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  *  NLRB Cases  *

Union Had Opportunity to Bargain Over Changed Policy
       An employer did not violate the Labor Management Relations Act when it discontinued its practice of allowing bargaining unit employees to leave work up to two hours early to attend monthly union meetings, the NLRB ruled Aug. 29, reversing the administrative law judge's finding that the employer unlawfully failed to bargain with the union over the change (Alcoa Inc., 352 NLRB No. 141, 184 LRRM 1337, 8/29/08).
       Chairman Peter C. Schaumber and Member Wilma B. Liebman agreed that the employer had presented the union with notice well in advance of the change to its leave policy, observing that the employer first approached the union with its concern over lost work hours during a meeting in March 2005 and did not implement the change until June of the same year. When asked to propose alternatives to the monthly meetings that took place one and a half hours before the employees' first shift. ended, the board noted, the union said that it did not want to bargain on that issue. The union also requested information about lost work hours that the employer provided on the same day and later stated that it did not intend to bargain over the change, the board stated. [CLEAR Source: BNA's Labor Relations Reporter 184 LRR 460 (9-15-08)]

Disabled Janitorial Workers Are Employees
       Disabled workers who perform janitorial services for a nonprofit corporation that provides rehabilitative services are employees within the meaning of the Labor Management Relations Act, the NLRB ruled June 21, finding that the employer failed to meet its burden of showing that its relationship with the workers was primarily rehabilitative (Goodwill Indus, of North Georgia Inc., 350 NLRB No. 5, 182 LRRM 1081, 6/21/07).
       Members Wilma B. Liebman, Peter C. Schaumber, and Peter N. Kirsanow agreed that the employer offered only limited counseling and rehabilitative services to disabled workers and did not employ an on-site counselor or trainer. Although the employer applies a more flexible model of discipline for its disabled workers, the board acknowledged, both the disabled and nondisabled workers have the same terms and conditions of employment and production standards. The board also observed that there was no evidence that the disabled workers regularly transitioned to private competitive employment after working with the employer. [CLEAR source: BNA's Labor Relations Reporter, 07-23-07, 182LRR76] Company ordered to reinstate ULP strikers
       An employer violated federal labor-law by failing to reinstate employees who engaged in an economic strike and later made an unconditional offer to return to work, the National Labor Relations Board ruled June 29 (Church Homes Inc. d/b/a Avery Heights, 350 N.L.R.B. No. 21, 6/29/07 [released 7/5/07]).
       One month into the strike, the employer began secretly hiring permanent replacement workers, and had replaced more than 100 of the approximately 180 striking employees when the union learned about the actions and made an unconditional offer to return to work. The company recalled only 78 workers.
       The board initially held in 2004 that the employer did not have an unlawful motive for hiring the replacements and therefore did not violate the National Labor Relations Act by failing to rehire all the strikers.
       However, the U.S. Court of Appeals for the Second Circuit in 2006 found the board's decision "was based on arbitrary and capricious reasoning" (11 COBB 53, 4/27/06).
       On remand, the board said it recognized "the court's finding that the logical implication of [the employer's] secrecy was an illicit motive." The evidence in the case "is insufficient to refute the inferred unlawful motive," the board decided, concluding that the company violated the NLRA by failing to reinstate all the permanently replaced economic strikers after they made an unconditional offer to return to work.
       However, in a footnote, the board said it disagreed with the appeals court's implicitly placing on the company the burden of proving that it had a lawful motive for secrecy in hiring the permanent replacements. The general counsel has the burden of proving "that an unfair labor practice occurred, including proving unlawful motive."
       NLRB ordered the company to offer the former strikers full reinstatement with no loss of seniority or other rights, "dismissing, if necessary, any permanent replacements hired during the strike," and to pay the strikers for lost wages and benefits. [CLEAR source: BNA's Collective Bargaining Bulletin, 07-19-07, 15COBB90]

Effects Bargaining Ordered
       Two companies violated federal labor law by refusing to bargain with a union over the effects of their decision to move approximately 250 employees into a larger unit represented by another union, NLRB ruled June 29 (AG Commc'n Sys. Corp., 350 N.L.R.B. No. 15, 6/29/07 [released 7/5/07]).
       Lucent Technologies gained ownership of AG Communication Systems Corp., a joint venture created by corporate predecessors of Lucent and Verizon, and began integrating the two companies. The union representing AG installers filed an unfair labor practice charge after Lucent and AG did not respond to its request to bargain over the effects of merging the installers into the bargaining unit represented by another union.
       The board found that the employers constituted a single employer following Lucent's purchase of AG and that integration of the two bargaining units was a management decision exempt from bargaining. However, the board found that management violated the NLRA by refusing to bargain over the effects of the decision. [CLEAR source: BNA's Collective Bargaining Bulletin, 07-19-07, 15COBB90]

Supervisors' Pro-Union Conduct Overturns Election
       An employer's statutory supervisors engaged in objectionable conduct when they solicited event staff employees for signatures on union authorization cards, a divided NLRB ruled June 28, setting aside the representation election that the union had won by five votes (Madison Square Garden Ct. LLC, 350 NLRB No. 8, 182 LRRM 1073, 6/28/07).
       Chairman Robert J. Battista and Member Peter C. Schaumber found that the supervisors held meaningful authority over the event staff employees, including the authority to discipline them. The board majority stated that the solicitation of authorization cards by the supervisors was "inherently coercive," noting that the coercive effect of that solicitation was not lessened by the fact that the solicitation ceased two months before the election. Although the employees knew that the employer disagreed with the supervisors' pro-union views, the board majority stated, the employer did not disavow the supervisors' conduct. Given the close results of the election, the supervisors' pro-union conduct materially affected the outcome, the board majority concluded, citing Harborside Healthcare Inc., 343 NLRB 906, 176 LRRM 1113 (2004).
       Dissenting, Member Wilma B. Liebman stated that "the majority again shows that it will apply its new rule on supervisory solicitation of union authorization cards as a per se rule." She observed that "mitigating circumstances tempered any possible impact of the solicitations" and rejected the board majority's conclusion that the solicitations had a lingering effect on the voters. [CLEAR source: BNA's Labor Relations Reporter, 07-23-07, 182LRR75-76]

D.C. Circuit Overturns NLRB; Union Activities Found Lawful
       The NLRB erred in finding that the Sheet Metal Workers illegally threatened to picket a department store that used a nonunion contractor and engaged in illegal picketing by conducting a mock funeral outside a hospital that used nonunion construction workers, the U.S. Court of Appeals for the District of Columbia Circuit ruled June 19 (Sheet Metal Workers' Local 15 v. NLRB, 182 LRRM 2009, D.C. Cir., No. 06-1028, 6/19/07).
       During a labor dispute with Energy Air, Sheet Metal Workers' Local 15 notified the Beall's department store that it would be publicizing its problems with Energy Air at two of the store's construction sites. This notice did not contain assurances that the Local 15's activities would conform to the NLRB's standards for picketing a neutral employer as set out by Moore Dry Dock, 92 NLRB 547, 27 LRRM 1108(1950).
       The appeals court joined the Ninth Circuit in holding that a union planning to picket a worksite with multiple employers does not have to state that the union will limit its picketing to a reserved gate set aside for the employer with whom the union has a labor dispute. "The Board offers us no reason to believe it can make an unfair labor practice out of a union's failure to assure an employer the union will abide by the law," the court said.
       The NLRB's finding that the mock funeral constituted illegal picketing conflicts with U.S. Supreme Court decisions on the First Amendment rights of abortion protesters, the court said. It found the union's activity was "a combination of street theater and handbilling," not picketing, and the means by which the union delivered its message was not threatening or coercive. [CLEAR source: BNA's Labor Relations Reporter , 07-12-07, 182 LRR3]

NLRB General Counsel Changes Rules on 'Salts'
       The National Labor Relations Board May 31 ruled that it will no longer apply to union organizer "salts" the usual rebuttable presumption that a worker who was not hired because of union activity would have continued to work indefinitely for the employer and is entitled to back pay for the period from the date of the discrimination until the employer makes a valid hiring offer (Oil Capitol Sheet Metal Inc., 349 N.L.R.B. No. 118, 5/31/07 [released 6/5/07]).
       The board found that the general counsel showed a prima facie case that a company illegally refused to hire a worker it knew to be a "salt"-a union member who goes to work for a nonunion employer with the goal of organizing employees- and that it failed to show that it would not have hired him even in the absence of his union activity.
       The traditional remedy for a refusal-to-hire violation includes backpay and instatement, the board said, adding that it ''has developed a rebuttable presumption that the backpay period should continue indefinitely from the date of the discrimination until a valid offer of reinstatement has been made."
       However, NLRB ruled the general counsel now will be required to prove "that the salt/discriminatee, if hired, would have worked for the employer for the backpay period claimed in the General Counsel's compliance specification."
       Many salts only intend to remain with the employer as long as the union finds it useful for them to do so, and the organizer and the union, not the employer, have the ability to prove how long the organizer, if hired, would have remained with the employer, the board said.
       While this case involves unlawful refusal to hire a salt, "the same analysis will also apply in cases where the salt has been unlawfully discharged or laid off," the board said. [CLEAR source: BNA's Collective Bargaining Bulletin, 06-07-07, 12COBB69] NLRB Panel Agrees Employer Had Duty to Bargain With Union
       An employer violated the Labor Management Relations Act when it failed to provide a union with requested information regarding the employer's relationship with two affiliated companies, the NLRB ruled May 9, rejecting the employer's contention that it was not bound to the union's collective-bargaining agreements and had no duty to bargain with the union (C.E. Maier Co., 349 NLRB No. 98. 181 LRRM 1473, 5/9/07).
       Chairman Robert J. Battista and Members Wilma B. Liebman and Dennis P. Walsh rejected the employer's argument that the employee who signed the union's "acceptance of agreements" on the employer's behalf did not have the authority to bind the employer to the union's agreements with area contractors associations. The board found that the employer had provided the employee with business cards identifying him as the employer's "Vice President Installations"' and had authorized him to hire workers and take any necessary steps to complete the work project. The board also found that the employee had exercised that hiring authority when he hired an apprentice for that jobsite through the union. Therefore, the board concluded, the union reasonably believed that the employee was authorized to sign on the employer's behalf. [CLEAR source: BNA's Labor Relations Reporter, 06-04-07, 181LRR508]

Employer Illegally Refused to Sign Bargained Contract, NLRB Decides
       An employer violated federal labor law by refusing to sign a bargaining agreement after the employees had ratified it and by withdrawing union recognition, the National Labor Relations Board ruled April 18 (Young Women's Christian Ass'n of W. Mass., 181 LRRM 1441, 349 N.L.R.B. No. 78, 4/18/07 [released 4/23/07]).
       After the parties bargained for an initial contract, the employer orally presented what it called its final offer. The employees ratified the offer, and the union accepted it the same day.
       The employer said it would prepare the final written document setting out all contract terms. However, before it completed that task, the employer received cards signed by 34 of the unit's 64 employees stating that they no longer wanted union representation. The employer informed the union that it would not sign the agreement or continue to recognize the union. No employee filed a decertification petition.
       The board affirmed an administrative law judge's findings that the union still had majority support at the time it accepted the employer's final offer based on the ratification vote and that the acceptance formed a binding contract, barring any challenge to the union's majority support during the contract term.
       In Auciello Iron Works v. NLRB, 517 U.S. 781, 152 LRRM 2385 (1996), the U.S. Supreme Court approved the board's policy that a union is entitled to a presumption of majority support during the term of a bargaining contract, up to three years. During that time, the employer may not withdraw recognition, the board said. Under board precedent, the contract bar applies once the parties have reached final agreement on the substantive terms, regardless of whether the agreement has been incorporated yet in a written, signed document.
       The board rejected as "clearly contrary" to board policy and precedent the employer's argument that because an oral bargaining agreement does not bar an employee's decertification petition, an oral agreement should not bar an employer from withdrawing recognition.
       "When parties have reached a final agreement on contract terms, each is appropriately held to the bargain made. It would be profoundly destabilizing to the collective-bargaining process to allow one party unilaterally to back out of its agreement, based on events that took place after the fact," the board said. [CLEAR source: BNA's Collective Bargaining Bulletin, 5-10-07, 10COBB57]

Non-employee Demonstrators Were Protected
       Demonstrators who assembled outside a casino were engaged in activity protected by the National Labor Relations Act even though they were not employed by the casino, the U.S. Court of Appeals for the District of Columbia Circuit ruled May 8 (Venetian Casino Resort LLC v. NLRB, D.C. Cir., No. 05-1396, 5/8/07).
       Before the casino opened, a union staged a demonstration with more than 1,000 participants on the facility's temporary walkway to protest the fact that the casino did not have a union contract.
       The casino posted signs announcing that the walkway was private property, and repeatedly played an announcement telling the demonstrators that they were subject to being arrested for trespassing.
       The union filed unfair labor practice charges, and the National Labor Relations Board agreed that the casino's conduct violated Section 8(a)(l) of the NLRA because it interfered with the right of employees to engage in protected activity for their mutual aid and protection.
       The appeals court agreed with NLRB that the casino unlawfully interfered with employee rights when it warned demonstrators they were trespassing and announced that the casino was placing a union representative under "citizen's arrest."
       Quoting the Supreme Court's decision in Eastex Inc. v. NLRB, 437 U.S. 556, 98 LRRM 2717 (1978), the court said the NLRA protects the efforts of employees to "improve terms and conditions of employment or otherwise improve their lot as employees."
       NLRB found that use of the walkway was one issue at the demonstration, but that the principal focus was a labor dispute, including union demands that the casino hire unemployed union members. That evidence, the court said, supported NLRB's conclusion that the demonstration warranted NLRA protection. [CLEAR source: BNA's Collective Bargaining Bulletin, 05-10-07, 10COBB57]

Failure to Negotiate New Rule Not Justified by Union Contract
       A firm violated federal labor law by failing to give a union an opportunity to bargain about a new requirement that employees be reachable by phone at all hours, the National Labor Relations Board ruled April 12 (California Offset Printers Inc., 349 N.L.R.B. No. 71, 4/12/07 [released 4/17/07]).
       The parties' contract gave the company the right to manage its business and to discipline employees for cause, including failure to comply with work or safety rules.
       The dispute arose after the company posted a notice informing employees that unless they were on approved leave periods, they were expected to be available for phone calls from the company and were required to have a personal telephone with a message capability, a pager, or a cellular phone. The notice warned that employees would be disciplined if they did not comply.
       The union filed an unfair labor practice charge alleging the firm's unilateral adoption of the' contact policy violated the company's obligations under the National Labor Relations Act to bargain in good faith.
       Citing Metro. Edison Co. v. NLRB, 460 U.S. 693, 112 LRRM 3265 (1983), the board said it is established that the act allows an employer to make unilateral changes in mandatory bargaining subjects only if the union has clearly and unmistakably waived its right to bargain about the changes.
       The contract here was not explicit enough to show a waiver of the union's right to bargain, the board said. The agreement never addressed employee availability as outlined in the company notice or the consequences of an employee being un-reachable or unresponsive to company phone calls. The agreement also was silent on the company's right to establish new work conditions.
       While the contract gave the company the right to "maintain" discipline, that right allowed the company "to function in accordance with existing contractually agreed-upon procedures, not to change them," the board said.
       Concluding that the company's policy announcement on employee availability and phone calls was a "significant new burden on the work force," the board said it found no evidence that the union waived its right to bargain about the subject, or that the parties even contemplated the subject in negotiations. [CLEAR source: BNA's Collective Bargaining Bulletin, 4-26-07, 9CBB53]

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