« December 2008 | Main | February 2009 »
|
|
NLRB Law Memo 01/29/2009
by Ross Runkel at LawMemo
| NLRB Law Memo 01/29/2009 LawMemo First in Employment Law |
Wilma B. Liebman is now Chairman of the NLRB.Press
release: http://www.nlrb.gov/shared_files/Press%20Releases/2008/R-2679.pdf President
Obama designated Wilma B. Liebman to be Chairman of the NLRB on January 20,
2009. NLRB - Staff summarized 1 decision.Cadence
Innovation, LLC (9-CA-43672, et al.; 353 NLRB No. 77) Troy, MI Jan. 16,
2009. The
Board adopted the administrative law judge's finding that the Respondent
violated Section 8(a)(3) and (1) of the Act by discharging employee Tawana
Merriewether. The Respondent
hired Merriewether as a temporary employee in May 2006 and promoted her to
permanent status on Nov. 6, 2006. The
Respondent stated that she would receive a pay raise after 90 days as a
permanent employee. She
received the pay raise on Feb. 5, 2007. In
early 2007, the Union began an organizing effort. Merriewether became an active, open union supporter,
collecting union authorization cards, wearing and distributing union
buttons, and speaking to coworkers about the Union during breaks and outside
of work. After becoming aware
of Merriewether's union activities, Merriewether's supervisor began to stand
and watch her for long periods of time. Merriewether
attended, under Union subpoena, a Board hearing on the Union's
representation petition on March 6, 2007.
The Respondent gave her a written warning the next day, asserting
that she had accumulated 6 occurrences of absence.
Even though Merriewether did not miss any time thereafter, the
Respondent discharged her 8 days later on the basis that she had accumulated
7-1/3 occurrences of absence. Human
Resource Manager Lipsitz stated that her "hands were tied"
regarding Merriewether's discharge, because Merriewether was still in her
90-day probationary period. Merriewether
denied that she was still in her probationary period, noting she had already
received the 90-day pay raise. Merriewether's
discharge came 130 days after becoming a permanent employee. The
Respondent's written attendance policy provided for termination after 8
occurrences of absence. However,
the Respondent asserted that a stricter, albeit unwritten, attendance policy
applied to employees who were probationary.
Lipsitz, who had discharged Merriewether, testified variously that
the probationary period was the first 90 days or first 90 workdays of
employment. However, another
Human Resources official testified that the Respondent had no set number of
days after which an employee's probationary period ended. Rather, the Respondent used various factors to determine
whether an employee was probationary and how many absences would result in
discharge, including days worked, number of occurrences, input from the
supervisor, days employed, and workforce needs.
A third Human Resources official determined that Merriewether was
probationary at the time of her discharge.
The Respondent, however, did not call that official to testify. The
judge found that the General Counsel met his initial burden of showing that
Merriewether's discharge was unlawful.
He found that Merriewether engaged in union activity, that the
Respondent knew of Merriewether's participation in such activity, and that
the evidence established the Respondent's antiunion animus.
Rejecting the Respondent's contentions that Merriewether was a
probationary employee and that the Respondent had a more stringent
attendance policy for probationary employees, the judge found that the
Respondent failed to meet its burden of showing that it would have
terminated Merriewether even in the absence of her union activities. In
adopting the judge's finding of a violation, Chairman Schaumber noted that,
under his view, the General Counsel's initial burden of proof must include
as an independent element a causal nexus between antiunion animus and the
adverse employment action. Chairman
Schaumber found that such a nexus was shown in this case. Additionally, in adopting the judge's finding that the
General Counsel established antiunion animus, Chairman Schaumber did not
rely on the judge's findings that the Respondent opposed unionization and
hired an outside consultant to disseminate antiunion information to
employees. The
Board also denied the General Counsel's request for compound interest for
any make-whole relief awarded. The
Board stated: "We are not prepared at this time to deviate from our
current practice of assessing simple interest." (Chairman
Schaumber and Member Liebman participated.)
Charges filed by Auto Workers (UAW); complaint alleged violation of
Section 8(a)(1) and (3). Hearing
at Detroit, March 25-28, 2008. Adm.
Law Judge Paul Bogas issued his decision Sept. 17, 2008. ***
|
|
Employment Law Editor: Ross Runkel, Professor of Law Emeritus.
|
|
|
NLRB Law Memo 01/12/2009
by Ross Runkel at LawMemo
NLRB Law Memo 01/12/2009
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 5 decisions.
Ashley Furniture Industries, Inc. (18-CA-18737; 353 NLRB No.71) Arcadia, WI Dec. 31, 2008.
The Respondent received "no-match" letters from the Social Security Administration (SSA) stating that the social security numbers (SSNs) of certain of its employees did not match their names. Respondent informed the employees that they were required to resolve the discrepancy with the SSA, and instructed them not to discuss their no-match letters with anyone. Respondent also told an employee not to discuss with anyone that he had received a disciplinary warning and that his "green card" had expired.
The administrative law judge found that the disciplinary warning, green card issue, and no-match letters constituted Section 7 "workplace matters" which employees were free to discuss among themselves or with outsiders, and that Respondent could not lawfully prohibit such discussions absent a legitimate and substantial business justification. Respondent asserted several confidentiality concerns as justification for its "no-discussion" requirement. The judge found that Respondent's defense failed because none of its confidentiality concerns outweighed the employees' Section 7 right to discuss the workplace matters at issue. Accordingly, the judge found, and the Board agreed, that Respondent's no-discussion requirement violated Section 8(a)(1) of the Act.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by Voces de la Frontera; complaint alleged violation of Section 8(a)(1). Hearing at Whitehall on June 17, 2008. Adm. Law Judge James M. Kennedy issued his decision Sept. 17, 2008.
***
Bentonite Performance Minerals, LLC, a Product and Service Line of Halliburton Energy Services, Inc. (27-CA-20596, et al.; 353 NLRB No. 75) Colony, WY Dec. 31, 2008.
The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by: (1) interrogating employees; (2) soliciting employees to sign and circulate decertification petitions; (3) proposing the idea of decertification petitions; (4) impliedly and actually promising employees improved wages and benefits if they repudiated the Union; and (5) discouraging employees from attending a Union meeting. The Board additionally affirmed that the Respondent violated Section 8(a)(5) by: (1) withdrawing recognition from the Union based on the decertification petitions; (2) failing and refusing to provide the Union with information requested on two separate occasions; and (3) unilaterally changing terms and conditions of employment immediately following its withdrawal of recognition. Finally, the Board modified the judge's recommended remedy to include the Board's traditional make-whole language for any losses of benefits resulting from the Respondent's unilateral changes, and found, contrary to the judge, that the circumstances of the case did not warrant a broad cease-and-desist order.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Chemical Workers Council/Food and Commercial Workers Local 353C; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Belle Fourche, Dec. 18-21, 2008 and Jan. 23-25, 2008. Adm. Law Judge James M. Kennedy issued his decision June 2, 2008.
***
Harco Asphalt Paving, Inc. (25-CA-30352, et al.; 353 NLRB No. 74) Indianapolis, IN Dec. 31, 2008.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act by instructing union representatives to leave the area, threatening to call and calling the police to have union representatives removed from the area, photographing union representatives, threatening to obtain a restraining order against union representatives, and ordering employees to leave a jobsite to avoid contact with union representatives.
The Board, in agreeing with the judge that the Respondent violated the Act, found it unnecessary to pass on whether other actions taken by the Respondent in response to the presence of the Union's agents in the area of Harco Way on May 21 and 31, 2007 violated Section 8(a)(1) inasmuch as the Board's Order issued in 25-CA-30671 et al., accepting the parties' settlement, fully addressed handbilling activity in the areas along Harco Way.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Laborers Local 120; complaint alleged violation of Section 8(a)(1). Hearing at Indianapolis on Dec. 11, 2007. Adm. Law Judge Mark D. Rubin issued his decision March 6, 2008.
***
Long Island Head Start Child Development Services, Inc. (29-CA-28712; 353 NLRB No. 70) Patchogue, NY Dec. 29, 2008.
By memorandum dated Nov. 14, 2007, and without notice to the Union or bargaining with it, the Respondent issued revised job descriptions for unit employees. The revisions clarified the employees' responsibilities to include the additional cleaning duties that had been previously assigned to unit employees as of Dec. 4, 2006. On Jan. 11, 2008, the Union filed an unfair labor practice charge alleging that the revised job descriptions violated Section 8(d) and Section 8(a)(5) and (1) of the Act.
The administrative law judge observed that the Union was fully aware of the Dec. 4, 2006 action taken by the Respondent which caused a change in the job functions of the unit employees, and the Union took many steps in an effort to get the Respondent to rescind the imposition of the additional cleaning duties on the unit employees. In this connection, the judge emphasized the Union's receipt of the almost-immediate complaints from employees, the Union's grievance filed on Dec. 5, 2006, the Union's subsequent ongoing negotiations with the Respondent from Dec. 2006 through Sept. 2007, and the Union's first unfair labor charge filed in Feb. 2007. He also viewed the Nov. 14, 2007 modifications to the job descriptions as not a "real" change in the employee's terms and conditions of employment but rather the Respondent's action simply memorialized the employees' cleaning duties already in existence as of Dec. 4, 2006. In these circumstances, the judge found that the 10(b) triggering date for filing a charge to contest the additional cleaning duties assigned to the employees was Dec. 4, 2006.
Therefore, he concluded that the instant charge filed on Jan. 11, 2008, which was more than 6 months after Dec. 4, 2006, was untimely. The Board agreed with the judge and dismissed the complaint as being barred by Section 10(b) of the Act.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by Community and Social Agency Employees Union, District Council 1707, AFSCME Local 95; complaint alleged violation of Section 8(d) and Section 8(a)(1) and (5). Hearing at Brooklyn, June 11-12, 2008. Adm. Law Judge Raymond P. Green issued his decision Aug. 20, 2008.
***
Racetrack Food Services, Inc. and Casino Food Services, Inc., Single Employer (4-CA-35158; 353 NLRB No. 76) Bensalem, PA Dec. 31, 2008.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (5) of the Act by failing to respond to the Union's information request, which included, among other things, the names, addresses, and telephone numbers of nonunit employees. The Board also adopted the judge's finding that the Respondent further violated Section 8(a)(1) and (5) by closing one of its restaurants on Wednesday and Thursday evenings without first providing the Union notice and an opportunity to bargain over the matter.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by UNITE HERE Local 274; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Philadelphia on March 10, 2008. Adm. Law Judge Wallace H. Nations issued his decision July 25, 2008.
***
|
|
NLRB Law Memo 01/05/2009
by Ross Runkel at LawMemo
NLRB Law Memo 01/05/2009
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 3 decisions.
Chinese Daily News (21-CA-36178, et al.; 353 NLRB No. 66) Monterey Park, CA Dec. 22, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35366.htm
The Board reversed the administrative law judge’s findings and held that the Respondent violated Section 8(a)(1) of the Act when its attorney asked an employee union supporter during a deposition – which was taken in connection with the Respondent’s defense of a class-action wage-and-hour lawsuit brought by some of its employees – whether the employee, who was a supportive declarent in the motion for class certification, had "vote[d] for the Union to win the election[.]"
Applying the test set forth in Guess?, Inc., 339 NLRB 432 (2003), petition for review dismissed without prejudice, 2003 WL 22705744 (D.C. Cir. 2003), the Board assumed arguendo that the deposition question at issue was relevant to the litigation and that the questioning did not have an illegal objective. As to the final Guess? prong, however, the Board found that the employee’s substantial Section 7 interest in maintaining the confidentiality of his election vote outweighed the Respondent’s need for the information concerning his vote for the purpose of developing its defense to the lawsuit, i.e., that the class should not be certified because the plaintiffs would not act in the best interests of the class, and that one of the plaintiffs and the supportive declarents, including the employee, were biased against the Respondent because they were Union supporters. The Board therefore concluded that the deposition question regarding how the employee voted in the election constituted an unlawful interrogation.
The Board further adopted the judge’s findings that the Respondent violated Section 8(a)(1) by promulgating and maintaining unlawful dress code and no-solicitation/ distribution policies, and by instructing an employee to refrain from discussing terms and conditions of employment with his co-workers. As to the dress code policy, the Board found it unnecessary to pass on the judge’s finding that that policy also violated Section 8(a)(3). In the absence of exceptions, the Board adopted the judge’s recommended dismissal of the allegation that the Respondent’s no-solicitation/distribution policy violated Section 8(a)(3). Additionally, in the absence of exceptions, the Board adopted the judge’s recommended dismissal of the allegations that the Respondent violated Section 8(a)(3) and (1) by issuing a written warning to an employee and by refusing to assign that employee to certain shift rotations and assignments.
(Chairman Schaumber and Member Liebman participated.)
Charges filed by Communications Workers [CWA]; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Los Angeles, Oct. 1-4, 2007. Adm. Law Judge Lana H. Parke issued her decision Dec. 26, 2007.
***
Kingsbridge Heights Rehabilitation and Care Center (29-CA-27502; 353 NLRB No. 69)
Bronx, NY Dec. 24, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35369.htm
The Board adopted the administrative law judge’s findings that the Respondent violated Section 8(a)(1) and (5) of the Act by failing to make timely payments to the Union’s Funds, since June 2005, including failing to make any contributions to the Funds for various months, and including no payments to any of the Funds since August 2007.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by 1199 SEIU, United Health Care Workers East; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, May 30 and June 8, 2006. Adm. Law Judge Steven Fish issued his decision July 30, 2008.
***
NYP Holdings, Inc., d/b/a The New York Post (2-CA-37729; 353 NLRB No. 67) Bronx, NY Dec. 24, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/353/v35367.htm
The Board adopted the administrative law judge’s dismissal of an allegation that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide the Union with copies of galleys showing newspaper deliveries made by nonunit employees.
The Union represents the Respondent’s drivers, utility persons, dispatchers, machine operators, and clerks. In 2003, the Union and the Respondent entered into a collective-bargaining agreement that contained a memorandum of understanding ("MOU I") providing that up to 24,000 papers could be delivered by certain nonunit personnel. MOU I established a Circulation Growth Committee ("the Committee") consisting of three members appointed by the Respondent and 3 members appointed by the Union. MOU I required the Respondent to obtain galleys from its wholesalers showing the nonunit deliveries, and to provide those galleys to the Committee. MOU I did not address photocopying of the galleys. The Respondent allowed the Committee to review the galleys and to take notes, but not to photocopy them. The Union objected to the copying restriction.
In Jan. 2006, the parties executed a revised MOU ("MOU II"), increasing to 50,000 the number of papers that could be delivered by the nonunit personnel. MOU II stated that the Respondent would continue to provide galleys to the Committee and to a Union-designated unit employee to be known as the "Circulation Monitor." MOU II stated that review of the galleys would be done "[t]hrough the Committee." MOU II, like MOU I, was silent as to photocopying. Under MOU II, the Respondent continued to prohibit photocopying, and the Union continued to object to that restriction.
In April 2006, the Union’s business representative asked the Respondent to furnish the Union with copies of the galleys. The Respondent refused the Union’s request, contending that the galleys were to go only to the Committee and Circulation Monitor. The Union filed a grievance, alleging that it was being denied "free and unfettered access" to the galleys. The Union also filed an unfair labor practice charge, and the General Counsel issued a complaint, alleging that the Respondent violated Section 8(a)(5) and (1) by failing to provide the Union with copies of the galleys.
The judge dismissed the complaint. He concluded that the Union, by entering into MOU II, waived its statutory right to obtain the galleys outside the procedures set forth in MOU II. The Board adopted the judge’s decision. In doing so, the Board did not rely on the Union’s failure to seek changes to MOU I when it was renegotiated in 2006, or on the judge’s finding that the MOU negotiations satisfied whatever obligation the Respondent had to seek an accommodation with the Union regarding the Respondent’s claim that the galleys were confidential. The Board also observed that the Charging Party appeared to contend that, at a minimum, the Respondent was statutorily required to provide copies of the galleys to the Committee and Monitor, if not to the Union’s representatives outside the MOU procedures. The Board declined to pass on that theory, finding that the General Counsel did not clearly allege or litigate it.
(Chairman Schaumber and Member Liebman participated.)
Charge filed by Newspaper & Mail Deliverers’ Union of New York and Vicinity; complaint alleged violation of Section 8(a)(1) and (5). Hearing at New York, Dec. 4, 2006. Adm. Law Judge Michael A. Marcionese issued his decision Feb. 2, 2007.
***
EEOC | NLRB | Supreme Court | Employment Law Blog | Arbitration Blog | Employment Law 101
