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NLRB Law Memo 06/02/2008
by Ross Runkel at LawMemo
NLRB Law Memo 06/02/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 7 decisions.
Legal Services of Northern
California (20-CA-32863; 352 NLRB No. 66) Sacramento, CA May 16, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35266.htm
The Board found that the
Respondent violated Section 8(a)(5) of the Act by refusing to provide the
Union with a requested copy of a separation agreement between the Respondent
and employee Kimberly Dovey.
The administrative law judge
rejected the Respondent's argument that the separation agreement was a
confidential document on the grounds that the agreement's confidentiality
provision was binding only on Dovey, and not the Respondent. However,
the judge concluded that the Respondent did not violate the Act by refusing
to produce the separation agreement, finding that the separation agreement's
sole purpose was to settle a potential tort claim between Dovey and the
Respondent.
The Board agreed with the judge's
rejection of the Respondent's confidentiality defense, but reversed the
judge, finding instead that the Respondent violated the Act by refusing to
provide the Union with a copy of the separation agreement. The
Board acknowledged that certain agreements between employees and employers
are outside of the purview of a union's representational role, such as
private tort settlements. The Board found, however, that the
separation agreement was not solely a private agreement between Dovey and
the Respondent because it also served as a waiver of Dovey's rights under
the collective-bargaining agreement. The Board concluded that the separation
agreement was relevant to the Union's role of collective-bargaining
representative and that the Respondent violated Section 8(a)(5) by refusing
to provide it.
(Chairman Schaumber and Member
Liebman participated.)
Charge filed by Northern United Legal Assistance Workers, National
Organization of Legal Services Workers, UAW Local 2320; complaint alleged
violation of Section 8(a)(5) and (1). Case submitted to the Division
of Judges upon a joint motion of the parties seeking a decision based upon a
hearing waiver and formal stipulation of facts signed on April 28, May 25
and 29, 2006. Adm. Law Judge James M. Kennedy issued his decision Aug.
7, 2006.
***
Pennant Foods Co., a Wholly-Owned
Subsidiary of CS Bakery Holdings, Inc., a Wholly-Owned Subsidiary of Chef
Solutions Holdings, LLC (34-CA-11385, et al., and 34-RC-1925; 352 NLRB No.
62) North Haven, CT May 12, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35262.htm
The Board affirmed the
administrative law judge's findings that the Respondent violated Section
8(a)(1) of the Act by: (1) interrogating employees; (2) threatening
employees with loss of employment and closure of the facility if they
selected the Union to represent them; and (3) threatening employees with
loss of benefits if they selected the Union to represent them. The
Board additionally affirmed that the Respondent violated Section 8(a)(3) by:
(1) devising and applying a light duty policy to deny a pro-union employee's
reinstatement; (2) devising and applying a machine operator job description
to deny a pro-union employee's reinstatement; and (3) denying employee Lee
Mabry reinstatement following a workers' compensation leave of absence.
Further, the Board affirmed that the Union was precluded from seeking a
Gissel bargaining order, and that several special remedies were warranted.
Finally, the Board denied the General Counsel's motion to strike
Respondent's exceptions, but noted that it properly considered only
arguments made in the Respondent's brief.
(Chairman Schaumber and Member
Liebman participated.)
Charges filed by Auto Workers;
complaint alleged violations of Section 8(a)(1) and (3). Hearing at
Hartford over 8 days between Oct. 25, 2006 and Jan. 10, 2007. Adm. Law
Judge Michael A. Marcionese issued his decision on Sept. 17, 2007.
***
Al & John Inc., d/b/a Glen
Rock Ham and Noel Echavarria Gonzalez (22-CA-27477; 352 NLRB No. 69)
Paterson, NJ May 22, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35269.htm
The Board adopted the
administrative law judge's finding that the Respondent violated Section
8(a)(3) and (1) of the Act when it discharged employee Noel Echavarria
Gonzalez. In finding the violation, the Board did not rely on all of
the factors cited by the judge. First, the Board found that Echavarria
Gonzalez engaged in union activity by circulating a union petition among
other employees. Second, the Board found that the Respondent had
knowledge of that activity because Plant Manager Jon Udrija observed
Echavarria Gonzalez circulating the petition. Finally, the Board found
that the Respondent's proffered reasons for the discharge were pretextual.
The Respondent had disciplined Echavarria Gonzalez for purported workplace
misconduct on a day that the evidence of record reflects that he did not
work. The Respondent used the discipline as a factor supporting the
discharge. In finding evidence of pretext, the Board explicitly stated
that it did not rely on the judge's findings as to whether the Respondent
failed to act according to a disciplinary policy.
The Board also denied the General Counsel's cross-exception seeking compound
interest computed on a quarterly basis for any backpay awarded. The
Board was not prepared to deviate from its current practice of assessing
simple interest.
No party excepted to the judge's finding that the Respondent did not violate
Section 8(a)(1) by engaging in unlawful surveillance of Echavarria Gonzalez.
(Chairman Schaumber and Member
Liebman participated.)
Charge filed by an Individual; complaint alleged violations of Section
8(a)(3) and (1). Hearing at Newark on Oct. 23 and 30, 2007. Adm.
Law Judge Eleanor MacDonald issued her decision Feb. 13, 2008.
***
Hamilton Sundstrand (33-CA-15303;
352 NLRB No. 65) Rockford, IL May 19, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35265.htm
The Board adopted the finding of
the administrative law judge that the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to provide requested information to the
Union. The Board found that the information requested by the Union in
Nov. 2006 concerning the Respondent's temporary ("yellow badge")
employees was relevant to the Union's policing of the Respondent's
contractual obligation to make an "earnest effort" to find
"non-traditional work" for laid-off unit employees. In
finding that the Union demonstrated the relevance of the requested
information, the Board rejected the Respondent's claim that the Union did
not show that yellow badge work fits within the meaning of
"non-traditional work" under Section 19.5C of the parties'
collective-bargaining agreement. The Board also found that the General
Counsel showed that the relevance of the information should have been, and
was, apparent to the Respondent under the circumstances.
(Chairman Schaumber and Member
Liebman participated.)
Charge filed by Auto Workers (UAW) Local 592; complaint alleged violations
of Section 8(a)(1) and (5). Hearing at Peoria on Nov. 13, 2007.
Adm. Law Judge George Carson II issued his decision Jan. 16, 2008.
***
Mega Force Productions Corp.
(13-CA-44252; 352 NLRB No. 70) Chicago, IL May 23, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35270.htm
The Board issued a Decision and
Order on Feb. 28, 2008, granting the General Counsel's motion for default
judgment on the ground that the Respondent had failed to file an answer to
the complaint or a response to the Notice to Show Cause. 352 NLRB No.
27 (2008). The Board granted the Respondent's motion to vacate default
judgment and for leave to file its appearance and answer to the complaint,
and found that the documents in this case were inadvertently sent to an
incorrect address. Accordingly, the Board vacated its prior Decision
and Order and remanded the proceeding to the Regional Director for further
processing consistent with its Order.
(Chairman Schaumber and Member
Liebman participated.)
Charge filed by an Individual; complaint alleged violation of Section
8(a)(1). The Board issued Decision and Order granting motion for
default judgment on Feb. 28, 2008.
***
Wheeling Brake Block Mfg. Co. and
Wheeling Brake Band & Friction Mfg. Co. (8-CA-34764, 35543; 352 NLRB No.
67) Bridgeport, OH May 23, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35267.htm
The Board adopted the findings of
the administrative law judge that Respondent Wheeling Brake Block Mfg. Co.
violated Section 8(a)(1) of the Act by telling employees that it was going
to get rid of the Union and replace it with a union that it controlled,
soliciting employees to assist in getting rid of the Union so that other
employees would more readily accept the loss of the Union, implicitly or
explicitly promising employees that by opposing the Union the employee would
be recalled from layoff, and maintaining and enforcing an overly broad
prohibition on union activity on its premises; Section 8(a)(3) and (1) by
laying off and failing to recall employees for supporting the Union; and
Section 8(a)(5) and (1) by repudiating the collective-bargaining agreement,
including its seniority, pension contribution, and dues checkoff provisions,
and refusing to recognize and bargain a successor collective-bargaining
agreement with the Union. In his supplemental decision, the judge
found that Wheeling Brake Block Mfg. Co. was properly a respondent in this
case, rejecting that entity's contention that it shut down or went out of
business in 1999 and that Wheeling Brake Band & Friction Mfg. Co. was
the sole surviving employing entity. Wheeling Brake Block Mfg. Co. did
not file exceptions to the judge's supplemental decision.
Because the General Counsel did
not issue and serve an amended complaint on Wheeling Brake Band &
Friction Mfg. Co., the Board, "out of an abundance of caution" did
not "at this time" pass on whether Wheeling Brake Band &
Friction Mfg. Co. is liable as a single employer with Wheeling Brake Block
Mfg. Co. for the unfair labor practices found in this case. The Board
stated, however, that the General Counsel may plead and litigate the
question of Wheeling Brake Band & Friction Mfg. Co.'s derivative
liability during the compliance stage of this proceeding.
(Chairman Schaumber and Member
Liebman participated.)
Charges filed by Retail, Wholesale and Department Store Union, Local 379 and
Food and Commercial Workers; complaint alleged violations of Section
8(a)(1), (3), and (5). Hearing at St. Clairsville, Nov. 16, 2005;
Supplemental Hearing at Steubenville, March 14, 2007. Adm. Law Judge
David I. Goldman issued his decision Dec. 9, 2005 and his Supplemental
Decision May 31, 2007.
***
Windstream Corp. (6-CA-35483; 352
NLRB No. 68) Meadville, PA May 23, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35268.htm
The Board affirmed the
administrative law judge's findings, to which no party excepted, that the
Respondent violated Section 8(a)(1) of the Act by promulgating and
maintaining a policy prohibiting employees from discussing their
compensation, benefits, and personnel records or information with others.
The Board granted the General Counsel and Charging Party's exceptions to the
judge's failure to require the Respondent to post the Board's standard
remedial notice, and the Board modified the Order accordingly. The
Board also ordered the Respondent to post the notice on its intranet and
transmit it to employees via e-mail, consistent with the Board's adoption of
the judge's finding in Windstream Corp., 352 NLRB No. 9 (2008), that the
Respondent regularly communicates its employment policies to employees
through e-mail.
Chairman Schaumber agreed to the Order based on the particular circumstances
of this case, noting the absence of exceptions to the judge's finding in the
earlier Windstream case discussed above or to the judge's instruction in the
instant case that the Respondent communicate its rule modification to
employees electronically.
(Chairman Schaumber and Member
Liebman participated.)
Charge filed by Electrical Workers IBEW on behalf of its affiliated Locals
463, 1189, 1507, 1929, 2089, and 2374; complaint alleged violations of
Section 8(a)(1). Hearing at Pittsburgh, June 5, 2007. Adm. Law
Judge Wallace H. Nations issued his decision Aug. 9, 2007.
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