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NLRB Law Memo 12/29/2008
by Ross Runkel at LawMemo
NLRB Law Memo 12/29/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 2 decisions.
Camaco Lorain Mfg. Plant (8-CA-36785; 353 NLRB No. 64) Lorain, OH Dec. 18, 2008.
The Board remanded the administrative law judge's bench decision for reexamination of the record evidence, and ordered the judge to provide a written decision containing further findings and analysis. In remanding the case, the Board expressed no opinion as to the correctness of the judge's original disposition of the merits of the contested complaint allegations.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by Auto Workers [UAW], Region 2B; complaint alleged violations of Sections 8(a)(1) and (3). Hearing at Cleveland, March 13-14, 2007. Adm. Law Judge Keltner W. Locke issued his decision May 2, 2007.
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Professional Janitorial Services of Houston, Inc. (16-CA-25491, 25780; 353 NLRB No. 65) Houston, TX Dec. 17, 2008.
The issue in this case is whether the Respondent, alleged to be a Burns successor employer, violated Section 8(a)(5) of the Act by failing to recognize and bargain with the Union. The Board agreed with the administrative law judge's conclusion that the Respondent is a successor employer, based on finding that the Union had majority status in an appropriate unit and that there was "substantial continuity" of operations between the Respondent and its predecessors. As such, the Board adopted the judge's finding that the Respondent violated Section 8(a)(5) when it failed to recognize and bargain with the Union.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Service Employees Local 5; complaint alleged violation of
Section 8(a)(5). Hearing at Houston, April 30 and May 1, 2008. Adm. Law
Judge Joel P. Biblowitz issued his decision Aug. 1, 2008.
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NLRB Law Memo 12/22/2008
by Ross Runkel at LawMemo
NLRB Law Memo 12/22/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 2 decisions.
Laborers Local 6 (13-CD-781; 353 NLRB No. 62) Chicago, IL Dec. 12, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35362.htm
This case involved a jurisdictional dispute under Section 10(k) of the Act. The work in dispute included "[a]ll unloading and handling of hardwood flooring materials located at 757 Orleans Street in Chicago, IL by the employees of Anderson Interiors, Inc." In concluding the Act applied, the Board rejected Laborers' contentions that it did not claim the work in dispute, that it did not engage in proscribed activity, and that there existed a voluntary method of adjustment. After reviewing the merits of the case, the Board awarded the work in dispute to employees of Anderson Interiors, who are represented by Chicago Regional Council of Carpenters, rather than employees represented by Laborers. The Board based its award on the following factors: collective-bargaining agreements, employer preference and past practice, area practice, relative skill and experience, and economy and efficiency of operations.
(Chairman Schaumber and Member Liebman participated.)
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Matros Automated Electrical Construction Corp., BTZ Electrical Corp., Single Employers (2-CA-36296, et al.; 353 NLRB No. 61) New York, NY Dec. 8, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35361.htm
The Board adopted the administrative law judge's following unfair labor practice findings. Respondent Matros Automated Electrical Construction Corp. (Matros) violated Section 8(a)(1) of the Act by (a) coercively interrogating employees about their support for IBEW Local 3; (b) promising employees promotions and other benefits to dissuade them from voting for IBEW Local 3; (c) telling employees that even if IBEW Local 3 won the election, Matros would never sign a contract with that union; and (d) threatening employees that it would shut down the business if IBEW Local 3 won the election. Matros violated Section 8(a)(3) and (1) by discharging two employees and withholding raises and retroactive payments from three employees because of their support for IBEW Local 3. Matros violated Section 8(a)(2) and (1) by giving illegal assistance to Local 363, United Electrical Workers of America (UEW Local 363). Matros also violated Section 8(a)(2) and (1) by recognizing UEW Local 363 at a time when IBEW Local 3's election objections were pending. Matros further violated Section 8(a)(3) and (1) by entering into a collective-bargaining agreement with UEW Local 363 containing union-security and dues-checkoff clauses; and UEW Local 363 violated Section 8(b)(1)(A) and (2) by accepting recognition from Matros and entering into that same agreement. Because the agreement was unlawful, UEW Local 363 also violated Section 8(b)(1)(A) by threatening an employee that the union-security clause would be enforced against him if he refused to sign a union membership card.
The Board affirmed the judge's dismissal of an allegation that Matros violated Section 8(a)(3) and (1) by maintaining a members-only contract with UFCW Local 174 and its successor Local 342, providing wages and benefits to Matros electricians but not to electricians employed by BTZ Electrical Corp. (BTZ), a stipulated single employer with Matros, because Matros' bargaining history with UFCW Locals 174 and 342 had de facto created two separate units, and the acquiescence of UFCW Locals 174 and 342 in this arrangement was a defense to the allegation of discriminatory motive.
Because UFCW Locals 174 and 342 acquiesced in the exclusion of BTZ electricians from the Matros unit, and citing G.M. Trimming, Inc., 279 NLRB 890, 897-898 (1986), the Board reversed the judge's finding that BTZ violated Section 8(a)(2) and (1) by recognizing UEW Local 363, and Section 8(a)(3) and (1) by entering into a collective-bargaining agreement with UEW Local 363 containing union-security and dues-checkoff clauses. The Board also reversed the judge's finding that UEW Local 363 violated Section 8(b)(1)(A) and (2) by accepting recognition from BTZ and entering into that same agreement because the complaint did not allege these violations.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Electrical Workers [IBEW] Locals 363 and 3, and Individuals; complaint alleged violations of Section 8(a)(1), (2), and (3). Hearing at New York on various days from March 6 to June 8, 2006. Adm. Law Judge Raymond P. Green issued his decision Sept. 1, 2006.
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NLRB Law Memo 12/12/2008
by Ross Runkel at LawMemo
NLRB Law Memo 12/12/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 1 decision.
Atrium at Princeton, LLC d/b/a Pavilions at Forrestal and Princeton Healthcare, LLC d/b/a Pavilions at Forrestal (22-CA-27066, et al.; 353 NLRB No. 60) Wayne, NJ Dec. 5, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35360.htm
In this case, the Board adopted the administrative law judge's finding that Respondent Princeton violated Section 8(a)(5) of the Act by bypassing the Union and dealing directly with unit employees. The Board also adopted, on modified grounds, the judge's finding that Respondent Atrium, the successor to Respondent Princeton, violated Section 8(a)(5) by failing and refusing to meet with the Union for the purpose of negotiating a successor collective-bargaining agreement. The Board found it unnecessary to pass on the judge's finding that Respondent Princeton also violated Section 8(a)(5) by failing and refusing to bargain for a successor agreement prior to the transfer of operations to Respondent Atrium, as any such finding would be cumulative and would not materially affect the remedy.
The Board further affirmed the judge's findings that Respondent Atrium violated Section 8(a)(5) by making unilateral changes and by refusing to supply information requested by the Union. However, reversing the judge, the Board found that the social security numbers requested by the Union were not presumptively relevant and it therefore modified the recommended order to exclude social security numbers from the information Respondent Atrium was required to provide.
Finally, the Board observed that the judge's recommended order would effectively require the Respondents jointly and severally to remedy all of the unfair labor practices. The Board found no basis in the record for imposing joint and several liabilities and in order to clarify the remedial obligations of the Respondents, it substituted separate orders and notices for the common order and notice recommended by the judge.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by SEIU 1199 New Jersey Health Care Union; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark, July 9, 10, 13, and Oct. 9 and 18, 2007. Adm. Law Judge Steven Davis issued his decision April 15, 2008.
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NLRB Law Memo 12/09/2008
by Ross Runkel at LawMemo
NLRB Law Memo 12/09/2008
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 5 decisions.
First Student, Inc. (3-CA-26584; 353 NLRB No. 55) North Tonawanda, NY Nov. 28, 2008.
The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(5) and (1) of the Act by: (1) unilaterally enforcing its previously unenforced driving under the influence policy with regard to unit employees without notice to or bargaining with the Union; (2) discharging Matthew Raimondo, Carl Antholzner, and Shawn Kazmierczak pursuant to the Respondent's unilateral enforcement of its driving under the influence policy; and (3) failing and refusing to meet and bargain with the Union concerning the discharge of Raimondo and Antholzner pursuant to the Respondent's unilateral enforcement of its driving under the influence policy. The Board noted that it found no basis for reversing the judge's credibility findings. The Board further noted that there were no exceptions to the third prong of the violation, i.e. the Respondent's failure to bargain with the Union about the discharges of Raimondo and Antholzner.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by Teamsters Local 449; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Buffalo on July 16, 2008. Adm. Law Judge George Carson II issued his decision Sept. 3, 2008.
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Global Aviation Services, LLC (4-RC-21449; 353 NLRB No. 57) Essington, PA Nov. 28, 2008.
The Board dismissed the petition concurring in the National Mediation Board's finding that the Employer (Global Aviation Services, LLC) was within its jurisdiction rather than the Board's jurisdiction. The Board noted that the National Mediation Board uses a two-pronged jurisdictional analysis: (1) whether the work is traditionally performed by employees of air or rail carriers; and (2) whether a common carrier exercises direct or indirect ownership or control. Both prongs of the test must be met. Here the parties stipulated that the Employer is directly owned or controlled by, or under common control with, an air carrier. The Board thus noted that the control prong of the test was met. The Board further noted the work performed by the Employer's employees and then noted that the National Mediation Board specifically found that this work was work traditionally performed by employees of air carriers. The Board agreed with this finding. The Board thus noted that the work prong of the test was met.
(Chairman Schaumber and Member Liebman participated.)
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Midwest Psychological Center, Inc. (25-CA-29381, 29405; 353 NLRB No. 51) Indianapolis, IN Nov. 26, 2008.
This case was before the Board in the compliance stage of the proceeding after the Board found in the underlying unfair labor practice case, 346 NLRB 1 (2005), that the Respondent unlawfully discharged the Charging Parties. In the instant case, the Board adopted the administrative law judge's findings that the Respondent did not eliminate the discriminatees' positions in Dec. 2004 and therefore the backpay period continued until the discriminatees rejected the Respondent's valid reinstatement offers in 2007. In so finding, the Board also rejected the Respondent's motion to submit additional evidence or to reopen the case.
(Chairman Schaumber and Member Liebman participated.)
Adm. Law Judge George Carson II issued his supplemental decision July 8, 2008.
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Shane Steel Processing, Inc. and J&J Land, LLC, a single employer (7-CA-47710, 48016; 353 NLRB No. 58) Fraser, MI Nov. 28, 2008.
The Board adopted the supplemental decision of the administrative law judge finding that Respondents Shane Steel Processing and J&J Land constitute a single employer, making J&J Land jointly and severally liable for Shane Steel Processing's unfair labor practices.
(Chairman Schaumber and Member Liebman participated.)
Hearing at Detroit, June 11-13, 2007. Adm. Law Judge Keltner W. Locke issued his supplemental decision April 1, 2008.
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SPE Utility Contractors, LLC (7-CA-49691, et al.; 353 NLRB No. 52) Port Huron, MI Nov. 26, 2008.
The Board granted the General Counsel's motion for clarification of its underlying Order at 352 NLRB No. 97. The General Counsel asked the Board to modify its Order by providing for a make-whole remedy for the Respondent's direct dealing with employees with respect to an offer by the Respondent to certain employees of a cash bonus if they could reconcile the Respondent's accounts with the Florida Power and Light Co. by Feb. 13, 2007. The Board granted the motion because the request is consistent with the Board's conventional remedy in a case in which a respondent engaged in an unfair labor practice that caused, or may have caused, employees' monetary loss. The failure to provide a remedy in this case was inadvertent.
(Chairman Schaumber and Member Liebman participated.)
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