Summary of NLRB Decisions for the Week of May 19 to May 25, 2012
The Summary of NLRB Decisionsis 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
Dish Network Service, LLC (29-CA-30578 et al.; 358 NLRB No. 47) Farmingdale, NY, May 23, 2012
The Board panel agreed unanimously with the judge that the Respondent did not violate the Act by discharging an employee for unauthorized absence from work, and by withholding a bonus pay plan from unit employees that was applicable to employees at the respondent’s nonunion facilities. In adopting the dismissal of the latter allegation, the Board relied solely on the conclusion that the allegation was time-barred under the Act.
Charge filed by Communications Workers of America, Local 1108. Administrative Law Judge Raymond P. Green issued his decision on October 12, 2011. Chairman Pearce and Members Griffin and Flynn participated.
Jason Lopez’s Planet Earth Landscape, Inc.(31-CA-29817, et al.; 358 NLRB No. 46) Nipomo, CA, May 22, 2012.
The Board modified the special remedies ordered by the administrative law judge for the employer’s violations of the Act in the context of a representation election. Based on the likely effect of the violations on the unit, and citing particularly the immediate post-election layoffs of the 2 primary union supporters in a unit of only 15 employees, the Board found appropriate the judge’s recommendation that the employer’s president or a Board agent in his presence be required to read the notice at a meeting of employees. The Board did not agree with the judge’s recommendation that the remedy also require the employer to provide the union a list of employee names and addresses, because the union, now the certified representative of unit employees, was already entitled to that information. Member Flynn dissented with respect to the notice reading remedy, finding that the violations, although serious, were not widespread and were primarily directed at a single employee.
Charges filed by Laborers Pacific Southwest Regional Organizing Coalition, Laborers International Union of North America. Administrative Law Judge Gerald M. Etchingham issued his decision on December 5, 2011. Chairman Pearce and Members Griffin and Flynn participated.
Star West Satellite, Inc. (19-CA-075174; 358 NLRB No. 44) Bozeman and Kalispell, MT and Idaho Falls, Nampa, Post Falls, ID, May 23, 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 Brotherhood of Electrical Workers, Local 206 affiliated with International Brotherhood of Electrical Workers, AFL-CIO. Chairman Pearce and Members Hayes and Griffin participated.
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
PointPark University (06-RC-012276) Pittsburgh, PA, May 22, 2012. Notice and invitation to filed briefs. Petitioner – Newspaper Guild of Pittsburgh/Communications Workers of America, Local 38061, AFL-CIO, CLC
Coupled Products, LLC (25-RD-061324) Columbia City, IN, May 22, 2012. Order granting the petitioner’s request for review of the Regional Director’s administrative dismissal of the petition. Petitioner – an individual. Members Hayes, Griffin, and Block participated.
US Foods, Inc. (15-RC-076271) Montgomery, AL, May 23, 2012. Order amending the decision to permit the van drivers to vote under challenge and denying the employer’s request for review. Petitioner – Teamsters, Local 612, affiliated with International Brotherhood of Teamsters. Members Hays, Griffin, and Block participated.
Lori’s Diner International, Inc. (20-RD-002477) San Francisco, CA, May 23, 2012. Order denying the employer’s and petitioner’s requests for review of the Regional Director’s administrative dismissal of the petition. Petitioner – an individual. Members Hayes, Griffin, and Block participated.
Center City International Trucks, Inc. (09-CA-060153, et al.) Columbia, OH, May 21, 2012. Order adopting in the absence of exceptions the administrative law judge’s findings and conclusions ordering the respondent to take the recommended action. Charges filed by International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 54, Local Lodge 1471.
Center City International Trucks, Inc. (09-CA-045338, et al.) Columbus, OH, May 21, 2012. Order adopting in the absence of exceptions the administrative law judge’s findings and conclusions ordering the respondent to take the recommended action. Charges filed by International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 54, Local Lodge 1471.
Wil-Shar, Inc. (26-CA-023869, et al.) Rogers, AR, May 22, 2012. Order granting the parties’ joint motion to remand cases to the Acting Regional Director for approval of informal Board settlement. Charges filed by Ironworkers, Local 584.
USIC Locating Services, Inc. (08-CA-037328) Bridgeville, PA, May 22, 2012. Order denying the respondent’s motion to strike the charging party’s brief in support of exceptions for failure to comply with the Board’s rules and regulations. Charge filed by Communications Workers of America, Local 13000, AFL-CIO-CLC.
Town Development, Inc. t\a Parkway Center Inn (06-CA-037267) Pittsburgh, PA, May 22, 2012. Order adopting in the absence of exceptions the administrative law judge’s findings and conclusions ordering the respondent take the recommended action. Charge filed by Pennsylvania Joint Board a/w Workers United, SEIU.
SEIU United Healthcare Workers-West (21-CB-074064) Oakland, CA, May 23, 2012. Order denying the petitions to revoke subpoenas duces tecum. Charge file by an individual. Chairman Pearce and Members Flynn and Block.
Appellate Court Decisions
KSM Industries, Inc., Board Case No. 30-CA-137652 (reported at 355 NLRB No. 220)(7th Cir. decided May 22, 2012)
In a published opinion, the Court enforced the Board's order setting forth backpay for 42 unfair labor practice strikers whom KSM unlawfully refused to reinstate in 1997 after their union made an unconditional offer of reinstatement.
Initially, KSM challenged the Board's decision making in this former two-member Board case. To wit, KSM claimed that the Board denied it due process in taking only a single day after the D.C. Circuit's remand of the two-member decision to issue its new order. The Court, however, rejected this argument. The Court first concluded that, under Section 10(e) of the Act, it "lack[ed] authority to reach the merits of this argument because KSM did not raise it to the Board." Second, even if it had been properly before the Court, the Court explained that "[t]he pendency of New Process Steel was hardly a secret, and for all we know the Board was already busy taking another look at the cases that were potentially affected by it. . . . It takes much more for us to intervene than a disappointed party's hunch that the Board gave a cursory review to its case."
The Court next rejected KSM's various complaints about the merits of the backpay order. To begin, the Court agreed with the Board that five strikers did not lose their right to backpay by resigning to withdraw funds from their 401(k) accounts. As the Board found and the Court concurred, that action--taken because the strikers faced economic troubles--did not demonstrate their intent to permanently sever the employment relationship with KSM. This was particularly true for the strikers who resigned after KSM unlawfully refused to reinstate them. The Court also demurred on KSM's argument that the federal tax code and ERISA require a resignation to be real before an employee withdraws from his 401(k) account, noting that "whether an employee intended permanently to abandon employment is a factual question distinct from the question whether an employee resigned for tax or ERISA purposes."
Continuing, the Court concluded that KSM's remaining arguments were equally meritless. Affirming the Board's reasoning, the Court agreed that employees did not wait too long to begin their job search; that KSM failed to show that comparable jobs existed for an employee who could not find work; that three other employees quit interim employment with reasonable justifications; that another employee did not lose his right to backpay when his interim employer terminated him for "misconduct" that fell short of gross misconduct or when KSM filled his job with two non-unit workers. Finally, according to the Court, the Board properly used seniority over merit to determine striker recall order because KSM had earlier admitted that seniority was appropriate and failed to offer anything other than ambiguity in describing how it would administer its merit based system. The Court also summarily enforced the Board's backpay calculations for the 31 strikers KSM did not challenge.
The Court's opinion is available here.
Decisions of Administrative Law Judges
Piggly Wiggly Midwest, LLC(30-CA-067117, et al.; JD-21-12) Sheboygan, WI. Charges filed b United Food & Commercial Workers Union, Local 1473. Administrative Law Judge Eric M. Fine issued his decision on May 21, 2012,
International Longshoremen’s Association, Local 1242, AFL-CIO (Philadelphia Marine Trade Association) (04-CB-065887; JD-20-12) Philadelphia, PA. Charge filed by an individual. Administrative Law Judge Robert A. Giannasi issued his decision on May 23, 2012.
New York Air Brake Corporation (03-CA-028158; JD-26-12) Washington DC. Charge filed by the International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 65, Local Lodge 761. Administrative Law Judge John Clark issued his decision on May 24, 2012.
Albertson’s, LLC (28-CA-023387; JD(SF)-25-12) Washington DC. Charges filed by United Food and Commercial Workers Union, Local 1564 and an individual. Administrative Law Judge William Schmidt issued his decision on May 24, 2012.
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