NLRB update These 13 cases were on the NLRB's weekly summary last week (apparently trying to get a bunch of cases decided before Chairman Hurtgen left for his new job at the FMCS):
In
Shamrock Foods, the Board held that the employer violated section 8(a)(1) by firing an employee because of alleged misconduct in the course of protected activity (solicitation and union-organizing), where in fact the employee didn't engage in the misconduct that he was accused of. In such a case involving alleged misconduct during protected activity, the Board reaffirms, the employee can win merely by showing that she didn't engage in the misconduct; it is
not necessary to go further and show anti-union animus on the part of the employer. The Board splits over whether, in addition to this unlawful firing and an unlawful act of interrogation, the employer was also guilty of creating the impression that it was surveilling protected activities.
BP Exploration Alaska holds that the employer wasn't required to give the union copies of documents prepared by the employer's lawyer, where (instead) the employer had offered to give the union the same factual information in a different format, rather than the attorney-client documents themselves. Interestingly, the Board doesn't go so far as to hold that the attorney-client privilege necessarily exempts a document from the duty to provide information under section 8(a)(5); the Board stops short of that, and applies a balancing-of-interests test, for now.
In
Washoe Medical Center, the Board denied the employer's motion for reconsideration, and continued to hold that the employer violated Section 8(a)(5) by unilaterally setting wages, without bargaining, even after a union was certified. Successor employers can do that sort of unilateral setting of initial wages for new hires, explains the Board, but not incumbent employers. Strikingly – but unsuccessfully – recess Member Cowen wanted to grant the motion for reconsideration simply because he disagreed with the prior result. (That's not what motions for reconsiderations are for, simply to try to get a different result when the composition of the tribunal changes, are they??). Thumbs up on this score to departing Member Hurtgen – even though he dissented from the original decision, he refuses to go along with this attempted misuse of a motion to reconsider.
Research Foundation of CUNY holds that a private non-profit corporation set up by CUNY (a public university) to administer its grant $, is subject to the Board's jurisdiction because, although closely associated with CUNY, it is
not a governmental entity. This case may therefore be an important precedent in various organizing campaigns at public universities. The Board also rejects the employer's attempts to overturn the Region's determination of what was an appropriate unit.
California Pac. Med. Ctr. finds the Board affirming the ALJ's decision that the company didn't violate the Act in having a layoff, and shifting unit work, without bargaining. The reason was that the CBA (says the ALJ and the Board) clearly and unmistakeably waived bargaining over such things. There's some crosstalk among the Members over whether the law should change towards what they call a "contract coverage" analysis, which would make it
easier to find a waiver of bargaining rights in some cases – but that's just talk for now.
STAR, Inc. overturns the employer's election victory, and requires a new election, because the employer (oh so sweetly!) gave everybody a big bonus shortly before the election. The employer argues that this was just like bonuses it had given before, but nobody on the Board is fooled. (As the Board says, "the 2000 pre-election bonus was larger than previous bonuses, was paid to proportionately more employees, and was paid faster than previous bonuses").
The majority in
Summit Logistics upholds the termination of an employee. The ALJ found that although the employee's protected activity (going to the state labor agency to talk about the grueling work schedule) was a substantial and motivating factor in his termination, the employer would have terminated him anyway for not working hard enough. Member Liebman, dissenting, points out that – given the ALJ's refusal to decide who was telling the truth about the conversation leading to the employee's termination – this factual finding won't wash.
In
E Center, the employer is worried that – by withdrawing its petition after it lost an election – the union is trying lau the groundwork for evading section 9(c)(3), which says that you can't have another election within 12 months of a prior valid election. The Board, as I read it, says "don't worry, employer – it's ok for the union to withdraw the petition, but this doesn’t let it get around 9(c)(3)."
MFP Fire Protection holds that while the employer's answer to a compliance specification was lame, its later response to the Board (in response to an order to Show Cause why summary judgment shouldn't be granted against it) was specific enough to warrant a hearing.
Pactiv Corp. affirms the ALJ's decision that the company was not unlawfully motivated by anti-union animus when it contacted the sheriff about an employee's allegedly threatening behavior. Member Liebman, concurring, says (inter alia) "Workplace violence is a serious problem. But as a justification for employer actions that may infringe employees’ rights under the Act, the need to protect employees from the threat of violence is not fundamentally different from other, recognized managerial interests. As in this case, it may be a legitimate rationale. In other cases, it may simply offer a plausible pretext for antiunion measures. Accordingly, the Board must examine each case on its own merits."
McKesson Drug affirms the ALJ's decision that the company acted unlawfully in suspending, and then firing, the employee because he filed charges with the NLRB. Also, making him sign a supposed "last chance agreement" was an independent violation of the Act too, because the agreement purported to require him to waive his right to file NLRB charges. A good decision, all the better in that the Board was not blinded by the words "drug policy".
In
Central Plumbing Specialties, the majority – over Member Liebman's dissent – reverses the ALJ's finding that the company fired the employee because of his union activities. Time will tell whether this is merely a fact-unique decision, or a harbinger of greater activism on the part of a new majority in 8(a)(3) cases.
Oil Capital Electric holds that the employer didn't violate section 8(a)(3) in refusing to hire a bunch of "salts". Applying the law as explained in FES, Inc. (see my earlier
post), the Board found that most didn't have the applicable qualifications, and there was no evidence of animus as to some, and no available opening as to one. The Board also found, over Member Liebman's dissent and reversing the ALJ, that some interrogation wasn't coercive.
