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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 free weekly 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.
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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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