Summary of NLRB Decisions for Week of November 18-22 2013
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
Cushman & Wakefield, Inc. (04-CA-085979; 360 NLRB No. 10) Wilmington, DE, November 19, 2013.
The Board adopted the Administrative Law Judge’s findings that International Brotherhood of Electrical Workers Local 313 was the exclusive bargaining representative for the employees in the bargaining unit and that the Respondent violated Sections 8(a)(5) and (1) of the Act by bargaining to impasse about a non-mandatory subject of bargaining concerning union membership requirements.
Administrative Law Judge Robert A. Giannasi issued his decision on May 6, 2013. Charge filed by International Brotherhood of Electrical Workers Local 313. Chairman Pearce and Members Johnson and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Wendell’s Inc. (18-RD-109962) Ramsey, MN, November 18, 2013. No exceptions having been filed, the Board adopted the Regional Director’s findings and recommendations regarding challenged ballots in an election, and directed the Regional Director to open and count the ballot of one challenged employee, prepare and serve on the parties a revised tally of ballots, and issue the appropriate certification. Petitioner—An Individual.
New York University (02-RD-104101) New York, NY, November 20, 2013. Order denying the Petitioner’s request for review of the Regional Director’s decision and order dismissing the petition. Petitioner—An Individual. Members Hirozawa, Johnson, and Schiffer participated.
AT Wall Company (01-UC-081085) Warwick, Rhode Island, November 21, 2013. Order granting the Employer’s request for review as raising substantial issues regarding whether the Acting Regional Director erred in clarifying the existing bargaining unit at the Employer’s Warwick plant that manufactures metal electronic parts to include four classifications from a recently-acquired company that manufactures gun magazines. The Acting Regional Director had found that, under the Board’s decision in Premcor, Inc., 333 NLRB 1365 (2001), the new classifications should be included in the unit because they performed the same or similar production work that was historically performed by the existing bargaining unit. Petitioner— New England Joint Board, UFCW, RWDSU. Members Hirozawa, Johnson, and Schiffer participated.
C Cases
A + B HVAC Services, Inc. (22-CA-093446) Somerset, NJ, November 18, 2013. No exceptions having been filed, the Board adopted the Administrative Law Judge’s findings 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. In addition, the Board adopted the Judge’s recommendation that the Charging Party’s objection to the election be overruled, and that the representation case be remanded to the Regional Director for further processing. Charges filed by Sheet Metal Workers Local Union 25.
Oradell Health Care Center (22-CA-086895) Oradell, NJ, November 18, 2013. 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 1199 SEIU, United Healthcare Workers East.
RP Baking, LLC (22-CA-104989) Harrison, NJ, November 20, 2013. The Board denied the Employer’s motion to revoke an investigative subpoena duces tecum on the grounds that the subpoena seeks information relevant to the matter under investigation and describes with sufficient particularity the evidence sought, as required by Section 11(1) of the Act and Section 102.31(b) of the Board’s Rules and Regulations. Further, the Board found that the Employer failed to establish any other legal basis for revoking the subpoena. Members Miscimarra, Hirozawa, and Johnson participated.
First Transit, Inc. (28-CA-097436) Farmington, NM, November 20, 2013. Decision and Order approving a formal settlement stipulation between the Respondent Employer, the Charging Party Union, and the Acting General Counsel, and specifying actions the Employer must take to comply with the National Labor Relations Act. Charges filed by Sheet Metal, Air, Rail and Transportation Workers. Members Miscimarra, Hirozawa, and Johnson participated.
All American School Bus Corp. (29-CA-100827) Long Island, NY, November 22, 2013. Order granting General Counsel’s motion to sever Case 29-CA-100899 from the other unfair labor practice cases in the proceeding.
Laborers’ Local 894 (Donley’s, Inc.) (08-CD-081837) Akron, OH, November 22, 2013. Order denying International Union of Operating Engineers, Local 18’s motion for a Section 10(k) rehearing. The Board found that Local 18 had failed to establish that it has been prejudiced in this proceeding or that a new hearing is warranted because a third party obtained a copy of the Hearing Officer’s Report. Chairman Pearce and Members Hirozawa and Johnson participated.
Pioneer Transportation Corp. (29-CA-100899) New York, NY, November 22, 2013. 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 specific action to remedy the unfair labor practices. Charge filed by Local 1181-1061, Amalgamated Transit Union, AFL-CIO.
ThyssenKrupp Stainless USA, LLC, a wholly owned subsidiary of Outokumpu Stainless USA, LLC (15-CA-070319) Calvert, AL, November 22, 2013. Order denying Respondent’s motion for summary judgment. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC. Chairman Pearce and Members Miscimarra and Hirozawa participated.
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Appellate Court Decisions
Carey Salt Co., Board Case No. 15-CA-19704 (reported at 358 NLRB No. 124) (5th Circuit decided November 21, 2013)
In a published opinion, the Court enforced the Board’s order in almost all respects, agreeing that the employer repeatedly violated the Act by unlawfully refusing to bargain in good faith during negotiations for a successor contract and refusing to reinstate unfair labor practice strikers.
The employer operates a rock salt mine in Cote Blanche, Louisiana, where the union has represented employees for over 40 years. During contract negotiations in 2010, the employer and the union initially disagreed over three core issues involving overtime, alternate shifts, and cross-assignment. After several months of negotiations, the union requested a “final offer” from the employer solely to obtain membership feedback on the terms prior to the contract’s upcoming March 24 expiration, and informed the employer that negotiations would continue if its membership disliked the proposal. The employer presented its “final offer,” but omitted several important terms that the union felt would make things difficult to sell to its membership, which did reject the offer. After extending the contract a week, the parties met again on March 31; the union explained its members’ concerns, but, rather than negotiating, the employer declared impasse and left. It then implemented the “final” offer.
On April 7, believing that the unilateral implementation of the final offer was an unfair labor practice, the union voted to strike. A federal mediator brought the parties back to the table on April 30, and these negotiations ultimately produced a revised offer from the company on May 25 that increased the number of core issues from three to seven, including a merit-based system for recalling workers. Negotiations continued. The strike ended on June 15, but the employer reinstated based on merit, rather than seniority as provided for in the expired contract. Ultimately, after even more meetings, the employer claimed impasse in late June, and again unilaterally implemented its last contract proposal.
The Board found that the employer violated the Act by unilaterally implementing its contract proposals in April and June, conditioning bargaining on union concessions, failing to bargain in good faith on several other occasions, and presenting regressive proposals designed to frustrate agreement. The Board also concluded that the employer unlawfully failed to reinstate unfair labor practice strikers upon their unconditional offer to return to work, and threatened them in several other ways.
The Court enforced the Board’s order, except for the Board’s findings that the employer made intentionally regressive bargaining proposals. In its opinion, the Court focused on the “facts in the record establishing [the employer’s] bad faith, since bad faith precludes any finding of impasse.” The bad faith finding, observed the Court, turns on the credited testimony establishing that the employer understood that the union’s request for a “final offer” in March made clear that, if its members rejected the proposal, negotiations would continue. Because the company knew negotiations were supposed to continue, its immediate declaration of impasse after the employee vote demonstrated that it “deployed impasse not to ‘further’ but to ‘destroy’ the negotiation, at a critical point when the parties had explicitly agreed to return to the table. . . . [A]n employer may not use a ‘final’ offer’s anticipated rejection to engineer a premature impasse and swift unilateral implementation.” Rather, “[i]f an employer wishes to bring an end to talks, it must do so by good-faith bargaining, not by seizing upon magic words, abstracted from their context.” It similarly found that, given the ongoing negotiations in June 2010, the employer’s second declaration of impasse was also unlawful. The Court additionally agreed that the employer’s refusal to bargain unless the union accepted the March 2010 offer, and its conditioning further bargaining in June 2010 on the union’s acceptance of the seven core issues, violated its duty to bargain under the Act.
Further, because the employer’s initial declaration of impasse was unlawful, the union’s strike in protest was a protected unfair labor practice strike, according to the Court, and the employer violated Section 8(a)(3) of the Act by threatening strikers with replacement, refusing to immediately recall them, and continuing to honor job offers to replacements. Further, the Court enforced the Board’s holding that the employer violated the Act by ignoring the seniority-based recall provisions in the expired contract, and it rejected the employer’s claim that the provision applied only to lay-offs, not strikes. While upholding the bulk of the Board’s decision, the Court rejected the Board’s finding that the employer unlawfully made regressive proposals on March 19 and May 25. In the Court’s opinion, in neither case were the regressive proposals themselves (or the surrounding evidence) sufficient to show, in context, that the employer designed them to frustrate agreement or prolong the strike.
The Court’s opinion is available here
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Administrative Law Judge Decisions
Ashford TRS Nickel, LLC, a subsidiary of Ashford Hospitality Trust, Inc. (19-CA-032761; JD-SF-55-13) Anchorage, AK. Administrative Law Judge Gerald M. Etchingham issued his decision on November 18, 2013. Charge filed by UNITEHERE! Local 878, AFL-CIO.
Consolidated Communications d/b/a Illinois Consolidated Telephone Company (14-CA-094626; JD-86-13) Mattoon, IL. Administrative Law Judge Arthur J. Amchan issued his decision on November 19, 2013. Charges filed by Local 702, International Brotherhood of Electrical Workers, AFL-CIO.
Raytheon Company (25-CA-092145; JD-84-13) Fort Wayne, IN. Administrative Law Judge Eric M. Fine issued his decision on November 19, 2013. Charge filed by United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied-Industrial & Service Workers International Union, AFL-CIO.
Seedorff Masonry, Inc. (25-CA-088910; JD-83-13) Strawberry Point, IA. Administrative Law Judge Melissa M. Olivero issued her decision on November 19, 2013. Charge filed by International Union of Operating Engineers Local 150, AFL-CIO.
Kmart Corporation, a Subsidiary of Sears Holding Corporation (06-CA-091823; JD-85-13) Hoffman Estates, IL. Administrative Law Judge David I. Goldman issued his decision on November 19, 2013. Charges filed by an Individual.
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