28 Day Trial   Products / Prices / Samples   About Us / Contact   FAQs   Home  
Newest employment law cases  
Summaries and links to full text

LawMemo - First in Employment Law

Emailed directly to you
and online all the time
Home 28 Day Trial MyLawMemo Custom Alerts Newest Cases Key Word Search Employment Law Memo
EEOC Info NLRB Info Supreme Court Arbitration Articles Law Firms Arbitration Blog Employment Law Blog

NLRB Law Memo 
Also available by email 

All Archives

 

« August 2008 | Main | October 2008 »



LawMemo publishes Employment Law Memo.

NLRB Law Memo 09/29/2008
by Ross Runkel at LawMemo

NLRB Law Memo 09/29/2008
by
LawMemo - First in Employment Law.
Also by email.

NLRB - Staff summarized 8 decisions.

Faurecia Automotive Seating (9-CA-44400; 353 NLRB No. 5) Shelby, MI Sept. 10, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v3535.htm

The Board affirmed its practice to follow D. L. Baker, Inc., 330 NLRB 521, fn.4 (2002) with regard to requests to revoke subpoenas and permitted the Employer's reply in support of Petition to Revoke Subpoena but denied the General Counsel's request to file a surreply.

(Chairman Schaumber and Member Liebman participated.)

***

Graphic Communications Conference Teamsters Local 17B (3-CB-8648; 353 NLRB No. 4) Depew, NY Sept. 12, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v3534.htm

The Board found that the Respondent, Graphic Communications Conference Teamsters Local 17B, violated Section 8(b)(3) of the Act by refusing to execute the agreed-upon collective-bargaining agreement

This case arose when the Employer engaged in concession bargaining with all of the unions representing its employees in order to avoid a transfer of operations and closure of the printing facility by Employer's parent company. The Union represents binder/trimmer employees at the Employer's Depew printing facility. Chief among the concessions that the Employer sought was a reduction in force of one employee per binder/trimmer line (a total of 21 employees). The Union proposed, among other things, that the reduction be achieved using Article 17.15 of the existing collective-bargaining agreement, which allowed for temporary staffing changes by mutual agreement. The Employer refused on the basis that Article 17.15 would allow the Union to defeat the manning reduction if it did not agree. Credited testimony established that the Union accepted the Employer's Dec. 8 final offer which included the reduction without limitation. When union members voted to reject ratification, however, the Union and the Employer held further discussions and the Employer agreed on Dec. 13 that it would apply Article 17.15 as needed after the manning reduction was effected. The Union presented the agreement to its membership a second time, telling them that the Employer agreed to use Article 17.15 to achieve the reduction.

The Board affirmed the administrative law judge's finding that the Employer and the Union reached a meeting of the minds regarding the manning reduction on Dec. 8 and regarding the use of Article 17.15 for post-reduction staffing changes on Dec. 13. The Board also affirmed the judge's finding that even if the membership ratified the contract in reliance on the Union's misrepresentations, there was no basis for avoiding the contract because the misrepresentation was a unilateral mistake of which the Employer could not have been on notice. Consequently, the Board adopted the judge's finding that the Union's failure to execute the concession agreement at a subsequent signing ceremony was unlawful.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Quebecor World Buffalo, Inc.; complaint alleged violation of Section 8(b)(3). Hearing at Buffalo, Aug. 28-29, 2007. Adm. Law Judge Wallace H. Nations issued his decision Jan. 18, 2008.

***

Premier Home Health Care Service, Inc. d/b/a Metropolitan Home Health Care (22-CA-28089; 353 NLRB No. 3) Elmwood Park and Weehawken, NJ Sept. 11, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v3533.htm

The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing the Union's request for financial information, including the Respondent's revenue rates and its total revenue broken down by component. The Board found that the requested financial information was relevant to the Union's bargaining duties, in light of the Respondent's proposal to make wages and benefits dependent on increases in its revenue. The Board rejected the Respondent's argument that the requested financial information was neither relevant nor necessary because it never claimed an inability to pay, citing Caldwell Manufacturing Co., 346 NLRB 1159, 1160 (2006). Furthermore, the Board agreed with the judge that the Respondent did not meet its burden of proving that it had a legitimate and substantial confidentiality interest in the requested information. The Board noted that, while the Respondent excepted to the judge's finding that it bore such a burden, the Respondent did not argue on exception that it demonstrated a confidentiality interest in the requested information.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by SEIU 1199 New Jersey Health Care Union; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark on April 23, 2008. Adm. Law Judge Eleanor MacDonald issued her decision June 26, 2008.

***

Quebecor World Mt. Morris II, LLC (33-CA-15319; 353 NLRB No. 1) Mt. Morris, IL Sept. 8, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v3531.htm

The Board, reversing the administrative law judge, found that the Respondent did not violate Section 8(a)(5) and (1) of the Act by unilaterally implementing a "performance improvement plan" (PIP) procedure, and by demoting a bargaining-unit employee pursuant to a PIP. The Board affirmed the judge's finding that the Respondent violated Section 8(a)(5) and (1) by refusing to provide relevant information requested by the Union in the course of processing a grievance over the PIP procedure.

Specifically, the Board decided that the judge erred in finding ineffective the contractual parties' oral agreement to extend their expiring collective-bargaining agreement while they negotiated a successor contract. The Board concluded that the oral agreement was valid, and that the extended collective-bargaining contract was in effect at all relevant times. Consequently, the Board decided that the Respondent's unilateral implementation of the PIP process, and its application to employee Robert Gigous, were clearly and unmistakably permitted under the contract's management-rights clause. The Board relied on Provena St. Joseph Medical Center, 350 NLRB No. 64 (2007) to support the application of the clear-and-unmistakable test. Accordingly, the Board reversed the judge and dismissed these two 8(a)(5) allegations.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Graphic Communications Conference Teamsters Local 65-B; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Peoria on Sept. 17, 2007. Adm. Law Judge George Carson II issued his decision Nov. 8, 2007.

***

Union-Tribune Publishing Co., A Division of Copley Press, Inc. (21-CA-37535; 353 NLRB No. 2) San Diego, CA Sept. 9, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v3532htm

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 two drug testing policies, one applicable to a bargaining unit of packaging employees and another applicable to a unit of pressroom employees. The Respondent administered a drug test to a packaging employee whose annual hearing test showed a certain level of hearing loss and to a pressroom employee who claimed "cumulative trauma" hearing loss from repeated noise exposure at work. The Board found that the Respondent failed to prove its affirmative defense that it acted in accordance with established past practice.

The Board also adopted the judge's dismissal of allegations that the Respondent violated Section 8(a)(5) and (1) by terminating the two employees when their drug test results were positive for marijuana. Citing Anheuser-Busch, Inc., 351 NLRB No. 40 (2007), the judge reasoned that where employees are discharged for violating company work rules (here, the Respondent's drug and alcohol policies), the discharge is "for cause" under Section 10(c) of the Act, even if the employees' conduct is discovered by means of an unlawful unilateral change. Also based on Anheuser-Busch, the judge found that reinstatement was not an appropriate remedy for the unlawful unilateral changes. The Board adopted the judge's findings. Member Liebman observed that she had dissented in Anheuser-Busch and that the charging party in that case had petitioned the court for review. However, she acknowledged that Anheuser-Busch is extant Board law, and, on that basis, she affirmed the judge's application of it.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Graphic Communications Conference Teamsters Local 423M; complaint alleged violations of Section 8(a)(1) and (5). Hearing at San Diego, Oct. 1-2, 2007. Adm. Law Judge Burton Litvack issued his decision April 24, 2008.

***

California Almond Growers Exchange d/b/a Blue Diamond Growers (20-CA-32930, 33195; 353 NLRB No. 6) Sacramento, CA Sept. 16, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v3536.htm

The Board adopted the administrative law judge's dismissal of allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Leo Esparza and Ludmilla Stoliarova. In adopting the judge's finding that the Respondent did not violate Section 8(a)(3) and (1), Member Liebman found it unnecessary to pass on the judge's finding that the General Counsel failed to satisfy his initial burden under Wright Line. Assuming arguendo that the General Counsel met his threshold Wright Line burden, Member Liebman found, in light of the judge's credibility resolutions, that the Respondent demonstrated that it would have discharged the employees for their rule violations even in the absence of their union activity. Although Chairman Schaumber agreed with the judge that the General Counsel did not meet his initial Wright Line burden, he also agreed with Member Liebman that, assuming arguendo that the General Counsel met that burden, the Respondent demonstrated that it would have discharged the employees in any event.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Longshoremen ILWU Local 17; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Sacramento, Jan. 16-19, 2007. Adm. Law Judge Jay R. Pollack issued his decision May 31, 2007.

***

Dietrich Industries, Inc. (13-CA-43598, 43718; 353 NLRB No. 7) Hammond, IN Sept. 16, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v3537.htm

The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by failing to reinstate and locking out former striking employees following the Union's unconditional offer on their behalf to return to work and thereby rejected the Respondent's defense that the Union had agreed to withdraw that then-pending unfair labor practice charge when it agreed to terms for a successor collective-bargaining agreement. The Board also adopted the judge's dismissal of allegations that the Respondent violated Section 8(a)(5), (3), and (1) by unilaterally discontinuing health insurance benefits to former strikers who were laid off at the time other strikers were recalled.

Following a 4-month strike, on Sept. 8, 2006, the Union notified the Respondent that it was offering on behalf of employees to return to work unconditionally. On Sept. 11, 2006, the Respondent replied that it was immediately implementing a lockout, that it would "not offer reinstatement to the striking employees until an agreement is reached," and that it would provide a "final written offer to the Union by close of business on Sept. 14, 2006." The Respondent did not provide the Union with terms for agreement until Sept. 18 and Sept. 20, 2006. The judge observed, inter alia, that in locking out employees, an employer must not only tell them that it is doing so in support of its bargaining position, but must also "clearly and fully [inform them] of the conditions they must meet to be reinstated." Eads Transfer, 304 NLRB 711, 712 (1991). Thus, the Respondent's failure at the outset of the lockout to offer a contract capable of acceptance or otherwise inform the Union of terms upon which the lockout could be ended rendered the lockout unlawful.

The Board also agreed with the judge that: (1) the evidence does not establish that by accepting the Respondent's Sept. 20 "final company offer," the Union also agreed to withdraw pending unfair labor practice charges; and (2) that the Respondent was merely complying with the terms of the new contract's health care provision when it informed laid off employees who had not returned to work following the strike that they were not covered by the plan.

In ordering that the Respondent provide backpay to the illegally locked out employees from the date the lockout was implemented until they were reinstated, Chairman Schaumber noted that the Respondent did not specifically except to the duration of the backpay period or argue that it should toll as of the date the Union received the Respondent's contract proposal.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by Teamsters Local 142; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Chicago, June 28-29, 2007. Adm. Law Judge George Carson II issued his decision Aug. 28, 2007.

***

WeCare Transportation, LLC (3-RC-11819; 353 NLRB No. 9) Canaan and Weedsport, NY Sept. 17, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v3539.htm

The Board reversed the Regional Director's finding that the petitioned-for single facility of long-haul truck drivers at the Employer's Canaan, NY facility was an appropriate unit for bargaining. The Board concluded that the Employer rebutted the single facility presumption, finding that the truck drivers at its facility in Weedsport, NY must also be included in the unit. The Board relied on the substantial degree of temporary employee interchange and functional integration, the weak level of local autonomy, the centralized administration of labor relations and operations, and the fact that all drivers performed the same duties under similar working conditions.

(Chairman Schaumber and Member Liebman participated.)

***



LawMemo publishes Employment Law Memo.

NLRB Law Memo 09/12/2008
by Ross Runkel at LawMemo

NLRB Law Memo 09/12/2008
by
LawMemo - First in Employment Law.
Also by email.

NLRB - Staff summarized 13 decisions.

Air Management Services, Inc. (28-CA-21378; 352 NLRB No. 145) Albuquerque, NM Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352145.htm

The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by: (1) interrogating job applicants regarding their union membership or union affiliation in its job applications; (2) threatening job applications by informing them that it would be futile to apply for employment if they were members of the Union; (3) interrogating applicant Dominic Baca by asking him whether he was a member of the Union or had any union affiliation; (4) threatening not to hire Union members; and (5) requiring Baca to sign a declaration disavowing Union membership or affiliation as a condition of employment.

The Board additionally affirmed that the Respondent violated Section 8(a)(3) by refusing to hire applicants Dominic Baca, Richard Espinosa, Kenneth Chavez, and Patrick Lucero. In so doing, the Board found that assuming arguendo the Respondent "put forth evidence reasonably calling into question" the applicants' genuine interest in working for the Respondent, under Toering Electric, 351 NLRB No. 18 (2007), the General Counsel proved their genuine interest by a preponderance of the evidence. The Board found it unnecessary to decide whether the Respondent also violated Section 8(a)(3) by unlawfully refusing to consider the applicants for hire, because the remedy for such violation would be subsumed within the broader remedy for the refusal-to-hire violation.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Sheet Metal Workers Local 49; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Albuquerque, Nov. 14-15, 2007. Adm. Law Judge William L. Schmidt issued his decision April 16, 2008.

***

Alcoa, Inc. (25-CA-29487, et al., 352 NLRB No. 141) Lafayette, IN Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352141.htm

The Board principally reversed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally changing its leave policy to prohibit unit employees from taking unpaid leave to attend monthly union meetings. The Board further reversed the judge's finding that the Respondent violated Section 8(a)(3) and (1) in contracting out the Total Predictive Maintenance event at the facility in April 2005 to retaliate against the Union's insistence that bargaining unit employees perform bargaining unit work.

In addition, the Board reversed the judge's dismissal of the allegation that employee Hewitt's initial 3-day suspension violated Section 8(a)(3) and (1) and adopts the judge's finding (but applied a different rationale) that the Respondent violated Section 8(a)(3) and (1) in suspending Hewitt for an additional 27 days for his comments at the Aug. 4, 2005 grievance meeting.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by Steelworkers Local 115A; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Lafayette, Feb. 27 – March 1, 2006. Adm. Law Judge Arthur J. Amchan issued his decision July 28, 2006.

***

Anchor-Harvey Components, LLC (33-RM-373; 352 NLRB No. 140) Freeport, IL Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352140.htm

Relying on Coca-Cola Bottling of Miami, 237 NLRB 936 (1978), the Board found that Anchor-Harvey Components, LLC's (Employer's) challenge to the ballots of replaced strikers on the basis that they had been permanently replaced was timely. Similarly, the Board found that Auto Workers International and its Local 2127's (Union's) challenge to the ballots of material handlers Carlos Villegas, Joshua Saldecki, and Mark Haag, on the basis that they hold positions not included in the bargaining unit, was also timely. The Board sustained the Employer's challenge to the ballots of the replaced strikers, but declined to decide the merits of the Union's challenge to ballots of the material handlers. The Board further declined to decide whether the ballot of replaced striker Robert Nieman, whose name did not appear on the Excelsior list, should be opened and counted. In the absence of exceptions, the Board adopted the hearing officer's finding that replacement workers were eligible to vote and overruled the Union's challenge to those ballots.

The Board remanded the case to the Regional Director to open and count the ballots as directed, and ordered that the ballots of Nieman and the material handlers be held in abeyance pending the tally of the other ballots. If the ballots of Nieman and the material handlers become determinative to the outcome of the election, the Regional Director is instructed to take further appropriate action.

(Chairman Schaumber and Member Liebman participated.)

***

Auto Workers International and its Local 155 (7-CB-15815; 352 NLRB No. 130) Warren, MI, Aug. 26, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352130.htm

The Board adopted the administrative law judge's finding that the Respondents violated Section 8(b)(3) of the Act by failing and refusing to execute a written collective-bargaining agreement ratified by the bargaining unit. The Board modified the Order and notice to include a unit description but it declined to change the judge's cease and desist language or enter an affirmative bargaining order as requested by the General Counsel.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by U.S. Mfg. Corp.; complaint alleged violation of Section 8(b)(3). Hearing at Detroit on Feb. 19, 2008. Adm. Law Judge John H. West issued his decision April 24, 2008.

***

Carson Trailer, Inc. (21-CA-37999, 38141.; 352 NLRB No. 144) Gardena, CA Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352144.htm

The Board granted the General Counsel's motion to strike the Respondent's exceptions because they did not meet the minimum requirements of Section 102.46(b) of the Board's Rules and Regulations. The Board found that the Respondent failed to allege with any particularity the errors it contends the administrative law judge committed, or on what grounds it believed the judge's decision should be overturned. In addition, the Respondent failed to designate the portions of the record on which it relied, as the Board's Rules also require. In the circumstances, the Board found, in accordance with Section 102.46(b)(2), that the Respondent's exceptions should be disregarded. The Board therefore adopted the judge's Section 8(a)(3) and (1) findings and conclusions, in the absence of exceptions.

The Board also granted the General Counsel's request for a Spanish notice posting. The record showed that most of the employees at the Respondent's Broadway facility, where the violations occurred, are Spanish speaking, and the Respondent conducted a mandatory employee meeting at that facility in Spanish. In addition, each of the seven non-supervisory employees who testified in this proceeding did so through a Spanish interpreter. In these circumstances, the Board found a Spanish notice posting requirement to be appropriate.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by Sheet Metal Workers Local 170; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Los Angeles, May 12-13, 2008. Adm. Law Judge William G. Kocol issued his decision July 16, 2008.

***

Foster Poultry Farms (32-RC-5539; 352 NLRB No. 136) Porterville, CA Aug. 28, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352136.htm

The Board found that the Employer failed to comply with the requirements of Ryder Memorial Hospital, 351 NLRB No. 26 (2007), by distributing and posting copies of a campaign leaflet in English and Spanish containing an altered sample ballot only in English. In Ryder, the Board revised its official ballot to include a disclaimer stating that the Board does not endorse any choice in the election and that any markings on sample ballots were not made by the Board. The Board further required that altered sample ballots distributed by parties to an election contain the prescribed disclaimer. The Employer's altered sample ballot was not an actual reproduction of the Board's official sample ballot included in the notice of election and did not include the Board's complete disclaimer language, which was provided on the official sample ballot in English, Spanish, and Laotian. Therefore, the Board found the Employer's conduct objectionable and set aside the election.

(Chairman Schaumber and Member Liebman participated.)

***

GFC Crane Consultants, Inc. (12-CA-21302, et al.; 352 NLRB No. 142) Fort Lauderdale, FL Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352142.htm

The Board affirmed the administrative law judge's decision and supplemental decision following the Board's remand for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), Croft Metals, Inc., 348 NLRB 717 (2006) and Golden Crest Healthcare Center, 348 NLRB 727 (2006).

The Board found that the Respondent did not establish that its port engineers were statutory supervisors and that the Respondent violated Section 8(a)(5) of the Act by eliminating bargaining unit positions, by laying off its port engineer employees without bargaining with the Union, and by withdrawing recognition of the Union.

The Board further found that the Respondent's layoff of the port engineer employees violated Section 8(a)(3). In so finding, the Board relied on the pretextual nature of the Respondent's asserted reasons for its actions. In particular, the Board found that the record testimony contradicted the Respondent's assertions that there was less work of the port engineers, that it wanted to upgrade its work force, and that it restructured operations because of unreasonable Union demands. The Board also relied on the fact that the termination letters stated that the port engineers had been given an opportunity to apply for newly created CMT positions when, in fact, the Respondent had never previously informed them of that opportunity.

(Chairman Schaumber and Member Liebman participated.)

Adm. Law Judge Pargen Robertson issued his decision April 4, 2002 and Adm. Law Judge George Carson II issued his supplemental decision Feb. 9, 2007.

***

Honeywell Electronic Materials Mfg., LLC (19-CA-30824, et al.; 352 NLRB No. 135) Spokane, WA Aug. 28, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352135.htm

The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by (1) soliciting employee grievances and promising to address them in order to undermine employee support for the Union; (2) stating the futility of employees' support for the Union; and (3) interrupting an employee's nonwork-related conversations with other employees because the employee supported the Union, where those conversations were short and nondisruptive. The Board also affirmed the judge's finding that the Respondent did not violate 8(a)(1) and (3) by discharging Terri Bedell for misuse of the Respondent's peer-driven award program.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by Operating Engineers Local 280; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Spokane, Jan. 15-16, 2008. Adm. Law Judge William G. Kocol issued his decision March 26, 2008.

***

In Re: Uzi Einy (2-AD-59; 352 NLRB No. 134) New York, NY Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352134.htm

The Board adopted the administrative law judge's decision finding that the Respondent, Uzi Einy, engaged in misconduct of an aggravated character under Section 102.177(a) and (b) of the Board's Rules and Regulations in connection with proceedings in the case 675 West End Owners Corp., 345 NLRB 324 (2005). Accordingly, the Board suspended the Respondent from practicing before or appearing on behalf of a party before the Board for 6 months from the date of the decision.

(Chairman Schaumber and Member Liebman participated.)

Adm. Law Judge Richard A. Scully issued his decision Oct. 26, 2007.

***

Jerry Ryce Builders, Inc. (13-CA-43917, 43918; 352 NLRB No. 143) Chicago, IL Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352143.htm

The Board adopted the administrative law judge's findings that when the Respondent failed to hire overt Union salts Luciano Padilla, Dwan Johnson, and Humberto Juarez, the Respondent was hiring or had concrete plans to hire, and that the General Counsel had met his burden to show that all of the applicants had experience or training relevant to the announced or generally known requirements for the bricklayer position, and therefore the failure to hire these applicants was due to their union affiliation, and violated Section 8(a)(3) and (1) of the Act. The Board noted that there were no exceptions filed to the judge's finding that the Respondent violated Section 8(a)(1) and (3) by failing to consider these applicants for hire.

The Board also adopted the judge's finding that the Respondent violated Section 8(a)(3) and (1) by discharging employees Andy Kwiecien and Jack Probola for union activity, as well as his findings that the Respondent violated Section 8(a)(1) by: (a) telling employees that others had been discharged because of their union affiliation; (b) telling employees to eat their lunches on the jobsite to avoid contact with union representatives; and (c) instructing employees to call the police if they saw individuals associated with the Union.

The Board affirmed the judge's findings that the Respondent violated Section 8(a)(1) by coercively interrogating employees Jaroslaw and Marcin Sral on several occasions when the Respondent's owner Omielan Boguslaw inquired as to whether they belonged to the Union, stated that it was good that they did not belong, and/or made negative comments about the Union.

The decision includes a footnote finding no basis to reverse the judge's credibility findings, although Chairman Schaumber noted that he questioned some of the judge's basis for crediting or discrediting certain testimony of the witnesses, but that he did not find that a clear preponderance of the evidence demonstrated that the judge's credibility resolutions were incorrect.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by Bricklayers Illinois District Council No. 1; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Chicago, July 30-31, 2007. Adm. Law Judge Mark D. Rubin issued his decision Nov. 19, 2007.

***

M.V.M., Inc. (24-CA-10681; 352 NLRB No. 133) San Juan, PR Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352133.htm

The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and then discharging employee Marcial Rodriguez for concertedly sending a letter critical of the Respondent to the Respondent's client. In finding that violation, the Board rejected the Respondent's arguments that the letter lost the Act's protection because it did not relate to an ongoing labor dispute, disparaged the Respondent's services; and/or contained maliciously false allegations. The Board also adopted the judge's finding that the Respondent violated Section 8(a)(1) by coercively interrogating Rodriguez about the letter. Finally, the Board affirmed the judge's decision to reopen the hearing, after the court reporter irretrievably lost witness Freddie Barreto's testimony, to accept additional testimony.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Marcial Rodriguez, an individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at San Juan on Nov. 8, 2007. Adm. Law Judge Paul Bogas issued his decision April 25, 2008.

***

Post Tension of Nevada, Inc. (28-CA-21579; 352 NLRB No. 131) Phoenix, AZ, Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352131.htm

The Board adopted the administrative law judge's findings that the Respondent did not violate Section 8(a)(1) of the Act by engaging in unlawful surveillance of employees; the Respondent violated Section 8(a)(1) by enacting and maintaining overly broad and discriminatory rules that prohibited employees from talking to union representatives; the Respondent violated Section 8(a)(1) by informing employees it would not issue paychecks on Friday mornings in order to interfere with the employees' ability to meet with a union representative, but did not violate Section 8(a)(3) by imposing more onerous terms and conditions of employment and prohibiting employees from cashing checks at a nearby facility; the Respondent violated Section 8(a)(1) by threatening employees with discharge if they engaged in a strike; the Respondent did not discharge 15 employees in violation of Section 8(a)(3) and (1); the employees engaged in an unfair labor practice strike; the Respondent violated Section 8(a)(3) and (1) by failing and refusing to reinstate 15 employees following their unconditional offers to return to work; and the Respondent violated Section 8(a)(1) by refusing to give applicant Brady Bratcher an employment application but did not violate Section 8(a)(3) by refusing to consider him for employment.

The Board additionally found that the Respondent's rule against going to the Chevron station also prohibited the employees from assembling. Further, the Board rejected the judge's erroneous conclusion that the reinstatement rights of the unfair labor practice strikers, who were not salts, are subject to Oil Capitol Sheet Metal, 349 NLRB No. 118 (2007).

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Iron Workers District Council of the State of California and Vicinity; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Phoenix, Feb. 12-14, 27, 2008. Adm. Law Judge Lana H. Parke issued her decision April 18, 2008.

***

Structure Tone, Inc. (22-CA-28139; 352 NLRB No. 132) Newark, NJ Aug. 27, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352132.htm

The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish Operating Engineers Local 825 (Union) with relevant information that it had requested. The Union's request sought information related to the Respondent's active construction projects within the Union's geographic jurisdiction. Like the judge, the Board assumed, without finding, that the Union's request related to non-unit employees, but found that the Union adequately demonstrated the relevance of the information.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Operating Engineers Local 825; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Newark on March 25, 2008. Adm. Law Judge Joel P. Biblowitz issued his decision April 22, 2008.

***

Town & Country Plumbing & Heating, Inc.(7-CA-46572; 352 NLRB No. 139) Bath, MI Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352139.htm

The Board found on a stipulated record that the Respondent violated Section 8(a)(5) of the Act by withdrawing recognition from the Union without having bargained for a reasonable period of time following a formal board settlement. The settlement required the Respondent to, among other things, bargain in good faith with the Union. The Board assumed arguendo that the reasonable period for bargaining required under the settlement commenced no earlier than Jan. 16, 2003, the date of the parties' first face-to-face bargaining session after entering into a stipulated settlement agreement (but before the Board's Feb. 3, 2003 approval of the settlement). Applying the multifactor test under AT Systems West, Inc., 341 NLRB 57 (2004), the Board found that a reasonable period of bargaining had not elapsed when the Respondent withdrew recognition on June 27, 2003, which was at most some 5 ½ months after the bargaining had commenced. In particular, the Board found that the most probative facts were that the parties were bargaining for their first contract, that they were not at impasse, and that they held just three, 2-hour, bargaining sessions. Those facts outweighed the countervailing considerations, i.e., that the parties neither experienced any particular bargaining complexities nor were they on the verge of an agreement.

Because the Board found that this 5 ½ month period did not constitute a reasonable period of bargaining, the Board found it unnecessary to address whether a minimum 6-month period of bargaining is mandated here, as it was in Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), enfd. 310 F.3d 209 (D.C. Cir. 2002).

(Chairman Schaumber and Member Liebman participated.)

The parties waved their right to a hearing before an administrative law judge.

***

Walgreen Co. (29-CA-28345; 352 NLRB No. 137) Oceanside, NY Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352137.htm

The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by telling union agents, in the presence of employees, that they may not speak to employees in a public parking lot; threatening the union agents, in the presence of employees, with the summoning of police if they continue to speak with its employees in a public parking lot; and summoning the police, in the presence of employees, to eject union agents from a public parking lot.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Food and Commercial Workers Local 1500; complaint alleged violation of Section 8(a)(1). Hearing at Brooklyn on Oct. 25, 2007. Adm. Law Judge Steven Davis issued his decision Feb. 6, 2008.

***

Wayneview Care Center and Victoria Health Care Center (22-CA-26987, et al.; 352 NLRB No.129) Wayne and Matawan, NJ Aug. 26, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352129.htm

The Board, affirming the administrative law judge, held that the Respondents committed various violations of Section 8(a)(3), (5), and (1) of the Act in connection with contract negotiations and a resulting strike and lockout.

The Respondents are nursing homes in New Jersey that share the same chief operating officer. The Union represents a unit of Respondent Victoria's certified nursing assistants, housekeeping, laundry, and dietary employees, and a separate unit of Respondent Wayneview's employees in those same classifications. The Union was also a party to a multiemployer agreement with a group of other nursing homes (not including the Respondents), which agreement contained a most-favored-nations clause.

In Feb. 2005, the Union and the Respondents began negotiations for successor collective-bargaining agreements for the Wayneview and Victoria units. In April, the negotiation sessions were combined. Also in April, Respondent Wayneview began developing a strike-contingency plan as required by the state of New Jersey. Respondent Wayneview began interviewing temporary employees, but made no hiring commitments.

The parties bargained through the spring and summer, culminating in an all-night mediated bargaining session on Aug. 18. The parties exchanged proposals near the end of that session, but they adjourned without agreement and without scheduling any additional meetings, although the judge found that they anticipated that further meetings would occur. On Aug. 22, the Victoria employees voted to authorize a strike. The Wayneview employees elected not to strike and sent the Respondent a letter stating that their activity would be limited to informational picketing on Aug. 23 during nonworking time. Also on Aug. 22, the Respondents faxed the Union a proposal that was regressive on certain issues.

On Aug. 23, after their informational picketing, the Wayneview employees attempted to report to work, but were not permitted to do so. The facility was manned with temporary employees until Sept. 6, when the unit employees were reinstated. While the employees were locked out, they circulated a decertification petition. A Wayneview manager told one employee that she could return to work if she signed the petition.

The Victoria employees began a strike on Aug. 23. On Aug. 26, they submitted an offer to return to work on Aug. 28, which the Union clarified was an offer to return under the terms of the expired contract. On Aug. 28, the Victoria employees reported for work, but were told they were locked out. Many were reinstated on Sept. 6, but some remained locked out for several months. On Sept. 6, the Respondents implemented their Aug. 22 offers at each facility.

The judge found that both Respondents violated Section 8(a)(5) and (1) by threatening to implement, and by actually implementing, their final contract offer in the absence of a valid impasse; by refusing to meet with the Union; and by refusing to provide the Union with certain requested information. The judge also found that Respondent Wayneview violated Section 8(a)(3) by locking out the unit employees for unlawful reasons, in the absence of a business justification, and without informing the Union of the conditions for ending the lockout. The judge found that the lockout also violated 8(a)(5) because it was an attempt to coerce acceptance of a unilaterally implemented final offer. In addition, the judge found that Respondent Wayneview violated 8(a)(1) by assisting with a decertification petition through certain conduct of its "staffing coordinator" and through an admitted supervisor and agent's promise that an employee could return to work if she signed the petition. The judge found that Respondent Victoria violated Section 8(a)(3) by failing to reinstate the strikers and Section 8(a)(5) by locking them out in an attempt to coerce acceptance of a unilaterally implemented final offer.

The Board affirmed the violations. In finding that the parties did not reach a valid impasse, the Board emphasized that, although the Union had initially adhered to a health insurance proposal that required participation in the Union's plan (which would mirror the Union's agreement with the other employers and avoid application of that agreement's most-favored-nations clause), the Union retreated from that position on Aug. 18 and offered to continue participating in the Respondents' plan. The Board distinguished Richmond Electrical Services, 348 NLRB 1001 (2006), in which the union conceded that a most-favored-nations clause precluded it from agreeing to lower wages, and in which impasse over wages led to a complete breakdown in negotiations. The Board also distinguished Matanuska Electric Assn., 337 NLRB 680 (2002), in which the Board found a valid impasse on the basis that the union had engaged in stall tactics and the respondent had specifically stated that it was willing to continue bargaining if the union submitted a proposal showing some movement.

In finding that the Wayneview lockout violated Section 8(a)(3), the Board relied on the judge's finding that Respondent Wayneview failed to show a legitimate and substantial business justification for the lockout. The Board found it unnecessary to rely on the judge's alternative findings that the lockout was motivated by antiunion animus and that the Respondent unlawfully failed to inform the Union of the conditions for ending the lockout. Finally, in finding that Respondent Wayneview unlawfully assisted with a decertification petition, the Board relied only on the admitted supervisor's promise to an employee that she could be reinstated if she signed the petition. The Board found it unnecessary to rely on alleged conduct by the Wayneview staffing coordinator.

The Board adopted the judge's findings that the lockout and refusal to reinstate at Victoria were unlawful and that both Respondents violated Section 8(a)(5) by refusing to provide the Union with certain relevant and necessary information. The Board also adopted various other Section 8(a)(3), (5), and (1) violations in the absence of exceptions.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by SEIU 1199, New Jersey Health Care Union; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Newark, eleven days from Sept. 26 to Dec. 6, 2006. Adm. Law Judge Eleanor MacDonald issued her decision July 26, 2007.

***

Whitesell Corp. (18-CA-18143, et al.; 352 NLRB No. 138) Washington, IA Aug. 29, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352138.htm

The administrative law judge found that the Respondent violated Section 8(a)(1) and (5) of the Act in various respects. On review, the Board adopted some of the judge's findings, while reversing other findings. Regarding the Section 8(a)(1) findings, the Board adopted the judge's finding that the Respondent violated Section 8(a)(1) by prohibiting distribution of union notices during employees' breaktimes and by promulgating a policy prohibiting employees from posting union materials on the Respondent's bulletin boards.

Regarding the judge's Section 8(a)(5) findings, the Board adopted his conclusions that the Respondent violated Section 8(a)(5) by: (1) terminating the parties' existing collective-bargaining agreement without first providing the requisite Section 8(d)(3) notice to the Federal Mediation and Conciliation Service; (2) failing to provide the Union with necessary and relevant information it requested regarding merit pay, vacation, and assignment of unit employees to perform work at the Respondent's new facility; (3) unilaterally implementing portions of its June 12, 2006 final offer without first bargaining with the Union to a good faith impasse; (4) unilaterally discontinuing the supplemental accident insurance fund; (5) unilaterally discontinuing dues check-off; and (6) failing and refusing to process grievances.

The Board reversed, however, the judge's findings that the Respondent violated Section 8(a)(5) by: (1) failing to provide the Union with necessary and relevant information concerning layoff and recall and retirement; and (2) implementing a new attendance policy. As to the layoff and recall information, the Board found that the Respondent provided the Union with the requested information and that the Union did not subsequently renew its request or otherwise indicate that it expected more information. As to the retirement information, the Board found that the Respondent's delay in providing the information to the Union from Aug. until Oct. was permissible, as the Respondent had to wait to receive the requested information from its retirement plan provider. Further, as to the attendance policy, the Board found that the alleged 10-point system for evaluating attendance was not a new Respondent policy, but rather was merely a supervisor's informal, personal notations regarding attendance and thus did not rise to the level of a substantial and material change to the Respondent's attendance policy over which the Respondent was required to bargain.

In absence of exceptions, the Board adopted the judge's dismissal of the allegations that the Respondent violated Section 8(a)(1) by denigrating the Union's representative and threatening bargaining futility and plant closure; and violated Section 8(a)(5) by prohibiting the Union from posting materials in the plant on June 13, 2006, failing to provide the Union with all postings on or after that date, and engaging in surface bargaining.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by Glass, Molders, Pottery and Plastics Workers Local 359; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Washington, Jan. 9-11, 2007. Adm. Law Judge Bruce D. Rosenstein issued his decision March 2, 2007.

***



LawMemo publishes Employment Law Memo.

NLRB Law Memo 09/03/2008
by Ross Runkel at LawMemo

NLRB Law Memo 09/03/2008
by
LawMemo - First in Employment Law.
Also by email.

NLRB - Staff summarized 4 decisions.

Barstow Community Hospital-Operated by Community Health Systems, Inc. (31-CA-26057; 352 NLRB No. 125) Barstow, CA Aug. 18, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352125.htm

This case involves the Board's review of the administrative law judge's supplemental decision following the Board's remand for further consideration in light of its decisions in Oakwood Healthcare, Inc., 348 NLRB 686 (2006), Croft Metals, Inc., 348 NLRB 717 (2006) and Golden Crest Healthcare Center, 348 NLRB 727 (2006). The Board found that the Respondent did not establish that registered nurse Lois Sanders was a statutory supervisor when acting as Relief Clinical Coordinator because the record evidence did not show that Relief Clinical Coordinators responsibly direct or that they exercise independent judgment in assigning work. In light of these findings, the Board found it unnecessary to pass on the judge's further finding that Sanders' Relief Clinical Coordinator assignments were not a sufficiently "regular and substantial" portion of her work time for her to be considered a supervisor.

Accordingly, the Board affirmed the judge's findings that the Respondent violated Section 8(a)(3) of the Act by discharging Sanders for engaging in protected, concerted activity while acting as a Relief Clinical Coordinator and violated Section 8(a)(1) by interrogating her during its pre-discharge investigation of the matter. The Board also affirmed the judge's finding that, although unalleged in the complaint, the pre-discharge suspension of Sanders violated Section 8(a)(3) because the issue was fully litigated and closely connected to the complaint allegations. However, because the interrogation violation was affirmed, the Board found it unnecessary to pass on the judge's finding that the Respondent's pre-discharge investigation violated Section 8(a)(1) since it would not materially affect the remedy.

The Board found no merit in the Respondent's exceptions to two of the judge's rulings. First, the Board found it unnecessary to address the Respondent's exception to the judge's ruling precluding it from introducing evidence concerning the conduct of the unfair labor practice investigation because the exception did not meet the specificity requirements of Section 102.46 of the Board's Rules and Regulations. Second, the Board affirmed the judge's denial, following the Board's remand, of the Respondent's Motion to Reopen the Record to offer evidence that Sanders was a supervisor based solely on her regular duties as a registered nurse because the Respondent failed previously to assert this argument.

(Chairman Schaumber and Member Liebman participated.)

Adm. Law Judge Lana H. Parke issued her supplemental decision Feb. 23, 2007.

***

John T. Jones Construction Co., Inc. (17-CA-22607, et al.; 352 NLRB No. 126) Springfield, MO Aug. 19, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352126.htm

The Board adopted the administrative law judge's finding that the General Counsel's calculated backpay formula was appropriate. On Nov. 29, 2007, the Board, sua sponte, issued an Order vacating its supplemental decision and order (349 NLRB No. 119 (2007)) and announced that it would reconsider the issues in this case that may be affected by its decision in Oil Capitol Sheet Metal, 349 NLRB No. 118 (2007). Upon reconsideration in light of Oil Capitol, the Board found that the record established that the discriminatees, as salts, would have worked the entire backpay periods alleged, because the periods were limited to one project; they ended before that project was completed; and they ended prior to the representational election.

(Chairman Schaumber and Member Liebman participated.)

***

Stage Employees IATSE Local 720 (Production Support Services, Inc.) (28-CB-6555; 352 NLRB No. 128) Las Vegas, NV Aug. 22, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352128.htm

The Board affirmed the administrative law judge's finding that the Respondent Union, in operating an exclusive hiring hall and referral system, did not violate Section 8(b)(1)(A) or (2) of the Act by maintaining rules providing that failure to pay a Union fine will result in an employee's suspension from the referral system until the fine is paid.

The Board found it unnecessary to pass on the judge's analysis of the work rules, as maintained, because the Charging Party's argument concerning the work rules exceeded the scope of the General Counsel's theory of the case as alleged in the complaint and proffered at the hearing.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Michael Young, an individual; complaint alleged violation of Section 8(b)(1)(A) and (2). Hearing at Las Vegas, Aug. 14-15, 2007. Adm. Law Judge John J. McCarrick issued his decision Dec. 26, 2007.

***

Woodbury Partners, LLC d/b/a The Inn at Fox Hollow (29-CA-28122, et al.; 352 NLRB No. 127) Woodbury, NY Aug. 22, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v352127.htm

The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by photographing employees while they were engaged in lawful picketing. The Board also affirmed the judge's findings that the Respondent did not violate Section 8(a)(1) by threatening job loss, hotel closure, or the futility of collective bargaining if the employees selected the Union. The Board remanded to the judge the issue of whether the Respondent violated Section 8(a)(1) and (3) by discharging a supervisor, in light of the judge's failure to address that issue in his decision. Reversing the judge, the Board found that the Respondent violated Section 8(a)(1) by discharging an employee. The Board noted that no exceptions were filed to the judge's finding that the General Counsel met his initial burden of establishing that protected conduct was a motivating factor in the discharge. Contrary to the judge, the Board found that the Respondent failed to meet its rebuttal burden of establishing that it would have discharged the employee even in the absence of her protected conduct.

The Board modified the judge's recommended Order to conform to its findings. The Board also substituted a narrow cease-and-desist order for the broad order recommended by the judge, finding that a broad order is not warranted under the test set forth in Hickmott Foods, 242 NLRB 1357 (1979). The Board further modified the recommended Order to require the Respondent to post notices in both English and Spanish, in light of record evidence indicating that many of the Respondent's employees are primarily Spanish speaking and have limited English proficiency. The Board denied the General Counsel's request for compound interest on backpay.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by individuals; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Brooklyn, Sept. 25-26, 2007. Adm. Law Judge Howard Edelman issued his decision Dec. 5, 2007.

***

LawMemo.Com

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search | Employment Law Memo 
EEOC Info | NLRB Info | Supreme Court | Arbitration | Articles | Law Firms
Employment Law Blog | Arbitration Blog | Employment Law 101 

 

Get your 28 day trial now 

 
Google
 
Web www.LawMemo.com 
This form will search the LawMemo web site. 
It does not include Key Word Search.

 

 

28 day Trial