04/03/2024: New Bench Book Released.
04/03/2024: New Bench Book Released.
The GC will have to try again to make worker misclassification a ULP.
Leo Marine Services, Inc.; Olympic Tug and Barge; Centerline Logistics, JD-16-24, 19-CA-273208 (ALJ Decision). After determining that the various corporations involved were a single employer, the ALJ applied Elmhurst Care Center to determine that the employer violated Section 8(a)(2) of the NLRA by prematurely recognizing the Seafarers International Union (SIU) when it did not have a representative complement of employees. It also violated Section 8(a)(3) when it entered into a collective-bargaining agreement with SIU containing a union security clause at a time when the SIU did not represent an uncoerced majority. The ALJ applied Fibreboard to determine that the employer violated Section 8(a)(5) by reassigning bargaining unit work without bargaining to impasse.
NLRB Division of Judges Releases 2024 Bench Book (National News). The bench book is a very useful outline of the various procedural questions involved in litigating unfair labor practice charges. Every so often, a new one is released with updated cases and the like.
Starbucks Corporation, 29-CA-308462 (Unpublished Board Decision). Starbucks moved to dismiss a paragraph from a complaint brought against it. But that paragraph has already been removed. So the motion is moot.
MPStar Professionals LLC, 373 NLRB No. 42, 01-CA-291402 (Published Board Decision). The Board granted the General Counsel's motion for default judgment in part, finding the employer violated Section 8(a)(1) by discharging employees Tatiana Quintero and Erika Contreras in December 2021 because they engaged in protected concerted activity by complaining about wages, hours and working conditions, demanding they and their coworkers be paid, and refusing to work until paid. The GC was attempted to use the case to establish that misclassification of workers as independent contractors is an unfair labor practice. The Board indicates in a footnote that it is open to that argument in an appropriate case, but this is not that.
Black Iron Reinforcing, LLC, 28-RC-290472 (Unpublished Board Decision). The Board, in reviewing the Regional Director’s decision, applies Specialty Healthcare and American Steel to find that the petitioned-for unit was appropriate. Under American Steel, the Board will find a petitioned-for unit appropriate if the employees: (1) share an internal community of interest; (2) are readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors; and (3) are sufficiently distinct from excluded employees. If a party contends the petitioned-for unit is not sufficiently distinct, the Board applies its traditional community-of-interest factors to determine if there is an "overwhelming community of interest" between the petitioned-for and excluded employees. The ironworkers and laborers shared an internal community of interest and were readily identifiable as a group. The Board found they did not share an overwhelming community of interest with the excluded fab workers and drivers, who had different job functions, skills, work locations, working conditions, supervisors and limited interaction and interchange with the petitioned-for employees.
Bannum Place of Saginaw, LLC, 07-CA-207685 (Board Appellate Brief). In the underlying case, the Board determined that the employer unlawfully discharged two employees and ordered that they be reinstated with backpay. The employer is contesting the calculation of backpay and whether the parent company should be liable with the subsidiary company as a joint employer. In he brief, the Board argues that it exercised its broad discretion in calculating the backpay awards. The Board used the employees' W-2 tax forms to reasonably approximate their gross backpay, subtracted interim earnings, and included other amounts like lost 401(k) contributions and medical expenses. The Board argues that substantial evidence also supported the its finding that Bannum, Inc. was jointly liable with Bannum Saginaw for the backpay. A parent company like Bannum, Inc. is liable if it played a causal role in the subsidiary's unfair labor practices, as Bannum, Inc.'s president made the decisions to discharge Price and Ahmad. The entities were also a single employer based on their common ownership, management, interrelated operations, and centralized control of labor relations.