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NLRB Law Memo 06/30/2008
by Ross Runkel at LawMemo
NLRB Law Memo 06/30/2008
by LawMemo - First in Employment Law.
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NLRB - Staff summarized 1 decision.
RCC
Fabricators, Inc. (4-CA-31757, 4-RC-20569, 20572; 352 NLRB No. 88)
Southampton, NJ June 9, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35288.htm
The Board
affirmed the administrative law judge's finding that foremen Ronald Earley
and James Phillips were statutory supervisors based on the finding that
they exercised independent judgment when assigning, and effectively
recommending the assignment of, employees to departments and significant
overall tasks. In light of
that finding, the Board did not pass on the judge's further finding that
they possessed the power to discipline and effectively recommend
discipline, and his alternative finding that foreman Phillips was the
Respondent's agent. In
addition, the Board affirmed the judge's finding that Phillips unlawfully
interrogated employees about a union meeting; however, it reversed the
judge and dismissed the allegation that Phillips' questions about the
union meeting created the impression of surveillance. Finally, because of their supervisory status, the challenges to
Earley's and Phillips' ballots were sustained. Accordingly, the Board issued a certification of representative.
The
Respondent manufactures railroad equipment and structural steel components
in a plant in Southampton, New Jersey. At all times relevant to the proceedings, Carl Baer was the shop
manager. Under his
supervision, James Phillips was foreman in charge of railroad construction
operations, and Ronald Earley was foreman in charge of structural steel
operations. This consolidated
C and R case involves a Nov. 21, 2002 election covering employees at the
Respondent's Southampton facility. The election resulted in 6 votes for and 5 against the Petitioner
(Carpenters), with 5 challenged ballots. In his initial decision, the judge found two Section 8(a)(1)
violations involving interrogation and appearance of surveillance, and he
dismissed allegations of threatened plant closure and discriminatory
discharge. The judge
sustained the Respondent's challenge to the discharged employee's ballot,
because of his discharge, and to the ballots of two laid-off employees,
because they lacked a reasonable expectation of recall. The Board, without ruling on these conclusions, remanded the case
to the judge for further consideration in light of Oakwood Healthcare,
Inc., 348 NLRB No 37 (2006), Croft Metals, Inc., 348 NLRB No. 38 (2006),
and Golden Crest Healthcare Center, 348 NLRB No. 39 (2006). The judge issued a supplemental decision on Jan. 30, 2007.
The
primary issue in this case was the supervisory status of foremen Phillips
and Earley. Both foremen
attended weekly production meetings, and they met daily with shop manager
Baer to discuss production goals and assignments. The Board found sufficient evidence that the foremen exercised
independent judgment in assigning and effectively recommending assignments
in their respective production areas.
On October 10, 2002, the day after employees met with union
representatives at a local pizza parlor, foreman Phillips individually
questioned two employees about the meeting, who attended, and what was
said. The Board found that
Phillips' conduct constituted unlawful interrogation, but it did not
create the impression of surveillance.
(Chairman
Schaumber and Member Liebman participated.)
Charges filed by Metropolitan Regional Council of Carpenters, Eastern
Pennsylvania, State of Delaware, and Eastern Shore of Maryland; complaint
alleged violations of Section 8(a)(1) and (3). Hearing at Philadelphia, April 8 and 10, and May 15, 2003.
Adm. Law Judge Paul Buxbaum issued his decision Oct. 23,
2003, and his supplemental decision Jan. 30, 2007.
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