Summary of NLRB Decisions for Week of March 12-16, 2012

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 Decision

Northfield Urgent Care, LLC (18-CA-19755; 358 NLRB No. 17) Northfield, MN, March 14, 2012.

The Board affirmed the administrative law judge’s decision that the employer, Northfield Urgent Care, LLC, through its owner, Dr. Kevin Bardwell, committed several violations of Section 8(a)(1) of the Act.  Specifically, Bardwell unlawfully interrogated several employees when asking them who wrote an anonymous letter that he received in response to his proposed pay cut.  Bardwell also unlawfully told employees not to have closed-door meetings, to cease whispering with one another, not engage in “toxic talk,” and cease pay-cut discussions because they were “toxic,” “negative,” and were “creating a negative environment.”  Finally, Bardwell unlawfully disciplined and fired an employee and unlawfully gave another employee a low performance evaluation as well as unlawfully demoted and fired him.  The Board affirmed the judge’s decision to award both employees backpay, reinstatement to their former positions, and rescind the low performance evaluation and disciplinary forms. 

Charges  filed by an individual.  Administrative Law Judge Paul Buxbaum issued his decision on September 30, 2011.  Chairman Pearce and Members Flynn and Block participated. 

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

American Medical Response, Inc. (28-UC-060436) Las Vegas, NV, March 13, 2012.  Order granting employer’s request for review of the Regional Director’s decision and order.  Petitioner – Service Employers International Union, Local 1107.  Chairman Pearce and Members Hayes and Griffin participated.

Veolia Transportation, Inc. d/b/a GBT Access (34-RC-072660) Bridgeport, CT, March 14, 2012.  Order denying the employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – United Food and Commercial Workers Union, Local 371.  Chairman Pearce and Members Griffin and Flynn participated.

Prevost Car U.S. d/b/a Nova Bus (03-RC-071843) Plattsburgh, NY, March 15, 2012.  Order denying employer’s request for review of the Regional Director’s decision and direction of election.  Petitioner – Teamsters, Local 687, International Brotherhood of Teamsters.  Member Hayes dissented: would have granted review.  Chairman Pearce and Members Hayes and Griffin participated.

Republic Services (25-RC-068088) Demotte, IN, March 16, 2012.  Decision, order that the election is to be set aside and a rerun election be conducted, and direction of second election.  Petitioner – International Union of Operating engineers, Local 150, AFL-CIO.

C Cases

R & S Waste Services, LLC (02-CA-065928) Harrison, NY, March 12, 2012.  Order denying employer’s petition to revoke subpoena.  Charge filed by International Brotherhood of Teamsters, Local 813.  Chairman Pearce and Members Hayes and Griffin participated.

Rogan Brothers Sanitation, Inc. (02-CA-065930) Yonkers, NY, March 12, 2012.  Order denying employer’s petition to revoke subpoena.  Charge filed by International Brotherhood of Teamsters, Local 813.  Chairman Pearce and Members Hayes and Griffin participated.

Alamillo Rebar, Inc. (32-CA-068346) Union City, CA, March 12, 2012.  Order denying employer’s petition to revoke subpoena.  Charge filed by Shopmen’s Union, Local 790.  Chairman Pearce and Members Hayes and Griffin participated.

New Vista Nursing and Rehabilitation, LLC (22-CA-029988) Newark, NJ, March 15, 2012.  Order denying respondent’s motion for reconsideration.  Charge filed by 1199 SEIU United Healthcare Workers East, NJ Region.  Members Hayes, Griffin, and Block participated.

American Medical Response, Inc. (28-CA-064303) Las Vegas, NV, March 16, 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 Service Employees International Union, Local 1107.

Enterprise Leasing Company – Southeast, LLC (11-CA-073779) Morrisville, NC, March 16, 2012.  Order transferring proceeding to the Board and notice to show cause why the Acting General Counsel’s or respondent’s motion should not be granted.  Charge filed by International Brotherhood of Teamsters, Local 391.

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Appellate Court Decisions

VERITAS Health Services, Inc., Board Case No. 31-CA-30105 (reported at 356 NLRB No. 137) (D.C. Cir. decided March 13, 2012)

Agreeing with the Board that pro-union supervisory conduct did not taint a representation election, the Court enforced the Board's order finding that the employer unlawfully refused to bargain following the union's victory. 

In early 2010, the union began a campaign to organize the employer's nurses.  It focused on both the employer's registered nurses and its charge nurses, and two charge nurses became very active union proponents.  The union filed a petition for an election among the registered nurses and charge nurses; however, it subsequently stipulated that the charge nurses were statutory supervisors ineligible to vote in the election.  Thereafter, not only did the charge nurses cease their prounion activity, but the employer promoted the two active union supporters noted above, at which point both of them became very active union opponents.  When the union won the election 72-39, the employer challenged the results, claiming that the charge nurses' union activity tainted the election results. 

Recognizing that mere supervisory support for unionization does not taint an election, the D.C. Circuit applied the Board's test in Harborside Healthcare, Inc., 343 NLRB 906, 909 (2004), to agree that the charge nurses' advocacy for unionization here did not reasonably tend to coerce or interfere with the RN's choice in the election.  That the charge nurses signed cards in front of the RNs and attended union meetings did not amount to impermissible solicitation of the RNs signatures, according to the Court.  As to the two charge nurses who switched allegiances after their promotion, the Court affirmed the Board's conclusion that "even assuming that [their] initial conduct . . . tended to coerce or interfere with the registered nurses' free choice, their conduct was mitigated by their subsequent [anti-union] actions." 

The Court also endorsed the Board's evidentiary rulings, holding that the judge did not abuse his discretion when he redacted the names of employees who contacted the union to protect their Section 7 rights to keep those communications confidential and when he excluded evidence of communications between the union and the charge nurses because they were irrelevant to the registered nurses' choice in the election.  Finally, rejecting the employer's final argument, the Court held that the union's charge was timely.

The Court's published order is available here.

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Fresh & Easy Neighborhood Market, Inc., Board Case No. No. 21-CA-38883 (reported at 356 NLRB No. 90) (D.C. Circuit decided March 13, 2012)

In an unpublished judgment the D.C. Circuit denied the employer's petition for review and enforced the Board's order.  The Board held that the employer thrice violated Section 8(a)(1) of the Act during the course of an organizing campaign at the employer's Spring Valley, California grocery store in 2008.

• First, a manager twice explicitly cautioned a pro-union employee that she could not discuss the union on the work floor, despite the employee's assertion that "if employees can talk about the San Diego Chargers' games or about their kids, then they can talk about the Union."  The Board held that the employer unlawfully restricted the employee's talk to her coworkers about organizing and failed to cure the violation.
• Second, a supervisor advised that same employee—who was visibly upset after receiving a warning for shouting in the store she thought was given because of her union activity—that "if I had a manager that didn't like me, I would take my check and walk out."  The supervisor then told her twice that the employee would probably be eligible for unemployment benefits.  The Board found that the employer unlawfully invited the employee to quit because of her protected union advocacy.
• Finally, after receiving a disciplinary performance improvement plan, the employer prohibited the employee from telling her coworkers about the discipline, again directly interfering with her Section 7 right to discuss working conditions with her colleagues.

In a short opinion, the Court agreed that "the Board's decision that [the employer] unlawfully encouraged an employee to quit in response to protected activity and promulgated two unlawful oral rules, one prohibiting an employee from discussing disciplinary matters during working hours and the other prohibiting employees from discussing union matters during working hours, is supported by substantial evidence and is not arbitrary."

The Court’s published order is available here.

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Decisions of Administrative Law Judges

No administrative law judges decisions were issued this week.

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