Summary of NLRB Decisions for Week of August 13-17, 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 Decisions
International Brotherhood of Electrical Workers, Local 48, AFL-CIO (19-CD-080738; 358 NLRB No. 102) Portland, OR, August 13, 2012.
The Board exercised its authority under Section 10(k) of the National Labor Relations Act to resolve a jurisdictional dispute over the work of plugging in, unplugging, and monitoring refrigerated cargo containers at a port terminal in Portland, OR. The Board found that employees represented by an International Brotherhood of Electrical Workers local are entitled to continue performing work that has been assigned to IBEW workers since 1974, rejecting a claim to the work by the International Longshore and Warehouse Union (ILWU).
The Board rejected ILWU's argument that the Board lacked authority to resolve the dispute, finding that employment of the electrical workers by the Port of Portland did not deprive the Board of jurisdiction under the Act.
Charge filed by ICTSI Oregon, Inc. and International Longshore and Warehouse Union, Local 8, AFL-CIO. Members Hayes, Griffin and Block participated.
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Entergy Mississippi, Inc. (15-CA-017213, et al.; 358 NLRB No. 99) Jackson, MS, August 14, 2012.
This is a refusal-to-bargain case in which the respondent was contesting the Board’s unit determination in the representation proceeding. The Board found that the respondent violated the Act by (1) insisting to impasse upon a matter that did not constitute a mandatory subject of bargaining; (2) excluding dispatchers from the bargaining unit represented by the unions without the consent of the unions; and (3) failing and refusing to recognize and bargain with the unions as the exclusive collective-bargaining representative of the dispatchers.
Charges filed by International Brotherhood of Electrical Workers, Locals 605 and 985, AFL-CIO-CLC. Chairman Pearce and Members Hayes and Griffin participated.
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Huntington Ingalls Incorporated (05-CA-081306; 358 NLRB No. 100) Newport News, VA, August 14, 2012.
This is a refusal-to-bargain case in which the respondent was contesting the Board’s unit determination in the representation proceeding. The Board found that the respondent violated the Act by failing and refusing to recognize and bargain with the union as the exclusive collective-bargaining representative of the employees in the bargaining unit.
Charge filed by International Association of Machinists and Aerospace Workers, AFL-CIO. Chairman Pearce and Members Hayes and Griffin participated.
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Proppant Specialists, LLC (30-CA-082116; 358 NLRB No. 103) Brady, TX, August 15, 2012.
This is a refusal-to-bargain case in which the respondent was contesting the union’s certification as bargaining representative in the representation proceeding. The Board found that the respondent violated the Act by failing and refusing to recognize and bargain with the union as the exclusive collective-bargaining representative of the employees in the bargaining unit and failing and refusing to furnish the union with requested information that was necessary for, and relevant to, its role as the exclusive bargaining representative of the unit employees.
Charge filed by International Union of Operating Engineers, Local 139, AFL-CIO. Chairman Pearce and Members Hayes and Block participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
City of Center Line (07-WH-082770) Center Line, MI, August 13, 2012. Certification of representative as bona fide under Section 7(B) of the Fair Labor Standards Act of 1938. Petitioner – Police Officers Association of Michigan.
March Associates Construction, Inc. (22-RC-075268) Newark, NJ, August 14, 2012. Decision and certification of results of election. Petitioner – New Jersey Building Construction Laborers District Council.
*The following decision was inadvertently issued and has been revoked: Kirkstall Road Enterprises, Inc. / Quay Street Enterprises, Inc. (02-RC-023547) New York, NY, August 17, 2012. Decision and certification of representative. Petitioner – Writers Guild of America East. Chairman Pearce and Members Griffin and Block participated.
Signature Flight Support Corporation (14-RC-080908) St. Louis, MO, August 17, 2012. Decision and order remanding the proceeding to the Regional Director for further appropriate action. Petitioner – Teamsters, Local 618, Automotive, Petroleum and Allied Industries Employees Union.
Care One at Madison Avenue, LLC d/b/a Care One at Madison Avenue (22-RC-072946) Newark, NJ, August 17, 2012. Decision adopting the Regional Director’s findings and recommendations. Petitioner – 1199 SEIU, United Healthcare Workers East.
Islamic Saudi Academy (05-RC-080474) Alexandria, VA, August 17, 2012. Order granting the employer’s and petitioner’s request for review of the Regional Director’s decision and direction of election and in all other respects, denying the employer’s request for review. Petitioner – Islamic Saudi Academy Employee Professional Association (ISAEPA). Chairman Pearce and Members Hayes and Block participated.
C Cases
Ashford TRS Nickel, LLC (19-CA-032761) Anchorage, AK, August 13, 2012. Order denying respondent‘s motion for summary judgment. Charge filed by UNITE HERE! Local 878. Chairman Pearce and Members Hayes and Block participated.
Podcon, Inc. d/b/a Metlab and Metlab Potero (04-CA-078589) Wyndmoor, PA, August 14, 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 United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 6816-08, AFL-CIO-CLC.
Tri Wire Engineering Solutions, Inc. (29-CA-078890) Brooklyn, NY, August 14, 2012. Order denying employer’s petition to revoke subpoena duces. Charge filed by an individual. Chairman Pearce and Members Hayes and Block participated.
Dickens, Inc. (29-CA-029080, et al.) Commack, NY, August 15, 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 an individual.
Random Acquisitions, LLC (07-CA-052473) Battle Creek, MI, August 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 an individual.
Martin Law Group (The), LLC (10-CA-078395) Tuscaloosa, AL. August 15, 2012. Order denying respondent’s motion to dismiss. Charge filed by an individual. Chairman Pearce and Members Hayes and Block participated.
Open Door Retail Group, Inc. (16-CA-028083) Houston, TX, August 16, 2012. Revised notice to show cause why the Acting General Counsel’s motions should not be granted. Charge filed by an individual.
Accents Painting and Wallcovering Limited and Accents Contracting, LLC (04‑CA‑081641) Mountaintop, PA, August 17, 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 District Council, No. 21, International Union of Painters and Allied Trades.
Certainteed Corp. (08-CA-073922) Milan, OH, August 17, 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 United Steel Workers International Union, Local 363 a/w United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.
Stanton Mechanical, Inc. (20-CA-071846) Rancho Cordova, CA, August 17, 2012. Order adopting the administrative law judge’s findings and conclusions and ordering the respondent to take the recommended action Charge filed by Sheet Metal Workers International Association, Local 162, AFL-CIO.
Crystal Soda Water Company (04-CA-038046) Scranton, PA, August 17, 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 International Brotherhood of Teamsters, Local 229.
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Appellate Court Decision
International Brotherhood of Teamsters, Local 251, Board Case No. 1-CC-2678 (reported at 356 NLRB No. 135) (1st Cir., decided August 14, 2012)
In a published opinion, the Court denied enforcement of the Board’s order, holding that substantial evidence did not support the Board’s finding that the union entered into an agreement prohibiting the employer from doing business with a specific subcontractor with an impermissible secondary intent.
The employer, a highway construction contractor, is a member of a multi-employer bargaining association that has signed an agreement with the union. From 1995 to the hearing in 2001, the employer’s unionized workforce shrank from 251 employees to only 10, which the union chalked up to “a concerted effort on the part of [the employer] to replace its unionized drivers with non-union subcontractors.” Slip op. at 4. Although the agreement required the employer to subcontract only to entities that paid prevailing area rates, the employer often subcontracted work to two specific subcontractors, Northeast and Cullion, that failed to do so. In 1999, after filing grievances, the union and the employer reached an agreement that stated, “[t]he trucking services of Northeast . . . and Cullion . . . will not be utilized,” and respected the union’s right to strike to enforce this understanding. Id. at 5. In April 2001, the employer again hired Northeast, which still failed to pay prevailing rates, the union struck, and the employer filed unfair labor practice charges.
Section 8(e) of the Act prevents a union and employer from entering “into any contract ... whereby such employer ceases or refrains ... from ... doing business with any other person.” As the Court explained, an agreement like the one at issue here “is valid [under Section 8(e)] if its objective is the preservation of work for bargaining unit employees—such an agreement involves primary activity [against an employer with a direct relationship with the union]. In contrast, if the purpose of the agreement is to further union objectives with respect to a third party (e.g., pressuring the third party to accept unionization of its own employees), it involves secondary activity and violates section 8(e)” of the Act. Id. at 7. On these facts, the Board found that the agreement violated Section 8(e), focusing on the language of the agreement specifically targeting Northeast and Cullion.
The Court, however, rejected the Board’s holding as to Northeast (the union did not challenge it as to Cullion), faulting the Board for failing to examine “all the surrounding circumstances” regarding the agreement’s formation. Id. at 17 (quoting NLRB v. Int’l Longshoremen Ass’n, 447 U.S. 490, 504 (1980)). Focusing on the extrinsic evidence, the Court observed that “the circumstances surrounding the ... agreement indicate that it was intended to enforce the union standards clause in the collective bargaining agreement between the parties, and thus preserve union jobs,” and that the record demonstrated that Northeast and Cullion were named because they were the employer’s only subcontractors not paying prevailing rates. Id. at 18. Citing testimony about conversations prior to the agreement, and relying on specific factors enumerated by the Supreme Court to determine whether an agreement has a primary or secondary intent, the Court held that “the plain text of the ... agreement [alone] is not substantial evidence supporting the Board’s conclusion,” and refused to enforce the Board’s order. The Court refused to remand the case to the Board to consider several issues the Board had declined to pass upon, given the age of the case and the lack of a specific request for remand. Finally, as noted above, the union did not challenge the agreement as to Cullion before the Board, so the Court summarily enforced that aspect of the order, rejecting the union’s claim that the passage of time should preclude enforcement.
The Court’s detailed opinion is available here.
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Decisions of Administrative Law Judges
106-20 Shorefront Realty, LLC; 107-1- Shorefront Realty, LLC; and 1 Beach 105 Realty, LLC, a single employer (29-RM-062193) Long Island City, NY. Charge filed by Local 32B‑32J, Service Employees International Union. Administrative Law Judge Raymond P. Green issued his decision on August 13, 2012.
United States Postal Service (07-CA-072873; JD-44-12) Lansing, MI. Charge filed by Local 307, National Postal Mail Handlers Union (NPMHU), a division of LIUNA, AFL‑CIO. Administrative Law Judge Michael A. Rosas issued his decision on August 16, 2012.
NASAKY, Inc. d/b/a Yuba Skilled Nursing Center and THEKKEK Health Services, Inc., joint or single employers (20‑CA‑068854; JD(SF)‑38‑12) Yuba City, CA. Charge filed by SEIU United Healthcare Workers West. Administrative Law Judge Gerald M. Etchingham issued his decision on August 16, 2012.
MV Transportation, Inc. (04-CA-063478; JD‑43‑12) Philadelphia, PA. Charge filed by Transport Workers Union of Philadelphia, Local 234. Administrative Law Judge Michael A. Rosas issued his decision on August 16, 2012.
Auto Nation, Inc, and Village Motors, LLC, d/b/a Libertyville Toyota (13‑CA‑06376; JD‑42‑12) Libertyville, IL. Charge filed by Automobile Mechanics, Local 701, International Association of Machinists and Aerospace Workers, AFL-CIO. Administrative Law Judge Earl E. Shamwell Jr. issued his decision on August 16, 2012.
Six Star Cleaning & Carpet Services, Inc. d/b/a Six Star Janitorial (28‑CA‑023491, et al.; JD(SF)‑39‑12) Las Vegas, NV. Charges filed by Laborers’ International Union of North America, Local 872, AFL-CIO. Administrative Law Judge Clifford H. Anderson issued his decision on August 17, 2012.
Castlewood Country Club (32-CA-024980, et al.; JD(SF)‑36‑12) Pleasanton, CA. Charges filed by UNITE HERE, Local 2850, AFL-CIO. Administrative Law Judge Clifford H. Anderson issued his decision on August 17, 2012.
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