28 Day Trial   Products / Prices / Samples   About Us / Contact   FAQs   Home  
Newest employment law cases  
Summaries and links to full text

LawMemo - First in Employment Law

Emailed directly to you
and online all the time
Home 28 Day Trial MyLawMemo Custom Alerts Newest Cases Key Word Search Employment Law Memo
EEOC Info NLRB Info Supreme Court Arbitration Articles Law Firms Arbitration Blog Employment Law Blog

NLRB Law Memo 
Also available by email 

All Archives

 

« February 2008 | Main | April 2008 »



LawMemo publishes Employment Law Memo.

NLRB Law Memo 03/28/2008
by Ross Runkel at LawMemo

NLRB Law Memo 03/28/2008
by
LawMemo - First in Employment Law.

Also by email.

NLRB - Staff summarized 5 decisions.

Bloomfield Health Care Center (34-CA-11512 et al., 34-RC-2172; 352 NLRB No. 39) Bloomfield, CT March 20, 2008.

The Board, in a 2-0 decision, found that the Respondent unlawfully interrogated employees, denied access to its facility to off duty employees, suspended an employee, unilaterally eliminated the rehabilitation aide position and transferred its duties to certified nursing assistants, and unilaterally changed the work schedules of two employees. The Board affirmed in part and reversed in part a 2007 decision of the administrative law judge who found that (1) the Respondent's preventing off duty employees from talking to other employees at its facility on May 18, 2006 violated Section 8(a)(1) of the Act; (2) the Respondent's suspension of employee Winsome Kitson violated Section 8(a)(1) and (3); (3) the Respondent did not otherwise violate the Act; and (4) the objections to the election are without merit.

In addition to the violations found by the judge, the Board found that the Respondent (1) violated Section 8(a)(1) by interrogating employees, through Administrator Penni Martin, about their union activities; (2) violated Section 8(a)(5) by unilaterally eliminating the rehabilitation aide position held by employee Carol Blackwood-Lindsey and transferring the position's duties to certified nursing assistants; and (3) violated Section 8(a)(5) by unilaterally changing the work schedules of employees Carol Blackwood-Lindsey and Avril Wallace.

The Board also adopted the judge's finding without merit the Respondent's election objections alleging that (1) Kitson's conduct in protesting the Respondent's unfair labor practice interfered with the election; and (2) the Union engaged in objectionable conduct by offering to waive dues for eligible voters who paid dues at other facilities represented by the Union in connection with their second jobs.

(Members Liebman and Schaumber participated.)

Charges filed by New England Health Care Employees District 1199, SEIU; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Hartford, Feb. 13, 14, and 15, 2007. Adm. Law Judge Raymond P. Green issued his decision March 30, 2007.

***

California Gas Transport, Inc. (28-CA-21287; 352 NLRB No. 38) Nogales, AZ March 19, 2008.

The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by assigning its Nogales-based drivers to deliver propane to Juarez and Mexicali, Mexico without first bargaining with the Union. The Board found it unnecessary to pass on the judge's dismissal of the allegation that the Respondent violated Section 8(a)(5) and (1) by withdrawing its recognition of the Union. In doing so, the Board found that any remedy imposed for this violation would be duplicative of a bargaining order already imposed by the Board in a prior case. California Gas Transport, Inc., 347 NLRB No. 188 (2006), enf. 507 F.3d 847 (5th Cir. 2007).

(Members Liebman and Schaumber participated.)

Charge filed by General Teamsters (Excluding Mailers), State of Arizona, Local 104; complaint alleged violations of Section 8(a)(5) and (1). Hearing at Tucson, July 18 and 19, 2007. Adm. Law Judge James M. Kennedy issued his decision Sept. 26, 2007.

***

CNN America, Inc. (5-CA-31828, 33125; 352 NLRB No. 40) Washington, DC March 20, 2008.

The administrative law judge ruled, during the hearing, that the Respondent must produce documents reviewed by witnesses prior to their testimony and within 6 months prior to the hearing, pursuant to Federal Rule of Evidence 612. The Board granted the Respondent's special appeal and found that the judge's ruling is inconsistent with Rule 612 because the judge did not determine that the documents at issue were reviewed by the witnesses to refresh memory for the purpose of testifying. Accordingly, the Board vacated the judge's ruling and remanded the proceeding to the judge for further action consistent with its order.

(Members Liebman and Schaumber participated.)

***

Midwest Generation (13-CA-39643-1; 352 NLRB No. 36) Chicago, IL March 17, 2008.

The Board accepted the remand of the Seventh Circuit Court of Appeals and found, as instructed by the court, that the Respondent's partial lockout violated Section 8(a)(3) and (1) of the Act. To remedy the unlawful lockout, the Board ordered the Respondent to make employees whole for any loss of earnings and other benefits suffered as a result of being unlawfully locked out. In addition, the Board remanded to the administrative law judge the issues of whether the unlawful partial lockout coerced Electrical Workers IBEW Local 15 and its members to ratify the Respondent's contract offer, thereby voiding the parties' collective-bargaining agreement, and whether other remedial relief is appropriate.

(Members Liebman and Schaumber participated.)

***

SFO Good-Nite Inn, LLC (20-CA-32754; 352 NLRB No. 42) South San Francisco, CA March 20, 2008.

The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by soliciting employees to sign a union disaffection petition, and by threatening employees with discharge or loss of benefits, and by promising benefits, in order to coerce employees to sign the petition. The Board also affirmed the judge's findings that the Respondent violated Section 8(a)(3) and (1) by discharging two employees in order to discourage union activities and union membership, and that it violated Section 8(a)(5) and (1) by withdrawing recognition from and refusing to bargain with the Union.

With respect to the discharges, the Board found inter alia that because the Respondent's only proffered reason for the discharges was pretextual the Respondent necessarily failed to show that it would have discharged the employees even in the absence of their protected conduct. As to the withdrawal of recognition, the Board found inter alia that, under Hearst Corp., 281 NLRB 764 (1986), affd. mem. 837 F.2d 1088 (5th Cir. 1988), the Respondent's contention that the petition was not tainted by its unfair labor practices because there was no evidence that the employees who signed it knew of the unlawful conduct was unavailing. Member Schaumber acknowledged that Hearst Corp. was extant Board law and applied it for the purpose of deciding this case. He stated his own view that even unfair labor practices such as those in this case might not taint a petition if there was affirmative evidence that a majority of unit employees both signed the petition and were unaffected by the unlawful conduct (there was no such showing in this case).

The Board found it unnecessary to pass on the judge's finding that the petition was tainted under the standards set forth in Master Slack Corp., 271 NLRB 78, 84 (1984), or on his finding that the collective-bargaining agreement was a bar to the Respondent's withdrawal of recognition. In regard to the latter finding, Member Liebman, who dissented in Shaw's Supermarkets, Inc., 350 NLRB No. 55 (2007), agreed that it was unnecessary to address the issues presented in Shaw's for the purpose of deciding this case.

(Members Liebman and Schaumber participated.)

Charge filed by Unite Here! Local 2; complaint alleged violations of Section 8(a) (1), (3), and (5). Hearing at San Francisco, April 18-20 and May 23, 2006; and at San Mateo, June 13, 2006. Adm. Law Judge Jay R. Pollack issued his decision Sept. 28, 2006.



LawMemo publishes Employment Law Memo.

NLRB Law Memo 03/14/2008
by Ross Runkel at LawMemo

NLRB Law Memo 03/14/2008
by
LawMemo - First in Employment Law.

Also by email.

NLRB - Staff summarized 7 decisions.

Area Trade Bindery Co. (31-CA-26970, 27500; 352 NLRB No. 29) Burbank, CA Feb. 29, 2008.

The Board adopted the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain to impasse before making unilateral changes to employees’ terms and conditions of employment. In doing so, the Board considered the factors weighed by the judge and identified in Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968). In addition, the Board modified the judge’s remedy to include traditional make-whole language for any loss of wages or benefits resulting from the Respondent’s unlawful unilateral implementation of its final offer.

(Members Liebman and Schaumber participated.)

Charges filed by Graphic Communications Local 404; complaint alleged violations of Section 8(a)(5) and (1). Hearing at Los Angeles, March 6-8, 2006. Adm. Law Judge Jay R. Pollack issued his decision May 16, 2006.

***

Butler Asphalt, L.L.C. (9-RC-18130; 352 NLRB No. 32) Vandalia, OH, Feb. 29, 2008.

The Board adopted the hearing officer’s recommendation to overrule the challenge to the ballot of Ricki Tucker, using a different rationale. The Board analyzed Tucker’s status under Caesar’s Tahoe, 337 NLRB 1096 (2002). Applying the third prong of the Caesar’s Tahoe test, the Board concluded that Tucker shares a sufficient community of interest with unit employees to warrant inclusion in the unit.

The Board reversed the hearing officer to sustain challenges to the ballots of Mike Craft, Bert Gogan, Jr., and Raymond Lawson, finding that the stipulated election agreement unambiguously excludes them. The Board also reversed the hearing officer to overrule challenges to the ballots of Travis Robinson and Mark Evans, finding that the parties’ stipulation unambiguously includes them.

The Board clarified its holding in Viacom Cablevision, 268 NLRB 633 (1984), that the Board will only consider job classifications that “fairly represent” the work employees perform. The Board noted that Viacom is applicable to situations in which an employer has attempted to “gerrymander” job classifications after a stipulation has been entered into, and was not intended to apply to situations where such gerrymandering has not taken place.

(Members Liebman and Schaumber participated.)

***

Jackson Hospital Corp., d/b/a Kentucky River Medical Center (9-CA-37734, et al.; 352 NLRB No. 33) Jackson, KY Feb. 29, 2008.

The Board adopted the administrative law judge’s backpay awards to four discriminatees. Applying precedent, the Board rejected the Respondent’s contention that income received by one of the discriminatees from a side trucking business she owned should be treated as interim earnings to reduce backpay, since neither that income nor her activity with the business had increased from before her unlawful discharge.

(Members Liebman and Schaumber participated.)

Hearing at Jackson on various dates between Oct. 18 and Nov. 28, 2006. Adm. Law Judge Margaret G. Brakebusch issued her supplemental decision Feb. 22, 2007.

***

Laurel Baye Healthcare of Lake Lanier, LLC (10-CA-35958, 35983; 352 NLRB No. 30) Buford, GA Feb. 29, 2008.

The Board adopted the findings of the administrative law judge that the Respondent violated Section 8(a)(5) and (1) of the Act by changing its employee dress code, attendance policy, and vacation, sick-leave pay, and health insurance benefits, without first notifying the Union and affording it an opportunity to bargain about these changes.

The Board found the Respondent’s defenses meritless in that it did not act unlawfully because the changes were de minimis; never implemented; implemented on a corporate-wide basis; based on exigent circumstances; or the result of a mistake.

The Board also found that the Respondent had waived its argument that it had no duty to bargain over changes to its health insurance policy under Courier-Journal, 342 NLRB 1093 (2004), because it had failed to raise this argument before the judge.

(Members Liebman and Schaumber participated.)

Charges filed by Food and Commercial Workers Local 1996; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Buford on March 9, 2006. Adm. Law Judge Lawrence W. Cullen issued his decision July 12, 2006.

***

The McBurney Corp. (26-CA-17564, et al.; 352 NLRB No. 35) Norcross, GA Feb. 29, 2008.

The Board denied the motions for reconsideration filed by the Charging Party and the General Counsel.

In its previous decision in The McBurney Corp., 351 NLRB No. 49 (2007), the Board found that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily refusing to hire certain union-affiliated applicants. The Board ordered the Respondent to provide instatement and backpay to the discriminatees. The Board specified that the awards to union salts James Bragan and Dale Branscum would be subject to the remedial limitations established in Oil Capitol, 349 NLRB No. 118 (2007). Further, the Board said that the Respondent would be permitted to show in compliance that additional discriminatees were salts.

In their motions for reconsideration, both parties argued that Oil Capitol should not be applied at the compliance stage of this case. The Board found that neither motion presented “extraordinary circumstances” warranting reconsideration. In particular, the Board found no merit to their argument that Oil Capitol should not be applied retroactively. The Board noted that it had stated in Oil Capitol that it would apply the new evidentiary requirement in the compliance proceeding of Oil Capitol and in all cases where the discriminatee is a union salt. The Board cited other cases where it had similarly applied Oil Capitol to compliance where those cases had initiated before Oil Capitol issued. Moreover, the Board stated that Oil Capitol addressed matters presented in compliance proceedings and that there has not yet been a compliance proceeding in McBurney. Thus, the Board reasoned, applying Oil Capitol does not require re-litigation.

(Members Liebman and Schaumber participated.)

***

North American Linen, LLC (22-CA-27783; 352 NLRB No. 26) Long Branch, NJ, Feb. 25, 2008.

The Board affirmed the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to reduce to writing the collective-bargaining agreement it negotiated and entered into with the Union, by failing and refusing to implement the terms of the collective-bargaining agreement, and by withdrawing recognition from the Union. The Board also adopted the judge’s recommended Order, including his recommendation that the Respondent be ordered to make all contractually required payments to the Union’s health benefit and pension funds.

(Members Liebman and Schaumber participated.)

Charge filed by United Workers of America Local 621; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark on July 18, 2007. Adm. Law Judge Lawrence W. Cullen issued his decision Oct. 29, 2007.

***

San Luis Trucking, Inc., and its alter ego Servicios Especializados Del Colorado, S.A. De C.V., and Factor Sales, Inc., all a Single Employer and/or Joint Employers (28-CA-20387, et al.; 352 NLRB No. 34) San Luis, AZ Feb. 29, 2008.

The Board affirmed the administrative law judge’s finding that Factor Sales (FS) and San Luis Trucking (SLT) are single employers and that San Luis Trucking and Servicios Especialzados del Colorado, a Mexican-based subsidiary of Factor Sales, are single employers. It also affirmed that the Respondent, collectively FS and SLT, violated (1) Section 8(a)(1) of the Act by interrogating employee Quezada and by instituting a work rule prohibiting drivers from talking to mechanics except when employee Vega was present; (2) Section 8(a)(5) by instituting a new work rule regarding discussions among drivers and mechanics without bargaining with the Union; more strictly enforcing disciplinary and attendance rules without bargaining with the Union; subcontracting the transportation business of SLT without bargaining with the Union; unilaterally closing SLT without bargaining with the Union; and failing and refusing to provide the Union with information requested in its Dec, 22, 2005 letter; and (3) Section 8(a)(3) by more strictly enforcing work rules in response to Union activities; subcontracting the transportation business of SLT because of Union activities; constructively discharging employees Sandoval, Gonzalez, and Quezada because of their Union activities; and closing SLT to influence Factor Sales employees’ Union activities.

In addition, the Board found it unnecessary to pass on the judge’s finding that the Respondent violated Section 8(a)(5) by unilaterally changing the terms and conditions of employment of employees Sandoval, Gonzalez, and Quezada.

Factor Sales has owned and operated grocery stores in the Yuma, AZ area for approximately 20 years. At the time of the hearing, FS operated nine stores and employed approximately 500 employees. Victor Salcido is the principal stockholder. SLT, a wholly owned subsidiary of FS, was established by Victor Salcido in 1993 for the purpose of transporting groceries from wholesalers to Factor Sales and other stores.

The Union won a representation election and was certified as the exclusive bargaining representative for SLT employees on Feb. 11, 2005. Following the Union’s certification, representatives from the Union, SLT, and FS met for a total of three bargaining sessions in March, April, and May 2005. At the April meeting, SLT’s attorney and representative, Barry Olsen, stated that SLT was in poor financial condition. At the third (and last) meeting on May 26, Olsen repeated that SLT was in financial trouble.

In July 2005, Salcido unilaterally decided to transfer approximately 60% of SLT’s trucking business from SLT to another company, Unified Western Grocers. The Respondent alleged that SLT continued to lose money, and on Feb. 6, 2006, the Respondent closed SLT.

The principle issue in the case was whether the Respondent’s decision to transfer a majority of bargaining unit work from SLT to Unified, and its subsequent decision to close SLT, was mandatory subjects of bargaining. The judge found, and the Board agreed, that under Fibreboard Paper Products v. NLRB, 379 U.S. 203 (1964), the Respondent violated Section 8(a)(5) by unilaterally transferring work to Unified. In addition, the judge found, and the Board agreed, that the Respondent’s subsequent decision to close SLT was not a change in the scope and direction of the business. Nor was the decision privileged as a “partial closure” under First National Maintenance, 452 U.S. 666 (1981). Moreover, the judge rejected the Respondent’s contention that it was forced to take these actions because of SLT’s dire financial losses because the Respondent failed to produce sufficient evidence of its financial condition despite the General Counsel’s subpoenas for the financial information at issue.

(Members Liebman and Schaumber participated.)

Charges filed by Food and Commercial Workers Local 99; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at San Luis and Somerton, Nov. 7-9, Dec. 5-8, 2006, and Jan. 9-10, 2007. Adm. Law Judge Joseph Gontram issued his decision May 8, 2007.



LawMemo publishes Employment Law Memo.

NLRB Law Memo 03/09/2008
by Ross Runkel at LawMemo

NLRB Law Memo 03/09/2008
by
LawMemo - First in Employment Law.

Also by email.

  • NLRB proposes new form of joint petitions for consent election.

Federal Register notice (02/26/2008)
http://www.lawmemo.com/nlrb/joint_petitions.htm

NLRB is proposing to adopt a new form of consent election, featuring a joint union-employer petition, eliminating a requirement of a showing of interest, not allowing unfair labor practice charges to block the election, and allowing final resolution of disputes to be made by the Regional Director. The Board seeks written comments which must be received on or before March 27, 2008.

    The current proposal for revision of the Board's Rules and Regulations would create a new, voluntary procedure whereby a labor organization and an employer could file jointly a petition for certification consenting to an election. The petition will provide the date on which the parties have agreed for an election, not to exceed 28 days from the date of the filing of the petition, and the place and hours on which the parties have agreed for an election. In addition, the petition will provide a description of the bargaining unit that the parties claim to be appropriate, the payroll period for eligibility to vote in the election, and the full names and addresses of employees eligible to vote in the election. If the petition lacks any necessary information, the Regional Director will so advise the parties and request that the petition be corrected.

    No showing of interest is required to be filed with the petition. If it appears to the Regional Director that the information provided on the petition is accurate and sufficient and that the bargaining unit description is appropriate on its face and not contrary to any statutory provision, the petition will be docketed. Within 3 days of the docketing of the petition, the Regional Director will advise the parties of his/her approval of their request for an election. The parties' agreement as to the date, place, and hours of the election will be approved by the Regional Director, absent extraordinary circumstances.

    Also within 3 days of the docketing of the petition, the Regional Director will send to the employer official NLRB notices, informing employees that the joint petition for certification has been filed and specifying the date, place, and hours of the election. These notices must be posted by the employer in conspicuous places where notices to employees are customarily posted and must remain posted through the election. Failure to post these notices as required shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of Sec.  102.69(a). In addition to these notices, the employer must also post copies of the Board's official Notice of Election in conspicuous places at least 3 full working days prior to 12:01 a.m. of the day of the election, as required under Sec.  103.20 of the Board's Rules and Regulations.

    Any motions to intervene may be filed with the Regional Director in accordance with Sec.  102.65 of the Board's Rules and Regulations, except that any such motion must be filed within 14 days from the docketing of the petition. The Board's traditional intervention policies regarding levels of intervention and the intervenor's corresponding rights to appear on the ballot, seek a different unit either in scope or composition, or insist on a hearing, will be applicable.

    Unfair labor practice charges, including those alleging Section 8(a)(2) or Section 8(a)(5) violations of the National Labor Relations Act, will not serve to block the election or cause the ballots cast in the election to be impounded, but will be handled in conjunction with any post-election proceedings. All election and post-election matters will be resolved with finality by the Regional Director. Except as outlined above, the Board's traditional election rules and policies will apply, including those relating to withdrawal or dismissal of the petition.



LawMemo publishes Employment Law Memo.

NLRB Law Memo 03/07/2008
by Ross Runkel at LawMemo

NLRB Law Memo 03/07/2008
by
LawMemo - First in Employment Law.

Also by email.

NLRB - Staff summarized 8 decisions.

Aircraft Services International, Inc. (6-RC-12497; 352 NLRB No. 23) Pittsburgh, PA Feb. 20, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35223.htm

The Board dismissed the Union’s petition for an election, finding that the Employer, a company that provides aviation-related ground services for various air carriers at the Pittsburgh International Airport, falls within the jurisdiction of the National Mediation Board (NMB) under the Railway Labor Act (RLA) rather than the Board.

            Upon the Board’s June 1983 certification, the Union became the representative of a unit of all non-supervisory employees of the Employer at the Pittsburgh International Airport.  On May 24, 2005, the Region dismissed an unfair labor practice charge filed by the Union against the Employer on the basis that the Board lacked jurisdiction.  The Employer ceased recognizing the Union and terminated the collective-bargaining relationship.  The Union filed an election petition.  At the ensuing hearing, the parties stipulated to the appropriateness of the Union’s amended unit description:  “all full-time and regular part-time fuelers, GSE (ground service equipment) mechanics, tank farm operators, ground handlers and associated leads.”  The Employer, however, asserted that its operations and employees are subject to the RLA and within the jurisdiction of the NMB rather than the Board.  Following the hearing, the Regional Director transferred the proceeding to the Board. 

            On Jan. 13, 2006 the Board requested the NMB to study the record and determine the applicability of the RLA to the Employer.  On May 11, 2006, the NMB issued an opinion finding that the Employer and its employees are subject to the RLA.  Aircraft Services International Group, Inc., 33 NMB 200.

            The Board found that the unit employees provide a variety of airport ground handling or “ramp” services, preventive maintenance and repairs, and fueling services.  Employees must be trained and certified in the policies and procedures of the particular carrier to which they are assigned.  Certifications are maintained through required, on-going training.  Each carrier conducts at least a yearly audit of the Employer’s operations, with the right to access records, observe and interview employees, and examine equipment.  Post-audit reports may require the Employer to take corrective action to ensure continuation of the contract.  Carriers provide the Employer with its schedules which, in turn, affect the scheduling of employees to carry out necessary functions.  A consortium of 11 air carriers leases a fuel tank farm facility and provides all needed equipment and supplies, as well as pays all costs, including wages, for the Employer’s employees to provide fueling services for their aircraft.  The consortium actively participates in the Employer’s tank farm budget process and has final approval over staffing levels there.

            Section 2(2) of the National Labor Relations Act provides that the term “employer” shall not include “any person subject to the Railway Labor Act.”  29 U.S.C. Sec. 152(2).  Similarly Section 2(3) of the NLRA provides that the term “employee” does not include “any individual employed by an employer subject to the Railway Labor Act.”  29 U.S.C. Sec. 152(3).  The RLA applies, inter alia, to “[e]very common carrier by air engaged in interstate or foreign commerce, and . . . every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers subject to its or their continuing authority to supervise and direct the manner or rendition of his service.  45 U.S.C. Sec. 151 First and 181.

            The NMB uses a two-pronged “function and control” test to determine whether it has jurisdiction over an employer that is not a common carrier.  To assert jurisdiction, it must be determined both that:  (1) the work is traditionally performed by employees of air and rail carriers; and (2) a common carrier exercises direct or indirect ownership or control.  The parties stipulated that the Employer satisfied the first prong.  Among the factors found to exist related to the second prong are:  indirect, but substantial, control by carriers over staffing levels and the hours worked by ground service employees; carrier imposition of training requirements and operating procedures; and, with respect to the fueling operations, direct control by the carrier-composed consortium over labor and benefits costs because of its participation the Employer’s budget process.  Thus, finding the second prong has also been satisfied, the Board agreed with the NMB and concluded that the Employer falls under the RLA and within the jurisdiction of the NMB rather than that of the NLRB.

(Members Liebman and Schaumber participated.)

***

Clarke Manufacturing, Inc. (30-CA-17472; 352 NLRB No. 25) Milwaukee, WI Feb. 20, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35225.htm

The Board adopted the administrative law judge’s findings that the Respondent did not violate Section 8(a)(5) and (1) of the Act by prematurely declaring an impasse in bargaining and by unilaterally replacing the United Healthcare plan for its employees with a plan referred to as the Federated Plan #5677.  The Board also adopted the judge’s finding that the Respondent violated Section 8(a)(5) and (1) by submitting, without a tenable explanation, a regressive proposal to eliminate the collective-bargaining agreement’s longstanding union security provision.  The Board, however, found it unnecessary to pass on the judge’s additional finding that the Respondent violated Section 8(a)(5) by submitting a regressive proposal to terminate participation in the Union’s pension fund as any such finding would be cumulative and would not materially affect the remedy.

      In this case, the parties held eight negotiation sessions and the Respondent declared impasse after the sixth meeting. The Respondent made it clear from the beginning of the negotiations that health insurance was a major issue because it needed to reduce its health care costs and therefore, the negotiations hinged on an acceptable insurance policy.  The parties remained deadlocked on the issue of healthcare throughout the negotiations and were unable to overcome their differences.  The Board affirmed the judge’s finding that the parties reached impasse because they were simply unable to resolve the health care issue and any agreements on other issues would not have resolved the impasse.

(Members Liebman and Schaumber participated.)

            Charge filed by Steelworkers Local 2-200; complaint alleged violation of Section 8(a)(1) and (5).  Hearing at Milwaukee on Oct. 25, 2006.  Adm. Law Judge Karl H. Buschmann issued his decision April 10, 2007.

***

Valley Health System, LLC d/b/a Desert Springs Hospital Medical Center (28-CA-20805, et al.; 352 NLRB No. 16) Las Vegas, NV Feb. 19, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35216.htm

The Board adopted the administrative law judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully issuing three disciplinary warnings to Registered Nurse Christina Schofield and unlawfully discharging her because of her protected concerted activities in support of the Union.  The Board also adopted the judge’s dismissal of the allegation that the Respondent unlawfully revoked Schofield’s privilege to park in the physicians’ parking lot.

            In a footnote, Member Schaumber expressed his position that, under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel must show a causal nexus between a Respondent’s union animus and its allegedly unlawful action to establish a prima facie case and shift the rebuttal burden to the Respondent.  Member Schaumber also expressed his position that an employer’s failure to conduct a meaningful investigation of the alleged wrongdoing of an employee who is under scrutiny and the failure to give the employee an opportunity to explain his or her conduct is not necessarily an indication of discriminatory intent.  Rather, such a failure may be evidence of discriminatory intent if it reflects disparate treatment of the individual at issue.  If the employer regularly fails to engage in what the Board considers to be a “meaningful” investigation of employee wrongdoing, then its failure to engage in such an investigation in a particular instance reveals little about discriminatory motive.

(Members Liebman and Schaumber participated.)

            Charges filed by Nevada Service Employees Local 1107; complaint alleged violations of Section 8(a)(3) and (1).  Hearing at Las Vegas, April 17-18, 2007.  Adm. Law Judge Lawrence W. Cullen issued his decision July 12, 2007.

***

Foundation Coal West, Inc. (27-CA-20202, 20295; 352 NLRB No. 22) Gillette, WY Feb. 21, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35222.htm

The Board affirmed the administrative law judge’s findings that the Respondent violated Section 8(a)(1) of the Act by prohibiting employees from distributing union literature in a hallway and violated Section 8(a)(3) by disciplining two employees for distributing union literature there.  In affirming those findings, the Board reasoned that the hallway was a mixed use area in which extensive nonwork activities, such as dining and socializing occurred.

(Members Liebman and Schaumber participated.)

            Charges filed by Mine Workers; complaint alleged violations of Section 8(a)(3) and (1).  Hearing at Gillette, April 18-19, 2007.  Adm. Law Judge John J. McCarrick issued his decision Aug. 30, 2007.

***

Leiferman Enterprises, LLC d/b/a Harmon Auto Glass (18-CA-18134; 352 NLRB No. 24) Minneapolis, MN Feb. 21, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35224.htm

The Board affirmed the administrative law judge’s findings that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Union with requested information about health care contributions, Respondent’s financial condition, and by unilaterally implementing the terms of its final offer.

            The Board reversed the judge and dismissed an allegation that the Respondent had unlawfully refused to furnish the Union with requested information about the Respondent’s merit pay proposal.  Also, the Board reversed the judge and found that the Party in Interest, the Respondent’s State court-appointed receiver, was not the Respondent’s agent and therefore not personally financially liable to remedy the Respondent’s unfair labor practices.

            With respect to the unilateral implementation, the Board found that the Respondent’s unlawful refusals to furnish requested information precluded the finding of a genuine bargaining impasse, that, in any event, the Respondent failed to prove that the parties reached a genuine impasse, and finally that the Respondent failed to prove that its unilateral action was excused by an unforeseen economic exigency.

(Members Liebman and Schaumber participated.)

            Charge filed by Painters District Council 82; complaint alleged violations of Section 8(a)(5) and (1).  Hearing at Minneapolis, Jan. 25-26, 2007.  Adm. Law Judge Jane Vandeventer issued her decision July 20, 2007.

***

Longshoremen Local 10 (20-CD-739; 352 NLRB No. 21) San Francisco, CA Feb. 22, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35221.htm

In this jurisdictional dispute, the Board found reasonable cause to believe that the Respondent, Longshoremen Local 10, violated Section 8(b)(4)(D) of the Act by engaging in proscribed activity with an object of forcing CEMEX Construction Materials, L.P. (the Employer) to assign the work in dispute to workers it represents rather than to the Employer’s own employees represented by Operating Engineers Local 3.

            The work in dispute is the operation of a bucket loader aboard a barge, moored at a commercial pier, to put bulk aggregate rock and sand into a hopper on the barge which then deposits the material onto a conveyor belt that carries it to the Employer’s ready-mix concrete manufacturing plant located on property adjacent to the pier.

      After considering all the relevant factors, the Board concluded that employees represented by Local 3 are entitled to continue performing the work in dispute based on the factors of collective-bargaining agreement, employer preference, and economy and efficiency of operations.

(Members Liebman and Schaumber participated.)

***

The Lorge School (2-CA-37967; 352 NLRB No. 17) New York, NY Feb. 19, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35217.htm

The Board affirmed the administrative law judge’s findings that the Respondent violated Section 8(a)(1) of the Act by discharging supervisor Linda Cooperman because she refused to assist in committing unfair labor practices.  However, the Board did not rely on several pieces of evidence, upon which the judge had relied, to show the Respondent’s animus.

  

      The Board amended the remedy set out by the judge by requiring the Respondent to offer Cooperman reinstatement.  In a footnote, Member Schaumber agreed that extant Board law requires Cooperman’s reinstatement to remedy the Respondent’s unfair labor practice.  However, he questioned the policy that compels Board interference with management decisions regarding high-level supervisors.

(Members Liebman and Schaumber participated.)

            Charge filed by Linda Cooperman, an Individual; complaint alleged violations of Sections 8(a)(1).  Hearing at New York, May 30-31 and June 1 and 13, 2007.  Adm. Law Judge Raymond P. Green issued his decision Aug. 3, 2007.

***

Ralphs Grocery Co. (31-CA-27160 et al.; 352 NLRB No. 18) Los Angeles, CA Feb. 19, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35218.htm

The Board adopted the administrative law judge’s finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide the Unions with information regarding the Respondent’s hiring of unit employees under false names and social security numbers during a lockout.  In rejecting the Respondent’s contention that the Unions’ sole purpose in requesting the information was to support unfair labor practice charges, the Board relied solely upon the fact that the Respondent did not challenge some of the judge’s findings regarding this issue.

            The Board also found that the judge erred in deferring to compliance the Respondent’s contention that an audit conducted by the Respondent’s law firm was within the attorney work-product privilege; the Board then found that the audit information was within the privilege and that a balancing of competing interest supported non-disclosure of the audit information.

(Members Liebman and Schaumber participated.)

            Charges filed by Food and Commercial Workers Locals 135, 324, 770, 1036, 1167, 1428, 1442; complaint alleged violation of Section 8(a)(5).  Hearing at Los Angeles on Feb. 27, 2007.  Adm. Law Judge Lana H. Parke issued her decision June 14, 2007.

LawMemo.Com

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search | Employment Law Memo 
EEOC Info | NLRB Info | Supreme Court | Arbitration | Articles | Law Firms
Employment Law Blog | Arbitration Blog | Employment Law 101 

 

Get your 28 day trial now 

 
Google
 
Web www.LawMemo.com 
This form will search the LawMemo web site. 
It does not include Key Word Search.

 

 

28 day Trial