor would it invalidate the PLA in this
case. The Employer would
continue to be bound under the terms of the PLA, and the parties to the PLA
would retain any rights they may have under state law to bring a suit for
damages against the Employer for any breach of the PLA.
Furthermore, the Board found that even should its exercise of
jurisdiction put the Board at cross purposes with the New Jersey statute,
the Board’s exercise of jurisdiction was nevertheless valid under the
Constitution’s Supremacy Clause.
Having found that the dispute was properly before the Board for
determination, the Board considered all the relevant factors and found that
the employees represented by Local 623 were entitled to continue performing
the work based on the factors of employer preference, current assignment,
past practice, economy, and efficiency of operations.
In so doing, the Board found that the factors of
collective-bargaining agreements, area and industry practice, relative
skills and training, and the arbitrator’s award of the work to employees
represented by Local 27, did not favor awarding the work to either group of
employees. As to this last
factor, the Board noted that the arbitrator did not consider most of the
factors that the Board takes into account in making an award of disputed
work under Section 10(k). Rather
the arbitrator was limited to the factor of area practice and was required
to award the work to one union or the other despite evidence that both
unions engaged in substantial work in the area at issue. Unavailable was the
alternative of finding that the factor of area practice favored neither
union.
(Members
Liebman, Schaumber, and Kirsanow participated.)
***
Igramo Enterprise, Inc.
(29–CA–27247, 27320; 351 NLRB No. 99) Queens, NY Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35199.htm
The Board adopted the
administrative law judge’s findings that the drivers at issue in this case
are employees and not independent contractors and that the Respondent
violated Section 8(a)(1) of the Act by taking away a delivery route from
employee Gustavo Betancourt because he joined other employees in requesting
additional wages and benefits and threatened to go to the Department of
Labor to complain about the Respondent’s continued treatment of the
employees as independent contractors. In
the absence of exceptions, the Board also adopted the judge’s findings
that the Respondent unlawfully threatened employees with discharge and plant
closure and by telling them that those who were dissatisfied could find
other work. The Board reversed
the judge and found that the Respondent also unlawfully discharged driver
Orce Frias because of his participation in the employees’ protected
concerted activities.
The Board found that the General Counsel established the existence of
animus through the unlawful threats to employees and the timing of the
discharge. In doing so, the
Board held that it was not necessary to establish that the Respondent held
particular animus towards Frias even if other participants were not
retaliated against when, as here, the facts establish that the Respondent
had shown general animus towards the employees’ protected activities.
The Board further concluded that the Respondent failed to meet its
rebuttal burden to establish that it would have discharged Frias because of
prior work mistakes even in the absence of his protected activities, finding
the supporting evidence contradictory and that the Respondent decided to
discharge Frias for these mistakes only after he engaged in protected
activities.
(Members
Liebman, Kirsanow, and Walsh participated.)
Charges filed by Orce Frias and Gustavo Betancourth, Individuals;
complaint alleged violations of Section 8(a)(1).
Hearing at New York between March 21 and April 26, 2006.
Adm. Law Judge Raymond P. Green issued his decision Sept. 15, 2006
and his supplemental decision June 29, 2007.
***
R. Sabee Co., LLC, Draper
Products, Inc., Circle Machinery & Supply Co., Sabee Products, Inc.,
Stanford Professional Products, Sabee Realty, Inc. and JMS Converters, Inc.
d/b/a JMS Converting, a single employer and/or continuing enterprise; et al.
(30-CA-16482-1; 351 NLRB No. 100) Appleton, WI Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v351100.htm
The Board adopted the findings of
the administrative law judge that the Respondents Sabee Products Inc. (SPI)
and JMS Converters, Inc. d/b/a JMS Converting (JMS) are single employers and
alter egos both of each other and of three other manufacturing companies, R.
Sabee Co., LLC (R. Sabee), Draper Products Inc. (Draper), and Circle
Machinery & Supply Co. (Circle). The
Board also adopted the judge’s alternative finding that SPI and JMS are
successors of R. Sabee, Draper and Circle.
Pursuant to a settlement agreement with the General Counsel, the
complaint charges against R. Sabee, Draper, and Circle were withdrawn prior
to trial. The Board nonetheless found that as single employers, alter
egos and successors of these, three, Respondents SPI and JMS were jointly
liable for their violations and for each others Section 8(a)(1), (3) and (5)
violations of the Act, which included unlawful layoffs and refusal to recall
or rehire bargaining unit employees, unilateral changes, failure to apply
contract terms for newly hired employees, failure to respond to the
union’s information requests, and withdrawal of recognition.
The Board reversed the judge and declined to find the Respondents
Sabee Realty (Realty) and Stanford Professional Products (Stanford) jointly
liable, finding insufficient evidence to support single employer or alter
ego status with respect to either. On a procedural issue, the Board rejected
the Respondents’ argument that state rules of evidence prohibited certain
admissions made in state court proceedings from being entered into evidence
in Board proceedings.
(Members
Liebman, Kirsanow, and Walsh participated.)
Charge filed by Steel Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers Local 2-932; complaint alleged
violations of Section 8(a)(1), (3), and (5).
Hearing at Appleton, Nov. 15, 2004, Feb. 14-16, 2005, and Aug. 1,
2006. Adm. Law Judge Jane
Vandeventer issued her decision Feb. 6, 2007.
***
Network Dynamics Cabling, Inc.
(4-CA-30474, et al.; 351 NLRB No. 98) West Chester, PA Dec. 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35198.htm
The Board reversed the
administrative law judge and found that the Respondent violated Section
8(a)(1) of the Act by offering employee David Hughey a wage increase and
promotion in response to his organizational activity.
The Board found that the Respondent offered the promotion in an
effort to persuade Hughey to abandon his union support.
The Board also adopted the judge’s finding that the Respondent
violated Section 8(a)(3) by transferring Hughey from the UPS job site
because of his union activity. The
Board found that the Respondent’s claim that UPS compelled the transfer
was pretextual.
Members Liebman and Kirsanow found that the Respondent violated
Section 8(a)(1) by interrogating Hughey about his union affiliation.
Member Schaumber dissented, stating that Hughey was an open and
active union supporter, and that the questioning was therefore not coercive.
The Board majority adopted the judge’s findings that the Respondent
violated
Section 8(a)(1) by coercively
interrogating employee Brian Tandarich on two occasions, and violated
Section 8(a)(3) by discharging Tandarich.
The majority found that Tandarich was not a statutory supervisor, as
his direction of employees did not entail the exercise of independent
judgment. They adopted the
judge’s findings that the Respondent unlawfully interrogated Tandarich on
two occasions, when representatives of the Respondent met with Tandarich to
prepare an affidavit. On the
first occasion, the majority found that Tandarich’s participation in the
interview was not voluntary, noting his objections to participating in the
interview. The majority found
that the unlawful interrogation continued at the second meeting.
The majority found that Tandarich was subsequently discharged for his
protected activity of giving the affidavit to a union representative.
Member Schaumber dissented, arguing that the safeguards required by
Johnnie’s Poultry Co., 146 NLRB 770 (1964), were contained in the
affidavit drafted during the first meeting, and that a reiteration of them
was not necessary at the second meeting.
Member Schaumber also dissented from the majority’s findings
regarding Tandarich’s discharge, finding that Tandarich was discharged for
insubordination rather than for protected activity.
The Board reversed the judge and found that the Respondent’s threat
to prosecute Tandarich if he did not return certain items that it asserted
were in his possession, violated Section 8(a)(1).
The Board found that such a threat, made to an unlawfully discharged
employee who was preparing to testify in a Board hearing, would reasonably
tend to interfere with the exercise of Tandarich’s Section 7 rights.
The Board adopted the judge’s finding that the Respondent did not
violate Section 8(a)(3) by transferring employee Thomas Moore from the
Arcadia University work site, finding that, due to lack of work, the
Respondent would have transferred Moore even in the absence of his union
activity. The Board then
reversed the judge and found that the Respondent violated Section 8(a)(3) by
refusing to assign further work to Moore. The Board adopted the judge’s finding that the Respondent
violated Section 8(a)(3) by discharging Moore.
The Board found that the argument that took place between Moore and
supervisor Stevenson concerned Moore’s protected activity, and that
Moore’s defense of his protected activity did not cross the line so as to
lose the Act’s protection.
The Board affirmed the judge’s finding that the Respondent violated
Section 8(a)(1) by interrogating employee James Korejko on two occasions.
Member Schaumber found it unnecessary to pass on the second alleged
interrogation, finding it cumulative of similar violations found.
(Members
Liebman, Schaumber, and Kirsanow participated.)
Charges filed by Electrical Workers IBEW Local 98; complaint alleged
violations of Section 8(a)(1) and (3).
Hearing at Philadelphia, Jan. 21-23 and Feb. 3, 2003.
Adm. Law Judge Arthur J. Amchan issued his decision April 10, 2003.
***
Pan American Grain Co, Inc.
(24-CA-9138, et al.; 351 NLRB No. 93) Guaynabo, PR Dec. 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35193.htm
On remand from the United States
Court of Appeals for the First Circuit, the Board reaffirmed its previous
finding that the Respondent violated Section 8(a)(5) and (1) of the Act by
implementing its Feb. 27, 2002 layoffs without providing the Congreso De
Uniones Industriales De Puerto Rico Union with adequate notice and a
reasonable opportunity to bargain. In
so finding, the Board rejected the Respondent’s argument that it did not
have a duty to bargain over the layoffs because the layoffs resulted, in
part, from the Respondent’s ongoing modernization efforts.
Rather, the Board found that, because the layoffs admittedly were
based, at least in part, on “economic reasons,” including reduced
consumer demand, the Respondent failed to establish that it would have
implemented any particular layoffs solely as a result of its modernization
efforts and, therefore, had a duty to bargain over its layoff decision.
(Members
Liebman, Schaumber, and Kirsanow participated.)
***
Seaport Printing & AD
Specialties, Inc., d/b/a Port Printing AD and Specialties (15-CA-17976; 351
NLRB No. 91) Lake Charles, LA Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35191.htm
In 2005, the mayor of Lake
Charles ordered a mandatory evacuation of the city due to the impending
arrival of a hurricane. The
Respondent was thus forced to close its printing facility, resulting in a
layoff of its employees. After
the hurricane, the Respondent’s owners returned to the facility.
Although the building had significant damage, the Respondent began
limited operations with a skeleton crew, which consisted of some
non-bargaining unit employees and at least one supervisor.
The administrative law judge found that the Respondent violated
Section 8(a)(5) of the Act by failing to bargain with the Union over the
decisions to lay off employees and to use non-unit personnel to perform unit
work, and the effects of those decisions.
The Board reversed the judge’s finding that the Respondent violated
Section 8(a)(5) by failing to bargain with the Union over the layoff
decision. Relying on Bottom
Line Enterprises, 302 NLRB 373 (1991), enfd. 15 F.3d 1087 (9th Cir. 1994)
and RDE Electronics of S.D., 320 NLRB 80 (1995), the Board found that the
impending hurricane was an “economic exigency,” which necessitated the
closing of the facility and resulted in the forced layoff. Accordingly, the Board majority found that the Respondent was
excused from bargaining over the layoff decision. The Board adopted, however, the judge’s other findings of
violations, concluding that the exigency created by the hurricane did not
excuse the Respondent’s failure to bargain over the effects of its layoff
decision or the decision to use non-unit personnel to perform unit work and
the effects of that decision.
Member Schaumber dissented in part.
He agreed with the majority that the “economic exigency” created
by the hurricane excused the Respondent’s failure to bargain over the
layoff decision, but stated that he would find that the exigency also
excused the Respondent’s failure to bargain over the post-hurricane
decision to use non-unit personnel to perform unit work.
Member Schaumber also stated that he would find that the
Respondent’s failure to bargain over the effects of the above decisions
was not unlawful because the Union waived its right to bargain over these
matters.
(Members
Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Lake Charles Printing and Graphics Union, Local 260;
complaint alleged violation of Section 8(a)(1) and (5).
Hearing at Lake Charles, Dec. 4 and 5, 2006.
Adm. Law Judge John H. West issued his decision Feb. 7, 2007.
***
Sunshine Piping, Inc.
(15-CA-16781; 351 NLRB No. 89) Panama City and Cedar Grove, FL Dec. 31,
2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35189.htm
The Board considered exceptions
both to the administrative law judge’s initial decision and her
supplemental decision upon a reopened record.
In her initial decision (Sunshine II), the judge found that
Respondent violated Section 8(a)(1), (3), and (4) of the Act by
discriminatorily issuing performance-based disciplinary warnings to an
employee, but did not violate the Act by disciplining, suspending, and
terminating him under a new attendance policy. Specifically, the judge found that the General Counsel
established an initial case under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), that animus
against the employee’s protected activity was a motivating factor in
Respondent’s attendance-related actions, but that Respondent met its
Wright Line rebuttal burden with testimonial and documentary evidence
showing no disparate treatment against that employee under the attendance
policy. The judge dismissed allegations that Respondent violated
Section 8(a)(1) by threatening the employee that the Respondent no longer
wanted him employed and by failing to take action to stop other employees
from harassing him.
Shortly before the judge issued her initial decision, a former
employee, who had testified for Respondent in the initial hearing, came
forward and claimed that Respondent had altered attendance records to hide
its disparate treatment of the alleged discriminatee.
The judge granted the General Counsel’s motion to reopen the
record, and having considered the newly discovered evidence, amended her
decision to find that Respondent also violated Section 8(a)(1), (3), and (4)
by disciplining and terminating the employee for his attendance violations
(“Sunshine III”). The judge
further found that the Respondent’s alteration of documents justified an
award of litigation costs associated with Sunshine III to the General
Counsel under the “bad faith” exception to the “American Rule.”
The Board, 3-0, adopted the judge’s findings and conclusions as to
the substantive allegations of the amended complaint.
Contrary to the judge’s decision, however, the Board, 2-1 (Member
Liebman dissenting), reversed the judge’s award of litigation costs.
The Board found that, for the purpose of deciding whether the
employee’s attendance-related discipline and discharge violated the Act,
Respondent’s alteration of documents negated its ability to meet its
Wright Line rebuttal burden. But
for the purpose of deciding whether Respondent was guilty of bad faith in
presenting a defense based on altered attendance records in Sunshine II, so
as to justify fee-shifting, the majority found the fact that the alterations
were amenable to conflicting explanations to be significant, and said that
they could not “conclude that the Respondent’s defense was ‘entirely
without color’ and ‘wantonly asserted.’”
(Members
Liebman, Schaumber, and Kirsanow participated.)
Charge filed by Plumbers Local 366; complaint alleged violations of
Section 8(a)(1), (3), and (4). Hearing
at Panama City, April 28-30, 2003 and between Aug. 10 and Oct. 15, 2004.
Adm. Law Judge Margaret G. Brakebusch issued her decision June 30,
2003 and her supplemental decision Dec. 23, 2004.
***
Talmadge Park, Inc. (34-CA-11295,
34-RC-2136; 351 NLRB No. 87) East Haven, CT Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35187.htm
This is a consolidated unfair
labor practice and representation case where the Board adopted the
administrative law judge’s findings.
The Board adopted the judge’s finding that the Respondent failed to
establish that laundry supervisor Kathleen Proto was a 2(11) supervisor.
In doing so, they found it unnecessary to pass on the judge’s
finding that Proto had no employees under her because they agreed with the
judge that she did not have authority to responsibly direct employees with
independent judgment. The Board
also adopted the judge’s following findings without discussion:
that the Respondent violated Section 8(a)(1) of the Act by telling
Proto that she could not wear union insignia or talk about the Union while
at its facility, and that the Respondent violated Section 8(a)(3) and (1) by
disciplining Proto because she engaged in Union activity.
As for representation, the Board adopted without discussion the
judge’s finding that Proto’s prounion conduct did not interfere with the
election. While the judge
recommended remanding the representation case to the Regional Director to
issue the appropriate certification, the Board noted that it had the
authority to issue such a certification. Thus, because the Union prevailed in the election, the Board
issued a Certification of Representative.
(Members
Liebman, Schaumber, and Walsh participated.)
Charges filed by New England Health Care Employees District 1199,
SEIU; complaint alleged violations of Section 8(a)(1) and (3).
Hearing at Hartford, April 3-5, 2006.
Adm. Law Judge Richard A. Scully issued his decision July 17, 2006,
and his supplemental decision
Jan. 19, 2007.
***
Edw. C. Levy Co. d/b/a The Levy
Co. (25-RD-1490; 351 NLRB No. 85) Burns Harbor, IN Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35185.htm
The Board, contrary to the
hearing officer, overruled the Union’s election objections, finding that
the Employer did not threaten replacement employees with the loss of their
jobs, or link the security of their jobs to the results of the
decertification election.
When the Union went on strike against the Employer in Aug. 2005, the
Employer continued its operations using supervisors and replacement
employees who were offered permanent employment in March 2006.
Pursuant to the Stipulated Election Agreement, both replacement
employees and striking employees were permitted to vote in the
decertification election that was scheduled for Oct. 27, 2006.
The Employer and the Union continued to meet during the strike to
negotiate a new agreement and to resolve strike issues.
In several negotiating sessions before the election, the Union
proposed that the Employer return all former employees (strikers) to work.
In answer to the Employer’s queries as to how many strikers would
return to work, the Union’s representative stated that, to the best of his
knowledge, “probably 30 to 40 employees” or “around 50 percent” of
the strikers had found other work, and “that he was not sure they would be
back.”
The Employer discussed the decertification election with employees on
several occasions prior to the election.
The Employer’s representatives urged the employees to vote against
the Union and told them they could possibly lose their jobs, that part of
the Union’s negotiations was to “get rid of replacement workers” and
“let all the [strikers] have their jobs back,” that the election outcome
“will determine the future of [the Employer’s] business and your job at
Levy,” that the Union had proposed that the Employer put all strikers back
to work, and that if the Union were voted out, the Employer “will no
longer be required to negotiate with Local 150 (strikers will not be able to
take your jobs).”
The hearing officer recommended that the Board find that the
Employer’s pre-election statements constituted objectionable conduct.
The hearing officer found that although the Union proposed that all
strikers be returned to work, the Union did not actually expect that all
strikers would, in fact, return to work.
Although finding that the Employer did not present employees with
inaccurate or false details of the Union’s proposals, the hearing
concluded that the Employer “selectively left out portions of” the
Union’s proposals and gave employees only “pieces” of those proposals
by omitting the Union’s estimate of the number of strikers who might
return to work. The hearing
officer concluded that the Employer’s statements were misleading, and
that, coupled with its comment that the outcome of the election would
determine the security of the replacement employees’ jobs, raised the
prospect that employees could lose their jobs.
Contrary to the hearing officer, the Board concluded that the
Employer was not compelled to tell employees that the Union did not expect
all strikers to return to work, finding that the Union’s comments that
some strikers might not return to work constituted a “guess” or estimate
that was not part of the Union’s formal bargaining proposal that sought
the return of all striking employees. The
Board found that the Employer’s comments were consistent with the
Union’s bargaining proposals, and that the Employer lawfully discussed
with employees the possible consequences, both positive and negative, that
could ensue if the Union’s bargaining proposals were accepted.
The Board emphasized that the Employer’s discussions with employees
were devoid of threats or promises, and, in fact, the Employer stressed to
its employees that they were permanent and that the Employer wished to
retain them as its work force. The Board concluded, accordingly, that the Employer had not
engaged in objectionable conduct and that the ballots cast by replacement
employees in the decertification election should be opened and counted.
(Members
Schaumber, Kirsanow, and Walsh participated.)
***
Media General Operations, Inc.
d/b/a The Tampa Tribune (12–CA–24770; 351 NLRB No. 96) Tampa, FL Dec.
28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35196.htm
The Board unanimously concluded,
contrary to the administrative law judge, that the Respondent violated
Section 8(a)(1) of the Act by discharging employee Gregg McMillen for
referring to Respondent’s vice-president of operations, Bill Barker, as a
“stupid fucking moron” in the course of McMillen’s protected concerted
discussion of ongoing contract negotiations and responding to Barker’s own
statements about negotiations.
McMillen’s remark, which was heard only by supervisors Glenn Lerro
and Joel Bridges, was provoked by letters from Barker.
During contract negotiations, Barker had sent unit employees a series
of letters, describing the negotiations from the Respondent’s viewpoint
and blaming the Union for delays in reaching a contract.
Barker’s antiunion letters had angered many employees and had
caused about 25 employees, including McMillen, to sign a group letter to
Barker, criticizing their working conditions, blaming the Respondent’s
management for the lack of negotiating progress, and expressing support for
the Union’s contract proposal. A
few days later, upon hearing from a coworker that Barker had sent another
letter, McMillen told Lerro and Bridges, “I hope that [stupid] fucking
[moron] doesn’t send me another letter.
I’m pretty stressed, and if there is another letter you might not
see me. I might be out on
stress.” During this
conversation, McMillen also criticized the slow pace of negotiations and the
Respondent’s wage proposal. Neither
supervisor criticized McMillen for the remark or suggested that discipline
was appropriate, but Lerro reported the incident, and McMillen was
discharged because of it six days later.
The Board agreed with the judge that McMillen’s profane reference
to Barker occurred in the course of concerted activity.
Although McMillen’s criticism of Barker’s letters on that
occasion was not expressly authorized by or in the presence of other unit
employees, McMillen’s comments were “a logical outgrowth” of the prior
collective and concerted activity in which he was already engaged, including
the group response to Barker’s letters.
In assessing whether McMillen nonetheless lost the Act’s protection
because of the opprobrious nature of his outburst, the Board applied
Atlantic Steel, 245 NLRB 814 (1979), which requires balancing four factors:
(1) the place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and (4) whether the
outburst was provoked by an employer’s unfair labor practice.
Like the judge, the Board concluded that the first two factors
weighed in favor of finding McMillen’s outburst protected, while the final
factor weighed slightly against protection, because Barker’s letters,
which provoked the outburst, were not unlawful.
Contrary to the judge, however, the Board found that the nature of
McMillen’s outburst weighed only moderately against his retaining the
Act’s protection. Significantly,
his remark was not directed at Barker (i.e., not to his face) and involved
no confrontational aspects; McMillen made the remark only once; he
apologized to Lerro for the comment spontaneously and without knowing that
any discipline was contemplated; and though disrespectful, the remark was
not insubordinate with regard to work assignments or Barker’s managerial
authority. The Board
distinguished cases relied on by the Respondent, which involved more severe
employee conduct. Finally, the
Board observed that neither Barker’s high-level position nor his status as
the Respondent’s chief negotiator and disseminator of its views shielded
him from employees’ responses.
Concluding, contrary to the judge, that the factors favoring
McMillen’s retention of the Act’s protection outweighed the factors
favoring loss of protection, the Board found his discharge unlawful and
ordered standard remedies, including McMillen’s reinstatement.
(Members
Liebman, Kirsanow, and Walsh participated.)
Charge filed by Gregg McMillen an Individual; complaint alleged
violation of
Section 8(a)(1) and (3).
Hearing at Tampa, FL, Dec. 4-5, 2006.
Adm. Law Judge Joel P. Biblowitz issued his decision Feb. 22, 2007.
***
United Steel Service, Inc., d/b/a
Uniserv (8-CA-32711, et al.; 351 NLRB No. 86) Brookfield, OH Dec. 31, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35186.htm
The Board unanimously affirmed
the administrative law judge’s finding that the Respondent violated
Section 8(a)(5) of the Act by refusing to provide the Union with requested
relevant information, and by unilaterally changing its substance abuse
policy. The Board found that a
make-whole remedy for employees discharged under the new substance abuse
policy was warranted, but also noted that the Respondent is permitted to
establish during compliance that it would have discharged any particular
employee under its previous policy.
Members Liebman and Kirsanow adopted the judge’s finding that the
Respondent violated Section 8(a)(5) by unilaterally changing its holiday and
vacation policy. The Board
majority also noted that, under the old policy, employees were able to
request an additional day of leave when their vacation day fell on a
holiday, but could not do so under the new policy. Member Schaumber dissented, finding that the Respondent was
merely exercising its discretion to deny such requests due to manning
requirements, and had not materially changed the policy.
(Members
Liebman, Schaumber, and Kirsanow participated.)
Charges filed by Auto Workers [UAW] Region 2-B; complaint alleged
violations of Section 8(a)(1) and (5).
Hearing at Cleveland on May 17-18, 2006.
Adm. Law Judge Karl H. Buschmann issued his decision Sept. 22, 2006.
***
Valerie Manor, Inc. (34-CA-11162,
et al.; 351 NLRB No. 94) Torrington, CT Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35194.htm
The Board adopted the
administrative law judge’s findings that the Respondent engaged in
extensive violations of Section 8(a)(1) of the Act.
The Board also set aside an election held April 14, 2005, and
directed a second election. In the absence of exceptions, the Board adopted the judge’s
recommended broad cease-and-desist order.
The Board reversed the judge’s finding that the Respondent’s
acting administrator engaged in surveillance of the Respondent’s employees
in violation of Section 8(a)(1), an allegation that was not pled in the
complaint or litigated at the hearing.
Member Kirsanow disagreed with the judge’s recommendation of a
broad cease-and-desist order. Member
Kirsanow also disagreed with the judge’s finding that the Respondent
solicited its employees to revoke their union authorization cards.
(Members
Liebman, Kirsanow, and Walsh participated.)
Charges filed by New England Health Care Employees District 1199,
SEIU; complaint alleged violation of Section 8(a)(1).
Hearing at Hartford, Nov. 7-10, 2005.
Adm. Law Judge Howard Edelman issued his decision June 23, 2006.
***
Valley Hospital Medical Center,
Inc. (28-CA-21047; 351 NLRB No. 88) Las Vegas, NV Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35188.htm
In this case, the Board held that
the Respondent violated Section 8(a)(3) and (1) of the Act by discharging
employee Joan Wells, a full-time registered nurse and the Union’s chief
steward and executive vice-president. In
this connection, the Board found that Wells had engaged in protected
activity when, in connection with an ongoing labor dispute over staffing
levels at the Respondent’s hospital, she made various statements –
contained in a newspaper article, on a union web site, and in a union flyer,
respectively – regarding the effects of staffing levels on employees and
patients. As Wells’ discharge
was based on that protected activity, the Board concluded that the discharge
violated the Act. The Board
also denied the Charging Party’s request for additional remedies,
specifically rescission of the Respondent’s employee communications policy
and a provision requiring the Respondent to distribute the notice to
employees by handbill and e-mail. In
the latter connection, Members Liebman and Walsh concurred for institutional
reasons, but noted their view that the Board’s standard notice-posting
provision encompasses e-mail distribution if an employer customarily
disseminates notices to its employees electronically, and that to the extent
there is any uncertainty that the current notice-posting language requires
electronic posting, they would revise that language to so state.
(Members Liebman, Kirsanow, and
Walsh participated.)
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NLRB Law Memo 01/15/2008
by Ross Runkel at LawMemo
NLRB Law Memo 01/15/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 5 decisions.
Advanced Architectural Metals, Inc. and its alter egos Advanced Metals, Inc. and Steel Specialties Unlimited, a single employer (28-CA-20730, et al.; 351 NLRB No. 80) Las Vegas, NV Dec. 27, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35180.htm
The Board adopted the administrative law judge's decision finding that the Respondents, Advanced Metals, Inc. and Steel Specialties Unlimited are alter egos of Respondent Advanced Architectural Metals, Inc., and together are a single employer. The Board also adopted the administrative law judge's findings that the Respondents (A) violated Section 8(a)(1) of the Act by unlawfully telling employees not to talk to Carpenters Local 1780 (the Union); by disparaging employees because they were members of the Union; by threatening to close or move the Respondents' facilities because of employees' protected, union activities; by threatening to discriminate against employees' because of their protected, union activities; by threatening to retain tools belonging to employees because of the employees' protected, union activities; by threatening to discharge employees because of their protected, union activities; by threatening to physically harm employees because of their protected, union activities; by threatening to physically harm the families of employees because of the employees' protected, union activities; and by physically assaulting employees because of the employees' protected, union activities; (B) violated Section 8(a)(5) and (1) by violating the terms of its collective-bargaining agreement with the Union, including refusing to process grievances; refusing to accept mail from the Union containing grievances; refusing to pay contractually required health, pension, vacation, and other benefits; unilaterally changing the work schedule of employees; unilaterally changing the waiting period to qualify for holiday pay; and refusing to pay contractually required wages; (C) violated Section 8(a)(5) and (1) by repudiating its collective-bargaining agreement with the Union; (D) violated Section 8(a)(3) and (1) by unlawfully discharging 17 employees for engaging in an unfair labor practice strike; and (E) violated Section 8(a)(2) and (1) of the Act by recognizing and entering into an agreement with Iron Workers Local 433 while the Respondent's contract with the Union was still in effect.
(Members Liebman, Schaumber, and Walsh participated.)
Charges filed by Carpenters Local 1780; complaint alleged violations of Section 8(a)(1), (2), (3), and (5). Hearing at Las Vegas, Oct. 10-12, 2006. Adm. Law Judge Joseph Gontram issued his decision Jan. 26, 2007.
***
Goddard Riverside Community Center (2-UC-583; 351 NLRB No. 84) New York NY Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35184.htm
The Board reversed the Regional Director's finding that a unit clarification petition, seeking to exclude the team leader classification from the unit, could not be processed because that classification (now alleged to be supervisory), existed at the time of the parties' 1990 stipulated election agreement and had been included in the unit since that time. Relying primarily on Premier Living Center, 331 NLRB 123 (2000), the Regional Director found that the parties had the opportunity to litigate the issue of the team leaders' inclusion in the unit during the 1990 representation proceeding, but did not do so. The Regional Director therefore concluded that the parties should not be afforded the opportunity to litigate this issue in a subsequent unit clarification proceeding. Additionally, the Regional Director found no exception to the Board's "relitigation rule" because there was no evidence that the duties and responsibilities of the team leaders had changed since the unit was certified in 1990.
In reversing the Regional Director, the Board found that Premier Living Center did not specifically address the question presented here of whether parties are precluded from litigating the disputed employees' supervisory status where they did not specifically stipulate to the status of those particular employees. Instead, the Board found that Washington Post Co., 254 NLRB 968 (1981), provided the correct standard for determining whether the UC petition may be processed in this case. That case specifically held that when presented with an appropriate petition, the Board is "required" to exclude positions from a unit where the inclusion of those positions would violate the basic principles of the Act. Because the disputed positions in this case were alleged to be supervisory and thus their inclusion in the unit would have violated statutory principles, the Board only needed to examine whether the petition was filed at an appropriate time. Based on the record testimony, the Board agreed with the Regional Director that it was.
Accordingly, the Board found that the processing of the UC petition is not precluded by the "relitigation rule" set forth in Premier Living Center because the parties did not specifically address the status of the disputed team leaders in the prior representation proceeding. The petition was therefore reinstated, and the case remanded to the Regional Director for further processing.
(Members Liebman, Kirsanow, and Walsh participated.)
***
H & R Industrial Services, Inc. (4-CA-34848; 351 NLRB No. 81) Allentown, PA Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35181.htm
The Respondent, a plumbing, heating, and air conditioning contractor, was bound to an area collective-bargaining agreement (herein Agreement) with the Carpenters Union and Philadelphia and Vicinity Millwright Contractors Association. In mid-2006 the Union discovered the existence and possible connection between the Respondent and H & R Maintenance, another company performing millwright work covered by the Agreement in the local area. This discovery led to the Union's reasonable belief that the Respondent and H & R Maintenance were closely related companies so as to obligate H & R Maintenance to abide by the Agreement. The Union raised its suspicions about H & R Maintenance during a June telephone conversation with the Respondent's officials. When confronted by the Union, the Respondent claimed that H & R Maintenance was a separate company having nothing to do with it. The Respondent's denial of any connection to H & R Maintenance prompted the Union to submit a July 26, 2006 letter requesting certain information about a possible interrelationship between the two companies. The Respondent failed to respond to the information request, and it provided none of the requested information to the Union. The Board unanimously adopted the administrative law judge's decision, finding that the Respondent had unlawfully failed and refused to provide relevant information requested by the Carpenters Union, in violation of Section 8(a)(5) and (1) of the Act. In adopting the violation, Member Schaumber found that the June 2006 telephone conversation and the July 26 letter sufficiently demonstrated to the Respondent that the Union had an objective basis for believing that the requested information was necessary for, and relevant to, the proper performance of its statutory duties.
(Members Liebman, Schaumber, and Walsh participated.)
Charge filed by Metropolitan Regional Council of Carpenters, Southeastern Pennsylvania, State of Delaware and Eastern Shore of Maryland; complaint alleged violations of Section 8(a)(5) and (1). Hearing held at Philadelphia on March 6, 2007. Adm. Law Judge Jane Vandeventer issued her decision June 1, 2007.
***
Sprain Brook Manor Nursing Home, LLC (2-CA-37258, 37448; 351 NLRB No. 75) Scarsdale, NY Dec. 21, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35175.htm
The Board found numerous violations of Section 8(a)(1), (3), and (5) of the Act both before and after a Sept. 22, 2005 representation election in which the Union became the exclusive collective-bargaining representative of the bargaining unit employees.
The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by photographing and placing employees under surveillance while they engaged in protected concerted activity, violated Section 8(a)(3) by discharging Catherine Alonso and Alvin Nicholson, disciplining Clarissa Nogueira, and reducing the overtime hours of Nogueira, Karen Bartko, and Marjorie Ridgeway; and violated Section 8(a)(5) by increasing employees' wages and reducing overtime of employees without providing the Union with notice and an opportunity to bargain. The Board additionally adopted the judge's findings that the Respondent violated Section 8(a)(1) by threatening employees with more onerous working conditions, threatening to cut overtime, interrogating employees, soliciting grievances, making statements indicating that support for the Union would be futile, and threatening employees with discharge for participating in protected activities.
The Board, however, reversed the judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) by engaging in surveillance of employees' union activities. During the organizing campaign, nursing home administrator Eleanor Miscioscia stood at an exit door to the Respondent's facility and observed employees meeting with union representatives in the parking lot area. Because Miscioscia's actions were out of the ordinary and by her own testimony, she was at the facility solely for the purpose of observing union activity, her conduct constituted unlawful surveillance.
The Board also reversed the administrative law judge's dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) by calling the police. While an employer can take reasonable steps to prevent nonemployees from trespassing onto private property, the Respondent failed to establish that nonemployee organizers were encroaching on the Respondent's property. In the absence of any showing by the Respondent that it was motivated by reasonable concerns when it called the police on the above days, and in the absence of any evidence indicating the need for a police presence, the Respondent's actions violated Section 8(a)(1).
A majority of the panel additionally found that the Respondent violated Section 8(a)(1) by hiring an armed security guard after the election. In light of all the ways in which the Respondent acted unlawfully in response to the employees' union activity, and in the absence of any legitimate explanation for the Respondent's decision to add additional (and armed) security, the Board concluded that the hiring of the second security guard reasonably tended to intimidate or coerce employees engaged in protected activities.
Member Schaumber dissented from this finding of a violation. He observed that there was no evidence that the Respondent's security guard conducted surveillance of employees while they engaged in concerted protected activity, or that the guard otherwise engaged in any behavior that would tend to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights. Instead, the record shows only that the guard was armed and that he worked about 4 hours a day, in the morning or afternoon, during shift changes. The majority's finding of a violation of the Act on these facts is unprecedented, in Member Schaumber's view.
(Members Schaumber, Kirsanow, and Walsh participated.)
Charges filed by New York's Health and Human Services 1199/SEIU; complaint alleged violations of Section 8(a),(1) (3), and (5). Hearing at New York, May 3-5, 8, and 15, 2006. Adm. Law Judge Michael A. Rosas issued his decision Sept. 29, 2006.
***
United States Postal Service (25-CA-29340; 351 NLRB No. 82) Valparaiso, IN Dec. 28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35182.htm
The Board adopted the administrative law judge's finding that the Respondent violated Robert Kuch's Weingarten rights when it refused to allow a union representative to participate and assist Kuch during an interview. In adopting the judge's conclusion, the Board additionally relied upon Lockheed Martin Astronautics, 330 NLRB 422 (2000), in finding that the participation of Kuch's union representative was improperly limited at a crucial juncture of the interview.
Member Kirsanow questioned whether Lockheed and this case departed from the Supreme Court and the Board's original understanding of the Weingarten rule but concurred since Lockheed was not distinguishable. Noting that Kuch's representative was invited to speak later, Member Kirsanow did not consider this case an instance where the right to an immediate response from a Weingarten representative must be protected.
(Members Liebman, Kirsanow, and Walsh participated.)
Charge filed by the Letter Carriers Branch 753; complaint alleged violation of Section 8(a)(1). Hearing at Valparaiso on May 4, 2006. Adm. Law Judge Margaret G. Brakebusch issued her decision June 30, 2006.
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NLRB Law Memo 01/08/2008
by Ross Runkel at LawMemo
NLRB Law Memo 01/08/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 8 decisions.
Grenada
Stamping and Assembly, Inc. (26-CA–22031,
et al.; 351 NLRB No. 74) Grenada, MS Dec. 21, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35174.htm
The
Board, in a unanimous decision involving Grenada Stamping, a Grenada, MS
auto components manufacturer, affirmed the administrative law judge's
determination that the Respondent was a successor employer and violated
Section 8(a)(5) of the Act by unilaterally changing terms and conditions of
employment. The Board further
held that Respondent unlawfully polled its employees to determine whether
they supported the Union, and also unlawfully told employees they could not
discuss the Union at work.
ICE
Industries, Inc. (ICE), through its subsidiary GMAC, assumed control of
Grenada Manufacturing, LLC (GML) in 2004.
The Union and GML were parties to a collective-bargaining agreement,
which the parties extended. Thereafter,
they negotiated changes to terms and conditions of employment and agreed
that GMAC would negotiate a contract with the Union representatives after it
formally acquired GML's assets.
In
March, 2005, however, GMAC refused to further extend the agreement.
Shortly before the sale of GML's assets to GMAC was completed, the
Respondents polled the unit employees to determine if they still wanted the
Union to represent them. That
same day, the Union faxed GMAC a letter requesting recognition and
bargaining. GMAC responded by
letter dated March 30, stating that it would not recognize the Union based
on the results of the poll. Also
on March 30, GMAC changed its name to Grenada Stamping (GSA).
Some
time before the sale was completed, Respondents told employees that they
would have to fill out new applications based on new ownership.
On March 30 or 31, Respondents told employees that everyone was going
to be hired. Between April 1
and June, GSA conducted employee meetings to inform employees of changes
that GSA intended to make concerning their terms and conditions of
employment. Also, shortly after
April 1, Respondents posted a copy of the new personnel policies and
procedures on the facility's bulletin board.
On April 7, GSA informed unit employees of a new 401(k) plan.
On April 14, GSA told unit employees about certain health benefits
changes. On April 19, GSA
announced the creation of a voluntary retirement plan.
About the same time, GSA advised employees of a change in their
vacation year from fiscal year to calendar year.
GSA also changed vacation pay rates and discontinued the contractual
grievance procedure. Finally, on or around April 24, GSA removed the Union
bulletin board.
The
Board found that the poll was unlawful because it failed to comply with the
advance notice requirement of Texas Petrochemical Corp., 296 NLRB 1057
(1989), enfd. as modified 923 F.2d 398 (5th Cir. 1991), and failed to poll
the employees by secret ballot as required by Struksnes Construction Co.,
165 NLRB 1062 (1967). Because
a failure to comply with just one of the Struksnes safeguards is sufficient
to find a violation of the Act, Member Schaumber and Member Kirsanow found
it unnecessary to pass on the judge's additional findings that GML and GSA
failed to provide assurances against reprisals and created a coercive
atmosphere. Member Walsh found
the poll unlawful for each of the reasons given by the judge.
The
Board also concluded that GSA was a "perfectly clear" successor to
GML at least as of March 30, 2005. The
Respondents admitted in their answer to the complaint that GSA became a
successor to GML on March 30, 2005. In
NLRB v. Burns International Security Services, 406 U.S. 272 (1972), the
Supreme Court stated that although a successor employer "is ordinarily
free to set initial terms on which it will hire the employees of a
predecessor, there will be instances in which it is perfectly clear that the
new employer plans to retain all of the employees in the unit and in which
it will be appropriate to have him initially consult with the employees'
bargaining representative before he fixes terms."
Because GSA clearly invited GML's employees to accept employment and
informed them of its intent to hire them during employee meetings on March
30 or 31, without any announcement at this time that GSA intended to
establish unilaterally new terms and conditions of employment, GSA made it
"perfectly clear" that it intended to retain "all of the
employees in the unit." NLRB
v. Burns International Security Services, supra.
Member
Walsh expressed no view on his colleagues' finding that GSA became a
perfectly clear successor to GML at least as of March 30, 2005. He adopted those same 8(a)(5) and (1) violations, however,
because he found, in agreement with the judge, that GSA became a legal
successor to GML on about March 4, 2004.
Member Walsh found it unnecessary to pass on the judge's finding that
GSA at that time was a "perfectly clear" successor to GML under
Burns because even if GSA was only an ordinary Burns successor, its
unilateral action more than a year later clearly could not be regarded as
the permissible setting of "initial" terms and conditions of
employment.
(Members
Schaumber, Kirsanow, and Walsh participated.)
Charges filed Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied-Industrial, and Service Workers;
complaint alleged violations of Section 8(a)(1). Hearing at Grenada on Dec. 12, 13, and 14, 2005.
Adm. Law Judge John H. West issued his decision June 12, 2006.
***
Hempstead
Lincoln Mercury Motors Corp. (29-CA-27601; 351 NLRB No. 73) Hempstead, NY,
Dec. 20, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35173.htm
The
Board adopted the administrative law judge's decision, dismissing the
complaint allegations that the Respondent violated Section 8(a)(5) and (1)
of the Act by failing to notify or bargain with the Union about the
Respondent's refusal to tender or otherwise set aside increased payments
requested by the Union's Pension Fund.
The Fund, asserting that it faced a future funding deficiency, had
declined to accept payments made by the Respondent at the established
contribution rate. The Board agreed with the judge's finding that the Respondent,
having complied with its contractual obligations and having made no change
in its terms and conditions of employment, had no duty to bargain with the
Union about its refusal. The
Board also agreed that the Respondent, by notifying the Union that it could
not afford the requested increase and asking for concessions, had attempted
to bargain with the Union about the Fund's demand for increased payments.
(Members
Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Teamsters Local 917;
complaint alleged violation of Section 8(a)(5) and (1).
Hearing held at Brooklyn, June 27, 2007.
Adm. Law Judge Joel P. Biblowitz issued his decision Aug. 9, 2007.
***
Martinelli
Interior Construction Co., Inc. (4-CA-35167; 351 NLRB No. 79) Wayne, PA Dec.
28, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35179.htm
The
Respondent operates a small family-owned carpentry subcontracting business
and hired Michael Long, a skilled journeyman carpenter on Nov. 21, 2006.
During most of his employment, Long worked as a covert salt until he
openly wore a Carpenters Union sweatshirt to work on the day before he was
discharged. Alfred
"Buddy" Martinelli, the company part owner and vice president,
decided to discharge Long after he had received complaints about Long's
unsatisfactory behavior from a customer who also threatened to terminate its
contract with the Respondent unless Long was removed from the projects.
A month earlier, Greg Martinelli, a working foreman for the
Respondent, told Long that he did not want Long to take offense but that he
had Long checked out because he thought that Long was a union
"plant."
The administrative law judge found that
Greg Martinelli had unlawfully created the impression that the employees'
union activities were under surveillance by the Respondent. No exceptions were filed to the judge's finding that Greg
Martinelli's comment violated Section 8(a)(1) of the Act.
However, the judge was not persuaded that Long was unlawfully
terminated by Buddy Martinelli because of Long's protected concerted
activities. The judge
recommended that the Board dismiss the 8(a)(3) allegation arising out of
Long's discharge. In adopting
the judge's recommendation, the Board found that the Respondent proved that
it would have discharged Long in any event, based on the customer's negative
reports about him, even assuming that the General Counsel had met his
initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
(Members
Schaumber, Kirsanow, and Walsh participated.)
Charge filed by Carpenters Metropolitan
Regional Council, Southeastern Pennsylvania, State of Delaware and Eastern
Shore of Maryland; complaint alleged violations of Section 8(a)(1) and (3).
Hearing held at Philadelphia, PA on July 11 and 12, 2007.
Adm. Law Judge Bruce D. Rosenstein issued his decision on Oct. 1,
2007.
***
Otay
River Constructors (21-CA-37294; 351 NLRB No. 69) Chula Vista, CA Dec. 14,
2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35169.htm
The
Board adopted the administrative law judge's finding that the Respondent
violated Section 8(a)(5) of the Act by failing and refusing to furnish the
Union with requested information. The
Board found that the information was relevant and necessary to the Union in
order to perform its representational duties.
(Chairman Battista and Members Schaumber
and Walsh participated.)
Charge filed by the Building Material,
Construction, Industrial, Professional and Technical Teamsters Local
36; complaint alleged violation of Section 8(a)(5) and (1).
Hearing at San Diego, CA, Mar. 26, 2007.
Adm. Law Judge James M. Kennedy issued his decision June 5, 2007.
***
District
Council 711, International Union of Painters and Allied Trades, AFL-CIO (JC
Two, Inc.) (4-CC-2484; 351 NLRB No. 72) Cherry Hill, NJ Dec. 20, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35172.htm
The
Board affirmed the administrative law judge's findings that the Respondent
violated Section 8(b)(4)(i) and (ii)(B) by picketing a common jobsite at a
gate reserved for neutral employers. The
Board rejected the Respondent's argument that the reserve gate system was
"tainted" by the alleged misuse of the neutral gate by the primary
employer's employees. In doing
so, the Board found it unnecessary to pass on the judge's statement that
even if the primary employer's four employees had entered the jobsite
through the neutral gate, one instance of misuse would be insufficient to
taint the gate system. However,
the Board agreed with the judge's other reasons for finding that the claimed
misuse of the neutral gate did not privilege the Respondent's picketing
there, including the judge's credibility finding that no such misuse
occurred.
The
Board also found it unnecessary to pass on the Respondent's argument to the
judge that "merely holding banners" does not "threaten,
coerce, or restrain" under Section 8(b)(4)(ii)(B). The Board noted that the Respondent did not except to the
judge's rejection of that argument, and, in any event, the Respondent's
activities in the present case involved patrolling, not a stationary banner
display.
In the absence of a proper exception, the
Board also affirmed the judge's finding that the Respondent violated Section
8(b)(4)(i) and (ii)(B) by threatening to picket the jobsite without
indicating that the picketing would comply with the guidelines in Sailors'
Union of the Pacific (Moore Dry Dock), 92 NLRB 547, 549 (1950), governing
common situs picketing.
Finally, the Board found merit in the General Counsel's argument that
the judge's recommended Order, which prohibited the Respondent from engaging
in secondary picketing of Costanza, should also include language prohibiting
secondary picketing of the jobsite's other neutral employers (for whom the
gate at which the Respondent picketed was reserved) or "any other
person." The Board
modified the recommended Order and substituted a new notice to make those
changes and to conform to the Board's standard remedial language.
(Members
Schaumber, Kirsanow, and Walsh participated.)
***
Charge filed by Costanza Builders of New
Jersey, Inc.; complaint alleged violations of Section 8(b)(4)(i) and (ii)(B).
Hearing at Philadelphia, Apr. 10, 2007.
Adm. Law Judge John T. Clark issued his decision Sept. 4, 2007.
The
Guard Publishing Company, d/b/a The Register-Guard (36-CA-8743, et al.; 351
NLRB No. 70) Eugene, OR Dec. 16, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35170.htm
In
a 3-2 decision, the Board addressed the maintenance and alleged
discriminatory enforcement of a policy prohibiting employees from using the
Respondent's e-mail system for all "non-job-related
solicitations." The
Board also addressed whether the Respondent violated the Act by insisting on
an allegedly illegal bargaining proposal that would prohibit use of the
e-mail system for "union business."
The
Board majority also announced and applied a new standard for determining
whether an employer has violated Section 8(a)(1) by discriminatorily
enforcing its policies. In
deciding the case, the Board considered the exceptions and briefs of the
parties, amicus submissions from various organizations, and presentations by
the parties and some amici at an oral argument on March 27, 2007.
The
employer's written policy prohibited the use of e-mail for
"non-job-related solicitations."
In practice, the employer allowed a number of nonwork-related
employee e-mails, but there was no evidence that it permitted e-mails urging
support for groups or organizations. The
employer issued two written warnings to employee Suzi Prozanski for sending
three union-related e-mails. The
complaint alleged that the employer's maintenance of the policy and its
enforcement against Prozanski were unlawful.
Addressing
the maintenance of the policy, the Board majority of Chairman Battista and
Members Schaumber and Kirsanow reasoned that under Board precedent,
employees have no statutory right to use an employer's equipment for Section
7 purposes. The majority found
that Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), in which the
Court held that a ban on solicitation during nonworking time was unlawful
absent special circumstances, was inapplicable to the use of an employer's
e-mail system, because Republic Aviation involved only face-to-face
solicitation, not the use of employer equipment.
The majority noted that the use of e-mail "has not changed the
pattern of industrial life at the Respondent's facility to the extent that
the forms of workplace communication sanctioned in Republic Aviation have
been rendered useless . . . . Consequently, we find no basis in this case to
refrain from applying the settled principle that, absent discrimination,
employees have no statutory right to use an employer's equipment or media
for Section 7 communications." Therefore,
the majority concluded, the maintenance of the policy did not violate
Section 8(a)(1).
With
respect to the alleged discriminatory application of the policy to
Prozanski's e-mails, the majority clarified that "discrimination under
the Act means drawing a distinction along Section 7 lines." The majority adopted the reasoning of the United States Court
of Appeals for the Seventh Circuit, noting that in two cases involving the
use of employer bulletin boards, the court had distinguished between
personal nonwork-related postings such as for-sale notices and wedding
announcements, on the one hand, and "group" or
"organizational" postings such as union materials on the other.
See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003),
denying enf. to 336 NLRB 192 (2001); and Guardian Industries Corp. v. NLRB,
49 F.3d 317, 319-320 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found that the court's analysis,
"rather than existing Board precedent, better reflects the principle
that discrimination means the unequal treatment of equals."
The majority overruled the Board's decisions in Fleming, Guardian,
and other similar cases to the extent they were inconsistent with its
decision here.
Applying
its new standard, the majority found that the employer had permitted a
variety of personal, nonwork-related e-mails, but had never permitted
e-mails to solicit support for a group or organization.
Because two of Prozanski's e-mails were solicitations to support the
union, the employer did not discriminate along Section 7 lines by applying
its e-mail policy to those e-mails. However,
the majority found that a third e-mail by Prozanski was not a solicitation,
but simply a clarification of facts surrounding a recent union event.
Accordingly, the enforcement of the policy with respect to that
e-mail was unlawful.
In
dissent, Members Liebman and Walsh argued that "given the unique
characteristics of e-mail and the way it has transformed modern
communication, it is simply absurd to find an e-mail system analogous to a
telephone, a television set, a bulletin board, or a slip of scrap
paper." Therefore, the
dissenters reasoned, Board decisions finding no Section 7 right to use such
employer property are inapplicable. Rather,
pursuant to Republic Aviation, supra, and Beth Israel Hospital v. NLRB, 437
U.S. 483 (1978), the Board's task in cases involving employee-to-employee
communication in the workplace "is to balance the employees' Section 7
right to communicate with one another against the employer's right to
protect its business interests." In
the dissenters' view, where an employer has given employees access to e-mail
in the workplace for their regular and routine use – as the employer has
done - a ban on "non-job-related solicitations" should be unlawful
absent a showing of special circumstances.
Finding no proof of special circumstances here, the dissenters would
have found that the maintenance of the policy violated Section 8(a)(1).
Regarding
the alleged discriminatory enforcement of the policy, Members Liebman and
Walsh stated that they would adhere to Board precedent, under which they
would find a violation as to all three of Prozanski's e-mails. They contended that the "discrimination" analysis
applied by the Seventh Circuit and adopted by the majority, which focused on
whether the other activities permitted by the employer were
"equal" to Section 7 activity, was not appropriate in Section
8(a)(1) cases. In the
dissenters' view, the essence of a discriminatory enforcement violation is
interference with the employees' Section 7 rights, and "[d]iscrimination,
when it is present, is relevant simply because it weakens or exposes as
pretextual the employer's business justification" for prohibiting the
activity.
In addition to the issues relating to maintenance and enforcement of
the employer's existing e-mail policy, the Board majority of Chairman
Battista and Members Schaumber and Kirsanow also dismissed an allegation
that the employer violated Section 8(a)(5) and (1) of the Act by insisting
on a bargaining proposal that would prohibit use of the e-mail system for
"union business." Without
passing on whether the proposal was unlawful, the majority found
insufficient evidence that the employer had "insisted" on the
proposal. In dissent, Members
Liebman and Walsh found that the evidence as a whole did show
"insistence," and that the proposal was an illegal codification of
a discriminatory practice of allowing e-mail use for a broad range of
nonwork-related messages, but not for union-related messages.
The Board
also unanimously affirmed the judge's finding that the employer violated
Section 8(a)(1) by maintaining an overly broad rule, in the absence of
special circumstances, prohibiting employees from wearing or displaying
union insignia while working with the public.
(Full
Board participated.)
Charges filed by Eugene Newspaper Guild,
CWA Local 37194; complaint alleged violations of Sections 8(a)(1), (3), and
(5). Hearing at Eugene, Nov.
14-16, 2001. Adm. Law Judge
John J. McCarrick issued his decision Feb. 21, 2002.
***
TTS
Terminals, Inc. (13-CA-43370; 351 NLRB No. 68) Chicago, IL Dec. 14, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35168.htm
The
Board affirmed the finding of the administrative law judge that the
Respondent violated Section 8(a)(5) and (1) of the Act by failing and
refusing to execute the collective-bargaining agreement reached on April 21,
2006 and forwarded to the Respondent on May 25, 2006.
The
Board adopted the judge's finding that the Respondent and the Union reached
a "meeting of the minds" on all substantive terms of their
collective-bargaining agreement when the Union unconditionally accepted the
Respondent's final proposal on April 21, 2006.
The judge also rejected the Respondent's argument that assuming
agreement was reached on April 21, it was not final because the agreement
had not yet been ratified. Chairman
Battista included a personal footnote finding that by
"unconditionally" accepting the Respondent's offer, the Union
dispensed with its self-imposed ratification procedure and formed a binding
and effective agreement. Following
the Union's unconditional acceptance, the Respondent could not lawfully
refuse to execute the collective-bargaining agreement.
(Chairman
Battista and Members Liebman and Walsh participated.)
Charge filed by Teamsters, Local 705;
complaint alleged violation of Section 8(a)(5) and (1).
Hearing at Chicago, IL, Sept. 14, 2006.
Adm. Law Judge John T. Clark issued his decision April 11, 2007.
***
U.
S. Recycling and Disposal, LLC (13-CA-43702; 351 NLRB No. 67) Plainfield, IL
Dec. 17, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35167.htm
The
Board affirmed the administrative law judge's finding that the Respondent
violated Section 8(a)(1) of the Act by threatening to reduce overtime if the
Union was selected as the employees' collective-bargaining representative.
The Board also affirmed the judge's finding that, under Wright Line,
the Respondent violated Section 8(a)(3) of the Act by disciplining employee
Richard Mann because of his union activities.
The Board further affirmed the judge's ruling denying the General
Counsel's motion to adjourn the hearing pending enforcement of a subpoena ad
testificandum.
The panel majority (Members Schaumber and Walsh)