FROM: U.S. NATIONAL LABOR RELATIONS BOARD
December 28, 2012
The National Labor Relations Board has ruled that, in considering whether an employer is obligated to provide witness statements to a union representing an employee concerning discipline, the Board must balance the confidentiality interests of the employer against the union’s need for the information.
The decision in American Baptist Homes of the West d/b/a Piedmont Gardens overrules a 1978 Board decision, Anheuser-Busch, Inc., 237 NLRB 982, which established a categorical exemption for witness statements in such cases. In Piedmont, The Acting General Counsel and the charging party argued that the bright-line rule established in 1978 was "inappropriate", and the Board agreed, finding it should instead apply a balancing test articulated by the Supreme Court in 1979, in Detroit Edison Co. v NLRB, 440 U.S. 301.
The case involves a continuing care facility in Oakland, California, where statements by two witnesses alleging that a certified nursing assistant was asleep on the job resulted in that person’s termination. The union representing employees at the facility, SEIU, United Healthcare Workers-West, asked for information used in the termination, including witness statements. The employer refused.
In its decision, the Board noted that the National Labor Relations Act imposes on an employer a "general obligation" to furnish a union with relevant information necessary to perform its duties. However, under Detroit Edison, the Board must balance that need against "any legitimate and substantial confidentiality interests established by the employer." The Board discussed that balance in the decision. Also, it decided not to apply the rule retroactively; therefore, Piedmont and other pending cases are being decided under Anheuser-Busch.
The Board asked for briefing on a similar question in a decision in Hawaii Tribune Herald issued March 2011. In its Dec. 14, 2012 supplemental decision, the Board found it unnecessary to address the issue of overruling Anheuser-Busch because it found that the witness statement in the case was not covered by that decision.
Showing posts with label U.S. NATIONAL LABOR RELATIONS BOARD. Show all posts
Showing posts with label U.S. NATIONAL LABOR RELATIONS BOARD. Show all posts
Thursday, January 3, 2013
Monday, December 17, 2012
JUDGE ORDERS COMPANY TO REINSTATE EMPLOYEES, WAGES, BENEFITS, AND BARGIN WITH UNION
FROM: U.S. NATIONAL LABOR RELATIONS BOARD
Federal judge orders Healthbridge to reinstate employees, restore wages and benefits, and bargain with union
A federal judge has ordered a Connecticut nursing home chain to offer reinstatement to approximately 600-700 workers, to rescind changes made to employee wages and benefits, and to bargain in good faith with the union that has long represented its employees
U.S. District Judge Robert N. Chatigny granted the injunction against Healthbridge Management, LLC, at the request of the NLRB Regional Director Jonathan Kreisberg, who has authorized four complaints against the employer alleging a series of unlawful actions at six nursing homes over more than two years. The employees are represented by District 1199 of the New England Health Care Employees Union, SEIU.
The petition seeking the injunction alleged that after 19 months of bargaining, in June 2012, the company unilaterally implemented contract proposals affecting wages, hours, benefit eligibility, and retirement and health benefits without first bargaining to a good faith impasse. Employees went on an unfair labor practice strike in protest. In mid-July, the employees through their union offered to return to work under the terms of the contract that existed prior to the unilateral implementation, but the employer refused to bring them back.
In his order, Judge Chatigny found reasonable cause to believe the employer has refused to bargain in good faith, and that there was a "pressing need to restore the status quo" that existed before the unilateral changes were made. Under the order, Healthbridge must make the offers of reinstatement by Dec. 17. The injunction will remain in effect while the NLRB resolves the underlying Healthbridge cases.
Following hearings, two NLRB administrative law judges previously found that Healthbridge violated federal labor laws by, among other things, unilaterally implementing changes to employee wages and benefits and by prohibiting employees from wearing Union stickers protesting Healthbridge’s unfair labor practices, Judge Steven Davis’ July 20 decision is here, and Judge Steven Fish’s August 1 decision is here. A third hearing before an administrative law judge is now in progress on charges that the employer illegally locked out workers in December 2011 at its Milford facility, and bargained in bad faith by unilaterally imposing its contract proposals without first bargaining to a good faith impasse as required by the National Labor Relations Act.
Federal judge orders Healthbridge to reinstate employees, restore wages and benefits, and bargain with union
A federal judge has ordered a Connecticut nursing home chain to offer reinstatement to approximately 600-700 workers, to rescind changes made to employee wages and benefits, and to bargain in good faith with the union that has long represented its employees
U.S. District Judge Robert N. Chatigny granted the injunction against Healthbridge Management, LLC, at the request of the NLRB Regional Director Jonathan Kreisberg, who has authorized four complaints against the employer alleging a series of unlawful actions at six nursing homes over more than two years. The employees are represented by District 1199 of the New England Health Care Employees Union, SEIU.
The petition seeking the injunction alleged that after 19 months of bargaining, in June 2012, the company unilaterally implemented contract proposals affecting wages, hours, benefit eligibility, and retirement and health benefits without first bargaining to a good faith impasse. Employees went on an unfair labor practice strike in protest. In mid-July, the employees through their union offered to return to work under the terms of the contract that existed prior to the unilateral implementation, but the employer refused to bring them back.
In his order, Judge Chatigny found reasonable cause to believe the employer has refused to bargain in good faith, and that there was a "pressing need to restore the status quo" that existed before the unilateral changes were made. Under the order, Healthbridge must make the offers of reinstatement by Dec. 17. The injunction will remain in effect while the NLRB resolves the underlying Healthbridge cases.
Following hearings, two NLRB administrative law judges previously found that Healthbridge violated federal labor laws by, among other things, unilaterally implementing changes to employee wages and benefits and by prohibiting employees from wearing Union stickers protesting Healthbridge’s unfair labor practices, Judge Steven Davis’ July 20 decision is here, and Judge Steven Fish’s August 1 decision is here. A third hearing before an administrative law judge is now in progress on charges that the employer illegally locked out workers in December 2011 at its Milford facility, and bargained in bad faith by unilaterally imposing its contract proposals without first bargaining to a good faith impasse as required by the National Labor Relations Act.
Monday, November 12, 2012
COURT ENFORCES NLRB ORDERS TO REINSTATE FORMER STRIKERS AT DAYCON PRODUCTS COMPANY, INC.
FROM: U.S. NATIONAL LABOR RELATIONS BOARD
DC Circuit enforces Board orders Daycon Products must reinstate former strikers
The United States Court of Appeals for the D.C. Circuit on Tuesday enforced the National Labor Relations Board’s order finding that a Maryland janitorial supply company prematurely declared impasse in negotiations with its employees’ union and unlawfully failed to reinstate workers after they went on strike to protest that declaration.
In its unpublished opinion, the Court summarily enforced the Board’s September 2011 order requiring Daycon Products Company, Inc., to reinstate all striking employees and make them whole for any losses incurred because of the refusal to reinstate them earlier. The Court also affirmed that the company illegally subcontracted out work without negotiating with the union, and ordered Daycon to rescind any unilateral changes and resume bargaining.
Daycon employees have been represented by the Drivers, Chauffeurs and Helpers Local Union 639, affiliated with the International Brotherhood of Teamsters, since 1973. In April 2010, after about 10 negotiating sessions for a new contract, the company declared it had reached impasse and implemented its last bargaining order. Days later, union employees walked out on strike because of the unfair labor practice. They offered to return unconditionally in early July of that year.
If a strike is called in response to an employer’s unfair labor practices, the employer must reinstate striking workers when they offer unconditionally to return to work, even if it means displacing workers who were hired in the meantime. However, Daycon refused.
In enforcing the Board’s order, the Court agreed that "the Board’s findings are supported by substantial evidence in the record." It also rejected Daycon’s procedural challenges, including a claim that the Board denied it a fair hearing by issuing a press release summarizing the case following a decision by an administrative law judge.
DC Circuit enforces Board orders Daycon Products must reinstate former strikers
The United States Court of Appeals for the D.C. Circuit on Tuesday enforced the National Labor Relations Board’s order finding that a Maryland janitorial supply company prematurely declared impasse in negotiations with its employees’ union and unlawfully failed to reinstate workers after they went on strike to protest that declaration.
In its unpublished opinion, the Court summarily enforced the Board’s September 2011 order requiring Daycon Products Company, Inc., to reinstate all striking employees and make them whole for any losses incurred because of the refusal to reinstate them earlier. The Court also affirmed that the company illegally subcontracted out work without negotiating with the union, and ordered Daycon to rescind any unilateral changes and resume bargaining.
Daycon employees have been represented by the Drivers, Chauffeurs and Helpers Local Union 639, affiliated with the International Brotherhood of Teamsters, since 1973. In April 2010, after about 10 negotiating sessions for a new contract, the company declared it had reached impasse and implemented its last bargaining order. Days later, union employees walked out on strike because of the unfair labor practice. They offered to return unconditionally in early July of that year.
If a strike is called in response to an employer’s unfair labor practices, the employer must reinstate striking workers when they offer unconditionally to return to work, even if it means displacing workers who were hired in the meantime. However, Daycon refused.
In enforcing the Board’s order, the Court agreed that "the Board’s findings are supported by substantial evidence in the record." It also rejected Daycon’s procedural challenges, including a claim that the Board denied it a fair hearing by issuing a press release summarizing the case following a decision by an administrative law judge.
Thursday, November 1, 2012
U.S. NLRB ACTING GENERAL COUNSEL'S ANALYSIS OF TWO EMPLOYEE HANDBOOK'S 'AT-WILL' EMPLOYMENT CLAUSES
FROM: U.S. NATIONAL LABOR RELATIONS BOARD
NLRB Acting General Counsel Lafe Solomon today released an analysis of at-will employment clauses in two employee handbooks, finding that both are lawful under the National Labor Relations Act.
Charges filed with the NLRB alleged that the handbooks, distributed by a California trucking company and a restaurant in Arizona, defined at-will employment so broadly that employees would reasonably think they could not engage in activity protected by the National Labor Relations Act. However, the two memos prepared by the NLRB’s Division of Advice in Washington DC found that they were not overly broad.
As both memos explain, an employer violates the Act by maintaining work rules or policies that explicitly prohibit NLRA-protected union or concerted activity, such as joining a union or discussing terms and conditions of employment with coworkers. Even if not explicit, a rule can be unlawful if employees would reasonably construe the language to prohibit such activity.
The clause in a handbook maintained by Rocha Transportation in Modesto, California advised drivers that their employment is at-will and may be terminated at any time. "No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will," it continued. "Only the president of the Company has the authority to make any such agreement and then only in writing." The Division of Advice Memo notes that this clause explicitly states that the relationship can be changed, and so employees would not reasonably assume that their NLRA rights are prohibited.
At Mimi’s Café in Casa Grande, Arizona, the Teammate Handbook description of at-will employment includes the sentence: "No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship." The Advice Memo found this was not unlawfully broad because the clause does not require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.
The Advice Memos are provided as guidance for employers and human resource professionals in a developing area that has drawn considerable attention recently. They distinguish the language in the two handbooks from another at-will clause that was recently found by an NLRB Administrative Law Judge to be unlawfully broad. That case was settled before Board review.
Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.
NLRB Acting General Counsel Lafe Solomon today released an analysis of at-will employment clauses in two employee handbooks, finding that both are lawful under the National Labor Relations Act.
Charges filed with the NLRB alleged that the handbooks, distributed by a California trucking company and a restaurant in Arizona, defined at-will employment so broadly that employees would reasonably think they could not engage in activity protected by the National Labor Relations Act. However, the two memos prepared by the NLRB’s Division of Advice in Washington DC found that they were not overly broad.
As both memos explain, an employer violates the Act by maintaining work rules or policies that explicitly prohibit NLRA-protected union or concerted activity, such as joining a union or discussing terms and conditions of employment with coworkers. Even if not explicit, a rule can be unlawful if employees would reasonably construe the language to prohibit such activity.
The clause in a handbook maintained by Rocha Transportation in Modesto, California advised drivers that their employment is at-will and may be terminated at any time. "No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will," it continued. "Only the president of the Company has the authority to make any such agreement and then only in writing." The Division of Advice Memo notes that this clause explicitly states that the relationship can be changed, and so employees would not reasonably assume that their NLRA rights are prohibited.
At Mimi’s Café in Casa Grande, Arizona, the Teammate Handbook description of at-will employment includes the sentence: "No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship." The Advice Memo found this was not unlawfully broad because the clause does not require employees to agree that the employment relationship cannot be changed in any way, but merely highlights that the employer’s representatives are not authorized to change it.
The Advice Memos are provided as guidance for employers and human resource professionals in a developing area that has drawn considerable attention recently. They distinguish the language in the two handbooks from another at-will clause that was recently found by an NLRB Administrative Law Judge to be unlawfully broad. That case was settled before Board review.
Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.
Sunday, September 30, 2012
UNLAWFUL REFUSAL TO HIRE UNIONIZED EMPLOYEES
FROM: U.S. NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has ruled that Massey Energy Company and its subsidiary, Mammoth Coal Company, unlawfully refused to hire former unionized employees in order to avoid union obligations at a West Virginia coal mine it had purchased.
Massey bought the mine in Kanawha County in 2004 from Horizon Natural Resources Company after Horizon declared bankruptcy. Massey then created Mammoth Coal, a subsidiary, to operate the mine.
In the end, only 19 of the former miners were hired into a workforce of 219. Then, having eliminated the union, Mammoth unlawfully imposed a lower wage structure for all miners, the Board found.
Under the National Labor Relations Act, the buyer of a union company must recognize and bargain with the union if a majority of the buyer’s new employees came from the former union-represented workforce. It is also a violation of labor law to discriminate against union supporters in hiring.
Members Griffin and Block also found that Massey Energy was responsible for the discriminatory treatment of the miners because it directly participated in the unlawful conduct. "Massey made clear to the managers and supervisors making the hiring decisions for Mammoth that Massey would not accept a union in that operation," the Board majority found. In addition, the Board majority, rejecting procedural arguments, found Massey and Mammoth to constitute a single employer based on their integrated operations and lack of arms-length relationship. (The Board had earlier asked all parties to the case to submit supplemental briefs on the single employer question.) Massey is therefore jointly liable for any remedies, including backpay for miners who were unlawfully discriminated against.
On that point, Member Hayes dissented. He found that neither the direct participation issue, nor the single employer issue were raised by the NLRB General Counsel in his complaint or in arguments before an administrative law judge who initially heard the case. He also found that the additional briefing requested by the Board did not cure that failure. "In their collective zeal to hold Massey liable – for the obvious reason that it is far more likely than Mammoth to have funds to meet backpay obligations – the Acting General Counsel and my colleagues have trampled due process," Member Hayes wrote.
In its decision, the Board ordered Mammoth and Massey to offer employment to 85 named former Horizon employees and make them whole for lost earnings, to recognize the union and bargain with it on request, to restore the former terms and conditions of employment, and to bargain in good faith with the union regarding any changes. (In 2011, Massey Energy was purchased by Alpha Natural Resources.)
The National Labor Relations Board has ruled that Massey Energy Company and its subsidiary, Mammoth Coal Company, unlawfully refused to hire former unionized employees in order to avoid union obligations at a West Virginia coal mine it had purchased.
Massey bought the mine in Kanawha County in 2004 from Horizon Natural Resources Company after Horizon declared bankruptcy. Massey then created Mammoth Coal, a subsidiary, to operate the mine.
In the end, only 19 of the former miners were hired into a workforce of 219. Then, having eliminated the union, Mammoth unlawfully imposed a lower wage structure for all miners, the Board found.
Under the National Labor Relations Act, the buyer of a union company must recognize and bargain with the union if a majority of the buyer’s new employees came from the former union-represented workforce. It is also a violation of labor law to discriminate against union supporters in hiring.
Members Griffin and Block also found that Massey Energy was responsible for the discriminatory treatment of the miners because it directly participated in the unlawful conduct. "Massey made clear to the managers and supervisors making the hiring decisions for Mammoth that Massey would not accept a union in that operation," the Board majority found. In addition, the Board majority, rejecting procedural arguments, found Massey and Mammoth to constitute a single employer based on their integrated operations and lack of arms-length relationship. (The Board had earlier asked all parties to the case to submit supplemental briefs on the single employer question.) Massey is therefore jointly liable for any remedies, including backpay for miners who were unlawfully discriminated against.
On that point, Member Hayes dissented. He found that neither the direct participation issue, nor the single employer issue were raised by the NLRB General Counsel in his complaint or in arguments before an administrative law judge who initially heard the case. He also found that the additional briefing requested by the Board did not cure that failure. "In their collective zeal to hold Massey liable – for the obvious reason that it is far more likely than Mammoth to have funds to meet backpay obligations – the Acting General Counsel and my colleagues have trampled due process," Member Hayes wrote.
In its decision, the Board ordered Mammoth and Massey to offer employment to 85 named former Horizon employees and make them whole for lost earnings, to recognize the union and bargain with it on request, to restore the former terms and conditions of employment, and to bargain in good faith with the union regarding any changes. (In 2011, Massey Energy was purchased by Alpha Natural Resources.)
Sunday, August 5, 2012
JUDGE ORDERS HALT TO INTIMIDATION OF EMPLOYEES SUPPORTING A UNION NLRB
FROM: U.S. NATIONAL LABOR RELATIONS BOARD
A federal judge has ordered American Reclamation, Inc., a Los Angeles trash hauling and recycling service, to stop violating federal labor laws by threatening employees with dismissal for supporting a union, among other things, and to offer interim reinstatement to three employees who were fired.
Judge Dean D. Pregerson of the U.S. District Court for the Central District of California issued the temporary injunction on Tuesday at the request of the NLRB, while the case is pending before Administrative Law Judge William Kocol. The injunction will remain in effect until the NLRB process is complete.
A complaint issued by the NLRB Regional Office in Los Angeles in April alleged that American Reclamation engaged in multiple unfair labor practices beginning in early October 2011, during a union organizing campaign. The company allegedly threatened employees that they would be fired for supporting the union and that the company would be closed or sold if the employees voted for the union. In addition, company officials unlawfully promised improved working conditions, including better safety equipment, to discourage their support for the union.
Two employees who openly supported the union were discharged in October 2011, and a third was discharged in January 2012 after photographing hazardous materials and encouraging employees to voice concerns about hazardous materials they were handling. The injunction orders the company to offer reinstatement to the three employees, and to read the order to all employees.
Attorneys Juan Carlos Ochoa Diaz and J. Carlos Gonzalez represented the Board in this matter in the District Court.
A federal judge has ordered American Reclamation, Inc., a Los Angeles trash hauling and recycling service, to stop violating federal labor laws by threatening employees with dismissal for supporting a union, among other things, and to offer interim reinstatement to three employees who were fired.
Judge Dean D. Pregerson of the U.S. District Court for the Central District of California issued the temporary injunction on Tuesday at the request of the NLRB, while the case is pending before Administrative Law Judge William Kocol. The injunction will remain in effect until the NLRB process is complete.
A complaint issued by the NLRB Regional Office in Los Angeles in April alleged that American Reclamation engaged in multiple unfair labor practices beginning in early October 2011, during a union organizing campaign. The company allegedly threatened employees that they would be fired for supporting the union and that the company would be closed or sold if the employees voted for the union. In addition, company officials unlawfully promised improved working conditions, including better safety equipment, to discourage their support for the union.
Two employees who openly supported the union were discharged in October 2011, and a third was discharged in January 2012 after photographing hazardous materials and encouraging employees to voice concerns about hazardous materials they were handling. The injunction orders the company to offer reinstatement to the three employees, and to read the order to all employees.
Attorneys Juan Carlos Ochoa Diaz and J. Carlos Gonzalez represented the Board in this matter in the District Court.
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