Today’s Labor Updates:
US Labor Board blesses picket line crotch grabbing
Summary of NLRB Decisions for Week of July 7 – 11, 2014
US Labor Board blesses picket line crotch grabbing
Michael W. Kelly
USA July 9 2014
The National Labor Relations Board (“NLRB”) ruled that Illinois Consolidated Telephone Co. violated the National Labor Relations Act when it suspended striking switchman Eric Walters for making an obscene gesture. Specifically, Walters grabbed his crotch in a sexual gesture aimed at an employee crossing the picket line. While the Labor Board did find credible evidence that Walters made the gesture, it concluded that the isolated event was not enough to constitute sexual harassment and as such was insufficient to result in a two-day suspension. Interestingly, the Administrative Law Judge acknowledged that the gesture was “totally uncalled for, and very unpleasant,” but he went on to conclude “it is difficult to see how it could have been perceived as an implied threat of violence or even future mistreatment (whatever that means) or have discouraged [the other employee] from continuing to report to work during the strike.”
The decision is interesting not just because it underscores the anything goes nature of permissible behavior on a picket line, but because it applies a different standard for what constitutes sanctionable sexually oriented behavior when it occurs during a labor dispute. Needless to say, the NLRB’s sister agency, the Equal Employment Opportunity Commission would no doubt take a much different of view of employers who decline to sanction individuals who grab their crotches or make any other sexually demeaning gestures. To the extent the NLRB applies this kind of standard to on-line speech regarding employment controversies, we may see a further reduction in an employer’s ability to protect employees from boorish behavior in social media.
Summary of NLRB Decisions for Week of July 7 – 11, 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 at Publicinfo@nlrb.gov or 202‑273‑1991.
Summarized Board Decisions
Ortbals Enterprises d/b/a Bemboom Heating and Cooling LLC and Bemboom Heating and Cooling Residential Services LLC, alter egos and a single employer (14-CA-112848; 360 NLRB No. 139) Jefferson City, MO, July 9, 2014.
In the absence of an answer to the Complaint, the Board granted the General Counsel’s Motion for Default Judgment, noting that the Respondent had withdrawn its answer. The Board found that the Respondents are alter egos and a single employer within the meaning of the Act and that they violated Section 8(a)(5) and (1) by failing to continue in effect, adhere to, and apply the terms and conditions of their collective-bargaining agreement with the Union and by transferring unit work from Respondent Bemboom to Respondent Bemboom Residential in order to evade the terms of the agreement. The Board ordered the Respondents to bargain with the Union as the limited exclusive collective-bargaining representative of the employees in the unit, and to honor the collective-bargaining agreement. The Board ordered the Respondents to make all contractually required contributions to health and welfare, pension, and other benefit funds and to reimburse unit employees for any expenses ensuing from their failure to make any required contributions. The Board also ordered the Respondents to recognize the Union as the limited exclusive collective-bargaining representative of the unit employees employed by Respondent Bemboom Residential and to adhere to and apply the terms and conditions of the collective-bargaining agreement to the unit employees, including, but not limited to, the contractual wage rates, health and welfare benefits, pension benefits, fringe benefit reporting and payment provisions, exclusive job hiring hall provisions, and other terms and conditions of employment. The Board ordered the Respondents to make the unit employees whole for any loss of earnings and other benefits suffered as a result of the Respondents’ failure to adhere to and apply the terms of the collective-bargaining agreement to the unit employees of Respondent Bemboom Residential and further ordered the Respondents to make the unit employees whole for any loss of earnings and other benefits suffered as a result of the transfer of unit work from Respondent Bemboom to Respondent Bemboom Residential. Finally, the Board ordered the Respondents to furnish the Union with the information it requested that is necessary and relevant to its role as the limited exclusive collective-bargaining representative of the unit employees. Charges filed by Local 36, Sheet Metal Workers International Association, AFL-CIO, affiliated with Sheet Metal Workers International Association. Chairman Pearce and Members Miscimarra and Schiffer participated.
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Auto Nation, Inc. and Village Motors, LLC, d/b/a Libertyville Toyota (13-CA-063676; 360 NLRB No. 141) Libertyville, IL, July 9, 2014.
The Board adopted the Administrative Law Judge’s findings that the Respondent committed numerous violations of Section 8(a)(1) through statements made at a meeting with employees, including by implicitly threatening employees that it would be futile to select the Union as their bargaining representative and by threatening employees with blacklisting and demotions if they supported the Union. A Board panel majority consisting of Members Hirozawa and Schiffer also adopted the judge’s finding that the Respondent made an implied promise of pay raises if employees rejected the Union. Member Miscimarra dissented from this finding, as it is his position that the Respondent’s statements that wage adjustments were possible and that it would be willing to consider adjustments were not promises that wages would increase. The Board affirmed the judge’s finding that the Respondent did not violate Section 8(a)(3) when it suspended an employee on the ground that the Respondent met its Wright Line burden of showing that it would have suspended the employee even without his union activity. A Board panel majority consisting of Members Hirozawa and Schiffer, however, reversed the judge’s finding that the Respondent did not violate Section 8(a)(3) by discharging the employee. The majority, again applying Wright Line, found that the employee reasonably concluded that he was discharged and that the Respondent’s claim that it fired the employee for job abandonment was pretextual. Member Miscimarra dissented from this finding, arguing that the judge’s credibility-based findings made it impossible to find that animus against the employee’s union activities was a motivating factor in his discharge. Charge filed by Automobile Mechanics Local No. 701, International Association of Machinists and Aerospace Workers, AFL-CIO. Administrative Law Judge Earl E. Shamwell, Jr. issued his decision on August 16, 2012. Members Miscimarra, Hirozawa, and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
G4S Government Solutions, Inc., d/b/a WSI Savannah River Site, a/k/a WSI-SRS (10-RC-126849) Barnwell, SC, July 7, 2014. The Board granted the Employer’s request for review of the Regional Director’s Decision and Direction of Election solely with respect to whether the Employer’s lieutenants are statutory supervisors based on their authority to assign, direct, and discipline. The Board denied the request for review in all other respects. Petitioner—International Guards Union of America. Chairman Pearce and Members Miscimarra and Schiffer participated.
Autism Services, Inc. (03-RC-127544) Williamsville and Buffalo, NY, July 9, 2014. The Board denied the Employer’s request for review of the Regional Director’s decision and direction of election. Member Miscimarra joined his colleagues in denying review, but he disagreed with the Regional Director’s finding that the teachers in the unit are not held accountable for the shortcomings of their classroom staff for the purposes of establishing responsible direction. Nevertheless, he agreed that the Employer failed to adduce evidence that the teachers directed staff using independent judgment. Petitioner—Autism Services, Inc., Education Association, NYSUT, AFT, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Coastal International Security (05-RC-122771) Silver Spring and Germantown, MD, July 10, 2014. No exceptions having been filed to the hearing officer’s overruling of an objection to a mail-ballot election held between April 2 and April 17, 2014, the Board adopted the hearing officer’s findings and recommendations, and certified Petitioner National Alliance of Law Enforcement Officers as the exclusive collective-bargaining representative of the employees in the appropriate unit.
C Cases
T-Mobile USA, Inc. (01-CA-120503) Oakland, ME, July 8, 2014. The Board denied in part and granted in part the Employer’s petition to revoke a subpoena duces tecum. The petition was granted to the extent that the materials requested in subpoena paragraph 10 shall be limited to the documents in the possession of the managers and supervisors at the Employer’s Oakland, Maine facility and the managers and supervisors who oversee that facility. In this regard, the Board found that the Region had failed to adequately articulate reasons for requesting documents from all of the Employer’s managers and supervisors at all of its facilities. The Board noted, however, that its Order is without prejudice to the Region’s right to issue a new subpoena seeking additional information if the information provided, as limited, is insufficient to resolve the matters at issue and the Region can establish that a search from a wider set of managers is warranted. The Board denied the petition to revoke in all other respects, finding that the subpoena seeks information relevant to the matters under investigation and describes with sufficient particularity the evidence sought and that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by Communications Workers of America. Chairman Pearce and Members Miscimarra and Schiffer participated.
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Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
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Administrative Law Judge Decisions
Asset Protection & Security Services, L.P. (28-CA-108982; JD(SF)-32-14) Florence, AZ. Administrative Law Judge Mary Miller Cracraft issued her decision on July 7, 2014. Charge filed by an individual.
River Falls Healthcare, LLC d/b/a Kinnic Health and Rehab (18-CA-106165 and 110713; JD-40-14) River Falls, WI. Administrative Law Judge Thomas M. Randazzo issued his decision on July 7, 2014. Charges filed by United Food and Commercial Workers, Local 1189.
Gunderson Rail Services, LLC d/b/a Greenbrier Rail Services (28-CA-093183, et al.; JD(SF)-33-14) Tucson, AZ. Errata issued July 8, 2014 to Administrative Law Judge Eleanor Laws’ decision of June 30, 2014. Charges filed by Sheet Metal Workers’ International Association, Local 359, AFL-CIO.
RPM Pizza, LLC (15-CA-113753; JD(ATL)-20-14) Gulfport, MS and Destrehan, LA. Administrative Law Judge Donna N. Dawson issued her decision on July 11, 2014. Charge filed by an individual.
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