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Quarterly Update of NLRB and Related Court Decisions January 2007 By Richard I. Greenberg, Philip B. Rosen and Eric P. Simon

January 31, 2007 Meet the Authors

In this second of a quarterly series, Jackson Lewis LLP's Labor Practice Group summarizes National Labor Relations Board ("NLRB" or "the Board") and related court decisions primarily issued between approximately August 2006 and December 2006 applicable to private sector employers. Board decisions generally continue to reflect the pro-business views of the current Board members and administration. Richard I. Greenberg

Decisions in The Union Organizing/Protected Concerted Activity Context Principal Legality of Employer Inquiries, Actions and Rules in Response to Employees' Union New York Metro New York City 212-545-4080 Activity/Protected Concerted Activity Email

In Amcast Automotive of Indiana, Inc., 348 NLRB No. 47 (9/29/06), the Board reversed an Administrative Law Judge's ("ALJ") finding that the employer unlawfully interrogated and discharged an employee, but adopted the ALJ's finding that the employer violated the National Labor Relations Act (Section 8(a)(1)) by telling the employee that union activity played a role in his discharge three weeks after he was terminated. Section 8(a) (1) prohibits employers from interfering, restraining or coercing employees in their right to join, form or assist unions, and to engage in other concerted activity protected by Section 7 of the Act. The Board found that merely asking the employee whether there was any truth to "the rumors," referring to a possible union organizing drive, did not violate the Act unless under all of the circumstances the questioning reasonably tended to restrain, coerce, or Philip B. Rosen interfere with the employee's exercise of his statutory (Section 7) rights. Here, the Board found that there was no history of interference with such rights, no troubled relationship between the questioner Principal New York Metro and the employee, no evidence that the general question about "the rumors" sought to uncover the New York City 212-545-4001 union activities or sympathies of any employee, and the setting of the questioning was not an Email unfamiliar or threatening place.

The employer's unlawful comment after the employee's discharge, had little, if any, relationship to the earlier interrogation, the NLRB concluded. The Board also held that the employee's use of the employer's computer to search the Internet for information on a company rumored to be buying the employer's facility was not protected activity because there was insufficient evidence of a link between the employee's Internet search and the employees' working conditions. The employee had some history of union activity, but the NLRB found insufficient evidence that the employer believed that the employee presently was involved in union activity to find an unlawful discharge. Eric P. Simon In Winkle Bus Co., 347 NLRB No. 108 (8/31/06), the Board reversed an Administrative Law Judge's finding that the employer violated Section 8(a)(1) of the Act by threatening employees that Principal New York Metro unionization would be futile. While an employee was reading a newspaper article about another New York City 212-545-4014 employer who allegedly refused to negotiate a contract for its newly organized employees, a manager Email commented to him, "Do you want to wait for years for a raise like those people?" The Board held that by making this offhand comment the manager did not unlawfully threaten that union representation would be futile because, among other things, the manager did not state or imply that the employer would ensure its nonunion status through unlawful means and it was in fact true that the collective Practices bargaining process could result in a lengthy period of time during which employees would not receive Labor Relations any raises. However, the Board affirmed the Administrative Law Judge's finding that the employer violated the Act by asking employees to report union threats or coercion because it impermissibly called on employees to report on their coworkers' union activity.

Decisions Addressing The Legality of Discipline In Elko General Hospital, 347 NLRB 123 (8/31/06), the Board analyzed whether an employer that operated a county jail and hospital violated Section 8(a)(1) of the Act when it discharged a kitchen employee for her insubordinate conduct during a mandatory employee meeting held to encourage employees to vote against union representation. The Board began its analysis by stating that this is a mixed motives case, requiring a showing by the General Counsel that the employee's protected concerted activity, which included complaining about the employer's mandate that employees should be ambassadors for the hospital, was a motivating factor in the adverse employment action. Next, if such a showing is made, the employer must prove that it would have taken the same action even in the absence of such protected concerted activity.

The Board found that the employer satisfied its burden since the employee's conduct at the meeting when she uttered defiant and disloyal speech about the employer was unprotected and appropriate grounds for discharge. In regard to the employee's attempt to shut down the meeting and advocate for the demise of the employer, the Board held that "an employer need not tolerate the disloyal actions of an employee who wishes to oust her own employer from its position as employer." Accordingly, the Board reversed the Administrative Law Judge and found that the employer did not violate Section 8(a) (1) of the Act.

Similarly, in Caribe Ford, 348 NLRB No. 74 (11/13/06), the Board reversed an Administrative Law Judge's finding that the employer violated Section 8(a)(3) and (1) of the Act by discharging an employee two weeks after he announced to his co-workers that he had contacted a union and was setting up a meeting for interested employees. Section 8(a) (3) prohibits discrimination against employees on account of their union activity. While the Board adopted the ALJ's findings that the employer violated the Act by threatening employees with plant closure if they supported the union, creating the impression that it was surveilling employees' union activity, soliciting grievances and promising to remedy them, and disciplining and discharging a different employee because of his union activities, nonetheless, the Board found insufficient evidence that the employer had even general knowledge of the employee's union activity at the time of his discharge. The Board found that the employer did not have knowledge of union activity or animus towards such activity at the time of the discharge.

In SNE Enterprises, Inc., 347 NLRB No. 43 (6/28/06), the Board, affirming the Administrative Law Judge, held that the employer discharged an employee in violation of Sections 8(a)(3) and (1) of the Act for engaging in union solicitation during working time. The Board held that the employer's practice of tolerating other solicitations (such as for kitchen knives and Easter eggs) during working time despite the fact that such solicitation violated its non-solicitation policy rendered the discharge an inappropriate selective enforcement of the policy.

Solicitation of Authorization Cards By Supervisors

Reversing its Regional Director, the Board, in SNE Enterprises, Inc., 348 NLRB No. 69 (10/31/06), set aside an election because solicitation of authorization cards by lead persons who were found to be statutory supervisors was coercive and materially affected the outcome of the election. In reaching this conclusion, the Board evaluated whether the supervisors' pro-union conduct reasonably tended to coerce or interfere with the employees' exercise of free choice in the election by examining their supervisory authority and conduct in support of the organizing effort. The Board found that the lead persons were first-line supervisors who could impact the unit employees' work broadly by assigning and directed their daily work, and that they campaigned for the union for 4 of the 5 months of the campaign. Next, the Board considered whether the conduct interfered with freedom of choice to the extent that it materially affected the outcome of the election. The Board found that because there was a five-vote margin in favor of the union with three challenged ballots, if only one employee was coerced into voting for the union, the solicitations would have materially affected the election outcome. The Board noted that it was widely known that the lead persons were active union organizers and were soliciting employees up until a month before the election and neither they nor the employer disavowed their solicitation prior to the election. Interestingly, the Board applied its new standard as to objectionable pro-union conduct by supervisors set forth in Harborside Healthcare, Inc., 343 NLRB No. 100 (2004) -- whether such conduct reasonably tended to coerce or interfere with employee free choice and whether such conduct materially affected the outcome of the election -- even though the conduct by the supervisors in this case occurred prior to the Board's adoption of the new standard.

Conversely, in NLRB v. Family Fare Inc. d/b/a Glen's Market, (6th Cir., No. 05-2378, unpublished opinion 11/13/06), the United States Court of Appeals for the Sixth Circuit held that pro-union conduct by two department managers later found to be supervisors under the Act did not require a new election. In reaching its decision, the court applied the standard set forth in Harborside Healthcare, Inc. but found that the supervisors were low-level and did not have sufficiently broad and meaningful authority to render their conduct inherently coercive, especially in light of the employer's "full-scale antiunion campaign".

Decision Pertaining To Appropriate Bargaining Units Consistent with its general presumption that employees at a single facility constitute an appropriate bargaining unit, the Board, reversing the Regional Director, ruled in Kroger Limited Partnership, d/b/a Hilander Foods, 348 NLRB No. 82 (11/30/06) that a representation election should be held in the single-store unit requested by the union rather than in the larger multi-store unit sought by the employer. The Board found that the employer failed to rebut the single-facility presumption because the local store managers retained "strong local autonomy" despite evidence of centralized management of the employer's grocery division, there was minimal employee interchange between facilities, the stores were at least 8 miles apart, and there was limited functional integration between the facilities. The Board stated that the fact that the union had a history of representing meat department employees from various stores in a combined bargaining unit did not require an election for other employees only in a multi-store unit.

Decisions Regarding Duty To Bargain and Furnish Information and Related Issues In AgriProcessor Co., Inc., 347 NLRB 107 (8/31/06), a three-member panel of the Board, affirming the Administrative Law Judge, held that an employer could not justify its refusal to bargain by relying on the fact that most of the employees in the bargaining unit presented social security numbers that did not match those in the Social Security Administration's records. The panel advised that unless and until employees are declared illegal and are discharged and/or deported, they remain employees of the company who lawfully voted in an election in which the union prevailed, and, accordingly, the employer is obligated to bargain.

In The Budd Company, et al. 348 NLRB 85 (12/6/06), the Board, reversing the Administrative Law Judge's finding, held that an employer did not violate Sections 8(a)(5) and (1)of the Act by failing to bargain in good faith with the union prior to banning radios from the plant. The Board held that the union waived its right to bargain over the rule by agreeing to a provision in the parties' collective bargaining agreement that granted the employer the right to implement rules regarding employee safety and provided the union with a process to challenge such rules. The union did not challenge the rule through the contractual process and even conceded that the use of radios in the plant posed a potential safety hazard.

In Richmond Electrical Services, Inc., 348 NLRB No. 62 (10/24/06), the Board reversed the Administrative Law Judge's holding that the Company and Electrical Workers IBEW Local 666 had not reached a bargaining impasse regarding the critical and overriding issue of wages, which justified Respondent's belief that further negotiation as to any open issues would be futile. Accordingly, the employer did not violate Sections 8(a)(5) and (1) of the Act by unilaterally implementing its final contract proposals.

In Roosevelt Memorial Medical Center, 348 NLRB No. 64 (10/26/06), the Board affirmed portions of the Administrative Law Judge's decision that the employer's statements regarding strikes and the employer's unilateral implementation of bargaining proposals were illegal. The Board agreed that the Medical Center violated Section 8(a)(1) of the Act by coercively interrogating employees regarding their intention to strike by failing to make assurances against reprisals. The Board also agreed that the Medical Center violated Sections 8(a)(5) and (1) of the Act by unilaterally implementing its final contract proposals for grievance/arbitration procedures with non-binding arbitration, no-strikes, dues checkoff, and terms of the agreement. The no-strike provision involved a surrender of statutory rights and dues checkoff and grievance/arbitration are "contract-bound." Therefore those terms could not be imposed on the Union without its consent. Additionally, unilaterally implementing the 2-year term violated the Act because it was tantamount to a 2 year refusal to bargain.

In Team Clean, Inc. 348 NLRB No. 86 (12/7/06), the Board, affirming the Administrative Law Judge, held that an employer violated Sections 8(a)(5) and (1) of the Act by failing to provide the union with information about bargaining unit members' current addresses and telephone numbers, rates of pay, and weekly work schedules. In addition, consistent with prior decisions, the Board refused to defer the failure to provide information charge to the arbitration procedure contained in the parties' collective bargaining agreement. However, three Board members signaled that they were willing to reconsider this policy in an appropriate case.

Similarly, in National Grid USA Co., Inc., 348 NLRB No. 88 (12/11/06), the Board, affirming the Administrative Law Judge, held that an employer violated Section 8(a)(5) and (1) of the Act by failing and refusing to provide information requested by the Utility Workers union regarding the contracting out of excess collection of delinquent customer accounts. The Board found that the requested information concerning requests for proposals and winning bidders was relevant and necessary to the performance of the union's statutory functions. The union required the information to determine the amount, under whose direction and supervision the work would be performed, and the type of work that would be performed by the outside contractors. However, reversing the Administrative Law Judge, the Board ruled that the employer was not required to post the Board's standard "Notice to Employees" regarding the employer's violation of the Act on its Internet website as there was no record evidence that the employer customarily communicated with its employees electronically.

In United Cerebral Palsy of New York City, 347 NLRB No. 60 (7/27/06), the Board held that the employer violated Sections 8(a)(5) and (1) of the Act by distributing an employee handbook modifying terms and conditions of employment without notifying or bargaining with the union, and requiring employees to sign a statement agreeing to comply with the handbook and acknowledge that future changes could me made without advance notice. The Board noted that the handbook made a number of significant unilateral changes to mandatory subjects of bargaining, and that the language of the receipt essentially would have given the employer the right to bypass the union and deal directly with employees. The Board reversed the Administrative Law Judge's deferral to arbitration because the employer's conduct amounted to a rejection of the collective-bargaining process, making deferral inappropriate.

Decision Relating To Withdrawal of Recognition In Packwood Development Center, Inc., 347 NLRB No. 95 (8/22/06), the Board adopted an Administrative Law Judge's finding that an employer unlawfully withdrew recognition the day before the expiration of the parties' collective bargaining agreement because the union had not lost majority status at that time. Approximately three months earlier, the employer received a petition from the majority of its workforce stating that it no longer wished to be represented by the union. The union then gathered worker signatures canceling the petition the day before the collective bargaining agreement expired, the same day the employer withdrew recognition. The Board advised that the effective date of the withdrawal of recognition was the contract expiration date, not the date of the employee decertification petition, and that the employer could not rely upon the petition but rather had to prove actual loss of majority support as of the contract expiration date. At best, the employer had conflicting evidence of support for the union which would warrant filing of an RM petition under a good faith reasonable-uncertainty standard. The Board also found that an affirmative bargaining order was necessary to fully remedy the violations in this case. A cease and desist order would be inadequate because it would allow another such challenge to the union's majority status.

Similarly, in HQM of Bayside LLC and United Food and Commercial Workers Union, Local 400 348 NLRB 42 (9/29/06), the Board, affirming the Administrative Law Judge, held that the employer violated the Act by withdrawing recognition of the union because the evidence upon which the employer relied did not establish the union's loss of majority status. The Board held that in order to withdraw recognition the employer must establish that the union lost majority status at the time that the employer withdrew recognition. Here, as of the effective date of the withdrawal of recognition, the employees had nullified an earlier decertification petition, unequivocally demonstrating their support for the union. Citing Packwood, supra, the Board also issued an affirmative bargaining order.

Miscellaneous Decisions "Perfectly Clear" Successors

In Road & Rail Servs. Inc., 348 N.L.R.B. No. 77 (11/30/06), the Board adopted the Administrative Law Judge's holding that a "perfectly clear" successor employer did not violate the Act by recognizing and bargaining with the representative union shortly before hiring most of the predecessor's employees. The Board reasoned that the employer qualified as a "perfectly clear" successor given its expressed intention to staff its facilities with its predecessor's employees and to recognize and bargain with the employees' designated representative. Furthermore, the employer did not unilaterally set its own terms, but instead met with the union for the purpose of collective bargaining and executed a contract that implemented the initial employment terms. Additionally, when the employer commenced operations, 87% of its workforce had previously worked for the predecessor. Accordingly, as a "perfectly clear" successor, the Respondent did not violate the Act by recognizing and bargaining with the Union and executing a contract memorializing the initial terms and conditions of employment for the unit employees prior to hiring most of the employees.

Employee Cannot Unilaterally Convert Suspension to Termination

In Wackenhut Corp., 348 N.L.R.B. No. 30 (9/29/06), affirming the Administrative Law Judge, the Board held that a nuclear power plant guard who was suspended unlawfully for making protected comments to other employees could not resign and "elevat[e] the significance of [his] suspension by converting it into an unlawful discharge regardless of whether he believe he would subsequently be discharged." The Board held that a reasonably prudent person in employee's position would not believe that his employment had been terminated given that the employer specifically told the employee he had not yet been fired and the employee admitted knowing that the employer had often suspended guards without firing them.

Weingarten Rights

In United States Postal Service, 347 NLRB No. 89 (8/11/06), the Board affirmed the Administrative Law Judge's finding that the employer violated Section 8(a)(1) of the Act by advising both the employee and the employee's union representative that the union representative was prohibited from speaking at a meeting to investigate suspected misconduct. Board Generally Will Not Defer to Arbitral Proceeding in Regard to Representational Issue

In Advanced Architectural Metals, Inc., 347 NLRB No. 111 (8/31/06), the Board reversed a Regional Director's decision to defer to an arbitrator's finding that an employer's multiemployer agreement covered shop employees after a separate shop agreement expired. This decision reiterated the Board's policy not to defer to arbitration in representation proceedings unless the issue involves only contract interpretation. In this case, the Board found that statutory policy issues were raised concerning the difference between single-employer and multiemployer units. Specifically, there was a question as to whether the shop unit constituted a separate appropriate unit from employees outside the shop who were covered by the multiemployer agreement. The Board remanded the case for consideration of appropriate unit concepts such as community of interests and accretion.

Delaying Reinstatement Of Economic Strikers Without Justification

In Sutter Health Center d/b/a Sutter Roseville Medical Center, 348 NLRB No. 29 (9/29/06), the Board affirmed the Administrative Law Judge's decision that the employer violated Section 8(a)(1) of the Act by delaying reinstatement of certain unit employees for 4 days after they requested reinstatement following a 1 day economic strike. The Board rejected the employer's attempt to apply the five day period to reinstate applied in unfair labor practice strike situations and noted that the employer had not filled any vacancies with permanent replacements. Therefore, the employer did not need four extra days to reinstate and the Board ordered the employer to make those employees who it did not immediately reinstate whole for four days of lost pay.

Piercing the Corporate Veil

In Flat Dog Productions, Inc., 347 NLRB No. 104 (8/31/06), the Board, in a compliance-stage proceeding, agreed with the Administrative Law Judge that an incorporated individual and the corporation's film production company were joint employers and both were liable for the film production company's backpay obligation. However, it disagreed with the ALJ that it was appropriate to hold the incorporated individual personally liable for the backpay because there was no evidence that he abused the privilege of doing business in the corporate form. Specifically, there was no showing that the assets of the corporation or its production company had been diminished by self-dealing that may accompany a failure to maintain the distinction between the individual and the corporation.

Requiring Subsidiary to Enter into Agreements with Unions

In Heartland Indus. Partners, LLC, 348 N.L.R.B. No. 72 (11/7/06), the Board analyzed whether Heartland and the United Steelworkers violated Section 8(e) of the Act (the "hot cargo" provision) by entering into an agreement requiring Heartland's subsidiaries to sign a neutrality/card check agreement. Section 8(e) prohibits a union and an employer from entering into any agreement requiring the employer to cease doing business with any other person. The Board held that the agreement at issue does not require Heartland to refrain from investing in any company, and, therefore it does not violate Section 8(e) of the Act.

Rehiring Employees under False Identity During Strike

In United States v. Ralphs Grocery Co., C.D. Cal., No. CR 05-1210 (hearing 11/14/06), a California federal judge sentenced Ralphs Grocery to three years probation on criminal charges for rehiring locked-out workers under false names and Social Security numbers during a strike and lockout affecting Southern California supermarkets in 2003-2004. During the probationary period, the company is required to undergo court-supervised training and compliance programs for its managers in hiring, employment, and benefits practices. The company also is required to pay $20 million in fines to the Government and $50 million in restitution to employees and the union benefit fund affected by the company's conduct, as well as the fees for a court appointed special master who will administer the restitution fund.

Tolerance of Employee "Talk" Not a Bar To a Lawful Workplace Solicitation Ban

The General Counsel's office also regularly issues Advice Opinions which reflect the General Counsel's view as to certain issues raised by the NLRB's Regional offices. While these opinions are not binding on the Board, in Walmart Stores, Inc. (Gettysburg, Pa), 33 AMR 62 (NLRB 2005), the General Counsel reiterated that an employer does not violate a lawful non-solicitation rule by permitting general chatter that does not involve solicitation between employees during working time.

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While the General Counsel's current position is that employees who regularly use e-mail have the right to use e-mail for solicitation purposes, the Board has indicated that it hopes to resolve the vexing issue of whether employers may prohibit employee use of e-mail for union solicitation purposes. NLRB Seeks Views on Employers' Right to Ban Personal Use of Business E-Mail ©2007 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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