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NLRB Law Memo 08/27/2008
by Ross Runkel at LawMemo
NLRB Law Memo 08/27/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 2 decisions.
Coca-Cola Enterprises, Inc., Eastern Great Lakes Division (3-RD-1527; 352 NLRB No. 123) Horseheads, NY Aug. 14, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352123.htm
The Board reversed the Regional Director's finding that a Memorandum of Understanding (MOU) between the Union and the Employer constituted a bar to a decertification petition. The Board found, contrary to the Regional Director, that the MOU, which dealt with certain terms and conditions for drivers only, did not constitute an extension of the parties' long-term contract, and thus did not have bar quality. Specifically, the Board found that, under Southwestern Portland Cement Co., 126 NLRB 931 (1960), the MOU was neither intended to be new agreement embodying new terms and conditions nor did it incorporate by reference the terms of the long-term agreement. Additionally, the Board found that the MOU was not a written amendment that expressly reaffirmed the original agreement and failed to evidence the parties' clear intention to be bound for the specified period of the long-term agreement, i.e., until 2009.
Accordingly, the petition was reinstated, and the case remanded to the Regional Director for further processing.
(Chairman Schaumber and Member Liebman participated.)
***
Electrical Workers IBEW Local 3 (29-CD-617; 352 NLRB No. 124) Long Island City, NY Aug. 15, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352124.htm
The Board found that employees of Unitec Elevator Co. (Employer), represented by Electrical Workers IBEW Local 3 (Respondent) are entitled to continue performing the work in dispute. The work was also claimed by the Elevator Constructors of New York and New Jersey Local 1.
The work in dispute involves the "modernization" of 60 elevators at a multi-building apartment complex in Queens, NY by removing the existing elevator cars and motors and installing new equipment and component parts in the existing elevator shafts. In finding that there was reasonable cause to believe that Section 8(b)(4)(D) of the Act had been violated, the Board rejected Local 1's claims that Local 3's strike threat was a sham and that Unitec was bound by a jurisdictional dispute resolution plan as an "alter ego" of a company subject to that plan. On the merits, the Board awarded the disputed work to the employees represented by Local 3 based on the factors of certification and collective-bargaining agreements, current assignment, employer past practice and preference, prior Board case, and economy and efficiency of operations.
(Chairman Schaumber and Member Liebman participated.)
***
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NLRB Law Memo 08/08/2008
by Ross Runkel at LawMemo
NLRB Law Memo 08/08/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 10 decisions.
Carpenters
Local 687, Michigan Regional Council (Convention & Show Services,
Inc.)(7-CB-15293; 352 NLRB No. 119) Detroit, MI July 31, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352119.htm
The Board
adopted the administrative law judge's findings that the Respondent violated
Section 8(b)(1)(A) of the Act in the operation of its nonexclusive hiring
hall by maintaining written referral procedures that discriminate against
members who refrain from engaging in Respondent-sponsored picketing and
other protected activity. The
Board adopted the make-whole remedy, including backpay, as recommended by
the judge. However, the Board
denied the General Counsel's request for compound interest on the backpay.
(Chairman
Schaumber and Member Liebman participated.)
Charge
filed by Michael Johnston, an individual; complaint alleged violation of
Section 8(b)(1)(A). Hearing at Detroit on Oct. 22, 2007. Adm. Law Judge Paul Bogas issued his decision Dec. 27, 2007.
***
East Buffet and
Restaurant, Inc. (29-CA-27114, et al.; 352 NLRB No. 116) Huntington Station,
NY July 31, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352116.htm
The Board
adopted the administrative law judge's findings that the Respondent violated
Section 8(a)(3) of the Act by: (1) discharging employee David Lee because of
his activities in behalf of the Union; (2) directing its employees not to
speak to co-workers while on duty, telling its employees that they had to
eat in two groups and not together, and prohibiting its employees from
making or receiving cell phone calls while on duty; and (3) failing to
reinstate unfair labor practice strikers upon the unconditional offer to
return made in their behalf.
The Board
reversed the judge's finding that the Respondent further violated Section
8(a)(3) by criticizing its employees due to their protected concerted
activities because there is insufficient evidence to support the allegation.
(Chairman
Schaumber and Member Liebman participated.)
Charges
filed by 318 Restaurant Workers Union; complaint alleged violation of
Section 8(a)(1) and (3). Hearing
at Brooklyn, Sept. 18-21 and Oct. 18-20, 2006. Adm. Law Judge Steven Davis issued his decision April 3, 2007.
***
First Transit,
Inc., successor with liability to Ryder/ATE, Inc. (21-CA-32146, 32285; 352
NLRB No. 111) Pomona, CA July 28, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352111.htm
The Board, in
this second supplemental backpay decision, adopted the administrative law
judge's backpay determinations and ordered that the Respondent pay five
claimants amounts totaling $118,104.26. In adopting the judge's determination as to claimant Denny Benavides,
the Board rejected the Respondent's claim that his backpay should be tolled
as of his arrest in late Sept. 1999. As
to claimant Shawn Howell, the Board found that Howell's decision to quit an
interim job at Laidlaw did not disqualify her from backpay for the entire
backpay period.
(Chairman
Schaumber and Member Liebman participated.)
Hearing
at Los Angeles, Aug. 21 and Sept. 20, 2007 and Lancaster on Sept. 21, 2007.
Adm. Law Judge James M. Kennedy issued his second supplemental
decision Feb. 22, 2008.
***
Laborers Local
578 (Shaw Stone and Webster Construction, Inc.) (27-CB-4935; 352 NLRB No.
118) Pueblo, CO July 31, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352118.htm
The Board
adopted the administrative law judge's finding that the Respondent violated
Section 8(b)(1)(A) and (2) of the Act by seeking the discharge of employee
Sebedeo Lopez for non-payment of dues without first providing him with an
adequate explanation of his arrearage and a reasonable opportunity to pay.
The Board also adopted the judge's finding that the Respondent
violated Section 8(b)(1)(A) by making Lopez apprehensive that it was seeking
his discharge by means of a Nov. 1, 2006 letter. No party accepted to the judge's dismissal of the allegation that the
Respondent violated Section 8(b)(2) by attempting to cause the Employer to
discharge Lopez by means of the Nov. 1 letter.
(Chairman
Schaumber and Member Liebman participated.)
Charge
filed by Sebedeo Lopez, an individual; complaint alleged violations of
Section 8(b)(1)(A) and (2). Hearing at Colorado Springs on Jan. 22, 2008.
Adm. Law Judge Clifford H. Anderson issued his decision March 21,
2008.
***
Lily
Transportation Corp. (4-RC-21314; 352 NLRB No. 121) Gouldsboro, PA July 31,
2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352121.htm
The Board
adopted the administrative law judge's recommended decision, overruling the
Respondent's objections to alleged electioneering activity. In affirming the judge's decision, the Board applied Boston Insulated
Wire & Cable Co., 259 NLRB 1118 (1982), enfd. sub nom. Boston Insulated
Wire & Cable Systems, Inc. v. NLRB, 703 F.2d 876 (5th Cir. 1983) and
distinguished the facts in this case from Nathan Katz Reality LLC v. NLRB;
251 F.3d 981 (D.C. Cir. 2001).
(Chairman
Schaumber and Member Liebman participated.)
***
Lithographers
Local One-L (2-CB-21027; 352 NLRB No. 114) New York, NY July 31, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352114.htm
The Board
adopted the administrative law judge's findings and conclusion that the
Respondent Union violated Section 8(b)(3) of the Act by refusing to supply
the Charging Party Metropolitan Lithographers Association, Inc. (MLA), with
information about the relationship between two non-MLA employers with whom
the Union had separate bargaining agreements. The information was relevant to whether more favorable terms in the
contract with one of those employers should be applied to employees in the
MLA bargaining unit pursuant to a "most favored nations" provision
in the MLA's contract with the Union.
(Chairman
Schaumber and Member Liebman participated.)
Charge
filed by Metropolitan Lithographers Association, Inc.; complaint alleged
violation of Section 8(b)(3). Hearing
at New York on Oct. 3, 2007. Adm.
Law Judge Mindy E. Landow issued her decision Jan. 29, 2008.
***
Stanadyne
Automotive Corp. (34-CA-9365; 352 NLRB No. 117) Windsor, CT July 31, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352117.htm
This case was
on remand from the United States Court of Appeals for the Second Circuit,
which set aside the Board's finding that the Respondent did not violate
Section 8(a)(1) of the Act by orally issuing a statement prohibiting
"harassment." The
Board accepted as the law of the case the court's determination that,
applying the test set forth in Lutheran Heritage Village-Livonia, 343 NLRB
646 (2004), and given the context of the statement by the Respondent's
President and CEO Bill Gurley prohibiting harassment, a reasonable employee
could infer that the statement was intended to discourage protected election
activity.
(Chairman
Schaumber and Member Liebman participated.)
***
United States
Postal Service (15-CA-17767, et al.; 352 NLRB No. 115) Destin, FL July 31,
2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352115.htm
The Board
affirmed the administrative law judge's findings that the Respondent
violated Section 8(a)(1), (3), and (4) of the Act by: 1) issuing employee
Marcus Jackson a warning letter; 2) issuing employee Bobby Cline a warning
letter; 3) placing Cline on emergency suspension; 4) requiring Cline to
undergo a fitness-for-duty examination; 5) placing Cline on administrative
leave; 6) unlawfully interrogating Cline on three separate occasions
concerning his union and other protected activities; and 7) suspending
Cline's pay for 2 weeks. There
are also no exceptions to the judge's findings that the Respondent violated
Section 8(a)(5) by failing and refusing to provide relevant and necessary
information to the Postal Worker, Playground Area Local 5643 upon its
request.
However, the
Board did not adopt the judge's recommendation that the Respondent violated
Section 8(a)(1) by denying Cline his Weingarten right to union
representation during an investigative interview. The General Counsel alleged that the Respondent's supervisors
coercively interrogated Cline, but did not allege that Cline's Weingarten
rights had been violated. The
Board found that the unalleged Weingarten violation was not fully litigated
and so reversed the judge's finding that the Respondent violated Section
8(a)(1) by violating Cline's Weingarten right to union representation during
an investigative interview.
Further, the
Board did not adopt the judge's recommendation to issue a broad order on the
basis that a narrow order in this case will prohibit any future violations
of Section 8(a)(1), (3), (4), and (5) that are like or related to those
found in this case. The Board
also did not adopt the judge's recommendation to require the Respondent's
Chief Executive Officer to sign the notice to Employees and to place the
Respondent on notice that if it commits further Weingarten violations, it
will be assessed the expenses of the resulting litigation, on the basis that
the circumstances of this case do not require such extraordinary remedies.
Finally, the
Board modified the judge's recommended Order in keeping with the foregoing,
to conform to the violations found and to the Board's standard remedial
language, and in accordance with its decisions in Indian Hills Care Center,
321 NLRB 144 (1996), Excel Container, 325 NLRB 17 (1997), and Ferguson
Electric Co., Inc., 335 NLRB 142 (2001), and also substituted a new notice
to conform with the Order as modified and in accordance with Ishikawa Gasket
America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004).
(Chairman
Schaumber and Member Liebman participated.)
Charges
filed by Postal Workers Playground Area Local 5643; complaint alleged
violations of Sections 8(a)(1), (3), (4), and (5). Hearing at Destin, June 26-29, July 19, and Aug. 11, 2006.
Adm. Law Judge Keltner W. Locke issued his decision May 17, 2007.
***
United States
Postal Service (28-CA-21451; 352 NLRB No. 122) Phoenix, AZ July 31, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352122.htm
The American
Postal Workers Union represents the Respondent's drivers performing delivery
routes for the Respondent's processing and distribution center located in
Phoenix, AZ. In late April
2007, the Respondent informed the Union that it wanted to subcontract, on a
temporary basis, the drivers' route in the Sun City area. Despite the Union's stated opposition to this arrangement, the
Respondent went forward with soliciting bids from various private
contractors who were interested in handling the Sun City route on a
temporary subcontracting basis. The
Union subsequently filed a grievance and also requested certain information
and documents, including Form 7468A, a cost worksheet that had been
submitted by the successful contractor awarded the bid. In response to the Union's information request, the Respondent
furnished a redacted copy of Form 7468A, disclosing only the contractor's
final, bottom-line total cost to do the job. The contractor's estimated itemized underlying costs indicated on
Form 7468A were blacked out by the Respondent and not revealed to the Union.
The complaint alleged that the Respondent's refusal to furnish the
Union with an unredacted copy of Form 7468A violated Section 8(a)(5) and (1)
of the Act.
The Board
adopted the administrative law judge's recommended dismissal of this
complaint allegation. While the
judge had relied on alternative justifications for his dismissal, the Board
found it unnecessary to pass on his findings relating to interpretation of
the contract (including article 32) and the alleged confidentiality of Form
7468A. Assuming the Respondent
had a bargaining obligation regarding the temporary subcontracting of the
Sun City route, the Board adopted the judge's finding that the Union's
asserted explanations for seeking Form 7468A failed to prove the requisite
relevancy of that form to the Union's representative status and
responsibilities.
Charge
filed by Postal Workers Phoenix Metro Area Local; complaint alleged
violations of Section 8(a)(1) and (5). Hearing at Phoenix, Dec. 18 and 19, 2007.
Adm. Law Judge Gregory Z. Meyerson issued his decision Feb. 27, 2008.
***
Verizon North,
Inc. (6-CA-35379; 352 NLRB No. 120) Erie, PA July 31, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352120.htm
The Board
affirmed the administrative law judge's finding that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally eliminating a past
practice of permitting an employee to "stack" leave, i.e., to use
paid vacation or personal leave days for an absence that qualifies under the
Family and Medical Leave Act (FMLA) without any concurrent reduction in the
employee's annual allotment of unpaid leave. The Board found no merit to the Respondent's argument that Electrical
Workers IBEW Local 1637 (Union) clearly and unmistakably relinquished its
right to bargain over the elimination of the existing stacking practice.
Citing Provena St. Joseph Medical Center, 350 NLRB No. 64 (2007).
The Board also
affirmed the judge's finding that the Respondent violated Section 8(a)(5)
and (1) by disciplining employee Amy Stewart pursuant to the above change in
practice.
(Chairman
Schaumber and Member Liebman participated.)
Charge
filed by Electrical Workers IBEW Local 1637; complaint alleged violations of
Section 8(a)(5) and (1). Hearing
at Erie on May 17, 2007. Adm.
Law Judge Ira Sandron issued his decision July 13, 2007.
***
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NLRB Law Memo 08/06/2008
by Ross Runkel at LawMemo
NLRB Law Memo 08/06/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 5 decisions.
A.J.
Mechanical, Inc., William A. Greene a/k/a Arnold Greene and Cynthia D.
Greene (15-CA-15350, et al. ; 352 NLRB No. 108) Pensacola, FL July
23, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352108.htm
On remand from the circuit court, the Board reversed its supplemental
decision and order and, applying the test set forth in White Oak Coal Co.,
318 NLRB 732 (1995), pierced
the corporate veil of A. J. Mechanical, Inc. and imposed personal liability
for backpay on the now-defunct corporation's president and his wife.
Under White Oak Coal, the Board will pierce the corporate veil when : (1) there is such unity of interest, and lack of respect given to the
separate identity of the corporation by its shareholders, that the
personalities and assets of the corporation and the individuals are
indistinct ; and (2) adherence
to the corporate form would sanction a fraud, promote injustice, or lead to
an evasion of legal obligations.
In
the underlying supplemental decision and order (345 NLRB 295 (2005)),
the Board reversed the administrative law judge 's determination that A.J.
Mechanical 's former president and co-owner, William A. (Arnold) Greene, and his wife, Cynthia Greene, should be held jointly
and severally liable for backpay along with the corporation. Assuming without finding that the first prong of White Oak Coal had
been met, the Board determined that the evidence was insufficient to
establish that the second prong had been met. The court of appeals disagreed.
In Carpenters & Millrights Local 2471 v. NLRB, 481 F.3d 804 (D.C. Cir 2007), the court summarily enforced the judgment against
the corporation, but vacated the Board 's decision refusing to pierce the
corporate veil. Finding that
the Board 's analysis neither provided sufficient evidence to substantiate
its conclusion nor accounted for significant countervailing evidence, the
court remanded the proceeding to the Board.
Applying prong one of White Oak Coal to the
evidence for the first time, the Board determined that throughout its
existence, the principals of A.J. Mechanical disregarded corporate
formalities and structure with respect to decision-making, record-keeping
and accounting. The Board additionally found that the Greenes routinely
commingled personal and corporate assets and property. Accordingly, the Board found sufficient unity of interest and lack of
respect for the separate identity of the corporation to conclude that the
first prong of White Oak Coal was satisfied.
Accepting the court 's decision as law of
the case with respect to the evidence previously relied upon relating to
prong two, the Board determined that the remaining record evidence also
supports the conclusion that adherence to the corporate form would unjustly
result in the evasion of A.J. Mechanical 's backpay obligations. Arnold Greene 's role as owner, officer, and director coupled with
his day-to-day business involvement and diversion of corporate assets to his
personal benefit demonstrates his individual participation in the inequity.
Cynthia Greene 's writing checks payable to her husband on the
corporate account, which amounts were thereafter placed in their joint
account as a shared asset, demonstrates that she was more than merely a
passive recipient of benefits but rather an active participant in the
dissipation of corporate assets. Accordingly,
the Board determined that the second prong of White Oak Coal had been
satisfied with respect to both Arnold and Cynthia Greene and held both
individually liable for A.J. Mechanical 's outstanding backpay obligations.
(Chairman
Schaumber and Member Liebman participated.)
***
Tower
Industries d/b/a Allied Mechanical, Inc. (31-CA-26120, et al. ; 352 NLRB No. 110) Ontario, CA July 24, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352110.htm
In this compliance case, the Board adopted the administrative law judge 's
finding that discriminatee Walter Reddoch adequately searched for interim
employment.
(Chairman
Schaumber and Member Liebman participated.)
Hearing
at Los Angeles, Dec. 3-4, 2007 and Feb. 5, 2008. Adm. Law Judge William G. Kocol issued his supplemental decision
March 13, 2008.
***
Goya
Foods of Florida (12-CA-23524,
et al. ; 352 NLRB No. 109) Miami, FL July 25, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352109.htm
The Board adopted the administrative law judge 's findings that the
Respondent violated Section 8 (a) (5) and (1) of the Act by unilaterally changing pension plans and
health-insurance plans on two occasions and by refusing the Union 's
information requests for a detailed seniority list, unit employees '
addresses and phone numbers, the employee handbook, and any benefit
policies. The Board also
adopted the judge 's finding that the Respondent violated Section 8 (a) (1)
by informing employees that "Union
employees . . . are not eligible " to participate in its 401 (k) plan.
The Board explained that the Respondent would have an opportunity in
compliance to litigate whether it is impossible or unduly or unfairly
burdensome to restore either of the two prior health insurance plans. Further, the Board explained that make-whole relief would be
inapplicable if the Union chose continuation of the final unilaterally
implemented health plan.
(Chairman
Schaumber and Member Liebman participated.)
Charges filed by UNITE HERE ; complaint
alleged violation of Section 8 (a) (1) and (5). Hearing at Miami on
Nov. 5, 2007. Adm. Law Judge
Keltner W. Locke issued his decision
Jan. 23,
2008.
***
Proper
Steel Erectors, Inc. and its alter ego B & M Steel Erectors, Inc. (3-CA-24700 ; 352 NLRB No. 113) Pompey and Central Square, NY July
25, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352113.htm
The Board granted the General Counsel 's motion for reconsideration of its
prior decision to deny in part the General Counsel 's motion seeking default
judgment on allegations regarding the Respondent 's backpay obligations and
contributions owed to union benefit funds set forth in the March 26, 2007
amended compliance specification. (See 352 NLRB No. 11) Based
on statements by the Respondent 's counsel in a March 21, 2007 letter and
email submitted in support of the motion, and the Respondent 's failure to
file a timely response to the May 20, 2008 Notice to Show Cause, the Board
found that the Respondent does not contest any of the allegations set forth
in the amended compliance specification. Accordingly, the Board deemed those
allegations to be admitted, and granted the General Counsel 's motion for
default judgment in its entirety.
(Chairman
Schaumber and Member Liebman participated.)
***
The
McBurney Corp. (26-CA-17564, et
al. ; 352 NLRB No. 112) Norcross, GA July 23, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352112.htm
In an earlier proceeding, the Board found that the Respondent unlawfully
refused to hire certain union-affiliated applicants, and ordered the
Respondent to provide instatement and backpay to all the discriminatees.
The Board specified, however, that those remedies would be subject to
the limitations established in Oil Capitol, 349 NLRB No. 118 (2007).
Subsequently,
the General Counsel moved for reconsideration of that qualification,
asserting that retroactive application of Oil Capitol would cause manifest
injustice. The Board denied
that motion.
In the present case, the Board denied the
General Counsel 's second motion for reconsideration, which asserted that
the Board—in denying the General Counsel 's first motion—failed to
consider adequately whether applying Oil Capitol would cause manifest
injustice. The Board noted that
that issue was considered and rejected by the Board in the first motion for
reconsideration, and thus the second motion did not establish extraordinary
circumstances within the meaning of Section 102.48 of the Board 's Rules.
For institutional reasons, Member Liebman
concurred in the denial of the General Counsel 's second motion. She noted that denying the motion avoids delay in the disposition of
the case, including the completion of a compliance proceeding. Member Liebman also stated her view that, if retroactive application
of Oil Capitol ultimately has a demonstrably adverse effect on backpay, the
General Counsel and the Charging Party would be free to pursue the manifest
injustice issue.
(Chairman
Schaumber and Member Liebman participated.)
***
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