« NLRB Law Memo 07/09/2008 | Main | NLRB Law Memo 07/26/2008 »
NLRB Law Memo 07/17/2008
by Ross Runkel at LawMemo
NLRB Law Memo 07/17/2008
by LawMemo - First in Employment Law.
Also by free weekly email.
NLRB - Staff summarized 9 decisions.
Catskill
Mountain Mechanical Corp. and its alter ego, Plant Maintenance Services,
Inc. (3-CA-26213; 352 NLRB No. 101) West Coxsackie, NY June 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352101.htm
The
Board denied the General Counsel's motion for summary judgment and remanded
the proceeding to the Regional Director. The General Counsel argued that the Respondents failed to answer the
essential complaint allegations, by failing to specifically deny or explain
in their amended answers each of the complaint allegations. The Board noted that the Respondents' original answers sufficiently
deny or deny knowledge of each of the unfair labor practice allegations and
that there is no evidence that the Respondents' amended answers were
intended to replace their original answers in their entirety or that, as the
General Counsel contended, the Respondents intended to withdraw their
original answers. The Board
decided that the Respondents' original and amended answers should be taken
together, and, in combination, they deny with sufficient specificity the
allegations in the complaint and accordingly, raise questions of fact and
law that require resolution through a hearing before an administrative law
judge.
(Chairman
Schaumber and Member Liebman participated.)
Charge filed by Iron Workers Local 12; complaint alleged violation of
Section 8(a)(1) and (3). General Counsel filed motion for summary judgment
April 8, 2008.
***
Cimato
Brothers, Inc. and Cimato Brothers Construction, Inc. (3-CA-25918; 352 NLRB
No. 99) East Amherst, NY June 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35299.htm
The
Board reversed the administrative law judge's findings that Respondents
Cimato Brothers, Inc. and Cimato Brothers Construction, Inc. violated
Section 8(a)(5) and (1) of the Act by failing to apply the terms of
multiemployer collective-bargaining agreements with the Union to the
employees of Cimato Brothers Construction, Inc., dealing directly with
employees of Cimato Brothers Construction, Inc., and failing to respond to
an information request addressed to Cimato Brothers Construction, Inc.
regarding the relationship between the Respondents.
The
judge found that Cimato Brothers, Inc. was bound to collective-bargaining
agreements with the Union as a result of its delegation of bargaining
authority to a multiemployer association. The judge found further that the Respondents are a single employer
and that Cimato Brothers Construction, Inc. was obligated to recognize the
Union and to abide by the terms of the collective-bargaining agreements as a
result of the single-employer relationship. Alternatively, the judge found that, even assuming arguendo the
Respondents are not a single employer, Cimato Brothers Construction, Inc.
voluntarily recognized the Union and consented to be bound to the
collective-bargaining agreements by its conduct of paying its union-member
employees prevailing wages and submitting remittance reports, employee
fringe benefit fund contributions and dues to the Union.
In
reversing the judge, the Board found that the General Counsel did not adduce
sufficient evidence of the factors traditionally relied on by the Board to
support a single employer finding. The
Board also found that the conduct of Cimato Brothers Construction, Inc.,
viewed as a whole, was insufficient to establish that it voluntarily
consented to be bound to the collective-bargaining agreements. The Board observed, for example, that Cimato Brothers Construction,
Inc. did not apply the collective-bargaining agreements to employees who
were not union members, and it dealt directly with both member and nonmember
employees regarding wages and benefits. The Board also observed that the company consistently maintained that
it is not bound to any collective-bargaining agreements with the Union.
Finally, the Board observed that there is no evidence that
the company has held itself out as a union-signatory contractor in order to
obtain work. The Board thus
concluded that the Respondents did not violate the Act under either of the
theories relied on by the judge, and it dismissed the amended complaint in
its entirety.
(Chairman
Schaumber and Member Liebman participated.)
Charges
filed by Operating Engineers Local 17; complaint alleged violations of
Section 8(a)(1) and (5). Hearing
at Buffalo, April 23-24, 2007. Adm.
Law Judge Michael A. Rosas issued his decision July 18, 2007.
***
Foxwoods
Resort Casino (34-RC-2230; 352 NLRB No. 92) Norwich, CT June 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35292.htm
The
Board, affirming the administrative law judge, overruled the Employer's
election objections and certified the UAW, as the representative of a unit
of licensed casino dealers. The
tally of ballots showed 1,289 for and 852 against the Union, with 36
non-determinative challenged ballots.
About
446 unit employees have Chinese surnames and were born in mainland China,
Hong Kong, or Taiwan. Before
the election, the Employer requested that the ballots and Notice of Election
be translated into two forms of Chinese. The Regional Office declined to translate the ballots, but did
translate the Notice of Election into traditional Chinese. The Employer argued that the Region's failure to make the requested
translations, as well as alleged flaws in the traditional Chinese version of
the Notice of Election, warranted setting aside the election. The judge overruled the Employer's objections, emphasizing that unit
employees are required to speak English in order to be hired and that the
Employer had provided campaign materials in multiple languages, including
traditional and simplified Chinese, that explained the voting process to
employees. The judge concluded
that the Employer failed to establish that any significant number of
Chinese-born unit employees had such difficulty reading and understanding
English that the failure to make the requested translations could have
affected the election. Citing
Bally's Atlantic City, 352 NLRB No. 51 (2008), the Board adopted the judge's
findings.
The Board also overruled the Employer's objection that agents of the
Union engaged in objectionable listkeeping. The Employer contended that a prounion employee stood in the employee
cafeteria on election day and made it known that she was keeping a list of
which employees had voted and how they had voted. The employee was a member of the Union's employee organizing
committee, a group of about 105 employees who spoke to co-workers about the
Union, distributed literature, and met with union representatives during the
campaign. Assuming arguendo
that the employee engaged in objectionable listkeeping, the Board found that
the Employer failed to prove that she was a union agent. The Board reasoned that the Union's representatives maintained a
substantial presence throughout the campaign; that the record contained a
paucity of evidence about the alleged agent's specific activities; and that
the Board has found activities such as distributing literature, soliciting
signatures on authorization cards, and talking to fellow employees about
unionization insufficient to make employees general agents of the union.
The Board noted that the Employer did not contend that the employee's
conduct would warrant setting aside the election if she were not a union
agent.
(Chairman
Schaumber and Member Liebman participated.)
***
Loyalhanna
Health Care Associates t/d/b/a Loyalhanna Care Center, a Pennsylvania
Limited Partnership (6-CA-28609, et al.; 352 NLRB No. 105) Latrobe, PA June
30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352105.htm
In
this case, the Board reviewed the administrative law judge's supplemental
decision and order on remand, which applied the standards for supervisory
status set forth in Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006) and its
progeny, and found that three nurse manager employees are not statutory
supervisors. In particular, the Board found that the Respondent failed to
show, by a preponderance of the evidence, that the nurse managers exercise
independent judgment while purportedly assigning and responsibly directing
other employees. Having found
no demonstration of independent judgment, the Board found it unnecessary to
pass on the judge's findings that the nurse managers possess the authority
to responsibly direct, but not to assign,
other
employees. In addition, the
Board rejected the Respondent's: reliance
on the nurse managers' job descriptions and on the fact they are the
highest-ranking employees on duty at the facility during certain periods;
claim that the burden should have shifted to the General Counsel to produce
affirmative evidence that the nurse managers are not supervisors; and claim
that the nurse managers have the authority to discipline other employees.
(Chairman
Schaumber and Member Liebman participated.)
Adm.
Law Judge Arthur J. Amchan issued his supplemental decision April 16, 2007.
***
Murrill
Electric, LLC (28-CA-21503; 352 NLRB No. 96) Carlsbad, NM June 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35296.htm
The
Board found that the administrative law judge did not abuse his discretion
in denying the General Counsel's motion to amend the complaint to allege
that the Respondent maintained an unlawful policy forbidding wage discussion
among employees. The General
Counsel had moved to amend the complaint at the hearing after receiving a
requested document from the Respondent and questioning the Respondent's
witnesses.
No
party excepted to the judge's dismissal of the allegations that the
Respondent violated Section 8(a)(3) and (1) of the Act by refusing to
consider Shawn Doyle for hire because of his union activity and that the
Respondent violated Section 8(a)(1) by disparaging the Union and by
threatening employees that they would not be considered for hire because of
their union affiliation.
(Chairman
Schaumber and Member Liebman participated.)
Charge filed by Electrical Workers IBEW Local 611; complaint alleged
violations of Section 8(a)(1) and (3). Hearing at Albuquerque on Jan. 15, 2008.
Adm. Law Judge Gerald A. Wacknov issued his decision April 3, 2008.
***
Puget
Sound Area Local 298, affiliated with the Postal Workers and the Postal
Workers (APWU) (United States Postal Service) (19-CB-9568, 9593; 352 NLRB
No. 98) Tacoma, WA June 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35298.htm
The
Board affirmed the administrative law judge's decision that the Respondent
Unions violated Section 8(b)(1)(A) of the Act by distributing certain
settlement moneys only to union members.
In
2003, Respondent Postal Workers ("APWU") entered into a settlement
agreement with the Employer to settle grievances. The agreement included a provision that funds intended for former
employees who could not be located would "be remitted to the local
unions." However, the
Employer, when asked to remit such funds, offered to pay a "greater
total amount" if Respondent Local 298 would "waive its right to
receive payment directly and instead designate employees for direct
payment." The parties
executed a new settlement agreement in 2006, which provided that "[c]urrent
clerk craft employees," to be identified by the APWU Business Agent,
would receive a lump sum payment. The Respondents divided the lump sum among only the unit
employees who were members of Local 298.
The
Board rejected the Respondents' assertion that Local 298 had a contractual
right under the 2003 agreement to the funds distributed under the 2006
agreement and could lawfully assign such rights as it chose. The Board reasoned that the 2006 agreement modified the relevant
provision of the 2003 agreement by providing for remittance of the
settlement proceeds to the "[c]urrent clerk craft employees"
rather than to "the local unions." The Board also found that even assuming that Local 298 retained a
contractual right to the settlement moneys it was not free to assign such a
right on the basis of union membership, citing Steelworkers Local 2869
(Kaiser Steel Corp.), 239 NLRB 982, 982-983 (1978) Stagehands Referral
Service, 347 NLRB No. 101, slip op. at 4 (2006); United States Postal
Service, 345 NLRB 1203 (2005); and District 65, Distributive Workers of
America (Blume Associates, Inc.), 214 NLRB 1059 (1974).
(Chairman
Schaumber and Member Liebman participated.)
Charges
filed by Li Eagle Ransom, an individual; complaint alleged violation of
Section 8(b)(1)(A). The parties
waived their right to a hearing. Adm.
Law Judge Jay R. Pollack issued his decision Jan. 18, 2008.
***
SPE
Utility Contractors, LLC (7-CA-49691, et al.; 352 NLRB No. 97) Port Huron,
MI June 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35297.htm
The
Board affirmed the administrative law judge's findings that the Respondent
violated Section 8(a)(5) and (1) of the Act by dealing directly with unit
employees regarding an incentive program and recalling an employee to
perform bargaining unit work. In
affirming this finding, the Board noted that it relied upon the Respondent's
failure to notify the Union of the incentive program after it received
notice from the Union a few days after the Respondent verbally offered unit
employees the incentive program but before the offer was reduced to writing.
Further as the Board found that the Respondent engaged in unlawful
direct dealing in this respect, it found it unnecessary to pass on whether
the judge correctly recommended dismissal of a separate direct dealing
allegation made by the General Counsel.
However,
the Board did not adopt the judge's recommendation that the Respondent
violated the Act by unilaterally laying off unit employee Linda Leuch before
the parties had come to impasse. The
General Counsel had alleged that Leuch's lay off was in violation of an
agreement between the Respondent and the Union but did not allege that the
Respondent violated the Act by laying off Leuch before the parties had
bargained to impasse. The Board
found that this unalleged theory of violation was not closely connected to
the violation actually alleged and so reversed the judge's finding that the
Respondent violated Section 8(a)(5) by laying off Leuch.
(Chairman
Schaumber and Member Liebman participated.)
Charges filed by Teamsters Local 339; complaint alleged violations of
Section 8(a)(5) and (1). Hearing
at Detroit, Aug. 8 and 9, 2007. Adm.
Law Judge Arthur J. Amchan issued his decision Oct. 2, 2007.
***
Toering
Electric Co. and Foster Electric, Inc. (7-CA-37768, et al.; 352 NLRB No.
102)
Grand
Rapids, MI June 30, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352102.htm
On
Sept. 29, 2007, the Board issued its Decision and Order in this proceeding,
holding that an applicant for employment entitled to the Act's Section
8(a)(3) protections against hiring discrimination is "someone genuinely
interested in seeking to establish an employment relationship with the
employer." Toering Electric Co., 351 NLRB No. 18, slip op. at 4.
The Board further held that the General Counsel must establish the
applicant's genuine interest in employment as part of his prima facie case
under FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). The Board then remanded the case to the judge for further proceedings
consistent with the decision.
The
Charging Party (IBEW Local 275) filed a Motion for Reconsideration of the
Board's Order on Dec. 3, 2007. On
March 7, 2008, in an unpublished Order, the Board denied the Charging
Party's first Motion for Reconsideration. The Charging Party filed a second Motion for Reconsideration on April
7, 2008, reasserting arguments made in the first motion and, relying on
Wal-Mart Stores, Inc., 351 NLRB No. 17 (2007), asserting the new argument
that the Board committed a material error by failing to specifically address
whether retroactive application of Toering Electric Co. would result in a
"manifest injustice" to the Charging Party. Considering these arguments, the Board denied them as failing to
present any extraordinary circumstances warranting reconsideration. The Board also denied the Respondent's request, made in its response
to the Charging Party's second motion, for an award of attorney's fees
against the Charging Party.
(Chairman
Schaumber and Member Liebman participated.)
***
Wal-Mart
Stores, Inc. (28-CA-16832, et al.; 352 NLRB No. 103) Kingman, AZ June 30,
2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352103.htm
The
Board adopted the administrative law judge's findings that the Respondent
granted a benefit to employees by repairing the cooling system in the Tire
and Lube Express (TLE) in violation of Section 8(a)(1) of the Act,
discharged union advocate Brad Jones, denied Jones COBRA benefits, and
disparately failed to enforce its no-harassment policy to protect employees
Will Brooks and Greg Lewis from the harassing statements of employee Mitch
Bowman in violation of Section 8(a)(3) and (1).
The
Board also affirmed the judge's finding that the Respondent's threat to
freeze discretionary merit wage increases during initial bargaining violated
Section 8(a)(1), but reversed his finding that the Respondent unlawfully
surveilled employees and created an impression of surveillance when it
assigned Regional Personnel Manager Tom Scott to be the interim TLE manager.
The unfair labor practices began in the summer of 2000 when Food and
Commercial Workers Local 99R began organizing the TLE employees at the
Respondent's Kingman, AZ store. In
response to a question placed in the Q&A box that the Respondent had set
up-what would happen to raises while the employees were waiting on a
contract-the Respondent posted a response stating that it would not be
allowed to give them while negotiations continued. In finding that the Respondent unlawfully threatened to freeze wage
increases, the Board noted that the judge erroneously relied on case law
which prohibits employers from discontinuing existing benefits while an
election is pending. Because the question posed by the employee focused on the
postcertification period, the Board instead applied NLRB v. Katz, 369 U.S.
736 (1962), and Daily News of Los Angeles, 315 NLRB 1236 (1994), enfd. 73
F.3d 406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090 (1997), which prohibit
unilateral changes in terms and conditions of employment by employers whose
employees are represented by a labor organization, and on Jensen
Enterprises, 339 NLRB 877 (2003), in which the Board found that an employer
may not unilaterally discontinue a practice of granting periodic wages
increases following its employees' selection of an exclusive bargaining
representative. The Board
reasoned an employer's statement that wages will be frozen until a
collective-bargaining agreement is signed violates Section 8(a)(1) of the
Act if the employer has a past practice of granting periodic wage increases
because such an announcement suggests to employees that the employer intends
to unilaterally take away benefits and require the union to negotiate to get
them back.
In reversing the judge's finding that the Respondent unlawfully
surveilled the TLE employees and created an impression of surveillance when
it assigned Scott to the TLE as interim manager despite his high rank and
automotive inexperience, the Board applied Sprain Brook Manor Nursing Home,
351 NLRB No. 75 (2007), and found that even though Scott worked alongside
TLE employees from opening to closing, there was no evidence that he engaged
in any conduct that was out of the ordinary with respect to open union
activity by employees. Additionally,
given evidence that the long-time TLE manager Larry Eidson was on extended
sick leave and the store was in disarray, the Board reasoned that employees
would more likely have viewed Scott's temporary assignment to the TLE as a
"stopgap" measure rather than as an effort to surveill their union
activity.
(Chairman
Schaumber and Member Liebman participated.)
Charges filed by Food and Commercial Workers Local 99R; complaint
alleged violation of Section 8(a)(1) and (3). Hearing at Kingman, June 11-14, Sept. 3-6, and 9-13, 2002;
supplemental hearing at Phoenix, Nov. 30, 2006 and Feb. 2007. Adm. Law Judge Gregory Z. Meyerson issued his decision Feb. 28, 2003
and his supplemental decision March 30, 2007.
***
|
|
|
Home | Free Trial | Products & Prices
| Feeds
| Caselaw Database
| Sample
EEOC
| NLRB
| Nat'l Arbitration Ctr
| Supreme Court
| Articles
| Lawyers
Employment Law
Blog | Arbitration Blog
| Employment Law 101
Employment Law Memo | NLRB Law Memo | Arbitration Law Memo
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
