Summary of NLRB Decisions for Week of July 2-6, 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
Miron & Sons, Inc. (02-CA-039597; 358 NLRB No. 78) Bronx, NY, July 3, 2012.
A unanimous panel of the Board adopted the administrative law judge’s findings that the employer, a commercial laundry company, violated the Act by: (1) warning the union’s shop steward not to provide information about bargaining to employees; (2) warning employees not to provide information to the union; (3) warning employees not to speak about the union during the workday, including break and lunch times; (4) threatening to discharge employees if they participated in union or other protected activities; (5) threatening employees that the shop would be closed and they would be discharged if the employer had to accept the union's contract proposals; (6) threatening to discharge employees if they went on strike; (7) promising employees a wage increase and new benefits if the union no longer represented them; (8) polling employees as to whether they supported the union; (9) interrogating employees about their union membership, activities, and sympathies; (10) deducting union dues from employees' paychecks, but failing to remit those funds to the union; (11) issuing written warnings to, and then discharging, an employee for supporting the union; (12) failing to bargain in good faith with the union; (13) conditioning bargaining upon the commitment of the union to refrain from handbilling the employer’s customers or engaging in any strike or picketing activity; (14) unilaterally stopping payments to various union funds; (15) unilaterally granting employees a wage increase; (16) refusing to bargain with the union because the union's shop steward was present; and (17) unilaterally implementing new rules regarding the union's access to unit employees at the facility.
Charge filed by Laundry, Dry-Cleaning & Allied Workers Joint Board. Administrative Law Judge Steven Davis issued his decision on December 17, 2010. Chairman Pearce and Members Hayes and Griffin participated.
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Sodexo America LLC (21-CA-039086et al.; 358 NLRB No. 79) Los Angeles, CA, July 3, 2012.
The Board panel majority (Chairman Pearce and Member Griffin) reversed the administrative law judge’s dismissal of the complaint, and found that the respondents’ no-access rule violated the Act. The Board held that the rule, which barred employee access to the hospital except to receive treatment, visit patients, or pursue other duties as directed by management, discriminated against union access by allowing management to pick and choose which activities it would allow off-duty employees to engage in on its premises. The Board remanded to the judge the issue of whether four employees were unlawfully disciplined for violating the rule. Member Hayes dissented, arguing that a reasonable employee would read the rule’s exception for hospital-related business to allow access only for work duties.
Charges filed by an individual. Administrative Law Judge William G. Kocol issued his decision on April 8, 2011. Chairman Pearce and Members Hayes and Griffin participated.
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Wynn Las Vegas, LLC (28-CA-022818; 358 NLRB No. 80) Las Vegas, NV, July 3, 2012.
Reversing the administrative law judge, the Board found that the employer, a Las Vegas casino operator, violated the Act by coercively interrogating an employee about his upcoming testimony in a case before the state Labor Commissioner concerning card dealers’ tips. The Board also found that the employer’s subsequent suspension of the employee violated the Act because some of the reasons given for the suspension were false or exaggerated. Finally, the Board found that the employer violated the Act by discharging a second employee who had been a leader in the case before the Labor Commissioner, because the reasons the employer gave for discharging the employee were pretextual.
Charge filed by an individual. Administrative Law Judge James M. Kennedy issued his decision on December 14, 2010. Chairman Pearce and Members Griffin and Block participated.
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Wynn Las Vegas, LLC (28-CA-023070; 358 NLRB No. 81) Las Vegas, NV, July 3, 2012.
The Board found that the employer violated the Act by laying off an employee because the layoff was due solely to the employee’s prior suspension, which the Board previously found (in Wynn Las Vegas, LLC, 358 NLRB No. 80) violated the Act. The Board also found that the employer was precluded from relitigating the lawfulness of the suspension.
Charge filed by an individual. Administrative Law Judge John J. McCarrick issued his decision on July 26, 2011. Chairman Pearce and Members Griffin and Block participated.
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Evenflow Transportation, Inc. (02-CA-040128; 358 NLRB No. 82) Mount Vernon, NY, July 3, 2012.
The Board adopted the administrative law judge’s findings that the employer unlawfully interrogated three employees. The Board also adopted the judge’s finding that the employer threatened one of the employees during the course of his interrogation. Finally, the Board adopted the judge’s finding that the employer unlawfully laid off five employees, including the three employees it had interrogated. Member Hayes concurred in part and would have affirmed the judge’s analysis of the unlawful layoff without further comment.
Charge filed by Local 713, International Brotherhood of Trade Unions. Administrative Law Judge Raymond P. Green issued his decision on August 30, 2011. Members Hayes, Griffin, and Block participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Case
800 River Road Operating Company, LLC d/b/a Woodcrest Health Care Center (22‑RC‑073078) New Milford, NJ, July 2, 2012. Decision and order adopting the Acting Regional Director’s findings and recommendations and overruling the employer’s objections 3 through 12. Petitioner – 1199 SEIU, United Healthcare Workers East. Chairman Pearce and Members Griffin and Block participated.
C Cases
United States Postal Service (07-CA-070056) Gaylord, MI, July 2, 2012. Order denying on merits the Acting General Counsel’s request for special permission to appeal the administrative law judge’s ruling approving an informal settlement agreement settling complaint allegations. Charge filed by Local 4881, American Postal Workers Union, AFL-CIO. Chairman Pearce and Members Griffin and Block participated.
Piggly Wiggly Midwest, LLC (30-CA-067117, et al.) Sheboygan, WI, July 3, 2012. Order adopting the findings and conclusions of the administrative law judge’s decision and ordering the respondent to take recommended action. Charges filed by United Food & Commercial Workers Union, Local 1473.
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Appellate Court Decisions
Pittsburg & Midway Coal Mining Co., Board Case No. 27-CA-19566 (published at 355 NLRB No. 197) (D.C. Circuit decided under the name Chevron Mining f/k/a Pittsburgh & Midway Coal Mining Co. v. NLRB, 27-CA-19566 (July 3, 2012))
In a published 2-1 opinion, the Court enforced the Board’s order, upholding its finding that the employer violated Section 8(a)(3) by amending its bonus plan in response to the United Mine Workers’ calling of contractually authorized work stoppages known as “memorial periods.”
The parties’ agreement gave the employer unilateral authority to change the bonus plan. After the union called six memorial days at one mine in 2004 to pressure the employer over ongoing grievances, the employer amended the bonus plan in 2005 explicitly in response to those memorial days. It eliminated a bonus for union-represented employees at any mine where the union called a memorial day that did not cover all mines in that district, regardless of the mine’s attainment of annual financial targets. After the amendment, the union called only district‑wide memorial periods, avoiding the loss of any bonus money.
The Court first agreed with the Board that the employees’ participation in memorial days was grounded in the collective-bargaining agreement and, therefore, was protected under the Act. While the contract’s arbitration provision gave rise to an implied obligation not to strike, the Court affirmed the Board’s conclusion that the memorial-days provision expressly negated that obligation. To determine whether the union misused the memorial-days provision for economic pressure rather than commemoration of miners’ deaths or mining disasters, the Court looked to a body of opinions from a district court, arbitration, and the Division of Advice per the parties’ stipulation that they addressed the “history and purpose” of the provision. Relying heavily on a district court opinion, the Court found that the materials demonstrated that the parties’ intended that the union could use the provision to strike over an arbitrable dispute. The Court observed that at the time the union called these memorial periods, the employer never sought to enjoin them or otherwise indicated that it believed the union had overstepped its rights.
The Court noted that, “[a]lthough it is unusual for an employer to directly acknowledge taking adverse action because of protected activity, [the employer] did so here.” It rejected the employer’s claim that the bonus-plan amendment was a permissible economic weapon, finding that defense applicable to an analysis under Great Dane Trailers, not the stipulated Wright Line analysis. It also agreed with the Board that the employer could not selectively direct that economic weapon against only employees who engaged in protected conduct. The Court found that it lacked jurisdiction under Section 10(e) to consider the employer’s challenges to the Board’s sua sponte selective-sanction finding because it failed to move for reconsideration before the Board. Rejecting the last of the employer’s defenses, the Court agreed that (1) the union did not waive its right to file this unfair-labor-practice charge because the employer’s unilateral right to amend the bonus plan did not allow it to do so for unlawful reasons and (2) there was an adverse employment action even though apparently no employee lost bonus money because the employer placed “a financial penalty on the future exercise of protected activity” – one that apparently affected the union’s decision to limit memorial days. Finally, the Court found premature the employer’s objection to the backpay remedy where there was no evidence that any employee lost a bonus; that issue can be addressed in compliance proceedings.
The Court’s published decision is here
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Teamsters Local Union No. 523 (Interstate Bakeries), Board Case Nos. 17‑CA‑23404 & 17‑CB‑6146 (reported at 357 NLRB No. 4) (10th Cir. decided July 5, 2012)
In an unpublished decision, the Court enforced the Board's order, agreeing that Teamsters Local 523 engaged in an unfair labor practice by insisting to the employer, Interstate Bakeries, that a previously unrepresented employee, Kirk Rammage, be placed at the bottom of a merged unit’s seniority roster when employees from two merging bargaining units had their seniority dovetailed. The parties agreed Rammage should be included in the merged bargaining unit, but the Union insisted that Rammage be placed at the bottom of the merged unit’s seniority roster, despite the fact that he had the most company seniority of any sales representative at the facility from which he had worked.
The Court agreed with the Board that Union’s insistence that union seniority in the merged bargaining unit be protected at the expense of the seniority of a previously unrepresented employee violated Section 8(b)(1)(A) and (2) of the Act. The Court noted it agreed with the Board for substantially the same reasons it had previously stated in enforcing the two-member Board’s order in Teamsters Local Union No. 523 v. NLRB, 590 F.3d 849 (10th Cir. 2009), which it had vacated in the aftermath of New Process Steel v. NLRB, 130 S. Ct. 2635 (2010). Further, because the Union simply repeated the same arguments the Court had already rejected in the earlier decision, the Court found the Union’s position frivolous and granted Intervenor Rammage’s motion for sanctions against the Union, awarding him $4,000 plus double costs.
The Court's unpublished opinion is available here
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Decisions of Administrative Law Judges
Advanced Services, Inc. (26-CA-063184, et al.; JD(ATL)-16-12) Memphis, TN. Charges filed by individuals. Administrative Law Judge Margaret G. Brakebusch issued her decision on July 2, 2012.
Mike-Sell’s Potato Chip Co. (09-CA-072637; JD-36-12) Dayton, OH. Charge filed by Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 57, AFL-CIO-CLC. Administrative Law Judge Paul Bogas issued his decision on July 3, 2012.
Shands Jacksonville Medical Center, Inc. (12-CA-026649, et al.; JD‑35‑12) Jacksonville, FL. Charges filed by American Federation of State, County and Municipal Employees Council 79, Local 1328, AFL-CIO, and an individual. Administrative Law Judge Ira Sandron issued his decision on July 3, 2012.
Stanton Mechanical, Inc. (20-CA-071846; JD(SF)-32-12) Rancho Cordova, CA. Charge filed by Sheet Metal Workers International Association, Local 162, AFL-CIO. Administrative Law Judge Jay R. Pollack issued his decision on July 5, 2012.
Leader Communications, Inc. (17-CA-069008; JD(SF)-33-12) Oklahoma City, OK. Charge filed by International Association of Machinists, AFL-CIO, Local 171. Administrative Law Judge Gerald M. Etchingham issued his decision on July 5, 2012.
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