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NLRB Law Memo 03/28/2008
by Ross Runkel at LawMemo
NLRB Law Memo 03/28/2008
by LawMemo - First in Employment Law.
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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.
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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.
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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.)
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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.)
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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.
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