Summary of NLRB Decisions for the Week of August 1-5, 2011
The Weekly Summary is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov or 202-273-1991.
Summarized Board Decisions
Bay Sys Technologies, LLC (05-CA-36314; 357 NLRB No. 28) Accomac, VA, August 2, 2011.
The Board granted the Acting General Counsel’s Motion for Default Judgment based on the withdrawal of the Respondent’s answer to the complaint. In light of the withdrawal of the Respondent’s answer, the Board deemed the complaint allegations to be true and ordered the Respondent to reinstate the employee it fired for posting comments on Facebook.com concertedly complaining about working conditions; to make the employee whole for any loss of earnings and benefits; and to remove from its files any references to his discharge.
Charge filed by an individual. Chairman Liebman and Members Becker and Pearce participated.
International Bridge & Iron Co. (34-CA-12616; 357 NLRB No. 35) Newington, CT, August 2, 2011.
The Board adopted the administrative law judge’s decision denying the Respondent’s request for a continuance at the hearing to investigate a successorship claim, and finding that the Respondent’s failure and refusal to bargain with the Union regarding the effects of its decision to close were not excused by emergency.
Charges filed by Shopmen’s Local Union No. 832 of the International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, AFL-CIO. Administrative Law Judge Michael A. Marcionese issued his decision March 21, 2011. Chairman Liebman and Members Pearce and Hayes participated.
Laborers District Council of Minnesota and North Dakota (Lake Area Fence, Inc.) (18-CC-01485; 357 NLRB No. 29) Lindstrom, MN, August 2, 2011.
The Board found that the union violated the Act by refusing Lake Area Fence’s request to enter into a contractual relationship under Section 8(f) of the Act, in order to force Lake Area Fence to cease doing business with Century Fence Company. Member Becker dissented, finding that the union’s refusal to enter into an 8(f) contractual relationship with Lake Area Fence was not unlawful because it was not coercive within the meaning of the Act.
Charge filed by Lake Area Fence, Inc. Administrative Law Judge Mark D. Rubin issued his decision on November 1, 2010. Chairman Liebman and Members Becker and Pearce participated.
Random Acquisitions, LLC (07-CA-52473; 357 NRB No. 32) Battle Creek, MI, August 2, 2011.
The Board affirmed the administrative law judge’s finding that the employer discharged three employees in violation of Section 8(a)(1) because the employees engaged in concerted activity. The judge found that the employer’s proffered reasons for the discharges were pretextual.
Charge filed by an Individual. Administrative Law Judge Mark D. Rubin issued his decision on March 21, 2011. Chairman Liebman and Members Becker and Pearce participated.
San Miguel Hospital Corp. d/b/a Alta Vista Regional Hospital (28-CA-22280; 357 NLRB No. 36) Las Vegas, NM, August 2, 2011.
The Board found that the employer violated the Act by failing to provide relevant information requested by the union, changing terms and conditions of employment without providing the union with notice or an opportunity to bargain, and discharging an employee pursuant to the unilateral change in terms and conditions of employment. However, it also found that the record was insufficient to establish that the employer violated the Act by denying an employee’s request for union representation at a grievance meeting, informing employees that their right to union representation was being denied, dealing directly with an employee concerning her grievance, and unilaterally changing its practice of allowing employees to have another employee present during investigative or disciplinary meetings.
Charge filed by District 1199NM, National Union of Hospital and Healthcare Employees. Administrative Law Judge John J. McCarrick issued his decision on November 27, 2009. Chairman Liebman and Members Becker and Pearce participated.
Austal USA, LLC (15-RC-08394; 357 NLRB No. 40) Mobile, AL, August 2, 2011.
The Board granted the petitioner’s special permission to appeal the Regional Director’s direction of election and remanded the case to the Regional Director to explain how she exercised her discretion over the location of the voting and whether it should be onsite or by mail. The Board had conducted two previous elections. The first election was held on May 24, 2002. The Board sustained an administrative law judge’s recommended that the results of the election be set aside based on his findings that the employer committed multiple unfair labor practices and engaged in various forms of objectionable conduct. See Austal USA, 349 NLRB 561 (2007), enfd. 343 Fed. Appx. 448 (11th Cir. 2009). A second election was held on April 9, 2008. The Board again sustained an administrative law judge’s recommendation that the results of the election be set aside based on his findings that the employer committed multiple unfair labor practices and engaged in various forms of objectionable conduct. Austal USA, 356 NLRB No. 65 (2010). When the Regional Director made arrangements for the third election, the petitioner objected to the election being again conducted on the Employer’s premises and orally requested either that it be conducted off the premises or that it be conducted via mail ballot. The employer opposed the requests. The Regional Director orally denied the requests and informed the parties in writing that the election would take place on the employer’s premises. The Board concluded that it was unable to determine whether the Regional Director considered (1) the extent and nature of the employer’s prior unlawful conduct, (2) the appropriateness of the alternative, neutral site proposed by the Petitioner, or (3) the factors the Board has indicated are best evaluated by the Director. The Board thus granted the request for special permission to appeal and remanded the proceeding to the Regional Director. On remand, then, the Regional Director retained discretion to select the election site based on her “close view of the election scene.” In doing so, however, the Board determined that the Regional Director had to consider the petitioner’s objection to holding the third election on the employer’s premises, the employer’s request that it be held there, and the grounds therefore; the extent and nature of the employer’s prior unlawful and objectionable conduct and the fact that the petitioner has made a request to proceed despite the fact that the compliance period relating to the prior unlawful conduct has not yet closed; and the advantages available to the employer over other parties to this proceeding if the election is conducted on premises it owns or otherwise controls. The Regional Director also was to evaluate the alternative site proposed by the petitioner, as well as other readily available sites. Finally, the Regional Director was to evaluate the propriety of conducting the election by mail ballot.
Petition filed by Sheet Metal Workers International Association Union, Local 441, AFL–CIO. Chairman Liebman and Members Becker and Pearce participated.
Goodyear Tire & Rubber Co. (26-CA-23778; 357 NLRB No. 38) Union City, TN, August 3, 2011.
The Board found that the employer violated the Act by telling employees that they could not wear t-shirts in the workplace that stated “Union till I Retire, then Scab In!” and “When I Retire I Will Not SCAB I’ll Go Fishing”, in reference to retirees who returned to work as contract laborers. The Board upheld the administrative law judge’s findings that the shirts were protected by the Act despite the use of the term “scab” and that the employer failed to demonstrate that the ban was justified by special circumstances. The Board specifically rejected the Employer’s argument that animosity left over from a 2006 strike created special circumstances that justified the ban. The Board also found that the employer violated the Act by threatening an employee with unspecified reprisals if he wore his t-shirt to work again.
Charge filed by an individual. Administrative Law Judge William N. Cates issued his decision on March 25, 2011. Chairman Liebman and Members Becker and Pearce participated.
International Brotherhood of Electrical Workers, Local 429 and its agent Nashville Electrical Joint Apprenticeship Training Committee (Elec-Tech Electrical Services) (26-CB-04240; 357 NLRB No. 34) Nashville, TN, August 3, 2011.
On remand from the United States Court of Appeals for the Sixth Circuit, the Board found that the Union and a joint apprenticeship training committee violated the Act by attempting to rotate an apprentice to a different employer and by disciplining him because of his dues delinquency and antipathy toward the Union. In finding the violations, the Board did not adhere to its original rationale in an earlier proceeding that the apprenticeship committee was a general agent of the Union. Instead, the Board found an agency relationship based on record evidence that the actions taken were directed by union officials and agents and that the union-appointed members of the committee did not act as trustees but acted to advance only union interests.
Chairman Liebman and Members Becker and Hayes participated.
Atlas Logistics Group Retail Services (Phoenix) LLC (28-CA-23178; 357 NLRB No. 37) Tolleson, AZ, August 5, 2011.
The Board affirmed the administrative law judge’s finding that the employer violated Section 8(a)(1) when a supervisor threatened an employee with unspecified reprisals if the employee did not cease engaging in union activity. Member Hayes would not find the supervisor’s statement to be a threat under the circumstances of this case.
Charge filed by an Individual. Administrative Law Judge William G. Kocol issued his decision on February 22, 2011. Chairman Liebman and Members Becker and Hayes participated.
Allstate Power Vac, Inc. (29-CA-28264 et al.; 357 NLRB No. 33) Brooklyn, NY, August 5, 2011.
The Board affirmed the earlier two-Member Board decision (354 NLRB No. 111) in which the Board adopted the administrative law judge's decision finding some 8(a)(3) and (1) and 8(a)(1) violations and dismissing other allegations. The Board also affirmed the earlier decision's remand of four alleged violations of 8(a)(3) and (1) to the judge for further analysis.
In the instant matter, back following remand to the judge, the Board adopts the judge's supplemental decision in part. First, the Board adopts the judge's dismissal of the 8(a)(3) and (1) allegations arising from the Respondent's discharge of two employees: one employee who failed to return to work following an excused absence and another employee who urinated into a coworker's drink bottle. Second, the Board adopts the judge's finding that the Respondent violated 8 (a)(3) and (1) by imposing more onerous working conditions on an employee. Contrary to the judge, however, the Board finds that the Respondent violated 8(a)(3) and (1) by suspending two employees and discharging a third employee, allegedly as a result of their failure to follow mandated safety procedures. Applying Wright Line, the Board finds that the Respondent failed to establish that it would have suspended and discharged the employees even in the absence of their union activity.
Administrative Law Judge Raymond P. Green issued his supplemental decision on January 22, 2010. Chairman Liebman and Members Becker and Pearce participated.
Decisions of Administrative Law Judges
Carey Salt, Inc. a subsidiary of Compass Minerals International, Inc. (15-CA-19704 et al.; JD(ATL)-21-11) Cote Blanche, LA. Charges filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy Allied Industrial and Service Workers International Union, Local 14425. Administrative Law Judge Margaret G. Brakebusch issued her decision on August 1, 2011.
San Gabriel Transit, Inc. (21-CA-39559 et al.; JD(SF)-27-11) El Monte, CA. Charges filed by individuals. Administrative Law Judge Lana Parke issued her decision on August 1, 2011.
Goddard Riverside Community Center (02-CA-39604 et al.; JD(NY)-25-11) New York, NY. Charges filed by Local 74, United Service Workers Union, IUJAT. Administrative Law Judge Raymond P. Green issued his decision on August 3, 2011.
Appellate Court Decisions
Kiewit Power Constructors Co., No. 17-CA-24192 (published at 355 NLRB No. 150) (D.C. Cir., decided August 3, 2011).
In a published opinion the D.C. Circuit granted the Board's cross-application in the above-captioned case and enforced the Board's order in full. During the course of a dispute between the employer and the union over the location for employee breaks, two employees protested a threat of discipline by saying that, if they got laid off, "it's going to get ugly" and that the employer's manager "better bring his boxing gloves." Applying Atlantic Steel Co., 245 NLRB 814 (1979), the Board, by a 2-1 vote, found that these comments, while intemperate, did not lose the Act's protection.
The Court held that substantial evidence supported the Board's conclusion. Of the contested Atlantic Steel factors, the Court agreed that, while opprobrious comments on the shop floor in front of coworkers normally favor loss of protection, that the employer chose the location for a disciplinary warning likely to provoke a negative reaction mitigated that factor's typical weight. More importantly, as to the nature of the comments, the Court held that the Board properly concluded that the two employees' comments were not physical threats; rather, the Court observed that "such metaphors are part and parcel of competitive spirit," and that "[i]t would defeat section 7 if workers could be lawfully discharged every time they threatened to 'fight' for better working conditions." Judge Henderson dissented. Relying heavily on former Board Member Schaumber's dissenting opinion, she disagreed that substantial evidence supported the Board's finding that the two employees' comments were mere figures of speech. Seeing actual threats of physical conflict, she would have found the employees' comments unprotected.
The Court's published opinion is available here.
Bally's Park Place, No. 4-CA-35304 (published at 355 NLRB No. 218) (D.C. Cir., decided August 5, 2011).
The D.C. Circuit enforced the Board's order, agreeing that the Casino failed to prove that it would have discharged a union activist for abusing 20 minutes of Family and Medical Leave Act (FMLA) leave in the absence of his union activity.
After the discriminatee became involved in a union organizing campaign at this Atlantic City-based casino, the Casino engaged in a series of coercive acts designed to squelch his activity--it unlawfully restricted the employee from discussing the union campaign on the casino floor and solicited grievances from employees and promised to remedy them. During the campaign, the union held a rally from 10:30 a.m. to 12:15 p.m.; on that day, the discriminatee used FMLA leave to care for his daughter, calling in for his 12 noon to 8 p.m. shift. Despite using FMLA leave, the discriminatee attended the rally before picking up his daughter, only leaving the rally at 12:20 p.m.--20 minutes after his shift would have begun. The Casino discharged him for using 20 minutes of FMLA leave to attend the rally under a policy requiring "employees [to] be honest and forthcoming in all communications."
The Board found that the Casino unlawfully fired the discriminatee, and the Court agreed. The Court noted the overwhelming evidence supporting the Board's finding that the Casino acted on its discriminatory motive, observing that the Casino did not challenge that finding "for good reason." Then, the Court explained that substantial evidence supported the Board's decision that the Casino failed to show that it would have terminated the discriminatee absent his protected union activity. In so holding, the Court relied on the Casino's failures to (a) have a written no-tolerance policy for abuse of FMLA leave; (b) discharge other employees who committed similar infractions; and (c) follow the progressive disciplinary policy in its employee manual.
The Court's opinion is available here.
Spectrum Health-Kent Community Campus, No. 7-CA-50996 (published at 355 NLRB No. 101) (D.C. Cir., decided August 5, 2011).
In a published opinion, the D.C. Circuit denied the employer's petition for review, agreeing with the Board that the employer unlawfully withdrew recognition from the union while a three-year contract was still in effect. Further, the Court agreed that the employer's failure to file exceptions to the administrative law judge's recommended affirmative bargaining order precluded it from raising that issue on appeal.
After protracted negotiations, the employer and the union signed an agreement that, by its terms, was "effective on April 13, 2005" and expired at "12:01 a.m. on "April 1, 2008." The cover of the agreement, however, stated that it was effective "January 1, 2005 through March 31, 2008." On January 7, 2008, the employer withdrew recognition from the union based upon a petition signed by a majority of bargaining-unit employees, and thereafter made a host of unilateral changes to working conditions. The Board rejected the employer's argument that the effective date of the contract was January 1, 2005, and, thus, it was privileged to withdraw recognition after three years under Shaw's Supermarkets, 350 NLRB 585 (2007). Instead, the Board concluded that the contract's effective date was April 13, 2005, and therefore the contract bar still applied as of the withdrawal of recognition.
Reviewing the Board's contract interpretation de novo, the Court agreed. Like the Board, it concluded that the dates on the agreement--and various provisions inside using April 13 as trigger dates for raises--rendered the contract's effective date ambiguous at best. Relying on extrinsic evidence of the parties' negotiating history, the Court concluded that "the bargaining history . . . confirms the Board's contention that the parties did not intend to make the term of the entire agreement retroactive to January 1, 2005." It therefore agreed that the employer unlawfully withdrew recognition while a binding contract established a conclusive presumption of majority status.
Further, the Court agreed that Section 10(e) of the Act deprived the Court of jurisdiction to consider the employer's challenge to the affirmative bargaining order. The Court noted that the employer failed to challenge the affirmative bargaining order in its exceptions, which was fatal to raising the objection at any further point. Nor did its motion for reconsideration challenging the affirmative bargaining order, or the Board's decision to address the merits of the employer's contention then, revive its initial failure to raise its objection at the proper time.
Community Medical Center, Inc., No. 4-CA-34888 (published at 355 NLRB No. 128) (3d Cir., decided August 3, 2011).
In an unpublished opinion, the Third Circuit enforced the Board's order dismissed the employer's challenge to the Board's order directing a second election.
This case involves an employer, an acute-care hospital, that committed two unfair labor practices in the months leading up to a representation election among its nurses. First, on the day the union filed its election petition and the day afterward, the employer publicly--in front of numerous nurses--denied union representatives access to its parking lot, even though it had granted them access previously. The Board found that this discriminatory denial of access violated the Act, and the Court agreed, noting that the employer had waived its single challenge to the finding by not presenting it to the Board in the first instance. Second, after the petition was filed, the employer began touting a "shared governance" program, which it designed to empower its nursing staff with additional input in administrative decisions. The Court agreed with the Board that "substantial evidence supports the ALJ's conclusion that [the employer] promoted the shared governance program for the improper purpose of influencing the union election." In so holding, the Court relied heavily on the Board's finding that the employer hired two union activists--who had previously identified shared governance as an obstacle to unionization--to heavily sell the program, that the employer promised several prounion nurses leadership positions in shared governance, and that the employer only began pushing to implement it around the time of the election. Finally, the Court held that it had no "jurisdiction to review the Board's order of a new election"--which the Board issued based on the underlying unfair labor practices--"because that order is not final until the new election is complete."
SEIU Local 32BJ v. NLRB, No. 2-CA-33146 (published 355 NLRB No. 151, under the name AM Property Holding Corp.) (2d Cir., decided August 1, 2011).
In a published opinion, the Second Circuit denied the union's petition for review of several aspects of the Board’s decision, but remanded in part for the Board to consider a successorship issue that it previously decided against the union on procedural grounds.
The Board had concluded, contrary to the administrative law judge, that AM Properties, the new building owner, was not a joint employer with either Planned Building Services or Servco Industries, two cleaning contractors it hired, and, therefore, those entities were not joint successors to the prior building owner's cleaning crew. In so holding, the Board declined to consider whether Planned Building Services was, individually, a successor to the prior cleaning contractor. Instead, the Board concluded it had no authority to consider the issue because the General Counsel’s complaint did not allege that Planned Building Services was an individual successor. Finally, the Board declined to issue a corporate-wide cease and desist order against Planned Building Services for the host of violations it did commit, including unlawful interrogations and threats, unlawful assistance and recognition of a rival union, and unlawful refusals to hire employees of the prior contractor. The Charging Party Union filed a petition for review.
The Second Circuit agreed that the Board reasonably concluded that AM and the two cleaning contractors were not joint employers, rejecting the union's argument that the Board ignored indistinguishable precedent and made inaccurate fact findings. Similarly, the Court, found that the Board acted within its discretion in declining to order broad cease and desist relief, quoting one of its earlier decisions explaining that 'the problem of how drastic to mold the remedy in a particular proceeding . . . calls for the sensitive exercise of administrative judgment.
The Court, however, agreed with the union that the Board improperly declined to decide whether Planned Building Services was, individually, a successor to the prior cleaning contractor. As the Court explained, "the Board may identify a violation of the Act that was not specifically alleged in the complaint or advanced by the General Counsel if the parties had sufficient notice to satisfy due process," e.g., whether it was closely connected to the subject matter of the complaint and had been fully litigated. According to the Court, the Board erred in failing to even consider whether the successorship issue was closely related and fairly litigated "such that finding a violation on that ground would comport with due process." The Court rejected the Board's concern that a successorship finding would be precluded because the General Counsel did not prove the bargaining unit's appropriateness, observing that, under Board law, a single facility unit like the one at issue is "presumptively appropriate." It therefore remanded to the Board to determine whether Planned Building Services was a successor, and whether reaching the successorship issue would comport with due process. The Court further directed that if the Board finds that due process concerns preclude it from deciding the issue on the current record, it should decide whether to remand the successorship issue to the ALJ for additional hearings.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Salem Hospital Corporation a/k/a The Memorial Hospital of Salem County (04-RC-21697) Salem, NJ, August 3, 2011. Decision and certification of representative. Charge filed by Health Professionals and Allied Employees (NPAE).
Cottonwood Healthcare (20-RC-18208) Woodland, CA, August 4, 2011. Order denying request for review and remanding the case to the Regional Director for appropriate action. Charge filed by National Union of Healthcare Workers.
Woodland Skilled Nursing Center (20-RC-18211) Woodland, CA, August 4, 2011. Order denying request for review and remanding the case to the Regional Director for appropriate action. Charge filed by National Union of Healthcare Workers.
Sugar House HSP Gaming LP (04-RC-21742) Philadelphia, PA, August 5, 2011. Decision and certification of results of election. Charge filed by MRC of Carpenters, Southeastern Pennsylvania, State of Deleware, and Eastern Shore of Maryland.
UNITE HERE Local 1 (The Ritz-Carlton Chicago) (13-CB-19622) Chicago, IL, August 1, 2011. Order denying motion for summary judgment. Charge filed by Ritz Carlton Hotel.
Ozark Automotive Distributors, Inc. d/b/a O’Reilly Auto Parts (21-CA-39846) Moreno Valley, CA, August 1, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charge filed by Teamsters, Chauffeurs, Warehousemen, Industrial and Allied Workers of America, Local 166.
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