Summary of NLRB Decisions for Week of May 14-18, 2012
The Summary of NLRB Decisions 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
Metropolitan Regional Council of Carpenters, Southeastern Pennsylvania, State of Delaware, and Eastern Shore of Maryland, and its affiliated Local, Carpenters Union Local 2012 (Forcine Concrete & Construction Co.) (04-CB-010520; 358 NLRB No. 39) Malvern, PA, May 15, 2012.
The Board agreed with the administrative law judge’s finding that the union did not violate employees’ right to refrain from protected conduct when its representatives entered the employer’s worksite and, without identifying themselves or their purpose as union related, questioned several employees about their employment and immigration status; recorded the questioning on video; posted an edited version of the video on YouTube; and linked the video to the local union’s Facebook page. The Board found that there was no evidence to support the judge’s findings that the employees would have been likely to become aware of and watch the video; as a result, it did not rely on those speculative statements or on the speculation about how the employees would have been affected. The Board further stated that there was no recorded evidence that the employees actually became aware, at any time, of their questioners’ union affiliation.
Charge filed by Forcine Concrete & Construction Co., Inc. Administrative Law Judge Arthur J. Amchan issued his decision on May 18, 2011. Chairman Pearce and Members Griffin and Block participated.
Oak Harbor Freight Lines, Inc. (19-CA-031797, et al.; 358 NLRB No. 41) California, Oregon,
Washington, and Idaho, May 16, 2012.
The Board found, in agreement with the administrative law judge, that the employer did not violate the Act by unilaterally ceasing its payments into the Washington Teamsters Welfare Trust, the Western Conference of Teamsters Pension Trust Fund, and the Retirees Welfare Trust. The Board agreed with the judge that the signed cancellation language in the Subscription Agreements for the Washington Teamsters Welfare Trust and the Retirees Welfare Trust, and in the employer union pension certifications for the Western Conference of Teamsters Pension Trust Fund, constituted a waiver of the unions’ right to bargain with the employer concerning its cancellation of contributions into the funds upon the expiration of the parties' collective-bargaining agreement. Contrary to the judge, the Board also found, however, that because no signed termination or cancellation language existed for the Oregon Warehouseman Trust, the unions did not waive their right to bargain about the employer's unilateral stoppage of payments into that Trust. Accordingly, the Board found that the employer violated the Act by stopping its payments into the Oregon Warehouseman Trust without providing the unions with notice and the opportunity to bargain over its decision to take that action.
The Board further found that the employer also violated the Act by unilaterally implementing its company health care plan for bargaining unit employees and thereafter refusing to bargain in good faith with regard to health care benefits.
Charges filed by Teamsters, Locals 81, 174, 231, 252, 324, 483, 589, 690, 760, 763, 839, and 962. Administrative Law Judge John J. McCarrick issued his decision on January 5, 2011. Chairman Pearce and Members Hayes and Griffin participated.
Goya Foods, Inc., d/b/a Goya Foods of Florida (12-CA-019668, et al.; 358 NLRB No. 43) Miami, FL, May 17, 2012.
In this compliance proceeding, the Board agreed with the administrative law judge’s finding that private settlements between the respondent and two employees should be rejected in their entirety. The settlements purported to prohibit the employees from “engaging in any union activity” relating to the respondent or its employees. The Board found that this prohibition on union activity invalidated the settlements in their entirety. In the alternative, the Board rejected the settlements under its traditional four-factor test, finding that all four factors favored rejecting the settlements. Member Hayes found it unnecessary to pass on this alternative analysis. The Board remanded the case for further proceedings.
Charges filed by Southern Regional Joint Board, Workers United a/w SEIU. Administrative Law Judge Margaret G. Brakebusch issued her decision on March 21, 2011. Members Hayes, Griffin, and Block participated.
Independence Residences, Inc. (29-CA-030566; 358-NLRB No. 42) Woodhaven, NY, May 18, 2012.
In this refusal-to-bargain case, the Board adopted the administrative law judge’s finding that Workers United was the successor union to UNITE, the employees’ certified representative. The Board also adopted the administrative law judge’s finding that the respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with Workers United and failing to provide Workers United with certain relevant information. The Board also rejected the respondent’s argument that turnover within the unit or the passage of time rendered a bargaining order inappropriate. Instead, the Board found that a bargaining order best effectuates the purposes of the Act because there was no evidence putting in doubt Workers United’s continuing majority support and because a bargaining order protects against an employer’s incentive to disregard its duty to bargain in the hope that over a period of time a union will lose its majority status. Member Hayes dissented from the decision to issue a bargaining order because of the equitable principles articulated by the court NLRB v. Connecticut Foundry Co., 688 F.2d 871 (2d Cir. 1982) and NLRB v. Nixon Gear, Inc., 649 F.2d 906 (2d Cir. 1981).
Charges filed by Workers United, SEIU. Administrative Law Judge Steven Fish issued his decision on August 24, 2011. Members Hayes, Griffin, and Block participated.
Nestlé-Dreyer’s Grand Ice Cream, Inc. (31-CA-074297; 358 NLRB No. 45) Bakersfield, CA, May 18, 2012.
This is a refusal-to-bargain case in which the respondent was contesting the union’s certification as bargaining representative. The Board ordered the respondent to cease and desist from failing and refusing to recognize and bargain with the union as the exclusive collective-bargaining representative of the employees in the bargaining unit; and interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by the Act.
Charge filed by International Union of Operating Engineers, Local 501, AFL-CIO. Chairman Pearce and Members Hayes and Griffin participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
Center City International Trucks, Inc. (09-RD-061754) Columbus, OH, May 15, 2012. Order denying petitioner’s request for review of the Regional Director’s administrative dismissal of the petition and affirming the Regional Director’s dismissal of petition. Petitioner – an individual. Members Hayes, Griffin, and Block participated.
Buzz Oates Construction (20‑RC‑018366) Sacramento, CA, May 15, 2012. Order denying petitioner’s request for review of the Regional Director’s supplemental decision. Petitioner – Sheet Metal Workers International Association, Local 162. Members Hayes, Griffin, and Block participated.
Watonwan County Sheriff’s Department (18-WH-076505) St. James, MN, May 17, 2012. Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938. Petitioner – Law Enforcement Labor Services, Inc.
Big Sky Hospitalities, LLC d/b/a Butte War Bonnet Hotel (19-CA-033164, et al.) Butte, MT, May 14, 2012. Revised notice to show cause why the Acting General Counsel’s motions should not be granted. Charges filed by UNITE HERE! Local 427.
Waterworks Plumbing & Backflow, Inc. (03-CA-027665, et al.) Tonawanda, NY, May 14, 2012. Decision and order where the Board ordered the respondent to cease and desist from failing and refusing to apply all terms of the local agreement to employees in the unit; failing or refusing to bargain collectively and in good faith with the union; and interfering with, restraining or coercing employees in the exercise of rights guaranteed them by the Act. Charges filed by United Association, Plumbing & Steamfitters, Local 22. Members Hayes, Griffin, and Block participated.
Local 687, Michigan Regional Council of Carpenters (Convention & Show Services, Inc.) (07‑CB‑015293)Lincoln Park, MI, May 14, 2012. Order denying charging party’s motion for reconsideration of the Board’s order. Charge filed by an individual. Members Hayes, Griffin, and Block participated.
American Medical Response, Inc. (28-CA-064303) Las Vegas, NV, May 14, 2012. Order granting the parties’ joint motion to remand proceeding to Regional Director for further appropriate action. Charge filed by Service Employees International Union, Local 1107.
Jewish Hospital & St. Mary’s Healthcare, Inc. d/b/a Our Lady of Peace (09‑CA‑066542) Louisville, KY, May 14, 2012. Order denying the respondent’s motion to accept late filing of exceptions and brief in support of exceptions to the Administrative Law Judge’s decision. Charge filed by AFSCME Council 62.
McIntosh Mirror, Door & Glass, Inc. (19-CA-065627) Seattle, WA, May 15, 2012. 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 Glaziers, Architectural Metal and Glassworkers, Local 188.
Henry Rodriguez, Sr., Henry Rodriguez, Jr., Monica Pritchett, and Christopher Pritchett, a California General Partnership, d/b/a Life’s Connection (32‑CA‑068654, et al.) Hollister, CA, May 15, 2012. 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 individuals.
GDT Electrical, Inc. d/b/a Gardner Electrical Corp. and Teller Electrical Corp. d/b/a Gardner Electrical Corp, and Sun Power and Electric, LLC, as alter egos (05‑CA‑034959, et al.) Norfolk, VA, May 16, 012. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charges filed by International Brotherhood of Electrical Workers, Local 80.
UFCW, Locals 951, 588, 7, 1036, 576 (18-CB-003850) Utica, NY, May 16, 2012. Order denying motion to rescind admonition.
Sanderson Farms, Incorporated (15-CA-066574, et al.) Collins, MS, May 17, 2012. Order denying the employer’s petitions to revoke subpoenas ad testificandum and subpoena dues tecum. Charges filed by Laborers’ International Union of North America, Local 693. Members Hayes, Griffin, and Block participated.
Chimes, District of Columbia, Inc. (05-CA-072091) Baltimore, MD, May 17, 2012. Order denying the employer’s petition to revoke the subpoena duces tecum. Charge filed by an individual. Chairman Pearce and Members Flynn and Block participated.
Ford Motor Company (07-CA-069444, et al.) Dearborn, MI, May 17, 2012. Order denying the employer’s petition to revoke subpoenas ad testificandum and subpoena duces tecum. Charges filed by an individual. Chairman Pearce and Members Flynn and Block participated.
K-VA-T Food Stores, Inc. d/b/a Food City (09‑CA‑046125, et al.) Louisa, KY, May 18, 2012. Order granting the motion to strike a portion of respondent’s brief in support of exceptions. Charges filed by Retail Wholesale Department Store Union.
American Medical Response of Connecticut, Inc. (34‑CA‑013051, et al.) West Hartford, CT, May 18, 2012. Order denying the respondent’s request for special permission to appeal from administrative law judge’s denial of its motion to defer. Charges filed by individuals. Members Hayes, Griffin, and Block participated.
Presidential Maintenance, LLC (05-CA-036428, et al.) Richmond, VA, May 18, 2012. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Charges filed by individuals.
Center City International Trucks, Inc. (09-CA-045338, et al.) Columbus, OH, May 18, 2012. Order granting the respondent’s and counsel for the Acting General Counsel’s requests to withdraw exceptions. Charges filed by International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 1471.
Appellate Court Decisions
Musical Arts Association, Board Case No. 8-CA-38834 (reported at 356 NLRB No. 166) (D.C. Circuit decided May 17, 2012)
In an unpublished judgment, the Court agreed with the Board that the employer unlawfully refused to bargain with local and national unions as joint collective bargaining representatives.
The employer owns and operates the Cleveland Orchestra, and has had a bargaining relationship with the local since 1819. Since the 1960s, the employer entered into a series of collective-bargaining agreements with the local focusing on parochial concerns. During this same time period, the employer (sometimes as a member of a multi-employer bargaining group) and the national union signed contracts governing issues national in scope, such as performance and recording rights. In 2007, the employer withdrew from multi-employer bargaining and attempted to negotiate a comprehensive electronic media agreement directly with the national. After two years of unsuccessful bargaining, the employer abruptly withdrew, and announced that it would only bargain with the local, which it claimed was the designated bargaining representative. The Board found that the employer's refusal to bargain with the national as a joint representative violated the duty to bargain in good faith.
The Court agreed. First, citing longstanding in-circuit and Board precedent, the Court rejected the employer's claim that "two or more unions may [not] serve as joint collective-bargaining representatives for a single unit of employees," recognizing that such an arrangement was permissible so long as a "workable pattern of bargaining" exists. Next, the Court endorsed the Board's finding that the parties' contracts, bargaining history, past interactions, and general industry practices confirmed that the parties had indeed treated the national union as a joint representative here. Further, the Court rebuffed the employer's claim that it could not be bound by its actions as part of a multi-employer bargaining association, noting that an individual employer's bargaining obligations survive withdrawal of a multi-employer unit. Finally, the employer contended that it did not waive its right to bargain with a single representative. But the Court dismissed that claim, finding it to be “as factually dubious as it is irrelevant."
The Court’s opinion is available here.
El Paso Electric Co., Board Case No. 28-CA-20136 (reported at 355 NLRB No. 71) (5th Cir. decided May 18, 2012).
In a published opinion, the Fifth Circuit enforced the Board’s order in the above-captioned case, holding that substantial evidence supported the Board’s findings that the employer made numerous unlawful unilateral changes and then disciplined employees pursuant to those changes.
This case concerns a host of unfair labor practices that the employer, a Texas power company, committed before, during, and after its meter-reader, collections, facilities, and call-center employees decided to join a 60-year old unit of linemen and other power plant workers. The Board had found that the employer repeatedly violated the Act, and the employer did not contest most of those holdings before the Court. Accordingly, the Court summarily enforced the Board's findings that the employer refused to meet at reasonable times for contract negotiations; impeded the union business agent’s ability to communicate with and represent employees; failed to provide relevant requested information; maintained an overbroad rule prohibiting union activities “on company time”; discriminatorily removed a union bulletin board; deprived an employee of Weingarten representation from a union official; and retaliated against a pro-union employee by giving her a negative performance appraisal.
Before the Court, the employer only disputed a handful of violations, all of which involved its duty to bargain over changes to employment terms. Relying on deference to the Board’s fact-finding, the employer’s admission that its challenges are “properly considered in the context of [its] other admitted . . . violations,” the exhaustive record, the Board’s measured dismissal of several complaint allegations, and the fact that the employer is not prohibited from ever making the disputed changes “but only ... from doing so unilaterally,” the Court rejected the employer’s challenges. Applying those principles, the Court agreed with the Board that the employer unlawfully: (a) failed to bargain over the elimination of a policy allowing meter readers to aggregate their daily breaks and finish work early, and discharged an employee, in part, for violating that altered policy; (b) implemented performance improvement plans to discipline call center employees’ tardiness; (c) established a new rule prohibiting customer service representatives from working on their coworkers’ accounts, and disciplined them for doing so; (d) set forth a new rule requiring boot inspection before the employer would pay meter readers for replacements; and (e) refused to bargain over the effects of closing a customer service facility. Judge Clement dissented and would have granted the petition for review on all of these violations.
The Court’s opinion is available here.
Decisions of Administrative Law Judges
Ozburn Hessey Logistics, LLC (26-CA-024057, et al.; JD(ATL)-12-12) Memphis, TN. Charges filed by United Steelworkers Union. Administrative Law Judge Robert A. Ringler issued his decision on May 15, 2012.
Chemical Solvents, Inc. and Turn-to-Transport, LLC, single employers/alter egos (08‑CA‑039218, et al.; JD-23-12) Cleveland, OH. Charges filed by Teamsters Local 507 a/w International Brotherhood of Teamsters. Administrative Law Judge Ira Sandron issued his decision on May 15, 2012.
Carey Salt Company, a subsidiary of Compass Minerals International, Inc. (15‑CA‑020035, et al.; JD(ATL)‑13‑12) 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 Keltner W. Locke issued his decision on May 16, 2012.
Pennsylvania American Water Company (06-CA-037197, et al.; JD-24-12) Pittsburgh, PA. Charges filed by Utility Workers Union of America, System, Local 537, AFL-CIO. Administrative Law Judge David I. Goldman issued his decision on May 17, 2012.
Graphic Communications Conference/International Brotherhood of Teamsters, Local 137C (Offset Paperback, MFRS, Inc.) (04-CB-010663; JD-25-12) Dallas, PA. Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on May 17, 2012.
Temecula Mechanical, Inc. (21-CA-039667, et al.; JD(SF)-23-12) Temecula, CA. Charges filed by Plumbers and Pipefitters, Local 398, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO. Administrative Law Judge John J. McCarrick issued his decision on May 17, 2012.
Laborers’ International Union of North America, Local 872, AFL-CIO (28-CB-065507; JD(SF)-24-12) Henderson, NV. Charge filed by an individual. Administrative Law Judge Gerald M. Etchingham issued his decision on May 18, 2012.
Target Corporation (29-CA-03804, et al.; JD(NY)-16-12) Valley Stream, NY. Charges filed by United Food & Commercial Workers, Local 1500. Administrative Law Judge Steven Davis issued his decision on May 18, 2012.
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