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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 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) affirmed the judge's finding
that the Respondent also violated Section 8(a)(3) by discharging Mann
because of his union activities. In
so finding, the majority relied additionally on the evidence of disparate
enforcement of the Respondent's reporting policy that Mann allegedly
violated. Concurring, Chairman
Battista relied solely on this evidence of disparate treatment, and did not
rely on the other reasons cited by the judge for finding the violation.
(Chairman
Battista and Members Schaumber and Walsh participated.)
Charge filed by General Chauffeurs, Sales
Drivers and Helpers Local 179; complaint alleged violations of Sections
8(a)(1) and (3). Adm. Law Judge
George Carson II issued his decision May 21, 2007.
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