Summary of NLRB Decisions for the Week of February 13-17, 2012
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 Decision
Four Winds Services, Inc. (9-CA-62287; 358 NLRB No. 6) Fairborn, OH, February 14, 2012.
The Acting General Counsel sought a default judgment in this case on the ground that the respondent failed to file an answer to the consolidated complaint and compliance specification. The Board ordered the respondent to cease and desist from failing and refusing to bargain collectively and in good faith with the union by failing to continue in effect all the terms and conditions of employment of the unit; by failing to remit to the union the union dues deducted from employees’ paychecks; failing to make the weekly contributions on behalf of unit employees to the union’s Ohio Conference of Teamsters & Industry Health and Welfare Fund; failing to pay employees their accrued vacation pay; and interfering with, restraining or coercing employees in the exercise of the rights guaranteed them by the Act.
Charge filed by General Truck Drivers, Warehousemen Helpers, Sales and Service and Casino Employees, Teamsters, Local 957. Chairman Pearce and Members Hayes and Griffin participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Meredith Corporation (17-RC-068104) Fairway, KS, February 13, 2012. Order denying employer’s request for review of the Regional Director’s decision and direction of election. Petitioner – American Federation of Television and Radio Artists (AFTRA), Kansas City Local. Chairman Pearce and Members Hayes and Griffin participated.
Embarq Florida, Inc. d/b/a Century Link (12-RC-066089) Altamonte Springs and Orange City, FL, February 14, 2012. Decision and certification of representative. Petitioner – Communications Workers of America, AFL-CIO.
National Vision, Inc., d/b/a America’s Best Contacts and Eyeglasses (18-RC-065382) Burnsville, MN, February 14, 2012. Decision and certification of representative. Petitioner – United Food and Commercial Workers, Local 653. Chairman Pearce and Members Hayes and Griffin participated.
Polytechnic Institute of New York University (29-RC-012054) Brooklyn, NY, February 16, 2012. Order denying petitioner’s request for leave to file supplemental memorandum of law. Petitioner – United Auto Workers International Union.
New Link Ltd., Inn Site, Inc., and Cherlayne, Inc., single employer and Detroit Center for Care, LLC, joint employer (7-CA-53651) Detroit, MI, February 13, 2012. Order transferring proceeding to the Board and notice to show cause why Acting General Counsel’s motion should not be granted. Charge filed by Michigan Council 25, American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO.
Remington Hotel Corporation d/b/a The Sheraton Anchorage (19-CA-32734, et al.) Anchorage, AK, February 14, 2012. Order denying special permission to appeal. Charges filed by UNITE‑HERE! Local 878, AFL-CIO. Chairman Pearce and Members Hayes and Griffin participated.
Appellate Court Decisions
Regency Grande Nursing and Rehabilitation Center, Board Case No. 22-CA-29318 (reported at 356 NLRB No. 146) (3d Circuit decided February 14, 2012)
In an unpublished opinion, the Court rebuffed the employer's challenges to the union's election victory, and accordingly found that the employer’s refusal to bargain after the Board certified the election violated Section 8(a)(5) of the Act.
The Court first agreed that the Board properly excluded the ballots of 29 employees whom the employer hired immediately prior to the electionin order to pack the bargaining unit. In the Court's view, the record supported the Board's findings that the 29 employees submitted incomplete applications, never actually worked at the facility, were paid for substantially fewer hours than other employees in their job classifications, and were hired at a different time than the employer's historic hiring practices. Second, the Court upheld the Board's conclusion that the union's observer did not engage in objectionable conduct by using a challenge list during the election to keep track of voters the union deemed ineligible. Finally, the Court agreed that the Board did not need to remand the earlier two-member decision to the Regional Director for certification but could simply certify the union itself, and it upheld Member Becker's decision not to recuse himself.
The Court's opinion is available here.
American Standard Co., Board Case No. 8-CA-33352 (reported at 356 NLRB No. 4) (D.C. Cir. decided February 17, 2012)
In an unpublished per curiam judgment, the Court enforced the Board's order and denied the employer's petition for review in this case in which the Board found the employer had breached its statutory bargaining obligations.
First, the Court agreed that the employer unlawfully implemented its contract proposals in the absence of agreement or impasse, rejecting the employer's alternative arguments that the parties reached either agreement or impasse. For both arguments, the Court agreed with the Board that the evidence demonstrated that the parties were "heading towards an agreement"--but had not reached one--when the employer "suddenly broke off negotiations and declared that an agreement already existed," despite the union's attempt to keep negotiating. Second, the Court affirmed the Board's finding that the employer unlawfully eliminated a wage premium without bargaining; it rebuffed the employer's claims that an expired contract or defunct settlement agreement privileged the change. Finally, the Court summarily enforced a variety of uncontested violations.
The Court's unpublished judgment is available here.
Allied Mechanical Services, Inc., Board Case No. 7-CA-40907 (reported at 356 NLRB No. 1) (D.C. Circuit decided February 17, 2012)
In a published opinion, the Court denied the employer's petition for review and enforced the Board's order finding that the employer unlawfully repudiated a bargaining relationship that had been created under Section 9(a) of the Act, and was not a Section 8(f) construction-industry pre-hire relationship that ended with the expiration of the agreement.
This case has a long and complex history, but the relevant facts ultimately turn on a single 1991 settlement agreement between the Board and the employer resolving an unfair labor practice complaint that, among other things, sought a Gissel bargaining order. Under that settlement agreement, the employer agreed to recognize the union "as the exclusive bargaining representative of the [unit] employees." In 1998, the employer refused to provide information to the union, withdrew recognition, and unilaterally changed its job application procedures. In its defense, the employer claimed that the settlement agreement established only a pre-hire construction industry relationship under Section 8(f) of the Act, which it could repudiate at contract's end, not an ongoing 9(a) relationship, which it could not.
The Court, affirming the Board, found the employer's defense "utterly implausible." As the Court observed, the settlement agreement resolved a complaint seeking a Gissel bargaining order--which creates a traditional 9(a) relationship. It said nothing about Section 8(f), which "merely permits unions and employers in the construction industry to enter into collective bargaining agreements without the union having to establish that it has the support of a majority of the employees...." To find that 9(a) majority status was properly established, the Court relied on allegations in the complaint stating that a majority of employees had signed authorization cards supporting the union, the employer's failure to challenge that allegation, and the presumption that the Board properly investigated and ascertained majority status before issuing the complaint. In doing so, the Court narrowed its prior decision in Nova Plumbing, Inc. v. NLRB, 330 F.3d 531 (D.C. Cir. 2003), to the straightforward proposition that "an employer and union in the construction industry are not free to 'convert' an 8(f) relationship into a 9(a) bargaining relationship 'that lacks the support of a majority of employees,'" and explained that, unlike Nova Plumbing, this case did not "implicate Nova Plumbing's broader concern about the possibility of employer-union collusion." Next, the Court explained why the settlement agreement on its plain terms did not constitute an 8(f) pre-hire contract, rebuffing the employer's arguments to the contrary as "specious." Finally, the Court noted that proper deference to the Board's fact finding also warranted enforcement.
The Court's opinion is available here.
Decisions of Administrative Law Judges
NTN-Bower Corporation (10-CA-38816; JD(ATL)-07-12) Hamilton, AL. Charge filed by International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO CLC. Administrative Law Judge Michael A. Marcionese issued his decision on February 15, 2012.
Kennametal, Inc. (01-CA-046689; JD-10-12) Lyndonville, VI. Charge filed by United Steelworkers, Local 5518, affiliated with United Steelworkers of America, AFL-CIO. Administrative Law Judge Paul Bogas issued his decision on February 16, 2012.
Public Service Company of New Mexico (28-CA-22655, et al.; JD(SF)-08-12) Albuquerque, NM. Charges filed by International Brotherhood of Electrical Workers, Local 611, AFL‑CIO. Administrative Law Judge William L. Schmidt issued his decision on February 17, 2012.
Coastal Sunbelt Produce, Inc. (05-CA-36362; JD-11-12) Savage, MD. Charge filed by an individual. Administrative Law Judge Eric M. Fine issued his decision on February 17, 2012.
Hills and Dales General Hospital (07-CA-53556; JD-09-12) Cass City, MI. Charge filed by an individual. Administrative Law Judge Geoffrey Carter issued his decision on February 17, 2012.
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