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LawMemo publishes Employment Law Memo.

NLRB Law Memo 11/29/2008
by Ross Runkel at LawMemo

NLRB Law Memo 11/29/2008
by
LawMemo - First in Employment Law.
Also by email.

NLRB - Staff summarized 1 decision.

St. George Warehouse (22-CA-23223, et al.; 353 NLRB No. 50) Kearney, NJ Nov. 17, 2008.

The Board adopted the second supplemental decision of the administrative law judge, ordering the Respondent St. George Warehouse to make whole two claimants which the Board previously found the Respondent discriminated against in violation of Section 8(a)(3) and (1) of the Act. In doing so, the Board rejected Respondent's claims that the discriminatees in this case did not mitigate back pay damages by failing to participate in a reasonable and diligent job search.

Following the initial hearing in this matter, a judge conducted a compliance, or back pay, proceeding to determine the amount of back pay owed to discriminatees Leonard Sides and Jesse Tharp. The General Counsel, relying solely on the Compliance Specification issued in this case on May 22, 2002, did not call any witnesses, or produce any further evidence of the discriminatees' actual efforts to find employment following their unlawful discharge. The judge, relying on then current Board law, determined that the employer bore the entire burden of showing that the discriminatees failed to mitigate their damages, and that the Respondent in this case had not met the requisite burden. The Respondent filed exceptions to the judge's decision.

In the subsequent full-Board decision, the Board reaffirmed the principle that the employer bears the ultimate burden of persuasion concerning whether an unlawfully discharged employee made an adequate search for interim employment. However, the Board determined that, once the employer shows that there were comparable jobs available in the relevant geographic area, the burden of production shifts to the discriminatee and the General Counsel to show that the discriminatee took reasonable steps to seek the available jobs. The case was remanded back to the judge to apply the new burden of proof standard.

On remand, the General Counsel presented additional evidence regarding the job search efforts of Sides and Tharp. Tharp, passed away prior to the remand hearing, and was unavailable to testify. Tharp's mother testified to her son's job search efforts, and her son's decision to move to Florida during the back pay period. The Board affirmed the decision of the judge in the second supplemental decision, holding that given the unique circumstances of Tharp in this case, and the facts presented relating to Sides, the Respondent failed to meet the requisite burden created under the new burden of proof established in St. George Warehouse, 351 NLRB No. 42 (2007).

(Chairman Schaumber and Member Liebman participated.)

Adm. Law Judge Steven Davis issued his supplemental decision May 20, 2008.



LawMemo publishes Employment Law Memo.

NLRB Law Memo 11/12/2008
by Ross Runkel at LawMemo

NLRB Law Memo 11/12/2008
by
LawMemo - First in Employment Law.
Also by email.

NLRB - Staff summarized 7 decisions.

Food & Commercial Workers Local 4 (Safeway, Inc.) (19-CB-9660; 353 NLRB No. 47) Whitefish, MT Oct. 31, 2008.

The Board adopted the administrative law judge's finding that the Respondent-Union violated its duty of fair representation and thus Section 8(b)(1)(A) of the Act by failing to provide the Charging Party, a Beck objector, with expenditure information that was sufficiently verified, consistent with the Board's decisions in California Saw & Knife Works, 320 NLRB 224 (1995), enfd. 133 F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998), and Television Artists AFTRA (KGW Radio), 327 NLRB 474 (1999), reconsideration denied 327 NLRB 802 (1999), petition for review dismissed 1999 WL 325508 (D.C. Cir. 1999). Although the Respondent-Union provided the Charging Party with a statement of its chargeable and non-chargeable expenses that was reviewed by an accountant, there was no evidence that the accountant did more than rely on the Respondent's representations in preparing the report, such as independently verify that the expenses claimed were in fact made.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Pamela Barrett, an individual; complaint alleged violation of Section 8(b)(1)(A). Hearing at Whitefish on April 29, 2008. Adm. Law Judge James M. Kennedy issued his decision May 20, 2008.

***

Health Now, Inc. d/b/a Dr. Rico Perez Products (2-CA-37882, et al.; 353 NLRB No. 43) Miami, FL, Brooklyn, NY, and Elizabeth, NJ Oct. 31, 2008.

The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by: (1) threatening employees with job loss, relocation of the business out of state, and store closures if they continued to support or voted for the Union; (2) accusing employees who supported the Union of disloyalty; and (3) making threats of unspecified reprisals. The Board did not pass on the judge's finding that the Respondent violated Section 8(a)(1) by making statements to employees indicating that their support for the Union was futile, finding that, in the particular circumstances of the case, the more serious threats of job loss and store closures subsumed any implied threat of futility.

The Board adopted the judge's dismissals of the allegations that the Respondent violated Section 8(a)(3) by discharging employees Machado and LondoƱo. The Board also adopted the judge's findings that the Respondent would have discharged both employees for insubordination even in the absence of their protected activities.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by UFCW; complaint alleged violations of Section 8(a)(1) and (3). Hearing at New York, Oct. 16, 17, 19, 22, and 23, 2007. Adm. Law Judge Steven Davis issued his decision March 7, 2008.

***

Morse Operations, Inc., d/b/a Sawgrass Auto Mall and d/b/a Ed Morse Chevrolet (12-CA 25466, et al.; 353 NLRB No. 40) Sunrise and North Palm Beach, FL Oct. 30, 2008.

The Board agreed with the administrative law judge that, during the Charging Party's organizing campaign in the summer of 2007, the Respondent violated Section 8(a)(3) and (1) of the Act by discharging employee Craig Robinson, and violated Section 8(a)(1) by interrogating its employees, creating the impression of surveillance, telling Robinson that he had been "blackballed" because of his union activity, and threatening an employee with reprisals if he voted for union representation.

The Board clarified the judge's Wright Line analysis of the Robinson discharge, particularly his finding of pretext concerning the Respondent's contentions that Robinson, an auto service technician, was discharged for warranty fraud and/or theft. The Board also affirmed, with additional evaluation of the relevant circumstances, the judge's finding that the Respondent unlawfully threatened reprisal against service technician Andrew Smith should he vote for the Union. In addition, Chairman Schaumber provided a personal footnote explaining his agreement with the judge's impression-of-surveillance finding. Finally, the Board denied the General Counsel's request that the Board adopt a practice of quarterly compounding of interest in calculating backpay and other monetary remedial awards.

(Chairman Schaumber and Member Liebman participated.)

Charges filed by Machinists; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Miami, March 3-4, 2008. Adm. Law Judge William N. Cates issued his decision April 30, 2008.

***

Primeflight Aviation Services, Inc. (29-RC-11405; 353 NLRB No. 45) Queens, NY Oct. 31, 2008.

The Union filed a petition to represent a unit of employees employed by the Employer at LaGuardia Airport. The Board referred the case to the National Mediation Board (NMB) for an opinion whether the Employer is subject to the jurisdiction of the Railway Labor Act. The NMB subsequently issued an opinion stating its view that the Employer and its employees at LaGuardia Airport are subject to the Railway Labor Act. The Board found that the Employer's employees perform work that is traditionally performed by employees in the airline industry, and that air carriers exercise substantial control over the Employer's LaGuardia Airport operations. The Board found, in light of these facts and the opinion issued by the NMB, that the Employer is subject to the jurisdiction of the NMB pursuant to the Railway Labor Act. The Board accordingly dismissed the Union's representation petition.

(Chairman Schaumber and Member Liebman participated.)

***

TNT Logistics North America, Inc. (8-CA-33664-1, 33810-1; 353 NLRB No. 41) East Liberty, OH Oct. 30, 2008.

This case was on remand from the U. S. Court of Appeals for the Sixth Circuit. The Board set aside its previous finding that the Respondent did not violate Section 8(a)(1) of the Act by terminating three employees for preparing and sending a letter to the Respondent's primary customer because the letter was maliciously false. The Board accepted as the law of the case the court's determination that substantial evidence did not support the Board's previous finding that the letter was maliciously false.

(Chairman Schaumber and Member Liebman participated.)

***

United Parcel Service, Inc. (22-CA-27863; 353 NLRB No. 39) Secaucus, NJ Oct. 28, 2008.

The Board adopted the administrative law judge's finding that the case should not be deferred to arbitration and that the Respondent violated Section 8(a)(3) and (1) of the Act by its refusal, because of a shop steward's protected conduct, to rescind a warning letter issued to an employee. The Board also adopted the judge's finding that the Respondent violated Section 8(a)(1) by telling the employee that his warning letter would not be rescinded because of his steward's protected conduct.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Teamsters Local 177; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Newark on Feb. 5, 2008. Adm. Law Judge Mindy E. Landow issued her decision June 20, 2008.

***

Wiers International Trucks, Inc. and Great Lakes International Trucks, LLC d/b/a Wiers International Trucks, joint employers and/or a single employer, and it successor Great Lakes International Trucks, LLC (25-CA-30375, 25-RC-10389; 353 NLRB No. 48) Elkhart and South Bend, IN Oct. 31, 2008.

The Board adopted the administrative law judge's findings that Respondent Great Lakes International Trucks, Inc. violated Section 8(a)(3) and (1) of the Act by transferring employees Timothy Burelison, John Bussey and Eric Reamer because of their union activities and support and additionally violated Section 8(a)(4) by transferring Burelison and Bussey because of their testimony in a Board representation proceeding. In light of these findings, the Board ordered the Regional Director to open and count the challenged ballots of Burelison, Bussey, and Reamer in the representation election.

The Board also affirmed the judge's findings that Respondent Great Lakes and Respondent Wiers International Trucks, Inc. did not operate as a single employer and/or joint employers at Respondent Wiers' Plymouth, IN facility and, consequently, Respondent Great Lakes is not liable for the unfair labor practices alleged to have occurred at the Plymouth facility. In doing so, the Board relied particularly upon the absence of evidence that Respondent Great Lakes took part in any aspect of the operation of the Plymouth facility.

In addition, the Board affirmed the judge's findings that Respondent Great Lakes violated Section 8(a)(1) by coercively interrogating employees and threatening them with more onerous conditions and closure if they selected the Union and violated Section 8(a)(3) by implementing a new benefit for the purpose of discouraging union support. Respondent Great Lakes had not excepted to these findings.

The Board rejected Respondent Great Lakes' contention that the two-member Board does not constitute a quorum as required by statute and, therefore, the Board lacks authority to issue a ruling in this case. The Board also rejected the General Counsel's request that interest on any monetary amounts owing to the discriminatees be computed on a compounded quarterly basis.

(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 Elkhart, March 4-5, 2008. Adm. Law Judge Paul Bogas issued his decision July 23, 2008.

***

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