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NLRB Law Memo 12/07/2007

NLRB Law Memo 12/07/2007
by LawMemo - First in Employment Law.

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NLRB - Staff summarized 3 decisions.

Consolidated Equities Realty #3, LLC d/b/a Bob Townsend/Colerain Ford (9-CA-42545, et al.; 351 NLRB No. 64) Cincinnati, OH, Nov. 29, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35164.htm

The Board adopted the administrative law judge?s findings that the Respondent made the decision to lay off unit employees after the Union had demonstrated its majority status in those units, and that the Respondent accordingly violated Section 8(a)(5) and (1) of the Act by failing to give the Union notice and an opportunity to bargain over the layoff decision.  The Board rejected the Respondent?s contention that the judge?s findings demonstrated prejudice.

(Chairman Battista and Members Liebman and Walsh participated.)

            Charges filed by Machinists District Lodge 34; complaint alleged violation of Section 8(a)(1), (3), and (5).  Hearing at Cincinnati on Jan. 23, 2007.  Adm. Law Judge George Carson II issued his decision March 26, 2007.

***

Columbine Cable Company, Inc. (27-RC-8467; 351 NLRB No. 65) Arvada, CO Nov. 30, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35165.htm

The Board, in a 2-1 decision, adopted the hearing officer?s recommendation that an election held November 15, 2006 be set aside and a new election held.

            Two late arriving voters were allowed to cast ballots, by agreement of the parties.  However, the Board agent in charge of the election did not re-assemble the voting booth for these voters.  Instead, they cast ballots on a counter in a break room.  The Board agent and observers were positioned about 15 feet away, and could see each voter?s back and left shoulder from their vantage point.  Moreover, the voters? arm movements were fully exposed as they voted.

The panel majority (Chairman Battista and Member Schaumber) noted that ?it is manifestly essential that employees be balloted in a secret election, for the secret ballot is a requisite for a free election.?  The Royal Lumber Co., 118 NLRB 1015, 1017 (1957) (internal footnote omitted).  Accord: Northwest Packing Co., 65 NLRB 890, 891 (1946).  Applying this standard, the majority concluded that the voting arrangements were ?entirely too open and too subject to observation to insure secrecy of the ballot and freedom of choice by the employees in the selection of a bargaining representative.?  These circumstances ?raise doubts concerning the integrity and secrecy of the election,? even though there was no affirmative proof that any person actually saw how the ballots were marked.

Member Walsh, dissenting, agreed that the circumstances in which the two voters cast their ballots were not ideal.  However, he rejected the idea that there was a per se rule that an election must be set aside whenever there is even a possibility that voter privacy has been compromised.  Rather, the objecting party must show that ?the manner in which the election was conducted raises a reasonable doubt as to the fairness and validity of the election.?  He concluded that the Employer failed to meet this burden.  He noted that there was no evidence that anyone saw, or attempted to see, how the two employees voted.  While both employees testified that they felt they should have been afforded more privacy, there was no objective evidence that they were unable to (or did not) freely vote their choice.  In his view, these facts simply do not establish any reason to question the validity of the election result.

(Chairman Battista and Members Schaumber and Walsh participated.)

***

Wegmans Food Markets, Inc. (5-CA-33228; 351 NLRB No. 61) Hunt Valley, MD Nov. 29, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35161.htm

The Board adopted the administrative law judge?s decision, dismissing the complaint allegations that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating employee Edwin R. Melhorn because he engaged in protected concerted activity, and that it violated Section 8(a)(1) by interrogating Melhorn about his union and protected concerted activities.  The Board agreed with the judge?s finding that Melhorn was not a credible witness.  As Melhorn?s testimony provided the only support for complaint?s allegations, the Board found that there was no reliable evidence that Melhorn engaged in, or that the Respondent believed that he engaged in, protected concerted activity.  On the same basis, the Board also found that there was no reliable evidence that the Respondent?s supervisors interrogated Melhorn about such activity.

(Members Liebman, Schaumber, and Kirsanow participated.)

Charge filed by Edwin R. Melhorn, an individual; complaint alleged violations of Section 8(a)(3) and (1).  Hearing at Baltimore, March 15, 16, and 19 and April 3, 2007.  Adm. Law Judge Richard A. Scully issued his decision Aug. 3, 2007.

Full post as published by NLRB Law Memo on December 07, 2007 (boomark / email).