(The Return of) Ignatz, by Sam Heldman

Saturday, July 27, 2002

NLRB update This week's output from the Board is as follows:

Two General Counsel memoranda, giving advice to Regional staff (and, by virtue of public dissemination, to the rest of us) on:

"Procedures and Remedies for Discriminatees Who May Be Undocumented Aliens" in light of the Supreme Court's decision this Term in Hoffman Plastic Compounds (holding that the Board could not award backpay to undocumented aliens who were the victims of unlawful anti-union discrimination by their employer); and

"Collection cases", reaffirming old GC memoranda, essentially indicates that if a pension fund has some other way to get a recalcitrant employer to make its required contributions (such as through a lawsuit), that's what it should do, rather than file an 8(a)(5) charge.

Turning to the Board itself, this week's summary includes the following cases:

Franklin Home Health Agency is about the ever-popular issue of supervisory status of nurses. The Board, without significant discussion of its own, denies review of the Regional Director's conclusion that these nurses are employees rather than supervisors. The case reaffirms the point that, in order to be a supervisor, one has to supervise employees of the employer rather than employees of some other employer. Beyond that, it's essentially a pure "fact" case, showing once again how important a case-by-case analysis of the facts is, in these supervisory-issue dispute.

US Postal Service finds that the employer violated its duty to provide information that the union had requested, where the information was relevant to the processing of a grievance. The case reaffirms basic law in this area, including the fact that these request-for-info cases aren't to be deferred to arbitration; and holds that the case is NOT moot even though the union proceeded with the grievance despite not having received the information. HERE'S THE SICK PART: the charge was filed in 1997. It's 2002 now. The Board needs a bigger budget so that it can process cases promptly.

In Paul Mueller Co., it was stipulated that the company contracted-out some work without notice to the union, and without an opportunity to bargain over the decision or the effects; and it was stipulated that the contracting-out was a mandatory subject. A plain-as-the-nose-on-your-face violation of Section 8(a)(5), agrees the Board. The ALJ had held the complaint barred by Section 10(b)'s six-month limitation period, but the Board reversed: (a) the company hadn't raised the 10(b) issue until its post-hearing brief, which is too late and counts as a waiver; and (b) anyway, the evidence shows that the union didn't know about the contracting-out more than six months prior to filing the charge.

Lafayette Grinding finds the employer guilty of various unfair labor practices. The main discussion is about its unilateral decision to discontinue making health-and-welfare-fund contributions after the expiration of the prior collective bargaining agreement. The employer argues that, since it never signed that prior agreement, there's no ULP here; but the Board says (correctly) that the failure to sign is irrelevant, because the 3-year practice of making payments was at the very least a past practice, an implied term and condition of employment, that the employer could not unilaterally change. Second, the employer argues that the parties reached impasse on this issue of contributions; but the Board says (in paraphrase) that there was no lawful impasse, because the employer's unlawful unilateral cessation of payments made actual good-faith bargaining impossible.

Reading Medlar Electric, you may find it hard to believe that this much time and effort has been spent on an R-case for a unit with fewer than 10 members. So it goes. The issue here is whether one guy, a "dual function" employee in that he does more than one type of work, does enough truck driving to belong in the truck drivers' unit. The answer, if you care, is "yes".

South Coast Refuse is a backpay proceeding (liability having already been established in prior proceedings). Pretty standard stuff. The Board, for the most part, rules in favor of the Board by virtue of the employer's too-lame Answer, which said only "Denied." You've got to be more specific than that.

IBEW Local 98 (Fairfield Co.) is a section 8(b)(4)(D)/section 10(k) case. [If this flies over your head, but you nonetheless care to decipher it, read the Act and then read the case]. The Board holds essentially that peaceful area standards picketing, and seeking to represent current employees, don't amount to jurisdictional disputes within the purview of those sections of the Act.

Finally, MV Transportation -- which I mentioned yesterday -- holds that "an incumbent union in a successorship situation is entitled to —and only to—a rebuttable presumption of continuing majority status, which will not serve as a bar to an otherwise valid decertification, rival union, or employer petition, or other valid challenge to the union’s majority status". Chairman Hurtgen, and the two recess appointees, thus overrule St. Elizabeth Manor, 329 NLRB 341 (1999), which had given the union, in a successorship situation, a reasonable period of time to bargain free from such pressures. Member Liebman has a scholarly and sensible dissent.

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