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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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