Today’s Labor Updates:
OM 14-77 OSHA Wage and Hour Referral Procedures
Workers get chance to decertify union four years after NLRB said no
Summary of NLRB Decisions for Week of August 4 – 8, 2014
USPS ADR Memo 08/12/2014
OM 14-77 OSHA Wage and Hour Referral Procedures
“The National Labor Relations Board issued Memorandum OM 14-77 on August 8, 2014, informing all regional directors and resident officers that they should notify parties of their right to file a complaint with OSHA if they believe that an employer may have violated a health or safety standard or an anti-retaliation provision of the Occupational Safety and Health Act. The memorandum notes that Board employees should notify parties of their rights to file an OSHA safety complaint or whistleblower complaint only when they believe that a possible violation of the Act exists.”
Workers get chance to decertify union four years after NLRB said no
By Sean Higgins | August 11, 2014 | 5:00 pm
On Aug. 20 and 21, the workers at a Houston plant owned by Lamons Gasket Co. will vote whether to retain United Steelworkers of America as their union. They tried to do this once before, only to have the federal National Labor Relations Board say they were not allowed.
In fact, the workers actually had a vote in 2010, but NLRB impounded the ballots before they could be counted. The board then in 2011 threw out the very NLRB precedent that allowed the workers’ vote, a 2007 ruling known as Dana Corp.
What happened at the NLRB had little to do with the particulars of the Lamons Gasket case and much more to do with the board’s new Democratic majority under President Obama wanting to reverse something that the previous majority under President George W. Bush had done. The case shows just how important who sits on the NLRB is to how the law is enforced.
That was rotten luck for the Lamons Gasket workers, though, who have had to wait three years for another chance to decertify their union.
The classic Image of union organizing is that of grassroots activism. But many campaigns are actually top-down efforts in which union leaders pressure companies through PR campaigns or other means. This allows union leaders to bypass an NLRB-monitored election since companies can sign contracts on behalf of their workers if they choose.
That’s what happened at Dana Corp., a national auto parts maker, in late 2003 when it recognized the United Auto Workers as the union for an Ohio facility. This was after a “Card Check” election, meaning that supposedly most workers signed cards backing UAW. Several employees objected to the deal, however, accusing the company and the union of colluding against them.
Challenges like that ordinarily are barred once the employer and the union reach agreement. But the NLRB ruled in 2007 that there needed to be better balance between promoting stability in union-management relations and protecting workers’ right to choose.
The board noted: “Card Checks are less reliable because they lack the secrecy and procedural safeguards of an election.”
The solution was to grant employees a 45-day window after a union-management deal to file their own challenge. If 30 percent of workers said they objected, the NLRB would allow a secret-ballot election on retaining the union.
It was not a welcome change as far as union leaders were concerned. They seethed for years and pushed to overturn the ruling.
That happened with Lamons Gasket. The case was similar to Dana: After the company agreed to a Card Check union election, the necessary number of workers petitioned the NLRB for a vote, which an NLRB regional director ordered in 2010.
United Steelworkers appealed this to the board, which by 2011 had a Democrat-appointed majority, including Craig Becker, formerly a top lawyer with Service Employees International Union and AFL-CIO. The board then threw out the Dana precedent altogether.
The new NLRB majority said Dana lacked “any empirical evidence supporting the [previous] majority’s suspicion that the showing of majority support that must underlie any voluntary recognition is not freely given or is otherwise invalid.” Never mind that actually counting the votes in Lamons Gasket would have provided some evidence either way.
Then-NLRB board member Brian Hayes dissented, noting that there wasn’t any evidence that Dana had presented any barrier to voluntary recognition, either: “Our own statistics confirm Dana’s benefits and reveal no negatives in the effectuation of statutory goals. Yet the majority concludes that Dana must be overruled.”
Should the Lamons Gasket workers decertify their union it will raise serious questions about whether the union ever had the support of a majority of workers in the first place — exactly the sort of situation the Bush-era rule was meant to address. If the vote fails, it will bolster the current majority’s move to scrap the rule completely.
Summary of NLRB Decisions for Week of August 4 – 8, 2014
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs atPublicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decisions
International Union of Teamsters, Local 179 (Roberts Pipeline, Inc.) (25-CD-092655; 361 NLRB No. 13) Kane, Kendall, and Will Counties, IL, August 5, 2014.
In this jurisdictional dispute under Section 10(k) of the Act, the Board awarded the work in dispute to employees represented by Laborers International Union of North America and by International Union of Operating Engineers, based on collective-bargaining agreements, employer preference, current assignment, past practice, industry and area practice, relative skills, and economy and efficiency of operations. Charge filed by Roberts Pipeline, Inc. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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The Republican Company (01-UC-000838; 361 NLRB No. 15) Springfield, MA, August 7, 2014.
The Board unanimously reversed the Regional Director and found that an editorial page editor should be excluded from the unit as a managerial employee. The Board also unanimously affirmed the Regional Director’s findings that an Assistant Classified Manager was not a statutory supervisor. A Board panel majority consisting of Chairman Pearce and Member Hirozawa further affirmed the Regional Director’s finding that an electrical manager was not a statutory supervisor. The Board found that Editorial Page Editor Smith was a managerial employee based on his role in formulating, determining, and effectuating the newspaper’s editorial policies. The Board found that the Employer had failed to meet its burden to establish that Assistant Classified Manager Youmans hired or effectively recommended the hiring of employees. The Board concluded that the classified manager’s direct participation in the hiring process supported a conclusion that Youmans did not effectively recommend hiring. Similarly, a panel majority of Chairman Pearce and Member Hirozawa found that the Employer failed to meet its burden of demonstrating that Electrical Manager Robitaille effectively recommended hiring. Member Miscimarra dissented with respect to the status of the electrical manager, concluding that Robitaille effectively recommended hiring. Petitioner—Springfield Newspaper Employees Association, Inc. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Don Chavas, LLC d/b/a Tortillas Don Chavas (28-CA-063550 and 067394; 361 NLRB No. 10) Tucson, AZ, August 8, 2014.
A unanimous Board adopted the judge’s findings that the Respondent violated Section 8(a)(1) by (1) transferring an employee from the morning shift to the night shift because she engaged in protected activity by protesting the Respondent’s supervisor’s sexual harassment of female employees; (2) constructively discharging the employee through this shift transfer because the night shift conflicted with her childcare responsibilities; and (3) threatening and discharging two other employees for engaging in a work stoppage to protest poor working conditions. A unanimous Board also reversed the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(1) by transferring one of the employees, after she returned from her first unlawful discharge, to the night shift because of her prior protected activity.
In light of the Supreme Court’s decision in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the Board also considered de novo the rationale for the tax compensation and Social Security reporting remedies that the Board announced in Latino Express, Inc., 359 NLRB No. 44 (2012). The Board found that, in this case and in all pending and future cases in which the Board finds a violation of the Act that results in make-whole relief, the Board will continue routinely to require the respondent to (1) submit the appropriate documentation to the Social Security Administration (SSA) so that when backpay is paid, it will be allocated to the appropriate calendar quarters, and/or (2) reimburse the discriminatee(s) for any additional Federal and State income taxes the discriminatee(s) may owe as a consequence of receiving a lump-sum backpay award in a calendar year other than the year in which the income would have been earned had the Act not been violated. The decision also noted the full Board’s ratificationnunc pro tunc and express authorization of the selection of Judge Christine E. Dibble to serve as an administrative law judge with the Agency. Finally, the decision includes footnotes rejecting the Respondent’s credibility and bias allegations, clarifying the Respondent’s make-whole remedial obligations to one of the employees, and noting that the Order and notice have been modified in accord with J . Picini Flooring, 356 NLRB No. 9 (2010)(electronic posting), and Durham School Services, 360 NLRB No. 85 (2014)(notice to include case hyperlink, ES contact information, and QR code).
Charges filed by individuals. Administrative Law Judge Christine E. Dibble issued her decision on February 15, 2013. Chairman Pearce and Members Johnson and Schiffer participated.
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The Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman (02-RC-076954; 361 NLRB No. 11)
Correction issued to the July 28, 2014 Decision on Review and Order Remanding.
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Hitachi Capital America Corp. (34-CA-013011; 361 NLRB No. 19) Norwalk, CT, August 8, 2014.
A Board Panel majority consisting of Members Hirozawa and Schiffer affirmed the Administrative Law Judge’s finding under Wright Line that the Respondent violated Section 8(a)(1) when it discharged an employee. The majority held that the employee engaged in protected concerted activity when she sent several emails to the Respondent’s supervisors questioning the Respondent’s new Inclement Weather Day policy, that the Respondent knew that the employee was raising a group complaint, and that the Respondent demonstrated animus towards the employee’s activity by giving her a warning regarding the emails. Member Miscimarra dissented, finding that the General Counsel had not shown that the Respondent knew that the employee’s conduct was concerted.
The same Board Panel majority also affirmed the judge’s finding that the Respondent’s rule prohibiting “inappropriate behavior while on company property” was unlawful. The majority found it unnecessary to determine whether the rule was facially overbroad because the Respondent applied the rule to restrict the employee’s exercise of her Section 7 rights. The majority also found it unnecessary to pass on the judge’s finding that the employee was discharged pursuant to the rule. Member Miscimarra dissented, finding that the evidence failed to establish that the Respondent applied the rule when it disciplined the employee.
Charge filed an individual. Administrative Law Judge Mindy E. Landow issued her decision on July 11, 2012. Members Miscimarra, Hirozawa, and Schiffer participated.
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Law-Den Nursing Home, Inc. (07-CA-108905; 361 NLRB No. 14) Detroit, MI, August 8, 2014.
The Board affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by refusing to provide the Union with relevant requested information. The Union sought the information to help it decide whether to re-negotiate wages. Charge filed by SEIU Healthcare Michigan. Administrative Law Judge Joel P. Biblowitz issued his decision on December 19, 2013. Members Miscimarra, Johnson and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Durham School Services, LP (19-RD-127677) Newport, WA, August 4, 2014. No exceptions having been filed to the hearing officer’s overruling of objections and a challenge to a ballot cast ballot in the election held May 30, 2014, the Board adopted the hearing officer’s findings and recommendations, and directed the Regional Director to open and count the challenged ballot, serve on the parties a second revised tally of ballots, and issue the appropriate certification. Petitioner – an individual.
Cranwell Management Corp. (01-RC-130362) Lenox, MA, August 6, 2014. A Board panel majority consisting of Members Hirozawa and Schiffer denied the Employer’s Request for Review of the Regional Director’s direction of an election in a unit consisting of the Employer’s massage therapists. Dissenting, Member Miscimarra would grant review based on his view that there are substantial issues regarding the appropriateness of the petitioned-for unit under the Board’s traditional standards. Petitioner—United Professional & Service Employees Union, Local 1222. Members Miscimarra, Hirozawa, and Schiffer participated.
Hyde Leadership Charter School-Brooklyn (29-RM-126444) Brooklyn, NY, August 6, 2014. The Board granted the Union’s Request for Review of the Regional Director’s Decision and Direction of Election as raising substantial issues regarding whether the Regional Director erred in asserting jurisdiction over the employees of a charter school and in directing an election pursuant to the Employer’s representation petition. Union—United Federation of Teachers, Local 2, AFT, AFL-CIO. Members Miscimarra, Hirozawa, and Johnson participated.
Atlas Roll-Off Corp. (29-RC-114120) Jamaica, NY, August 6, 2014. The Board adopted the hearing officer’s recommendation to set aside the election based on the conduct of an agent of the Employer who told employees to take a picture of their ballot and show it to the Employer or they would be fired. Member Johnson agreed that the Employer’s conduct was objectionable, but stated that he found it unnecessary to rely on one witness’s ambiguous testimony regarding the agent’s statement, agreeing that the hearing officer effectively made a credibility determination regarding the testimony of the other witnesses regarding that statement. The Board also adopted pro forma, in the absence of exceptions, the hearing officer’s recommendation to overrule (a) the Union’s Objection 1 and (b) the portion of Objection 2 alleging that the Employer’s owner instructed employees to photograph their ballots and threatened them with loss of employment if they voted for the Union and the Union won the election. The Board directed that a second election be conducted. Petitioner – Local 175, United Plant & Production Workers, International Union of Journeymen and Allied Trades. Chairman Pearce and Members Hirozawa and Johnson participated.
Hyde Leadership Charter School – Brooklyn (29-RM-126444) Brooklyn, NY, August 6, 2014. The Board granted the motions to fileamicus briefs filed by The Council of School Supervisors and Administrators, Local 1, American Federation of School Administrators and the American Federation of Teachers/National Education Association. Petitioner – United Federation of Teachers, Local 2, AFT, AFL-CIO.
C Cases
All American School Bus Corp. (29-CA-100827, et al.) New York, NY, August 4, 2014. The Board granted the motion to sever cases 29-CA-100887 and 29-CA-101084 from the other unfair labor practice cases in this matter. Charges filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO.
Gotham Bus Co. Inc. (29-CA-100887 and 101084) New York, NY, August 4, 2014. In light of the Respondent’s withdrawal of its Exceptions, the Board adopted the Administrative Law Judge’s decision finding that the Respondent had engaged in certain unfair labor practices, and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charges filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO. Administrative Law Judge Raymond P. Green issued his decision on September 20, 2013.
Island Architectural Woodwork, Inc.; Verde (29-CA-124027) Ronkonkoma, NY, August 6, 2014. The Board denied the Employers’ petitions to revoke two subpoenas duces tecum. The Board then found that the subpoenas seek information relevant to the matters under investigation and describe with sufficient particularity the evidence sought, and that the Employers failed to establish any other legal basis for revoking the subpoenas. Chairman Pearce and Members Miscimarra and Hirozawa participated. Charge filed by Northeast Regional Council of Carpenters, Local #252.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Armour-Eckrich Meats, LLC (14-CA-117650; JD(NY)-33-14) Omaha, NE. Administrative Law Judge Joel P. Biblowitz issued his decision on August 4, 2014. Charge filed by an individual.
Caterpillar Logistics, Inc. (09-CA-110687, et al.; JD-45-14) Clayton, OH. Administrative Law Judge Arthur J. Amchan issued his decision on August 4, 2014. Charges filed by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and an individual.
Tiffany and Company and Tiffany & Co. (01-CA-111287; JD(NY)-31-14) Farmington, CT. Administrative Law Judge Steven Davis issued his decision on August 5, 2014. Charge filed by an individual.
UnitedHealth Group, Inc. and UnitedHealth Care Services Inc. (02-CA-118724; JD(NY)-32-14) New York, NY. Administrative Law Judge Raymond P. Green issued his decision on August 5, 2014. Charge filed by individuals.
Hostmark Hospitality Group d/b/a Embassy Suites Irvine Hotel (21-CA-090936, et al.; JD(SF)-37-14) Irvine, CA. Administrative Law Judge Jay R. Pollack issued his decision on August 7, 2014. Charges filed by UNITE HERE, Local 1.
Champaign Builders Supply Company (25-CA-114095; JD-46-14) Champaign, IL. Administrative Law Judge Melissa M. Olivero issued her decision on August 7, 2014. Charge filed by Teamsters Local Union No. 26.
Kellogg Company (15-CA-115259; JD(ATL)-25-14) Memphis, TN. Administrative Law Judge Ira Sandron issued his decision on August 7, 2014. Charges filed by Bakery, Confectionary, Tobacco, Workers and Grain Millers International Union and its Local Union 252-G.