Today’s Labor Updates:
Allied Tube and Conduit workers go on strike
Summary of NLRB Decisions for Week of April 21 – 25, 2014
NLRB Zeroes In on Rules Forbidding Personal Use of Company Email
Allied Tube and Conduit workers go on strike
May 01, 2014 12:30 pm • Joseph S. Pete joseph.pete@nwi.com
HARVEY | About 460 workers went on strike Monday at the Allied Tube and Conduit plant after company management proposed changes, including freezing pension benefits and increasing out-of-pocket expenses for health insurance.
Bridgeview-based United Steelworkers of America Local 9777-18 rejected a proposed contract with 150 changes, including taking away employees’ ability to choose which jobs and shifts they will work, said local vice president Steve Kramer. At least 50 of the striking workers hail from Northwest Indiana.
Allied Tube and Conduit and the union have been bargaining over the past year, after their contract expired in April 2013, said Lisa Winter, communications director for parent company Atkore International. The 55-year-old company operates 35 manufacturing and distribution facilities, including the 4 million-square-foot Harvey mill that makes mechanical and electrical tubing for new commercial buildings.
The company still is operating the factory at 16100 S. Lathrop Ave. and meeting all its obligations to its customers, Winter said.
United Steelworkers and Allied Tube and Conduit had agreed to continue without a contract last year, and the work stoppage took place after the union bargaining committee rejected a tentative agreement.
“We don’t discuss negotiations and feel it should be between us and labor,” she said. “But negotiations always take place between two parties, and require give and take and compromises by both sides.”
Currently, no talks are taking place. Local 9777-18 members are enduring the wind, cold and rain outside the mill in the hope of returning to the bargaining table soon, Kramer said.
The union objects to proposed concessions in vacation pay, overtime rules, job combinations, work rules, attendance policy, grievance procedures, insurance, pensions and several other areas, according to its Facebook page.
“This is a long-established pipe and tube mill,” Kramer said. “Workers have been here for 20, 30, 40 years and built it up from the ground. We just want a fair and respectful contract, not a concessionary one.”
Workers are upset with several proposed concessions, such as that the company would stop contributing to the pensions of existing employees and offer new employees no pension benefits, and that workers would have to pay $100 extra a month to keep a spouse on the company health care plan if that spouse’s employer also offered insurance. They are concerned with safety, since the proposed contract would strip them of the ability to choose their job and would require them to take on additional roles that could stretch them thin, Kramer said.
“This is hard work at a pipe and steel mill,” he said. “There are caustic chemicals, and hydrochloric acid to galvanize the steel. It’s over 1,000 degrees. It’s loud. It’s stressful. In our history, there have been two deaths, multiple amputations, injuries, fingers cut off, burns, broken bones. It’s very dangerous. We’ve got to work in a systematic way however we move forward.”
Summary of NLRB Decisions for Week of April 21 – 25, 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
Prime Protective, Inc. (29-CA-116082; 360 NLRB No. 81) Brooklyn, NY, April 22, 2014.
The Board granted the General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the complaint, and ordered the Respondent to remedy its unfair labor practices by remitting to the Union the dues deducted from employees’ paychecks pursuant to the parties’ collective-bargaining agreement, plus interest; making all monthly contributions that to the Union’s Special and Superior Officers Benevolent Association on behalf of unit employees pursuant to that agreement, plus interest, and making affected employees whole for accrued vacation pay pursuant to that agreement, plus interest. Charge filed by Special and Superior Officers Benevolent Association. Members Miscimarra, Hirozawa, and Johnson participated.
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United States Postal Service (28-CA-068385, et al.; 360 NLRB No. 79) Albuquerque, NM, April 22, 2014.
The Board unanimously reversed the Administrative Law Judge’s finding that the Respondent violated Sec. 8(a)(1) by continuing to question an employee after he asserted his Weingarten right to union representation at an investigatory interview. There was no evidence that the second supervisor to speak to the employee knew of the employee’s previous request for union representation and the second supervisor discontinued the conversation when the employee reiterated his request for representation. Member Miscimarra would also find that the second supervisor’s sole question to the employee was not a further investigatory question that could have infringed on the employee’s Weingarten rights because it was merely introductory and did not elicit any information beyond that which the employee had freely discussed with the first supervisor. The Board also unanimously adopted the judge’s finding that the Respondent violated Sec. 8(a)(1) by refusing to inform employees of the nature of an investigatory interview and the judge’s dismissal of an allegation that the Respondent violated Sec. 8(a)(3) and (4) by revoking an employee’s previously scheduled leave. Charge filed by National Association of Letter Carriers, Sunshine Branch 504. Administrative Law Judge John J. McCarrick issued his decision on September 11, 2013. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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International Union, Security, Police and Fire Professionals of American and its Local Union 287 (Akal/Coastal International Security) (05-CB-100697; 360 NLRB No. 78) Washington, DC, April 23, 2014.
The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of a settlement agreement. The Board found that the Respondent had failed to comply with the terms of the settlement agreement and accordingly deemed all of the allegations in the complaint to be true and ordered appropriate remedies. The Board ordered the Respondent to cease and desist from failing and refusing to accept or process the grievance of any employee to whom it owes a duty of fair representation for unfair, arbitrary, or invidious reasons, to accept in good faith and, if warranted, process, in a non-perfunctory manner, the grievances filed by the Charging Party, and to post appropriate notices. Charge filed by an individual. Members Miscimarra, Hirozawa and Johnson participated.
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EZ Park, Inc. (04-CA-092571; 360 NLRB No. 84) Philadelphia, PA, April 23, 2014.
The Board affirmed the Administrative Law Judge’s conclusion that Respondent did not coercively interrogate the Charging Party Employee in violation of Section 8(a)(1), and did not terminate the Charging Party for engaging in union activities in violation of Section 8(a)(3) and (1). The Board rejected the Charging Party’s attempts to introduce new evidence and arguments in his exceptions, upheld the judge’s credibility findings, and clarified and did not rely upon certain parts of the judge’s decision. Member Miscimarra noted that he believes that generalized antiunion animus does not satisfy the General Counsel’s initial burden under Wright Line, absent evidence that the challenged adverse action was motivated by antiunion animus. Charge filed by an individual. Administrative Law Judge Robert A. Giannasi issued his decision on August 13, 2013. Members Miscimarra, Hirozawa, and Schiffer participated.
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Gentner Trucking Co. and Gentner, Inc., Debtor-in-Possession, a Single Employer, and/or Joint Employers, and/or Alter Egos (07-CA-071542 and 084341; 360 NLRB No. 83) Saline, MI, April 23, 2014.
The Board granted the General Counsel’s Motion for Default Judgment pursuant to the noncompliance provisions of a settlement agreement. The Board found that the Respondents had failed to comply with the terms of the settlement agreement by failing to commence making installment payments as required by the settlement agreement. Applying the noncompliance provisions of the settlement agreement, the Board deemed all of the allegations in the General Counsel’s reissued amended consolidated complaint to be true. The Board ordered the Respondents to cease and desist from: withdrawing recognition from the Union; bypassing the Union and negotiating wage rates directly with employees; failing and refusing to continue in effect all of the terms and conditions of the parties’ collective bargaining agreement; and failing to recall and causing the termination of employees because of their protected concerted or union activities. The Board further ordered the Respondents to: on request, bargain with the Union, meet and respond to grievances, rescind unilateral changes to terms and conditions of employment, and continue in effect the terms and conditions of employment contained in the parties’ collective bargaining agreement; reinstate 5 employees; make employees whole for losses suffered as a result of its unlawful conduct; compensate employees for any tax consequences of receiving lump-sum backpay awards and file a report with the Social Security Administration allocating backpay awards to the appropriate calendar quarters for each; remove from its files any reference to its unlawful failures to recall and discharges of 5 employees; and post and mail appropriate notices. Charges filed by Local 164, International Brotherhood of Teamsters. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Appollo Systems, Inc. (18-UC-000423; 360 NLRB No. 80) Maple Grove, MN, April 24, 2014.
The Board reversed the Regional Director’s Decision and Order and dismissed the Employer’s petition for clarification of a bargaining unit created by the parties’ Section 8(f) agreement. Unlike the Regional Director, the Board found it unnecessary to pass on the general question whether the Board should entertain unit clarification petitions in the Section 8(f) context, because it found that the parties’ dispute here was a contractual one that could reasonably be left for resolution through their contractual grievance and arbitration procedure. In so finding, the Board relied on earlier holdings that deferral is appropriate in representation cases where resolution of the issue turns solely on the proper interpretation of the parties’ contract. The Board, nevertheless, reaffirmed its longstanding general policy against deferral of representation issues that can be resolved only through application of statutory policy. Union involved—International Brotherhood of Electrical Workers, Local 292. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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United States Postal Service (13-CA-097568, et al.; 360 NLRB No. 74) Harvey, IL, April 24, 2014.
The Board adopted the judge’s findings that a union steward’s conduct in discussing grievance processing with his supervisor was protected under the Act in accordance with the four-factor test set forth in Atlantic Steel Co., 245 NLRB 814 (1979), and, therefore, that the Respondent violated Section 8(a)(3) and (1) by having the police eject the steward from its facility, suspending him, and discharging him. Chairman Pearce and Member Hirozawa found that all four factors favored protection. Member Johnson, concurring, found that the nature of the outburst did not favor protection but that the conduct remained protected based on the remaining three factors. Charges filed by National Association of Letter Carriers Branch 11. Administrative Law Judge Ira Sandron issued his decision on November 13, 2013. Chairman Pearce and Members Hirozawa and Johnson participated.
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Catholic Health Initiatives Colorado d/b/a Centura Health St. Mary-Corwin Medical Center (27-CA-092767 and 097152; 360 NLRB No. 82) Pueblo, CO, April 24, 2014.
The Board unanimously adopted the Administrative Law Judge’s decision finding that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to furnish the Union with relevant, requested information relating to bargaining-unit employees’ merit-based pay increases and the performance evaluations and standards used to determine them. In addition to the judge’s finding that the information was relevant to grievance processing, the Board found that the requested information concerned bargaining-unit employees’ terms and conditions of employment and was therefore presumptively relevant to the Union’s performance of its duties. Further, the Board concluded that the Respondent did not rebut the presumption of relevance and accordingly was obligated to furnish the information upon request. Charges filed by Communication Workers of America, Local 7774. Administrative Law Judge Jay R. Pollack issued his decision on June 17, 2013. Members Miscimarra, Johnson, and Schiffer participated.
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Durham School Services L.P (32-CA-077078 and 32-RC-066466; 360 NLRB No. 85) Campbell, CA, April 25, 1014.
The full Board adopted the Administrative Law Judge’s finding that the employer violated Section 8(a)(3) and (1) of the Act by discharging an employee shortly before a representation election. In so ruling, the Board adopted the judge’s finding that the employee was terminated because of her union activities and to discourage her from voting in the election. The Board concluded that it was unnecessary to pass on the judge’s finding that the employer also violated the Act by informing the employee that she had been discharged. In addition to upholding the violation, the Board adopted the judge’s finding that the election results should be set aside because of the employee’s discharge and the Employer’s objectionable off-duty access and social networking policies. Members Miscimarra and Johnson relied solely on the unlawful discharge in overturning the election. The Board directed a new election.
The remedial order includes a new form of notice to employees. The revised notice contains a hyperlink to the Board’s decision and order on the Agency’s website, an electronic address where employees may obtain a copy of the decision, and an address and telephone number that employees may use to obtain a hard copy of the decision.
The Charges and Petition were filed by Freight, Construction and General Drivers, Warehousemen & Helpers—Teamsters Union Local No. 287, affiliated with International Brotherhood of Teamsters, Change to Win. Administrative Law Judge Gregory Z. Meyerson issued his decision on February 11, 2013. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Boston Medical Center (01-RC-117550) Boston, MA, April 22, 2014. The Board denied the Petitioner’s Request for Review of the Regional Director’s Order Dismissing Petition because it raised no substantial issues warranting reversal of the Regional Director’s action. The Regional Director found that the petition seeking an election involving all RNs at the Employer’s two separate campuses was premature and barred by collective-bargaining agreements covering two separate campus units, rejecting the Petitioner’s contention that the units are in the process of being merged. Petitioner—Massachusetts Nurses Association. Members Hirozawa, Johnson, and Schiffer participated.
Garda World Security Corporation d/b/a Garda CL West LLC (20-UD-119370) West Sacramento, CA, April 23, 2014. The Board denied the Union’s Request for Review of the Regional Director’s Supplemental Decision Regarding Challenged Ballot and Certification of Results on the ground that it raised no substantial issues warranting review. The Regional Director found that the tally of ballots showed 30 votes cast in favor of deauthorization and that it constituted a majority of eligible voters sufficient to certify the results. Petitioner—an individual. Union involved—International Union, Security, Police, and Fire Professionals of America (SPFPA). Members Hirozawa, Johnson, and Schiffer participated.
Rural Metro San Diego, Inc. (21-RC-123522) San Diego, CA, April 23, 2014. The Board denied the Intervenor National Emergency Medical Services Association’s request for review of the Acting Regional Director’s decision and direction of election on the ground that it raised no substantial issues warranting review. Petitioner—National Association of Government Employees Affiliated With Service Employees International Union (SEIU/NAGE Local 5000). Members Hirozawa, Johnson, and Schiffer participated.
Northwestern University (13-RC-121359) Evanston, IL, April 24, 2014. The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election. The Board stated that the Request for Review raised substantial issues warranting review, and that it intended to issue a subsequent notice establishing a schedule for the filing of briefs on review and inviting amicus briefs. The Board specified that the forthcoming notice will supersede the otherwise applicable provisions of Section 102.67(g) of the Board’s Rules and Regulations regarding the deadline for filing briefs. Petitioner—College Athletes Players Association (CAPA). Members Hirozawa, Johnson, and Schiffer participated.
Metropolitan Food Inc. d/b/a Driscoll Foods (22-RD-120579) Clifton, NJ, April 25, 2014. No exceptions having been filed, the Board adopted the Regional Director’s findings and recommendations that the challenges to the ballots of five voters be sustained, and that the Intervenor Union’s objection to the election be overruled in its entirety. The Regional Director found that the revised tally of ballots showed that a majority of the valid ballots have not been cast for Intervenor Local 464-A, United Food & Commercial Workers Union, and that it is not the exclusive collective-bargaining representative of the unit employees. Petitioner—an individual.
C Cases
Northtown Mechanical, Inc. (14-CA-106453) Smithville, MO, April 21, 2014. No exceptions having been filed to the Administrative Law Judge’s findings that the Respondent had engaged in certain unfair labor practices, the Board adopted the Judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charge filed by an individual. Administrative Law Judge Christine E. Dibble issued her decision on March 10, 2014.
Head Start Child and Family Services, LLC (15-CA-115397) Van Buren, AR, April 23, 2014. The Board denied the Employer’s petition to revoke a subpoena duces tecum, finding that the subpoena sought relevant information and described the requested evidence with sufficient particularity. The Board concluded that the Employer had not established any other basis for revoking the subpoena, stating in this regard that the entire petition to revoke was merely an argument on the merits of the potential case, and thus was improper. The Board additionally noted that, to the extent that the Employer had already provided information responsive to the subpoena, it was not required to produce that information again, so long as it accurately described which documents it had already provided, stated whether those previously-supplied documents constituted all of the requested documents, and provided all of the information that was subpoenaed. Members Hirozawa, Johnson and Schiffer participated.
KB In & Out, Inc., d/b/a Century Car Wash (31-CA-076280, et al.) Inglewood, CA, April 23, 2014. No exceptions having been filed to the Administrative Law Judge’s findings that the Respondent engaged in certain unfair labor practices, the Board adopted the Judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the Judge’s recommended Order. Charges filed by Carwash Workers Organizing Committee of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied-Industrial and Service Workers International Union, AFL-CIO, CLC. Administrative Law Judge Dickie Montemayor issued his decision on March 19, 2014.
Able Service (21-CA-116700) Los Angeles, CA, April 24, 2014. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena seeks information relevant to the matters under investigation and describes with sufficient particularity the evidence sought. The Board further found that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by United Service Workers West (USWW), Service Employees International Union. Members Hirozawa, Johnson, and Schiffer participated.
Crown Building Maintenance d/b/a Able Building Maintenance (21-CA-117358) Los Angeles, CA, April 24, 2014. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena seeks information relevant to the matters under investigation and describes with sufficient particularity the evidence sought. The Board further found that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by United Service Workers West (USWW), Service Employees International Union. Members Hirozawa, Johnson, Schiffer participated.
Geo Corrections Holdings, Inc. (12-CA-118124) Boca Raton, FL, April 24, 2014. The Board denied the Employer’s petition to partially revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by International Union, Security, Police and Fire Professionals of America, Local 126. Members Hirozawa, Johnson, and Schiffer participated.
Silgan Plastics Corporation (25-CA-031870, et al.) Seymour, IN, April 24, 2014. The Board granted the Counsel for the General Counsel’s motion to remand the case to the Regional Director for the purpose of approving the withdrawal of the charges and dismissing the Complaint, in view of the Respondent’s and Charging Party Union’s non-Board settlement agreement. Charging Party—United Steelworkers, AFL-CIO-CLC, Local Union 822, affiliated with United Steelworkers, AFL-CIO-CLC.
Durham School Services, L.P. (15-CA-118939 and 118943) Milton, FL, April 24, 2014. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Charges filed by Teamsters, Chauffeurs, Warehousemen & Helpers Union Local Union No. 991. Members Hirozawa, Johnson, and Schiffer participated.
NLRB Zeroes In on Rules Forbidding Personal Use of Company Email
May 2, 2014 By Scott J. Wenner
To the surprise of few observers, the National Labor Relations Board served notice on May 1 that it will reconsider whether employers can bar employee use of company email for union organizing and other collective purposes. NLRB General Counsel Robert F. Griffin, Jr., has asked the Board to overrule its 2007 Register Guard decision, which held that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.”
Griffin made clear upon taking office last November his intention to perpetuate his predecessor’s campaign to inject the Labor Board more aggressively into non-union workplaces. Already subject to increasingly frequent NLRB intervention on behalf of non-union employees are matters such as social media rules and employee handbooks that the Board determines are too restrictive and interfere with employees’ rights to raise collective issues concerning terms and conditions of employment.
It was Griffin’s predecessor, Lafe Solomon, who spearheaded the advance into non-union workplaces during the Obama Administration’s first term. Indeed, before Griffin’s arrival the General Counsel’s office argued unsuccessfully to an administrative law judge (ALJ) that Register Guard should be overruled in a case entitled Purple Communications, Inc. In Purple Communications, the ALJ relied on Register Guard in dismissing the General Counsel’s contention that the employer’s policy prohibiting personal use of its electronic equipment and systems violated the Section 7 rights of its employees and Section 8(a)(1) of the National Labor Relations Act.
The General Counsel, joined by a union, asked the Board to review the ALJ’s Purple Communications for the purpose of overruling Register Guard and requiring employers to permit employees who use company email systems in their work to permit their personal use for Section 7 purposes as well. On May 1, the NLRB published a Notice and Invitation to File Briefs in which the public was invited to address any or all of five issues in a legal brief, and was invited to submit empirical and other evidence that supported the positions stated. The Notice is available here. In summary form the issues that the Board has identified for briefing are:
- Should the Board reconsider its conclusion in Register Guard?
- If so, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
- To what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect how the above issues are decided?
- Do employee personal electronic devices, social media accounts and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ rights to communicate about work-related matters? If so, how?
- What technological issues and what changes in technology that have taken place since the Board’s 2007 Register Guard decision should the Board consider? How should these affect Board’s decision?
Initial briefs are due by June 16 and reply briefs must be filed by June 30.
Importance of this Development
In some respects, the Board’s reconsideration of its earlier decision on the right of employers to control their electronic communications systems not only was predictable but also was inevitable in view of the precedent set by its recent stance on social media and other employer policies in the non-union environment. It may appear to be a small step logically from wresting away strict control over social media from employers to a similar incursion into control over email and other network communications. After all, Section 7 rights are Section 7 rights regardless of whether a communication about conditions of employment is made on Twitter or directly by email.
In practice, however, this is no small step; the implications of ceding control over an employer’s private direct communications system are vast and nuanced, and may be too varied and complex to permit the form of studied, sober consideration the Board has invited in little more than one month’s time. Just as the employer community began gearing up for a battle over these issues long before yesterday, it is not too early for prudent employers to begin considering how they will cope with a decision that throws open their email network to union organizing or other forms of concerted activity over perceived conditions of employment.
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For more information regarding this or other labor and employment issues, please contact Scott J. Wenner, past chair of Schnader’s Labor and Employment Practices Group.
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