text:
NLRB v. CITY DISPOSAL SYSTEMS, INC.
- 1980-1989
Legal provision: National Labor Relations, as amended
Chief Justice Warren E. Burger: We'll hear arguments next in National Labor Relations board against City Disposal Systems.
Mr. Come, I think you may proceed whenever you are ready.
Mr. Chief Justice, and may it please the Court:
This case, which is here on certiorari to the Sixth Circuit, involves the propriety of the Labor Board's conclusion that an individual employee's honest and reasonable assertion of a right that is provided for in a collective bargaining agreement, whose concerted activity was in the meaning of Section 7 of the National Labor Relations Act.
The underlying facts briefly are as follows: Respondent hauls garbage for the City of Detroit from a drop-off point to a landfill some 37 miles away.
The garbage is hauled by tractor trailers and normally a driver is assigned to a certain tractor trailer and when his vehicle is in for repairs he may be assigned to another one.
Respondent is a party to a collective bargaining agreement with the local Teamsters Union covering its drivers.
Section 1 of Article XXI of the Agreement provides that the employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition or equipped with the safety compliances prescribed by law.
It further provides that it shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified.
A further provision of the Agreement provides that the employer shall not ask or require any employee to take out equipment that has been reported by any other employee as being in unsafe operating condition unless the same has been approved as being safe by the mechanical department.
James Brown was a driver for the Respondent.
He normally drove Truck No. 245.
On Saturday, May 12, 1979, he had a near accident with Truck No. 244 driven by another employee, Frank Hamilton, when the brakes on 244 would not stop the truck at a landfill.
Hamilton took Truct 244 back to the drop-off point and with Brown present the mechanics told him that the truck would be fixed over the weekend or the first thing Monday morning.
Brown returned to work at 4:00 a.m. on Monday, May 14th.
He took out his Truck 245 to the landfill and found that the fifth wheel had a problem.
He returned to the drop-off point, talked to the mechanics and learned that the truck could not be fixed that day.
He then spoke to his supervisor, Jasmund, who told him to punch out and go home after confirming that Brown's truck could not be fixed.
Brown punched out, but remained in the driver's room, at which point Jasmund returned and requested Brown to drive Truck 244.
Brown said he would not do so since 244 had a brake problem.
Jasmund instructed Brown to go home and the two had a heated exchange.
Another supervisor, Madary, came on the scene, and when Brown reported that 244 had problems, Madary replied that half the trucks around here have problems and if Respondent tried to deal with all of them it would be unable to do business.
During the conversation, Brown asked, Bob, what are you going to do, put the garbage ahead of the safety of the men?
Madary did not reply nor did he or Jasmund make any attempt to show Brown that Truck 244 had, in fact, been repaired and was safe.
Brown went home and later that day he was discharged.
The Union's Recording Secretary received notice of the discharge that day and he and Brown returned to the plant and sought to get Jasmund and Madary to put Brown back to work, but they refused to do so.
The next day Brown filed a written grievance under the collective bargaining agreement alleging that he had been discharged in violation of the contract.
The Union declined to pursue Brown's grievance beyond the first step of the grievance procedure.
Unidentified Justice: Does the record show why?
Norton J. Come: The record indicates, in Respondent's Exhibit 10, which is not printed in the Joint Appendix, but which is in the record, that they found no merit to the grievance.
Apparently the truck was driven later that afternoon by another employee.
Unidentified Justice: Mr. Come, if then the employee had filed a 301 suit against the employer for an illegal discharge, in order to win that, he would have had to prove a breach of the fiduciary duty that the Union owed him, wouldn't he?
If he didn't allege that, it would be dismissed.
Chief Justice Warren E. Burger: Under fact cites that is right, Your Honor.
Unidentified Justice: So that... But, instead of doing that, he now files with the Board, is that it?
Norton J. Come: He filed an unfair labor practice charge with the Board.
The Board, upholding the decision of its Administrative Law Judge, concluded that the Respondent had violated 8(a)(1) of the National Labor Relations Act by discharging Brown.
Unidentified Justice: Mr. Come?
Norton J. Come: Yes, sir.
Unidentified Justice: I read the Administrative Law Judge's findings fairly carefully and I am interested to know what is the Board's position as to the reason that the Administrative Law Judge assigned that the company used to discharge Brown?
Why did the Administrative Law Judge think that Brown had been discharged?
I don't want exact quotes, but--
Norton J. Come: The Administrative Law Judge found that Brown had been discharged for asserting his contract rights not to drive an unsafe truck; that he had a good faith and a reasonable belief at least that the truck was unsafe and that under the Board's Interboro Doctrine the assertion of a reasonable and good faith contract claim is concerted activity protected by Section 7 of the Act.
Unidentified Justice: --What if the company contend that Brown was discharged for failing to obey an order, an order to get back and drive 244?
Now, would the Board's response still be the same?
Norton J. Come: I think it would, Your Honor, because the... If, in fact, Brown was engaging in concerted activity protected by Section 7, the mere fact that the company classified as as insubordination would not remove the protection of Section 7.
There is an issue in this case which was not reached by the Sixth Circuit and would be open on remand; namely, whether or not Brown, in fact, was refusing to drive this truck because of good faith beliefs that it was unsafe or whether there were other reasons for his refusal.
Unidentified Justice: You are saying Brown is purported to exercise the rights given him by a promise in the contract?
Norton J. Come: That is correct.
Unidentified Justice: A promise that the employer made.
Norton J. Come: That is correct, Your Honor.
Unidentified Justice: Now, suppose there weren't any specific promises about equipment, but the employer promised never to discharge anyone without proper cause.
I think that is a normal promise, isn't it?
You don't discharge people without proper cause.
So, the same facts happened and Brown... and he was fired and he claimed that that wasn't good enough cause.
All I did was... I didn't want to drive a truck without brakes and he took it to a grievance and the Union refused to press it and then he filed an unfair labor practice proceeding.
Don't you, in effect, say that any breach of the employer of the collective bargaining contract is an unfair labor practice if it results in a discharge and regardless of whether or not the Union could or would ever be held guilty of a refusal to fairly represent employees?
Norton J. Come: Well, I think that you may have to separate out a couple of problems in your hypothetical example.
Unidentified Justice: It has them there, I know that.
Norton J. Come: The Board's basic position is that the right of an individual to assert a contract right in good faith and in reason--
Unidentified Justice: Such as the right not to be fired without good cause even.
Norton J. Come: --is protected by Section 7 against reprisal for asserting that right.
Now, it does not follow, however, that every assertion of a right under a contract can be followed by a refusal to work if you are not granted your claim, because if there is a no-strike clause in the contract, the activity, though it may be concerted might forfeit the protection of Section 7.
Now, in this case, you do have a work refusal, however, the question of whether that would render the activity unprotected in our view is not presented in this case because Respondent did not raise that issue either before the Board or the Court of Appeals.
The only issue that he raised, apart from the factual one as to whether or not, in fact, it was safety that motivated him, was whether the activity was concerted where it involved merely the action of an employee acting alone.
Unidentified Justice: And that is the Interboro Doctrine?
Norton J. Come: That is the Interboro Doctrine.
Unidentified Justice: Okay.
I would like to ask you a hypothetical question about the Interboro Doctrine.
Supposing that a collective bargaining agreement provided that in the event of a dispute over an obligation to work overtime the employee had to work overtime as requested and file a grievance later.
And suppose an employee operating under that contract refused to do the overtime and simply walked off the job.
Now, would the Interboro Doctrine protect him even though he had not complied with the contract?
Norton J. Come: I don't think it would in that circumstance, Your Honor, because the contract there specifically made it clear, as I understand the example, that--
Unidentified Justice: Well then don't you have a problem with the Board's treatment of the contract here, because, as I understand the contract provision that he was working under, it didn't provide that his refusal to work on the basis of safety would need only be honestly and reasonably held.
I think the contract requires more objective justification, yet the Board has simply substituted its own term, I think, for the safety provision.
Norton J. Come: --No, Your Honor, that is not the position that we are urging here on our reading of the Administrative Law Judge's findings which the Board adopted, although to be sure, in some Board decisions, there is some confusion as to whether the Board is applying a purely subjective standard or whether it requires that the refusal not only be in good faith, but reasonable.
The facts of those cases will show that the decision rests not only upon the subjective standard, but there has to be some objective basis that makes the employee's claim reasonable.
And, the ALJ here so found in both respects and that is the question we are presenting here and that is the submission that we are making.
Unidentified Justice: Well, is it slightly reasonable to protect the people in Detroit from hugh sludge trucks running around without brakes?
Norton J. Come: I believe it is, Your Honor, and for that reason I believe that is why the parties negotiated the kind of contract clause that you have here which guarantees the employee not only a safe truck, but it provides that it shall not be a violation of this agreement where employees refuse to operate such equipment unless such refusal is unjustified.
But, a point that I want to make though is that as we view the record in this case the unprotected aspect on which the Respondent dwells at great length in its brief here is not presented in this case.
The only issue that was presented here is whether or not the fact that the employee acted alone in forcing a collectively bargained right made it not concerted activity.
That is the Interboro Doctrine.
That is the basis on which the Court of Appeals affirmed Respondent's position and for that theory it makes no difference whether the employee here had merely protested driving an unsafe truck and was fired for making the protest or whether he momentarily hesitated or whether, in fact, he refused to drive as he did here.
Unidentified Justice: Would he have had to have protested at all to invoke the Interboro Doctrine?
Norton J. Come: Well, I think he has to give the employer some indication that it is a contract right that he is claiming.
Unidentified Justice: Well, suppose he does exactly what he is told up to a point, then just refuses, walks off, gets fired, just the way it happened here, except he doesn't make any statement at all at the time and the next day he files a grievance, as I believe he did here.
Is the mere filing of that grievance a sufficient protest to invoke the Interboro Doctrine?
Norton J. Come: I think that it would be because, as a matter of fact, even the courts that have disapproved or rejected the Interboro Doctrine and there is a conflict in the circumstance, feel that to discharge an employee for filing a grievance is a violation of 8(a)(1) because filing a grievance is, though it is filed by an individual employee, concerted activity.
Unidentified Justice: Would the Board recognize any distinction between firing this person... firing him because he filed a grievance as opposed to firing him because he refused to carry out a lawful order?
Norton J. Come: Well, in some cases, it would, but as I tried to explain, in many cases where it would be a breach of a no-strike clause to refuse to work the activity would forfeit the protection of Section 7.
That is not the case here because of the special contract clause here which, in effect, is an exception to the no-strike clause, undoubtedly for the reason that Justice Marshall pointed out, that in the safety situations it is often a small comfort to have the right to file a grievance after you have risked your life and lost.
Unidentified Justice: But, the Interboro Doctrine isn't limited to safety at all, is it?
Norton J. Come: No, it is not limited to safety, but the point I am trying to make is that the Interboro Doctrine deals essentially with the issue that is here; namely, whether or not an individual's assertion of a contract right in good faith and reasonably based is concerted activity for purposes of Section 7.
Unidentified Justice: Of course, if the answer is yes, as you say it is, and the Board thinks it is, then the Board immediately proceeds to determine whether this contract right, which is a protected right, has been violated.
And, here, it would be whether or not the employee actually had some reasonable grounds for his actions and if he did, why, there is an unfair labor practice.
Isn't that... It is as simple as that.
And they would also do that even if this case had gone right straight to arbitration and the arbitrator had decided that he had been properly fired.
Norton J. Come: Then you get into the further question--
Unidentified Justice: Yes.
Norton J. Come: --as to the circumstances under which the Board will defer to the arbitrators.
Unidentified Justice: Suppose the employee had never asked the Union to... anything and suppose no grievance had been filed.
Why couldn't the employee, if this is an unfair labor practice, why can't the employee go right to the Board and forget the whole grievance machine?
All he has to do is say I have a right, it is a joint right, I am expressing a collective right under the contract, and it was violated by the employer.
Norton J. Come: He could.
Unidentified Justice: So, the employee never needs to exercise the machinery.
That would just make mincemeat of the contract, wouldn't it?
Norton J. Come: No, it would not.
I mean the Section 7 rights can operate in tantem with contract rights.
Unidentified Justice: Well, Mr. Come, does the Board make it a practice, when the employee, in fact, initiates a grievance procedure, does the Board make it a practice to pursue a complaint in cases like this?
Interboro says you may, but what is the Board's practice?
Does it do it as a matter of practice?
Norton J. Come: For a time under the Collier Doctrine the Board would defer in these situations where there was available a grievance arbitration.
Unidentified Justice: And tell the employee go that route even if he hadn't started?
Norton J. Come: If that were available.
The current Board policy is not to defer unless the employee or the Union has pursued the grievance procedure and there has been a determination.
Unidentified Justice: By an arbitrator.
Norton J. Come: By an arbitrator.
Unidentified Justice: You mean if initiated when the complaint is filed, but not completed, that is the arbitration proceeding, the Board then proceeds?
Norton J. Come: Well, if it has been initiated, they will wait.
Unidentified Justice: They will wait.
It was completed here.
Norton J. Come: Well, it wasn't completed in any formal--
Unidentified Justice: They filed a grievance.
It was rejected and the Union refused to go any further so that terminated the entire procedure.
Norton J. Come: --Well, the Union has, as Your Honor pointed out, I believe, a lot of reason why they do not proceed with the grievance.
Unidentified Justice: But, their regular policy now is that not to defer in circumstances like... in this case.
Norton J. Come: That is correct.
Unidentified Justice: Even if a grievance has been filed, it has been rejected by the employer, and then the Union refuses to carry it any further, the Board regularly does not defer.
Whereas, if it goes to... If the Union agrees to take it to arbitration and that proceeding is not completed, then it will defer.
But now if there is an arbitrator's decision there against the employee, what then?
Norton J. Come: Well, the Board will look to see whether that complies with the Spielberg criteria, whether or not the procedure was fair and regular, whether the determination is consistent with the polices of the Act and whether the arbitrator, in fact, decided the statutory issue.
Unidentified Justice: So, they sort of sit in review of the arbitrator?
Norton J. Come: Well, not to determine his fact findings, redetermine his fact findings.
However, the issue before the Board and the arbitrator is not necessarily the same as the Second Circuit pointed out in the Interboro case which was the first performance of this Doctrine.
The arbitrator is enforcing the contract.
What the Board does under Interboro is to protect the employee's right to make a contract claim and in order to encourage the employee to exercise his rights under the contract, the Board merely requires a good faith, reasonable assertion of that right, because otherwise, as Judge MacKinnon pointed out in the Banyard case, which is cited in our brief, employees would be discouraged from asserting their contract rights except in the clearest cases.
So that Interboro, in effect, gives through Section 7, a little more than a contract does in order to ensure that what the employees bargained for under the contract they really get.
I would like to save the rest of my time for rebuttal.
Chief Justice Warren E. Burger: Mr. Ufer?
Robert P. Ufer: Mr. Chief Justice, and may it please the Court:
Regarding the factual background of this matter, it is Respondent's position that four facts clarify the very narrow scope of the issues presented by this case.
First, Mr. Brown did not warn or attempt to warn any other employees of the alleged unsafe condition of the truck.
He made no verbal communication, he made no bulletin-board message, he simply went home, having never inspected the truck or driven the truck for over a year prior to the morning he refused to drive.
Unidentified Justice: I thought he was told to go home.
Robert P. Ufer: His final instruction by both supervisors--
Unidentified Justice: His preliminary instruction, he was told to go home.
Robert P. Ufer: --There was some confusion in the record as to that point, Justice Blackmun.
His final instruction, which Respondent submit is a binding instruction upon that employee, was to drive the truck and he refused to drive the truck.
As indicated on the dismissal sheet which is in the Joint Appendix, he was discharged for disobeying orders, refusing to drive Truck 244.
Unidentified Justice: Well, we don't have to decide here, do we?
Robert P. Ufer: No, that is not an issue before the Court at this time.
Continuing with the facts about Brown, Brown did not ask for his Union steward or seek Union assistance of any nature on the morning of May 14th when he refused to drive the truck.
In fact, another employee drove that truck the same morning without incident and the following two days the truck was driven on its regular shift.
The fourth factual point that we believe is of critical importance in this case is that all the parties had agreed to binding grievance arbitration as the collective bargaining agreement dispute resolution procedure.
Now, against this factual background, both the Board and the Sixth Circuit found individual action by Brown and the Board seeks to utilize the fiction of constructive concerted activity under the Interboro Doctrine to bring an individual employee's refusal to perform assigned work within the scope of Section 7 and to activate the Board machinery to resolve a collective bargaining agreement dispute.
Unidentified Justice: Well, would you... I take it you wouldn't be here if Brown had said I won't drive the truck because of the brakes and because I have a right under the contract not to drive a truck with bad brakes.
Then, if he was ordered to drive and he refused--
Robert P. Ufer: If he articulated... If the reason for his dismissal was the articulation of the grievance, that is correct.
We would not be here and we have indicated that in our brief.
In this case, the reason for his dismissal was the refusal to drive the truck, not to the submittal of the grievance.
The submittal of the grievance came--
Unidentified Justice: --Are you on firm ground so far as the findings by the Administrative Law Judge and the Board are concerned?
Did the Administrative Law Judge find the facts as you say they are?
Robert P. Ufer: --The indication... The Administrative Law Judge's opinion is that Brown was discharged for refusing to follow a company order.
There is not a holding by the Administrative Law Judge that he was discharged for filing a grievance.
Unidentified Justice: I read it over and I frankly was confused as to which of those it was.
Robert P. Ufer: I think--
Unidentified Justice: Wasn't he... Isn't it clear though that he refused to work... He refused to work because of his concern about the brakes and that the Board and the Administrative Law Judge found that he was exercising a contract right in refusing to do so?
Robert P. Ufer: --The Board... It is our position that the Board does not... The arbitrator has provided for... Under the collective bargaining agreement, the arbitrator is to make a decision as to whether or not Brown's conduct was justified when he refused to drive the truck under Section XXI of the collective bargaining agreement.
In this case, we submit that what the Board does, as indicated in its American Freight decision, it will come in and apply a lesser standard, essentially subjective, good faith standard, not the standard determined and agreed upon by the parties to the contract.
And, for that reason, we don't believe the Board made that determination or had the right to make that determination.
We respectfully submit that Section 7 of the National Labor Relations Act should be interpreted by this Court according to it plain meaning.
We believe this is consistent with the legislative history.
Unidentified Justice: But, the point you just made wouldn't be foreclosed even if it were found that what he was exercising was a collective right.
Robert P. Ufer: That is correct.
Unidentified Justice: You can still argue that it would be a collective right, but the Board is just misapplying the Act unless it wait for the arbitrator.
Robert P. Ufer: That is correct.
Unidentified Justice: Or it still has to be corrected to be--
Robert P. Ufer: Both issues are raised in this case.
Counsel for the Board has indicated that we have not raised the protected issue.
It is our position that in exception number one we specifically raised the issue whether Brown's refusal to drive the work... I believe the language that we utilized in that situation was... We made the exception whether the charging party, James Brown was engaged in concerted activity protected by Section 7 of the Act when he refused to drive the truck.
So, it is our position that both the protected and the concerted issues are raised in this case and under either ground there is no basis for an unfair labor practice.
Unidentified Justice: --You are defending the decision below that this was not an exercise of a collective right?
Robert P. Ufer: That is correct.
Unidentified Justice: But, you are defending that position.
Robert P. Ufer: We are defining that position.
We are also defending the position that it is not protected in that rather than working and grieving he walked off the job.
That violates the no-strike cause which is very broad in this contract.
And, even if Mr. Brown had been accompanied by five other employees, had they simply walked off the job while the conduct may have been concerted under Section 7, it would not have been protected.
That is our position.
Unidentified Justice: Let me get back to the facts again.
Is it admitted that this very truck almost had an accident which his truck the day before?
Robert P. Ufer: It was two days before.
Unidentified Justice: Because of its brakes?
Robert P. Ufer: Justice Marshall, two days before there was almost an accident at the landfill, but the driver of the truck at that time continued to drive the subject truck and when he took it back to the mechanics, the mechanics told him they would fix it over the weekend or first thing Monday morning.
Mr. Brown came in after having already made a run Monday morning.
He then never went to the truck to make an inspection as required by company policy.
Unidentified Justice: Is all of your answer yes to my question?
Robert P. Ufer: All of my answer--
Unidentified Justice: The question is is that the same truck that almost had an accident with him two days before?
Robert P. Ufer: --It was the same truck.
Unidentified Justice: Your answer is yes.
Robert P. Ufer: That is correct.
Unidentified Justice: May I ask you a question while we have got you interrupted?
Just on the issue of concerted activity, putting aside all the protected questions, and you made reference to the plain language of the statute, you would agree, as I understand it, that if he had been discharged for filing a grievance without regard to its merits that that would be covered by the Act and that would be a concerted activity?
Robert P. Ufer: If that was the motivation for his discharge, that is correct.
Unidentified Justice: How is that... Why is that any more concerted than what was involved here just looking at the requirement of joint action?
Robert P. Ufer: I don't believe this Court has spoken to that issue.
A number of circuit courts that have spoken to that issue have found the submittal of a grievance, the formal submittal of a grievance to be concerted and they may have gone on the ground that policy considerations, that that furthers the grievance arbitration procedure and dispute resolution mechanism.
Unidentified Justice: But, you are prepared to assume for purposes of your argument that that individual action is "concerted" within the meaning of the Act?
Robert P. Ufer: A formal assertion of a contract violation and the formal grievance, if the motivation... and we would, under the analysis this Court set forth in Bernhart and Sims, if the motivation is the submittal of that grievance and not the underlying--
Unidentified Justice: Now you are focusing on the employer's motivation--
Robert P. Ufer: --That is correct.
Unidentified Justice: --in order to decide whether the employee's action was concerted.
Robert P. Ufer: That is correct.
In order to constitute an unfair labor practice, you need in the first instance--
Unidentified Justice: I understand that, but I am just interested in the word "concerted" at this point.
Robert P. Ufer: --Fine.
We are conceding that a formal grievance submittal, that act in and of itself, is concerted.
Unidentified Justice: So once you make that concession... I find it hard to accept your plain language argument.
That is the reason I want to be sure I understood you correctly.
Robert P. Ufer: We think there is some kind of contradiction in that regard.
We acknowledge that difficulty.
In the face of the circuit court decisions, I think, again, they went under the policy considerations to promote the grievance and to make sure there isn't a chilling effect of the access to grievance and they indulge... I think possibly you might under the Mushroom Transportation test, where you are preparing for or inducing concerted activity, that that explains a grievance situation or very possibly a grievance situation could be explained under the assisting labor organizations, the earlier language in Section 7 of the Act, and that it does not have to go--
Unidentified Justice: There was a grievance filed here, wasn't there?
Robert P. Ufer: --There was not a grievance at the time of the discharge.
There was a grievance subsequent in time.
I believe it was filed the next morning.
It is very clear in this case--
Unidentified Justice: So, again, why would his assertion be any less concerted than an actual grievance?
Robert P. Ufer: --We believe that in that situation, if the Court is going to find--
Unidentified Justice: In these facts, when he was fired, there was no grievance?
Robert P. Ufer: --That is correct.
Unidentified Justice: But, he was asserting the very right that they filed a grievance over.
Robert P. Ufer: The record is clear that there is no reference whatsoever to the collective bargaining agreement by Mr. Brown.
There is simply a confrontation between Mr. Brown and his supervisor where his supervisor is instructing him to drive the truck and Brown is saying he does not want to drive the truck and that the truck is unsafe.
There is no reference to any term or section of the collective bargaining agreement.
There is no mention of the word "grieve" or even the term "collective bargaining agreement", nor does he ask for his Union steward or for an Union official.
And, in that case we would distinguish this situation from a formal grievance for those reasons.
Unidentified Justice: When did he refuse to drive the truck?
Robert P. Ufer: On the morning--
Unidentified Justice: When he refused in the evening, why didn't that give rise to a grievance right then and there even without waiting until the following morning when he could contact the business agent or the shop steward?
Robert P. Ufer: --I believe, in fact, he made contact with his shop steward and came in that afternoon.
And, what we are saying, to come within the protection of Section 7, an employee has got to afford the employer some notice as to what it is that he is doing besides simply stating--
Unidentified Justice: Should he drive the truck in the meantime?
Robert P. Ufer: --He should drive the truck in the meantime.
He has... It is Respondent's position that if he does not drive the truck... If he makes the unilateral, individual determination not to drive the truck, then he has either got to come within the justified language set forth in the collective bargaining agreement as found by the Union and ultimately an arbitrator to excuse his refusal or he must come within the standard in Section 502 of the National Labor Relations Act where Congress spoke specifically and established a standard where an individual employee can refuse to undertake a job assignment.
That standard is clearly a higher standard of abnormally dangerous condition in an objective showing as this Court indicated in the Gateway Coal decision.
Unidentified Justice: The only way that I could be protected, because I drive an automobile, from a truck with no brakes is for a man to go on and drive it.
Robert P. Ufer: I believe what he would have to do is make a showing--
Unidentified Justice: I think you said a minute ago that his only way was he would have to drive the truck and I am sure you didn't mean that.
Robert P. Ufer: --What I meant to say, Justice Marshall, is that if he does not drive the truck, if he makes that determination, then he does so at his peril and he must be vindicated by the arbitrator.
And, if the arbitrator finds--
Unidentified Justice: If he knows the truck has no brakes, he has to drive it?
Robert P. Ufer: --He has to... There has to be--
Unidentified Justice: On the road with me?
Robert P. Ufer: --He has to make--
Unidentified Justice: If you want me to make that ruling, I am not going to make it.
Robert P. Ufer: --Justice Marshall, what I would want in this case would be consistent with company policy that if he is going to refuse to drive the truck at a minimum he inspect the truck to ascertain whether or not it has been fixed.
In this case, it is company policy to inspect the truck and it is clear from the record he never went anywhere near the truck nor had driven the truck for a year prior to his refusing to drive it.
Another driver drove that same truck without incident later that morning.
So, in that setting, we are stating that the dismissal was justified.
Unidentified Justice: I take it the company is lucky.
What is the fact with respect to what repairs had been made over the... in that interval?
Robert P. Ufer: The record is silent, Mr. Chief Justice.
Unidentified Justice: Then what should the Administrative Law Judge do, treat that as a presumption that the condition had remained unchanged from Friday night until Monday morning?
Robert P. Ufer: I think, consistent with the Union determination that the grievance didn't have merit, that the substantial evidence in this case would indicate that where he does not inspect the truck, contrary to company policy, and where the truck is that same morning driven by another employee without incident, I think in that situation that the logical inference and reasonable inference is that the truck had been repaired, but the record is silent as to that point.
Unidentified Justice: Then the case comes down to whether or not this was a contumacious refusal even to determine the facts.
Is that the position of the employer, this employee was guilty of that kind of conduct?
Robert P. Ufer: That is correct.
We believe, returning to the definition of concerted, looking to the legislative history of the National Labor Relations Act, did Congress indicate anything that would indicate something other than a plain meaning interpretation of concerted.
We submit there is nothing to that effect.
On the contrary, Congress spoke in two important regards that support a plain-meaning interpretation in this case.
In proposed Section 8(a)(6) in the Taft-Hartley amendment, Congress considered and specifically rejected this section 8(a)(6) which would have made an employer's collective bargaining agreement contract violation an unfair labor practice.
We submit that the Board's Interboro Doctrine effectuates the very end that Congress considered and rejected when it adopted Section 8(a)(6).
The Interboro Doctrine transforms alleged collective bargaining agreement violations and in some instances non-violation into unfair labor practices at the option of the employee.
In the C & C Plywood case, before this Court which involved the unilateral company implementation of a premium pay plan during the terms of a collective bargaining agreement, this Court reviewed the Section 8(a)(6) legislative history and specifically concluded that Congress had not given the Board the broad generalized jurisdiction to determine the rights of parties under all collective bargaining agreements, that Congress has specifically chosen to leave collective bargaining agreement enforcement to the usual processes of law under Section 301.
We believe Interboro contravenes this principle of C & C Plywood.
Congress spoke in another regard.
They implemented Section 502 of the Act and provided a specific safety standard to allow immediate work stoppage.
We submit there is no justification for the Board to use the Interboro Doctrine to construe a lesser standard from within this very same Act.
In the Gateway Coal decision, this Court interpreted Section 502 as not allowing work stoppages under the slender thread of subjective judgment.
There was a need for objective evidence of an abnormally dangerous condition as required in Section 502, yet the Board, through the Interboro Doctrine construes a subjective standard in many instances in contravention of 502 and in contravention of the Gateway Coal holding.
We respectfully submit to affirm the Interboro Doctrine is to disregard this legislative history and this Court's pronouncements in C & C Plywood and in Gateway Coal and it is to allow the Board to expand its jurisdiction contrary to unambiguous language in Section 7 and Congress' clear intention.
Faced with a problem of the Act's plain meaning and the legislative history surrounding Section 502 and proposed Section 8(a)(6)--
Unidentified Justice: As I understand the Court of Appeals, it said that even if Brown was exercising a right under the contract, he wasn't exercising a right protected by Section 7, because he was doing it just for his own account.
Robert P. Ufer: --That is correct.
Unidentified Justice: Only for himself.
Robert P. Ufer: That is correct.
Unidentified Justice: Now, do you defend that?
Robert P. Ufer: We do.
We believe--
Unidentified Justice: Suppose you are wrong on that.
Suppose we disagreed with you on that narrow ground which is the ground of Court of Appeals relied on.
Shouldn't we send it back?
Robert P. Ufer: --We believe in this case it is established in the record that his action, if it were found to be concerted, it is nevertheless not protected in that it is a violation of the no-strike clause also.
Unidentified Justice: That may be, but you are now defending the decision on an alternate ground.
Robert P. Ufer: That is correct.
Unidentified Justice: Which you have a perfect right to present, but we certainly don't have to rule on it.
Robert P. Ufer: That is correct.
Unidentified Justice: I suppose that issue was before the Court of Appeals.
Robert P. Ufer: We believe it was and the Court of Appeals, when it expressed its complete agreement with the Kohls decision of the D.C. Circuit, we believe that that incorporated the protection argument and I think the Board has acknowledged that in their reply brief.
Both issues were considered and, in fact, addressed by implication by this--
Unidentified Justice: So, you could lose on the very narrow ground that the Court of Appeals used and still win the case in the long run on two or three other grounds that you have already argued.
Robert P. Ufer: --That is correct.
That is our position.
Now, faced with the Act's plain meaning in the legislative history, the Board turns to a different argument and asserts that the Court should defer to its interpretation.
We would simply like to point out in this regard that in the Weingarten decision of this Court, the Court indicated that it should not step aside and rubber stamp the Board's determinations that run contrary to the language and the tenor of the Act.
Similarly, in the Edward DeBartolo Corporation decision earlier this spring, a decision interpreting Section 8(b)(4), the publicity proviso and the distribution requirements provided therein, this Court expressly did not allow the NLRB to apply so generous a standard as to strip the statutory restriction from the Act.
If Congress had intended that broad a scope, they would not have placed the restriction in the Act in the first instance.
We submit that the Board is doing precisely this thing with the Interboro Doctrine.
They are asking the Court to step aside and rubber stamp their determination and that determination is utilizing a standard so generous as to strip the concerted requirement from Section 7.
We would also like to point out that the policy underlying deference to the Board as was articulated in Weingarten was to allow the Board to construe the statute in light of changing patterns of industrial life, yet the most significant changing pattern here is the imergence of binding arbitration as a favored dispute resolution procedure, to utilize self-government in the work place through grievance arbitration.
The Interboro Doctrine flies in the face of this fundamental emerging pattern of industrial life and we submit for that reason it is not appropriate to afford the Board any deference in its determination.
Policy considerations, we would respectfully submit, also do not justify a departure from a plain-meaning interpretation of concerted.
We submit that it is clear the Interboro Doctrine frustrates and does not serve fundamental national labor policies.
Addressing specific labor policies, the need for certainty is of critical importance in labor relations to maintain and promote industrial stability, particular in situations of employee discharges and potential work stoppages.
Yet, the Interboro Doctrine kept all of the parties, including the employees, adrift on a sea of total uncertainty.
It takes only a cursory review of the Board's Interboro decisions over the past few years to appreciate the magnitude of this uncertainty.
There are conflicting Board and arbitration decisions.
We believe this is highlighted by the American Freight decision.
In American Freight, the Board found the employer committed an unfair labor practice by enforcing his contract right as affirmed by the arbitrator.
The arbitrator in that case concluded there was no contract violation, yet the Board stepped in and said, well, we apply a lesser standard and they found an unfair labor practice.
Unidentified Justice: Do you cite that in your brief, Mr. Ufer, American Freight?
Robert P. Ufer: We do.
Unidentified Justice: Was it NLRB versus American Freight?
Robert P. Ufer: That is correct.
There are similarly conflicting and contradictory Board decisions.
We would direct the Court's attention to the very recent Board decision in Comet Fast Freight.
When that case is analyzed against the Kohls decision in the D.C. Circuit and in the instant case, almost all of the critical facts are identical.
It is a truck safety issue.
The employee asserts he does not want to drive the truck.
There is no discussion or warning to any other employees, and, in fact, another employee in each one of these cases drove the truck that very same day.
Yet the Board reached opposite legal conclusions.
They found there was no concerted activity in Comet Fast Freight.
This Comet Fast Freight decision would seem to invite inquiry by this Court of the Board's counsel whether the NLRB has recently changed its position on Interboro, whether the Board has stepped back from Interboro.
We would submit either the Board has changed its position or its application of the doctrine is totally inconsistent.
Similarly, the Yellow Fast Freight Board decision which is another recent Board decision that is cited in the Board's reply brief is also hopelessly contradictory with earlier precedent.
In that case, there was an individual employee's refusal to drive the truck and it was only a momentary refusal, engaging for some 15 to 20 minutes with his supervisor as to whether or not his driving a truck would violate the contract term relating to safety.
The Board concluded that that conduct constituted insubordination and, therefore, not protected against.
That conduct is lesser conduct than in the instant case where the employee walks off the job and doesn't perform the work at all.
We would submit that another fundamental uncertainty arises from the Interboro Doctrine in that it denies all of the parties their agreed-upon, substantive, contract term.
It essentially makes mincemeat out of the contract because the Board is stepping in and applying, as in American Freight... It specifically indicates it is applying a lesser substantive safety standard.
We further submit with respect to uncertainty that there are inordinate delays that compound the uncertainty in this whole area where the Board intervenes.
In collective bargaining agreements, there is often specific time frames provided for the grievance procedure and ultimately arbitration.
These often conclude within 30 to 60 or 90 days at the outside.
Using this case as an example, the Board decision was not reached until over two years after the incident occurred and with the appeals through the court there is even greater delay.
Turning to other policy considerations which we believe are of vital important, Interboro creates an entirely duplicative procedural structure for collective bargaining agreement dispute resolution with all of the attendant time, uncertainty and expense of duplication.
Unidentified Justice: Well, it is an old story though that the Board will or will not find something an unfair labor practice even though it may or may not violate the contract.
Robert P. Ufer: That is correct.
Unidentified Justice: Isn't that right?
Robert P. Ufer: That is correct.
I think--
Unidentified Justice: And also, even if some arbitrator has held that it is not a violation of the contract, the Board isn't necessarily foreclosed.
Robert P. Ufer: --That is correct.
Unidentified Justice: You acknowledge that?
Robert P. Ufer: We acknowledge that.
We believe the qualitative distinction with respect to the Interboro Doctrine is that it transforms all collective bargaining agreement disputes into unfair labor practices.
Unidentified Justice: How would you sort them out?
Robert P. Ufer: I would return to an actual plain meaning interpretation of concerted is our position, and, if, in fact, there are two or more employees undertaking an action or agreeing upon a course of action--
Unidentified Justice: So, you would say the Board could never second guess an arbitrator if all the employee ever was doing was asserting his own right.
Robert P. Ufer: --The Board... I think the correct standard for the Board's intervention in that case would be the Spielberg Doctrine of fairness and reasonable.
Unidentified Justice: Well, why... He doesn't mention another employee or anything else.
He wants his job back, he wants back pay.
Why is that concerted?
Robert P. Ufer: It is our position that would not be concerted.
Unidentified Justice: Even if the arbitrator... Even if it had gone to arbitration.
Robert P. Ufer: I think the clarification in that regard... The first position is that the action would not be concerted by the individual, and the second position would be it would be appropriate for deferral to the arbitrator.
And, I think on either of those two grounds the employer's conduct could be affirmed.
Unidentified Justice: But then why did you concede at the beginning that a grievance filed by a single employee is concerted?
Robert P. Ufer: We don't... In light of the Circuit Court decision on that point, we believe that there is an argument to be made to that effect, but again--
Unidentified Justice: That just flies in the face of your plain meaning.
Robert P. Ufer: --That is correct and if I made that concession, then very possibly I ought to retreat from that, because I think a plain meaning interpretation offers certainty into this situation and that it is--
Unidentified Justice: You should retreat from your suggestion that Spielberg is enough protection for your provision is an individual grievance has gone to arbitration.
Robert P. Ufer: --I believe that is a separate issue and those standards, as they have more recently evolved in Board decisions, I think there has been a distortion and a perversion of the Spielberg Doctrine.
But, focusing on Spielberg for a moment, what we would submit the Board can determine is that if the discharge is for... If the affected employee is contending that discharge is because he is the Union organizer or he is the Union steward and the employer is saying that he is discharged for failure to do his job duties or to obey an instruction, then there can be a Board review to undertake that motivational analysis.
But, as to whether or not he is doing his job, which is the issue in this case, we would submit that there is no position for the Board to make that determination.
We respectfully submit that the concerted standard expressly set forth in Section 7 should be defined according to its plain meaning.
We believe this is consistent with the legislative history and we also believe it is consistent with this Court's precedence defining the scope of protected activities under Section 7 in other circumstances and the basic labor principle set forth in those precedents, the labor principles of majortarianism, of not allowing an individual to control the entire process and to control the collective bargaining agreement administration, the precedence of presumption of arbitrability.
Unidentified Justice: Let me interrupt you for a minute.
Let me be sure I get your position on this.
Supposing your client fired a man for filing a grievance.
There is no contract that says he has a right to, just say they set up a grievance procedure.
He files a grievance.
He gets discharged for that.
Unfair labor practice or not?
What is your position?
Robert P. Ufer: The act of filing a grievance?
Unidentified Justice: This man had not been fired because he wouldn't drive the truck, he was fired two days later for filing the grievance.
Robert P. Ufer: For filing a grievance.
Unidentified Justice: What is your position on it?
Robert P. Ufer: We would contend that the act of filing a grievance is actual concerted activity between the employee--
Unidentified Justice: You say that would be an unfair labor practice?
Robert P. Ufer: --That would be--
Unidentified Justice: Is that... Now that is three times.
You answered it that way the first time and then you answered Justice O'Connor another way and now you have returned to your first position.
If you are filing a grievance, you are--
Robert P. Ufer: --Again, I would say--
Unidentified Justice: --You would say that is concerted activity.
Robert P. Ufer: --I believe the analysis should be an actual concerted analysis and if it is found that the conduct between the individual and his Union steward in the filing of that grievance could constitute actual concerted activity.
Thank you.
Chief Justice Warren E. Burger: Mr. Come, do you have anything more?
You have two minutes.
ORAL ARGUMENT OF NORTON J. COME, ESQ. ON BEHALF OF THE PETITIONER -- Rebuttal
Norton J. Come: Yes, I would just like to make two points.
In the first place, I would like to make clear that our position is not that every violation of a collective bargaining agreement is an unfair labor practice.
It is that discipline taken against an employee for asserting a contract right is an unfair labor practice.
Now, in this case--
Unidentified Justice: Any contract right?
Norton J. Come: --Yes.
Unidentified Justice: Any contract right.
Norton J. Come: Here the right asserted is to refuse to carry out the employer's order.
The right not to drive an unsafe truck doesn't mean anything unless it applies when the employer assigns the employee to drive the truck.
So, you can't separate out the refusal from the contract right.
The ALJ and the Board found that factually the employee had this contract right and he reasonably and in good faith--
Unidentified Justice: It is your position here though that any assertion by an employee, whether on his own behalf literally or on somebody else, is concerted activity.
Norton J. Come: --That is correct.
If it is made in good faith and is reasonably grounded in the contract.
Unidentified Justice: Well, if the General Counsel filed... Finds reason to file a complaint, why there is... It is concerted activity I suppose.
Norton J. Come: --But, nonetheless, the mere issuance of a complaint does not--
Unidentified Justice: Doesn't bind the Board.
Norton J. Come: --That is correct because it must be established by a preponderance of the evidence and--
Unidentified Justice: Well, yes, but it is concerted activity if it is in good faith--
Norton J. Come: --And reasonably based.
Now, the second point--
Chief Justice Warren E. Burger: Your time has expired, Mr. Come.
Thank you, gentlemen, the case is submitted.
Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.


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The generation that snatched up the first Walkman music players, VCRs, home computers and game consoles continues to rely on technological advances as we grow older, with a host of devices that tackle health care challenges in innovative ways. These cutting-edge products combine clever design with digital smarts to make our lives safer and simpler. … Back to Article
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DingKing's's Gamespot Rank
Level: 9 (20%)
DingKing's Emblems
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Here to save the day! Game Experts are knowledgeable and skilled masters in at least one game and have proven this by unlocking at least 75% of the achievements available for it. If you've ever got a question, a Game Expert's usually a good person to ask.
Comic-Con 2012 - Day 4
There are many things to do with the internet, from watching videos of people screaming about video games to sending and receiving friend requests. This user chose to spend some time on GameSpot's official Comic-Con site on day four, and for this we salute you.


text: Lake Superior State University chemistry and environmental science students will present during a senior research project symposium April 25-26 at Lake Superior State University. The annual research symposium will be held in two parts. An informal poster session is Friday, April 25, between 2 and 5 p.m.; formal presentations will be 8:30 a.m. to noon on Saturday, April 26. Both sessions will be in Crawford Hall.


text:
Monday, January 14, 2013
A fire Dec. 30 severely damaged a home and temporarily displaced a family of seven.
The fire occurred about 2:30 a.m. at a residence on Poppy Place in the Robynwyn subdivision of Summerville, according to Summerville Fire Department officials.
The fire apparently started in the kitchen and spread, damaging two rooms and causing extensive smoke damage, SFD Chief Richard Waring said. Firefighters were able to get the blaze under control in about fifteen minutes, he said.
American Red Cross volunteers responded to the scene, providing the family with temporary housing, funds to help replace the food lost in the fire as well as comfort kits and referrals to Red Cross partner agencies.
SFD also assisted Pine Ridge Fire Department with a structure fire on White Boulevard Dec. 31, Waring said. The building was damaged but no one was present at the time.
No one was injured in either blaze. Both fires are under investigation.
The Journal Scene is pleased to offer readers the enhanced ability to comment on stories. We expect our readers to engage in lively, yet civil discourse. We do not edit user submitted statements and we cannot promise that readers will not occasionally find offensive or inaccurate comments posted in the comments area. Responsibility for the statements posted lies with the person submitting the comment, not The Journal Scene.
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text:
Posted at: 11/15/2012 10:38 AM
By: Katie Eldred
(ABC 6 NEWS) -- A Wednesday night traffic stop turned into a pursuit on foot for Rochester Police. The incident happened around ten o'clock on the 800 block of 44th St NW.
Rochester police had pulled a vehicle over when the passenger of that car got out and started running. Police pursued the man on foot.
When they caught up with the passenger he started to reach towards his waist band. As police attempted to arrest the man he through a bag into the sewer.
That man was 37-year-old Jose Castellanos Jr. of southeast Rochester. When police removed the sewer grate they found 1 oz. of cocaine.
Castellanos was arrested for possession, he is still in custody.
The driver of the car fled as well and was not arrested.


text:
Green Economy and Green Jobs
US Department of Labor Bureau of Labor Statistics: Green job statistics.
Workforce One: Forum for workforce professionals and green job leaders.
Contact Information
Pollution Prevention and Innovation Team
U.S. EPA Region 4
This page provides links to non-EPA web sites that provide additonal information about sustainable sporting events. You will leave the EPA.gov domain and enter another page with more information. EPA cannot attest to the accuracy of information on that non-EPA page. Providing links to a non-EPA Web site is not an endorsement of the other site or the information it contains by EPA or any of its employees. Also, be aware that the privacy protection provided on the EPA.gov domain (see Privacy and Security Notice) may not be available at the external link.
Alabama Environmental Justice and Green Jobs Initiative
Training Programs in the Southeast
EPA and Green Jobs
EPA Region 4 is continually incorporating green workforce development into agency activities in order to help southeastern communities transition to a greener economy.
EPA Region 4 is currently engaged in a number of green career activities. These activities are often connected to Region 4s Environmental Justice Program.
Region 4 Green Job InitiativesG.R.E.E.N Growing Responsible Environmental Employees Now
Growing Responsible Environmental Employees Now (G.R.E.E.N) is a free eight-hour "Sustainability 101" course useful for introducing basic green principles and ideas into almost any job training or education program. The curriculum was designed by EPA New England and DOL Region 1 Job Corps. Region 4 is partnering with the Southeast Job Corps Centers to integrate G.R.E.E.N into all planning phases of a students stint at a Job Corps Center.
Alabama Environmental Justice and Green Jobs Initiative
EPA, Region 4 has partnered with The United Christian Community Associations to develop agriculture
curriculum that would benefit farmers in Environmental Justice communities in Alabama.
The United Christian Community Associations (TUCCA) Green BEAN Curriculum
The Green Automotive Jobs Readiness Program will target the communities located in Alabamas
Black Belt region, which is currently experiencing high rates of poverty and unemployment,
inadequate educational infrastructure, and high crime rates. EPA Region 4 recognizes that
the 18 counties that make up this region face environmental justice challenges that impede
economic growth but see opportunity in the potential in developing green educational tools
for a growing automotive manufacturing sector.
|The green automotive jobs readiness program will provide a multi-module, highly adaptable educational curriculum that will provide future automotive manufacturing employees with a working knowledge of environmental concepts and demonstrate how these concepts relate to the manufacturing sector. The curriculum will be designed to introduce students to fundamentals and tactics that will allow them to act as environmentally responsible employees. EPA has partnered with Consortium for Alabama Regional Center for Automotive Manufacturing (CARCAM) as the initial delivery mechanism for the Green Automotive Jobs Readiness Curriculum. CARCAM will integrate the modules into their existing Automotive Manufacturing Technology degree and certificate programs as well as their Science, Technology, Engineering, and Math (STEM) summer camp for high school students.
SW Atlanta Green Workforce and Economic Development Initiative
EPA Region 4 is leading the Green Workforce and Economic Development Group
under the HUD DOT EPA Partnership for Sustainable Communities Initiative.
Because of this Initiative in the SW Atlanta Communities of Neighborhood
Planning Unit V, EPA Region 4 has been able to partner with other green
career efforts throughout Metro Atlanta. These efforts include the
Atlanta Emerald Cities Collaborative, Partnership for Southern Equity,
and Mayor Kasim Reeds Green Job Task Force. The major result of EPAs
efforts will be a framework that includes best practices and lessons
learned as it pertains to green workforce development. This framework
will be transferable to other communities that may want to address
sustainability through green workforce issues.
| environmental protection creates jobs 1.7 million of them as of 2008. The environmental protection industry has grown steadily between 2000 and 2008, yielding approximately $300 billion in revenues. Recognizing these job creating possibilities is critical in this moment. Administrator Lisa P. Jackson, Remarks at the 2011 Good Jobs Green Jobs Conference, As Prepared (February 8, 2011)
Training Programs in the Southeast
The southeastern states are home to
a variety of green career training programs
that are operated by colleges, universities, for-profit workforce development
companies and community-based organizations
Select examples include:Alabama


text:
Recipe Box
Your space for searching and sharing your best dishes.
Monthly Archive for February, 2011
Cooking in Greek
The Philoptochos Ladies of St. Sophia Greek Orthodox Church in Albany will present "It's all Greek to Me," an evening of food, cooking tips, and fun from 4 to 7 p.m. Sunday. The program will include demonstrations and tastings of popular Greek recipes such as stuffed grape leaves, spanokopita (spinach pie), baklava, Greek biscotti, as […] [Read More]
Reader favorites: Irish food
We want you to share your favorite Irish food recipes for our March 10 Recipe Box. Just post your recipe in the comments, and you'll be entered in our weekly cookbook drawing. Please be sure to include the number of servings in your recipe. [Read More]
Making the most of togetherness
This is the full version of a story that ran in Thursday's Food section, with all four recipes: By Joe Yonan Washington Post Solo cooks don't always live alone. Somewhere between college and married life, for instance, lies a world created by high housing prices and low incomes: the group house, where single folks share […] [Read More]
What's that? (updated)
I'm sorry, I forgot to tell you what this is! (Thanks for the reminder, MG) It's a wine glass sponge. There a small slit in the edge that's facing up. You use that slit to wash the rim. ****************************************************** Can you figure out what this product is used for? Guess what it is and you'll […] [Read More]
Do you like your grocery because it's the right size?
According to the 2011 National Grocers Association — SupermarketGuru Consumer Panel Report, consumers prefer stores grocery stores between 30,000 and 50,000 square feet. To put that in perspective, most Hannaford Bros. stores are between 40,000 and 45,000 square feet. (Price Chopper hasn't yet responded to our request for their store size). Nearly six in 10 […] [Read More]
Chili recall
Gold Star Sausage of Denver is recalling an undetermined amount of chili products because they contain soy, which is not declared on the label. Soy is a known allergen. The products being recalled include 16-ounce plastic containers of "Johnson's Chili" and 16-ounce plastic containers of "Johnson's Chili, Hot & Spicy." Each package includes the number […] [Read More]
Reader favorites: food balls
Meatballs, fish balls, matzoh balls, more….We want you to share your favorite recipe made into a ball for our Feb. 24 Recipe Box pages. Just post your recipe in the comments, and you'll be entered in our weekly cookbook drawing. Please be sure to include the number of servings in your recipe. [Read More]
Reader favorites: Tilapia
Tilapia isn't just one fish but the common name for a group of species and their hybrids. Thanks to aquaculture, tilapia is readily available a relatively inexpensive. As a result, its consumption is rapidly increasing and in a few years time tilapia has become the fifth most popular seafood consumed in the United States, according […] [Read More]
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"I was just curious to know whether you guys have any recommendation for me in terms of a very good out door projector for showing movies in a tropical climate. In addition to that do you know of any compatible system like a DVD, Blu-ray or VHS and DVD that can work with it? Thanks for your answers."
So, there you have it, anyone picked up an outdoor projection screen and 1080p PJ to go along with their fireworks show last weekend? If you've got any experience or suggestions, drop a line in the comments.
Got a burning question that you'd love to toss out for Engadget HD (or its readers) to take a look at? Tired of Google's blank stares when you ask for real-world experiences? Hit us up at ask at engadgethd dawt com and keep an eye on this space -- your inquiry could be next.


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Wellness Program
Mission Statement
The Bradley University Wellness Program offers current and accurate health information and programming on alcohol and other drug use, sexual health, physical and mental wellness, violence prevention, and other areas of student well being. The Wellness Program promotes smart and healthy behavioral choices for students by collaborating within the university, out in the community, and nationwide.
Wellness combines eight dimensions of well-being into a quality way of living. Wellness is the ability to live life to the fullest and to maximize personal potential in a variety of ways. Wellness places responsibility on the individual; it becomes a matter of self-evaluation and self-assessment. As a department we strive to provide resources that fall within the 8 dimensions of wellness.
* Spiritual
* Emotional
* Financial
* Environmental
* Social
* Physical
* Intellectual
* Occupational
Fall Semester Classes Begin
Fall Recess
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text:
Is there a way to specify a consistency level for a query via solr? Some type of parameter that can be passed in via the URL?
Thanks in advance,
In an effort to consolidate free help offered for our products we have decided to move these forums to a more widely used forum. Please use one of the following queries (or any combination):
Is there a way to specify a consistency level for a query via solr? Some type of parameter that can be passed in via the URL?
Thanks in advance,
I'm curious about this too...
The DSE 2.1 docs do mention the ability to specify consistency for updates via Solr. The default is
QUORUM, but you can tack on the
cl request parameter to override it. They give the example:
http://<host>:<port>/solr/<keyspace>.<column family>/update?cl=ONE
I assume this will work via SolrJ as well, but I've not yet tried it.
Of course, this does not address the query side of things. For much of my content, it's basically read-only for a quarter, so issuing a Solr query with a
cl=ONE would be very desirable. I don't see this addressed in the docs. Anybody know how to do this?
From what I am able to tell, ONE might be the default for reads. When I make a query against the SOLR's web service, I only see hits in the log files for the server I hit. Specifying cl=ALL doesn't seem to change anything. If it's going to the other servers to hit solr it's doing it in such a way that isn't being logged.
Currently there is no way to specify CL for reads.
Interesting. Even if it cannot yet be specified, can you confirm if DSE uses
I certainly would welcome the ability to set the parameter on reads. Would it make sense to use the name, say,
dse.cl=ONE? What if one day Solr defines a
cl request parameter?
It uses cl=ONE. Suppporting other consistency levels is not straightforward. It would require to postprocess solr query results in order to merge duplicate documents (rows). Currently we avoid this by adding predicates filtering on appropriate token ranges, so even at higher RFs, each document can be returned by SOLR at most once, and the final result is a union of results from all solr nodes.
Thanks for the confirmation on the CL. RF for Solr is still kind of confusing to me. :)
Just in case anybody else runs into this issue, I ran into a problem using a Solr 4.0 join query across two cores. I had misconfigured one of the core's (in the join
fromIndex) keyspace with RF=1, while everything else was RF=2. Querying one node returned the correct answer, while the second did not. Apparently, until the Solr project implements distributed joins, a DSE node must have all of the data locally for both cores in order to do a local cross core join. Thus, RF=node count is required for such a join query to work on all nodes.
I'm very dependent on this, so I'm glad to see that the default read CL of ONE is used for Solr queries. In addition, since I can specify the CL for an update, I can use ONE there as well. My hope here is that if one of the two nodes goes down, reads and writes won't fail since I'm forced to define RF=node count. Quorum reads and writes would fail otherwise. With a third node, and RF=3, this would not be a problem, right?
Correct, with a third node and RF=3, updates at QUORUM can tolerate the failure of one of the replicas.
(late post, but this post was on-topic...should I instead open a new thread?)
Piotr, I may have this wrong, so please correct.
When you say that you're using CL=1 for solr queries are we mixing terminology? Since you're adding predicate filtering, doesn't that mean that for any docId that only the shard that owns that hash will return that docId if the search criteria matches?
Once a docId is identified and matched, who actually is responsible for returning the requested fields that are stored in Cassandra? Is this done on the node that owns the hash or does the docId get returned and unioned on the originating search node and then the originating search node grabs all the requested fields for the top docIds? That would seem to be when consistency level comes into play -- in that case if there's no option for consistency level, then it would be possible to have some fields that are out of date?
UPDATE: some of my own questions answered (in addition to rockbrain's -- thanks!) here http://www.datastax.com/dev/blog/data-consistency-in-dse-search)
> Once a docId is identified and matched, who actually is responsible for returning the requested fields that are stored in Cassandra?
DSE returns the values from C*. The process uses the Solr distributed search code, which first gathers ids and scores, merges the top N, and requests the field values for each document from the respective server.


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Cooking and Baking
Celery Greens
I bought two bunches of local celery this week at my farmer's market. It's almost like a baby celery in that the stocks much smaller, thinner and are far more flavorful and fragrant that grocery store celery.
Anyway, this stuff is mostly leaves. Any ideas for what to do with lots of beautiful, green celery leaves?
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The payee, lender and secured parties were acting as sham entities even when they were otherwise real entities, like Wells Fargo.
The banks had to make some OTHER connection between the so-called pools that were in actuality unfunded trusts --- and that explains why instead of producing real, accurate, truthful documentation they resorted to fabricated, robo-signed, robo-notarized documents executed by $10 per hour people whose only purpose was to act as "authorized signor" or "assistant secretary" neither of which designations is recognized by law. If you went to the bank to open an account or take a loan and insisted on signing with those designation they would refuse to open the account and rightfully so. But in millions of foreclosures, the reverse was NOT the case --- they relied upon such bogus documents in order to sell bogus mortgage bonds backed by unfunded pools, SPVs, Trusts, REMICS or whatever else you want to call them.
The investors are clearly taking up the cause of homeowners and they have more clout, credibility and now the proof that their money was channeled in ways neither contemplated nor agreed as per the false pooling and servicing agreements and false prospectuses that were offered by Wall Street.
We are left with defective instruments that in the end bear no connection with those pools but which have documentation fraudulently obtained from homeowner borrowers in order to get money fraudulently obtained from investor lenders. They siphoned off the money using a variety or ruses and paid the investors as though the pools were real and funded with money or assets when in fact they were empty paper sacks.
They they traded on the loans pretending that they, the banks were the owners, and they sold them multiple times. Then they foreclosed on the properties alleging they were authorized agents of the pools when the pools did not exists. No trust exists if it is unfunded. When they were done, they took the profits and put it into their own pockets, leaving both the investors high and dry and doing the same for homeowner borrowers.
They took the losses and tried to throw them at the investors and used the losses in trading to beg for Federal bailout claiming that they were on the verge of collapse, which was true as to many of them, since they were reporting assets on their balance sheet that did not exist, and they were therefore both overvalued in the stock market, over-rated in the bond market, and always on the tip of collapse. This isn't the final nail in the coffin of the mega banks but it certainly ties things down.
For homeowner borrowers, it is just as I said --- the money was never channeled through trusts and instead of was kept by the banks to use for reporting trading profits in which the left hand sold to the right hand, plus fees, expenses and various other charges. They paid the investors out of continuing sales of bogus mortgage bonds --- the classic signature of a PONZI scheme.
Thus the homeowner borrower attorneys take note: the origination documents are 99% invalid, the foreclosures are 99% invalid, and that means that the secured part of the obligation was never perfected and is fatally defective so that it can never be perfected without a signature of the homeowner borrower. That makes the obligation unsecured --- money potentially owed to unknown creditors who were not disclosed contrary to the requirements of TILA, RESPA and state deceptive lending laws.
The obligation remains, but there are no creditors who are making the claim because they could subject themselves to predatory lending claims, fraud and other charges resulting in treble damages. The note is a recital of a transaction that never existed. It recites a loan from the payee or lender when neither of them funded or even purchased the loan.
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Reference Info:Pleadings | State, 2nd Circuit, New York | United States
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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After more than five years of setbacks, Albert Lam, CEO of Detroit Electric, unveiled the company's first electric car in Detroit and pledged to bring more than 200 employees to Wayne County.
"Tonight, you bear witness to the rebirth of the Detroit Electric brand," said Detroit Electric founder and CEO Albert Lam said Wednesday at the Fisher Building in downtown Detroit before revealing the SP:01 to a crowd of several hundred.
Lam, 50, left luxury sports car manufacturer Lotus in 2008, and has been developing the SP:01, an all-electric sports car, since then. ...


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BRISTOL — John Force has spent much of the past decade helping the next generation of his family become some of the biggest stars in drag racing.
Don't think, however, the 16-time NHRA Funny Car World Champion is ready to get out of their way. In fact, he recalls last year's Ford Thunder Valley Nationals at Bristol Dragway when he beat daughter Courtney in the first round on his way to a fourth Bristol victory.
"I ain't passing the torch. I'm trying to whip their butts," he said. "We have our ups and downs. The hardest thing here last year was when I had to take out my kid, Courtney."
Force added that Courtney, who avenged the loss the next week in New Hampshire, reacts differently to losing than her sisters, Brittany and Ashley, or her brother-in-law Robert Hight.
"It goes from mad to tears. She doesn't like to lose," John Force said. "Brittany takes it another way and Ashley took it a different way, but Courtney doesn't accept it. When she lost that final (at Atlanta) to Robert, she broke down on TV. But look at her when she wins, when she got the 100th (pro win for women at Topeka, Kansas) even Shirley Muldowney called. Coming from Shirley, that's a real compliment."
At age 65, the winningest driver in NHRA history with 139 victories has little left to prove. Still, the love of the sport keeps him going and it even delays a potential series of movies based on his yet to be released autobiography.
Every time it looks like the book is ready to be published, Force adds another chapter.
"The book is done, but it never ends," he said. "I'm 65 years old and I got a deal to race until I'm 70. It was supposed to be done after my 10th world title, after my accident. I did a cartoon book about me having polio. My parents took me to the Catholic church and the nun told them that I didn't have spinal menagitis that I had polio.
"They're looking at three books that I've turned them over to my New York attorneys. The movie will be more about my mom working in the strawberry fields and tagging me along, how I got to race Funny Cars than my world titles."
To paraphrase an old commercial slogan, he's come a long ways. It's been a Funny Car career that has spanned nearly four decades with Force not winning for the first eight years. Since then, no one has come close to matching his numbers.
Even this season, he followed up the record-extending 16th world title by winning the season-opening NHRA Winternationals and doing it by setting a national record of 3.965 seconds and the top speed of 324.12 mph.
Lately, he's had a few problems, although Force still ranks second to Hight in the Mello Yello point standings.
"I came off real good at Pomona, set the national record there," he said. "Ran in the threes again at Phoenix. Charlotte, I was in the final there. I was going pretty good the first 3-4 races. Then, I went into a slump and can't get past first round.
"But, we've addressed it. We were trying to get faster. But, we're real excited about Robert. We had 15 straight final rounds starting at Indy last year. I got on a roll and the girls, Courtney has stayed in that top 10 and the dragster with Brittany has shown the most potential."
He was the proud father on Friday, telling about a story about how excited Brittany was to see her Top Fuel car on a paper placemat at a local fast food restaurant.
"I remember the first time I saw my name on a food mat in a restaurant. It was right here in Bristol," he said. "Last night, Brittnay called me from Bojangles, 'Dad, you've got to see this.' She's almost in tears. It was a big deal for her to see that."
As for John Force, he stays busy on all fronts. Outside of the racing, he's working on a new reality television show and also as a judge on the PEAK Stock Car Dream Challenge with NASCAR drivers Michael Waltrip, Clint Bowyer and Brian Vickers. In addition, he's still promoting longtime sponsor Castrol at every opportunity.
Still, there is an occasional downside to all the outside ventures. He explained how an appearance on the FOX cartoon show, "King of the Hill," a few years ago caused unexpected problems.
"It was a lot of fun, but it created a big internet mess for me," he said. "A lot of the fans watched it and thought I was losing my kidney. That's how they watch TV and you have to be careful."
"I like racing at all the tracks, but it's such a pleasure racing here," Force said. "When I see that NASCAR track and the money invested, we can't go away. It ain't like some little track out somewhere in the country. I raced at the track when IHRA was here."
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Unlocking the Key to Deep Sleep
By Sarah Fenske
Making the Ferguson Commission Matter
By Danny Wicentowski
My Fake Boyfriend Became a Real-Life Crush
By Lindsay Toler
Rep. Jeffrey Pogue Bill Would Ban Unisex Bathrooms
By Danny Wicentowski
Darren Wilson Gives Speech to Nonprofit
By Danny Wicentowski
Angel Stewart and Other Victims of Violence Ask for Mercy
By Jessica Lussenhop
Obama Praises St. Louis' LaunchCode
By Lindsay Toler
By Lindsay Toler
Those who believe that Gaertner's fate was linked to the Martie-Joyce spat surmise that at Joyce Aboussie's urging, Gephardt let the public anti-Gaertner protests provide cover for the underlying reasons Gaertner was dropped. They believe Joyce Aboussie's payback to her cousin was to deep-six the federal judge's nomination that Martie Aboussie backed.
Oblivious to the dynamics at play, Gaertner reportedly had been on the phone lobbying feminists to change their stance, but all the while it was a hardware store that did him in.
This tale of political intrigue is not widely known. The principals involved either don't respond to inquiries or deny that it went down this way. But run it by someone attuned to the nature of St. Louis politics and they'll chuckle or nod knowingly:
Sounds right.
That a federal judgeship may have been scuttled because Martie and Joyce Aboussie were at war over the location of a hardware store speaks volumes about South Side politics. To refine the oft-used Tip O'Neill maxim, in St. Louis, not only is all politics local, it's family, and it's personal.
Several years before the Gaertner fiasco, in 1991, Gephardt had not yet calculated exactly where to come down on the North American Free Trade Agreement. Some of the South Side congressman's union support was growing restless.
There was even loose talk -- perish the thought -- that organized labor might consider supporting a Democratic challenger to Gephardt, the former Fourteenth Ward alderman who had been elected to Congress eight times. Robert Kelley, St. Louis Labor Council president, hinted that it was possible.
But who would be foolish enough to mess with the all the money, all the seniority, all the political steam of the Gephardt juggernaut?
Anyone with any sense knew that talk of a primary opponent was merely the unions firing a warning shot within earshot of the bow. Wouldn't happen.
It didn't take long for Gephardt to snap to attention. Gephardt pushed for a ban on permanent replacements for strikers, he toured the maquiladora plants along the Mexican border and he urged protections for U.S. workers in trade deals. He announced a "Gephardt Amendment" to fix union concerns about the fast-track talks.
Message received.
But Jefferson County Commissioner Ron Casey must have been tuned to a different frequency. Contacted by media, he made vague comments about being receptive to the idea and said union people had talked to him about running for Congress.
As a Jefferson County commissioner, Casey had a political base, and he could play on the anti-Washington feeling among many of the Third District's new constituents. Gephardt's district had drifted south, following the exodus of voters from South City to South County to Jefferson County. A Jefferson County politician was a long shot, but he had a shot.
Casey was summoned to see Gephardt's national political director.
Ron Casey, meet Joyce Aboussie.
Casey showed up and got his head handed to him.
"Joyce brought him into her office, sat him down; it was just him and Joyce," recalls a veteran political observer. "She just ripped him a new asshole. It was 'If you ever say anything like this again ...' Basically she told him, 'This is my territory, and if you ever say a fucking word about running for Congress again, I will destroy you.' He left that meeting saying, 'I've never seen anyone behave like that.'"
For Casey and others who have felt the wrath of Gephardt's bodyguard Joyce Aboussie, the way the message was delivered was as important as the message itself.
It wasn't, "Hey, look, I saw this article in the paper. Are you considering running for Congress?'
It was flat-out intimidation.
The threat Aboussie used that day wasn't literal destruction but political destruction. Politicians survive on reputation and money. As Aboussie rides shotgun on Gephardt's gravy train, she can shorten a politician's career by bad-mouthing the candidate, and she can make fundraising very easy or very difficult.
"Here's the thing about her," says one operative. "She really has got her fingers deep into the pie and will cut you off, and you will never know it was her. She'll hurt you. If you're up against her, she will just flat hurt you in whatever way she can. And it will never be known that it was her."
Sometimes stealth isn't needed.
"Joyce is not at all abashed when something is going to happen that she doesn't want to happen," says another. "She will say in no uncertain terms, to whoever that person or organization or group is: 'Cross me, pay a price.' And she will let you know what that price is, which is usually your complete and utter destruction."
Casey may not have ever seriously considered a race against Gephardt, but after his in-your-face meeting with Aboussie, he lost any such notion in a hurry.
In 26 years on Capitol Hill, Gephardt has never had a significant Democratic challenger. Republicans thought they had a chance in 2000, when their candidate, Bill Federer, raised more than $1 million.
Federer got 40 percent of the vote. Gephardt got 58 percent.
Joyce Aboussie doesn't want to talk about her work, at least not to the media. What's the point? Who needs it? She's a busy woman, she's got things to do.
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Learn how to build an advanced portfolio site that showcases various types of content using the free open-source application WordPress. Author Morten Rand-Hendriksen demonstrates creating custom post types, differentiating and classifying content with custom taxonomies, and working with custom post templates. The course also shows how to embed YouTube videos, build index pages, display the latest posts from different custom post types, and hook custom post types into separate themes. Exercise files accompany with the course.
Creating a basic custom taxonomy is not all that different from creating a basic custom post type. All you have to do is create a new function that defines the new custom taxonomy and define a name and type of taxonomy and WordPress will do the rest for you. And of course, all this is done in that post_types.php file. So first let's open it and scroll down to the bottom where we'll start it, and then we're going to add to new custom taxonomy functions. Now like before, I added them into the code snippets file, so it's easier for you to manage, because it's a lot of text and I don't want you to have to write everything.
So if you go to Chapter 4, 02, you'll find In posttypes.php. Here we have the complete function. So I'll copy it out, paste it in, and then we'll take a closer look. As before it starts off with the comment that explains what this is. This is a function that creates custom taxonomies. Unlike the custom post types, this is one function that will create all the taxonomies. So as we add new taxonomies, we're adding them inside the same function, and you'll see how that works in a bit.
As before, it starts within add_action that adds a new action at init, which is one where it starts, and the function that's being called is cooking_create_taxonomies, which is the function directly below. Inside the cooking_create_taxonomies function, we have a new register_taxonomy function that has an array that displays a specific taxonomy. I've commented in what taxonomy it is because, as I said, we'll add multiple taxonomies within the same function. So I've added Meal type because that's the taxonomy, and then I've added the basic array.
So you'll see it says resister_taxonomy. It defines the taxonomy name as meal-type. Now this is the machine name, so this is what WordPress will refer to. And then inside there is an array that points to whether or not it's a hierarchical taxonomy. It is, because it's the Meal type. It gives it a label, so Meal type. It has a singular_name, 'Meal type', show_ ui, which is the UI for the taxonomy itself, true, query_var => true, so you can query it, and then finally rewrite and then I set the slug to meal-type.
So if you remember back to when we created the post types, you'll see that the stuff is pretty much the same. It's just that it's inside a register_ taxonomy function instead of create a new post_type function. If I save this now and go to WordPress > Admin and I reload it, you'll see that nothing has changed. There is simple reason for this. The taxonomy is a sorting system for a post type, but so far if we look at our function, we haven't assigned this taxonomy to a post type yet.
Although the taxonomy exists, it's not hook to anything, so we can't organize anything based on it. That's the next step.
There are currently no FAQs about Create an Online Portfolio with WordPress.
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Pumpkin Butter Tea Cakes with Orange Glaze
These little loaves have a light and springy crumb because there's no butter or oil in the recipe. The pumpkin flavor and warm fall spices are made more decadent with an orange glaze, but feel free to omit it for a light breakfast sweet. More


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Where was Jeff Session during the Bush admin. when he lied and over 3000 lost there lives. Get real Bentley and Session you guys disagreeing with the President is not news anymore, it is what we expect.
Oh my the holy than tho state who says no to gaming is allowing a alcohol bussiness in. Get real people.
Donald get your facts right. State employees pay into retirement as well as health care. There are no freebees. I guest people think santa" elfs keep the state going. State employees are never critical of the private sector jobs, so why are you all so critical of theres.
Tanker 74 while you are defending this looser, have you considered that the next time it could be some one you love that falls victum to a crime such as this. And by the way you cant contribute to Zimmerman defense fund, remember you spent all your money buying new tires for your home!!!!!!!
The GOP is doing nothing to bring money in the state instead the choose to cut state programs. This keep there rich friends happy,but the effect will be felt for years to come. Alabama has got to relize that the way funds were raised in the 60's 70's and 80's is not going to work in 2012. Think about this, you cant buy a loaf bread today for what it cost back then. In other words change with the times. A first grader can sit down and make cuts, however that doesnot fix the problem.
I think the republican woman should concern themselves with there own party and not worrie about others. Its funny they didnt host a press confenerce about Russ.
Congrats to Joy Booth, to bad you are linked to a low life like Bob Riley.
You people always have something bad to say, yet you live in glass houses in your little perfect world. God is in charge and he will deal with this guy in His own way, and He will deal with you perfect people as well!!!!
As if his choice still matter.
I pray for all families. This guy is a idoit, you should have showed up with roses instead of a gun, and you wonder why she didnt want your crazy *** anymore!!!!!!!
Only Guy Hunt went to jail and he was indeed gulity. But it ended the democrat {Jimmy Evans) political carear. GOP members were mad because he wouldnt look the other way, Mr Possomhunter.
Why dont anybody ever look into GOP members past. Much has been said about Bob Riley and no one seems to be listening. Such a one sided state. They are tring to scare people from even running as a democrat. So sad.
Why cant you Auburn fans just wish Cam well and not turn this to a why bama fans this or that. You all are so sad. As a bama fan I wish Cam well. You people really need to get a grip. Worrie more about your team without him.
Why cant you Auburn fans just wish Cam well and not turn this to a why bama fans this or that. You all are so sad. As a bama fan I wish Cam well. You people really need to get a grip. Worrie more about your team without him.
Being a die hard Bama fan I can say that this is 100% wrong. You should not disgrace any one this way. It is ok to be happy about the win, but do it with dignity!!!!!!!! This guy is a good example of what is wrong in sports today. Hopefully his ignorance will not spill over to the football field. And to the Auburn that commented before me, get a life every team has ignorant fans!!!
If we are having money problems then how will we be able to pay back this money. We need to close these corporate loop hole and not make the childern suffer.
Good luck Mike, hope this work out for you.
Well people, this is the good old change that SOME of you voted for. Sometime it is best to keep what you have,because you my end up with a lemon!!!!!!
Well people, this is the good old change that SOME of you voted for. Sometime it is best to keep what you have,because you my end up with a lemon!!!!!!
oops another GOP knock down