Summary of NLRB Decisions for Week of November 26-30, 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
Graphic Communications Conference/International Brotherhood of Teamsters, Local 137C (Offset Paperback Mfrs., Inc.) (04-CB-010663; 359 NLRB No. 22) Dallas and Laflin, PA, November 21, 2012.
Order adopting the findings and conclusions of the administrative law judge’s decision finding that the union violated the Act by threatening employees that it would not process any employee grievances about temporary workers performing bargaining unit work, and that the company would discharge any employee who discussed union related matters with other employees.
Charge filed by an individual. Administrative Law Judge Michael A. Rosas issued his decision on November 27, 2012. Chairman Pearce and Members Griffin and Block participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Lakeland Regional Medical Center (12-RC-089467) Lakeland, FL, November 27, 2012. Order denying the employer’s request for review of the Regional Director’s order approving withdrawal of petition. Petitioner – International Union, Security Police and Fire Professionals of America. Chairman Pearce and Members Griffin and Block participated.
Aero Automatic Sprinkler Company (21-RC-077110) Los Angeles, CA, November 27, 2012. Decision, order that mail ballot election conducted between May 3 and May 17, 2012, be set aside and a new election conducted, and direction of second election. Petitioner – United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 669, U.A., AFL-CIO.
ETO Magnetic Corp. (07-RC-087016) Grand Rapids, MI, November 27, 2012. Order denying the employer’s request for review of the Regional Director’s decision and direction of election. Petitioner – Local 951, United Food and Commercial Workers Union (UFCW), CTW. Chairman Pearce and Members Griffin and Block participated.
Vertis, Inc. (22-RC-061844) Monroe, NJ, November 30. 2012. Having reviewed the record in light of the exceptions and briefs, the Board adopted the administrative law judge’s findings and recommendations, and directed that the Regional Director open and count ballots.
C Cases
Apollo Detective, Inc. (15-CA-061510) Calumet Part, IL, November 27, 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 Local 1, Service Employees International Union.
Latino Express, Inc. (13-CA-077678) Chicago, IL, November 27, 2012. Order denying the request for special permission to appeal the administrative law judge’s rulings denying the motion to intervene filed by decertification petitioner and other employees, and denying the petition to revoke the Acting General Counsel’s subpoena ad testificandum. Charge filed by Teamsters Local 777, affiliated with the International Brotherhood of Teamsters, AFL-CIO. Chairman Pearce and Members Griffin and Block participated.
Six Star Janitorial & Carpet Services, Inc. d/b/a Six Star Janitorial (28‑CA‑023491, et al.) Las Vegas, NV, November 28, 2012. Order denying the Acting General Counsel’s and Charging Party’s motions to strike respondent’s answering brief to cross-exceptions’ for failure to comply with the Board’s rules and regulations. Charges filed by Laborers’ International Union of North America, Local 872, AFL-CIO.
Lifesource (13-CA-091617) Rosemont, IL, November 28, 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 Local 881, United Food and Commercial Workers.
Ampersand Publishing, LLC d/b/a Santa Barbara News-Press (31‑CA‑029253) Santa Barbara, CA, November 30, 2012. Order denying the employer’s motion for reconsideration of the Board’s decision. Charge filed by Graphic Communications Conference/International Brotherhood of Teamsters. Chairman Pearce and Members Griffin and Block participated.
***
Appellate Court Decisions
Erie Brush & Manufacturing Corp., Board Case No. 13-CA-43530 (reported at 357 NLRB No. 46) (D.C. Cir. Decided November 27, 2012)
In a published opinion, the Court granted the employer's petition for review, finding that the parties reached impasse once they deadlocked over union security and grievance arbitration, and that the employer therefore did not violate Section 8(a)(5) and (1) of the Act by refusing to bargain and withdrawing recognition.
The employer and the union began bargaining their first contract in June 2005, and agreed to bargain noneconomic issues before economic issues. Between June and March 2006, they reached agreement on all noneconomic issues but two, union security and grievance arbitration—the union was for them, the employer against. At a March 31 meeting, the union’s negotiator commented that “the parties were at an impasse on union security and arbitration,” and the employer’s representative agreed. The union suggested mediation, but the employer ultimately rejected the overture. Over the next three months, until June 16, the parties exchanged emails. On May 10, the union offered to negotiate economic issues and go back to the remaining noneconomic ones, and reiterated mediation; the employer rejected the offers in the absence of a promise of movement on union security and arbitration. On June 16, the employer withdrew recognition based on an employee petition signed by a majority of the bargaining unit. The Board found that the employer violated the Act by refusing to bargain between May 10 and June 16, that the refusal to bargain tainted the employees’ petition.
The Court disagreed. Noting that “[i]mpasse on a single critical issue can create an impasse on the entire agreement,” the Court applied the Board’s test from CalMat Co., 331 NLRB 1084, 1097 (2000), to conclude that its factors—contrary to the Board’s finding—favored impasse. First, the Court found that a bargaining impasse on union security and arbitration existed as of March 31, relying on the union’s statement then that the parties were at impasse and on their failure to budge in the 10 months of bargaining. Agreeing with Member Hayes’s dissent, the Court explained that the union’s “’mere invocation’ of mediation does not ‘somehow magically ward[] off a deadlock,’” and held that any post-March 31 mere offers to negotiate without promises of movement did not negate the March 31st impasse. Next, the Court again parted ways with the Board, citing evidence that “[b]oth parties considered union security ‘make or break’ on the entire contract,” and therefore disagreeing with the Board that the employer failed to show that the impasse on that issue led to a breakdown in negotiations. Finally, the Court disagreed with the Board that changed circumstances after March 31 broke the impasse. It ultimately concluded that, contrary to the Board’s holding, the parties were consistently at impasse beginning on March 31, relieving the employer of its duty to bargain and permitting it to lawfully withdraw recognition on its receipt of a validly-timed decertification petition.
The Court’s opinion is available here.
***
Carnegie Linen Services, Inc., Board Case No. 2-CA-39560 (reported at 357 NLRB No. 188)
In a summary order that issued on November 29, the Second Circuit enforced the Board's order in full, agreeing that substantial evidence supported the Board's finding that the employer unlawfully assaulted and then discharged a union activist.
The employer is a laundry in Bronx, New York, whose employees were represented by the Longshoremen's Union. Following an unwanted change in his shifts, an employee contacted Workers United and began working to organize the shop for that rival union. Shortly thereafter, the employer's general manager surveilled employees meeting at a local restaurant, staking out the gathering in dark glasses and a borrowed car. As the campaign heated up, the employer's president twice tried to bribe the employee who contacted Workers United. Then, after the employee rejected the second bribe, the employer's president threw a cup of hot coffee in the employee's face, causing serious injury and resulting in criminal charges against the president. When the employee attempted to return to work, he was told that he was fired.
On these facts, the Board found that the employer violated Section 8(a)(1) and (3) of the Act by bribing, assaulting, and discharging the employee because of his union activity. The Court enforced the Board's order, recognizing the dispute primarily as an argument over the Board's fact findings, which, the Court held, were supported by substantial evidence. Lastly, the Court agreed that the administrative law judge did not abuse his discretion in refusing the employer's request for adjournment until the conclusion of criminal charges against its president. As the Court explained, "the ALJ [had already] adjourned the hearing for more than six months to accommodate [the president's] involvement in the criminal case; the ALJ denied a request for a further adjournment after the criminal case itself was postponed for an additional two months." Slip op. at 3. Given that the judge drew no negative inferences and the employer was able to present its case through other witnesses, the Court agreed that there was no abuse of discretion.
The Court's summary opinion is available here; the Board's brief to the Court here.
***
Administrative Law Judge Decisions
Jones & Carter, Inc., Cotton Surveying Company (16-CA-027969; JD(ATL)‑32‑12) Houston, TX. Charge filed by an individual. Administrative Law Judge Margaret G. Brakebusch issued her decision on November 26, 2012.
Windsor Skyline Care Center (32-CA-076250, et al.; JD(SF)‑55‑12) Monterey, Salina, Fremont, CA. Charges filed by SEIU United Healthcare Workers-West. Administrative Law Judge Eleanor Laws issued her decision on November 26, 2012.
Amalgamated Transit Union, Local 1433, AFL-CIO (Veolia Transportation Services, Inc. Phoenix Division) (28‑CB‑078377; JD(ATL)‑33‑12) Phoenix, AZ. Charge filed by an individual. Administrative Law Judge Keltner W. Locke issued his decision on November 28, 2012.
***
To have the NLRB’s Weekly Summary of Cases delivered to your inbox each week, please subscribe here.