Summary of NLRB Decisions for Week of January 6-10 2014
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
Kephart Trucking Co. (22-CA-109611; 360 NLRB No. 22) South Kearney, NJ, January 6, 2014. The Board granted the General Counsel’s motion for default judgment in the absence of an answer to the complaint. The Board found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the Union about the effects of the Employer’s closure of its facility in South Kearney, New Jersey. The Board ordered the Respondent to bargain with the Union about the effects of that decision. And finding that a bargaining order alone cannot serve as an adequate remedy, the Board also ordered the Respondent to pay backpay to unit employees in a manner similar to that required in Transmarine Navigation Corp., 170 NLRB 389 (1968). Charge filed by International Brotherhood of Teamsters, Local No. 125, AFL-CIO. Chairman Pearce and Members Johnson and Schiffer participated.
California Nurses Association, National Nurses Organizing Committee (Henry Mayo Newhall Memorial Hospital) (31-CB-012913; 360 NLRB No. 21) Valencia, CA, January 8, 2014. The Board granted the Respondent Union’s motion for reconsideration of its July 2, 2013 Decision and Order, 359 NLRB No. 150, to remove the “like or related manner” language from its Order in light of the Board’s finding that the respondent only violated Section 8(b)(3), and did not violate Section 8(b)(1)(A). The Board granted the motion because the Board’s general injunctive language for Section 8(b)(1)(A) violations--ordering a party to cease and desist from “[i]n any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act”--is not appropriate where a party has only violated Section 8(b)(3) because a violation of Section 8(b)(1)(A) is not a derivative violation of Section 8(b)(3). Charge filed by Henry Mayo Newhall Memorial Hospital. Administrative Law Judge Mary Miller Cracraft issued her decision on July 9, 2012. Chairman Pearce and Members Hirozawa and Schiffer participated.
Community Education Centers, Inc. (22-RC-106424; 360 NLRB No. 17) Newark, NJ, January 9, 2014. The Board granted the Employer’s request for review as to whether Acting Regional Director correctly found that the Shift and Unit Supervisors (“Supervisors”) working at the Employer’s Logan Hall facility do not possess the authority to responsibly direct the Employer’s Operations and Unit Counselors (“Counselors”), and therefore should be excluded from voting as supervisors within the meaning of the National Labor Relations Act. The Board majority (Chairman Pearce and Member Hirozawa) found that, contrary to the Acting Regional Director, the Supervisors did possess the authority to take corrective action regarding a Counselor’s deficient performance. The majority, however, affirmed the Acting Regional Director’s overall finding that the Supervisors do not responsibly direct the Counselors because the Employer did not satisfy its burden of demonstrating that the Supervisors exercised this authority subject to accountability and utilizing independent judgment. Accordingly, the majority found that they are not supervisors. Member Miscimarra concurred in part and dissented in part. He agreed with the majority that the Supervisors have the authority to take corrective action, but that the Employer did not demonstrate that the Supervisors exercise this authority with the use of independent judgment, and therefore they do not possess the authority to responsibly direct the Counselors. Member Miscimarra, however, disagreed with his colleagues’ interpretation of “accountability.” He would find that the Supervisors are “accountable” because they have suffered adverse consequences for failing to adequately oversee the Counselors’ performance of their tasks. Nevertheless, he agreed that the Supervisors are not statutory supervisors. Petitioner—District 1199J, NUHHCE, AFSCME, AFL-CIO. Chairman Pearce and Members Hirozawa and Miscimarra participated.
Interstate Bakeries Corp. (17-CA-023404; 360 NLRB No. 23) Ponca City, OK, January 10, 2014. The Board issued a supplemental decision and order in this compliance proceeding, directing the Respondent Employer and the Respondent Union to, jointly and severally, make whole a discriminatee by paying him $46,360.45 plus interest, minus tax withholdings required by Federal and State laws. The majority reversed the Administrative Law Judge’s requirement that the Respondents pay the discriminatee for the prepaid mortgage interest ($215.75) and hazard insurance ($760.80) incurred by him in the purchase of a new home. Contrary to his colleagues, Chairman Pearce would adopt the judge’s award of these expenses to the discriminatee, on the ground that these costs, assessed at closing, were part of a move that occurred only because of the Respondents’ unfair labor practices. In the Chairman’s view, what the federal government reimburses in cases of involuntary transfers is markedly distinct from situations—like here—where the move was the direct result of a respondent’s unlawful conduct. Charges filed by an Individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Taft Coal Sales & Associates, Inc. (10-CA-088599; 360 NLRB No. 19) Birmingham, AL, January 10, 2014. The Board adopted the judge’s findings in a short form decision with a credibility footnote, and a footnote clarifying the full reinstatement and backpay remedy applicable in this case, in comparison with the more limited Transmarine Navigation Corp., 170 NLRB 389 (1968), remedy applicable in other cases. The Board’s findings involved single employer status among three entities, a violation of Section 8(a)(5) in that the employer engaged in the fait accompli of unilaterally laying off employees and thereby refusing to bargain about which employees would be laid off and the effects of the layoff, the full reinstatement and backpay remedy applicable for this Section 8(a)(5) violation and not the more limited Transmarine remedy, and two Section 8(a)(1) violations involving threatening an employee with plant closure and interrogating another employee about whether he selected the Union. Charges filed by United Mine Workers of America, District 20. Chairman Pearce and Members Johnson and Schiffer participated.
Laborers Local 894 (Donley’s, Inc.) (08-CD-081837; 360 NLRB No. 20) Akron and Cleveland, OH, January 10, 2014. In this jurisdictional dispute, the Board awarded the work in dispute to employees represented by the Laborers’ International Union of North America, Locals 894 and 310, based on employer preference and past practice, area and industry practice, and economy and efficiency of operations. Charges filed by Donley’s, Inc. Hearing Officer Gregory M. Gleine issued his report on August 2, 2012. Chairman Pearce and Members Hirozawa and Johnson participated.
Chapin Hill at Red Bank (22-CA-095604; 360 NLRB No. 27) Red Bank, NJ, January 10, 2014. The Board affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to furnish the Union with requested information. The Board agreed with the judge’s finding that the Union’s request was not rendered moot by the resolution of a grievance the Union had filed on behalf of a unit employee. The Board found that the requested information has present and continuing relevance for the Union to police the parties’ collective-bargaining agreement. Citing longstanding precedent, the Board also affirmed the judge’s finding that deferral to arbitration was inappropriate. Member Miscimarra found it unnecessary to pass on these cases or decide whether it would be appropriate to defer to arbitration a dispute about information requested solely in connection with a pending grievance. Charge filed by Local 707 Health Employees Alliance Rights & Trades (HEART). Administrative Law Judge Kenneth W. Chu issued his decision on July 12, 2013. Members Miscimarra, Hirozawa, and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Universal Protection Service (02-RC-110498) New York, NY, January 7, 2014 No exceptions having been filed, the Board adopted the Regional Director’s overruling of the Employer’s objections to a mail-ballot election held between September 13 and 27, 2013, and certified Petitioner Federal Contract Guards of America as the exclusive collective-bargaining representative of the unit employees.
Siro Imports, Inc. (29-RC-113221) Lindenhurst, NY, January 8, 2014. No exceptions having been filed, the Board adopted the Regional Director’s findings and recommendations that a hearing be held regarding portions of Employer’s Objection 1, and that Employer’s other objections be overruled. Accordingly, the Board remanded the case to the Regional Director for Region 29 for further appropriate action consistent with his report. Petitioner—Local 223, Amalgamated Industrial & Toy & Novelty Workers of America.
Office and Professional Employees International Union (12-RC-113181), January 9, 2014. The Board denied the Employer’s Request for Review of the Acting Regional Director’s Decision and Direction of Election. Petitioner—News Media Guild, Local 31222. Chairman Pearce and Members Miscimarra and Schiffer participated.
Caribe Freight Forwarding of Puerto Rico, Inc. (24-RC-111999) Aguadilla, PR, January 10, 2014. No exceptions having been filed, the Board adopted the Hearing Officer’s findings and recommendations that the challenges to the ballots of Fritz A. Ortiz de la Torre, Juan Ruiz Cardona and Edgardo Vazuez Roman be sustained, and that the ballot of Elvin Perez be opened and counted. Accordingly, the Board directed the Regional Director for Region 24 to open and count the ballot of Elvin Perez, prepare and serve on the parties a revised tally of ballots, and issue the appropriate certification. Petitioner—Union de tronquistas de Puerto Rico, Local 901, ITB.
C Cases
Sutter Central Valley Hospital d/b/a Memorial Medical Center (32-CA-098873) Modesto, CA, January 7, 2014. No exceptions having been filed, the Board adopted the findings and conclusions of the Administrative Law Judge that the Respondent had engaged in certain unfair labor practices, and ordered the Respondent to take the action set forth in the Judge’s recommended Order to remedy the unfair labor practices. Charges filed by California Nurses Association/National Nurses United (CAN/NNU).
United States Postal Service (20-CA-065948) San Francisco, CA, January 8, 2014. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the General Counsel, and specifying actions the Employer must take to comply with the National Labor Relations Act. Charges filed by an Individual. Chairman Pearce and Members Johnson and Schiffer participated.
Rosdev Hospitality Secaucus, L.P. an La Plaza Secaucus, LLC as Joint Employers d/b/a Crowne Plaza Hotel and Convention Center (22-CA-078843) Secaucus, NJ, January 8, 2014. The Board granted the General Counsel’s request to remand the cases to the Regional Director for further appropriate action. Charges filed by New York Hotel & Motel Trades Council, AFL-CIO.
All American School Bus Corp. (29-CA-100827) New York, NY, January 8, 2014. The Board previously granted Respondents Bobby's Bus Co., Inc., Grandpa’s Bus Co., Logan Transportation System, Inc., and Lorissa Bus Service, Inc.’s, Cases 29-CA-100862, 101030, 100892, 101087, 100918, 101101, 100923, and 101108 requests to withdraw their exceptions to the decision of the Administrative Law Judge in this consolidated proceeding. Accordingly, in the absence of exceptions, the Board adopted the findings and conclusions of the Administrative Law Judge that these four Respondents had engaged in certain unfair labor practices, and ordered the Respondents to take the action set forth in the Judge’s recommended Order to remedy the unfair labor practices. Charges filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO.
American Steamship Company/Liberty Steamship Company (03-CA-107658) Williamsville, NY, January 9, 2014. The Board denied the Employer’s petitions to revoke, in part, subpoenas ad testificandum and duces tecum. The Board found that the subpoenas sought information relevant to the matter under investigation, and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoenas. The Board granted the Employer’s motion for leave to file a reply brief, while noting that it has been the Board’s practice to permit the moving party to file a reply brief without first moving for special leave. The Board also noted that the Employer was not required to reproduce requested material that it had already produced, and that the Board evaluated the subpoena duces tecum as clarified by the Region. Charge filed by United Steelworkers Local 5000. Chairman Pearce and Members Johnson and Schiffer participated.
UHS-Corona d/b/a Corona Regional Medical Center (21-CA-010919) Corona, CA, January 9, 2014. Order denying the petition filed by UHS-Corona to revoke subpoena duces tecum and subpoenas ad testificandum. The Board found that the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the employer failed to establish any other legal basis for revoking the subpoenas. In addition, the Board found that objections made on the basis of a state code of civil procedure are not cognizable in a Board proceeding. Finally, the Board found that the Employer’s argument that the Acting General Counsel lacked the authority to conduct the investigation or issue the complaint lacked merit. Charge filed by United Nurses Associations of California/Union of Healthcare Professionals, NUHHCE, AFSCME, AFL-CIO. Chairman Pearce and Members Johnson and Schiffer participated.
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Appellate Court Decisions
No Appellate Court Decisions to report
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Administrative Law Judge Decisions
Merit House, LLC (08-CA-099622; JD-01-14) Toledo, OH. Administrative Law Judge Mark Carissimi issued his decision on January 6, 2014. Charge filed by Service Employees International Union, District 1199, WV/KY/OH.
Newark Electric Corp., New Electric 2.0, Inc., and Colacino Industries, Inc., a single employer and/or alter egos (03-CA-088127; JD(NY)-03-14) Newark, NY. Administrative Law Judge Kenneth W. Chu issued his decision on January 6, 2014. Charge filed by International Brotherhood of Electrical Workers, Local 840.
United States Postal Service (07-CA-098122; JD(NY)-02-14) Detroit, MI. Administrative Law Judge Joel P. Biblowitz issued his decision on January 6, 2014. Charge filed by Local 295, Detroit District Area Local, American Postal Workers Union (APWU), AFL-CIO.
Rochester Gas & Electric Corporation (03-CA-075635; JD(NY)-01-14) Rochester, NY. Administrative Law Judge Steven Davis issued his decision on January 8, 2014. Charges filed by Local Union 36, International Brotherhood of Electrical Workers, AFL-CIO.
Professional Medical Transport, Inc. (28-CA-089300; JD(SF)-1-14) Mesa, AZ. Administrative Law Judge Jeffrey D. Wedekind issued his decision on January 9, 2014. Charges filed by Independent Certified Emergency Professionals, Local No. 1.
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