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NLRB Law Memo 10/31/2008
by Ross Runkel at LawMemo
NLRB Law Memo 10/31/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 1 decision.
Rochelle Waste Disposal, LLC (33-CA-15298 and 33-RC-5002; 353 NLRB No. 38) Rochelle, IL Oct. 20, 2008.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(3), (4), and (1) of the Act by discharging employee Jeff Jarvis because he supported the Union's organizing efforts and because he testified in a Board representation proceeding. In light of this finding, the Board ordered the Regional Director to open and count Jarvis's challenged ballot in the representation election.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Operating Engineers Local 150; complaint alleged violations of Section 8(a)(1), (3), and (4). Hearing at Peoria, March 12 and April 18, 2008. Adm. Law Judge George Carson II issued his decision June 27, 2008.
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NLRB Law Memo 10/18/2008
by Ross Runkel at LawMemo
NLRB Law Memo 10/18/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 15 decisions.
Alton H. Piester, LLC (11-CA-21531; 353 NLRB No. 33) Newberry, SC Sept. 30, 2008.
The Board reversed the administrative law judge's dismissal of the allegations that the Respondent violated Section 8(a)(1) of the Act when: 1) its owner told employees that if they did not like the Respondent's new billing practice, which affected their rate of compensation, they could "clean out their trucks and move to another job "; 2) its secretary, in the presence of the owner, told an employee that if he was unhappy working for the Respondent he should "clean out his truck "; and 3) it discharged an employee because he engaged in protected concerted activity. The discharged employee's actions, which included repeating an earlier protected concerted complaint and voicing an individualized request, were found to be continuations of the earlier protected concerted activity. In finding the Section 8(a)(1) discharge, the Board relied on both Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert. denied, 445 U.S. 989 (1982), and Atlantic Steel/Felix Industries, 245 NLRB 814 (1979) 331 NLRB 144, 144-46 (2000), enf. denied on other grounds and remanded 251 F.3d 1051 (D.C. Cir. 2001) analyses.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by Darrell Chapman, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Newberry, Sept. 17-18, 2007. Adm. Law Judge Keltner W. Locke issued his decision Oct. 24, 2007.
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American Directional Boring, Inc., d/b/a ADB Utility Contractors, Inc. (14-CA-27386, et al.; 353 NLRB No. 21) St. Louis, MO, Sept. 30, 2008.
The Board adopted the administrative law judges' findings that the Respondent committed multiple violations of Section 8(a)(1) and (3) following the Union's efforts to organize employees in early 2003. The Board also adopted the judges' finding that a Gissel bargaining order was necessary and warranted under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), in light of the egregiousness and pervasiveness of the Respondent's unlawful activity
The Board affirmed the judge's findings that the Respondent committed multiple violations of Section 8(a)(1), which included impliedly threatening employees with job loss, futility, and closure, soliciting union supporters to quit their employment, impliedly threatening discipline for wearing Union pins, impliedly threatening reduction or loss of their bonus, threatening loss of insurance and retirement plan, threatening to subcontract more work, interrogating employees about their union activities and threatening unspecified reprisals because of their union activities, and creating an impression of surveillance. The Respondent had not excepted to any of these findings.
In addition, the Board affirmed the judge's findings that the Respondent repeatedly violated Section 8(a)(3) and (1) by discharging 13 union supporters. In doing so, the Board found that the General Counsel carried his initial burden and established that union activity was a motivating factor in the discharge of all 13 employees. The Board also agreed with the judge that every one of the reasons proffered by the Respondent in defense of the discharges was pretextual. The Board rejected the Respondent's contentions that some of the discharged employees were statutory supervisors.
Finally, the Board affirmed the judges' finding that a category I Gissel bargaining order was warranted in light of the Respondent's extensive record of unlawful conduct. In doing so, the Board relied on the Respondent's numerous, widely communicated threats of plant closure and job loss, its unlawful discharge of 22 percent of the bargaining unit, its fabrication of evidence against union supporters, the involvement of the Respondent's general manager and its pervasive wrongdoing in violation of Section 8(a)(1).
The Board rejected the Respondent's contentions that a Gissel bargaining order would be inappropriate due to turnover in management and the bargaining unit since the close of the hearing. Affirming the judge's findings, the Board found that turnover since the Respondent's commission of the unfair labor practices does not militate against a bargaining order.
The Board also rejected the Respondent's argument that a bargaining order is no longer a viable remedy based on the passage of time since the violations were committed. The Board found that the passage of time will not dissipate the coercive effects of the Respondent's unlawful coercive conduct. In doing so, the Board stated that "although almost 5 years have elapsed since the commission of the last of the Respondent's unfair labor practices, the length of time the case has been with the Board is consistent with the ordinary course of litigation. " The Board emphasized that the case was not fully briefed to the Board until late last year. The Board also stated that the Respondent was at least partially responsible for the delay in this case based on its shifting posture on the supervisory status issue.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Electrical Workers [IBEW] Local 2; complaint alleged violations of Section 8(a)(1) and (3). Hearing at St Louis, 16 days between Aug. 4, 2003 and Feb. 5, 2004. Adm. Law Judge Benjamin Schlesinger issued his decision May 10, 2005. Adm. Law Judge Paul Buxhaum issued his supplemental decision Aug. 23, 2007.
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Camelot Terrace, Inc. (13-CA-43936, 44044; 353 NLRB No. 20) Streator, IL Sept. 29, 2008.
The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing warnings to and discharging employee Cheryl Henson. Henson, subsequent to her first week of work, had never received discipline in over 17 years of employment with the Respondent until she and her daughter testified as union witnesses in an arbitration hearing against the Respondent. Thereafter, within a four month period, she was disciplined twice and finally discharged for alleged poor work performance. The judge found that each of the warnings and the discharge were contrived and were motivated by the Respondent's animus against the Union. The judge also discredited the Respondent's explanations for its actions and found them pretextual. The Board adopted the judge's finding of a violation.
The Board refrained from adopting the judge's dismissal of a complaint allegation that the Respondent violated Section 8(a)(3) and (1) by discharging employee Crystal Lopez. Rather, the Board found that the judge failed to articulate a basis for many of his credibility determinations and failed to address evidence that arguably contradicted a number of his factual findings regarding the dismissal. The Board therefore severed and remanded the complaint allegation to the judge. On remand, the judge is to make reasoned credibility resolutions and findings of fact that detail the supporting evidence and either discredit or reconcile the evidence that contradicts those resolutions and factual findings.
The Board stated: "In remanding, we stress that we do not pass on the merits of this allegation or the ultimate validity of the judge's prior findings and credibility resolutions; we simply ask that he explain his findings and credibility resolutions in sufficient detail for our review. "
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Service Employees Local 4; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Peoria, Aug. 28-29, 2007. Adm. Law Judge Laurence W. Cullen issued his decision March 4, 2008.
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Case Farms of North Carolina, Inc. (11-CA-21378, 21379; 353 NLRB No. 26) Morganton, NC Sept. 30, 2008.
The Board found that the Respondent violated Section 8(a)(1) of the Act by discriminatorily discharging employees Luz Rodriguez and Evodia Dimas because they engaged in the protected concerted activity of complaining to the local press about employees' working conditions.
The Respondent's employees engaged in an in-plant work stoppage protesting a change in the Respondent's work policies. Employees Rodriguez and Dimas were the only employees quoted by name voicing employee complaints in a local newspaper article published after the work stoppage. The Respondent discharged Dimas, and suspended Rodriguez, later to discharge her, within 48 hours of the Respondent learning they voiced complaints about employee working conditions to the local press. The Board found this timing to be strong evidence of an unlawful motive by the Respondent in discharging Rodriguez and Dimas.
Regarding Rodriguez, who the Respondent discharged for throwing product, the Board affirmed the administrative law judge's finding that the Respondent had failed to conduct an investigation regarding her conduct, and treated her disparately than other employees who had not been discharged for similar conduct. The Board thus affirmed the judge's finding that the Respondent had a discriminatory motivation in discharging Rodriguez, and that the Respondent had failed to show that it would have discharged her even in the absence of her protected activity. Reversing the judge, the Board found that the Respondent discriminatorily discharged Dimas, based on the timing of her discharge; that it occurred in conjunction with the unlawful discharge of Rodriguez for the same protected activity; its reliance on a false reason for discharging her; and its disparate treatment of her than other employees who had not been discharged in similar circumstances of requesting a work accommodation due to an injury.
The Board adopted the judge's recommended backpay and reinstatement remedy for the unlawful discharge of Rodriguez. Regarding Dimas, the Board, consistent with its practice, ordered conditional provisions for reinstatement and backpay. The Board thus ordered the Respondent to offer Dimas reinstatement subject to the condition that she presents, within a reasonable time, INS form I-9 and the appropriate supporting documents proving legal immigrant status. The Board left to the compliance stage of the proceeding a determination of the backpay due Dimas, observing that the Board is obligated to toll backpay for any part of the backpay period during which Dimas is not lawfully entitled to be in the United States.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Western North Carolina Workers' Center; complaint alleged violation of Section 8(a)(1). Hearing at Morganton, July 16-18, 2007. Adm. Law Judge John H. West issued his decision Sept. 28, 2007.
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Charter School Administration Services, Inc. (7-RC-23108; 353 NLRB No. 35) Waterford, MI Sept. 30, 2008.
The Board found that the Employer, a private, for-profit corporation, was not a political subdivision of the State of Michigan and, therefore, not exempt from the Board's jurisdiction. The Employer had a contract to operate and manage the Academy of Waterford, a public charter school. The Employer managed the educational program, managed the financial aspects of the Academy's operations, and hired and paid all personnel who worked at the Academy. Following the test set out in NLRB v. Natural Gas Utility District of Hawkins County, 402 U.S. 600 (1971), the Board examined the operations of the Employer and found that the members of the Employer's board of directors are appointed and removed by the corporation's shareholders and not by any public officials. The Board further found no indication that any director or corporate officer had "direct personal accountability to public officials or the general electorate. " The Board concluded that because the Employer was not administered by individuals who are responsible to public officials or the general electorate, the Employer was not a political subdivision of the State of Michigan and was not exempt from the Board's jurisdiction on that basis. The Board further found that the Employer meets the statutory definition of "employer " because the Employer controls some matters pertaining to the employment relationship of the petitioned-for teachers and counselors who work at the Academy of Waterford. The Employer has the sole responsibility to hire, fire, assign, discipline and pay the petitioned-for employees. The Board concluded that as the Employer is an employer within the meaning of the Act and meets the Board's monetary jurisdictional standards, the Board should assert jurisdiction over the Employer. The Board reversed the Regional Director and reinstated the petition seeking an election among teachers and counselors employed by the Employer who work at the Academy.
(Chairman Schaumber and Member Liebman participated.)
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Eugene Iovine, Inc. (29-CA-21052, et al.; 353 NLRB No. 36) Farmingdale, NY Sept. 30, 2008.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by laying off employees without providing the Union timely notice and an opportunity to bargain over the layoffs.
The Board rejected the Respondent's affirmative defense that it was merely adhering to a consistent past practice of unilaterally implementing layoffs in response to work-or-weather-related delays on its construction projects. The Board found that the Respondent, which bears the burden of proving the existence of its past practice, failed to present evidence showing when, how frequently, or under what circumstances its asserted past practice of unilateral layoffs occurred. Absent such evidence, the Board concluded that the Respondent had not demonstrated that the challenged layoffs were permitted as a continuation of past practice. The Board found it unnecessary to pass on the judge's discussion of whether a past practice based on the acquiescence of a prior union can be relied on to unilaterally impose changes on a new union.
(Chairman Schaumber and Member Liebman participated.)
Adm. Law Judge David I. Goldman issued his supplemental decision Aug. 31, 2006.
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Faurecia Exhaust Systems, Inc. (8-CA-37192, et al.; 353 NLRB No. 34) Toledo, OH Sept. 30, 2008.
There are two issues presented in this case -- 1) whether the Respondent violated Section 8(a)(1) of the Act by telling employees during an organizational campaign that they could not post union literature in the production facility's lunchroom without management permission, and 2) whether the Respondent violated Section 8(a)(3) by warning and suspending an employee after he asked two coworkers to obtain for him the names, addresses and phone numbers of unit employees (contact information) for use in the organizing campaign. The administrative law judge found both violations. The Board reversed the Section 8(a)(1) violation and remanded the Section 8(a)(3) violation to the judge for further analysis.
With respect to the Section 8(a)(1) violation, the Board found that the judge erroneously applied the legal standard for determining whether workplace no-distribution rules are lawful. The Board noted that the complaint did not allege a violation of a no-distribution rule; rather, it alleged an unlawful prohibition against the posting of union literature. The law regarding no-posting rules is that an employer may prohibit such postings, provided that it does not engage in unlawful discrimination. Applying this standard, the Board reversed the Section 8(a)(1) violation because there was no evidence that the Respondent's no-posting rule was applied in a discriminatory fashion.
With respect to the Section 8(a)(3) violation, the Respondent argued that employee Marvin Blue, by asking two coworkers to obtain for him the contact information of unit employees, sought to surreptitiously circumvent a handbook provision that assured employees that their personnel information would not be released to outside parties without their permission. The Respondent argued that this conduct was unprotected and that it lawfully disciplined Blue.
The judge found that the Respondent's discipline of Blue was unlawful under the analysis set forth in Wright Line, 251 NLRB 1083 (1980). The judge found that the General Counsel met his burden under Wright Line of showing that Blue engaged in protected activity that was a motivating factor behind the Respondent's discipline of Blue. The judge rejected the Respondent's argument that Blue's conduct in seeking unit employees' contact information was unprotected, and concluded that by failing to meet its rebuttal defense under Wright Line, a violation of Section 8(a)(3) was established. The judge added, however, that even if Blue's conduct in seeking employees' contact information was unprotected, the Respondent's discipline of Blue was still unlawful because Blue engaged in protected conduct months earlier by soliciting employee support for the Union and that this conduct also was a motivating factor behind the Respondent's discipline of Blue.
The Board found it necessary to remand this part of the judge's decision for clarification as to whether he applied a Wright Line pretext analysis in rejecting the Respondent's rebuttal defense, or a Wright Line dual-motive analysis. Specifically, the judge was instructed to explain whether he rejected as pretextual the Respondent's defense that it relied on Blue's assertedly unprotected conduct in disciplining him, or whether he rejected the Respondent's defense on the
basis that it failed to establish that despite Blue's earlier protected conduct in soliciting union support among employees, it would have disciplined him in any event because of the assertedly unprotected conduct in surreptitiously seeking employees' contact information.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Auto Workers UAW Region 2-B; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Toledo, Jan. 15-16, 2008. Adm. Law Judge Ira Sandron issued his decision April 2, 2008.
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Hanson Aggregates BMC, Inc. (4-CA-33330, et al.; 353 NLRB No. 28) Penns Park, PA Sept. 30, 2008.
The Board reversed the administrative law judge's findings that: 1) the Respondent did not violate Section 8(a)(5) of the Act as to the Union's request for information regarding the Respondent's proposal to continue its current health care plan, administered by HighMark Blue Cross; 2) the Respondent did not violate Section 8(a)(5) as to the Union's request for copies of administrative manuals, rules, and regulations with respect to a proposed Aetna health plan; and 3) the Respondent violated Section 8(a)(5) as to the Union's request for information about dual (i.e., two-person) health care coverage. The Board largely affirmed the judge's other findings, which concerned alleged violations of Section 8(a)(5), (3), and (1).
In affirming the judge's finding that the Respondent lawfully discharged employee Glen Peabody, the Board found, contrary to the judge, that the General Counsel met his initial burden of proving that union activity was a motivating factor in the Respondent's decision to discharge Peabody. However, the Board agreed with the judge's alternative finding that the Respondent met its rebuttal burden. The Board found it unnecessary to pass on the General Counsel's exceptions to the judge's failure to find additional Section 8(a)(1) violations based on statements by Supervisor Doug Chilson to Peabody because any such findings would have been cumulative to violations found and would not have materially affected the remedy or the Board's analysis of Peabody's discharge.
In affirming the judge's finding that the Respondent violated Section 8(a)(5) by implementing seven bargaining proposals in the absence of a good-faith impasse in overall negotiations, the Board found it unnecessary to rely on the judge's finding that the outstanding information requests precluded the possibility of impasse.
With regard to the Union's request for information about the Respondent's dental premium holiday, the Board affirmed the judge's finding that the Respondent unlawfully failed to provide information requested in items 6 and 7 of the Union's request. Noting that both the General Counsel and the Respondent agreed that the information requested in item 8 had already been provided, the Board dismissed the allegation as to that item. The Board modified the judge's recommended remedy by, inter alia, requiring the Respondent to make a reasonable effort to secure certain information from HighMark Blue Cross and Aetna, and, if any of that information remains unavailable, to explain and document the reasons for its continued unavailability.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Operating Engineers Local 542; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Philadelphia, May 18-19 and July 17-20, 2006. Adm. Law Judge Bruce D. Rosenstein issued his decision Oct. 23, 2006.
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Laurel Bay Health & Rehabilitation Center (22-CA-27192, et al.; 353 NLRB No. 24) Keansburg, NJ Sept. 30, 2008.
In this case, the Board adopted the administrative law judge's findings, based on a modified rationale, that the Respondent violated Section 8(a)(5) of the Act by prematurely declaring impasse and unilaterally implementing certain changes to terms and conditions of employment. The Board further adopted the judge's findings that the Respondent violated Section 8(a)(5) by: 1) refusing to supply information requested by the Union, 2) failing to meet with the Union since Oct. 4, 2005 for the purpose of negotiating a successor collective-bargaining agreement, and 3) unilaterally eliminating a transportation benefit providing bus or van service to and from work for unit employees.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by SEIU 1199 New Jersey Health Care Union; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Newark, Feb. 13, 15-16, and March 14, 2007. Adm. Law Judge Steven Davis issued his decision June 8, 2007.
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Majestic Towers, Inc. d/b/a Wilshire Plaza Hotel (31-CA-28135, et al.; 353 NLRB No. 29) Los Angeles, CA Sept. 30, 2008.
The Board affirmed, on modified grounds, the administrative law judge's findings that the Respondent's unfair labor practices precluded lawful impasse in the parties' contract negotiations and, therefore, the Respondent's unilateral implementation of parts of its final contract offer violated Section 8(a)(5) of the Act.
The judge found that the Respondent's numerous, unremedied unfair labor practices were "so extensive and pervasive as to make it practically impossible for the parties to have engaged in good-faith negotiations leading to impasse. " However, the Board found that it is well-established that "[n]ot all unremedied unfair labor practices committed ... will lead to the conclusion that impasse was declared improperly... Only 'serious unremedied unfair labor practices that affect the negotiations' will taint the asserted impasse. " Dynatron/Bondo Corp., 333 NLRB 750, 752 (2001). Accordingly, in affirming the judge's findings, the Board relied on only two of the unfair labor practices undisputedly committed by the Respondent that adversely affected the negotiations: the Respondent's failure to contribute to the Union's Health and Welfare Fund, and its failure to furnish to the Union the requested detailed cost calculations for the Respondent's economic proposals on core bargaining issues. Member Liebman found it unnecessary to pass on whether the Respondent's other unfair labor practices were sufficiently serious to affect the negotiations.
Although the Respondent did not except to the judge's findings that it failed to comply with several provisions of the collective-bargaining agreement, the Respondent excepted to his finding that it had repudiated the agreement. The Board affirmed the judge's finding of general contract repudiation but found no need to pass on whether this violation precluded impasse. The Board also did not rely on the judge's discussion of Republic Die & Tool Co., 343 NLRB 683 (2004) related to contract repudiation.
The Respondent and General Counsel excepted to the judge's failure to analyze the parties' bargaining conduct under the multi-factor test of Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968), to decide whether a bargaining impasse existed. The Board found no need to examine other aspects of the negotiations as the two unfair labor practices precluded the possibility of finding a lawful impasse. The Board further found it unnecessary to pass on the General Counsel's cross-exceptions to the judge's dismissal of an additional Section 8(a)(1) interrogation allegation and an additional Section 8(a)(5) allegation that the Respondent blocked the Union's access to a bulletin board as finding those violations would be cumulative of other uncontested, similar violations and would not materially affect the remedy. And the Board denied the General Counsel's cross-exception seeking compound interest for any backpay awarded.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by UNITE HERE Local 11, Los Angeles Hotel-Restaurant Employer-Union Welfare Fund, Los Angeles Hotel-Restaurant Employer-Union Retirement Fund, and Legal Fund of Hotel and Restaurant Employees of Los Angeles; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Los Angeles, Oct. 15-19 and Nov. 26-28, 2007. Adm. Law Gregory Z. Meyerson issued his decision April 7, 2008. ***
New Process Steel, LP (25-CA-30632; 353 NLRB No. 25) Butler, IN Sept. 30, 2008.
The Board granted the General Counsel's motion for summary judgment, finding that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union during the effective term of a binding collective-bargaining agreement. The Board accordingly denied the Respondent's Cross-motion for Summary Judgment.
In New Process Steel, LP, 353 NLRB No. 13 (2008), the Board found that the Respondent and the Union reached a binding collective-bargaining agreement, effective Aug. 12, 2007, and that the Respondent unlawfully repudiated that agreement on Sept. 11, 2007. The Respondent admitted that it withdrew recognition from the Union on Sept. 12, 2007, an act barred by the parties' binding contract. The Board therefore found that, as a matter of law, the Respondent unlawfully withdrew recognition from the Union on Sept. 12, 2007.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by Machinists District Lodge 34; complaint alleged violation of Section 8(a)(1) and (5). General Counsel filed motion for summary judgment July 10, 2008 and Respondent filed cross motion for summary judgment July 29, 2008.
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NYP Holdings, Inc., d/b/a The New York Post (2-CA-38209; 353 NLRB No. 30) Bronx, NY Sept. 30, 2008.
The Board reversed on due process grounds the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Ernest Grant for his protected concerted activities. The Board found that the judge's reliance on an unlitigated theory of violation deprived the Respondent of its right to due process.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by Operating Engineers Local 94-94A-94b; complaint alleged violations of Section 8(a)(1) and (3). Hearing at New York, Dec. 11-12, 2007. Adm. Law Judge Raymond P. Green issued his decision Feb. 8, 2008.
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Positive Electrical Enterprises, Inc. and its alter egos CNY Electrical Maintenance Corp. and CNY Electrical Service Group, Inc. d/b/a Positive Electric (3-CA-25037; 353 NLRB No. 27) Mattydale, NY Sept. 30, 2008.
The General Counsel filed a motion for default judgment on the ground that the Respondents failed to file legally sufficient answers to a compliance specification. The Board rejected the General Counsel's argument that the pro se respondents' filed letters were insufficient answers because they were not sworn to or served on the other parties. The Board noted that under certain circumstances, it has accepted a pro se respondent's unsworn answer to a compliance specification. The Board also found that the General Counsel failed to show any prejudice to the parties as a result of the Respondents' failure to serve their letters.
The Board also rejected the General Counsel's argument that the Respondents' letters failed to sufficiently deny all of the specification allegations. The Board found that the Respondents' letters constituted general denials of the specification's assertion that newly-named Respondent Maintenance was an alter ego of original Respondent Positive. To this end, the Board stated that a general denial of alter ego status is sufficient to warrant a hearing. Thus, the Board ordered a hearing on that issue. However, the Board found that the Respondents' letters failed to deny any of the remaining specification allegations. Accordingly, the Board admitted as true all allegations concerning backpay owed and payments owed to benefit funds.
(Chairman Schaumber and Member Liebman participated.)
General Counsel filed motion for default judgment June 9, 2008.
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PPG Aerospace Industries, Inc. (10-CA-36530 and 10-RC-15611; 353 NLRB No. 23) Huntsville, AL Sept. 30, 2008.
The Board, reversing the administrative law judge, found that lead persons ( "leads ") were not supervisors, overruled the Union's challenges to the leads' ballots, and remanded the representation case to the Regional Director to open the overruled challenged ballots and issue a revised tally of ballots. The Board found that the Union did not prove the leads, rather than admitted supervisors, controlled the leads' assignment decisions, and that the Union accordingly did not prove that the leads exercised independent judgment. The Board also found that the judge did not adequately explain two credibility determinations upon which the judge relied in finding two Section 8(a)(1) violations. The Board noted that it was unclear to what extent the judge relied on demeanor in making the credibility determinations and that the judge did not address inconsistencies between the credited witness' testimony and a written incident report she submitted to the Union. The Board remanded the unfair labor practice case to the judge to reconsider his credibility determinations, to further explain his credibility determinations, and to modify, if necessary, the two Section 8(a)(1) findings. The Board held in abeyance the remaining election objection and unfair labor practice issues pending the actions on remand.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Auto Workers; complaint alleged violations of Section 8(a)(1). Hearing at Huntsville, April 30 and May 1-2, 2007. Adm. Law Judge Lawrence W. Cullen issued his decision Oct. 19, 2007.
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The Continental Group, Inc., Sunset Harbour South Condominium Assn., Inc., Joint Employers, and The Executive Condominium Assn., Inc., Joint Employers (12-CA-24045, et al.; 353 NLRB No. 31) Miami Beach and Hollywood, FL Sept. 30, 2008.
The Board inter alia: agreed with the administrative law judge that Respondent The Continental Group, Inc. and Respondent Sunset Harbour South Condominium Association, Inc. were joint employers; affirmed the judge's finding that Respondent Continental violated Section 8(a)(1) of the Act by photographing employees' participation in a mock election event; found, contrary to the judge, that Sunset Harbour violated Section 8(a)(1) by Continental's conduct in that regard; affirmed the judge's finding that Continental and Sunset Harbour violated Section 8(a)(1) by promulgating and maintaining an overbroad no-access rule; found, contrary to the judge, that the first written discipline issued to employee Phillip Gonzalez on Sept. 1, 2004 was lawful (in this regard, the Board emphasized that the activities for which Gonzalez was disciplined were not protected by Section 7); affirmed the judge's finding that the Respondents did not violate Section 8(a)(3) by discharging or constructively discharging Gonzalez for engaging in union activity; found that the Respondents' conduct in this regard also did not violate Section 8(a)(1); and, found that the second warning issued to Gonzalez on Sept. 1 was lawful.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Service Employees Local 11; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Miami, Sept. 12-15, Nov. 14-17, 2005, and Jan. 9-11, 2006. Adm. Law Judge George Carson II issued his decision March 15, 2006.
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NLRB Law Memo 10/04/2008
by Ross Runkel at LawMemo
NLRB Law Memo 10/04/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 10 decisions.
Air Serv Corp. (26-RC-8548; 353 NLRB No. 11) Memphis, TN Sept. 23, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35311
The issue in this case is whether Air Serv Corp. and its employees, who are the subject of the Union's representation petition, are covered by the National Labor Relations Act or the Railway Labor Act. The Regional Director transferred the proceeding to the Board and the Board, thereafter, referred the case to the National Mediation Board for a jurisdictional opinion. The Employer provides aviation-related shuttle transportation services for an undisputed Railway Labor Act carrier and the Board found, in accord with the National Mediation Board's decision (35 NMB 201), that it is covered under the Railway Labor Act. Accordingly, the Board dismissed the petition filed by Petitioner Teamsters Local 984.
(Chairman Schaumber and Member Liebman participated.)
***
Domsey Trading Corp., Domsey Fiber Corp. and Domsey International Sales Corp., a Single Employer (29-CA-14548, et al.; 353 NLRB No. 12) Brooklyn, NY Sept. 25, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35312
On Sept. 30, 2007, the Board issued a Supplemental Decision and Order in this compliance proceeding. 351 NLRB No. 33. In its supplemental decision, the Board, inter alia, reversed the administrative law judge and found that the strike benefits which the Union paid the discriminatees during the backpay period were interim earnings deductible from backpay and therefore remanded the claims of 164 discriminatees who received such benefits to Region 29 for a recalculation of their backpay. The Board also reversed certain of the judge's findings on other issues relating to 18 discriminatees, all but one of whom were also included in the remand for the deduction of strike benefits, and remanded their claims to Region 29 for recalculation of their backpay based on the Board's findings regarding their failure to mitigate damages and/or their interim earnings. The Board separately remanded to the judge the claims of six other individuals for a determination of whether they were authorized to be present and employed in the United States during the backpay period and thus entitled to backpay. In response to the Board's remands, Region 29 filed with the Board various motions for summary acceptance of its recalculations of backpay and for issuance of a second supplemental decision and order, and the judge issued a second supplemental decision.
In this second supplemental decision, the Board ordered the Respondent to pay the discriminatees the recalculated backpay awards set out by the Region. The decision also ordered that the backpay claims of two discriminatees remanded to the judge be withdrawn, and that the Respondent pay certain other discriminatees the amounts set out in his second supplemental decision. Finally, the Board adopted the judge's recommendation to place in escrow the backpay award of one discriminatee whom the General Counsel could not locate pursuant to the remand and whose authorization status therefore remained unresolved.
(Chairman Schaumber and Member Liebman participated.)
Adm. Law Judge Michael A. Marcionese issued his second supplemental decision July 1, 2008.
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Fluor Daniel, Inc. (15-CA-12544, et al.; 353 NLRB No. 15) Baton Rouge, LA Sept. 25, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35315
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 the discriminatees. 333 NLRB 427 (2001), enfd. 332 F.3d 961 (6th Cir. 2003). In the compliance proceeding, the administrative law judge specified that those remedies would be subject to the limitations established in Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (2007). The General Counsel, the Charging Parties, and the Intervenor filed requests with the Board for special permission to appeal this ruling, as well as the administrative law judge's rulings that the discriminatees were "salts" within the meaning of Oil Capitol, and that it was the General Counsel's burden to establish both the length of time the discriminatees would likely have remained at their jobs and that they would have joined the Respondent's preferential database.
The Board granted the requests for special permission to appeal and denied the appeals on the merits, finding that the judge did not abuse his discretion by ruling that Oil Capitol applies to the proceedings and that the discriminatees at issue were salts. With regard to the judge's rulings concerning the General Counsel's burden of proof, the Board denied the appeals but noted that factual findings made in the underlying proceeding-that the discriminatees had "agreed to accept employment if offered, [and] to stay until laid off," and that the Respondent used a preferential database of former employees in staffing new projects, 333 NLRB at 430-- may not be relitigated in the compliance proceeding. The Board left to compliance whether these findings are sufficient to satisfy the General Counsel's burden of proof under Oil Capitol.
The Board also denied Charging Party Boilermakers International's appeal of the judge's indication that he would not read or rely on the record in the underlying proceeding, without prejudice to raising this issue in a proper motion to the judge. The Board found that it lacked jurisdiction to consider the merits of this issue because the judge never ruled on it, having had no motion before him. The Board noted, however, that issues that were previously decided in an unfair labor practice proceeding may not be relitigated in a compliance proceeding.
For institutional reasons, Member Liebman concurred in the denial of the appeals. She noted that denying the appeals avoids delay in the disposition of the case. 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. Further, Member Liebman noted her view that Dean General Contractors, 285 NLRB 573 (1987), is the law of the case and, therefore, should preclude the Board from applying Oil Capitol retroactively, but she nonetheless applied the majority decision in Fluor Daniel, 351 NLRB No. 14 (2007), as controlling Board precedent on the law of the case issue.
(Chairman Schaumber and Member Liebman participated.)
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Hanson Material Service Corp. (13-CA-44128 and 13-RC-21618, 21622; 353 NLRB No. 10) Thornton, IL Sept. 25, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35310
This matter consolidated representation and unfair labor practice cases. The amended complaint alleged that the Respondent violated: 1) Section 8(a)(1) of the Act by interrogating employees, prohibiting them from wearing union attire and from posting union items on its bulletin boards, threatening to discipline and lay off employees for engaging in union activities, promising employees benefits for rejecting a union, and informing employees that it would be futile to unionize; and 2) Section 8(a)(3) by discharging two employees (the day before the election) for engaging in union activities. Two unions, Charging Party Union Operating Engineers Local 150 (Union) and Laborers Local 681, had petitioned for an election in a four-employee bargaining unit of the Respondent's quality control (QC) analysts at its Thornton, IL quarry. In the representation-case, the Respondent challenged the ballots of the two discharged employees; the Union contended that, because they were unlawfully discharged, their votes should be counted. The election resulted in 1 vote for Operating Engineers Local 150, 0 votes for Laborers Local 681, and 1 vote for no Union, making the two challenged ballots outcome-determinative.
The Board adopted the administrative law judge's decision with certain footnote clarifications. Thus, the Board adopted the judge's dismissal of most of the alleged Section 8(a)(1) violations (the judge found Respondent's agents did not make the statements, or that such did not give rise to a violation), but not, in the absence of exceptions, two others. The Board also adopted the judge's conclusion that the Respondent did not violate Section 8(a)(3) by discharging the two QC analysts. The Board assumed arguendo that the General Counsel met his initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and thus agreed with the judge's alternative finding that the Respondent proved it would have discharged these employees in any event because they falsified product test results. Finally, the Board affirmed the judge's procedural rulings relative to the admission of documents offered to prove an alleged Johnnie's Poultry, 146 NLRB 770 (1964), enf. denied on other grounds, NLRB v. Johnnie's Poultry Co., 344 F.2d 617 (8th Cir. 1965), violation. Because the Board adopted the judge's conclusion that the two employees were lawfully discharged, it also adopted his ruling sustaining the challenges to their ballots. Accordingly, and contrary to the judge's remand order, the Board, itself, issued a Certification of Election Results.
Member Liebman, while adopting the judge's credibility findings under the deferential standard of Standard Dry Wall, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951), footnoted that: (1) were she considering the case de novo, her credibility resolutions might have differed, and (2) she did not rely on the judge's comments that, because the Respondent's representatives were knowledgeable and experienced in labor relations, they were unlikely to have made certain alleged unlawful statements. The Board also footnoted that, even if the judge erred by admitting the pretrial affidavit, he committed harmless error.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Operating Engineers Local 150; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Chicago, Nov. 13-16, 2007. Adm. Law Judge Robert Giannasi issued his decision Jan. 7, 2008.
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Horizon Contract Glazing, Inc. (20-CA-32880; 353 NLRB No. 16) West Sacramento, CA Sept. 25, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35316
The Board reversed the administrative law judge's finding that the Respondent's failure to recall Union salt Joseph Upchurch violated Section 8(a)(3) and (1) of the Act. The Board noted that the General Counsel bears the initial burden of proving by a preponderance of the evidence that animus against protected union activity was a motivating factor in the employment action, citing Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 US 989 (1982), and FES, 331 NLRB 9 (2000) supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002).
The Respondent had broken off relations with the Union due to an economic dispute with the Union's business manager, Gene Massey, and the Respondent's owner testified that he would not sign an agreement as long as the Union was under Massey's leadership. Nevertheless, the Respondent offered to recall Upchurch after a layoff due to a lack of work, despite its knowledge of Upchurch's union affiliation and activity. However, Upchurch had a previously scheduled vacation, but agreed to report to work on a later date, Nov. 8. After an unexpected suspension of work at the jobsite the glazing superintendent left a voice mail for Upchurch instructing him not to report. Upchurch however did not get the message and worked for 2 or 3 hours on Nov. 8. He was then informed by Michelle Klein, the Respondent's secretary-treasurer that he was not supposed to be on the job. Upchurch and Klein engaged in a heated discussion regarding the amount Upchurch was owed for his work that day. In her testimony Klein referred to Upchurch's assertions as a "little NLRB lecture...." The judge found that Upchurch's conduct during the discussion was the motivation for the failure to recall him, as it reinforced the Respondent's awareness of his union association and the judge therefore found that the failure to recall Upchurch violated Section 8(a)(3).
The Board agreed that the Nov. 8 conversation was the motivation for the Respondent's failure to recall Upchurch. However, the Board noted that there was no reference to the Union in the conversation and that Upchurch was engaged in a personal pay dispute, not union activity. The Board found that there was nothing about the Nov. 8 conversation to show that the Respondent harbored animus towards Upchurch's union affiliation and concluded that the only animus apparently arising from the conversation was the Respondent's ire of having to satisfy what it perceived to be an unjustified personal paid demand.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by Painters District Council 16, Glass Workers Local 767; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Sacramento on July 18, 2006. Adm. Law Judge Jay R. Pollack issued his decision Oct. 4, 2006.
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Interstate Bakeries Corp. and Teamsters Local 523 (17-CA-23404, 17-CB-6146; 353 NLRBpNo. 14) Ponca City, OK Sept. 25, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35314.htm
The Board reversed the administrative law judge's dismissal of allegations that the Respondent Employer violated Section 8(a)(3) and (1) of the Act and the Respondent Union violated Section 8(b)(1)(A) and 8(b)(2) by agreeing to endtail, rather than dovetail, the seniority of Charging Party Kirk Rammage, following a unit merger.
The Board found that Rammage was treated unfavorably solely on the basis of his prior lack of representation by the Union. In finding the conduct to be unlawful, the Board relied on Whiting Milk Corp., 145 NLRB 1035 (1964), enf. denied 342 F.2d 8 (1st Cir. 1965), in which the Board held that it was unlawful in a unit merger situation to endtail employees who were not formerly represented by any union, while dovetailing employees represented in different units by the same local union.
The Board disagreed with the judge's assertion that Whiting Milk had been "obliquely" overruled by subsequent cases, observing that the Board twice explicitly reaffirmed Whiting Milk after the court's denial of enforcement in that case. In addition, the Board found that Whiting Milk had not been overruled by Riser Foods, 309 NLRB 635 (1992), a duty of fair representation case on which the judge relied. The Board found Riser Foods to be distinguishable, and held that Whiting Milk controlled because, as acknowledged by the judge, the facts in Whiting Milk are "analogous if not identical" to those here. The Board found that Whiting Milk remains Board law, and although Member Liebman questioned the Whiting Milk line of cases, she agreed that it was controlling law on the facts in this case.
The Board stated that although the Union was legitimately concerned about its duty to the employees it already represented, in the context of a unit merger, a union and an employer are not lawfully permitted to dovetail the seniority of represented employees while endtailing previously unrepresented employees. Accordingly, the Board concluded that the Respondents violated the Act by agreeing to endtail Rammage on the combined seniority list, permitting Rammage to be bumped from his job at the Ponca City facility, and transferring Rammage to a job at the Bartlesville facility, all because he was not previously represented by the Union.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Kirk Rammage, an individual; complaint alleged violations of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2). Hearing at Tulsa on Aug. 15, 2006. Adm. Law Judge Gerald A. Wacknov issued his decision Oct. 31, 2006.
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New Process Steel, LP (25-CA-30470; 353 NLRB No. 13) Butler, IN Sept. 25, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35313.htm
The Board affirmed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by repudiating the parties' binding collective-bargaining agreement on the grounds that the Union did not ratify the contract by a majority vote of unit employees.
The Union was certified as the exclusive bargaining representative for a unit of the Respondent's employees on Aug. 25, 2006. On Aug. 9, 2007, after 11 months of contract negotiations, the Union accepted and signed the entire proposed agreement. The Respondent, however, stated that it would not sign the agreement until it was ratified. On Aug. 12, 2007, the Union ratified the contract according to its established internal procedures. The Union then informed the Respondent that the agreement was accepted, and the Respondent signed it.
In the following weeks, the Respondent learned that the contract was not accepted by a majority vote of unit members. On Sept. 11, 2007, the Respondent informed the Union by letter that, because a majority of bargaining unit members voted against the agreement, it was never ratified, and thus the parties never reached a binding contract. The Respondent therefore refused to recognize or honor the contract's provisions.
The Union filed an unfair labor practice charge alleging that the Respondent unlawfully repudiated the contract. The Board adopted the judge's findings that the Respondent did not have standing to dispute the Union's ratification procedures, the parties reached a binding agreement, and thus the Respondent violated 8(a)(5) and (1) by repudiating that agreement.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by Machinists District Lodge 34; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Auburn on March 11, 2008. Adm. Law Judge David I. Goldman issued his decision May 1, 2008.
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Postar Coal Co., Inc. (9-CA-43865; 353 NLRB No. 17) Cucumber, WV Sept. 25, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35317.htm
The Board found that Postar Coal Co. violated Section 8(a)(5) and (1) of the Act by failing to continue established terms and conditions of employment by failing to provide health care benefits to laid-off employees following the closure of its coal mine. Citing precedent, the Board rejected Postar's claim that an economic inability to pay excused its failure to provide the benefits.
(Chairman Schaumber and Member Liebman participated.)
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Sacred Heart Medical Center (19-CA-29150; 353 NLRB No. 19) Spokane, WA Sept. 26, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35319.htm
Following remand from the U.S. Court of Appeals for the Ninth Circuit, the Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by promulgating, maintaining, and enforcing a policy prohibiting employees from wearing union buttons in areas where they might "encounter patients or family members."
(Chairman Schaumber and Member Liebman participated.)
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Swissport USA, Inc. (13-RC-21719; 353 NLRB No. 18) Chicago, IL Sept. 26, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35318.htm
The Board dismissed the Petitioner's representation petition, deferring to the opinion of the National Mediation Board (NMB) that the Employer and its employees are subject to the Railway Labor Act. In so doing, the Board found that although the Employer had previously acquiesced to the jurisdiction of the National Labor Relations Board, having received the NMB's opinion, the issue of whether the case was improvidently referred to the NMB was moot. Thus, the Board gave the NMB's opinion the substantial deference ordinarily accorded to NMB's opinions.
(Chairman Schaumber and Member Liebman participated.)
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