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NLRB Law Memo 06/11/2008
by Ross Runkel at LawMemo
NLRB Law Memo 06/11/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 14 decisions.
Air
Climate Systems, Inc. and All Climate Systems, Inc. (30-CA-17695; 352 NLRB
No. 75) Janesville, WI May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35275.htm
The
Board, granting the General Counsel's motion for default judgment, found
that the Respondents (Air Climate Systems, Inc. and All Climate Systems,
Inc.) were alter egos and a single employer and that the Respondents
violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from
the Union, by failing to apply two collective-bargaining agreements, and by
failing to provide information requested by the Union. The Respondents filed the answer 1 day late and offered no
explanation for the late filing. The
Board issued an order inviting the Respondents to file a response explaining
the late filing of the answer. The
Respondents filed the response late and offered no explanation for the late
filing of the response. The
response explained the late filing of the answer by stating that, on the day
the answer was due, Respondents' counsel was delayed in returning to his
office from a hearing. The
Board, applying Section 102.111(c) of the Board's Rules whereby a document
may be filed late "only upon good cause shown based on excusable
neglect," rejected the response as untimely filed. The Board further found that the Respondents' explanation for the
late filing of the answer set forth in the response showed only counsel
inattention and noted that the Board has consistently rejected counsel
inattention as an excuse for the late filing of an answer.
Chairman
Schaumber noted that, as explained in his dissent in Patrician Assisted
Living Facility, 339 NLRB 1153, 1156-1161 (2003), he would give weight to
additional factors in deciding whether to grant a default judgment motion
based on a late-filed answer. However,
he also noted that his view is not current Board law and that the additional
factors were outweighed here by the weakness of the excuse for the late
filing of the answer and by the late filing of the response.
(Chairman
Schaumber and Member Liebman participated.)
***
Allied
Mechanical Services, Inc. (7-CA-40907, 41390; 352 NLRB No. 83) Kalamazoo, MI
May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35283.htm
The
Board denied the Respondent's motion for reconsideration of the Board's
Sept. 28, 2007 supplemental decision and order (351 NLRB No. 5). In that decision, the Board granted the General Counsel's and
Union's motions for reconsideration and found that the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing recognition from Plumbers
Local 357, revising its job application procedure without notice to Local
357, and failing to provide a response to Local 357's information request.
In
its motion for reconsideration, the Respondent contended that the Board
erred in retroactively applying its decision in Raymond F. Kravis Center for
the Performing Arts, 351 NLRB No. 19 (2007). In Kravis, the Board overruled the "due process" standard
for union mergers and held that, following a union merger or affiliation, an
employer's obligation to recognize and bargain with the union continues
regardless of whether the union members were provided an opportunity to vote
on the merger or affiliation. The
Respondent also contended that the Board erred in finding that the parties
had a Section 9(a) relationship and in ordering the Respondent to recognize
and bargain with the Union. Additionally,
the Respondent argued that the Board should remand the case to the judge to
apply the Board's decision in Toering Electric Co., 351 NLRB No. 18 (2007).
The
Board found that the Respondent's motion failed to present extraordinary
circumstances warranting reconsideration. In finding its application of Kravis proper, the Board found that the
Respondent could not have relied on the due process standard overruled by
Kravis as well settled when it withdrew recognition of the union, because
the Supreme Court's earlier decision in NLRB v. Financial Institution
Employees (Seattle-First National Bank), 475 U.S. 192 (1986), cast grave
uncertainty on that standard. The
Board also found that retroactive application of Kravis would further the
purposes of the Act and that no particular injustice would arise from its
retroactive application.
Regarding
the parties' bargaining relationship, the Board found no basis to reconsider
its finding that the parties' 1991 settlement agreement demonstrated that
the parties had established a 9(a) relationship. That settlement agreement resolved a complaint that sought a Gissel
bargaining order and alleged that the Respondent had committed numerous
violations of Section 8(a)(1) and (3). The Board noted that the settlement agreement's language, which
required the Respondent to recognize and, upon request, bargain with the
Union and embody in a signed collective-bargaining agreement any
understanding reached, replicated the language of the complaint, which
clearly contemplated a 9(a) relationship.
The
Board also found no basis to reconsider its separate finding that the
Board's prior decision in Allied Mechanical Services, 332 NLRB 1600 (2001),
was necessarily premised on the existence of a 9(a) relationship and barred
the Respondent, under the principles of collateral estoppel, from
relitigating whether the parties had a 9(a) bargaining relationship. The Board rejected the Respondent's contention that the question of
whether the parties' relationship was governed by 8(f) or 9(a) was not
actually litigated in that case.
Finally,
the Board denied the Respondent's motion to remand the case to the judge to
apply Toering Electric. The
Board found that the motion in this regard was untimely, because it
concerned a portion of the case that the Board had decided in 2004. Additionally, the Board found the motion without merit, because the
Board's supplemental decision and order in this case issued before Toering
was decided and, thus, did not fall within the ambit of the cases to which
Toering applied.
(Chairman
Schaumber and Member Liebman participated.)
***
American
Standard (8-CA-33352, et al.; 352 NLRB No. 80) Tiffin, OH May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35280.htm
The
Board adopted the administrative law judge's findings that the Respondent
committed numerous unfair labor practices during and after the parties'
bargaining for a successor collective-bargaining agreement in April 2002.
The major issue was whether the parties reached a successor agreement
in the late hours of April 30 and the early morning hours of May 1. The Board adopted the judge's finding that the parties had not
reached agreement or impasse, and that consequently the Respondent violated
Section 8(a)(5) by abandoning negotiations. The Board concluded that the
parties had agreed to continue negotiating over outstanding noneconomic
issues and in fact did so in the early morning of May 1 after the private
mediator employed by the parties had gone to bed. Thus, the Board found it unnecessary to reach the issue of whether
the judge erred in excluding the parties from introducing evidence involving
the private mediator that the Respondent contended would establish that the
parties reached agreement because the parties' subsequent conduct during the
early hours of May 1-when the mediator was not present-established that
there was no "meeting of the minds" on a successor agreement.
The
Board rejected the General Counsel's request for extraordinary remedies,
agreeing with the judge that its traditional remedies were sufficient to
address the unfair labor practices found. The Board also rejected the Respondent's argument that it had already
remedied several violations as part of a set-aside settlement agreement.
The Board concluded that because the settlement had subsequently been
set aside, the notices posted pursuant thereto had no effect and a new
posting was appropriate.
(Chairman
Schaumber and Member Liebman participated.)
Charges
filed by Glass, Molders, Pottery and Plastics Workers Local 7A; complaint
alleged violation of Section 8(a)(1), (3), and (5). Hearing at Tiffin on 22 days between July 23, 2003 and Sept. 29,
2005. Adm. Law Judge Jane
Vandeventer issued her decision Sept. 18, 2006.
***
Baptista's
Bakery, Inc. (30-CA-17104, 17268, 30-RC-6604; 352 NLRB No. 72) Franklin, WI
May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35272.htm
The
Board reversed the administrative law judge's finding that the Respondent
violated Section 8(a)(3) and (1) of the Act under a "mass layoff"
theory by laying off five employees in order to discourage union activity.
Applying Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board found that
even assuming the General Counsel proved that antiunion animus was a
motivating factor in the layoffs, the Respondent proved that it would have
implemented the layoffs for economic reasons even in the absence of union
activity. The Board observed
that at the time of the layoffs, the Respondent was entering its seasonal
slow period with an increased workforce due to a prior expansion, that the
expansion had been undertaken largely to accommodate anticipated business
from two major customers, and that sales of those customers' products were
not meeting expectations. Having
found that the layoffs were not unlawful, the Board sustained the
Respondent's challenges to ballots cast by three of the alleged
discriminatees.
The
Board adopted the judge's finding that the Respondent did not violate
Section 8(a)(3) and (1) by laying off employee Kathi Szuszka. The Board agreed with the judge that Szuszka was not laid off.
The
Board found it unnecessary to pass on whether the Respondent violated
Section 8(a)(1) by giving employees free jackets in order to discourage
support for the Union. The
Board found that the additional violation would be cumulative, because the
judge had found that the Respondent violated Section 8(a)(1) by providing
other benefits to employees, and the Respondent did not except to those
findings.
In
the absence of exceptions, the Board affirmed the judge's findings that the
Respondent committed various violations of Section 8(a)(1) and affirmed the
judge's dismissal of certain other Section 8(a)(1) allegations. The Board also adopted the judge's recommendation for a second
election based on objectionable conduct by the Respondent.
(Chairman
Schaumber and Member Liebman participated.)
Charges
filed by Teamsters Local 344; complaint alleged violations of Section
8(a)(1) and (3). Hearing at
Milwaukee, Feb. 21-24, April 3-7, and May 23-25, 2006. Adm. Law Judge Mark D. Rubin issued his decision Dec. 22, 2006.
***
Bashas',
Inc. (28-CA-21435, et al.; 352 NLRB No. 82) Phoenix, AZ May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35282.htm
The
Board granted the General Counsel's request for special permission to appeal
from the administrative law judge's ruling that the General Counsel must
furnish the Respondent's counsel with the names of witnesses whom the
General Counsel intends to call at the hearing, and reversed the judge's
ruling. The Board
reasoned that by ordering the General Counsel to provide a list of witnesses
in advance of their testimony, the judge effectively established a procedure
for discovery, and that no provision of the Act or the Board's Rules and
Regulations authorizes an administrative law judge to authorize discovery.
The Board noted that the General Counsel voluntarily agreed
to provide advance notice of the dates on which current employees or
managers of the Respondent, who are under subpoena, will be called, found
that such voluntary agreements can aid in the efficient administration of
the Act. The Board further
noted that there was no indication that the Respondent demonstrated a need
for an advance witness list that could not have been met by alternative measures, e.g., granting a continuance after the
General Counsel's witnesses have testified.
(Chairman
Schaumber and Member Liebman participated.)
***
MJ
Mueller, LLC d/b/a Benjamin Franklin Plumbing (18-CA-18216, et al.; 352 NLRB
No. 71) North Branch, MN May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35271.htm
The
Board adopted the administrative law judge's findings that the Respondent
violated Section 8(a)(1) of the Act by discharging employees Donald Doty and
Steven LaMont in retaliation for their protected activity in furtherance of
a pay dispute with the Respondent. In
the absence of exceptions, the Board further adopted the judge's other
findings that the Respondent violated Section 8(a)(1) and (5).
Charges
filed by Plumbers Local 34; complaint alleged violations of Section 8(a)(1),
(3), and (5). Hearing at
Minneapolis on Oct. 16, 2007. Adm. Law Judge David I. Goldman issued his decision Dec. 28,
2007.
(Chairman
Schaumber and Member Liebman participated.)
***
CNN
America, Inc. and Team Video Services, LLC, Joint Employees (5-CA-31828,
33125 (formerly 2-CA-36129); 352 NLRB No. 85) Washington, DC May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35285.htm
The
administrative law judge ruled, during the hearing, that (1) the Respondent
must produce documents subpoenaed by the General Counsel and the Charging
Party except to the extent that he specifically rules otherwise or defers
making a decision on particular issues; and (2) the Respondent is not
required to disclose confidential sources but must otherwise produce
requested documents that the Respondent argues are subject to a reporter's
privilege against disclosure.
The
Board granted the Respondent special permission to appeal the judge's denial
of its petition to revoke the subpoenas. The Board found, without reaching the merits of the Respondent's
arguments that the subpoena requests are unduly burdensome, that the costs
and burden of producing the vast number of documents requested in electronic
format should be balanced against the relevance of and need for the
documents. The Board directed
the chief administrative law judge to assign a separate administrative law
judge to act as a special master and analyze these issues using the
framework provided in a document called The Sedona Principles: Best Practices, Recommendations & Principles for Addressing
Electronic Document Production, Second Edition (The Sedona Conference
Working Group Series, 2007).
Regarding
the Respondent's claim of a reporter's privilege, the Board denied the
Respondent's special appeal on the merits, finding that even assuming,
without deciding, that the privilege applies, the General Counsel can
overcome the privilege under the balancing test urged by the Respondent
(whether the information sought can be obtained from alternative sources,
whether the information is crucial to establishing the claim, and whether
the need for the information outweighs the interest in protecting the
substance of the reporter's newsgathering). Accordingly, the Board remanded the proceeding to the chief
administrative law judge for assignment of an administrative law judge to
act as a special master to resolve the issues described above concerning the
subpoenas.
(Chairman
Schaumber and Member Liebman participated.)
***
Dickens,
Inc. (29-CA-28229; 352 NLRB No. 84) Commack, NY May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35284.htm
The
Board adopted the administrative law judge's findings that the Respondent
violated Section 8(a)(1) of the Act by ordering, instructing and requesting
its employees to refrain from discussing bonuses with other employees, and
by terminating Wenqing Lin for engaging in the protected concerted activity
of requesting an increase in bonus rates. Although the judge's finding that Respondent violated Section 8(a)(1)
by instructing its employees not to discuss their bonuses with other
employees was based on an unalleged violation, the Board found that the
violation was related to the complaint.
Chairman
Schaumber recognized that the finding of a violation was consistent with
extant Board law, which he applied for institutional reasons for the purpose
of deciding this case. Member
Liebman found that the unalleged violation was closely connected to the
subject matter of the complaint and was fully litigated.
(Chairman
Schaumber and Member Liebman participated.)
Charge
filed by an individual; complaint alleged violations of Section 8(a)(1).
Hearing at Brooklyn, Aug. 20-21, 2007. Adm. Law Judge Steven Fish issued his decision Dec. 4, 2007.
***
Engineered
Steel Concepts, Inc. and ESC Group Limited, Alter Egos (13-CA-43235; 352
NLRB No. 73) East Chicago, IN May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35273.htm
The
Board adopted the administrative law judge's findings that Respondent ESC
Group Limited was the alter ego of Respondent Engineered Steel Concepts,
Inc., that the Respondents and the Union had a Section 9(a) bargaining
relationship, and that the Respondents violated Section 8(a)(1) of the Act
by conditioning job offers to employees upon their working for a nonunion
company without union wages and benefits; violated Section 8(a)(3) and (5)
by laying off and subsequently terminating employees Wagner, Roop, and
Miletich; and violated Section 8(a)(5) by failing and refusing to recognize
and bargain collectively with the Union by refusing to apply the terms and
conditions of their collective-bargaining agreement, including wage rates,
fringe benefit fund contributions, and hiring hall provisions and by
abrogating the agreement including the subcontracting of bargaining unit
work.
In
adopting the judge's finding that the parties' relationship was governed by
Section 9(a) rather than Section 8(f), the Board noted that the threshold
question in determining the applicability of Section 8(f) is whether the
employer is engaged primarily in the building and construction industry and
that the burden of establishing that status lies with the party seeking to
avail itself of the Section 8(f) statutory exception. The Board found that
the Respondents, which were engaged principally in hauling steel byproduct
between steel mills did not meet that burden because they failed to show
that they were engaged primarily in the building and construction industry.
(Chairman
Schaumber and Member Liebman participated.)
Charge
filed by Teamsters Local 142; complaint alleged violations of Section
8(a)(1), (3), and (5). Hearing
at Chicago, Feb. 12-13, 2007. Adm.
Law Judge Eric M. Fine issued his decision July 3, 2007.
***
Fresenius
USA Mfg., Inc. (2-RC-23145; 352 NLRB No. 86) Chester, NY May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35286.htm
The
Board, reversing the administrative law judge, set aside the election of
Nov. 3, 2006, and directed that a new election be held. The tally of ballots showed 9 votes for and 7 against the Petitioner,
Teamsters Local 445.
Two
units of employees voted in this election (units A and B). Unit A voted with green ballots and unit B with yellow ballots.
The Board agent, who was colorblind, incorrectly identified a ballot
during the preelection conference. During
the election, although the party observers identified the color ballot
voters should receive, the Board agent also incorrectly identified a ballot.
During the ballot count, the Board agent required that the Employer
stand 6 to 8 feet away from the counting table, failed to display ballot
markings, and refused the Employer's request to examine ballots. These actions prevented the Employer from seeing any ballot markings.
Additionally, the Board agent took counted ballots home without
securing them against any tampering, mishandling, or damage.
Applying
the standard set forth in Polymers, Inc., 174 NLRB 282 (1969), enfd. 414
F.2d 999 (2d Cir. 1969), cert. denied 396 U.S. 1010 (1970), the Board found
that the cumulative effect of these irregularities raised a reasonable doubt
as to the fairness and validity of the election. The Board noted that "election procedures are designed to ensure
both parties an opportunity to monitor the conduct of the election, ballot
count, and determinative challenge procedure." Paprikas Fono, 273 NLRB 1326, 1328 (1984).
The Board found that the Board agent prevented the Employer from
verifying the accuracy of his count and interpretation of voter intent.
Additionally, the Board found that the agent's conduct after the
count prevented the Board from saying with confidence that ballots remained
in the identical condition as during the count. Finally, the Board found that the agent's two mistakes in ballot
identification cast further doubt on the fairness and validity of the
election.
(Chairman
Schaumber and Member Liebman participated.)
***
Medco
Health Solutions of Spokane, Inc. (19-CA-30143; 352 NLRB No. 78) Liberty
Lake, WA May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35278.htm
The
Board found that Section 8(a)(1) of the Act - refusal to furnish information
and 8(a)(5) refusal to bargain allegations were not deferrable to
arbitration and remanded the case to the administrative law judge for a full
hearing on the merits.
The
case arose when the Respondent announced and implemented new performance
standards and discipline structures for employees in its pharmacist and
pharmacy units, but allegedly failed and refused to furnish information
about the standards and structures when requested by the Union. The information was relevant to the Union's requests for bargaining
and its determination whether to grieve the performance standards and
discipline structures. The judge found that the 8(a)(5) allegation was arbitrable
because the management rights provisions of the applicable
collective-bargaining agreements addressed performance standards. He found that the 8(a)(1) allegation also was arbitrable based
loosely on the language of the agreements' recognition clauses and because
the Respondent agreed not to challenge timeliness in an arbitration
proceeding.
Citing
Team Clean, Inc., 348 NLRB No. 86 (2006), in which the Board reaffirmed its
commitment to a policy against deferring information allegations, the Board
found that the 8(a)(1) allegations should not have been deferred. (Chairman Schaumber dissented in Team Clean, but concurred in
applying it here for institutional reasons.) Further, because the 8(a)(5) refusal to bargain allegations are
inextricably related to the nondeferrable 8(a)(1) allegations, the Board
found that they were not deferrable.
(Chairman
Schaumber and Member Liebman participated.)
Charge
filed by Steelworkers Local 12-369; complaint alleged violation of
Section
8(a)(1) and (5). Hearing at
Spokane on Aug. 22, 2006. Adm.
Law Judge William G. Kocol issued his decision Sept. 12, 2006.
***
Operating
Engineers Local 825 (22-CD-765; 352 NLRB No. 77) Newark, NJ May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35277.htm
The
Board, in this jurisdictional dispute, concluded that Market Halsey
employees are entitled to continue performing the work in dispute. The work constituted "the operation of freight elevators at the
Morgan Stanley construction project located at 165 Halsey Street, Newark,
New Jersey." The employer
is Structure Tone, Inc. Market
Halsey is a party in interest.
In
finding that the dispute was properly before the Board pursuant to Section
10(k), the Board found that there were competing claims to the disputed work
and the parties did not have an agreed-upon method for voluntary adjustment
of the dispute. In finding that
Local 825 engaged in proscribed activity, the Board noted that this case was
atypical because Local 825 directed its picketing at Structure Tone rather
than Market Halsey, the party that employed the employee who performed the
work in dispute. The Board
nevertheless found Section 8(b)(4)(D) applicable because it is intended to
"protect not only employers whose work is in dispute from such
[proscribed] activity, but any employer against whom a union acts with such
a purpose." Plumbers Local
195 (Gulf Oil), 275 NLRB 484, 485 (1985).
Having
found that the dispute was properly before the Board for determination, the
Board considered all the relevant factors and awarded the work to Market
Halsey employees. Although the
factor of collective-bargaining agreements favored awarding the work to
employees represented by Local 825, the Board found that this factor was
outweighed by the factors of employer preference and economy and efficiency
of operations. In doing so, the
Board found that the factors of certifications, employer past practice, area
practice, relative skills and training, and Joint Board determinations did
not favor awarding the work to either group of employees.
(Chairman
Schaumber and Member Liebman participated.)
***
Napa
Ambulance Service, Inc., d/b/a Piner's Napa Ambulance Service (20-CA-32875;
352
NLRB No. 74) Napa, CA May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35274.htm
The
Board adopted the administrative law judge's finding that the Respondent
violated Section 8(a)(3) and (1) of the Act by issuing an employee a written
warning because of her Union activities and because the Respondent equated
union talk with activities prohibited by federal law. In addition, the Board adopted the judge's findings that the
Respondent did not violate Section 8(a)(3) and (1) by issuing an employee a
warning for loud nonwork-related conversations and by terminating an
employee for abandoning her shift and being dishonest.
(Chairman
Schaumber and Member Liebman participated.)
Charge
filed by an individual; complaint alleged violations of Section 8(a)(1) and
(3). Hearing at San Francisco,
Aug. 14-18, 2006. Adm. Law Judge James M. Kennedy issued his decision Dec. 20,
2006.
***
Trump
Plaza Associates d/b/a Trump Plaza Hotel and Casino (4-RC-21263; 352 NLRB
No. 76) Atlantic City, NJ May 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35276.htm
The
Board affirmed the administrative law judge's overruling of the Employer's
objections and adopted his recommendation for certification of the Union as
the employees' representative. The Union won the election by a vote of 324
to 149, with 1 non-determinative challenged ballot. The Employer objected to
the Union's use of letters and resolutions by elected officials as campaign
propaganda and to elected officials' publicly conducting a mock card check
and signing a "Certification of Majority Status" at a Union press
conference and rally 6 days before the election.
Regarding
the elected officials' letters and resolutions (some of which neither
expressly supported the Union nor related to the election at issue), the
Board relied on Chipman Union, Inc., 316 NLRB 107 (1995), to find that the
letters and resolutions would be recognized as the various elected
officials' statements of opinion and would not confuse reasonable voters
into believing that the Board favored the Union.
Regarding
the "Certification of Majority Status," the Board found that the
record did not show that the Certification was disseminated among the
voters. Only 2 voters attended the press conference at which the
Certification was signed, and no evidence was presented that any voters
either saw a news report about the press conference or saw copies of the
signed Certification document, which were available at the Union hall.
In view of the 175-vote margin favoring the Union, the Board found
that such limited evidence of dissemination could not support an inference
that the Certification could have influenced enough voters to affect the
results of the election.
(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.
