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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.
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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.
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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.)
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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.)
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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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