Summary of NLRB Decisions for the Week of May 30-June 3, 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
Landmark Family Foods, Inc. d/b/a Church Square Supermarket (08-CA-37667 et al.; 356 NLRB No. 170) Cleveland, OH, May 31, 2011.
The Board adopted the administrative law judge’s findings that the Respondent violated Sections 8(a)(1) and (5) in various respects during bargaining for a successor agreement with the Union.
Charges were filed by the United Food and Commercial Workers Union Local 880. Administrative Law Judge Jeffrey D. Wedekind issued his decision on November 2, 2010. Chairman Liebman and Members Pearce and Hayes participated.
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San Miguel Hospital Corp. d/b/a Alta Vista Regional Hospital (28-CA-21896; 356 NLRB No. 167) Las Vegas, NM, May 31, 2011.
Test of Certification: The Board granted the Acting General Counsel’s motion for summary judgment in this unfair labor practice case, finding that Respondent unlawfully refused to bargain with the Union. This case originally was decided by two Board Members and was remanded by the court of appeals for further proceedings after the Supreme Court ruled that a group of at least three members must decide cases. Respondent admitted its refusal to bargain but challenged the validity of the Union’s certification on the basis of its objections to the election in the representation proceeding (which cannot be re-litigated at this time), and based upon certain arguments raised for the first time in this proceeding. Respondent argued that the Board violated its due process rights by deciding the case too quickly after the court of appeals remanded the case to the Board. The Board rejected this argument, noting that the Board was aware that it would need to revisit this case long before the court of appeals acted, and it was prepared to act promptly thereafter. The Board also rejected Respondent’s further claim that the Board’s prompt disposition of this case “effectively precluded” Respondent from filing a motion to reopen the record and/or a motion for reconsideration, noting that Respondent had not raised this argument previously and that, in any event, Respondent had ample time to file such motions under the Board’s rules. Citing Jefferson Chemical, 200 NLRB 992 (1972), the Respondent also argued that the complaint should be dismissed because the General Counsel exposed it to “administrative prosecutorial double jeopardy” by litigating the original complaint at a time when there were only two sitting members of the Board. The Board rejected this argument because the Respondent failed to raise it in its response to the original Notice to Show Cause, and because Jefferson Chemical, which involved piecemeal litigation of multiple related unfair labor practices, has no application to the facts of this case. All other issues raised by Respondent were or could have been litigated in the underlying proceedings and thus could not be re-litigated at this time.
Chairman Liebman and Members Pearce and Hayes participated.
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Times Union, Capital Newspapers Division of the Hearst Corp. (03-CA-27347 et al.; 356 NLRB No. 169)Colonie, NY, May 31, 2011.
The Board agreed with the administrative law judge’s findings that the employer violated Section 8(a)(5) and (1) of the Act by placing 11 employees whom it proposed for layoff on paid leave without giving the Union timely notice and a genuine opportunity to bargain and by permanently laying off those employees without first bargaining to a lawful impasse.
The employer spent months developing layoff criteria without the Union’s knowledge. Thereafter, despite inviting the Union to bargain over layoffs, the employer applied those criteria unilaterally to select the employees it placed on leave pending layoff, took their building security passes, and terminated their access to computers, e-mail, and voicemail. The judge reasoned that this unlawful, unilateral conduct constituted a fait accompli that precluded bargaining to a valid impasse over the layoffs.
Administrative Law Judge Mark Carissimi issued his decision on August 18, 2010. Chairman Liebman and Members Becker and Pearce participated.
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International Bedding Company (IBC of Pennsylvania) (04-RC-21705; 356 NLRB No. 168) Barnesville and Frackville, PA, May 31, 2011.
Applying community-of-interest principles, the Board (Member Hayes, dissenting) reversed the administrative law judge’s finding that the Employer’s drivers and yard jockeys could not appropriately be included in a single unit with the Employer’s production and warehouse employees, as requested by the Petitioner. The majority found that two employee groups were compensated similarly and had common schedules, benefits, holidays, work rules, employee meetings, and break rooms. There was also some evidence of common supervision as well as interaction between production employees and jockeys. Further, the majority found it significant that the Petitioner sought a comprehensive unit at the Employer’s facilities. For all of those reasons, the majority concluded that the petitioned-for unit was an appropriate unit. Alternatively, the majority would have found the petitioned-for unit appropriate as a plantwide unit. Dissenting, Member Hayes emphasized the limited, or absence of, evidence of integration, interchange, or contact between the drivers or the yard jockeys and the production and warehouse employees. He also questioned whether the majority had correctly applied Board law holding that a plantwide unit is presumptively appropriate, citing the fact that employees worked in, or out of, two facilities, not a single plant. Even assuming the applicability of that presumption, he would have found that evidence concerning a lack of community of interests was sufficient to rebut the presumption.
Petition filed by United Food and Commercial Workers, Local 1776. Administrative Law Judge Earl E. Shamwell, Jr. issued his decision on December 9, 2010. Chairman Liebman and Members Becker and Hayes participated.
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Kaleida Health, Inc. (03-CA-27507; 356 NLRB No. 171) Tonawanda, NY, June 1, 2011.
The Board (Member Hayes concurring) adopted the administrative law judge’s finding that the Respondent unlawfully failed to provide certain incident reports in response to an information request by the Union.
Charges were filed by the Communication Workers of America, Local 1168. Administrative Law Judge Mark Carissimi issued his decision on October 18, 2010. Chairman Liebman and Members Becker and Hayes participated.
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Apex Electric Services, Inc. and Apex Industrial Services, Inc. (12-CA-24200 et al.; 356 NLRB No. 172) Sanford and Jacksonville, FL, June 2, 2011.
The Board granted the Acting General Counsel’s Motion for Default Judgment based on the Respondent’s failure to file an answer to the compliance specification.
Charges filed by International Brotherhood of Electrical Workers, Local 177, AFL-CIO. Chairman Liebman and Members Pearce and Hayes participated.
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Northern Illinois Telecom, Inc. (13-CA-46394; 356 NLRB No. 173) Rolling Meadows, IL, June 3, 2011.
The Board granted the Acting General Counsel’s motion for default judgment based on the Respondent’s failed to file an answer to the complaint.
Charge filed by International Brotherhood of Electrical Workers, Local 134. Chairman Liebman, Members Pearce and Hayes participated.
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Decisions of Administrative Law Judges
Supply Technologies, LLC (18-CA-19587; JD 31-11) Minneapolis, MN. Charge filed by Teamsters, Local 120. Administrative Law Judge George Aleman issued his decision on May 31, 2011.
The American National Red Cross, Great Lakes Blood Services Region and Mid-Michigan Chapter (07-CA-52033 et al.; JD-27-11). Charges filed by Local 459, Office and Professional Employees International Union, AFL-CIO, and Local 580, International Brotherhood of Teamsters. Administrative Law Judge Jeffrey D. Wedekind issued his erratum on May 31, 2011.
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Appellate Court Decision
May 31, 2011: Caterpillar, Inc. v. NLRB (No. 13-CA-43506 & 355 NLRB No. 91)
In an unpublished per curiam opinion the D.C. Circuit enforced the Board's decision in full, agreeing that Caterpillar unilaterally implemented a "generic-first" prescription drug program without bargaining.
Caterpillar's generic-first program required employees to use a generic drug before a brand-name drug, unless they received specific direction from their doctor that the brand-name was necessary. Caterpillar argued that the generic-first program was neither a "material, substantial, nor significant" change and that it was consistent with past practice. Although the ALJ agreed with those arguments, the Board reversed.
On appeal, the Court held that "the Board reasonably concluded that the program increased the costs to employees who exercised their discretion under the benefit plan to choose brand-name drugs and was thus a material, substantial, and significant change." Further, the Court agreed that the Union's past acquiescence in somewhat-similar changes to prescription drug benefits did not create a past practice that privileged implementation of the generic-first program, noting that acquiescence in prior changes does not waive bargaining rights "for all time." Finally, to the extent Caterpillar contended that its group-insurance plans privileged the change, the Court accepted our argument that Caterpillar's failure to file timely exceptions on this matter deprived the Court of jurisdiction to consider the claim on appeal.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Consulate Health Care d/b/a Ashland Nursing & Rehabilitation Center (05-RC-16580) May 31, 2011. Decision and certification of representative.
Clare County Board of Commissioners (07-WH-00223) June 1, 2011. Certification of representative as bona fide under Section 7(b) of the Fair Labor Standards Act of 1938.
Stericycle, Inc. (14-RC-12823) June 3, 2011. Order denying request for review.
MV Public Transportation, Inc. (29-RC-11781 et al.) June 3, 2011. Order denying request for review of Regional Director’s Supplemental Decision.
MV Public Transportation, Inc. (29-RC-11781 et al.) June 3, 2011. Order denying request for review of Regional Director’s Decision and Direction of Election.
Municipal Light and Power (19-WH-00011) June 3, 2011. Certification of representative as bona fide under Section 7(b) of the Fair Labor Standards Act of 1938.
C Cases
Baysys Technologies, LLC (05-CA-36314) May 31, 2011. Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s motion should not be granted. Briefs due on or before June 14, 2011.
RC Operator LLC d/b/a Willow Terrace (04-CA-37630 et al.) June 1, 2011. Decision and order pursuant to a settlement stipulation.
Southwest Regional Council of Carpenters, UBC and Joiners of America; Carpenters Local Union No. 803, UBC Joiners of America (21-CB-14939 et al.) June 1, 2011. Decision and order pursuant to a settlement stipulation.
Continental Linen Services, Inc. (07-CA-52296 et al.) June 1, 2011. Order granting motion to withdraw charges and remanding to RD.
Coastal International Security, Inc. (05-CA-36190) June 3, 2011. Order granting the acting General Counsel’s motion to withdraw the Motion for Default Judgment pursuant to non-Board settlement. Case is remanded to the Regional Director for further appropriate action.
Prime Healthcare Services d/b/a Shasta Regional Medical Center (20-CA-35380) June 3, 2011. Order denying petition to revoke subpoena duces tecum B-645946.
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