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Summarized Board Decisions
Allied Mechanical Services, Inc. (7-CA-41687, et al.; 357 NLRB No. 101) Kalamazoo, MI, October 25, 2011.
The Board adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) by filing and maintaining a lawsuit against four unions, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and its Plumbers and Pipe Fitters Local 357, and Sheet Metal Workers International Association, AFL-CIO, and its Local 7. The lawsuit concerned Local 7's refusal to grant to the Respondent job targeting funds. The lawsuit included claims alleging violations of the secondary boycott provisions of the Act and a breach of contract claim. The U.S. district court granted the unions’ motion to dismiss the lawsuit, and the U.S. court of appeals upheld the dismissal.
The Board found that the Respondent’s lawsuit lacked a reasonable basis, because the unions' conduct at issue was lawful primary activity and the Respondent's contract claim had been rejected by the National Joint Adjustment Board and there was no basis to show that the NJAB's decision did not fail to derive its essence from the collective-bargaining agreement. The Board also found that the Respondent’s lawsuit was filed with a retaliatory motive, based on the Respondent's union animus demonstrated by its history of unfair labor practices and its vice president's statement that he intended to "get even" with the union, the fact that the lawsuit sought damages for the unions' statutorily protected conduct, and the lawsuit's obvious lack of merit. Therefore, the Board found that the Respondent’s filing and maintaining the lawsuit violated Section 8(a)(1).
Member Hayes, dissenting, found it unnecessary to reach the issue of whether the lawsuit was reasonably based as he found a lack of compelling evidence that the Respondent’s lawsuit was filed with an unlawful retaliatory purpose. He further found that the majority, in finding unlawful retaliatory purpose, relied on rationale that the Supreme Court expressly rejected in BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002). Thus, he found that the Board lacked the authority to impose liability on the Respondent for invoking its First Amendment right to petition the courts for redress.
Charges filed by Plumbers and Pipe Fitters Local 357, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-VIO and Local 7, Sheet Metal Workers International Association, AFL-CIO, and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. Administrative Law Judge Jane Vandeventer issued her decision February 21, 2001. Chairman Pearce and Members Becker and Hayes participated.
Kane Steel Company (4-CA-37179, et al.; 357 NLRB No. 102) Millville, NJ and Pottsville, PA, October 25, 2011.
The Acting General Counsel sought a default judgment in this case on the ground that the Respondent failed to file an answer to the compliance specification. The Board found that the Respondent violated the Act by failing and refusing to bargain collectively with the unions about the effects of its decision to close its facility in Millville, NJ and Pottsville, PA. The Board also found that the Respondent ceased to pay the Millville and Pottsville units their accrued vacation pay and ceased to pay the Millville unit their accrued holiday pay and severance pay, as required by their collectively bargaining agreements.
Charges filed by United Auto Works of America, Amalgamated Local 2327 Teamsters Local 429. Chairman Pearce and Members Becker and Hayes participated.
Salon/Spa at Boro, Inc. (9-CA-45349, et al.; 357 NLRB No. 104) Springboro, OH, October 27, 2011.
The Acting General Counsel sought a default judgment in this case on the ground that the Respondent failed to file an answer to the compliance specification. The Board issued a decision and order that, among other things, ordered the Respondent to make whole disciminatees for any loss of earnings and other benefits they may have suffered as a result of their unlawful discharges in violation of the Act.
Charges filed by Individuals. Chairman Pearce and Member Becker and Hayes participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Suiza Dairy Corporation, Group Gloria Holding Corporation (24-RC-61098) Ponce, PR, October 27, 2011. No exceptions having been filed, the Board adopted the Regional Director’s findings and recommendations, and found that a certification of representative should be issued. Petitioner – Union de Tronquistas de Puerto Rico, Local 901, IBT.
Multiband, Inc. (7-RC-23336) Novi, MI, October 26, 2011. In light of exceptions and briefs, the Board adopted the Hearing Officer’s findings and recommendations, and found that a decision and certification of results of election should be issued. Charge filed by Local 243, International Brotherhood of Teamsters. Chairman Pearce and Members Becker and Hayes participated.
Manhattan College (2-RC-23543) New York, NY, October 24, 2011. Order granting motion to file amicus briefs / responsive briefs due on or before November 7, 2011. Petitioner – Manhattan College Adjunct Faculty Union.
United States Postal Services (7-CA-53579, et al.) Mt. Clemens, MI, October 27, 2011. No statement of exceptions having been filed, the Board adopted the findings and conclusions of the Administrative Law Judge as contained in the bench decision, and ordered that the Respondent take the action set forth in the recommended order. Charges filed by Branch 654, National Association of Letter Carriers, AFL-CIO.
Communications Workers of America and Communications Workers of America, Local 4309 (AT&T Teleholdings, Inc. d/b/a AT&T Midwest and the Ohio Bell Telephone Company) (8‑CB‑10487) Cleveland, OH, October 26, 2011. Order remanding proceeding to Chief Administrative Law Judge to designate another judge since Judge Wallace H. Nations retired. It was further ordered that the judge designated should prepare a supplemental decision setting forth findings of fact, conclusions of the law and a recommended order. Charge filed by an Individual.
Cool Heat, LLC d/b/a Forrest Sheet Metal, Inc., Investment Properties Associates, LLC, and Meelp, Inc., alter egos (4-CA-37553) Wilmington, DE, October 25, 2011. No statement of exceptions were filed, the Board adopted the findings and conclusions of the Administrative Law Judge, and ordered that the Respondents take the action set forth in the recommended order.
Appellate Court Decision
White Oak Manor, 11-CA-21786 (reported at 355 NLRB No. 211) (4th Cir., decided October 28, 2011).
In an unpublished opinion, the Court enforced the Board’s decision and order finding that White Oak Manor violated Section 8(a)(1) by terminating an employee for protected concerted activity because she took cell phone photographs of employees to document the Employer’s perceived unfair enforcement of its dress code. The Employer did not contest its unlawful interrogations and threats, which were not discussed by the Court.
The controversy arose when the discriminatee wore a hat to work to conceal an unattractive haircut. After the Employer told her hats violated the dress code and issued her a written warning for insubordination, she noticed that other employees—particularly men—wore hats, displayed tattoos, and otherwise breached the dress code with impunity. She raised her concerns to management to no avail and discussed them with (mainly female) co-workers who agreed with her. She then used her cell phone camera to document dress code violations; a co-worker assisted her. The Employer’s administrator confronted the discriminatee about the photographs. When she objected to the uneven application of the dress code, he asked if she was “going to let a hat come in between the food on [her] kids’ table.” The Employer then approached a male employee and asked if he knew that he had been photographed; he said he was not aware of it. The next day, the Employer terminated the discriminatee for photographing that particular male employee without his permission.
The Court agreed with the Board that the discriminatee engaged in protected concerted activity in protesting the perceived unfair enforcement of the dress code. It rejected the Employer’s argument that she acted only in her self-interest because she wanted to wear her hat, finding instead that “[e]quitable enforcement of a dress code definitionally benefits all.” The Court further agreed with the Board that the discriminatee’s photography was not egregious conduct that caused her to lose the protection of the Act. It relied on the Employer’s past “utter failure to enforce its picture-taking policy” and the fact that “the act for which [the discriminatee] was terminated never even occurred” because she did not actually photograph the named male employee. The Court also rejected the Employer’s claim that a Wright Line analysis was required because it found that there was no issue regarding the Employer’s motivation. Finally, the Court rejected the Employer’s challenge to the language of the remedial notice, finding that any such issues could be addressed in a compliance proceeding.
United States Postal Service, 24-CA-10805 (reported at 356 NLRB No. 75) (1st Cir., decided October 27, 2011)
In a published opinion, the Court granted the United States Postal Service’s petition for review and remanded the case to the Board for further proceedings consistent with its opinion.
The Board found that USPS unlawfully failed to provide the Union with employees’ hiring register data, including test scores, veterans’ preferences, and final rankings. The Union requested the information to assess complaints that veterans’ seniority was unfairly low because non-veterans who had applied later were hired ahead of the veterans. The relevance of the information was undisputed. The Board rejected USPS’s confidentiality defense, which relied on the Supreme Court’s decision in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). That decision held that the Act did not require the disclosure of employees’ psychological aptitude tests scores. In balancing the competing interests of the employees and union, the Supreme Court considered: the employees’ interest in confidentiality, the burden placed upon the union from disclosure conditioned upon employee consent, and whether the employer cited privacy as a pretext to avoid its duty to provide the information. The Board here distinguished Detroit Edison because, rather than the express promises of confidentiality made by that employer, USPS provided disclaimers stating that applicants’ information could be disclosed as required by law including release to unions.
The First Circuit concluded that the Board should have engaged in the balancing test used in Detroit Edison. The Court rejected the Board’s view of USPS’s disclaimers; it found that those statements, made under the Privacy Act, “did not wipe out all expectations of privacy.” It concluded that the fact that the information may be disclosed “does not create an expectation that the information will be disclosed automatically whenever it is relevant to a union.” The Court remanded because it found that the employees had a sufficient confidentiality interest to require the Board “to engage in the balancing of interests [under Detroit Edison] omitted from its original analysis.”
Mars Home for Youth, No. 6-CA-37135 (published at 356 NLRB No. 79) (3d Cir., decided October 26, 2011)
In an unpublished opinion, the Court upheld the Board’s order directing the Home to bargain with the Union, which had prevailed in a Board-conducted election. In so doing, the Court agreed with the Board’s inclusion in the bargaining unit of five assistant residential program managers (ARPMs) who the Board had found were statutory employees and not supervisors, rejecting the Home’s contention that they responsibly direct, assign, discipline, or effectively recommend the discipline of residential assistants (RAs).
After noting that the Board’s definition of the statutory phrase “responsibly to direct,” as set forth in Oakwood Healthcare, 348 NLRB 686 (2006), is reasonable and entitled to deference, the Court agreed that the Home failed to show that the ARPMs are held accountable for their direction of the RAs and, therefore, failed to prove that they responsibly direct the RAs under the standard set forth in Oakwood. The Court rejected the evidence advanced by the Home, finding that the record “contained numerous examples of where [the ARPMs] were not disciplined for the failure of [RAs] to follow their directions,” but rather that they “were disciplined for their own failings.” The Court also agreed with the Board that there was no evidence that the ARPMs face the prospect of adverse consequences if the RAs fail to perform as directed. Also relying on Oakwood, as well as Golden Crest Healthcare, 348 NLRB 727 (2006), the Court held that the ARPMs did not assign work to the RAs with independent judgment because the RAs’ schedules are “reviewed and approved” by upper management, the ARPMs have “no authority to require the assistant to follow certain schedules,” and the schedules are otherwise “constrained by significant Government and Mars Home regulations.” The Court also held that the ARPMs’ “ad hoc duties” in making reassignments “is not evidence of the authority to assign under the Act,” again citing Oakwood, and deferring to the Board’s interpretation of the statutory term “assign.” On the issues of the authority to discipline and effectively recommend discipline, the Court upheld the Board’s findings without discussion.
Decision of an Administrative Law Judge
United States Postal Service (25-CA-31726, et al.; JD(NY)-41-11) South Bend, IN. Charges filed by American Postal Workers Union, Local Union 210, a/w American Postal Workers Union. Administrative Law Judge Joel P. Biblowitz issued his decision October 25, 2011.
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