Monday, March 23, 2020

UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS BOARD REGION 32, SUNSET CULTURAL CENTER and ANDREW HURCHALLA, an Individual (CASE NO. 32-CA-242555): GENERAL COUNSEL’S BRIEF TO THE ADMINISTRATIVE LAW JUDGE & CLOSING BRIEF OF RESPONDENT SUNSET CULTURAL CENTER

ABSTRACT: RE: UNITED STATES OF AMERICA NATIONAL LABOR RELATIONS BOARD REGION 32, SUNSET CULTURAL CENTER and ANDREW HURCHALLA, an Individual (CASE NO. 32-CA-242555), the NATIONAL LABOR RELATIONS BOARD SUNSET CULTURAL CENTER Case page is reproduced; the document copies of GENERAL COUNSEL’S BRIEF TO THE ADMINISTRATIVE LAW JUDGE by Lelia M. Gomez, Esq., Counsel for the General Counsel, National Labor Relations Board, Region 32, dated March 20, 2020 and the CLOSING BRIEF OF RESPONDENT SUNSET CULTURAL CENTER by Rona P. Layton, Layton Law Firm, submitted on March 19, 2020, are embedded. The CONCLUSION of the GENERAL COUNSEL’S BRIEF TO THE ADMINISTRATIVE LAW JUDGE states: Based on the forgoing, Counsel for the General Counsel respectfully requests that the Administrative Law Judge issue a recommended order requiring Respondent to fully remedy the above-described violation, rescind its permanent “do not dispatch” status against Hurchalla, cease and desist from further unlawful conduct, post the proposed Notice to Employees at Respondent’s facility, and order such other relief as may be necessary and appropriate to effectuate the policies and purpose of the Act. And the CONCLUSION of the CLOSING BRIEF OF RESPONDENT SUNSET CULTURAL CENTER states: For all of those reasons, Respondent Goodwill Central Coast requests that the complaint in this case be dismissed.

 

SUNSET CULTURAL CENTER


Case Number: 32-CA-242555
Location: Carmel, CA
Date Filed: 06/03/2019
Region Assigned: Region 32, Oakland, California
Status: Open

Docket Activity

Document
Issued/Filed By
03/20/2020
Counsel for GC / Region
03/19/2020
Employer
01/30/2020
NLRB - ALJ
12/23/2019
NLRB - ALJ
10/29/2019
RD Order to Reschedule Hearing*
NLRB - GC
10/24/2019
RD Order to Reschedule Hearing*
NLRB - GC
09/15/2019
Answer to Complaint*
Charged Party / Respondent
09/03/2019
Complaint and Notice of Hearing*
NLRB - GC
09/03/2019
Notice of Hearing in ULP Case*
NLRB - GC
06/03/2019
Initial Letter to Charged Party*
NLRB - GC
06/03/2019
Initial Letter to Charging Party*
NLRB - GC


The Docket Activity list does not reflect all actions in this case.
* This document may require redactions before it can be viewed. To obtain a copy, please file a request through our FOIA Branch.

Allegations

·     8(a)(3) Discharge (Including Layoff and Refusal to Hire (not salting))

Participants

Participant
Address
Phone
Charged Party / Respondent
Legal Representative
RONA LAYTON
LAYTON LAW FIRM
111 N Market St Ste 300
San Jose, CA
95113-1116
(408)892-9870
Charged Party / Respondent
Employer
SUNSET CULTURAL CENTER
P.O. Box 1950
Carmel By The Sea, CA
93921
(831)620-2040
Charging Party
Individual

REFERENCE:
Basic Guide to the National Labor Relations Act
General Principles of Law Under the Statute and Procedures of the National Labor Relations Board
Unfair Labor Practices of Employers
Section 8(a)(3)—Discrimination Against Employees. Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate against employees “in regard to hire or tenure of employment or any term or condition of employment” for the purpose of encouraging or discouraging membership in a labor organization. In general, the Act makes it illegal for an employer to discriminate in employment because of an employee’s union or other group, activity within the protection of the Act. A banding together of employees, even in the absence of a formal organization, may constitute a labor organization for purposes of Section 8(a)(3). It also prohibits discrimination because an employee has refrained from taking part in such union or group activity except where a valid union-security agreement is in effect. Discrimination within the meaning of the Act would include such action as refusing to hire, discharging, demoting, assigning to a less desirable shift or job, or withholding benefits.
The union security exception to Section 8(a)(3). As previously noted, Section 8(a)(3) provides that an employee may be discharged for failing to make certain lawfully required payments to the exclusive bargaining representative under a lawful union-security agreement. For a fuller discussion of this issue, see pages 2–3, above.
Even when there is a valid union-security agreement in effect, an employer may not pay the union the dues and fees owed by its employees. The employer may, however, deduct these amounts from the wages of its employees and forward them to the union for each employee who has voluntarily signed a dues “checkoff” authorization. Such checkoff authorization may be made irrevocable for no more than a year. But employees may revoke their checkoff authorizations after a Board-conducted election in which the union’s authority to maintain a union-security agreement has been withdrawn.
The Act does not limit employer’s right to discharge for economic reasons. This section does not limit an employer’s right to discharge, transfer, or layoff an employee for genuine economic reasons or for such good cause as disobedience or bad work. This right applies equally to employees who are active in support of a union and to those who are not.
In situations in which an employer disciplines an employee both because the employee has violated a work rule and because the employee has engaged in protected union activity, the discipline is unlawful unless the employer can show that the employee would have received the same discipline even if he or she had not engaged in the protected union activity.
An employer who is engaged in good-faith bargaining with a union may lock out the represented employees, sometimes even before impasse is reached in the negotiations, if it does so to further its position in bargaining. But a bargaining lockout may be unlawful if the employer is at that time unlawfully refusing to bargain or is bargaining in bad faith. It is also unlawful if the employer’s purpose in locking out its employees is to discourage them in their union loyalties and activities, that is, if the employer is motivated by hostility toward the union. Thus, a lockout to defeat a union’s efforts to organize the employer’s employees would violate the Act, as would the lockout of only those of its employees who are members of the union. On the other hand, lockouts are lawful that are intended to prevent any unusual losses or safety hazards that would be caused by an anticipated “quickie” strike. And a whipsaw strike against one employer engaged in multiemployer bargaining justifies a lockout by any of the other employers who are party to the bargaining.
Examples of violations of Section 8(a)(3). Examples of illegal discrimination under Section 8(a)(3) include:
• Discharging employees because they urged other employees to join a union.
• Refusing to reinstate employees when jobs they are qualified for are open because they took part in a union’s lawful strike.
• Granting of “superseniority” to those hired to replace employees engaged in a lawful strike.
• Demoting employees because they circulated a union petition among other employees asking the employer for an increase in pay.
• Discontinuing an operation at one plant and discharging the employees involved followed by opening the same operation at another plant with new employees because the employees at the first plant joined a union.
• Refusing to hire qualified applicants for jobs because they belong to a union. It would also be a violation if the qualified applicants were refused employment because they did not belong to a union, or because they belonged to one union rather than another.


GENERAL COUNSEL’S BRIEF TO THE ADMINISTRATIVE LAW JUDGE
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
REGION 32
SUNSET CULTURAL CENTER and ANDREW HURCHALLA, an Individual
Case 32-CA-242555
Lelia M. Gomez, Esq.
Counsel for the General Counsel
National Labor Relations Board, Region 32

CLOSING BRIEF OF RESPONDENT SUNSET CULTURAL CENTER
UNITED STATES OF AMERICA
NATIONAL LABOR RELATIONS BOARD
REGION 32
SUNSET CULTURAL CENTER and ANDREW HURCHALLA, an Individual
CASE NO. 32-CA-242555
Rona P. Layton
Layton Law Firm


United States Government
NATIONAL LABOR RELATIONS BOARD
Division of Judges
901 Market Street — Suite 485
San Francisco, CA 94103-1779
Phone (415) 356-5255 Fax 415.356.5254
December 20, 2019

 United States Government
NATIONAL LABOR RELATIONS BOARD
Division of Judges
901 Market Street — Suite 485
San Francisco, CA 94103-1779
Phone (415) 356-5255 Fax 415.356.5254
January 30, 2020

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