Home -> Law Blog Directory -> Labor & Employment Law Blogs -> NLRB Law Memo

Labor & Employment Law

: NLRB Law Memo

NLRB Law Memo 11/30/2007

NLRB Law Memo 11/30/2007
by LawMemo - First in Employment Law.

Also by free weekly email.

NLRB - Staff summarized 2 decisions.

Amersino Marketing Group, LLC (29-CA-27623, et al.; 351 NLRB No. 58) Brooklyn, NY Nov. 19, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35158.htm

The Board, in a 3-0 decision, adopted the administrative law judge?s decision that the Respondent did not violate Section 8(a)(3) of the Act by discharging employee Eliezer Gallardo because he engaged in protected union activity.  In the absence of exceptions, the Board adopted the judge?s other findings that the Respondent violated 8(a)(1) by threatening the futility of collective-bargaining if the employees selected the Union, that the Respondent violated Section 8(a)(3) by discharging employees Lopez and Rodriguez because of their protected activity, that the Respondent did not violate the Act by discharging employee Lezama, and that the Respondent did not violate Section 8(a)(1) during a physical altercation between Gallardo and the Respondent?s president, Henry Wang.

The judge had found that Gallardo, who was reprimanded by Wang for a mistake on the inventory, was discharged because he refused to perform inventory, and that his actions had not been unlawfully provoked by the Respondent.  Accordingly, because there was no connection between Gallardo?s protected conduct and the termination, the judge found that the General Counsel had failed to carry his burden of establishing that the Gallardo?s protected conduct was a motivating factor in the Respondent?s decision to discharge him.  See Wright Line, 251 NLRB 1083 (1980), enfd. 662 f.2d 899 (1^st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).

            The Board assumed, arguendo, that the General Counsel had met his initial burden, but that the Respondent met its rebuttal burden under Wright Line by showing that it legitimately terminated Gallardo for refusing to perform his assigned inventory.  The Board first noted that it is ?axiomatic? that an employer may lawfully discipline, including discharge, an employee who refuses to work.  Moody Chip Corp., 243 NLRB 265, 273 (1979).  The Board then noted that Wang did not discharge Gallardo until after Gallardo had refused to perform inventory.  Thus, assuming, arguendo, that Wang?s reprimand of Gallardo was a pretext, as the judge found, the reprimand did not provoke Gallardo?s outburst.  Gallardo reacted to a lawful directive to do perform his job.

            The Board found inapposite cases cited by the General Counsel, see, e.g., Louisiana Council No. 17, AFSCME, 250 NLRB 880, 886 (1980), which hold that an employer may not provoke an employee into committing an indiscretion and then use that indiscretion as a pretext to discharge the employee because of his protected conduct.  Unlike those cases, where the respondent?s unlawful conduct provoked the employee?s outburst, here Gallardo?s response was to the Respondent?s lawful refusal to assign inventory duties to someone else.  Thus, the Board found that the Respondent showed that it would have discharged Gallardo even in the absence of his protected activity.

(Chairman Battista and Members Schaumber and Kirsanow participated.)

            Charges filed by Industrial Workers of the World; complaint alleged violations of Section 8(a)(1) and (3).  Hearing at Brooklyn, Nov. 8, 9, and 30, 2006.  Adm. Law Judge Michael A. Rosas issued his decision Feb. 27, 2007. 

***

The Bohemian Club (20-CA-32922; 351 NLRB No. 59) San Francisco, CA Nov. 19, 2007.
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35159.htm

The Board reversed the administrative law judge and found that the Respondent violated Section 8(a)(5) and (1) of the Act by assigning stewards? cleaning work to cooks without first giving the Union notice and an opportunity to bargain over the assignment.  The Board rejected the judge?s reasoning that the Union failed to request bargaining, noting that the Respondent had presented the Union with a fait accompli.  Accordingly, the Board found that the Union had not waived its right to bargain.  The Board rejected, both on the merits and as not properly before the Board, the Respondent?s defenses based on the terms of the parties? expired collective-bargaining agreement.  (The judge had rejected those arguments, and the Respondent failed to except to the judge?s ruling.)

In concurrence, Member Kirsanow indicated that, if the Board were writing on a clean slate, he would be inclined to find the unilateral change here to be too trivial to amount to an unfair labor practice, but he agreed with the other panel Members that, in view of prior Board decisions, the assignment was a material, substantial, and significant change in the cooks? terms and conditions of employment.  Member Kirsanow also rejected the Respondent?s contract-based defenses solely because they were not properly before the Board.

(Members Liebman, Kirsanow, and Walsh participated.)

Charge filed by Unite HERE! Local 2; complaint alleged violation of Section 8(a)(5) and (1).  Hearing at San Francisco on Oct. 4, 2006.  Adm. Law Judge Jay R. Pollack issued his decision Dec. 12, 2006.

Full post as published by NLRB Law Memo on November 30, 2007 (boomark / email).