Labor & Employment Law

NLRB Law Memo 07/09/2008

NLRB Law Memo 07/09/2008
by LawMemo - First in Employment Law.
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NLRB - Staff summarized 2 decisions.

Dedicated Services, Inc. (29-CA-28447; 352 NLRB No. 93) Richmond Hill, NY June 27, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35293.htm

The Board adopted the administrative law judge's findings that the Respondent violated Section 8(a)(2) and (1) of the Act by informing applicants that they must sign dues-checkoff authorization cards for Journeymen and Allied Trades Local 713 as part of the application process and by recognizing Local 713 at a time when it lacked majority support among employees at the Respondent's Richmond Hill facility.  In making the latter finding, the Board rejected the Respondent's defense that the Richmond Hill employees had been lawfully accreted into an existing unit of employees at its Queens Village, NY facility.  The Board assumed, without deciding, that the date on which the Respondent recognized Local 713 was the operative date for the accretion analysis.  Because Local 713 did not have majority support at the time of recognition, Member Liebman found it unnecessary to rely upon the judge's discussion of the General Counsel's alternative theory that the recognition was otherwise premature and unlawful.  Finally, the Board adopted the judge's finding that the Respondent violated Section 8(a)(3), (2), and (1) by executing a collective-bargaining agreement with Local 713 that contained a union-security clause.

(Chairman Schaumber and Member Liebman participated.)

Charge filed by Amalgamated Transit Union Local 1181-1061; complaint alleged violation of Section 8(a)(1), (2), and (3).  Hearing at Brooklyn on Dec. 17, 2007.  Adm. Law Judge Steven Fish issued his decision March 4, 2008.

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Northeastern Land Services, Ltd. d/b/a The NLS Group (1-CA-39447; 352 NLRB No. 89) Providence, RI June 27, 2008.
http://www.nlrb.gov/shared_files/Board%20Decisions/352/v35289.htm

The Board reversed the administrative law judge's decision dismissing the complaint.  The Board concluded that the Respondent violated Section 8(a)(1) of the Act by maintaining an overbroad confidentiality provision in its employment contracts.  Specifically, the Board found that the confidentiality provision - which provided, in pertinent part, that an employee's disclosure of his terms of employment to other parties could constitute grounds for dismissal - was unlawfully overbroad because employees reasonably would construe it as prohibiting discussions of terms and conditions of employment with union representatives, activity protected by Section 7 of the Act.

Further, relying on Board precedent establishing that an employer's imposition of discipline pursuant to an unlawfully overbroad rule is necessarily unlawful, the Board  additionally concluded that the Respondent violated Section 8(a)(1) by terminating employee Jamison Dupuy for discussing terms of his employment with a client, i.e.,  breaching the above-described confidentiality provision.  Chairman Schaumber noted, however, that he "questions the theory that an employer's imposition of discipline pursuant to an unlawfully overbroad rule is necessarily unlawful."

(Chairman Schaumber and Member Liebman participated.)

            Charge filed by Jamison Dupuy, an individual; complaint alleged violation of Section 8(a)(1).  Hearing at Providence on May 8, 2002.  Adm. Law Judge Joel P. Biblowitz issued his decision June 27, 2002.

Full post as published by NLRB Law Memo on July 09, 2008 (boomark / email).