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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 free weekly 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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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
