« NLRB Law Memo 09/12/2008 | Main | NLRB Law Memo 10/04/2008 »
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 free weekly 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.)
***
|
|
|
Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
