Wednesday, July 06, 2005

President Bush Nominates Peter C. Schaumber to Serve as a Member of the NLRB and Ronald E. Meisburg to Serve as the NLRB's General Counsel

President Bush today nominated Peter C. Schaumber to serve a second term as a Board Member for a five-year period ending on August 27, 2010.

President Bush also nominated Ronald E. Meisburg to serve a four-year term as the NLRB's General Counsel. The President simultaneously withdrew Meisburg's January 25 nomination to serve as a Board Member. If confirmed as General Counsel, Meisburg will fill a vacancy left by Arthur Rosenfeld.

The White House's announcement is at:
http://www.whitehouse.gov/news/releases/2005/06/20050630-2.html

Member Schaumber consistently sided with his Republican colleagues on major policy issues during his first term. See Harborside Healthcare Inc., 343 NLRB No. 100 (2004); Crown Bolt Inc., 343 NLRB No. 86 (2004); Oakwood Care Center, 343 NLRB No. 76 (2004); Brown University, 342 NLRB No. 42 (2004); Dana Corp., 341 NLRB No. 150 (2004); IBM Corp., 341 NLRB No. 148 (2004). After a thorough (but perhaps not exhaustive) review, I found 55 occasions on which Member Schaumber and a fellow Republican Member disagreed on the outcome of an alleged violation. Member Schaumber adopted the more “pro-employer” position on 34 of those 55 occasions (e.g., he found that an employer’s conduct was lawful where a fellow Republican found that it violated the Act). As detailed below, Member Schaumber adopted the more pro-employer position on each of the 6 occasions he disagreed with Member Meisburg, on 8 of the 9 occasions that he disagreed with Member Acosta, and on 20 of the 40 occasions that he disagreed with Chairman Battista. This voting record suggests that Member Schaumber and Chairman Battista are about equally conservative and that Member Schaumber is more conservative than were (former) Members Meisburg and Acosta. Of course, these numbers are not the only relevant data when determining the relative conservatism of a particular Member, but they are easily quantifiable and informative.
[Updated on September 17, 2005.]

Cases Where Member Schaumber Adopted a More Pro-Employer Position Than His Fellow Republicans
Ryan Iron Works, Inc., 345 NLRB No. 56 (2005) (Battista and Liebman ordered employer who violated Section 8(a)(5) by failing to make pension contributions to pay 20% liquidated damages called for in plan documents incorporated by reference in the CBA; Schaumber dissented in part, finding that the plan documents called for only a 5% liquidated damages payment)

Southern Mail, Inc., 345 NLRB No. 43 (2005) (Battista and Liebman held that an employer violated Section 8(a)(3) by making its disciplinary policy harsher in retaliation against employees’ protected activities and by discharging two employees pursuant to the harsher policy; Schaumber voted to find that the employer was not motivated by protected activity when changing its disciplinary policy and that therefore the change did not violate Section 8(a)(3); Schaumber also voted to find that the employer did not violate Section 8(a)(3) by relying on the changed rule to terminate the two employees, though he found that one of the employees was discriminatorily discharged under a different rationale).

Lake Mary Health & Rehabilitation, 345 NLRB No. 37 (2005) (Battista and Liebman invalidated an employer’s victory, finding that the employer tainted the election by announcing to employees that it was rescinding an extra-shift bonus that it had historically paid to them; Schaumber dissented, arguing that the union failed to prove that the announcement interfered with employee free choice)

Lee Builders, Inc., 345 NLRB No. 32 (2005) (Battista and Liebman held that an employer violated Section 8(a)(3) by discharging employee, who had tested positive for drug use, because of his union activity; Battista and Liebman relied on an earlier incident in which the employer allowed another employee to retain his job after testing positive for drug use to conclude that the employer failed to prove that it would have terminated the employee absent his union activity; Schaumber dissented, arguing that the alleged discriminatee and the other employee were not similarly situated and that therefore the employer’s treatment of the other employee did not undermine the employer’s argument that it would have terminated the alleged discriminatee even absent his union activity)

Postal Service, 345 NLRB No. 26 (2005) (Battista and Liebman issued a broad order requiring an employer to cease and desist from violating the Act in any manner; Schaumber dissented, arguing that the Board lacked statutory authority to issue such a broad order under the circumstances of the case).

Postal Service, 345 NLRB No. 25 (2005) (Battista and Liebman issued a broad order requiring an employer to cease and desist from violating the Act in any manner; Schaumber dissented, arguing that the Board lacked statutory authority to issue such a broad order under the circumstances of the case).

E.L.C. Electric, Inc., 344 NLRB No. 144 (2005) (Battista and Liebman held that employer violated Section 8(a)(1) by telling employees during the critical period that it was actively seeking to improve health benefits; Schaumber dissented arguing that employer's statement was not coercive because it was in response to employee's question and because he thought it did not contain a promise or threat)

Albertson's, 344 NLRB No. 141 (2005) (Battista and Liebman finding that bookkeeper was employer's agent because, at the employer's direction, she sat in on disciplinary meetings and made threats that supervisor present failed to disclaim; Schaumber dissented arguing that, under all the circumstances, employees would not reasonably think that bookkeeper reflected company policy)

Partylite Worldwide, Inc., 344 NLRB No. 155 (2005) (Battista and Liebman set aside employer's election victory because eight high-ranking managers stood at entrances to parking lot and watched union agents distribute campaign literature for 15 minutes; Schaumber dissented, arguing that managers' silent presence at parking lot entrances did not interfere with employee free choice)

Spartech Corp., 344 NLRB No. 72 (2005) (Battista and Liebman held that employer violated Section 8(a)(1) by created the impression that it was surveilling employees’ union activities when a supervisor told an employee that a manager knew who had attended a union meeting the day before; Schaumber dissented, arguing that an employee could not reasonably interpret the supervisor’s statement as creating an impression of surveillance because the union meeting was held in a public park near the employer’s facility)

TNT Logistics
, 344 NLRB No. 61 (2005) (Battista and Liebman granted default judgment against employer on allegation that it unlawfully refused to furnish financial information to union, reasoning that employer admitted relevance of information by failing to answer; Schaumber dissented, arguing that complaint allegation did not establish that employer triggered duty to furnish such info by claiming inability to pay)

Washington Fruit & Produce Co., 343 NLRB No. 125 (2004) (Battista and Walsh held that an employer violated Section 8(a)(3) by issuing a harsher warning to a union supporter than it issued to another employee for committing the same error; Schaumber voted to find no violation, arguing that the two employees were not similarly situated because the union supporter had previous warnings while the other employee had none)

Jewish Home for the Elderly of Fairfield County, 343 NLRB No. 117 (2004) (Battista and Walsh held that employer violated Section 8(a)(1) by monitoring employees’ protected activities and by creating the impression of surveillance; Schaumber, dissenting, argued that the employer’s actions did not rise to the level of actual or implied surveillance)

CBS Broadcasting Inc., 343 NLRB No. 96 (2004) (Meisburg and Walsh held that employer violated Section 8(a)(5) by modifying a collective bargaining agreement with the consent of only one of two unions that jointly represented the employees; Schaumber dissented, arguing that the parties had a past practice of such negotiations that estopped the joint representative from challenging the employer’s actions)

Allied Mechanical Inc., 343 NLRB No. 74 (2004) (Meisburg and Walsh held that employer violated Section 8(a)(1) by removing campaign literature from two posting areas when it permitted employees to post other notices unrelated to work there; Schaumber dissented, arguing that the Board should find no violation because the employer allowed employees to post campaign literature in other areas of facility)

Parkview Hospital, Inc., 343 NLRB No. 13 (2004) (Meisburg and Walsh held that employer violated Section 8(a)(3) by giving an employee a negative evaluation because of her union activity; Schaumber dissented, arguing the GC did not satisfy his initial burden of showing that union animus motivated the decision).

Amptech, Inc., 342 NLRB No. 117 (2004) (Meisburg and Walsh held that employer violated Section 8(a)(1) by distributing survey soliciting employee grievances 5 months after union campaign ended, reasoning that employer’s unfair labor practices during that 5 months showed that employer designed survey to correct the discontent that led to the union campaign; Schaumber dissented, arguing that the relationship between the survey and the union campaign was too attenuated to find a violation given the 5-month passage of time)

Anheuser-Busch, Inc., 342 NLRB No. 49 (2004) (Battista and Walsh held that employer violated Section 8(a)(5) by installing and using hidden surveillance cameras in workplace without first bargaining with union; Schaumber dissented, arguing that employer's actions were lawful because it placed cameras in an isolated area based on its suspicions that employees were using drugs there)

Snap-On Tools, Inc., 342 NLRB No. 2 (2004) (Meisburg and Walsh held that employer engaged in objectionable conduct when it posted a memo entitled “Employee Strike Costs,” which listed strikes as other facilities, the duration of the strike, and the cost to employees; they reasoned that the memo essentially predicted a 1-week strike if employees unionized; Schaumber dissented, arguing that the memo did not predict a strike but merely set forth an estimate of how much a strike would likely cost if one occurred)

Sam Manuel Indian Bingo & Casino, 341 NLRB No. 138 (2004) (Battista, Liebman, and Walsh asserted jurisdiction over a commercial enterprise that is wholly owned and operated by an Indian tribe on the tribe’s reservation; Schaumber dissented, arguing that the Board lacks statutory authority to assert jurisdiction over such enterprises)

Donaldson Bros. Ready Mix, Inc., 341 NLRB No. 124 (2004) (Battista and Walsh held that employer unlawfully created an impression that it was monitoring its employees’ union activities when manager told an employee that he thought that employee and four others were leaders of the union campaign; Schaumber dissented, arguing that an employee could not reasonably infer surveillance from the manager’s comment because the manager’s information could have come not from surveillance but from the company grapevine).

Toll Mfg., 341 NLRB No. 115 (2004) (Battista and Walsh held that employer violated Section 8(a)(3) by discharging employee because of her union activities; Schaumber dissented, arguing that the General Counsel failed to satisfy his initial burden and that employer satisfied its rebuttal burden)

Goer Mfg., 341 NLRB No. 105 (2004) (Meisburg and Walsh granted summary judgment against employer who unilaterally discontinued vacation pay and perfect attendance pay contrary to the terms of a collective bargaining agreement; Schaumber dissented, arguing that some contract breaches do not rise to the level of an unfair labor practice and noting that the union had other forums available to pursue its claim)

Sun Mart Foods, 341 NLRB No. 22 (2004) (Battista and Walsh held that employer committed objectionable conduct by announcing that it would remodel its grocery store with the intent to affect employees’ votes in the election; Schaumber dissented, arguing that an employer does not commit objectionable conduct by announcing a benefit that it will grant to employees regardless of the election’s outcome, even if the announcement is timed to affect employees’ votes)

City Market, Inc., 340 NLRB No. 151 (2003) (Battista and Walsh held that employer violated Section 8(a)(1) by promulgating an no-solicitation/no-distribution rule in response to union activity; Schaumber dissented, arguing that the General Counsel did not satisfy his initial burden of demonstrating that the employer was motivated by protected activity when promulgating the rule and that employer showed that it would have promulgated rule for legitimate reasons regardless of union activity)

AP Painting & Improvements, Inc., 339 NLRB 1206 (2003) (Acosta and Walsh held that employer did not make a valid offer of reinstatement to discriminatee where offer barred discriminatee from organizing on “company time”; Schaumber dissented, arguing that reinstatement offer was valid because employer clarified offer by informing discriminatee that he could organize on nonworking time)

Ferndale Foods, Inc., 339 NLRB 1194 (2003) (Acosta and Walsh granted default judgment against employer, finding that employer failed to establish good cause for not timely filing an answer; Schaumber dissented, arguing that Board should relax its standards for good cause)

Dish Network Service Corp., 339 NLRB 1126 (2003) (Acosta and Liebman held that employer violated Section 8(a)(1) by telling employees that it did not recognize union stewards; Schaumber dissented, arguing that the violation was de minimis and did not warrant a Board order because employee was not entitled to a steward at the meeting where the statement was made and because employer had history of recognizing stewards)

Glasforms, Inc., 339 NLRB 1108 (2003) (Acosta and Liebman held that employer violated 8(a)(3) by discharging employee for refusing to sign revised job description that included additional duties where employer was motivated by union animus; Schaumber dissented, finding that employer satisfied rebuttal burden of showing that it would have discharged employee regardless of union activity)

Nations Rent, Inc., 339 NLRB 830 (2003) (Battista and Walsh held that employer failed to comply with settlement agreement and therefore reinstated the General Counsel’s complaint; Schaumber dissented, arguing that Board should not reinstate complaint where employer substantially complied with settlement agreement and did not commit any additional unfair labor practices)

Aesthetic Designs, LLC, 339 NLRB 395 (2003) (Acosta and Liebman counted a “Yes” vote marked on a sample mail ballot instead of an official mail ballot; Schaumber dissented, arguing that the Board should not count votes cast on anything other than official ballots)

Double D Construction Group, 339 NLRB 303 (2003) (Acosta and Liebman held that judge abused his discretion by discrediting a witness’s testimony solely because the witness had provided a false social security number to obtain employment; Schaumber dissented)

Patrician Assisted Living Facility, 339 NLRB 1153 (2003) (Acosta and Liebman granted default judgment against employer who failed to timely file an answer; Schaumber dissented, arguing that the Board should relax its standard for good cause)

Daimler-Chrysler Corp., 338 NLRB 982 (2003) (Acosta, Liebman, and Walsh counted ballot marked with a check in the “Yes” box with a “?” next to that box; Schaumber and Battista dissented, arguing that the ballot did not clearly express the voter’s intent)

Cases Where a Republican Board Member Adopted a More Pro-Employer Position Than Member Schaumber
Wackenhut Corp., 345 NLRB No. 53 (2005) (Schaumber and Liebman held that an employer violated Section 8(a)(5) by unilaterally removing a classification of employees from a bargaining unit; Battista dissented, arguing that the employer’s unilateral action was lawful because the respondent’s client required the respondent to use statutory supervisors to perform the work formerly performed by the eliminated classification)

Ctr. Serv. Sys. Div., 345 NLRB No. 45 (2005) (Schaumber and Liebman held that employer violated Section 8(a)(1) by soliciting employee grievances in a manner that interfered with their Section 7 activities; Battista dissented, arguing that the interrogation did not interfere with protected activity)

Oak Hill Funeral Home, 345 NLRB No. 35 (2005) (Schaumber and Liebman upheld a union’s election victory, finding that the union did not taint the election by circulating to employees a photocopied sample ballot that contained a handwritten “X” marked in the box for the union; Battista dissented, arguing that the sample ballot had a reasonable tendency to mislead employees into thinking that the Board favored the union) (Importantly, Schaumber noted that, in an appropriate case, he would consider adopting a bright-line rule that parties who circulate altered sample ballots must include a clear disclaimer on it. Such a rule would generally benefit employers.)

Endicott Interconnect Technologies, Inc., 345 NLRB No. 28 (2005) (Schaumber and Liebman held that an employee engaged in protected activity when he criticized his employer in a newspaper and on a website and that employer violated Section 8(a)(3) by discharging him because of the criticism; Battista dissented, arguing that the employee lost the Act’s protection because his comments failed to reference the existence of a labor dispute and because his statements were disloyal to the employer)

675 West End Owners Corp., 345 NLRB No. 27 (2005) (Schaumber and Liebman ordered the respondent-employer to pay litigation costs to the charging party and to the General Counsel as a result of the respondent-employer's bad-faith refusal to follow the ALJ's instructions regarding subpoenas; in dissent, Battista declined to reach the issue of the whether the Board has power to award litigation costs, noting that the employer’s bad-faith litigation tactics were cognizable under a Board rule addressing attorney misconduct)

Sterling Fluid Systems (USA), Inc., 345 NLRB No. 20 (2005) (Schaumber and Liebman held that an employer violated Section 8(a)(3) by: (1) requiring former strikers to sign a preferential rehire list; (2) granting a recall preference to crossover employees by placing them on the recall list ahead of former strikers; and (3) granting a recall preference to former strikers who personally signed the recall list over former strikers who did not personally sign the list; Battista dissented on all three points, arguing that the employer’s first-come, first-served recall system was rational) (counts as 3 occasions)

Abramson, LLC, 345 NLRB No. 8 (2005) (Schaumber and Liebman held that an employer violated Section 8(a)(1) by coercively interrogating an employee about his support for the union; Battista dissented, arguing that the employer’s interrogation was not coercive) (separately, Schaumber and Liebman held that the employer violated Section 8(a)(1) by predicting to employees that it would be more difficult for it to get work if they elected the union because most contractors do not want union workers on the job; Battista dissented, arguing that the employer’s conversations with two contractors provided an objective factual basis for the prediction) (counts as 2 occasions)

Palms Hotel & Casino, 344 NLRB No. 159 (2005) (Schaumber and Liebman held that an employer violated Section 8(a)(1) by maintaining a handbook rule prohibiting employees from “loitering in company premises before or after working hours”; Battista voted to find no violation, arguing that employees would not reasonably read a prohibition on “loitering” as encompassing Section 7 activity)

Mercy Sacramento Hospital, 344 NLRB No. 93 (2005) (Schaumber and Liebman found that the Union’s petitioned-for unit was appropriate where it included all skilled maintenance workers at one of the employer’s four hospitals; Battista dissented, arguing that the only appropriate unit must include skilled maintenance workers at all four facilities).

St. Vincent Hospital, 344 NLRB No. 71 ((2005) (Schaumber and Liebman held that two employees did not commit objectionable conduct when they entered the voting booth together; Battista dissented, arguing that the employees compromised the secrecy of their ballots)

Albertson's, 344 NLRB No. 141 (2005) (Schaumber and Liebman held that employer violated Section 8(a)(1) by informing an employee that it would soon split up her and another employee who had engaged in protected activities; in dissent, Battista noted that the Board unanimously found that the employer violated Section 8(a)(1) by splitting up the two employees and argued that it was superfluous to find that the statement also violated Section 8(a)(1))

Avery Heights, 343 NLRB No. 128 (2004) (Schaumber and Walsh held that an employer violated Section 8(a)(3) by discharging three strikers, relying on the judge’s factual finding that they committed no picket-line misconduct; in dissent, Battista voted dismiss the allegation, finding that the General Counsel failed to satisfy his burden of showing that the three strikers did not commit the misconduct)

Hialeah Hospital, 343 NLRB No. 52 (2004) (Schaumber and Liebman held that employer violated Section 8(a)(3) by removing ping-pong table in retaliation against employees’ union activities; Battista dissented, arguing that the Board should find no violation because the ping-pong table had disrupted the workplace and supervisor had already decided that table should be removed before the union campaign started)

Toma Metals, Inc., 342 NLRB No. 78 (2004) (Schaumber and Liebman found that employer violated Section 8(a)(5) by recalling laid-off employees without giving adequate notice and an opportunity to bargain to the union; Battista dissented, arguing that the union waived its right to bargaining because it had notice that such recalls would occur and it nevertheless failed to demand bargaining)

Kelly Bros. Sheet Metal, Inc., 342 NLRB No. 9 (2004) (Schaumber and Walsh held that employer violated Section 8(a)(1) when manager told employees “he could afford to keep us working year-round right now but if we went union, he couldn’t keep us working because there wasn’t [sic] that many union jobs around”; Battista dissented, arguing that the manager’s statement was not an unlawful threat of retaliation but rather a lawful prediction of negative economic consequences of unionizing)

Sceptor Ingot Castings, Inc., 341 NLRB No. 134 (2004) (Schaumber and Walsh ordered employer to make employees whole after it unilaterally required them to contribute to health care premiums; the majority did not offset a wage increase that employer granted simultaneously with the unilateral change; Battista dissented, arguing that Board should offset the wage increase)

International Protective Services, Inc., 339 NLRB 701 (2003) (Schaumber and Walsh held that employer violated Section 8(a)(5) by refusing to furnish information requested by the union; Battista dissented, arguing that union’s bad-faith bargaining suspended the employer’s statutory duty to furnish relevant information)

Stage Employees IASTE Local 7, 339 NLRB 214 (2003) (Schaumber and Walsh refused to order respondent-union to promulgate written criteria for operating its hiring hall as remedy for union’s hiring hall violation; Acosta dissented, arguing that a proper remedy should include such an order)

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