28 Day Trial   Products / Prices / Samples   About Us / Contact   FAQs   Home  
Newest employment law cases  
Summaries and links to full text

LawMemo - First in Employment Law

Emailed directly to you
and online all the time
Home 28 Day Trial MyLawMemo Custom Alerts Newest Cases Key Word Search Employment Law Memo
EEOC Info NLRB Info Supreme Court Arbitration Articles Law Firms Arbitration Blog Employment Law Blog

NLRB Law Memo 
Also available by email 

All Archives

 

« February 2009 | Main | April 2009 »



LawMemo publishes Employment Law Memo.

NLRB Law Memo 03/13/2009
by Ross Runkel at LawMemo

NLRB Law Memo 03/13/2009
by
LawMemo - First in Employment Law.
Also by email.

NLRB - Staff summarized 1 decision.

Essex Valley Visiting Nurses Assn. (22-CA-28315; 353 NLRB No. 109) East Orange, NJ March 6, 2009.

The Board adopted the administrative law judge's findings that Respondent Essex Valley Visiting Nurses Assn. (EVVNA) violated Section 8(a)(5) of the Act by refusing to timely provide information to the Union and by failing to timely respond to the Union's requests to meet and bargain for a successor collective-bargaining agreement.
However, the Board reversed the judge's finding that New Community Corp. (NCC) was a single employer with EVVNA. Although the judge found that the Respondents conceded that EVVNA and NCC constituted a single employer, the Board found that EVVNA was the sole respondent in this proceeding. The record established that counsel for the General Counsel withdrew the allegations of the complaint alleging that EVVNA and NCC constituted a single employer after counsel for the General Counsel and the Respondents stipulated at the hearing that EVVNA satisfied the Board's jurisdictional standards and was an employer engaged in commerce within the meaning of the Act.

(Chairman Liebman and Member Schaumber participated.)

Charge filed by Health Professionals and Allied Employees, Local 5122; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark on Oct.
7, 2008. Adm. Law Judge Michael A. Rosas issued his decision Dec. 17, 2008.



LawMemo publishes Employment Law Memo.

NLRB Law Memo 03/06/2009
by Ross Runkel at LawMemo

NLRB Law Memo 03/06/2009
by
LawMemo - First in Employment Law.
Also by email.

NLRB - Staff summarized 8 decisions.

Aramark Corp. (29-CA-28625; 353 NLRB No. 98) Philadelphia, PA and Long Island City, NY Feb. 26, 2009.

The Board remanded the case to the administrative law judge for the purpose of issuing a second supplemental decision containing credibility resolutions, findings of fact, conclusions of law, and a recommended Order. The complaint alleged that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the Union with requested information that is necessary for, and relevant to, the Union's performance of its duties as the exclusive collective bargaining representative for the unit. The Board found that the judge's supplemental decision does not provide an adequate basis for review.

(Chairman Liebman and Member Schaumber participated.)

Charge filed by UNITE HERE Local 100; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Brooklyn on April 29, 2008. Adm. Law Judge Howard Edelman issued his supplemental decision Aug. 27, 2008.

***

Cardi Corp. (1-CA-43892; 353 NLRB No. 97) Warwick, RI Feb. 25, 2009.

The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally implementing a rule requiring that bargaining unit employees possess a valid driver's license as a condition of employment. The Board also agreed with the judge that the Respondent further violated 8(a)(1) and (5) by enforcing this rule against Eddie Mejia on Nov. 13, 2006 when Mejia sought to return to work following medical leave. However, the Board did not adopt the judge's recommended remedy ordering the Respondent to immediately reinstate Mejia as of Nov. 13, 2006. Rather, in light of testimony raising the question of whether unit work was available when Mejia sought to return to work, the Board left to compliance the issue of whether Mejia, if the Respondent had not unlawfully enforced its driver's license requirement against him, would have been immediately reinstated on or after Nov. 13, 2006, and the related issue of which party bears the burden of proof on the matter.

(Chairman Liebman and Member Schaumber participated.)

Charge filed by Carpenters Local 94, New England Regional Council; complaintalleged violation of Section 8(a)(1) and (5). Hearing at Boston on April 1, 2008. Adm. Law Judge Bruce D. Rosenstein issued his decision June 5, 2008.

***

Iberia Road Markings Corp. (29-CA-27930, 29-RD-1070; 353 NLRB No. 101) Brooklyn, NY Feb. 27, 2009.

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 Alecc Ortiz because he filed a decertification petition with the Board. In adopting the judge's finding that Ortiz's discharge violated the Act, the Board found it unnecessary to rely on an adverse inference drawn by the judge from the Respondent's failure to adduce corroborative testimony from employee Ray Dominguez concerning a phone conversation between Dominguez and Respondent's president and part owner Jose Freire that occurred shortly after Freire received the decertification petition.

The Board also adopted the judge's recommendations to overrule the challenges to the ballots of Ortiz, Miguel Freire and Danny Travers. It directed that those ballots, as well as that of Javier Figueira, be opened and counted. The challenge to the ballot of Figueira was overruled by the Regional Director in his earlier Report on Challenges.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by Alecc Ortiz, an individual; complaint alleged violations of Section 8(a)(1), (3), and (4). Hearing at Brooklyn, Feb. 5-6, 2007. Adm. Law Judge Mindy E. Landow issued her decision May 18, 2007.

***

Paint America Services, Inc., SRS Group, Inc., Paint America, Paint America, Inc., and Paint America of Michigan, Inc. (7-CA-47564; 353 NLRB No. 100) Saline, MI Feb. 25, 2009.

In a backpay proceeding, the Board found that five entities owned by spouses constituted a single employer and were therefore jointly and severally liable for backpay. Applying its four-factor test for single-employer status, the Board agreed with the administrative law judge that the evidence demonstrated an interrelationship of operations, common management, and centralized control of labor relations, and that the ownership of the entities by spouses, with one spouse exercising control of key business decisions, also established common ownership. The Board further found that Respondent SRS was not denied due process when witnesses subpoenaed by the General Counsel were not present to testify as part of SRS' case after a 7 ½ week continuance and when the judge denied SRS' requests for a further continuance and discovery. The Board concluded that the judge complied with due process requirements and afforded SRS a fair opportunity to present its case.

(Chairman Liebman and Member Schaumber participated.)

Adm. Law Judge John H. West issued his supplemental decision Sept. 29, 2008.

***

Regency Heritage Nursing & Rehabilitation Center (22-CA-27992; 353 NLRB No. 103) Ewing, NJ Feb. 27, 2009.

The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) of the Act by refusing to deal with a designated union representative, as well as her finding that the case was not appropriate for deferral to arbitration. However, the Board reversed the judge's finding that the Respondent violated Section 8(a)(5) by unilaterally terminating an established past practice of granting the Union access to the Respondent's facility. In this connection, the Board found that the General Counsel failed to adduce sufficient evidence of the existence of such a practice.

(Chairman Liebman and Member Schaumber participated.)

Complaint filed by SEIU 1199, New Jersey Health Care Union; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Newark, March 19 and 28, 2008. Adm. Law Judge Mindy E. Landow issued her decision Nov. 3, 2008.

***

Rockspring Development, Inc. (9-RC-17844; 353 NLRB No. 105) East Lynn, WV Feb. 27, 2009.

This representation proceeding concerned the resolution of determinative challenged ballots of the chief electricians and safety coordinator employed by the Employer. The Board adopted the hearing officer's finding that the chief electricians are not supervisors under Section 2(11) of the Act, as interpreted in Oakwood Healthcare, 348 NLRB 686 (2006). Contrary to the hearing officer, the Board found that the safety coordinator was neither a statutory supervisor under Oakwood Healthcare, nor a managerial employee excluded from coverage under the Act. The Board accordingly directed that the Regional Director open and count the determinative challenged ballots of the chief electricians and safety coordinator, prepare a revised tally of ballots, and issue an appropriate certification.

(Chairman Liebman and Member Schaumber participated.)

***

Spectrum Health—Kent Community Campus (7-CA-50996, 51112; 353 NLRB No. 99) Grand Rapids, MI Feb. 26, 2009.

The Board affirmed the administrative law judge's findings that the Respondent unlawfully withdrew recognition from the Union, violated Section 8(a)(5) and (1) and Section 8(d) of the Act by repudiating the collective bargaining agreement and unilaterally making changes to its terms, and violated Section 8(a)(1) by informing employees that the facility was nonunion.

On April 13, 2005, unit members ratified a successor contract to a 2002 contract. On the bottom of the cover page, the ratified contract stated, "Date of Agreement: Jan. 1, 2005 through March 31, 2008." The initial paragraph of the contract, entitled "Agreement," stated that the contract was "effective April 13, 2005." The contract paragraph entitled "Termination" stated, "This agreement shall remain in force until 12:01 a.m., April 1, 2008."

On Jan. 7, 2008, the Respondent received a petition from a majority of unit members stating that they no longer wished to be represented by the Union. The Respondent withdrew recognition because, based on the Jan. 1, 2005 date on the contract's cover, the petition was filed after the expiration of the 3-year presumption of majority support. The General Counsel claimed that the contract term began on April 13, 2005—the "effective date" stated in the body of the contract. Thus, the General Counsel argued that the Respondent withdrew recognition during the 3-year presumption of majority support.

The judge found that the contract, with two conflicting start dates, was ambiguous on its face. Thus, the judge allowed the parties to introduce parol evidence to resolve the ambiguity. The evidence showed that the Respondent bargained for a 3-year contract beginning on the date of ratification, i.e., April 13, 2008. The judge found that the General Counsel met its burden and that the Respondent withdrew recognition before the 3-year presumption of majority support expired. The Board adopted the judge's findings and found the violations as alleged.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by UAW Local 2600; complaint alleged violations of Section 8(a)(1) and (5) and Section 8(d). Hearing at Grand Rapids on June 10, 2008. Adm. Law Judge David I. Goldman issued his decision Sept. 4, 2008.

***

Vrable III, Inc., d/b/a Scenic Hills Nursing Center (9-CA-44146, et al.; 353 NLRB No. 102) Bidwell, OH Feb. 27, 2009.

The Board found that the Respondent had shown it would have discharged Amy Rupe for committing patient abuse even if she had not engaged in protected activity, and that the discharge was consequently lawful even assuming arguendo that the General Counsel had shown that the Respondent acted with anti-union animus.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by Health Care and Social Service Union, District 1199; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Gallipolis, Sept. 9-11, 2008. Adm. Law Judge Bruce D. Rosenstein issued his decision Nov. 14, 2008.
***



LawMemo publishes Employment Law Memo.

NLRB Law Memo 03/02/2009
by Ross Runkel at LawMemo

NLRB Law Memo 03/02/2009
by
LawMemo - First in Employment Law.
Also by email.

NLRB - Staff summarized 3 decisions.

Asher Candy, Inc. and Sherwood Brands, Inc. LLC, a Single Employer (29-CA-26761; 353 NLRB No. 95) New Hyde Park, NY and Rockville, MD Feb. 19, 2009.

The Board adopted the administrative law judge's Order awarding backpay pursuant to a compliance specification. Noting that the Respondents did not appear at the hearing, the Board found that no evidence has been presented to refute any of the allegations in the specification. The Board concluded that the Respondents did not establish that the backpay or severance pay amounts set forth in the specification were inconsistent with the terms of the governing collective-bargaining agreement, nor did the Respondents otherwise present evidence supporting any defenses that the amounts set forth in the specification were inaccurate in any respect.

(Chairman Liebman and Member Schaumber participated.)

Adm. Law Judge Steven Davis issued his supplemental decision June 18, 2008.

***

Green Valley Manor, L.L.C. (14-CA-29124, et al.; 353 NLRB No. 92) St. Louis, MO Feb. 17, 2009.

The Board, affirming the administrative law judge, found that the Respondent, a nursing home, violated Section 8(a)(3) of the Act by discharging three employees for their participation in a union organizing campaign and violated Section 8(a)(1) by interrogating employees and by calling police in response to union handbilling. Reversing the judge, the Board found that the Respondent did not violate Section 8(a)(3) by discharging Rashanda Barfield. The Board found that, even if the General Counsel proved union activity was a motivating factor in the discharge, the Respondent proved it would have discharged Barfield anyway. The Board noted that Barfield, a certified nursing assistant, was guilty of serious misconduct in leaving the nursing home five times in one morning while on duty without notifying her charge nurse and in falsely denying her misconduct when confronted by a manager. The Board also found that Barfield's discharge was consistent with the Respondent's past disciplinary practice. Finally, the Board found, rejecting a Respondent contention, that an unfair labor practice charge was valid notwithstanding that the employee filing the charge testified she did not read the charge and lacked knowledge regarding many of the charge's allegations. The Board noted that the Board's rules require a charging party to sign the charge, but explained that the purpose is to deter abuse of Board processes by subjecting the charging party to criminal sanctions for filing a charge containing false allegations, that the employee here subjected herself to such sanctions by signing the charge, and that the charge was therefore valid.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by Patricia Baker, Paris Banks, and Rashanda Barfield, individuals; complaint alleged violations of Section 8(a)(1) and (3). Hearing at St. Louis, Dec. 10-12, 2007. Adm. Law Judge Lawrence W. Cullen issued his decision May 22, 2008.

***

Trump Marina Associates, LLC d/b/a Trump Marina Hotel Casino (4-CA-35334, 35395, and 4-RC-21278; 353 NLRB No. 93) Atlantic City, NJ Feb. 17, 2009.

The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act and engaged in objectionable conduct by: interrogating employees regarding their union sympathies; threatening that supervisors would no longer grant employees' requests for time off, approve schedule changes, or correct no-call/no-show designations; and threatening that employees would lose their jobs if they selected the Union to represent them. The Board also adopted the judge's conclusions that the Respondent violated Section 8(a)(3) and (1) and engaged in objectionable conduct by issuing disciplinary warnings and suspensions to a prominent union supporter. The Board reversed the judge's dismissal of the allegation that the Respondent violated Section 8(a)(1) by a supervisor's statements that management would not negotiate with the Union. Finally, the Board adopted the judge's dismissal of all of the other alleged Section 8(a)(1) violations. Based on the violations and objectionable conduct found, the Board adopted the judge's recommendation to set aside the election results. Having done so, the Board found it unnecessary to pass on the Union's cross-exceptions to the judge's overruling of several objections alleging additional acts of election interference.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by Auto Workers International; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Philadelphia, Oct.15-18, 2007. Adm. Law Judge Earl E. Shamwell Jr. issued his decision July 18, 2008.

***

LawMemo.Com

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search | Employment Law Memo 
EEOC Info | NLRB Info | Supreme Court | Arbitration | Articles | Law Firms
Employment Law Blog | Arbitration Blog | Employment Law 101 

 

Get your 28 day trial now 

 
Google
 
Web www.LawMemo.com 
This form will search the LawMemo web site. 
It does not include Key Word Search.

 

 

28 day Trial