Summary of NLRB Decisions for the Week of August 15-19, 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
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC (Trimas Corporation d/b/a Cequent Towing Products, and an individual(25-CB-008891 et al.; 357 NLRB No. 48) Goshen, IN, August 16, 2011.
The Board majority (Chairman Liebman, Members Becker and Hayes) found that the Respondent Union violated its duty of fair representation by requiring employees it represents who are not union members and who seek objector status under Communications Workers of America v. Beck to assert their objection on an annual basis. The majority found that the Respondent failed to present a legitimate justification for its annual renewal requirement sufficient to justify the burden the requirement imposes on an individual seeking to extend an objection, and thus that the requirement is arbitrary under the duty of fair representation, and that in imposing it on the Charging Parties—and refusing to honor their specific request that their Beck objections be permanent and continuing in nature—the Respondent violated Section 8(b)(1)(A) of the Act. The majority decision further found, however, that the requirement was neither discriminatory nor undertaken in bad faith.
Member Hayes, concurring in part and dissenting in part, agreed with the violation found, but further explained his view that the annual renewal requirement infringes on employees’ fundamental Section 7 right to refrain from assisting a union and must therefore be analyzed under Section 8(a)(3) and 8(b)(1)(A) rather than under the more deferential duty-of-fair-representation standard. Member Hayes further dissented from the finding that the Respondent’s annual renewal requirement was not discriminatory.
Member Pearce, dissenting in part, agreed with the majority that the appropriate legal framework for analyzing this case is the duty of fair representation under Section 8(b)(1)(A), but would dismiss the allegation because the Union’s annual-renewal requirement rationally serves its legitimate interests and was well supported by legal precedent at the time of its actions, and that accordingly the General Counsel did not meet his burden of proving that the Union’s action was arbitrary, discriminatory, or in bad faith.
Charges filed by Individuals. Administrative Law Judge John H. West issued his decision August 6, 2009. Chairman Liebman and Members Becker, Pearce, and Hayes participated.
Uwanta Linen Supply, Inc. (06-CA-36888, et al.; 357 NLRB No. 55) Wheeling, WV, August 17, 2011.
The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file a timely and sufficient answer to the complaint. The Board found that even assuming that the Respondent demonstrated good cause for the answer’s untimeliness, the answer did not deny the substance of the complaint’s factual allegations. The Board ordered the Respondent to restore the employees’ health insurance and reimburse them for expenses ensuing from the unilateral discontinuance of their health insurance.
Charges filed by Mid-Atlantic Regional Joint Board, Local 141, Workers United, and General Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 697, a/w International Brotherhood of Teamsters. Chairman Liebman and Members Becker and Pearce participated.
Dilling Mechanical Contractors (25-CA-25094 et al.; 357 NLRB No. 56) Indianapolis, IN August 19, 2011.
A unanimous panel of the Board granted the General Counsel’s request to withdraw the complaint allegation that the Respondent Employer violated Section 8(a)(1) of the Act by filing and maintaining a state court lawsuit against the Union and one of its organizers. The Board explained that the General Counsel never asserted a theory that the lawsuit is unlawful under the parameters of the Supreme Court’s decision in BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002), and the Board’s supplemental decision in BE&K Construction, 351 NLRB 451 (2007), which decisions issued subsequently to the complaint allegation in this case.
The Board denied, however, the General Counsel’s request to withdraw the complaint allegation that the Respondent violated Section 8(a)(1) of the Act by its discovery requests in its lawsuit seeking the names of the Respondent’s employees who joined the Union. The Board observed that the General Counsel’s theory has throughout the proceeding been that the discovery requests had an illegal objective, and explained that the Supreme Court’s decision in BE&K did not alter the Board’s authority to find court proceedings that have an illegal objective under federal law to be an unfair labor practice.
Member Hayes, dissenting in part, deemed the General Counsel’s motion to withdraw the complaint to be comprehensive of both allegations, would dismiss the complaint in its entirety, and therefore found it unnecessary to pass on the merits of the discovery allegation or the legal theory by which it should be decided. .
Charges filed by Indiana State Pipe Trades Association and Plumbers Local Union No. 166. Administrative Law Judge Paul Bogas issued his decision May 12, 2000 and his supplemental decision February 28, 2003. Chairman Liebman and Members Hayes and Pearce participated. Member Becker was recused from the case.
Glaziers District Council 16 (20-CD-752; 357 NLRB No. 58) San Francisco, CA, August 19, 2011.
The Board in this Decision and Determination of Dispute under Section 10(k) of the Act, noted that the case was a sequel to Glaziers District Council 16 (Service West), 356 NLRB No. 105 (2011). The Board again decided that employees represented by the Carpenters rather than employees represented by the Glaziers were entitled to continue to perform the disputed work. The disputed work constituted the installation of demountable floor-to-ceiling wall systems with glass partitions. In making its determination, the Board relied on the factors of Carpenters’ Agreement, employer preference, current assignment and past practice, relative skills and training, and economy and efficiency of operations.
Chairman Liebman and Member Pearce denied the Employer’s request for a broad order. They noted that the evidence showed that the disputed work had been a continuous source of controversy in the relevant geographical area and that similar disputes might recur. However, they found that the Glaziers did not have a proclivity to engage in further unlawful conduct to obtain the disputed work. They noted that the Glaziers engaged in only two instances of proscribed conduct, neither in defiance of a Board order. Member Hayes disagreed and would have granted the Employer’s request for a broad order based on the Glaziers’ conduct in this case and the prior case.
Charge filed by MALV d/b/a Service West. Chairman Liebman and Members Pearce and Hayes participated,
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Kaiser Foundation Health Plan, Inc; Kaiser Foundation Hospitals; Southern California Permanente Medical Group; The Permanente Medical Group, Inc.(32-RC-05775) Pasadena, CA, August 16, 2011. Order – advising exceptions filed by Petitioner to the Acting Regional Director’s report and recommendations on objections and notice of hearing are moot. Petitioner – National Union of Healthcare Workers. Chairman Liebman and Members Pearce and Hayes participated.
Trillium Family Services, Inc. (36-RC-06520 et al.) Corvallis, OR, August 16, 2011. Order – Officer in Charge is to open and count ballots and thereafter prepare and serve on the parties a revised tally of ballots and issue the appropriate certification. Petitioner – Service Employees International Union Local 503, Oregon Public Employees Union.
Omni Waste Services, Inc.(22-RD-01552) Paterson, NJ, August 16, 2011. The Board having considered objection to an election held January 7, 2011, and the Administrative Law Judge’s recommending disposition of them, and no exceptions having been filed, adopted the Administrative Law Judge’s findings and recommendations, and found that a certification of representative should be issued. Petitioner – an individual.
Cronstroms Heating and Sheet Metal(18-RC-17757) St. Louis Park, MN, August 17, 2011. The Board having considered challenged ballots in an election held May 11, 2011, the Regional Director’s report recommending disposition of them, and no exceptions having been filed, adopted the Regional Director’s findings and recommendations, and found that a certification of results of election should be issued. Petitioner – Sheet Metal Workers International Association, Local 10.
Raymours Furniture Company, Inc. d/b/a Raymour & Flanigan Furniture(29-RC-12056) Staten Island, NY, August 17, 2011. The Board having considered objections to an election held June 15, 2011, the Regional Director’s report recommending disposition of them, and no exceptions having been filed, adopted the Regional Director’s findings and recommendations, and found that a certification of results of election should be issued. Petitioner - International Brotherhood of Electrical Workers, Local 1430.
Park Management Corporation d/b/a Six Flags Discovery Kingdom(20-RC-18341) Vallejo, CA, August 17, 2011. The Board having considered objections to an election held May 17, 2011, the Regional Director’s report recommending disposition of them, and no exceptions having been filed, adopted the Regional Director’s findings and recommendations, and found that a certification of results of election should be issued. Petitioner – IAMAW District Lodge 190, Local Lodge 1596.
SutterWest Bay Hospital d/b/a California Pacific Medical Center (California, Davies, and Pacific Campuses)(20-RC-18214) San Francisco, CA, August 17, 2011. Order denying Intervenor’s request for review of the Regional Director’s supplemental decision regarding Intervenor’s objections to conduct of election and remanding case to the Regional Director for issuance of an appropriate certification of representative. Petitioner - National Union of Healthcare Workers. Chairman Liebman and Members Pearce and Hayes participated.
South Metro Human Services(18-RC-17751, 17752) St. Paul, MN, August 18, 2011. Order granting special appeal. Petitioner – American Federation of State, County, and Municipal Employees Council 5. Members Becker, Pearce and Hayes participated.
El PasoDisposal, L.P. (28-CA-21654, et al.) El Paso, TX, August 15, 2011. Revised order – Granting the joint motions to withdraw exceptions and cross exceptions and remanding cases to the Regional Director to confirm compliance with the Administrative Law Judge’s decision and to process the withdrawal of the petition filed in Case 28-RD-969. Charges filed by International Union of Operating Engineers, Local 351, AFL-CIO.
Ozburn-Hessey Logistics, LLC(26-CA-23675, et al.) Memphis, TN, August 16, 2011. Order granting motion to strike. Charges filed by United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC.
Biosource Landscaping Services, LLC(9-CA-46347) Xenia, OH, August 16, 2011. Revised notice to show cause – briefs due on or before August 30, 2011. Charge filed by Laborers International Union of North America, Local 1410, AFL-CIO.
Seaport Printing & AD Specialties, Inc. d/b/a Port Printing AD and Specialties(15‑CA‑17976) August 18, 2011. Order granting special appeal and remanding case to Regional Director for appropriate action. Charge filed by Lake Charles Printing and Graphics Union, Local 260 affiliated with Graphic Communications International Union, AFL-CIO. Chairman Liebman and Members Pearce and Hayes.
Appellate Court Decisions
No Appellate Court decisions involving NLRB cases were issued this week.
Decisions of Administrative Law Judges
OS Transport LLC and HCA Management, Inc. (32-CA-25100 et al.; JD(SF)-31-11) San Martin, CA. Order transferring proceeding to NLRB. Charge filed by Teamsters Local No. 350, International Brotherhood of Teamsters, Change to Win. Administrative Law Judge Gerald M. Etchingham issued his decision August 15, 2011.
Des Moines Cold Storage, Inc. (18-CA-19653; JD-48-11) Des Moines, IA, August 17, 2011. Decision and order transferring proceeding to NLRB. Charge filed by General Team and Truck Drivers, Helpers and Warehousemen, Local 90. Administrative Law Judge Earl E. Shamwell, Jr. issued his decision August 17, 2011.
Beacon Sales Acquisition, Inc. d/b/a Quality Roofing Supply Company (4-CA-39952 et al.; JDR-1-11) Philadelphia, PA, August 17, 2011. Special master’s report and order. Charges filed by International Union of Operating Engineers, Local 542, AFL-CIO. Administrative Law Judge Paul Buxbaum issued his decision August 17, 2011.
Gaylord Chemical Co., LLC (10-CA-38782; JD-47-11) Tuscaloosa, AL, August 18, 2011. Decision and order transferring proceeding to NLRB. Charge filed by United Steelworkers International Union, Local 887. Administrative Law Judge Ira Sandron issued his decision August 18, 2011.
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