Unfair Labor Practice Charge

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Unfair Labor Practice Charge

Post  mcarson on Thu Oct 22, 2009 4:13 am

I wanted to take a moment to share with everyone, here on this board, the situation I am currently dealing with. Back in July I had a union business agent ("BA") come out to the job site because of a workplace issue. The employer discharged me only hours later. The BA did nothing about this and I have filed an unfair labor practice against the company. The only problem is I don't have very good evidence to prove that I was terminated for engaging in union activity. I know the other employee, who saw me talking with the BA, is a company man cocksucker and I saw him telling my supervisor that he saw me talking to the BA. Other than that, there's not much expect the obvious, that I was fired only hours later. Any input is appreciated.


Last edited by mcarson on Tue Nov 03, 2009 4:49 pm; edited 1 time in total (Reason for editing : Isn't a concerted activity, but rather union activity)
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what was the reason

Post  Eric on Thu Oct 22, 2009 10:03 pm

the employer gave for your termination?

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Re: Unfair Labor Practice Charge

Post  mcarson on Fri Oct 23, 2009 5:56 am

I was given no official notice of change of employment status (eg, pink slip) pursuant to the CCR. However, my supervisor said it was a RIF and they will undoubtedly claim it was merely a RIF, and not a retaliatory action, once they are confronted by the NLRA.
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Re: Unfair Labor Practice Charge

Post  mcarson on Thu Oct 29, 2009 5:08 am

Wow, no replies? I was hoping someone would have some insight. Joe? Any help is appreciated.
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Re: Unfair Labor Practice Charge

Post  JoeC (McGruff) on Mon Nov 02, 2009 1:46 pm

Sorry mcarson been away a while. Sounds like a tough case what is the union excuse for not filing the ULP? How many other employees were riffed? Were you on the seniority list?
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Sorry, I"ve been busy

Post  Eric on Mon Nov 02, 2009 2:19 pm

mcarson wrote:I was given no official notice of change of employment status (eg, pink slip) pursuant to the CCR. However, my supervisor said it was a RIF and they will undoubtedly claim it was merely a RIF, and not a retaliatory action, once they are confronted by the NLRA.

If the employer is claiming a reduction in force you are going to probably have to find some affirmative defense that will lead the labor board to find that there was union animus behind their actions.

Something in the order of a smoking gun (a statement attributable to someone in managment that either was made by a person that has authority to make a hiring or firing decsion or someone that such a person relies upon, a document that you know exists that states such, or someone that is willing or can be forced to testify to such a statement) or some like that.

I know that there is board case law governing when a reduction in force termination is considered pretextual reason. I just don't know the cases and unfortunately do not have the time to look them up.

I am sorry I cannot be of more help. If your union does not want to petition the board for you, you can petition them yourself.

If you need to know how to do that let me know. I'll do my best to guide you through the process. It is not all that hard to file a complaint with the labor board.

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Re: Unfair Labor Practice Charge

Post  mcarson on Tue Nov 03, 2009 5:41 pm

JoeC (McGruff) wrote:Sorry mcarson been away a while. Sounds like a tough case what is the union excuse for not filing the ULP? How many other employees were riffed? Were you on the seniority list?
Union rep believes that the employer couldn't have known who called. However they didn't have to know who called. Seeing me discuss further issues with the union rep was certainly enough for them to give me the ax. There were no other affected employees and seniority is neither a provision in our CBA nor is a seniority list used by the employer.

Eric, there was union animus from at least one other foreman. I have prepared a "statement" mostly for my own reference so that I can remember all significant facts. Let me apologize ahead of time for its extreme length. (union animus can be found in second to last paragraph). Thanks for the case law info I will try to look for that. Also thanks for offering to help me file the charge, however I have already filed. I talked with an information officer and sent back the form they prepared for me. I have also served the employer with a copy via certified mail. If you have any other info or advice please share. It is very much appreciated.

The following outlines my charge of an unfair labor practice against L.J. Kruse Company:

July 24th 2009 - Approximately 6:00 am union representative arrived at my place of work to discuss a work jurisdictional matter with employees of my company and the general contractor’s employees who were performing the work being disputed as a jurisdictional matter. During the discussion, an employee of the general contractor turned the conversation into a personal attack against myself, to which I responded that he should be turned in to his own union for purchasing work tools with his own money. After discussing with the issues with the employees, union rep was in the process of leaving and I stopped him to discuss other issues at the job site. This occurred in the presence of other L.J. Kruse employees, employees of the general contractor, and other sub contractor employees. An employee of L.J. Kruse was seen later having a discussion with foreman Nick Baldwin. The exact nature of this discussion is unknown, but it is my contention that it was to discuss my conversation with the union representative. Mr. Baldwin called the employee away from his work area stating that he wanted him to “take a look” at something. A few moments later I walked by and there were not “taking a look” at anything but rather having a conversation which immediately ended upon me being present.

At 11:00 am I was informed that I was being discharged, according to foreman Nick Baldwin, as a reduction in force. While preparing to leave, the employee seen talking with Mr. Baldwin earlier said “You are a good worker, but you need to…” He stopped himself. I asked him what he was going to say, and he remained silent, declining to continue his statement.

Furthermore, Mr. Baldwin indicated that the company would have work for me in approximately 3 weeks and I would be eligible for rehire. I have learned through members of my apprentice classes, that the job Mr. Baldwin was referring to, has started. The company has made no attempt to reinstate my employment.

Supervisors upset with the union being called - Another supervisor, Dave Bunio, indicated on July 23rd, that he was upset with the union being called on this matter and he indicated that he thought the jurisdictional matter was petty, and that the unions involvement was unnecessary. He stated that he was upset with the union investigating this matter, and previously not investigating other matters which he considered to be more serious. Furthermore, he indicated that this “unionism” attitude makes the union look bad.

Work remaining upon discharge - While it is the employer, L.J. Kruse’s, and foreman, Mr. Baldwin’s contention that the discharge was a reduction in force due to lack of work, I respectfully disagree. Prior to my discharge, I was informed that I would be assisting Mr. Bunio in placing a pipe in a trench outside of the building. Setting of fixtures (e.g. toilets, lavatories, etc) hadn‘t begun; above ground piping of another portion of the building hadn’t begun at all. Additionally piping to boilers and other equipment had not been completed at the time of my discharge. In addition to work being incomplete on this job, Dave Bunio also indicated that he had another job which he indicated, prior to my discharge, he may need me at, at some point to “demo some pipe” (remove existing piping).
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Re: Unfair Labor Practice Charge

Post  mcarson on Thu Nov 05, 2009 6:44 pm

Eric, I think I may have found the case you were talking about that provides a test to determine pretextual reasoning for termination.
NLRB v. Wright Line (http://www.altlaw.org/v1/cases/562055).

general counsel must first "make a prima facie showing sufficient to support the inference that (the employer's opposition to) protected conduct was a 'motivating factor' in the employer's (discharge) decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." 251 NLRB No. 150, at 20-21.

I will continue my research to see if I can find anything specific to a pretextual RIF. Also, what does "251 NLRB No. 150, at 20-21" refer to? Thanks, again.
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Re: Unfair Labor Practice Charge

Post  Eric on Thu Nov 05, 2009 11:51 pm

mcarson wrote:Eric, I think I may have found the case you were talking about that provides a test to determine pretextual reasoning for termination.
NLRB v. Wright Line (http://www.altlaw.org/v1/cases/562055).

general counsel must first "make a prima facie showing sufficient to support the inference that (the employer's opposition to) protected conduct was a 'motivating factor' in the employer's (discharge) decision. Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct." 251 NLRB No. 150, at 20-21.

I will continue my research to see if I can find anything specific to a pretextual RIF. Also, what does "251 NLRB No. 150, at 20-21" refer to? Thanks, again.

251 is the volumn of the NLRB reporter that the case is in. No. 150 is the case number. In this instance if you were to go to a law library that had the NLRB reporter you would have to look in the first few pages to find the page that case No. 150 was on. I'm guessing that the case is probably in the first 20 pages or so since hte pin cite is to pages 20-21

The correct citation for the case you have referenced is 251 NLRB 1083.

I downloaded the whole case and all the citing references. If you'd like to take a look at those files email me at sposito2@verizon.net

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Re: Unfair Labor Practice Charge

Post  JoeC (McGruff) on Thu Nov 05, 2009 11:55 pm

Oh OK Eric answered the question here is the NLRB decision.
http://www.nlrb.gov/shared_files/Board%20Decisions/251/251-150.pdf
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Re: Unfair Labor Practice Charge

Post  JoeC (McGruff) on Fri Nov 06, 2009 12:00 am

To view board decisions you go here http://www.nlrb.gov/research/decisions/board_decisions/bound_volumes.aspx

Then use the drop down box and pick the volume number (in this example 251) the look for wright line or type in 150 in the search if you don't have the case name.
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Re: Unfair Labor Practice Charge

Post  mcarson on Fri Nov 06, 2009 8:53 am

Is the Wright Line test the one you were referring to? I'm still looking for any cases specific to a pretextual RIF, as it would seem to be more difficult to prove than other pretextual reasons for discharge. By the way, I sent you an email Eric.
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Re: Unfair Labor Practice Charge

Post  mcarson on Tue Dec 15, 2009 2:36 am

Okay so the field examiner contacted me today stating that they will be dismissing the charge because they believe it lacks merit. I will most likely be appealing it. I just talked with an attorney who does ULP cases. She says their firm normally represents unions in NLRA cases, not individuals, however I'm hoping they will consider taking my case.

One issue is that the evidence the employer has submitted is confidential at this preliminary stage. I feel I need to be able to review the employer's submitted evidence in order to rebut it. The system seems pretty unbalanced to me. My understanding is this: If the regional office finds in your favor and they employer refuses to settle, the case will go before a ALJ and any evidence I have submitted will be introduced and the employer will have the opportunity to rebut my evidence. On the other hand, if the regional office determines that your case lacks merit then you are not able to review the employer's evidence and you basically need to appeal with the same information you already have. Operating in this fashion, the procedures heavily favor the employer and put them in a much better position to defeat the case.

The other hurdle I may have to overcome is that I didn't exhaust administrative procedures, that is I didn't file a grievance with the union before filing a charge with the NLRB. Now the NLRB didn't dismiss the charges on those grounds, however the attorney sees this as a possible issue. I'm wondering if the grievance process must always be exhausted or if it only must be exhausted if the language of the CBA specifically states that this sort of "problem" must be resolved through the grievance process.

I have a copy of the CBA and affidavit if anyone would like to review it. Thanks for all the help
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