Labor & Employment Law

NLRB Law Memo 10/04/2007

NLRB Law Memo 10/04/2007
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NLRB - Staff summarized 3 decisions.

Cast-Matic Corp., d/b/a Intermet Stevensville (Intermet Stevensville II) (7-CA-45550, et al.; 350 NLRB No. 93) Stevensville, MI Sept. 17, 2007.
http://www.nlrb.gov/shared_files/Board Decisions/350/v35093.htm

Intermet Stevensville II concerned the Respondent's alleged continuation of unfair labor practices directed at the Respondent's production and maintenance employees who supported the Union during the organizational campaign in issue in Intermet Stevensville, 350 NLRB No. 94 (Intermet I).  Relying on its decision in Intermet Stevensville I, a divided panel in Intermet Stevensville II, dismissed the administrative law judge's finding of several Section 8(a)(5) violations arising from the Respondent's alleged refusal to bargain and provide information to the Union, direct dealing with employees, and unilateral changes in employees' terms and conditions of employment.  Consistent with his dissent in Intermet Stevensville I, Member Walsh dissented on these Section 8(a)(5) issues.

The panel also considered several instances of alleged discriminatory conduct.  Contrary to the judge, the panel unanimously found that the Respondent had not constructively discharged several foundry employees.  The majority rejected the judge's conclusion that these employees, who were unilaterally assigned new tasks in the months following the election in issue in Intermet I, faced a "Hobson's Choice"; instead, the panel found that the Respondent did not condition its employees' continued employment upon their "abandonment of . . . the right to bargain collectively through representatives of their own choosing." Superior Sprinkler, 227 NLRB 204, 210 (1976).

Further, the unanimous panel refused to adopt the judge's findings that the Respondent had discriminated against its maintenance technicians, several of whom were involved in the earlier organizing drive.  First, the panel found that the Respondent lawfully issued to these employees job descriptions that demonstrated a heightened emphasis on skills necessary to maintain equipment related to the Respondent's new manufacturing process.  Consistent with this finding, the panel reversed the judge's finding that the Respondent violated Section 8(a)(3) by giving the maintenance technicians unfavorable evaluations when the failed to obtain the skills set forth in the job descriptions.

Nevertheless, the unanimous majority adopted the judge's finding that the Respondent violated Section 8(a)(3) when it subsequently laid off and reassigned several of the maintenance technicians.  The panel found, consistent with the judge, that the Respondent demonstrated that its financial situation was such that layoffs were necessary.  Nevertheless, the panel determined that the Respondent failed to show that it would have laid off or reassigned these specific individuals.  The panel relied on the Respondent's failure to explain why it targeted maintenance technicians when its stated concern was a need to stem production.  The panel also relied on shifting testimony, all of which was inconsistent with the Respondent's established layoff policy, concerning how it decided which employees within the maintenance department to lay off.

(Members Schaumber, Kirsanow, and Walsh participated.)

Charges filed by Auto Workers (UAW); complaint alleged violation of Section 8(a)(5), (3), and (1).  Hearing at Stevensville on 11 days between Oct. 28, 2003 and Aug. 18, 2004.  Adm. Law Judge Earl E. Shamwell Jr. issued his decision July 21, 2005.

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Cast-Matic Corp., d/b/a Intermet Stevensville (7-CA-44878, et al.; 350 NLRB No. 94) Stevensville, MI Sept. 17. 2007.
http://www.nlrb.gov/shared_files/Board Decisions/350/v35094.htm

In Intermet Stevensville I, a divided panel refused to enforce the administrative law judge's recommended Gissel bargaining order, notwithstanding the unanimous panel's decision to adopt the judge's findings of several unfair labor practices.  The panel instead ordered a second election.  The case concerned the Respondent's reaction to an organizing drive among the production and maintenance employees in its manufacturing facility.  In agreement with the judge, the unanimous panel found that the Respondent violated Section 8(a)(1) of the Act in several ways, including:  prohibiting, confiscating, and disposing of union paraphernalia; interrogating applicants about their union sentiments; making statements that it would be futile to select the union; and threatening loss of benefits should the employees select the union.  A divided panel (Member Schaumber dissenting) also adopted the judge's findings that, among other things, the Respondent violated Section 8(a)(1) by removing employee bulletin boards from the break room, interrogating employees about their union sentiments and activities.  The same panel majority adopted the judge's findings that the Respondent violated Section 8(a)(3) by disciplining an employee because it suspected her of supporting the union.  A different panel majority reversed the judge's findings that subsequent adverse actions taken against that employee also violated Section 8(a)(3), finding instead that the employee's poor work record effectively demonstrated that she would have been demoted even in the absence of her perceived union support.

            Despite these findings of violation, a divided panel refused to enforce the judge's recommended Gissel bargaining order or to find violations of Section 8(a)(5).  Noting that no employees lost their jobs as a result of the Respondent's unfair labor practices, and that only a few of the Respondent's actions affected a material portion of the proposed unit, the panel majority, consistent with its views in several recent cases, determined that the Respondent's unlawful conduct could adequately be remedied by traditional remedies.  Abramson, LLC, 345 NLRB No. 8 (2005); Jewish Home for the Elderly of Fairfield County, 343 NLRB 1069 (2004).  Consistent with the dissenting positions in those cases, and relying in part on his dissent from the majority's decision with respect tot the demotion, Member Walsh dissented from the majority's refusal to issue a Gissel bargaining order and to find the Section 8(a)(5) refusal to bargain violation.  In his view, "the seriousness of the violations and the pervasive nature of the [unlawful] conduct, considering such factors as the number of employees directly affected by the violations, the size of the unit, the extent of dissemination among employees, and the identity and position of the individuals committing the unfair labor practices" supported the issuance of a bargaining order.

(Members Schaumber, Kirsanow, and Walsh participated.)

Charges filed by Auto Workers (UAW); complaint alleged violation of Sections 8(a)(5), (3), and (1).  Hearing boomark / email).