Human Services Projects, Inc. d/b/a Teen Triumph (32-CA-25262; 358 NLRB No. 2) Stockton, CA, February 6, 2012.

The Board found an unlawfully discharged employee ineligible for reinstatement because of post discharge misconduct. The employee followed a coworker in a parking lot 5 months after his discharge and engaged in a profanity-laced tirade about an unrelated matter. The Board concluded that this misconduct was not provoked by the Employer's unlawful action and rendered him unfit for further service. Member Flynn further found that the employee's refusal to the leave the employer's premises and violent gestures toward the chief financial officer immediately after his discharge tend to support the conclusion that the employee was unfit for further service as a child care worker in residential facilities for sex and youth offenders.

Charges filed by an individual. Administrative Law Judge Jay R. Pollack issued his decision June 23, 2011. Chairman Pearce and Members Griffin, Jr. and Flynn participated.

***

Noel Canning, a Division of the Noel Corporation (19-CA-32872; 358 NLRB No. 4) Yakima, WA, February 8, 2012.

The Board adopted the Administrative Law Judge's finding that the respondent employer violated Section 8(a)(5) of the Act by refusing to reduce to writing and to execute a collective-bargaining agreement reached with the union, including payment of a retroactive bonus.

Charge filed by Teamsters, Local 760. Administrative Law Judge Gerald A. Wacknov issued his decision on September 26, 2011. Members Hayes, Flynn, and Block participated.

***

Asher Candy, Inc. and Sherwood Brands, Inc., a single employer, etc. (29-CA-26761; 358 NLRB No. 5) Rockville, MD, February 8, 2012.

The Acting General Counsel sought default judgment in this case on the ground that the respondents failed to file an answer to the amended compliance specification. The Board ordered that the respondents jointly and severally make whole the unit employees named in the Board's supplemental decision and order by paying them the total amount due of $279,523.20, with interest, minus tax withholdings required by federal and state laws.

Charge filed by Bakery, Confectionary, Tobacco Workers & Grain Millers International Union, Local 102, AFL-CIO. Chairman Pearce and Members Hayes and Griffin, Jr. participated.

Southwest Regional Council of Carpenters, Carpenters Local 1507 (Perry Olsen Drywall, Inc.) (27-CB-5723; 358 NLRB No. 3) West Jordan, UT, February 2, 2012.

The Board found that the union violated Section 8(b)(1)(A) and 8(b)(2) of the Act by refusing to let an individual pay the union's nonmember registration fee and sign its exclusive out-of-work list as a nonmember applicant for employment, and accordingly causing Perry Olsen Drywall, Inc., to refuse to hire the individual, all because he questioned the validity of the Union's hiring hall procedures under right-to-work laws. The Board agreed with the Administrative Law Judge's conclusion that the union departed from its established hiring hall procedures by refusing to let the individual pay the nonmember fee and sign the out-of-work list, and that the refusal was unrelated to the union's valid eligibility rules and was not otherwise justified by any legitimate consideration. The Board thus agreed with the judge that the union's conduct was arbitrary and violated its duty of fair representation.

Charge filed by an individual. Administrative Law Judge Lana H. Parke issued her decision on September 22, 2011. Chairman Pearce and Members Hayes and Griffin, Jr. participated.

***

Apollo Detective, Inc. (13-CA-61510; 358 NLRB No. 1) Calumet Park, IL, January 31, 2012.

The Acting General Counsel sought a default judgment in this case on the ground that the respondent failed to file an answer to the consolidated complaint and compliance specification. The Board found that the respondent violated the Act by failing to remit to the union any dues deducted pursuant to the terms of the collective-bargaining agreement, and by interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them.

Charge filed by Service Employees International Union, Local 1. Chairman Pearce and Members Hayes and Griffin, Jr. participated.

Reliant Energy aka Etiwanda LLC (31-CA-25155 and 31-RC-08023; 357 NLRB No. 172) Rancho Cucamonga, CA, December 30, 2011.

The Board majority (Chairman Pearce and Member Becker) found that the employer violated the Act and engaged in objectionable conduct related to a representation election by: promising the employees that they would be eligible for an extra benefit if they voted against the Union; withholding the extra benefit and double-time holiday pay from the employees; and causing the removal of an employee employed by a contractor from its facility because the employee engaged in union activity. Member Hayes dissented to the finding regarding the removal of an employee, asserting that the majority should have distinguished between the rights of a property owner's employees and those of non-employees in their respective rights to access private property to engage in union or other concerted activity.

Charge filed by/Petitioner - Utility Workers of America, AFL-CIO. Administrative Law Judge Gregory Z. Meyerson issued his decision on April 29, 2002. Chairman Pearce and Members Becker and Hayes participated.

***

Road Sprinkler Fitters, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 669, AFL-CIO (21-CE-00374; 357 NLRB No. 176) Orange, CA, December 30, 2011.

The Board majority (Chairman Pearce and Member Becker) dismissed the complaint and found that the Union had not violated the Act by entering into a collective-bargaining agreement that required the employer to cease doing business with another person. Specifically, the provision in question required that the agreement would be applied to operations "establish[ed] or maintain[ed]" by the Employer to do the same type of work covered by the agreement and within the Union's territorial jurisdiction. The majority found that the provision in question merely sought to preserve the unit's work and therefore did not violate the Act. Member Hayes dissented, asserting that the provision would clearly force the Employer to cease doing business with entities that it did not control, therefore violating the Act.

Charge filed by Cosco Fire Protection, Inc. and National Fire Sprinkler Association, Inc., Party in Interest and Firetrol Protection Systems, Inc., Party in Interest. Administrative Law Judge William G. Kocol issued his decision on November 3, 2008. Chairman Pearce and Members Becker and Hayes participated.

To help provide further guidance to practitioners and human resource professionals, NLRB Acting General Counsel Lafe Solomon has released a second report describing social media cases reviewed by his office.

The Operations Management Memo covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee's posting was not work-related.

The report underscores two main points made in an earlier compilation of cases:

Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

An employee's comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Given the new and evolving nature of social media cases, the Acting General Counsel has asked all regional offices to send cases which the Regions believe to be meritorious to the agency's Division of Advice in Washington D.C., in the interest of tracking them and devising a consistent approach. About 75 cases have been forwarded to the office to date. The report, which does not name the parties to the cases or their locations, illustrates that these cases are extremely fact-specific.

The report represents the Acting General Counsel's interpretation of the National Labor Relations Act as it applies to forms of communication that did not exist when the Act was written.

Three social media cases are pending

Three cases involving social media questions are currently pending before the Board and those decisions will give further guidance as the law around social media develops.

Hispanics United of Buffalo

Karl Knauz BMW, Knauz Auto Group

Triple Play Sports Bar

NLRB GC memo on arbitration deferral

Guideline Memorandum Concerning Collyer Deferral Where Grievance-Resolution Process is Subject to Serious Delay (01/20/2012)

NLRB's acting General Counsel is recommending a change in the NLRB's policy on deferral to arbitration. If unfair labor charges under Section 8(a)(1) and (3) will not be resolved or arbitrated within a year, the General Counsel would urge that the Board not defer the case, but rather decide the case on the merits.

D. R. Horton, Inc. and Michael Cuda. Case 12–CA–25764 (01/03/2012)
http://tinyurl.com/89ec6w7
http://www.nlrb.gov/documents/BoardDecision.pdf

The NLRB has ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court.

The Board said:

"In this case, we consider whether an employer violates Section 8(a)(1) of the National Labor Relations Act when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours or other working conditions against the employer in any forum, arbitral or judicial. For the reasons stated below, we find that such an agreement unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection, notwithstanding the Federal Arbitration Act (FAA), which generally makes employment-related arbitration agreements judicially enforceable. In the circumstances presented here, there is no conflict between Federal labor law and policy, on the one hand, and the FAA and its policies, on the other."

The decision examined one such agreement used by nationwide homebuilder D.R. Horton, under which employees waived their right to a judicial forum and agreed to bring all claims to an arbitrator on an individual basis. The agreement prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees.

The Board found that the agreement unlawfully barred employees from engaging in “concerted activity” protected by the National Labor Relations Act. The Board emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.

Chairman Mark Gaston Pearce and Member Craig Becker joined in finding the agreement unlawful. Member Brian Hayes was recused from the case. The decision was finalized on Jan. 3, but was issued publicly by the agency Jan. 6.

The decision requires Horton to rescind the agreement or revise it to make clear to employees that they are not waiving their right to pursue a class or collective action in all forums.

It is noteworthy that this decision will apply to private sector employers whether or not they are unionized.

NLRB - Staff summarized 1 decision.

Jackson Hospital Corp. d/b/a Kentucky River Medical Center (9-CA-37734, et al.; 354 NLRB No. 42) Jackson, KY, July 9, 2009.

The Board affirmed, with some modified rationale, the administrative law judge's determinations regarding discriminatee Melissa Turner's eligibility for reinstatement and backpay. The Board primarily addressed the effect of Turner's post-discharge felony drug conviction, quitting of an interim job, and extended medical leave.

Turner's conviction for soliciting a controlled substance by fraud was based on her having visited a hospital and asked for Demerol to treat an alleged toothache, while lying about having sought treatment earlier that day at a different hospital, where she was prescribed Percocet. The Board held that the Respondent failed to prove its assertion that Turner's conviction (or the circumstances underlying it) would have caused the Respondent to lawfully discharge her. In so concluding, the Board relied on evidence that the Respondent had not fired other employees despite their felony drug convictions or substance abuse problems. Regarding Turner's quitting her interim employment at Gram Resources, the Board found that the judge appropriately considered the conflicting evidence regarding Turner's reasons for quitting and relied on credibility in concluding that Turner's decision to quit was reasonable and thus did not disqualify her from backpay. The Board upheld the credibility resolution. Finally, the Board found that the Respondent failed to prove its assertion that it would have lawfully discharged Turner, as her interim employer at the time did, for her 8-month medical leave during and after a difficult pregnancy. Although the Respondent sought remand for findings on this issue because the judge failed to address it, the Board concluded that the evidence - consisting of the Respondent's written leave policy and its former CEO's uncontested testimony about the operation of the policy - permitted the Board to resolve the matter itself and avoid the delays inherent in remand. The Board found that the former CEO's testimony did not resolve ambiguities in the Respondent's written leave policy regarding extensions of FMLA leave and the possibility of supplementing exhausted FMLA leave with a personal leave of absence. Thus, even assuming such a defense to reinstatement and backpay were cognizable, the Board found that the Respondent failed to meet its burden of proving that it would have lawfully discharged Turner because of her medical leave.

The Board also summarily rejected, based on credibility determinations and procedural reasons, the General Counsel's cross-exceptions to the judge's finding that Turner failed to mitigate her damages by seeking work during a particular portion of the backpay period and the General Counsel's requests that the Board re-order Turner's reinstatement and assert Turner's right to backpay beyond the litigated compliance period.

(Chairman Liebman and Member Schaumber participated.)

Adm. Law Judge Paul Buxbaum issued his supplemental decision Feb. 26, 2008.

***

NLRB - Staff summarized 1 decision.

Detroit Legal News Co., d/b/a Inland Press (7-CA-50893, 354 NLRB No. 36) Detroit, MI, June 26, 2009.

The Board affirmed the administrative law judge's finding that the Respondent's statement to David W. Snyder that it refused to hire him because he took "every problem to the union" violated Section 8(a)(1) of the Act. The Board also found that the Respondent's refusal to hire Snyder violated Section 8(a)(3). The Board did not pass on the judge's finding that the Respondent's conduct violated Section 8(a)(1).

(Chairman Liebman and Member Schaumber participated.)

Charge filed by David W. Snyder, an individual; complaint alleged violations of Section 8(a)(1) and (3). Hearing at Detroit on May 5, 2008. Adm. Law Judge John T. Clark issued his decision Aug. 26, 2008.

***

NLRB - Staff summarized 1 decision.

A & C Healthcare Services, Inc. (20-CA-33588, 33780; 354 NLRB No. 33) Millbrae, CA, June 8, 2009.

The Board adopted the administrative law judge’s findings that the Respondent violated Section 8(a)(5) and (1) of the Act by: (1) refusing to recognize and bargain with the Union from sometime prior to Nov. 8, 2007 until Jan. 3, 2008, and (2) making unilateral changes in the unit employees’ terms and conditions of employment on and after Nov. 8, 2007. The judge found, inter alia, that the Respondent was a successor employer and it was unnecessary to decide if the Respondent was a “perfectly clear successor” under NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 294-295 (1972). The judge also rejected the Respondent’s argument that its successorship status could not occur during the interim management period while it waited to obtain its own operating license. See Golden Cross Health Care of Fresno, 314 NLRB 1201, 1205-1206 (1994). The judge further found no merit in the Respondent’s argument that it could escape its successor obligations for a while because it initially hired the predecessor employer’s workers as probationary employees. See Windsor Convalescent Center of North Long Beach, 351 NLRB 975, 978 (2007).

(Chairman Liebman and Member Schaumber participated.)

Charges filed by Service Employees, United Healthcare Workers-West; complaint alleged violations of Section 8(a)(1) and (5). Hearing at San Francisco, Sept. 18, 2007 and Jan. 23, 2008. Adm. Law Judge Gerald A. Wacknov issued

NLRB - Staff summarized 4 decisions.

Camelot Terrace, Inc. (13-CA-43936, 44044; 354 NLRB No. 24) Streator, IL, May 28, 2009.

The Board adopted the administrative law judge's supplemental decision finding that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging certified nursing assistant Crystal Lopez. The judge found that Lopez did not quit her job, as the Respondent contended, but, rather, that the Respondent discharged her. The judge further found that Lopez, who was the leading supporter in the Union's organizing campaign at the Respondent's facility, engaged in protected concerted activities, that the Respondent had knowledge of these activities and had animus against Lopez and the Union, and that there was a nexus between Lopez's protected activities and the Respondent's adverse action against her. The judge additionally found that the Respondent had failed to rebut the case against it.

In his initial decision in the case, the judge had found no violation on the basis that Lopez had quit her job rather than been discharged. The Board, however, in its prior decision, Camelot Terrace, Inc., 353 NLRB No. 20 (2008), found that the judge had failed to articulate a basis for certain credibility determinations and had failed to address evidence that arguably contradicted a number of his factual findings. The Board, therefore, remanded the case to the judge to make reasoned credibility resolutions and findings of fact that detailed the supporting evidence and discredited or reconciled the contrary evidence.

In its supplemental decision, the Board found that, on remand, the judge addressed the conflicting testimony and record evidence regarding issues material to Lopez's discharge and made reasoned credibility resolutions and findings of fact. The Board further found that the record supported the judge's findings and that the Respondent's exceptions lacked merit. In particular, the Board rejected the Respondent's contention that the judge erred in relying on Director of Nursing Huffman's testimony in finding that, on Feb. 25, 2007, Lopez was in the dining room assisting residents with breakfast during the period of 9:00 a.m. to 9:15 a.m.

(Chairman Liebman and Member Schaumber participated.)

Adm. Law Judge Lawrence W. Cullen issued his supplemental decision Dec. 18, 2008.

***

Cook DuPage Transportation Co. (13-CA-44649, 44861; 354 NLRB No. 31) Chicago, IL, June 4, 2009.

The Board adopted the administrative law judge’s findings that the Respondent violated Section 8(a)(5) of the Act by unilaterally laying off or terminating 40 employees; unilaterally eliminating its standby driver program; and failing and refusing to provide information requested by the Union.

Member Schaumber, in agreeing with the judge that the Respondent violated Section 8(a)(5) by unilaterally laying off or terminating its employees, noted that he does not agree that any decision to lay off employees would be a per se mandatory subject of bargaining. However, he agreed that under extant Board law, which he applies for institutional reasons, the Respondent’s decision to lay off or terminate employees was a mandatory subject of bargaining in the circumstances of this particular case, and the Respondent violated Section 8(a)(5) by failing to give the Union advance notice and an opportunity to bargain about this decision.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by Amalgamated Transit Union, Local 1028; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Chicago on Dec. 15, 2008. Adm. Law Judge Robert A. Giannasi issued his decision Feb. 12, 2009.

***

Dayton Newspaper, Inc. d/b/a Cox Ohio Publishing (9-CA-44559; 354 NLRB No. 32) Dayton, OH, June 5, 2009.

The Board found that, based on the stipulated record, the Respondent violated Section 8(a)(5) of the Act by failing and refusing to increase the mileage reimbursement rate for unit employees from 29 cents per mile to 32 cents per mile, pursuant to Article 4.01 of its posted conditions. In so doing, the Board found unavailing the Respondent’s contention that raising the mileage rate pursuant to Article 4.01 would subject it to liability under McClatchy Newspapers, 321 NLRB 1386 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997), cert. denied 524U.S. 937 (1998). The Board found, instead, that the Union explicitly conveyed that it accepted the terms of Article 4.01 and thus waived any claim that raising the rate pursuant to the provision was unlawful under McClatchy.

(Chairman Liebman and Member Schaumber participated.)

***

Family Healthcare, Inc. (9-CA-44539; 354 NLRB No. 29) Chillicothe, OH, June 4, 2009.

The Board adopted the administrative law judge’s findings that (1) the Respondent violated Section 8(a)(1) of the Act by discharging Dr. Kristine McCallum for engaging in protected concerted activity, and (2) Dr. McCallum is not a supervisor within the meaning of Section 2(11). The Board further denied the General Counsel’s request for compound interest computed on a quarterly basis for any backpay awarded.

(Chairman Liebman and Member Schaumber participated.)

Charge filed by Kristine McCallum, an individual; complaint alleged violation of Section 8(a)(1). Hearing at Chillicothe, Dec.15-16, 2008. Adm. Law Judge Arthur J. Amchan issued his decision Feb. 5, 2009.

***

NLRB - Staff summarized 3 decisions.

Community Medical Center (4-CA-34888, et al.; 354 NLRB No. 26) Toms River, NJ May 29, 2009.

The Board adopted the administrative law judge’s findings that the Respondent violated Section 8(a)(1) of the Act by: (1) directing union representatives to retrieve their vehicles from its parking garage and to leave the parking garage, and (2) promising employees improved terms and conditions of employment through a “shared governance” concept in order to discourage employees from selecting the Union as their collective-bargaining representative. The Board reversed, in the absence of pertinent precedent, the judge’s finding that the Respondent violated Section 8(a)(1) by hiring a former union organizer and assigning him to campaign against the Union without providing assurances to employees that information received from the former union organizer concerning who supported the Union would not be used against them. The Board reasoned that extant Board precedent does not establish that the Respondent had an affirmative duty to provide assurances to its employees regarding the hiring of a former union organizer.

Based on the two Section 8(a)(1) violations found, the Board further adopted the judge’s recommendation to set aside the election results and finds it unnecessary to pass on the judge’s findings regarding the Union’s Objections 1 through 5.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by New York State Nurses Assn.; complaint alleged violations of Section 8(a)(1). Hearing at Philadelphia, Aug. 13-15, Oct. 1-4, 22-25, Nov. 13-15, and Dec. 3, 2007. Adm. Law Judge Bruce D. Rosenstein issued his decision March 14, 2008.

***

International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 378 (32-CD-167, et al.; 354 NLRB No. 19) Oakland, CA, May 21, 2009.

Relying on factors such as existence of collective-bargaining agreements, employer preference, employer past practice, industry practice, workers’ relative skills, and economy and efficiency of operations, the Board determined that employees of American Bridge/Flour Enterprises, Inc., a Joint Venture, represented by Iron Workers, Local 378, are entitled to perform the line handling, signaling, and rigging, associated with offloading of ships and vessels arriving at Pier 7 in Oakland, CA, with structural steel supports and other construction materials for the Bay Bridge Project.

(Chairman Liebman and Member Schaumber participated.)

***

Regional Emergency Medical Services, Inc. (7-RC-23217; 354 NLRB No. 20) Southfield, MI May 21, 2009.

The Board reversed the hearing officer’s finding that contingent emergency technician (EMT) Tara Dibler belonged in the stipulated bargaining unit and that the challenge to her ballot should be overruled. The Employer maintained three distinct categories of EMT employees: full-time, part-time, and contingent. Contingent employees were expressly included in the Union’s petition but not mentioned in the parties’ unit stipulation, which expressly included only full-time and parttime EMTs. The Board, in reversing the hearing officer’s finding and sustaining the challenge to Dibler’s ballot, found that the language of the parties’ unit stipulation reflected their clear and unambiguous intent to exclude contingent employees. The Board noted that weight should be given to the fact that the Petitioner was aware of the distinct contingent EMT classification, included that classification in the petition’s unit description, but stipulated to a unit description that failed to mention contingent employees.

(Chairman Liebman and Member Schaumber participated.)

NLRB - Staff summarized 13 decisions.

PDK Investments, LLC and International Brotherhood of Electrical Workers, Local Union 20 (16-CA-26292; 354 NLRB No. 1) Balch Springs, TX, April 24, 2009.

The Board adopted the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide the Union with requested information. The Union sought the information in order to determine if the Respondent was unlawfully diverting work from the bargaining unit. The Board agreed that the Union adequately established the relevance of the request. In a footnote, Member Schaumber noted that while he does not necessarily agree with Board precedent holding that a requester may simply state a reason for its information request without giving any factual basis for the request, the Union's June 9, 2008 letter to the Respondent provided a sufficient factual basis for the request.

(Chairman Liebman and Member Schaumber participated.)

Charge filed by Electrical Workers Local 20; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Fort Worth on Dec. 3, 2008. Adm. Law Judge Michael A. Marcionese issued his decision Dec. 29, 2008.

***

Stevens Creek Chrysler Jeep Dodge, Inc., (20-CA-33367 et.al; 353 NLRB No. 123) San Jose, CA April 20, 2009.

The administrative law judge found that the Respondent committed multiple violations of Section 8(a)(1) of the Act during an organizing campaign by its auto mechanic employees, but either dismissed or failed to address other alleged Section 8(a)(1) and (3) violations. To remedy the coercive effects of the Section 8(a)(1) violations that he found, the judge ruled that the Board's traditional remedies were sufficient. Therefore, he rejected the General Counsel's request for a bargaining order pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), and dismissed several Section 8(a)(5) allegations that were dependent on the issuance of a bargaining order.

The Respondent did not except to the Section 8(a)(1) violations found by the judge, and the Board adopted his findings. These violations are set forth in fns. 3 and 8 of the decision. In Section 1 of its decision, the Board found that the Respondent committed additional violations of Section 8(a)(1), and Section 2 remands several other 8(a)(1) allegations for necessary credibility determinations, findings, and analysis. Section 2 of the decision also remands for further consideration by the judge his dismissal of a Section 8(a)(3) discharge allegation.

In light of the violations found in Section 1 of the decision, and after the judge determines whether the remanded allegations discussed in Section 2 warrant finding any additional violations, the Board directs the judge to reevaluate the appropriateness of a Gissel bargaining order. The Board also notes in fn. 18 that, depending on the outcome of his reconsideration of a Gissel bargaining order, the judge is also required to reconsider his dismissal of the 8(a)(5) allegations.

Charges were filed by Machinists District Lodge 190 and Local 1101; the complaint alleged violations of Section 8(a)(1), (3), and (5). Hearing at San Francisco. Adm. Law Judge Jay R. Pollack issued his decision July 1, 2008.

***

Airo Die Casting, Inc., A Subsidiary of Leggett & Platt, Inc. (6-CA-34937, et al.; 354 NLRB No. 8) Loyalhanna, PA, April 29, 2009.

In this case, the Board reversed the administrative law judge's finding that the Respondent violated Section 8(a)(5) and (1) of the Act by subcontracting bargaining unit work without first notifying and bargaining with the Union. The Board found that the judge had erred in finding that the subcontracting violated the parties' contractual prohibition against subcontracting work when employees were on layoff. The Board further found that the Respondent was privileged to unilaterally subcontract the work because the Union had clearly and unmistakably waived its statutory right to bargain over that issue.

In the absence of exceptions, the Board affirmed the judge's dismissal of the complaint allegation asserting that the Respondent violated Section 8(a)(3) and (1) by failing to immediately reinstate two employees following a unit-wide economic strike.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by Individuals and Factory Workers Laborers' Local 1357; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Pittsburgh, Aug. 7-10, 2006. Adm. Law Judge Paul Bogas issued his decision Dec. 20, 2006.

***

Akal Security, Inc. (19-CA-30891, et al.; 354 NLRB No. 11) Boise, ID and Coeur d'Alene, ID, April 30, 2009.

The Board reversed the administrative law judge's finding that the Respondent violated Section 8(a)(1) by discharging two court security officers, Lee Ryan and Stephen Winther, because of their protected concerted activity.

The Respondent contracts with the United States Marshals Service (USMS) to provide security services at federal courthouses. The Respondent employed the alleged discriminatees, Lee Ryan and Stephen Winther, as court security officers (CSOs) at the Coeur D'Alene courthouse. The Union represented the Coeur D'Alene CSOs. CSOs cannot work in the courthouse without credentials, which are issued by the USMS.

In the months leading up to the discharges, Ryan and Winther became concerned that a fellow CSO, Bill Lopez, was having performance problems that jeopardized the other CSOs' safety. Ryan and Winther complained to their supervisor, who advised them to talk to Lopez and to start documenting their concerns. Without supervisory permission, Ryan and Winther convened a 30-minute meeting with Lopez and the other CSOs during working time to confront Lopez about his perceived performance problems. Although Ryan's and Winther's supervisor had advised them to talk to Lopez, he had not given permission for them to convene a meeting on working time. Upon learning about the meeting, the Respondent notified the USMS and conducted an investigation, concluding that Ryan and Winther had violated the CSOs' performance standards by, inter alia, harassing and intimidating Lopez during the meeting and neglecting their duties while the meeting took place. The Respondent recommended that Ryan and Winther be suspended, but the USMS insisted that Ryan and Winther be removed from working under its contract with the Respondent. The Respondent then terminated Ryan and Winther.

The judge, applying NLRB v. Burnup & Sims, 379 U.S. 21 (1964), found that the purpose of the meeting with Lopez was protected. She found that Ryan and Winther did not lose that protection, rejecting the Respondent's arguments that the meeting constituted harassment and violated the Respondent's chain-of-command procedures. She found that the alleged harassment was the "dominant basis" for the discipline, and that it was therefore unnecessary to decide whether Ryan and Winther lost protection by abandoning their assigned posts or neglecting their duties. The judge concluded that the terminations were based on a mistaken belief that Ryan and Winther engaged in misconduct in the course of their protected activity, and that the terminations therefore violated Section 8(a)(1).

The Respondent excepted on several grounds: that the judge's application of Burnup & Sims altered the General Counsel's theory of the case and deprived the Respondent of due process, that Ryan's and Winther's activity was unprotected, that the Respondent merely implemented a removal decision made by the USMS and therefore was not responsible for the discharges, and that the judge's remedy was inappropriate.

The Board rejected the Respondent's due process argument. Based on statements made at the hearing and in the Respondent's post-hearing brief, the Board found that the Respondent clearly anticipated that Burnup & Sims could apply and litigated accordingly.

However, the Board found merit in the Respondent's contention that Ryan and Winther lost the protection of the Act. The Board agreed that the purpose of the meeting was protected, but disagreed with the judge's findings that harassment was the "dominant basis" for the discipline and that it was unnecessary to address the alleged neglect of duties. With respect to the alleged neglect of duties, the Board noted that the Respondent's investigative report found that Ryan and Winther had created a security risk by convening a meeting of the CSOs in the courthouse's control room during operational hours, from which point they could not fully and effectively monitor the courthouse. The Board found that the Respondent had a good-faith belief that Ryan and Winther had engaged in such misconduct, and that the General Counsel failed to prove that the misconduct did not occur. Accordingly, the Board dismissed the allegations that the discharges of Ryan and Winther violated Section 8(a)(1). Having dismissed the discharge allegations on that basis, the Board found it unnecessary to pass on the Respondent's other arguments.

In the absence of exceptions, the Board adopted the judge's finding that the Respondent violated Section 8(a)(1) by threatening employees with discharge if they spoke to the Board agent investigating the case and by directing employees not to speak to anyone regarding employees' discharges.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by United Government Security Officers of America, Local 118; complaint alleged violations of Section 8(a)(1). Hearing at Coeur d'Alene, May 13 and 14, 2008. Adm. Law Judge Lana H. Parke issued her decision Sept. 23, 2008.

***

Fortuna Enterprises L.P. a Delaware Limited Partnership d/b/a the Los Angeles Airport Hilton Hotel and Towers, (31-CA-27837, et al.; 354 NLRB No. 17) Los Angeles, CA, April 30, 2009.

The Board affirmed the administrative law judge's findings that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing written warnings to five employees for allegedly violating the hotel policy about being in an unauthorized area. The Board found it unnecessary to pass on whether the warnings separately violated Section 8(a)(1) because that finding would not materially affect the remedy. Member Schaumber agreed with the judge's finding that the Respondent disparately applied its new Use of Location Policy to the employees and used it as a pretext to discipline known union supporters who did not even violate the policy. He found it unnecessary, therefore, to consider the adequacy of the Respondent's investigation of the employees' conduct as evidence of discriminatory motivation.

The Board also adopted the judge's findings that the Respondent committed multiple violations of Section 8(a)(1) by interrogating and threatening employees, denying hotel access to employees wearing union insignia, issuing a written warning to employee Contreras for engaging in protected activity, and suspending 77 employees for engaging in a two-hour protected concerted work stoppage in the employee cafeteria in an effort to discuss a co-worker's suspension with senior management. Member Schaumber believed that the length of the work stoppage in the cafeteria and the potential for interference with the provision of services there made this a close case. However, he recognized that Board precedent supports the judge's finding that the unrepresented employees did not lose the protection of the Act, particularly when the Respondent's officials failed to make it clear that the employees would not be able to meet with senior management at that time and would have alternative opportunities to present their concerns.

In affirming the findings that the Respondent unlawfully interrogated and threatened employees, the Board found it unnecessary to pass on the judge's findings of other similar violations as they would be cumulative and would not materially affect the remedy. In agreeing with the judge that Contreras was unlawfully warned for displaying posters protesting customer harassment of employees, the Board found it unnecessary to rely on his finding that no one complained about the posters during the brief time they were displayed. In affirming the finding that employees were unlawfully suspended for the work stoppage, the Board did not rely on the judge's characterization of General Manager Coonley and Director of Food and Beverages Cook as having "chosen" not to listen to the employees' concern.

However, the Board found that the judge did not provide an adequate basis for review of his finding that Banquet Chef Burciaga violated Section 8(a)(1) by physically pushing three employees away from employees engaged in protected concerted activity and by pushing his finger into the chest of a fourth employee when he protested Burciaga's action. Burciaga denied touching the three employees and denied raising his hands toward the fourth employee. Another manager, who was present during this incident, did not testify, but the Respondent's investigatory notes of his version of the incident were admitted into evidence.

The judge discredited Burciaga's denials of physical contact with the employees because the notes of the other manager's version contradicted that testimony. But the judge did not make any express findings about (i) the credibility of the two employee witnesses based on their demeanor, (ii) differences in their accounts of the incident, and (iii) differences between their accounts and the notes of the other manager's version. In the absence of detailed factual findings and credibility resolutions, the Board was unable to resolve the Respondent's exceptions to the judge's finding that Burciaga acted unlawfully. The Board severed and remanded this issue to the judge for him to reconsider the record evidence, make credibility determinations, and provide an analysis explaining the basis for his findings.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by UNITE HERE Local 11; complaint alleged violations of Section 8(a)(1) and (3). Hearings at Los Angeles, April 14-18 and 21-25, May 12-15, and June 2-4, 2008. Adm. Law Judge John J. McCarrick issued his decision Oct. 21, 2008.

***

Hartford Head Start Agency, Inc. (7-CA-51106; 354 NLRB No. 15) Detroit, MI, April 30, 2009.

The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) and (5) of the Act by refusing to bargain with the Union with respect to the Respondent's proposal to reduce the work schedules of unit employees from 12 to 10 months and to spread their 10 months' wages over a 12-month period; and by unilaterally implementing this proposal. The Board deleted, in the absence of a majority to affirm, the judge's recommended special remedy requiring the Respondent to read the notice to the assembled employees and to pay travel expenses for off-duty employees to attend the reading.

(Chairman Liebman and Member Schaumber participated.)

Charge filed by Service Employees Local 517M; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit, July 28-31, 2008. Adm. Law Judge John H. West issued his decision Nov. 12, 2008.

***

Laborers Local 79 (29-CC-1564, 1566; 354 NLRB No. 14) Brooklyn, NY, April 30, 2009.

The Board adopted the administrative law judge's findings that the Union unlawfully threatened to picket and shut down a neutral employer's jobsite in order to pressure the neutral employer to cease doing business with another employer with whom the Union had a primary labor dispute. The Union argued that two Federal Circuits have rejected Board precedent, applied by the administrative law judge, holding that unqualified threats to picket at a common situs are unlawful and that a union has an affirmative obligation to clearly indicate that any picketing will conform to standards set forth in Moore Dry Dock, 92 NLRB 547 (1950). See Sheet Metal Workers Local 15 v. NLRB, 491 F.3d 429 (D.C. Cir. 2007); United Ass'n of Journeymen, Local 32 v. NLRB, 912 F.2d 1108, 1110 (9th Cir. 1990). The Board concluded that even without relying on the unqualified nature of the Union's threats to picket, it would have found the violation based on direct evidence of the Union's unlawful secondary objective.

The Board also adopted the judge's recommended dismissals of allegations that the Union engaged in unlawful conduct toward another neutral employer, including coercive physical conduct, threats of harm, and the attempted inducement of a work stoppage.

(Chairman Liebman and Member Schaumber participated.)

***

Monmouth Care Center (22-CA-27287, et al.; 354 NLRB No. 2) Long Branch, NJ, April 27, 2009.

In this case, the Board adopted the administrative law judge's findings that the Respondents violated Section 8(a)(5) and (1) of the Act by failing to meet with, and timely and completely provide information to, the Union. However, the Board reversed the judge's recommended Order that the Respondents bargain jointly with the Union at least once a week. In so doing, the Board noted that there was a lack of support for this remedy in extant Board precedent, and that the General Counsel neither requested this remedy before the judge nor alleged that the Respondents were a single employer or joint employers. In those circumstances, the Board found that its traditional remedial requirements were sufficient to address the violations found.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by SEIU 1199 New Jersey Health Care Union; complaint alleged violations of Section 8(a)(1) and (5). Hearing at Long Branch, Oct. 23-26 and Nov. 26, 2007, and Jan. 3 and 14, 2008. Adm. Law Judge Steven Fish issued his decision Nov. 10, 2008.

***

New York Presbyterian Hospital (2-CA-38512; 354 NLRB No. 5) New York, NY, April 29, 2009.

The issue in this case is whether the Respondent violated Section 8(a)(5) of the Act by failing and refusing to furnish the Union with requested information about nurse practitioners working at the Respondent's facility, including both bargaining unit nurse practitioners represented by the Union and nonunit nurse practitioners on the payroll of Columbia University. The Board adopted the judge's finding that the Respondent violated Section 8(a)(5) by failing and refusing to furnish the Union with the requested information, noting that the nonunit information was sufficiently relevant to the processing of a grievance. In addition, the Board specifically found that the Respondent unlawfully failed and refused to provide the Union with all documents between the Respondent and Columbia University concerning the employment of nurse practitioners.

(Chairman Liebman and Member Schaumber participated.)

***

Stagehands Referral Service, LLC (34-CA-10971, 34-CB-2774; 354 NLRB No. 7) Hartford, CT, April 29, 2009.

In this compliance case, the Respondents' exceptions referred to their postthearing brief but they did not submit a supporting brief or refile their posthearing brief as a supporting brief. Thus, the Board's review of the Respondents' arguments was limited to the exceptions document. The Board found no basis for overturning the administrative law judge's findings and adopted the judge.

(Chairman Liebman and Member Schaumber participated.)

Adm. Law Judge Steven Davis issued his supplemental decision Jan. 7, 2009.

***

Susan Oles d/b/a Susan Oles, DMD (28-CA-21951, 22095; 354 NLRB No. 13) Phoenix, AZ, April 30, 2009.

The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(1) of the Act by interrogating and threatening employees about their protected concerted activities, by creating the impression that their activities were under surveillance, by denying vacation pay to two employees because they engaged in protected concerted activities, and discharging an employee because she engaged in protected concerted activities. The Board also adopted the judge's dismissal of the allegation that it discharged an employee for her protected concerted activity.

Finally the Board found it unnecessary to pass on the judge's finding that the Respondent did not violate Section 8(a)(1) by relocating an employee's work station because any remedy provided for that finding would be cumulative of the Board's finding that the Respondent created the impression that employees were under surveillance.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by Susan Strickland, an individual; complaint alleged violations of Section 8(a)(1). Hearing at Phoenix, Aug. 26-28, 2008. Adm. Law Judge Gregory Z. Meyerson issued his decision Dec. 1, 2008.

***

Trade Fair Supermarkets (29-CA-28448; 354 NLRB No. 16) Queens, NY, April 30, 2009.

The administrative law judge found that the Respondent violated Section 8(a)(3) of the Act by discriminating against employees who were not union members. The Board, in reversing the judge, found that the charge did not support the complaint and dismissed the complaint for this reason without reaching the merits. The charge alleged that the Respondent violated Section 8(a)(3) by discriminating against union supporters; the complaint alleged that the Respondent violated Section 8(a)(3) by discriminating against non-members. The judge found that the complaint allegations alleged "the reverse" of the charge allegations and that the complaint allegations accordingly were not closely related to the charge allegations. However, he declined to dismiss the complaint on this basis, relying on his separate finding that the complaint met the 10(b) statute-of-limitations requirement. The Board, in reversing the judge, first noted that the Respondent did not except to the judge's finding that the complaint allegations were not closely related to the charge allegations. The Board also explained that a complaint must satisfy each of two 10(b) requirements - that is, that complaint allegations be closely related to charge allegations and that the alleged unfair labor practices occurred less than 6 months before the charge was filed. The Board affirmed the judge's finding that the complaint allegations were not closely related to the charge allegations, citing Redd-I, Inc., 290 NLRB 1115 (1988) and Reebie Storage & Moving Co., 313 NLRB 510 (1993), enf. Denied 44 F.3d 605 (7th Cir. 1995) and accordingly dismissed the complaint on this basis.

(Chairman Liebman and Member Schaumber participated.)

Charges filed by Local 338, Retail, Wholesale and Department Store Union/United Food and Commercial Workers; complaint alleged violation of Section 8(a)(3). Hearing at Brooklyn, from April 8, 2008 through April 30, 2008. Adm. Law Judge Steven Davis issued his decision Sept. 23, 2008.

***

Venetian Casino Resort (28-CA-16000; 354 NLRB No. 9) Las Vegas, NV April 29, 2009.

The Board, in response to a remand of the D.C. Circuit, decided to withdraw its earlier finding that the Respondent had violated Section 8(a)(1) of the Act by summoning the police and asking them to issue trespass citations to peaceful union demonstrators conducting a rally on the sidewalk in front of its facility. "Under the unusual circumstances of this case," the Board did "not believe that it would be a good use of [its] limited resources to determine the lawfulness of the Respondent's call to the police and requests for action. Determining their legality would require the Board to decide difficult legal issues not previously decided by the Board or the courts, and in circumstances where the employees' Section 7 rights have been effectively vindicated." While the Board withdrew its earlier finding that the Respondent violated Section 8(a)(1) by summoning the police, it otherwise reaffirmed its Order in the earlier decision.

In its earlier decision, the Board found that the Respondent violated Section 8(a)(1) by summoning the police and asking them to issue trespass citations to the demonstrators and exclude them from the sidewalk, by repeatedly informing the demonstrators via a recorded broadcast that they were subject to arrest for trespassing, and by telling a union representative, a participant in the demonstration, that he was being placed under citizen's arrest. 345 NLRB 1061 (2005). The D.C. Circuit enforced the portions of the Board's Order addressing the broadcasting of the trespass message and the attempt to effect a citizen's arrest, but held that the Board had failed to consider the Respondent's contention that its summoning the police constituted direct petitioning of the government, and as such was protected by the First Amendment. It is that issue that the court remanded to the Board. 484 F.3d 601 (2007).

***

Does the two-Member NLRB have the authority to issue orders? Courts split on the same day.

Laurel Baye Healthcare v. NLRB (DC Cir 05/01/2009)

New Process Steel v. NLRB (7th Cir 05/01/2009)

The NLRB has had only two Members (instead of the normal five Members) since the end of 2007. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. Everybody knew that only two of those three would be left at the end of the year.

Today two federal Circuit Courts came to opposite conclusions on the question of whether a two-Member Board has the authority to issue orders. The 7th Circuit held that the Board had authority, and the DC Circuit held that Board did not have the authority.

Earlier, Northeastern Land v. NLRB (1st Cir 03/13/2009) held that orders from a two-Member Board were lawful. So the Circuit split is 2-1 in favor of the Board.

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 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.

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.

Employment Law Editor: Ross Runkel, Professor of Law Emeritus.
Copyright 2009 by LawMemo, Inc., PO Box 1031, Salem, OR 97308. Phone 503-399-8028.
We are sending this email weekly at your request. To unsubscribe, reply to this email (or send to Ross@LawMemo.Com) with the word "REMOVE" in the subject line.
Permission granted to reproduce and retransmit NLRB Law Memo in full.

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.

***

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.

***