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NLRB Law Memo 02/29/2008
by Ross Runkel at LawMemo
NLRB Law Memo 02/29/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 4 decisions.
Cardinal
Health Care, Inc. (22-RC-12773; 352 NLRB No. 19) Edison, NJ Feb. 15, 2008.
http://www.nlrb.gov/shared_files/Board
Decisions/352/v35219.htm
The
Board, applying the three-part test articulated in Caesar's Tahoe, 337 NLRB
1096, 1097 (2002), held that two electronic data interchange (EDI)
coordinators and an inventory coordinator were included in a stipulated unit
and overruled the Petitioner's challenges to their ballots.
Under the Caesar's Tahoe test, "If the objective intent of the
parties is expressed in clear and unambiguous terms in the stipulation, the
Board simply enforces the agreement."
If the stipulation is ambiguous, the Board next considers the
parties' subjective intent and then community of interest factors to
determine the unit status of the disputed positions.
The stipulation negotiated by the parties identified the
classifications included in the unit and specifically included "all
full-time and regular part-time . . . coordinators."
The Employer did not employ any individuals with the sole designation
of "coordinator," but rather several individuals employed in
various types of coordinator positions.
The Board concluded that the abbreviated reference to
"coordinators" in the unit description unambiguously included all
coordinators in the unit.
(Members
Liebman and Schaumber participated.)
***
Laborers
Local 731 (29-CD-601; 352 NLRB No. 20) Staten Island, NY Feb. 15, 2008.
http://www.nlrb.gov/shared_files/Board
Decisions/352/v35220.htm
The
Board in this decision and determination of dispute under Section 10(k) of
the Act decided that the employees represented by Laborers Local 731 and
Operating Engineers Local 15 are entitled to continue performing the work in
dispute. The work constituted
"the installation and fusing of high density polyethylene pipe for
removal of methane gas from capped landfills at landfills 6 and 7 of the
Fresh Kills landfill in Staten Island, NY."
The Employer is Tully Construction Co.
The work was also claimed by Plumbers Local 1.
In
finding that the dispute was properly before the Board pursuant to Section
10(k), the Board found that there were competing claims to disputed work,
that the Laborers used a proscribed means to enforce its claim, and that the
parties did not have an agreed upon method for voluntary adjustment of the
dispute.
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 Laborers and Operating Engineers were entitled to continue
performing the work based on the factors of collective-bargaining
agreements, employer preference, current assignment, past practice, economy,
and efficiency of operations.
In
so doing, the Board found that the factors of area and industry practice and
relative skills and training did not favor awarding the work to either group
of employees.
(Members
Liebman and Schaumber participated.)
***
National
Broadcasting Co., Inc. (2-CA-37396; 352 NLRB No. 15) New York, NY Feb. 14,
2008.
http://www.nlrb.gov/shared_files/Board
Decisions/352/v35215.htm
The
Board affirmed the administrative law judge's finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing to provide the
American Federation of Television and Radio Artists (the Union) with
relevant information it had requested.
In doing so, the Board affirmed the judge's finding that the
information request case was not appropriate for deferral to arbitration.
The Board also agreed with the judge that the Respondent failed to
establish a confidentiality defense justifying its blanket refusal to supply
the information. Because
legitimate confidentiality and privacy concerns might exist regarding
certain requested information, the Board did not preclude the Respondent, at
the compliance stage, from making "a particularized showing" of
legitimate and significant confidentiality concerns related to specific
information that must be balanced against the Union's need for that
information. Jacksonville Area
Assn. for Retarded Citizens, 316 NLRB 338, 341 fn. 14 (1995).
(Members
Liebman and Schaumber participated.)
Charge
filed by American Federation of Television and Radio Artists; complaint
alleged violations of Section 8(a)(5) and (1).
Hearing at New York on Aug. 17, 2006. Adm. Law Judge Steven Fish
issued his decision March 5, 2007.
***
Stepan
Co. (4-CA-34417; 352 NLRB No. 14) Fieldsboro, NJ Feb. 14, 2008.
http://www.nlrb.gov/shared_files/Board
Decisions/352/v35214.htm
The
issue in this case is whether the Respondent, during bargaining negotiations
for an initial contract, violated Section 8(a)(5) of the Act by refusing to
furnish Electrical Workers [UE] Local 155 (the Union) requested copies of
area wage surveys that the Union believed were relied on by the Respondent
in fashioning its contractual wage proposals.
The complaint also alleged that after the Respondent denied the
information request, it violated Section 8(a)(3) and (5) by locking out unit
employees.
The
administrative law judge dismissed all of the complaint allegations.
He dismissed the information request allegation on two grounds.
First, he found that the requested information was not relevant
because the Respondent did not rely on the particular wage surveys sought in
fashioning its current wage proposals.
Second, the judge found that the Union's "requested information
was sought solely to support its unfair labor practice charges and for no
other reason." 352 NLRB
No. 14, slip op. at 10. In this
regard, the judge noted that just days before the Union's information
request, it had filed Section 8(a)(3) charges alleging, among other things,
a discriminatory withholding of promised wage increases, and that some of
the information requested by the Region to investigate the charges was the
same as that sought by the Union in its information request.
Citing Union-Tribune Publishing Co., 307 NLRB 25 (1992), the judge
concluded that under these circumstances, the "Respondent was lawfully
allowed to refuse to comply with the information request."
Id. Because the unlawful
lockout allegation hinged on a finding that the refusal to furnish the wage
surveys was unlawful, the judge dismissed that allegation as well.
The
Board adopted the judge's decision, but relied only on his finding that the
requested information was improperly sought in support of the Union's
pending Section 8(a)(3) charges. The Board explained in fn. 2 of its decision that "[b]ecause
the complaint was properly dismissed on this basis," it was unnecessary
to rely on the judge's relevancy finding as an additional basis for
dismissing the 8(a)(5) information request allegation.
(Members
Liebman and Schaumber participated.)
Charge
filed by Electrical Workers [UE] Local 155; complaint alleged violations of
Section 8(a)(1), (3), and (5). Hearing
at Philadelphia on Nov. 7, 2006. Adm.
Law Judge Wallace H. Nations issued his decision Feb. 21, 2007.
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NLRB Law Memo 02/22/2008
by Ross Runkel at LawMemo
NLRB Law Memo 02/22/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 3 decisions.
Biosource Landscaping Services, LLC
(9-CA-43283, 43287; 352 NLRB No. 6) Xenia, OH Jan. 31, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v3526.htm
The Board affirmed the administrative law judge’s findings that the Respondent violated Section 8(a)(1) of the Act by: (1) threatening employees with plant closure if the Union was voted in as their representative; (2) threatening employee Donald Combs with job loss for support; and (3) interrogating employee Matthew Liming about his union activities. The Board additionally affirmed that the Respondent did not violate Section 8(a)(1) by coercing its employees or Section 8(a)(3) by discharging employees Paul Brown and Matthew Liming. With respect to the discharges, the Board found that the Respondent met its burden of establishing that it would have taken the same action even in the absence of the employees’ protected activities.
(Members Liebman and Schaumber participated.)
Charges filed by Individuals; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Cincinnati, April 24 and 25, 2007. Adm. Law Judge Bruce D. Rosenstein issued his decision July 13, 2007.
***
Kingsbridge Heights Rehabilitation
Care Center (2-CA-37660, 37898; 352 NLRB No. 5) Bronx, NY Jan. 31, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v3525.htm
The Board adopted the administrative law judge’s decision and found that the Respondent violated Section 8(a)(1) of the Act by (1) engaging in the surveillance of its employees’ union activities with video cameras; and (2) threatening to delay the reinstatement of employees if they engaged in a strike and made an unconditional offer to return to work. In adopting the judge’s finding that the Respondent’s May 9, 2006 statement to employees – that they would not be able to return to work for three weeks if they engaged in a three-day strike – was unlawful, the Board agreed with the judge that the Respondent’s asserted business justification for the statement, that it had committed to hiring temporary replacement employees for three weeks, lacked merit.
(Members Liebman and Schaumber participated.)
Charge field by 1199 SEIU, United Health Care Workers East; complaint alleged violations of Section 8(a)(1). Hearing at New York on Feb. 21, 2007. Adm. Law Judge Mindy E. Landow issued her decision July 9, 2007.
***
Stage Employees IATSE Local 720 (AVW
Audio Visual, Inc.) (28-CB-4351; 352 NLRB No. 7) Las Vegas, NV Jan. 31,
2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v3527.htm
The Board sua sponte sought remand of this case from the Ninth Circuit Court of Appeals to reconsider its denial of the Charging Party’s request for review of a compliance determination. The Board reversed the compliance determination’s finding that the Charging Party’s backpay remedy for the Respondent’s refusal to refer him from the exclusive hiring hall in violation of Section 8(b)(1)(A) and 8(b)(2) was limited to lost employment opportunities with named employer AVW Audiovisuals, Inc. The Board ordered the Respondent to make the Charging Party whole for lost employment opportunities with all signatory employers, finding that the Charging Party was not procedurally barred from challenging the limitation on the backpay remedy and that the broader remedy was appropriate for the violations found. The Board remanded the case to the Regional Director for further action.
The Board in 2000 reversed the administrative law judge’s finding that the Respondent had violated Section 8(b)(1)(A) and 8(b)(2) and dismissed the complaint. 332 NLRB 1. The Ninth Circuit Court of Appeals granted review (Lucas v. NLRB, 333 F.3d 297 (2003)), and on remand, the Board adopted the court’s opinion as the law of the case and found that the Respondent had violated the Act. 341 NLRB 1267 (2004).
(Members
Liebman and Schaumber participated.)
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NLRB Law Memo 02/15/2008
by Ross Runkel at LawMemo
NLRB Law Memo 02/15/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 3 decisions.
Hercules Drawn Steel Corp.
(7-CA-48573, et al.; 352 NLRB No. 10) Livonia, MI Feb. 7, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35210.htm
The Board affirmed the
administrative law judge’s findings that the Respondent violated Section
8(a)(1) of the Act by engaging in surveillance.
The Board also affirmed that the Respondent did not violate Section
8(a)(1) by: threatening its employees that if the Union ever goes on strike,
employees would never again see the inside of the shop; threatening to fire
any millwright who gave a statement in support of an employee grievance;
threatening employees with job loss if they did not accept the
Respondent’s contract proposal; telling an employee that it would not
recall certain employees, or that recalled employees who refused to return
to work would be terminated; and stating in a letter that employees who
refused to return to work after being recalled could be permanently
replaced. Additionally, the
Board affirmed that the Respondent did not violate Section 8(a)(5) by
engaging in direct dealing or by presenting a regressive contract proposal.
Further, the Board affirmed that the Respondent did not violate
Section 8(a)(3) by: assigning clean-up duties to employee L. Lewis; locking
out its employees; and partially recalling its skilled employees.
In affirming that the Respondent did not violate Section 8(a)(3) by
locking out or partially recalling its employees, the Board found that the
Respondent showed that it could not maintain production during the lockout
without these specific employees to operate its machinery, and thus, clearly
established a legitimate and substantial business justification.
See Bali Blinds Midwest, 292 NLRB 243, 246-247 (1988).
(Members
Liebman and Schaumber participated.)
Charges filed by Auto Workers Local 174; complaint alleged violations
of Sections 8(a)(1), (3), and (5). Hearing
at Detroit, May 15-18 and June 21, 2006.
Adm. Law Judge George Alemán issued his decision on Dec. 8, 2006.
***
Laborers Local 169 (32-CB-5976;
352 NLRB No. 8) Reno, NV Feb. 6, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v3528.htm
The Board adopted the
administrative law judge’s finding that the Respondent Union violated
Section 8(b)(3) of the Act by refusing to meet and bargain with the Employer
for a new agreement upon its certification as the 9(a) representative of the
Employer’s employees.
(Members
Liebman and Schaumber participated.)
Charge filed by Frehner Construction Co., Inc.; complaint alleged
violation of Section 8(b)(3). Hearing
at Reno, May 17 - 18, 2006. Adm.
Law Judge Burton Litvack issued his decision Nov. 16, 2006.
***
Windstream Corp. (6-CA-35290; 352
NLRB No. 9) Little Rock, AR Feb. 7, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v3529.htm
The Board affirmed the
administrative law judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally implementing a zero tolerance
disciplinary policy for violations of its ethics and integrity rules.
In doing so, the Board also affirmed the judge’s finding that the
allegation was not appropriate for deferral to arbitration pursuant to
Collyer Insulated Wire, 192 NLRB 837 (1971), and its progeny.
The Respondent distributed an email to bargaining unit members
indicating that an employee found to have violated one of the Respondent’s
ethics rules would be automatically terminated.
The Board affirmed the judge’s finding that the Respondent violated
Section 8(a)(5) and (1) by making a material and substantial change in
employees’ conditions of employment unilaterally during the term of a
collective-bargaining agreement.
In declining to defer the allegation that the Respondent unilaterally
implemented a “zero tolerance” policy in violation of the Act to
arbitration, the Board found that the Respondent failed to request deferral
on an inextricably related direct dealing allegation covering the same
subject matter. Accordingly,
the Board concluded that deferral of one aspect of the parties’ dispute to
the grievance-arbitration machinery would be inappropriate.
(Members
Liebman and Schaumber participated.)
Charges filed by Electrical Workers IBEW on behalf of its affiliated
Locals 463, 1189, 1507, 1929, 2089, and 2374; complaint alleged violations
of Section 8(a)(5) and (1). Hearing
at Pittsburgh on Feb. 1, 2007. Adm.
Law Judge Michael A. Marcionese issued his decision April 9, 2007.
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NLRB Law Memo 02/01/2008
by Ross Runkel at LawMemo
NLRB Law Memo 02/01/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 1 decision.
Mason Tenders Local 388,
affiliated with Virginia and North Carolina Laborers’ District Council
(5-CB-10112; 352 NLRB No. 2) Chesapeake, VA Jan. 23, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v3522.htm
The Board granted the General Counsel’s motion for summary judgment and held that the Respondent violated Section 8(b)(3) of the Act by failing and refusing to provide Sprinkle Masonry, Inc. (the Charging Party) with information that is relevant and necessary for collective bargaining. According to the uncontroverted allegations in the motion for summary judgment, the Respondent failed to comply with the terms of the parties’ settlement agreement by failing to provide the Charging Party with any collective-bargaining agreements, memoranda of agreement, side letters and other agreements negotiated on or after July 1, 2004, or a statement stating that no such information exists, and failing to post the Notice to Employees and Members. Pursuant to the noncompliance provisions of the settlement agreement, the Board found that all of the allegations of the complaint are true.
(Members Liebman and Schaumber participated.)
Charge filed by Sprinkle Masonry, Inc.; complaint alleged violation of Section 8(b)(3). General Counsel filed motion for summary judgment Nov. 16, 2007.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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