« NLRB Law Memo 01/15/2008 | Main | NLRB Law Memo 01/26/2008 »
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.)
|
|
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
|
