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NLRB Law Memo 04/27/2009
by Ross Runkel at LawMemo
NLRB Law Memo 04/27/2009
by LawMemo - First in Employment Law.
Also by email.
The President has announced his intention to nominate two Members of the National Labor Relations Board.
April 24, 2009 press release: http://tinyurl.com/dgw5nq
Both individuals are Democrats. Both are lawyers representing labor unions.
The NLRB normally has five Members, but currently there are only two, one Democrat and one Republican. By law, no more than three can be from the same political party, so the next appointment will have to be a Republican.
Craig Becker:
Craig Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He graduated summa cum laude from Yale College in 1978 and received his J.D. in 1981 from Yale Law School where he was an Editor of the Yale Law Journal. After law school he clerked for the Honorable Donald P. Lay, Chief Judge of the United States Court of Appeals for the Eighth Circuit. For the past 27 years, he has practiced and taught labor law. He was a Professor of Law at the UCLA School of Law between 1989 and 1994 and has also taught at the University of Chicago and Georgetown Law Schools. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.
Mark Pearce:
Mark Gaston Pearce has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. Pearce in 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law. Pearce has taught several courses in the labor studies program at Cornell University’s School of Industrial Labor Relations Extension. He is a Fellow in the College of Labor and Employment Lawyers. Prior to 2002, Pearce practiced union side labor law and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP. From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, NY. Pearce received his J.D. from State University of New York, and his B.A. from Cornell University.
The following is Mr. Pearce's biography as it appears on the Creighton, Pearce, Johnsen & Giroux web site:
Mark Gaston Pearce has dedicated his career to the practice of labor and employment law. He is currently a principal partner in a firm representing individuals as well as public and private sector labor unions in all matters involving employment and labor relations. Previously a district trial specialist with the National Labor Relations Board and a partner at a major Buffalo law firm, Mr. Pearce has extensive trial experience in state and federal courts and agencies. He also represents clients in civil service and employment discrimination litigation, collective bargaining, contract compliance, arbitration, and Taylor law prosecution. Additionally, Mr. Pearce represents individuals in all employment matters including the negotiation of professional employment contracts, partnership, and severance agreements.
Mr. Pearce is a graduate of Cornell University and State University of New York at Buffalo School of Law. He is admitted to practice in New York State and the United States District Court for the Western District of New York in 1979 and 1980 respectively.
In 2007 and 2008 Mr. Pearce was appointed by NYS Governor Elliott Spitzer to the Commission on Increasing Diversity in the State Government Workforce and the Industrial Board of Appeals respectively. He has served on the NYS Office of Court Administration Commission to Examine Solo and Small Firm Practice and contributed to its report and recommendation issued in 2006. Mr. Pearce is a member of the Procedures and Practices Committee of the American Bar Association Section on Labor and Employment Law, the Board of Directors of the Coalition for Economic Justice, the WNY Workforce Investment Board, the Advisory Board of the Labor and Employment Relations Association of Western New York (formerly IRRA), The Labor Advisory Board of Cornell University School of Industrial Labor Relations- Great Lakes Division, Buffalo Arts Studio, the Erie County Bar Foundation and the Council of the Burchfield-Penney Art Center. He also serves on the NYS Supreme Court Appellate Division 4th Dept. Committee on Character and Fitness, the Board of Directors of the Lawyers Coordinating Committee of the AFL-CIO and has served as president of the Volunteer Lawyers Project Inc., the Minority Bar Association of Western New York, and Housing Opportunities Made Equal.
Mr. Pearce is adjunct faculty at Cornell University School of Industrial Labor Relations and is a member of Cornell Adjunct Faculty -Upstate, New York State United Teachers Local # 37-950 an affiliate of American Federation of Teachers (AFL-CIO). He is a member of the sections on Labor and Employment Law of the American Bar Association and the New York State Bar Association, the Minority Bar Association of Western New York (an affiliate chapter of the National Bar Association), The Bar Association of Erie County. Mr. Pearce has lectured on labor and employment law and given Continuing Legal Education presentations for the American Bar Association , New York State Bar Association, the Pacific Coast Labor and Employment Law Conference, the AFL-CIO, Cornell University and the National Labor Relations Board.
Mr. Pearce is a recipient of the Minority Bar Association of Western New York Legal Service and President's Awards; the 1490 Enterprises of Western New York Black Achiever in Industry award; special recognition from the Buffalo Chapter of the Coalition of Black Trade Unionists; the Coalition for Economic Justice Rev. Robert Beck Award; the Communications Workers of America, Western New York Council Eugene J. Mays Citizenship Award and was designated an "Uncrowned King" and African American Community Builder by the Uncrowned Queens Institute. Mr. Pearce is a class of 2000 graduate of Leadership Buffalo and is listed in the 2007 Buffalo Spree magazine's Superlawyer edition for New York State.
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Employment Law Editor: Ross Runkel, Professor of Law Emeritus.
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NLRB Law Memo 04/10/2009
by Ross Runkel at LawMemo
NLRB Law Memo 04/10/2009
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 6 decisions.
DLC Corp., d/b/a Tea Party Concerts and/or Live Nation (1-RC-22162; 353 NLRB No. 130) Mansfield, MA March 31, 2009.
The Board, reversing the hearing officer, sustained the Union's objection alleging that the Employer improperly promised 4 hours' pay to off-duty employees in exchange for voting in the representation election. The Board set aside the election result and directed a second election.
The Employer promotes, stages, and presents music concerts at multiple venues, including the Tweeter Center, a summer-season facility in Mansfield, MA. The Union sought to represent the Employer's stagehands working at the Tweeter Center.
In a pre-election campaign letter to the stagehands, the Employer offered 4 hours' pay to those stagehands who were "not on a call" at the Tweeter Center, i.e., off-duty, if they voted in the election. Fifty-six stagehands were not on-call when the election was conducted. The Union lost the election, 53 votes to 48, with 2 non-determinative challenged ballots.
The Union objected to the Employer's offer. The hearing officer, however, concluded that it would be appropriate policy, and consistent with Section 8(c) of the Act to permit employers to pay employees for their time spent voting, whether on duty or off. Therefore, the recommendation overruled the Union's objection.
The Board disagreed. It declared that Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995), is current Board law and controlling in the present case. Under Sunrise, a party's payment to employees for attending the election is objectionable conduct, unless the payment is for reimbursement of actual transportation expenses. As in Sunrise, the Employer in the present case offered additional pay to off-duty employees in return for voting; the offer was substantial; it was not linked to reimbursement for travel or other costs; and the number of employees potentially affected was significant. The Board rejected, as a post-hoc rationale, the Employer's argument that the offer was intended for reimbursement purposes. The Board also noted that in any event this rationale had not been substantiated.
Member Schaumber added a personal footnote pointing out that Sunrise was applied here on institutional grounds, and noting that the issue of travel/expense reimbursement related to voting in representation elections should be revisited at an appropriate time. Durham School Services LP, 353 NLRB No. 129, slip op. at 1 fn. 2 (2009) cited.
(Chairman Liebman and Member Schaumber participated.)
***
Durham School Services LP (14-RC-12713; 353 NLRB No. 129) St. Louis, MO March 31, 2009.
The Board adopted the Regional Director's finding that the Employer's offer of 2 hours' show-up pay to off-duty employees to come to the Employer's facility during the election constituted objectionable conduct. Accordingly, the Board adopted the Regional Director's recommendation to set aside the election.
The Employer provides school bus transportation services. In an election held Oct. 17, 2008, the Employer's drivers and monitors cast 59 votes for Laborers International Union of North America Local 509, 77 against, and 1 challenged ballot.
During the month prior to the election, the Employer distributed a flyer to employees that stated: "Because Durham believes that it is important that you are given an opportunity to exercise your right to vote, the Company will pay anyone not scheduled to work on Friday at the request of your school district two (2) hours of pay if you show up at work and check-in with dispatch while the polls are open. Please understand that this does not mean you have to vote and if you vote, you may vote either 'yes' or 'no.'"
At meetings held two days before the election, the Employer told employees that if they were not scheduled to work on election day but came to vote, they would get 2 hours' show-up pay. The Employer gave show-up pay to 37 off-duty employees on Oct. 17.
The Regional Director found that, under the Board's decision in Sunrise Rehabilitation Hospital, 320 NLRB 212 (1995), "monetary payments that are offered to employees as a reward for coming to a Board election and that exceed reimbursement for actual transportation expenses amount to a benefit that reasonably tends to influence the election outcome." Applying this standard, the Regional Director found that the amount of show-up pay that the Employer offered was substantial and that 37 employees received the pay. He also noted that the show-up pay was not linked to transportation expenses and, therefore, employees would reasonably perceive it as a favor which might make them feel obligated to vote against the Union. Thus, the Regional Director found the Employer's offer of show-up pay objectionable.
The Board adopted the Regional Director's finding. Member Schaumber stated that he did so for institutional reasons, as the Regional Director's finding was consistent with Board precedent. Member Schaumber indicated that, were he writing on a clean slate, he would permit employers and unions to reimburse employees not scheduled to work during polling hours for reasonable transportation expenses incurred in traveling to the polling place and would permit unions and employers to reimburse all employees for actual wages lost because of voting. He would require that the offer be made to all eligible voters and include a statement that the reimbursement was intended solely to increase participation in the election and not to interfere with or influence how employees vote.
(Chairman Schaumber and Member Liebman participated.)
***
Loparex LLC (18-CA-18436, et al.; 353 NLRB No. 126) Hammond, WI March 31, 2009.
The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by: (1) promulgating a new, more restrictive bulletin board policy after it became aware of union activity at its plant; (2) restricting access to its parking lot by off-duty employees; (3) promulgating an overly broad restriction on the distribution of Union literature and buttons; and (4) promulgating a restriction on talking about unions. The Board also adopted the judge's finding that the Respondent's shift leaders were not supervisors under Section 2(11), and, as a result, the Respondent violated Section 8(a)(1) when it prohibited them from engaging in pro-union activity. In so doing, the Board found that, among other things, the Respondent failed to prove that its shift leaders exercised the authority to assign using independent judgment.
The Board also adopted the judge's recommended dismissal of allegations that the Respondent unlawfully threatened and disciplined an employee in violation of Section 8(a)(1) and (3).
(Chairman Liebman and Member Schaumber participated.)
Charges filed by Teamsters Local 662; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Minneapolis on May 14, 2008. Adm. Law Judge Paul Bogas issued his decision Nov. 12, 2008.
***
Oaktree Capital Mgmt., LLC and TBR Property, LLC, a single employer, d/b/a Turtle Bay Resorts, and Benchmark Hospitality, Inc. (37-CA-6601-1, et al.; 353 NLRB No. 127) Honolulu, HI March 31, 2009.
The Board adopted the administrative law judge's findings that the Respondents committed numerous violations of Section 8(a)(1) of the Act. In affirming the findings that the Respondents violated Section 8(a)(1) by telling union representatives that they were trespassing and had no right to be on the property (contrary to their contractually-established right of access), by issuing trespass notices to them, by evicting them from the resort, and by summoning law enforcement officials to remove or assist in removing them. In affirming the finding that the Respondents unlawfully followed union representatives and eavesdropped on their conversations with employees, the Board relied only on the judge's analysis of the events of Feb. 10 and March 3 and 10, 2005. In affirming the finding that the Respondents unlawfully photographed or videotaped union representatives and employees who were engaged in lawful demonstrations, the Board relied on the judge's analysis of the events of March 25, 2004. In affirming the finding that the Respondents unlawfully prevented union representatives and employees from accessing the public beaches adjacent to the resort, the Board relied only on the judge's analysis of the events of Feb. 12, 2004. The Board found it unnecessary to pass on the judge's findings that the Respondents committed similar violations on other dates inasmuch as such findings would be cumulative and would not materially affect the remedies ordered by the Board in this case.
The Board adopted the judge's findings that the Respondents violated Section 8(a)(3) and (1) by discharging employee Mark Feltman, by suspending employee Timothy Barron, and by warning employee Jeannie Martinson. With respect to Feltman's discharge, the Board noted that the judge described the General Counsel's initial burden in terms of four evidentiary elements rather than the traditional three, and found pretext rather than dual motivation. See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U. S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399-403 (1983). The Board found that the Respondents proved the existence of a legitimate reason for disciplinary action but failed to persuade by a preponderance of the evidence that they would have taken the same action in the absence of protected conduct.
The Board adopted the judge's findings that the Respondents violated Section 8(a)(5) and (1) by unilaterally changing the access provisions of the collective bargaining agreement and by refusing or unreasonably delaying in providing the Union with requested information relevant to the Union's duties as the employees' bargaining representative. However, the Board did not adopt the judge's dismissal of Section 8(a)(5) and (1) allegation concerning the Respondents' Jan. 28, 2005, requirement that union agents pay for parking, which the Respondents had previously validated, when the union agents visited the resort for representational purposes. The judge noted that there was no evidence of the amount the Respondents required union representatives to pay for parking, and that therefore the judge felt unable to conclude whether the change in parking privileges was a significant change that would require the Respondents to bargain before making the change.
The General Counsel, in exceptions, noted that the judge erroneously failed to consider record evidence of monetary amounts of the validated parking that the Respondents provided the union representatives. The Board therefore found that there was evidence of the monetary amounts at issue for the parking privileges unilaterally revoked by the Respondents. The Board then severed and remanded this issue to an administrative law judge with directions to consider this evidence and to issue a supplemental decision analyzing whether the Respondents violated Section 8(a)(5) and (1) as alleged.
The Board found no abuse of discretion concerning the judge's many evidentiary and procedural rulings to which the Respondents excepted. The Board noted that Section 102.35 of the Board's Rules and Regulations provide that a judge should "regulate the course of the hearing" and "take any other action necessary" in furtherance of the judge's stated duties and authorized by the Board's Rules. Thus, the Board accords judges significant discretion in controlling the hearing and directing the creation of the record.
(Chairman Liebman and Member Schaumber participated.)
Charges filed by UNITE HERE! Local 5; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearings at Honolulu, July 19-29 and Oct. 18-26, 2005. Adm. Law Judge Joseph Gontram issued his decision May 24, 2006.
***
SPE Utility Contractors, LLC (7-CA-50767; 353 NLRB No. 123) Port Huron, MI March 30, 2009.
The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(4) and (1) of the Act by discharging employee Linda Leuch in order to limit its potential backpay to her in another unfair labor practice proceeding and because Leuch testified in that proceeding. The Board adopted the judge's recommended expunction remedy, including that Leuch's discharge not be used in any way against her.
(Chairman Liebman and Member Schaumber participated.)
Charge filed by Linda M. Leuch, an individual; complaint alleged violation of Section 8(a)(1), (3), and (4). Hearing at Detroit, April 30 and Oct. 23, 2008. Adm. Law Judge Ira Sandron issued his decision Dec. 17, 2008.
***
Spurlino Materials, LLC (25-CA-30053, et al.; 353 NLRB No. 125) Indianapolis, IN March 31, 2009.
The Board adopted the administrative law judge's conclusions that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally assigning unit work at the Warehouse project to nonunit employees, by unilaterally creating the positions of "portable plant driver" and "alternate/back-up portable plant driver" at the Stadium project, and by instituting a new evaluation system and aptitude testing (driving tests) to select the portable plant drivers from among unit employees. The Board further adopted the judge's conclusions that the Respondent violated Section 8(a)(3) and (1) by failing to select three prominent union supporters as portable batch plant drivers, and by later suspending and then discharging one of them, and that the Respondent also violated Section 8(a)(1) by failing to accord the discharged employee his union representation rights during the investigatory meeting preceding his suspension.
The Board reversed the judge to find that the Respondent violated Section 8(a)(3) and (1) by discriminatorily failing to dispatch the same three prominent union supporters according to the established seniority system for the deliveries to the Stadium project prior to the staffing of the portable plant operation at that project. The Board also reversed the judge to dismiss the allegation that the Respondent violated Section 8(a)(5) by failing to timely answer the Union's information request. Finally, the Board disagreed with the judge's recommendation to extend the Union's certification year, and deleted provisions for that remedy from the Order and notice.
(Chairman Liebman and Member Schaumber participated.)
Charges filed by Teamsters Local 716; complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at Indianapolis on April 24-27, May 30-31, and Oct. 18, 2007. Adm. Law Judge Ira Sandron issued his decision Dec. 17, 2007.
***
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NLRB Law Memo 04/03/2009
by Ross Runkel at LawMemo
NLRB Law Memo 04/03/2009
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 5 decisions.
Diversified Enterprises, Inc. (9-CA-43110; 353 NLRB No. 120) Mount Hope, WV March 26, 2009.
The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by demoting and removing certain benefits from an employee because he engaged in union activities. In this connection, the Board noted that the Respondent acted on a purported, but erroneous, belief that the employee was a supervisor. The Board also adopted the judge's findings that the Respondent violated Section 8(a)(1) by informing the employee that he had been demoted because of union activities, and by threatening employees, and informing them that they were working less favorable shift hours, because they engaged in union activities.
(Chairman Liebman and Member Schaumber participated.)
Charge filed by Mid-Atlantic Regional Council of Carpenters, West Virginia District; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Beckley on May 29, 2007. Adm. Law Judge Eric M. Fine issued his decision July 27, 2007.
***
Horizon Contract Glazing, Inc. (20-CA-32880(E); 353 NLRB No. 118) Sacramento, CA March 29, 2009.
The Board adopted the administrative law judge's denial of the Applicant's request for attorneys' fees and expenses pursuant to EAJA. The Board agreed with the judge that conflicting inferences about the Applicant's motivation for refusing to recall alleged discriminatee Joseph Upchurch could reasonably be drawn from testimony about statements made during his Nov. 8, 2005 conversation with the Applicant's secretary-treasurer, Michelle Klein. The Board noted that it is well established that the General Counsel's litigation position is substantially justified where it is possible to draw a set of inferences that would have supported the General Counsel's position. See Meaden Screw Products Co., 336 NLRB 298, 302-303 (2001); Europlast, Ltd., 311 NLRB 1089 (1993), affd. 33 F.3d 16 (7th Cir. 1994). The Board also noted that apart from the evidence about the Nov. 8, 2005 conversation, the General Counsel presented evidence of the Applicant's shifting defenses for refusing to recall Upchurch, as well as other circumstantial evidence that, if credited, might reasonably have established the animus element of the General Counsel's prima facie case. The Board noted that this evidence provided further support for finding that the General Counsel's litigation position was substantially justified. The Board finally noted that it is well established that "where the General Counsel is compelled by the existence of a substantial credibility issue to pursue the litigation, and therefore to present evidence, which, if credited, would constitute a prima facie case, the General Counsel's case has a reasonable basis in fact and law and is substantially justifies" (citations omitted). See Golden Stevedoring Co., 343 NLRB 115,116 (2004).
(Chairman Liebman and Member Schaumber participated.)
Adm. Law Judge Jay R. Pollack issued his supplemental decision Jan. 15, 2009.
***
KSM Industries, Inc. (30-CA-13762, et al.; 353 NLRB No. 117) Germantown, WI March 26, 2009.
In this backpay case, the Board adopted the administrative law judge's findings that strikers who were unlawfully denied recall or whose recall was delayed did not abandon employment by tendering resignations in order to receive payouts from retirement funds and payments for accrued vacation time. It also found that a striker who responded "no" to a recall interest questionnaire did not abandon employment in the absence of a valid offer of reinstatement. The Board adopted the judge's findings that the General Counsel's method of determining the order of recall and that the backpay periods for certain strikers were appropriate. With one exception, the Board adopted the judge's findings that certain strikers engaged in reasonable efforts to mitigate backpay despite quitting nonequivalent interim employment or being terminated from interim employment. The Board reversed the judge's finding that a striker who applied for one job in a 6-month period engaged in sufficient efforts to mitigate and denied him backpay for two quarters of his backpay period.
(Chairman Liebman and Member Schaumber participated.)
Carges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union Local 2-779; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Milwaukee, March 26-30 and April 4-6, 2007. Adm. Law Judge David I. Goldman issued his decision Sept. 27, 2007.
***
Ridgeview Industries, Inc. (7-CA-50170, et al.; 353 NLRB No. 119) Walker, MI March 25, 2009.
The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by reprimanding employees Ben Balczak and Glenn Gentz, by discharging Gentz, and by imposing a job jeopardy agreement on employee Dave Smith. The Board also adopted the judge's finding that the Respondent violated Section 8(a)(1) by threatening Smith. In adopting the judge's finding that Gentz's discharge was unlawful, the Board relied particularly on the evidence of disparate treatment. Member Schaumber found it unnecessary to pass on the judge's other reasons for finding the violation. Regarding the judge's Wright Line analysis of the alleged Section 8(a)(3) violations, Member Schaumber relied only on the Respondent's numerous Section 8(a)(1) violations as evidence of animus, and did not rely on the Respondent's public statements in opposition to the union campaign. Chairman Liebman concurred with all of the judge's grounds for finding anti-union animus, though like Member Schaumber, she found that the Respondent's Section 8(a)(1) violations were sufficient proof of animus.
(Chairman Liebman and Member Schaumber participated.)
Charges filed by UAW and Glenn Gentz, an individual; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Grand Rapids, April 23 and June 3-6, 2008. Adm. Law Judge Mark D. Rubin issued his decision Oct. 27, 2008.
***
Southern Power Co. (10-CA-37348, 37414; 353 NLRB No. 116) Atlanta, GA March 20, 2009.
The Board affirmed the administrative law judge's finding that the Respondent was a successor employer and had violated Section 8(a)(5) of the Act by refusing to recognize and bargain with International Brotherhood of Electrical Workers (IBEW) System Council U 19, on behalf of Local 801-1, as the exclusive bargaining representative of operation technicians in one plant previously operated by Alabama Power, and by refusing to recognize and bargain with IBEW Local 84 as the exclusive bargaining representative of operation technicians in three plants previously operated by Georgia Power.
The Board, however, reversed the judge and found that the Respondent failed to prove that a bargaining unit consisting of operation technicians at all three former Georgia Power plants was not an appropriate unit. The Board found that the judge failed to give any weight to the historical representation of employees in the three former Georgia Power plants and erred by failing to give proper consideration to the importance of multiplant bargaining history in his unit determination. The Board further found that the Respondent failed to show compelling circumstances why a three-plant bargaining unit was no longer appropriate.
(Chairman Liebman and Schaumber participated.)
Charges filed by Electrical Workers (IBEW) Local 84; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Birmingham on Sept. 8, 2008. Adm. Law Judge Lawrence W. Cullen issued his decision Nov. 3, 2008.
***
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NLRB Law Memo 04/01/2009
by Ross Runkel at LawMemo
NLRB Law Memo 04/01/2009
by LawMemo - First in Employment Law.
Also by email.
NLRB - Staff summarized 6 decisions.
McElroy Coal Co. (6-CA-35806; 353 NLRB No. 108) Glen Easton, WV March 9, 2009.
The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(1) of the Act when it restricted employees by threatening them with having their vehicles towed from its parking lot. Employee Clifford White parked his truck with "We don't want scabs" signs in the company parking lot on 3 consecutive work days starting Sept. 27, 2007. On the third day, the Respondent's human resources supervisor directed White to remove the signs from his truck, and he threatened to have the truck towed at White's expense if the signs remained posted.
Based on the credited evidence, the judge found that White had engaged in protected activity in that his sign posting and the Union's pending subcontracting complaints were part of a coordinated effort by the Union to protest the Respondent's subcontracting of perceived bargaining unit work. The judge also rejected the Respondent's argument that White's use of "scabs" was improper. Recognizing that "scabs" may be used in different labor dispute contexts and given the circumstances presented in this case, the judge found that White had acted in good faith when he applied this term to the subcontracting at issue at the time.
(Chairman Liebman and Member Schaumber participated.)
Charge filed by Mine Workers Local 638; complaint alleged violation of Section 8(a)(1). Hearing at Pittsburgh on Oct. 15, 2008. Adm. Law Judge Eric M. Fine issued his decision Nov. 21, 2008.
***
Saigon Gourmet Restaurant, Inc. and Saigon Spice, Inc., a Single Employer d/b/a Saigon Grill Restaurant (2-CA-38252; 353 NLRB No. 110) New York, NY March 9, 2009.
The Board affirmed the administrative law judge's findings that Saigon Gourmet Restaurant, Inc. and Saigon Spice, Inc. constitute a single employer. The Board also affirmed the judge's findings that the Respondent violated Section 8(a)(1) of the Act by discharging its delivery employees because they engaged in the protected activity of concertedly taking steps toward asserting wage and hour claims against the Respondent, and by videotaping the discharged employees' subsequent protected picketing. The Board reversed the judge's decision and found that the Respondent further violated Section 8(a)(1) by promising the delivery employees benefits conditioned on cessation of their protected concerted activity. The Board remanded allegations that the Respondent violated Section 8(a)(1) by threatening and interrogating employees because the testimony concerning those allegations was in conflict and the judge did not make needed credibility determinations.
(Chairman Liebman and Member Schaumber participated.)
Charge filed by 318 Restaurant Workers Union; complaint alleged violation of Section 8(a)(1). Hearing at New York, Dec. 3, 5-6, 2007. Adm. Law Judge Raymond P. Green issued his decision Feb. 14, 2008.
***
Michigan Infrastructure & Transportation Assn., Inc. (Walter Toebe Construction Co.) (7-CD-577; 353 NLRB No. 114) Detroit, MI March 20, 2009.
The Board found that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act had been violated and that there were competing claims to the work in dispute. The Board found that the work should be awarded to employees represented by Michigan Laborers' District Council, AFL-CIO based upon the factors of: certifications and collective-bargaining agreements; employer preference and past practice; area and industry practice; and economy and efficiency of operations.
(Chairman Liebman and Member Schaumber participated.)
***
Pouk & Steinle (21-CD-665, 666; 353 NLRB No. 113) Riverside, CA March 19, 2009.
The Board awarded the disputed work in this 10(k) proceeding to employees represented by International Brotherhood of Electrical Workers, Locals 47 and 440, rather than to employees represented by Southern California District Council of Laborers, Local 1184. In making this award, the Board found that there was a reasonable cause to believe Section 8(b)(4)(D) of the Act had been violated, and relied on the 10(k) factors of employer preference and past practice, area and industry practice, relative skills, and economy and efficiency of operations.
(Chairman Liebman and Member Schaumber participated.)
***
SS1 Entertainment, LLC d/b/a Steven Scott Entertainment (29-AO-00001; 353 NLRB No. 115) New York, NY March 20, 2009.
The New York State Employment Relations Board (NYSERB) filed a petition with the Board on Jan. 5, 2009, seeking an Advisory Opinion as to whether the Board would assert jurisdiction over the operations of the named employer under the Board's current standards, pursuant to Sections 102.98 and 102.99 of the Board's Rules and Regulations.
An unfair labor practice proceeding (SU-60122) is currently pending before NYSERB involving the Associated Musicians of Greater New York, Local 802 (the Union) and the Employer. The parties took opposing positions whether the Board has jurisdiction over the Employer. The Employer is a New York corporation engaged in the business of providing bands and related entertainment to corporate and individual clients. In June 2002, the Employer purchased the name Steven Scott Entertainment and other business assets from Steven Scott Orchestras. Bands and orchestras submit marketing materials to the Employer, and upon customer inquiries seeking entertainment, the Employer meets with the customer and show the bands' promotional materials. When the customer has picked a band, the Employer contracts with the customer to provide the entertainment. The Employer and the band enter into a contract for the event and agree on the fee. The Employer pays the band after the performance.
During the twelve months preceding Sept. 29, 2008, the Employer had gross revenues in excess of $500,000. Almost $60,000 of that revenue came from services performed outside the State of New York. In addition, the Employer received revenues exceeding $125,000 from commercial clients in New York, some of which would meet the NLRB's jurisdictional standards.
The Board gave its opinion that, inasmuch as the Employer's gross annual revenue is in excess of $500,000 and its direct inflow in excess of $50,000, the Employer would satisfy either the Board's retail or nonretail standards. Thus, the Board determined that it would assert jurisdiction over the Employer under the current standards. The Board distinguished the facts set forth in this case from those in American Federation of Musicians (Penza Theatrical Agency, Inc.), 177 NLRB 842 (1969), in which the Board gave the opinion that it would not exercise jurisdiction over the employer's operations. In that case, the employer's customers paid the bands directly, so the employer's "gross volume of business" consisted only of commissions, and the commissions fell below the Board's jurisdictional standards. The Board noted that, the Employer collects the fees from the customers and pays the orchestras and bands itself. Thus, the "gross volume of business" was not limited to commissions for brokering the services.
(Chairman Liebman and Member Schaumber participated.)
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Woodbury Partners, LLC d/b/a The Inn at Fox Hollow (29-CA-28122, et al.; 353 NLRB No. 112) Woodbury, NY March 18, 2009.
The Board adopted the administrative law judge's finding, in his supplemental decision on remand, that the Respondent violated Section 8(a)(1) of the Act by discharging an unpopular supervisor in order to interfere with or coerce its employees in their choice of representative.
The Board rejected the Respondent's affirmative defense that the discharge was motivated by the supervisor's violation of the Respondent's anti-harassment policy and would have taken place even absent the union campaign. The Board found that the timing of the discharge creates an inference that it was intended to interfere with or coerce employees in their choice of representative and that the Respondent failed to rebut this inference. The Board observed that the Respondent presented no evidence to explain why it discharged the supervisor when it did, i.e., long after employees had reported abusive treatment by the supervisor and hard on the heels of the Respondent's discovery of the union campaign. The Board found that the record therefore strongly supports the conclusion that it was the arrival of the Union that jolted the Respondent into action. The Board found that this conclusion is reinforced by the manner in which the discharge was announced. Thus, in announcing the discharge to employees, the Respondent did not state that it was based on the supervisor's alleged violation of the Respondent's anti-harassment policy. Instead, the discharge was broached entirely in the context of the Respondent's opposition to the Union and its desire that the employees abandon the union campaign.
(Chairman Liebman and Member Schaumber participated.)
Adm. Law Judge Howard Edelman issued his supplemental decision Nov. 3, 2008.
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