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NLRB Law Memo 05/20/2008
by Ross Runkel at LawMemo
NLRB Law Memo 05/20/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 2 decisions.
CNN America,
Inc. and Team Video Services, LLC, Joint Employers (5-CA-31828, 33125; 352
NLRB No. 64) Washington, D.C. May 9, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35264.htm
The
administrative law judge ruled, during the hearing, that (1) the Respondent
must produce documents subpoenaed by the General Counsel except to the
extent that he specifically rules otherwise or defers making a decision on
particular issues; and (2) the Respondent must produce certain documents
listed on the Respondent's privilege and redaction logs for in camera
inspection. The Board granted
the General Counsel's motion to bifurcate consideration of issues concerning
privilege; denied the General Counsel's motion to bifurcate consideration of
issues concerning payroll records requested by the General Counsel's
subpoena; denied the Respondent's motion to strike the General Counsel's
motion; granted the Respondent special permission to appeal the judge's
denial of its petition to revoke the subpoena concerning the documents
listed on privilege and redaction logs; denied the Respondent's special
appeal on the merits, finding that in camera examination of documents to
evaluate claims of privilege is a proper exercise of the judge's authority;
and ordered the Respondent to produce those documents to the judge for in
camera inspection. Accordingly,
the Board remanded the proceeding to the judge for further action consistent
with its order.
(Chairman
Schaumber and Member Liebman participated.)
***
New York
Newspaper Printing Pressmen's Union No. 2 (New York Times Co.)
(2-CB-20454-E; 352 NLRB No. 63) New York, NY May 9, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35263.htm
The Board
(Chairman Schaumber and Member Liebman) adopted the administrative law
judge's recommended Order and denied the application of the Applicant, New
York Newspaper Printing Pressmen's Union No. 2, for attorney's fees and
expenses under the Equal Access to Justice Act (EAJA). In denying the application, the Board agreed with the judge that the
Applicant was not a "prevailing party" either under Buckhannon
Board & Care Home, Inc. v. West Virginia Dept. of Health and Human
Resources, 532 U.S. 598 (2001), or under Board precedent prior to
Buckhannon, and it was on this basis that the Board adopted the judge's
recommended Order and dismissed the EAJA application. In dismissing the application, Chairman Schaumber also relied on the
judge's finding that the Applicant did not meet its burden of establishing
that it was financially eligible for an EAJA award.
(Chairman
Schaumber and Member Liebman participated.)
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NLRB Law Memo 05/12/2008
by Ross Runkel at LawMemo
NLRB Law Memo 05/12/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 8 decisions.
Bashas'
Inc., d/b/a Bashas', Food City, and AJ's Fine Foods (28-CA-21048, et al.;
352 NLRB No. 56) Chandler, AZ April 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35256.htm
The
Board adopted the administrative law judge's finding that Section 10(b) of
the Act time bar precluded consideration of the complaint allegation that
the Respondent made improper unilateral changes to employee health benefits.
Applying Redd-I, 290 NLRB 1115 (1988), the Board found that the
General Counsel's unilateral change allegation was not factually related to
its withdrawal of recognition allegation, and that the Respondent did not
assert similar defenses to the two allegations.
The Board found it unnecessary to pass on whether the legal theories
of the two allegations were related under Redd-I. The Board also found it unnecessary to pass on the judge's finding
that the Respondent's direct dealing with employees about transfers from two
closing stores was lawful due to past practice. The Board found that, under the particular circumstances of this
case, a finding of direct dealing would not materially alter the remedy.
The Respondent was already required to bargain over the effects of
its decision to close two stores.
The Respondent did not except to the judge's findings that the
Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from
the Union, by unilaterally introducing the U-Scan self-service registers,
and by failing to bargain with the Union about the effects of its decision
to close two stores.
(Chairman
Schaumber and Member Liebman participated.)
Charges filed by Food and Commercial Workers Local 99; complaint
alleged violations of Section 8(a)(5) and (1). Hearing at Phoenix on July 24-26, 2007.
Adm. Law Judge William G. Kocol issued his decision Oct. 10, 2007.
***
Crowne
Plaza Hotel (3-CA-25953; 352 NLRB No. 55) Rochester, NY April 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35255.htm
The
Board granted in part and denied in part the General Counsel's motion for
summary judgment on the complaint allegations that several rules in the
Respondent's employee handbook violate Section 8(a)(1) of the Act. The rules found unlawful address the following kinds of employee
activity: solicitation and
distribution, supplying statements or information to the press, leaving work
area without authorization, walking off the job, and "insightful"
(i.e., inciteful) actions. The
rules found lawful address the following employee activity: off-duty use of hotel facilities and discussing company business or
work difficulties in front of guest.
(Chairman
Schaumber and Member Liebman participated.)
Charge filed by Unite HERE Rochester Regional Joint Board; complaint
alleged violation of Section 8(a)(1). General
Counsel filed motion for summary judgment Dec 27, 2006.
***
Essex
Valley Visiting Nurses Assn. and New Community Corp. and New Community
Health Care, Inc. (22-CA-24770; 352 NLRB No. 61) East Orange, NJ April 30,
2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35261.htm
The
Board adopted the administrative law judge's supplemental decision, finding
that the employees at issue made reasonable efforts to mitigate their losses
during the backpay period and that the judge properly denied the
Respondents' motion to dismiss the compliance specification in its entirety.
The Board also found that the judge properly concluded that the named
Respondents constituted a single employer under Board law. In adopting the judge's decision in this regard, the Board approved
the judge's decision to draw certain adverse inferences consistent with the
Board's decision in Bannon Mills, Inc., 146 NLRB 611 (1964). In approving the judge's application of adverse inferences,
Chairman Schaumber distinguished the instant case from McAllister Towing
& Transportation Co., 341 NLRB 394 (2004), a case in which he dissented
in relevant part.
(Chairman
Schaumber and Member Liebman participated.)
Charge filed by Health Professional and Allied Employees Local 5122;
complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark, Oct. 11 and 20, 2006.
Adm. Law Judge Mindy E. Landow issued her supplemental
decision Jan. 19, 2007.
***
Frye
Electric, Inc. (25-CA-30270; 352 NLRB No. 53) Indianapolis, IN April 28,
2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35253.htm
The
Board adopted the administrative law judge's finding that the Respondent
violated Section 8(a)(3) and (1) of the Act by discriminatorily discharging
employees Thomas Fosnight and Dennis Hensley because of their protected
union activities. The Board
dismissed an allegation that the Respondent violated Section 8(a)(1) by
interrogating employees, finding that the record was unclear as to whether
the Respondent's statement to an employee was an inquiry that amounted to an
interrogation.
(Chairman
Schaumber and Member Liebman participated.)
Charge filed by Electrical Workers IBEW Local 481; complaint alleged
violation of Section 8(a)(1) and (3). Hearing
at Indianapolis on July 23, 2007. Adm.
Law Judge Paul Buxbaum issued his decision Oct. 19, 2007.
***
Gelita
USA Inc. (18-CA-18406, 18-RC-17500; 352 NLRB No. 59) Sergeant Bluff, IA
April 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35259.htm
The
Board adopted the findings of the administrative law judge that the
Respondent, Gelita USA Inc., violated Section 8(a)(1) of the Act by
threatening employees that they would receive no job protection if they
engaged in an economic strike on behalf of the Union, interrogating
employees about their union sympathies, and promising to remedy a staffing
problem in its laboratory if employees would abandon their pursuit of Union
representation. The Board also
adopted the judge's finding that the Respondent violated Section 8(a)(3) and
(1) by accelerating the termination date of employee Heidi Young because of
her protected activity.
The Board sustained the Union's objections to a representation
election held at the Respondent's facility on May 31, 2007, which were
coextensive with the unfair labor practice charges. The Board further directed that Young's ballot be opened and counted,
and remanded Case 18-RC-17500 to the Regional Director for action consistent
with its Direction.
(Chairman
Schaumber and Member Liebman participated.)
***
Metro Mayaguez, Inc., d/b/a Hospital Pavia Perea (24-CA-10505; 352 NLRB No. 60)
Mayaguez, PR April 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35260.htm
The
Board adopted the administrative law judge's findings that the Respondent
violated Section 8(a)(1) and (5) of the Act by implementing unilateral
changes in employees' terms and conditions of employment. The Board adopted the judge's finding that the Respondent was a
"perfectly clear" successor. It found no merit to the Respondent's contention that to constitute a
"perfectly clear" successor, an employer must hire all of the
former employees. The Board
noted that the parties stipulated that the Respondent employed a majority of
the former employees when it assumed operations and did not inform employees
of an intention to set initial terms and conditions of employment. The Board also adopted the judge's finding that the Respondent
violated Section 8(a)(1) by promulgating and maintaining an overly broad
no-solicitation/no-distribution rule.
(Chairman
Schaumber and Member Liebman participated.)
Charge filed by Unidad Laboral De Enfermeras (OS) Y Empleados De La
Salud; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Mayaguez on Dec. 29, 2006.
Adm. Law Judge William N. Cates issued his decision April 30, 2007.
***
Machinists
District Lodge 776 (16-CD-153; 352 NLRB No. 57) Fort Worth, TX April 30,
2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35257.htm
This
case involves a jurisdictional dispute under Section 10(k) of the Act and
awards the work in dispute to employees of the Lockhead Martin Aeronautics
Co. represented by Machinists District Lodge 776 ("IAM") rather
than Electrical Workers IBEW Local 20. The work in dispute concerns "[t]he maintenance on two, 20-ton
air conditioning units in Building 8, Bay 2 data center at the Employer's
Fort Worth, Texas facility." The Board awarded the work in dispute to
the employees represented by the IAM based on the factors of employer
preference, current assignment, and past practice.
(Chairman
Schaumber and Member Liebman participated.)
***
Operating
Engineers Local 150 (33-CB-4215; 352 NLRB No. 54) Pontiac, IL April 30,
2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35254.htm
The
Board found that the Respondent Union, in dispatching a member to a
worksite, violated Section 8(b)(1)(A) and (b)(2) of the Act, and its duty of
fair representation, by departing from the nondiscriminatory referral
procedure established in its collective-bargaining agreement. The Board agreed with the administrative law judge that the Union's
business agent, on the basis of his own subjective opinion of who should be
referred, insisted on referring a particular member when other qualified
members were listed ahead of that applicant on the Union's out-of-work list.
Because this was contrary to the Union's referral criteria,
and the departure was not necessary for the Union's effective performance of
its representational duties, the business agent's action was unlawful.
(Chairman
Schaumber and Member Liebman participated.)
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
