« NLRB Law Memo 01/12/2009 | Main | NLRB Law Memo 02/13/2009 »
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.
|
|
|
EEOC | NLRB | Supreme Court | Employment Law Blog | Arbitration Blog | Employment Law 101
